Discrimination and Retaliation Claims Properly Dismissed by the New York State Division of Human Rights

In Russo v. New York State Div. of Human Rights, No. 15-01243, 2016 WL 1066422 (N.Y. App. Div. 4th Dept. Mar. 18, 2016), the court affirmed the State Division of Human Rights’ dismissal of the petitioner’s employment discrimination and retaliation claims.

The New York State Division of Human Rights is a statewide administrative agency that enforces the New York State Human Rights Law. This case provides some guidance as to how SDHR determinations are reviewed.

As to her gender discrimination claim, although the court noted that the three-day suspension imposed on the petitioner was an “adverse employment action,” it held:

Even assuming, arguendo, that the imposition of the adverse employment action occurred under circumstances giving rise to an inference of discrimination … petitioner’s employer[] presented a legitimate, independent and nondiscriminatory reason to support its employment decision. There is substantial evidence in the record to establish that petitioner, in her role as a court security supervisor, subjected one or more persons to heightened security measures on a regular basis either for personal reasons or for no legitimate reason, and that she caused her male subordinate to do the same. Moreover, there is substantial evidence to establish that petitioner engaged in excessive use of her personal cell phone and excessive socializing while on duty. Contrary to petitioner’s contention, she was not similarly situated to the male subordinate, and she could not establish disparate treatment based on the fact that the male subordinate was not suspended for his role in subjecting certain people to heightened security measures.

The court also held that plaintiff’s retaliation claim was properly dismissed:

Even assuming, arguendo, that petitioner met her initial burden, we nevertheless conclude that [petitioner’s employer]┬ápresented a legitimate, independent and nondiscriminatory reason for issuing a counseling memorandum on sexual harassment based on evidence that petitioner had been sharing sexually explicit material that she had on her cell phone. Petitioner failed to establish that the reason for the memorandum was pretextual.

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