September 12, 2018

A finding of probable cause of unlawful discrimination after an administrative investigation requires some evidence of unlawful acts based on the complainant's version of the event[s]


A finding of probable cause of unlawful discrimination after an administrative investigation requires some evidence of unlawful acts based on the complainant's version of the event[s]
Sullivan v New York State Div. of Human Rights, 2018 NY Slip Op 02947, Appellate Division, Fourth Department
 

Citing Matter of Mambretti v New York State Div. of Human Rights, 129 AD3d 1696, the Appellate Division addressed the issue of "probable cause" raised in this appeal. The court said the "[P]robable cause exists only when, after giving full credence to complainant's version of the events, there is some evidence of unlawful discrimination."

Following her involuntary transfer from a high school to an elementary school, Margaret Sullivan filed a complaint alleging unlawful discrimination with New York State Division of Human Rights [SDHR] the  pursuant to Executive Law §298, New York State's Human Rights Law.  SDHR, based on it investigation of Sullivan's complaint,  found that there was no probable cause to believe Sullivan's transfer was the result of unlawful discrimination on the part of Orchard Park Central School District [School District] based upon Sullivan's age, disability or gender in effecting the transfer of her work site. 

In additions Sullivan contended that the School District retaliated against her when she complained of those alleged unlawful discriminatory practices, but again SDHR, based on its investigation, found that there was no probable cause to support that allegation.

Sullivan's challenge to SDHR's determination by bringing an action in Supreme Court. The court sustained SDHR's determination and Sullivan appealed that ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that where, as here, SDHR renders a determination of no probable cause without holding an administrative hearing and relies only on the finding of investigation, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis."

Further, explained the court, "probable cause" is demonstrated only when, after giving full credence to a complainant's version of the events, "there is some evidence of unlawful discrimination."

Accepting Sullivan's version of the events underlying her complaint as true, the Appellate Division said that it concluded that "there is no evidence of unlawful discrimination based upon age or gender arising from the District's involuntary transfer of petitioner from the high school to an elementary school."   

Although the court noted that the transfer was "personally objectionable" to Sullivan, the Appellate Division held that the transfer did not constitute an adverse employment action.

Further, said the Appellate Division, "even if transfer was an adverse employment action," it found that "a rational basis supports SDHR's conclusion that the transfer did not occur under circumstances giving rise to an inference of discrimination based on age or gender."

In addition, the Appellate Division noted that SDHR's determination that there was no probable cause to believe that the District failed to provide assistance or reasonable accommodations for Sullivan's alleged disabilities as Sullivan failed to allege that she requested assistance that the District refused to provide, or proposed reasonable accommodations that the School District refused to provide.

In short, the court held that Sullivan "failed to identify any adverse employment action taken by the [School District]" and thus a rational basis supports SDHR's conclusion that there was no probable cause to believe that the District engaged in unlawful discrimination or in unlawful acts of retaliation. 

The decision is posted on the Internet at: 




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