SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

494 

CA 15-01334 

PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF LISA NAPIERALA, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN 

RIGHTS, ET AL., RESPONDENTS,

AND ERIE COMMUNITY COLLEGE, 

RESPONDENT-APPELLANT. 

 

HODGSON RUSS LLP, BUFFALO (JOSEPH S. BROWN OF COUNSEL), FOR

RESPONDENT-APPELLANT. 

LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Erie County (John L. Michalski, A.J.), entered October 10, 2014 in a

proceeding pursuant to CPLR article 78. The judgment, among other

things, granted the petition to annul a determination of respondent

New York State Division of Human Rights. 

It is hereby ORDERED that the judgment so appealed from is 

unanimously reversed on the law without costs, the petition is

dismissed, and the determination of respondent New York State Division

of Human Rights is reinstated. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination of respondent New York State

Division of Human Rights (SDHR) that there was no probable cause to

believe that Erie Community College (respondent) retaliated against

petitioner. We conclude that Supreme Court erred in granting the

petition. 

Petitioner, a security officer for respondent, alleged that

respondent had retaliated against her “by subjecting her to adverse

employment actions after she complained of discrimination.” 

Specifically, petitioner alleged that respondent “knowingly assigned”

her to guard duty in its athletic center at a time when the gymnasium

floor was being polyurethaned. The fumes were so strong that

petitioner became ill near the end of her shift and left a voice

message with her supervisor advising him that she needed to leave her

shift early. Subsequently, petitioner was asked to report to the

Human Resources Department to discuss why she went home sick without
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CA 15-01334 

first obtaining her supervisor’s permission. Petitioner was

questioned, but no disciplinary action was taken. Petitioner also

alleged in her petition that respondent retaliated against her when it

allegedly “lost” her “On-the-Job-Training” certificate, which led to

the lapse of her security license and resulted in her suspension

without pay. 

Where, as here, SDHR “renders a determination of no probable

cause without holding a hearing, the appropriate standard of review is

whether the probable cause determination was arbitrary and capricious

or lacked a rational basis” (Matter of Gordon v New York State Div. of

Human Rights, 126 AD3d 697, 698). SDHR “has broad discretion to

determine the method to be employed in investigating complaints . . 

. , and its determinations are entitled to considerable deference due

to its expertise in evaluating discrimination claims” (Matter of

Cornelius v New York State Div. of Human Rights, 286 AD2d 329, 329-

330; see generally Matter of Ramirez v New York State Div. of Human

Rights, 4 NY3d 789, 790). 

In our view, SDHR’s determination is not arbitrary or capricious,

and it has a rational basis. The record establishes that petitioner

“had a full and fair opportunity to present her case and that [SDHR’s]

investigation was neither abbreviated nor one-sided” (Kim v New York

State Div. of Human Rights, 107 AD3d 434, 434, lv denied 21 NY3d 866;

see Matter of Baird v New York State Div. of Human Rights, 100 AD3d

880, 881, lv denied 22 NY3d 851). “Probable cause exists only when,

after giving full credence to the [petitioner’s] version of the

events, there is some evidence of unlawful discrimination” (Matter of

Doin v Continental Ins. Co., 114 AD2d 724, 725). Here, crediting

petitioner’s assertion that respondent intentionally assigned her to

its athletic center knowing that the gym floor was being

polyurethaned, we conclude that there is no evidence of unlawful

discrimination, e.g., petitioner was not forced to stay at the

athletic center against her will, nor was she disciplined for leaving

work early. The Human Rights Law (Executive Law § 296 et seq.) and

title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.)

“are textually similar and ultimately employ the same standards of

recovery,” and thus “federal case law in this area . . . proves

helpful to the resolution of this appeal” (Matter of Aurecchione v New

York State Div. of Human Rights, 98 NY2d 21, 26). As the United

States Court of Appeals for the Second Circuit has written, title VII

“does not protect an employee from ‘all retaliation,’ but only

‘retaliation that produces an injury or harm’ ” (Tepperwien v Entergy

Nuclear Operations, Inc., 663 F3d 556, 569 [2d Cir]; see Forrest v

Jewish Guild for the Blind, 3 NY3d 295, 312-314), and here there was

no injury or harm. 

With respect to the issue of the security license lapse, we note

that it does not appear from the record that respondent ever was in

possession of petitioner’s training certificate. In any event, the

record establishes that respondent provided petitioner with an

opportunity to rectify the situation, and petitioner was suspended

without pay only when she failed to do so, consistent with
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CA 15-01334 

respondent’s treatment of other security officers with lapsed

licenses. 

Finally, we agree with respondent that there was no need for a

hearing “because the record does not demonstrate the existence of

unresolved questions that required further scrutiny” (Matter of Orosz

v New York State Div. of Human Rights, 88 AD3d 798, 799). “[A]s long

as the investigation is sufficient and the [petitioner is] afforded a

full opportunity to present his [or her] claims, ‘[i]t is within the

discretion of [SDHR] to decide the method or methods to be employed in

investigating a claim’ ” (Matter of McFarland v New York State Div. of

Human Rights, 241 AD2d 108, 112). Here, SDHR contacted both

petitioner and respondent and requested specified answers and

documents related to petitioner’s allegations, and “the conflicting

evidence before SDHR did not create a material issue of fact that

warranted a formal hearing” (Matter of Hall v New York State Div. of

Human Rights, 137 AD3d 1583, 1584).

Entered: June 17, 2016 Frances E. Cafarell

Clerk of the Court