In Matter of Pedro Osorio v. New York State Division of Human Rights and McAlpin Industries, Inc., No. 201, 24-01441, 2025 WL 877798 (N.Y.A.D. 4 Dept., Mar. 21, 2025), the court, inter alia, held that petitioner’s retaliation claim was properly dismissed by the State Division of Human Rights’ determination that petitioner was not subjected to a hostile work environment.
From the decision:
Contrary to petitioner’s contention, there is substantial evidence to support the determination that he was not discriminated against on the basis of his age, race, color, or national origin (see Executive Law § 296 [1] [a]). To establish a prima facie case of discrimination, petitioner was required to demonstrate that he was a member of a protected class, that he was qualified for his position, that he suffered an adverse employment action, and that the adverse action “occurred under circumstances giving rise to an inference of discriminatory motive” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004]; see Matter of Phillips v New York State Div. of Human Rights, 217 AD3d 1595, 1596 [4th Dept 2023]). Here, we agree with SDHR that petitioner failed to establish a prima facie case of discrimination because the written warnings he received from McAlpin did not constitute an adverse employment action (see generally Forrest, 3 NY3d at 306; Sims v Trustees of Columbia Univ. in the City of N.Y., 168 AD3d 622, 623 [1st Dept 2019]; Matter of Russo v New York State Div. of Human Rights, 137 AD3d 1600, 1601 [4th Dept 2016]).
Contrary to petitioner’s further contention, we conclude that there is substantial evidence to support SDHR’s determination that he was not subjected to retaliation following his complaints of workplace discrimination. “In order to make out [a] claim [for unlawful retaliation], [a petitioner] must show that (1) [the petitioner] has engaged in protected activity, (2) [the] employer was aware that [the petitioner] participated in such activity, (3) [the petitioner] suffered an adverse employment action based upon [such] activity, and (4) there is a causal connection between the protected activity and the adverse action” (Forrest, 3 NY3d at 312-313; see Matter of Mario v New York State Div. of Human Rights, 200 AD3d 1591, 1593 [4th Dept 2021], lv denied 38 NY3d 909 [2022]). “Once that showing is made, ‘the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions. Then, if [the employer] meet[s] this burden, [the petitioner] has the obligation to show that the reasons put forth by [the employer] were merely a pretext’ ” (Russo, 137 AD3d at 1602).
Here, petitioner alleged that he was retaliated against because he was terminated after he made several complaints of discrimination to McAlpin’s human resources staff. It is undisputed that petitioner met his initial burden with respect to his retaliation claim. Nonetheless, we conclude that there is substantial evidence in the record to support the determination that McAlpin “present[ed] legitimate, independent and nondiscriminatory reasons to support [its] action[ ]” in terminating petitioner’s employment (id.). Specifically, substantial evidence adduced at the hearing established that petitioner was terminated by McAlpin because, in April 2020, during the early months of the COVID-19 pandemic, he purposefully coughed and sneezed on his direct supervisor as a joke, and that, in doing so, he violated the terms of McAlpin’s employee handbook. We further conclude that petitioner failed to establish that McAlpin’s proffered reason for his termination was a pretext for unlawful retaliation (see Mario, 200 AD3d at 1593; Russo, 137 AD3d at 1602).
The court further concluded that there was substantial evidence to support SDHR’s determination that petitioner was not subjected to a hostile work environment under the circumstances of this case.