A former employee [Petitioner] filed a complaint with the New York State Division of Human Rights [SDHR] alleging his former employer, the Office of the Attorney General [OAG], had engaged in unlawful discriminatory practices when it did not promote him to certain positions because of his age and because of religious discrimination. DSHR dismissed Petitioner's complaints, finding no probable cause to believe OAG had engaged in any unlawful discriminatory practices with respect to Petitioner's employment. In the ensuing appeal, the dismissal was affirmed (Cagino v Levine, 199 AD3d 1103.
During the pendency of the lawsuit, Petitioner submitted a Freedom of Information Law request to OAG seeking records related to the use of identification cards by certain employees — two of whom were the named defendants — to gain access to State buildings. OAG's Records Access Officer denied the request, concluding that the records were exempt under Public Officers Law §87(2)(b) because disclosure would result in an unwarranted invasion of privacy. The Records Access Officer's decision was sustained in the administrative appeal that followed.
Petitioner then filed a CPLR Article 78 appeal challenged that administrative determination and certain statements made in OAG's opposition papers, which Petitioner contended defamed him, resulting in Petitioner filing a complaint with the federal Equal Employment Opportunity Commission, which was transferred to SDHR
SDHR dismissed Petitioner's retaliation complaint, finding no probable cause to substantiate such a claim insofar as the allegedly defamatory statements, made in court papers, did not form the basis for a viable retaliation claim. Supreme Court subsequently dismissed the Petitioner's Article 78 action, concluding, as relevant here, that SDHR's finding of no probable cause was supported by a rational basis and was neither arbitrary nor capricious. Petitioner appeals.
The Appellate Division affirmed the Supreme Court's decision, holding that "SDHR's determination that there was no probable cause to support the retaliation claim is not contrary to law, nor is it arbitrary or capricious." Citing Matter of Curtis v New York State Div. of Human Rights, 124 AD3d 1117, the court noted that upon investigating a complaint, SDHR may dismiss it without a hearing "if it concludes that no probable cause exists" and that "Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination, and will only disturb a determination of no probable cause if it is arbitrary [and] capricious or lacks a rational basis".
In this instance, the Appellate Division noted that the dispute focused on whether OAG's statements about Petitioner in court papers filed in the FOIL proceeding constituted an adverse employment action. The court's decision notes that Petitioner "characterizes as retaliatory certain statements made by OAG in defending the denial of his FOIL request, including statements in an affirmation by an Assistant Attorney General that Petitioner:
[1] Made "increasingly and repeated hateful and alarming allegations" against the individuals to whom the records pertained; and
[2] Referred to Petitioner as a "disgruntled former employee" who had a "vendetta against" the individuals who were the subject of the records.
Explaining that in the context of a case of unlawful retaliation courts have deemed an adverse employment action to one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination but have declined to do so "where the action complained of was undertaken by the employer as an "[o]rdinary defensive measure[ ] ... for the very purpose of defeating the employee's claim".
Further, the Appellate Division opined that "[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment", citing United States v New York City Tr. Auth., 97 F3d at 677.
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