SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

190 

TP 16-00820 

PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

IN THE MATTER OF SHANNON SCHEUNEMAN, PETITIONER, 

V MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND TOWN 

OF TONAWANDA, RESPONDENTS.

 

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

PETITIONER. 

GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN KLEIN WHEATON OF COUNSEL), FOR

RESPONDENT TOWN OF TONAWANDA.

CAROLYN J. DOWNEY, GENERAL COUNSEL, BRONX (AARON M. WOSKOFF OF

COUNSEL), FOR RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS. 

 

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, Erie County [Frederick J.

Marshall, J.], entered May 9, 2016) to review a determination of

respondent New York State Division of Human Rights. The determination

dismissed petitioner’s complaint against respondent Town of Tonawanda. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioner commenced this proceeding pursuant to

Executive Law § 298 seeking to annul the determination of respondent

New York State Division of Human Rights (SDHR) dismissing her

complaint alleging unlawful discrimination and a hostile work

environment. Our review of the determination, which adopted the

findings of the Administrative Law Judge (ALJ) who conducted the

public hearing, “is limited to consideration of whether substantial

evidence supports the agency determination” (Rainer N. Mittl,

Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d

326, 331; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights,

45 NY2d 176, 179-180). “Although a contrary decision may be

reasonable and also sustainable, a reviewing court may not substitute

its judgment for that of the Commissioner [of SDHR] if his [or her

determination] is supported by substantial evidence” (Matter of

Consolidated Edison Co. of N.Y. v New York State Div. of Human Rights,

77 NY2d 411, 417, rearg denied 78 NY2d 909). We conclude that there

is substantial evidence to support the determination that petitioner

was not discriminated against on the basis of her gender. We agree
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TP 16-00820 

with SDHR that petitioner met her burden of establishing a prima facie

case of discrimination based on her gender when she was not promoted

to a position with respondent Town of Tonawanda (Town) (see generally

Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305). We further

agree with SDHR, however, that the Town presented a legitimate,

independent and nondiscriminatory reason to support its decision to

offer the position to another employee (see generally id.). Although

petitioner contends that her testimony showed that members of the Town

Board, who made the hiring decision, have an “anti-female bias,” her

testimony conflicted with the Town’s proof and presented an issue of

credibility to be resolved by the ALJ (see Matter of Berenhaus v Ward,

70 NY2d 436, 443-444). We further conclude that there is substantial

evidence to support the determination that petitioner was not

subjected to a hostile work environment (see generally Matter of

Bowler v New York State Div. of Human Rights, 77 AD3d 1380, 1381, lv

denied 16 NY3d 709).

Entered: February 10, 2017 Frances E. Cafarell

Clerk of the Court