Schwindt v. Niagara Mohawk Power Corp.

186 A.D.3d 1809

130 N.Y.S.3d 126

In the Matter of Amy Christine SCHWINDT, Appellant,

v.NIAGARA MOHAWK POWER CORP., Doing Business as National Grid, et al., Respondents, et al., Respondent.

529189

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

Calendar Date: August 19, 2020

Decided and Entered: September 17, 2020

Luibrand Law Firm, PLLC, Latham (Kevin A. Luibrand of counsel), for appellant.

Bond, Schoeneck & King, PLLC, Syracuse (Robert A. LaBerge of counsel), for Niagara Mohawk Power Corp. and another, respondents.

Before: Egan Jr., J.P., Clark, Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a judgment of the Supreme Court (Auffredou, J.), entered March 22, 2019 in Warren County, which dismissed petitioner's application, in a proceeding pursuant to Executive Law § 298, to review a determination of respondent State Division of Human Rights finding no probable cause to believe that respondent Niagara Mohawk Power Corp. had engaged in an unlawful discriminatory practice relating to employment.

Petitioner has been employed by respondent Niagara Mohawk Power Corp., an electric and gas utility corporation, since 2001. In November 2017, petitioner filed a verified complaint with respondent State Division of Human Rights (hereinafter SDHR) pursuant to Executive Law article 15, alleging that she was subject to unlawful discriminatory practices by Niagara Mohawk and respondent Daniel DeChiaro, a Niagara Mohawk manager (hereinafter collectively referred to as the employer), based upon her gender. Specifically, petitioner alleged that she had been retaliated against for previously filing a sexual harassment complaint against a fellow employee and that she also had been harassed, intimidated, demoted and denied training, promotions and pay increases. SDHR commenced an investigation and requested documents, records and information from each party. The employer answered and petitioner filed a rebuttal and amended rebuttal. In April 2018, SDHR conducted a fact-finding conference with petitioner and DeChiaro, following which both parties submitted posthearing summations. On May 17, 2018, SDHR issued its final investigation report and, one day later, issued a determination and order, concluding that no probable cause existed to support petitioner's allegations of unlawful discrimination or retaliation and dismissed petitioner's complaint.

In July 2018, petitioner commenced this proceeding pursuant to Executive Law § 298, alleging that SDHR's determination and order was arbitrary and capricious inasmuch as SDHR's final investigation report contained facts unrelated to petitioner's complaint and that SDHR failed to interview nine material witnesses. The employer and SDHR each separately answered and, following oral argument, Supreme Court dismissed the petition, determining that, despite certain factual errors contained in SDHR's final investigation report, the basis of SDHR's determination and order was sufficiently explained, its investigation of the complaint was adequate and its finding of no probable cause was supported by the record. Petitioner appeals, and we reverse.¹

SDHR has the discretion to dismiss a complaint without conducting a formal hearing where it determines that there is no probable cause to conclude that an employer engaged in discriminatory practices, and this Court will only disturb such a determination "if it is arbitrary, capricious or lacks a rational basis" ( Matter of Hong Wang v. New York State Div. of Human Rights, 177 A.D.3d 1127, 1127, 113 N.Y.S.3d 366 [2019] [internal quotation marks and citation omitted]; see Executive Law § 297[2][a] ; Matter of Giles v. State Div. of Human Rights, 166 A.D.2d 779, 780, 563 N.Y.S.2d 142 [1990] ). Although SDHR has broad discretion in determining the methods to be employed when investigating a complaint (see 9 NYCRR 465.6 [b]; Matter of Ufland v. New York State Div. of Human Rights, 167 A.D.3d 1509, 1510, 90 N.Y.S.3d 768 [2018] ; Matter of McDonald v. New York State Div. of Human Rights, 147 A.D.3d 1482, 1482, 47 N.Y.S.3d 194 [2017] ; Matter of McFarland v. New York State Div. of Human Rights, 241 A.D.2d 108, 111, 671 N.Y.S.2d 461 [1998] ), its determination may be annulled where the record reflects that its investigation was inadequate, abbreviated or one-sided such that the complainant was not afforded "a full and fair opportunity to present evidence on his or her behalf and to rebut the evidence presented by the employer" ( Matter of Hong Wang v. New York State Div. of Human Rights, 177 A.D.3d at 1127–1128, 113 N.Y.S.3d 366 [internal quotation marks, brackets and citations omitted]; see Matter of Pape–Becker v. Equitable Life Assur. Socy., 111...