El Agave Mexican Grill, Inc. v. N.Y.S. Div. of Human Rights ex rel. Gagliano

192 A.D.3d 1565

143 N.Y.S.3d 760

In the Matter of EL AGAVE MEXICAN GRILL, INC., Doing Business as Agave Mexican Grill and Alfredo Ramirez, Owner, Petitioners-Respondents,

v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, ON BEHALF OF Amy Lynn GAGLIANO, Respondent-Petitioner,andAmy Lynn Gagliano, Respondent.

958

TP 19-00574

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 19, 2021

LELAND T. WILLIAMS, ROCHESTER, FOR PETITIONER-RESPONDENT ALFREDO RAMIREZ.

CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (TONI ANN HOLLIFIELD OF COUNSEL), FOR RESPONDENT-PETITIONER.

PRESENT: SMITH, J.P., CARNI, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Debra A. Martin, A.J.], entered June 27, 2017) to review a determination of respondent-petitioner New York State Division of Human Rights. The determination found that petitioners-respondents unlawfully discriminated against respondent Amy Lynn Gagliano.

It is hereby ORDERED that the determination is unanimously confirmed without costs, the petition is dismissed, the cross petition is granted, and petitioners-respondents are directed to pay respondent Amy Lynn Gagliano the sum of $9,543.31 for lost wages with interest at the rate of 9% per annum commencing October 14, 2013, and $2,500 for mental anguish with interest at the rate of 9% per annum commencing March 29, 2016, and to pay the Comptroller of the State of New York the sum of $5,000 for a civil fine and penalty with interest at the rate of 9% per annum commencing March 29, 2016.

Memorandum: Petitioners-respondents (petitioners) commenced this proceeding pursuant to Executive Law § 298 and CPLR article 78 seeking to annul the determination of respondent-petitioner, New York State Division of Human Rights (SDHR), that petitioners unlawfully discriminated against respondent Amy Lynn Gagliano (complainant) by constructively discharging her from her employment as a waitress at petitioners’ restaurant based on complainant's pregnancy. SDHR awarded complainant $9,543.31 for lost wages and $2,500 in compensatory damages for emotional distress and mental anguish and imposed a civil penalty of $5,000 against petitioners. SDHR filed a cross petition seeking to confirm and enforce the determination.

We conclude that SDHR's determination, which adopted the findings of the Administrative Law Judge (ALJ), is supported by substantial evidence that petitioners discriminated against complainant based on her pregnancy (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights , 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ; Matter of Stellar Dental Mgt. LLC v. New York State Div. of Human Rights , 162 A.D.3d 1655, 1656, 80 N.Y.S.3d 757 [4th Dept. 2018] ; see also Rainer N. Mittl, Ophthalmologist, P.C. v. New York State Div. of Human Rights , 100 N.Y.2d 326, 330, 763 N.Y.S.2d 518, 794 N.E.2d 660 [2003] ). The ALJ credited the testimony of complainant, who stated that the individual petitioner told her that she would not remain on the shift schedule of the restaurant because of her pregnancy. Although the individual petitioner told complainant that the removal decision had been made by a newly-hired manager, the individual petitioner admitted during his hearing testimony that he and another waitress were responsible for scheduling decisions and that the alleged newly-hired manager was merely a substitute waiter who had worked for the restaurant for only four or five weeks. We see no reason to disturb the ALJ's resolution of the credibility issues before him (see Matter of Berenhaus v. Ward , 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ; Stellar Dental Mgt. LLC , 162 A.D.3d at 1657, 80 N.Y.S.3d 757 ).

Contrary to petitioners’ contention, the individual petitioner may be held liable for the discrimination inasmuch as he is the sole owner of the corporate petitioner and was a perpetrator of the discrimination against complainant (see Matter of West Taghkanic Diner II, Inc. v. New York State Div. of Human Rights , 105 A.D.3d 1106, 1109, 962 N.Y.S.2d 748 [3d Dept. 2013] ; Matter of New York State Div. of Human Rights v. Nancy Potenza Design & Bldg. Servs., Inc. , 87 A.D.3d 1365, 1365-1366, 930 N.Y.S.2d 151 [4th Dept. 2011] ; see also Patrowich v. Chemical Bank , 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 [1984] ).

Contrary to petitioners’ further contention, the monetary awards and civil penalty are proper. The award for lost...