In Lopez v. New York State Div. of Human Right[s], No. 150760/2021, 2021 WL 2480062 (N.Y. Sup Ct, New York County June 17, 2021), the court denied the petitioner’s CPLR Article 78 petition to overturn an adverse administrative finding on his claim of age discrimination, and granted a cross-motion granting a CPLR 3211 motion to dismiss.
The SDHR issued an order providing, inter alia:
There is insufficient evidence to support the allegations of unlawful discrimination contained in the complaint. The investigation has not revealed that the Respondent engaged in discrimination based on Complainant’s age. Instead, the investigation establishes that Respondent furloughed a number of employees of mixed ages based on decreased business need due to the COVID-19 pandemic. There is insufficient evidence to conclude that Respondent’s actions constituted a violation of the law, or that such actions were motivated by discriminatory animus.
Mr. Lopez commenced this proceeding, under Article 78 of the Civil Practice Law and Rules and N.Y. Executive Law § 298, to challenge the DHR order.
The court, unpersuaded by his arguments, explained:
[T]he DHR order made three factual findings that did not support Lopez’s claim of age discrimination: 1) that Castlewood had furloughed both Lopez and its other VP of sales as a result of the Covid-19 national pandemic, rather than terminating them outright, and eventually eliminated their positions without replacing them; 2) that Castlewood also furloughed three other employees of various ages as a result of the pandemic; and 3) that Sutton’s December 2019 conversation with Lopez did not involve improper discriminatory intent. See verified answer (DHR), exhibit A. The DHR order also set forth the conclusions that Lopez’s age discrimination allegations were speculative, and that speculative allegations are insufficient to support a claim, as a matter of law. Id. The court notes that the DHR’s factual findings are all supported by evidence in the administrative record, as is recited in the October 13, 2020 DHR report. Id. The court also notes that the DHR’s legal conclusion that it may not rely on speculative statements is accurate. See e.g., Ellison v Chartis Claims, Inc., 178 AD3d 665 (2d Dept 2019). As a result, the court concludes that the DHR order satisfies the applicable standard of review because it was rationally based on material in the administrative record.
The court further rejected the petitioner’s argument that the DHR’s investigation was “abbreviated or one sided” based on his claim that the DHR “ignored” evidence he presented; rather, the court held, he was “given a full and fair opportunity to present” the evidence, and therefore, the court could not find that the DHR’s investigation was “abbreviated or one sided.”