A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness

The New York State Division of Human Rights [Division] initiated this proceeding pursuant to Executive Law §298 to enforce a determination of the Commissioner of the New York State Division of Human Rights. The Commissioner's determination adopted the recommendation and findings of an Administrative Law Judge, made after a hearing, finding that the Respondents unlawfully discriminated against the Plaintiff on the basis of her sex, inter alia, and awarded her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the Respondents in the principal sum of $50,000.

The Appellate Division granted Division's petition, without costs or disbursements, and confirmed the Division's determination finding that the Respondent unlawfully discriminated against Plaintiff on the basis of her sex. The Court directed the Respondent to pay the Plaintiff compensatory damages in the principal sum of $75,000 for mental anguish, plus interest at the rate of 9% per year from February 24, 2023, and $24,640.50 for attorneys' fees, plus interest at the rate of 9% per year from February 24, 2023, and to pay the New York State Division of Human Rights the principal sum of $50,000, plus interest at the rate of 9% per year from February 24, 2023, as a civil fine and penalty.

The text of the Appellate Division's decision is set out below:

In the Matter of New York State Division of Human Rights, petitioner

v

Boston Market Corporation, et al., respondents.

Supreme Court of the State of New York, Appellate Division, 

Second Judicial Department

Decided on October 14, 2026

2025-01314, (Index No. 9158/24)

Colleen D. Duffy, J.P.

Deborah A. Dowling

Janice A. Taylor

Laurence L. Love, JJ.

Melissa Franco, Bronx, NY (Abbey J. Marr of counsel), for petitioner.

DECISION & JUDGMENT

Proceeding pursuant to Executive Law § 298 to enforce a determination of the Commissioner of the New York State Division of Human Rights dated February 24, 2023. The determination adopted the recommendation and findings of an administrative law judge dated April 28, 2022, made after a hearing, finding that the respondents Boston Market Corporation and Nicholas Foreman unlawfully discriminated against the complainant on the basis of her sex, inter alia, awarded her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the respondents Boston Market Corporation and Nicholas Foreman in the principal sum of $50,000.

ADJUDGED that the petition is granted, without costs or disbursements, to the extent that the portion of the determination finding that the respondent Boston Market Corporation unlawfully discriminated against the complainant on the basis of her sex and awarding her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessing a civil fine and penalty against the respondent Boston Market Corporation in the principal sum of $50,000 is confirmed, the determination is otherwise annulled, the petition is otherwise denied, the proceeding is otherwise dismissed, and the respondent Boston Market Corporation is directed to pay the complainant compensatory damages in the principal sum of $75,000 for mental anguish, plus interest at the rate of 9% per year from February 24, 2023, and $24,640.50 for attorneys' fees, plus interest at the rate of 9% per year from February 24, 2023, and to pay the New York State Division of Human Rights the principal sum of $50,000, plus interest at the rate of 9% per year from February 24, 2023, as a civil fine and penalty.

The complainant filed a complaint with the New York State Division of Human Rights (hereinafter the SDHR) against the respondents, Boston Market Corporation (hereinafter Boston Market) and Nicholas Foreman, alleging that they subjected her to a hostile work environment on the basis of her sex. After a public hearing, an administrative law judge made a recommendation and findings that the respondents unlawfully discriminated against the complainant on the basis of her sex by subjecting her to a hostile work environment, awarded her compensatory damages in the principal sum of $20,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the respondents in the principal sum of $10,000. Thereafter, the Commissioner of the SDHR (hereinafter the Commissioner), in a determination dated February 24, 2023, adopted the liability finding and the award for attorneys' fees of the administrative law judge, but awarded the complainant compensatory damages in the principal sum of $75,000 for mental anguish and assessed a civil fine and penalty against the respondents in the principal sum of $50,000. The SDHR subsequently commenced this proceeding pursuant to Executive Law § 298 to enforce the determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

Initially, the Supreme Court erred in transferring so much of the proceeding as sought enforcement against Foreman to this Court pursuant to Executive Law § 298. Foreman defaulted in answering the complaint, and the determination against him was made following a hearing pursuant to Executive Law § 297(4)(b) (see Matter of New York State Div. of Human Rights v Village Plaza Family Rest., Inc., 59 AD3d 1038, 1038; Matter of New York State Div. of Human Rights v Atlantic City Sub Shop, 27 AD3d 853, 854). Nevertheless, in the interest of judicial economy, this Court will decide so much of the proceeding as sought enforcement against Foreman on the merits (see Matter of Sahara Constr. Corp. v New York City Off. of Admin. Trials & Hearings, 242 AD3d 998, 1000; Matter of New York State Div. of Human Rights v Village Plaza Family Rest., Inc., 59 AD3d at 1038).

An enforcement proceeding initiated by the SDHR raises the issue of whether its determination was supported by sufficient evidence in the record (see Matter of State Div. of Human Rights v Elite Dental Care, P.C., 237 AD3d 835, 836; Matter of New York State Div. of Human Rights v Boro Park Senior Living Community, LLC, 213 AD3d 671, 672). "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence in the record" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899). "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [internal quotation marks omitted]; see Matter of Town of Hempstead v New York State Div. of Human Rights, 215 AD3d 973, 976). "[C]ourts may not weigh the evidence or reject [SDHR's] choice where the evidence is conflicting and room for a choice exists" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 331 [internal quotation marks omitted]; see Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75).

Here, there is substantial evidence in the record to support the Commissioner's determination that Boston Market subjected the complainant to a hostile work environment based on her sex (see Executive Law § 296[1][h]; Matter of State Div. of Human Rights v Adler, 229 AD3d 555, 556; Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp., 140 AD3d 965, 966). However, Foreman may not be held individually liable for the damages awarded by the Commissioner (see Doe v Bloomberg L.P., 36 NY3d 450, 457-458; Matter of Hilal v New York State Div. of Human Rights, 57 AD3d 898, 899). Accordingly, so much of the petition as sought enforcement against Foreman must be denied.

The award of compensatory damages for mental anguish is reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries (see Matter of State Div. of Human Rights v Steve's Pier One, Inc., 123 AD3d 728, 729; Matter of State Div. of Human Rights v Koch, 60 AD3d 777, 777).

A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Head Injury Assn., Inc. v New York State Div. of Human Rights, 241 AD3d 1335, 1338; Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955, 957). Here, we perceive no basis for disturbing the civil fine and penalty assessed (see Matter of New York State Div. of Human Rights v Boro Park Senior Living Community, LLC, 213 AD3d at 673; Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp., 140 AD3d at 967).

The amount of the attorneys' fees awarded to the complainant was reasonable (see Executive Law § 297[10]).

DUFFY, J.P., DOWLING, TAYLOR and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

The obligations of a hearing officer conducting a New York State Civil Service Law §75 disciplinary hearing

An employee [Petitioner] of the Town was working as a systems administrator for the Town overseeing the transition to a new telephone system for its offices. It was subsequently discovered that certain Town office telephones had been enabled to record the user's conversation in contravention of a Town Board resolution prohibiting such recording except for calls made to "the Police Department for purposes of police investigations."

Following an investigation, a disciplinary charge was filed against Petitioner alleging three specifications of misconduct and incompetence.  After a disciplinary hearing conducted pursuant to Civil Service Law §75, the Hearing Officer sustained the charge and recommended the Petitioner's termination. The Town adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and terminated Petitioner. Petitioner commenced the instant CPLR Article 78 proceeding seeking a court order to annul his termination and directing his reinstatement to his former position, with back pay and benefits. 

The Appellate Division observed that:

1. "Pursuant to Civil Service Law §75(1), a civil service employee shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges";

2. "The employer bears the burden of proving misconduct or incompetency and any determination of same 'must be based on the written charges' and specific factual findings;

3. A court's review of that determination is limited to whether substantial evidence supports the determination;

4. A court cannot conduct such a review unless the hearing officer makes sufficiently specific factual findings to identify the basis for the determination; and

5. A court may not supply factual findings that are absent and in the instant hearing the Hearing Officer did not provide the requisite specificity.

Accordingly, the Appellate Division annulled the Town's dismissal of the Petitioner and remitted the matter to the Town for further proceedings, noting that it was undisputed hearing evidence reflected that Petitioner was the contact person with the telephone vendor selected for the project, in setting up the Town's new telephone system nor was there any question that telephone calls to nonpolice extensions — including calls to the town supervisor, the town supervisor's confidential secretary and the town attorney — were being recorded despite the Town's resolution prohibiting such recordings.

The Appellate Division, however, noted that there were sharp factual disputes regarding Petitioner's alleged culpability, if any, that the Hearing Officer needed to resolve. Although the Hearing Officer stated generally that he found the testimony of Town's witnesses more credible than that of Petitioner and the Vendor's employee, he did not make sufficient factual findings to permit meaningful review by the Court as the Hearing Officer:

1. Failed to discuss each misconduct specification separately; and

2. Never stated the factual findings he relied upon to establish each finding of guilt. 

In the words of the Appellate Division, "This failure was particularly glaring when distinguishing between intentional and negligent misconduct, as the Hearing Officer never determined when, how or why telephone calls were improperly recorded and left doubt as to whether he faulted [Petitioner] for intentionally disregarding the [Town's] resolution when the telephone system was set up, for later advising the town supervisor how to turn recording on in violation of that resolution, or for negligently failing to monitor the telephone system in general."

The Appellate Division opined that the "absence of adequate findings further obscured whether the Hearing Officer inappropriately shifted the burden of proof from [the Town] to [the Petitioner]; he cursorily acknowledged that [the Town] bore the burden of proof but then faulted [the Employee] for not documenting his engagement with the [Vendor] or the town supervisor's inquiry about how to activate recording on certain extensions."

Absent specific factual findings as to what occurred and an explanation of the basis for sustaining each specification, the Appellate Division said it "could not determine whether substantial evidence supports the [§75 disciplinary] determination".

Accordingly, the Appellate Division ruled that the Town's determination "must be annulled and the matter remitted for the development of appropriate findings", and, in order to assist the Hearing Officer in rendering an adequate decision upon remittal, Appellate Division "briefly addressed" the Petitioner's remaining arguments to clarify the applicable legal principles, noting:

a. The respondent bears the burden to establish the charged misconduct under Civil Service Law §75; and

b. A Hearing Officer should also be mindful that "seriously controverted" hearsay evidence ... cannot constitute substantial evidence for the determination by itself".

The Appellate Division annulled the Town's determination and remitted the matter to the Town "for further proceedings not inconsistent with this Court's decision".

Click HERE to access the Appellate Division's decision posted on the Internet,

Proposed amendments to New York State's Ethics Training Requirements for Lobbyists and Clients

 PROPOSED RULE MAKING 

New York State Ethics Training 

Requirements for Lobbyists and Clients

NO HEARING(S) SCHEDULED 

Proposed Action: Amendment of Part 943 of Title 19 NYCRR

Statutory authority: Legislative Law, section 1-d(h) and (i) 

Subject: Amendments to the Ethics training requirements for Lobbyists and Clients. 

Purpose: Implement the statutory amendments included in Part U of Chapter 55 of the Laws of 2026 relating to ethics training for lobbyists and clients and the imposition of late fees for failing to complete such training within the required time. 

Text of proposed rule and any required statements and analyses may be obtained from: Megan Mutolo, Esq., Commission on Ethics and Lobbying in Government, 540 Broadway, Albany, NY 12207, (518) 486-7593 

Data, views or arguments may be submitted to: Same as above. 

Public comment will be received until: 60 days after publication of this notice. 

The federal Portal-to-Portal Act does not bar the payment of compensation when the employee is prevented from clocking in and beginning to work by the employer

Below is the introductory statement to the instant decision by the United States Court of Appeals, Second Circuit, setting out the genesis of this litigation.

"This case requires us* to consider whether the Portal-to-Portal Act bars an employee’s claim for compensation under the Fair Labor Standards Act (“FLSA”) for time spent waiting for work to begin when an employer requires the employee to report for work at a specific time but the employee is prevented from clocking in and beginning to work for reasons attributable to the employer.

[*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.]

"Plaintiff-Appellant Sandra Santos appeals from a judgment of the United States District Court for the Eastern District of New York (Azrack, J.) dismissing her claims against Defendant-Appellee Lidl US, LLC (“Lidl”) for violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

"Santos alleges that Lidl required her and similarly situated employees to report to work fifteen minutes before the listed start time of their store opening shifts, and that opening managers regularly didn’t arrive until the listed start time. Because employees couldn’t clock in for work until they accessed the time clock machines located inside stores, on the days when managers were not there to let them in, the employees didn’t get paid for time spent waiting for managers to grant them entry. As relevant here, Santos seeks compensation for that unpaid waiting time.

"The district court dismissed Santos’s time-shaving claims as barred by the Portal-to-Portal Act, 29 U.S.C. § 254, which generally shields employers from FLSA liability for time workers spend on activities “preliminary” or “postliminary” to the principal activities they are employed to perform.

"On appeal, Santos argues that the district court overlooked that waiting time can be compensable when an employer engages an employee to wait for work. We agree. Waiting time is compensable under the FLSA when an employer requires an employee to report to the worksite at a certain time to be ready to work and, for reasons beyond the employee’s control, there is no work to be done. 29 C.F.R. § 790.7(h)."

The Court of Appeals then vacated the dismissal of Santos’s FLSA and NYLL time-shaving claims by the Federal District Court and remanded the matter to the District Court "for further proceedings consistent with this opinion", Judge Sullivan dissenting in a separate opinion.

Click HERE to access the majority and dissenting opinions in this action posted on the Internet.

Recent disciplinary hearing decisions by New York City Office of Administrative Trials and Hearing's Administrative Law Judges

Below are summaries of two recent disciplinary hearings conducted New York City Administrative Law Judges serving with the New York City Office of Administrative Trials and Hearing [OATH].

1. OATH Administrative Law Judge [ALJ] Julia Davis recommended the termination of the employment of a Behavioral Health Associate [Respondent] who was charged with (a) gross misconduct [striking a patient in the face] and (b) excessive absenteeism. 

Respondent had attempted to stop a patient from banging on the hallway window of a nurses’ station, and surveillance video showed Respondent striking the patient twice in the face. Respondent denied striking the patient, arguing that he acted in self-defense, which the ALJ found was belied by the video evidence showing the contrary. 

In assessing the penalty to recommend to the Appointing Authority, Judge Davis opined that Respondent’s lack of disciplinary history was outweighed by the seriousness of Respondent's misconduct and his inability to take responsibility for his actions. 

Although the ALJ found that Appointing Authority's evidence was insufficient to sustain the excessive absenteeism charge, the Administrative Law Judge recommended that Respondent be terminated from his employment based on her finding the Respondent guilty of gross misconduct in striking the patient twice. 

Click HERE to access Judge Davis' findings and findings and recommendation with respect to the penalty to be imposed on Respondent.

2. ALJ Christine Stecura recommended the termination of the employment of an Eligibility Specialist [Respondent] found guilty of being absent from work without authorization [AWOL]. 

The Appointing Authority [Petitioner] had charged the Respondent with being AWOL commencing in January 2025. Respondent had initially requested a medical leave of absence for a six-week period, which Petitioner denied due to a lack of supporting documentation. The ALJ found that Petitioner had established that Respondent was absent from work without approval for over 14 months and that such absence was excessive and subject to disciplinary action. 

The ALJ also found that Respondent had failed to provide corroborating lay, medical, or expert testimony, or supporting medical documentation, to demonstrate any alleged current and ongoing disability. 

Click HERE to access Judge Stecura's findings and recommendation with respect to the penalty to be imposed on Respondent.

Appellate Division holds that the body that ruled on disciplinary action taken against an employee pursuant to Civil Service Law §75(2) lacked jurisdiction to consider the matter

The Civil Service Law §75 Disciplinary Hearing Officer [HO] found the Plaintiff bringing this CPLR Article 78 action guilty of misconduct and incompetence and recommend Plaintiff's termination from her employment with City of Rochester Police Accountability Board [Board]. The Board adopted the HO's findings and  recommendation. 

Plaintiff initiated the instant CPLR Article 78 action:

1. Alleging the disciplinary action taken against her failed to comply with provisions set out in Civil Service Law §75(2) as the Board, which (a) adopted the HO's findings concerning the disciplinary charges served on Plaintiff and (b) accepted the HO's recommendation as to the penalty to be imposed, dismissal of Plaintiff from her position, lacked jurisdiction to discipline her; and

2. Alleging the City's administrative responses to her requests for documents pursuant to  New York State's Freedom of Information Law [FOIL] provided inadequate and contained redacted materials without proper justification.

With respect to Plaintiff's argument addressing the Board's alleged lack of jurisdiction as a result of a failure to comply with the relevant provisions of §75, the Appellate Division said it agreed with Plaintiff's arguments, noting that a disciplinary hearing on §75 charges preferred against an employee "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose". In the words of the Appellate Division, in the absence of "a written delegation authorizing a deputy or other person to conduct the hearing, 'the removing board or officer has no jurisdiction to discipline an employee'". 

As to Plaintiff's claims that "... a number of her FOIL requests were improperly denied and that the City provided inadequate responses and redacted materials without proper justification", the Appellate Division noted that "There is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt by articulating a particularized and specific justification".

With respect to the disciplinary action taken against the Plaintiff, the Appellate Division unanimously annulled the Board's disciplinary decision "on the law without costs to the extent that it terminated petitioner from her employment" and granted Plaintiff's petition "to the extent that [Petitioner] is reinstated to her position with back pay, less any unemployment benefits received", and remitted to Supreme Court for further  proceedings in accordance with its decision.

With respect to Plaintiff's concerns with the City's response to her FOIL requests, the Appellate Division said that "Because the record before [it] is insufficient to enable [the Court] to determine whether a legitimate basis existed for the City's responses to those portions of [Plaintiff's] requests, the Appellate Division remitted the matter to Supreme Court for in camera review of the requested FOIL items and a determination as to the merits of Petitioner's FOIL claims.

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected items posted on the Internet during the week ending October 9, 2026

Recent sexual harassment court decisions Posted on the Internet by Labor and Employment Daily. Click HERE to access this listing.

Preparing for Medicaid's New Redetermination Mandates This paper explores practical strategies for preparing for more frequent eligibility reviews, strengthening constituent communications and reducing administrative burden without sacrificing the beneficiary experience. DOWNLOAD 

How the City of Newport News Is Raising the Bar for Open Government  Facing a surge in public records requests, Newport News centralized FOIA management to improve transparency, streamline compliance and strengthen public access to government information. READ NOW

What Drives Effective Government Leaders? Go beyond the headlines and hear candid conversations with Governing’s Public Officials of the Year. Listen to The Common Thread 

Keeping Public Services Accessible During Emergencies Power outages, severe weather, and equipment failures don't stop the need for public services. Learn how agencies can prepare for unexpected disruptions while maintaining reliable communications with staff and the communities they serve. DOWNLOAD 

As more colleges shut down, communities are looking to convert their campuses into housing. Zoning, costs and neighborhood opposition can make that harder than it sounds. Read More 

A Guide to AI Recruitment Technology for Public Sector Hiring Learn how AI-assisted recruiting can help agencies identify qualified candidates sooner, reduce sourcing work and manage the compliance and security considerations that come with hiring technology. DOWNLOAD 

Empowering Staff in the Field This guide explains how mobile-first augmented field operations systems infuse artificial intelligence, automation and real-time information into every stage of fieldwork. DOWNLOAD

5 Public Safety Trends for 2026 From AI-powered situational awareness to integrated real-time crime centers, this paper reveals how agencies can modernize systems to keep pace with escalating risks.  DOWNLOAD