State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 13, 2015 520239 

________________________________

In the Matter of RENSSELAER

COUNTY SHERIFF'S DEPARTMENT,

Petitioner,

v MEMORANDUM AND JUDGMENT

NEW YORK STATE DIVISION OF

HUMAN RIGHTS et al., 

Respondents.

________________________________

Calendar Date: June 3, 2015

Before: Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

__________

Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany

(Shawn F. Brousseau of counsel), for petitioner.

Caroline Downey, State Division of Human Rights, New York

City (Michael K. Swirsky of counsel), for New York State Division

of Human Rights, respondent.

Luibrand Law Firm, PLLC, Latham (Peter J. Moschetti Jr. of

Anderson, Moschetti & Taffany, PLLC, Latham, of counsel), for

Lora Abbott Seabury, respondent.

__________

McCarthy, J.

Proceeding pursuant to Executive Law § 298 (transferred to

this Court by order of the Supreme Court, entered in Rensselaer

County) to, among other things, review a determination of the

Commissioner of Human Rights which, among other things, found

petitioner guilty of an unlawful discriminatory practice based on

gender.
-2- 520239 

Respondent Lora Abbott Seabury filed a complaint with

respondent State Division of Human Rights (hereinafter SDHR) in

September 2010, alleging that, while employed by petitioner at

its correctional facility, she was subjected to, among other

things, sexual harassment by male coworkers. Ultimately, an

Administrative Law Judge (hereinafter ALJ), after holding a

hearing, found that Seabury had shown that she was sexually

harassed by male coworkers and recommended that petitioner be

ordered to pay Seabury nearly $450,000 in economic damages and

$300,000 in noneconomic damages. The Commissioner of Human

Rights adjusted the amount of economic damages to approximately

$315,000, but otherwise adopted the ALJ's recommendations in all

pertinent respects. Petitioner thereafter initiated this

proceeding to annul the Commissioner's final determination. 

Seabury filed an application seeking modification and

confirmation of the final determination. The consolidated

proceeding was transferred by Supreme Court to this Court.

When reviewing a determination made by the Commissioner in

a matter such as this one, our purview is "extremely narrow" and

must focus not on whether we would have reached the same result

as did the Commissioner, but instead on whether the

Commissioner's determination was rational in light of the

evidence presented (Matter of State Div. of Human Rights

[Granelle], 70 NY2d 100, 106 [1987]; accord Matter of Arcuri v

Kirkland, 113 AD3d 912, 914 [2014]; Matter of West Taghkanic

Diner II, Inc. v New York State Div. of Human Rights, 105 AD3d

1106, 1107 [2013]). Such deference is due given SDHR's expertise

in evaluating discrimination claims (see Matter of Arcuri v

Kirkland, 113 AD3d at 914; Matter of Harrison v Chestnut Donuts,

Inc., 60 AD3d 1130, 1131 [2009]). A violation of Executive Law

§ 296 based on a hostile work environment must be supported by

proof that the "workplace [was so] permeated [by a]

discriminatory" atmosphere that it "alter[ed] the conditions of

the [complainant's] employment" (Forrest v Jewish Guild for the

Blind, 3 NY3d 295, 310 [2004] [internal quotation marks and

citation omitted]; accord Matter of West Taghkanic Diner II, Inc.

v New York State Div. of Human Rights, 105 AD3d at 1107). 

"Where, as here, there is a finding of a hostile work environment

as a result of sexual harassment, the evidence in the record must
-3- 520239 

establish the pertinent elements, including proof that the

discriminatory conduct occurred due to the complainant's gender"

(Matter of Arcuri v Kirkland, 113 AD3d at 914; see Suriel v

Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464,

1466 [2011]).

According to Seabury, after reporting coworker Richard

Fenton for offenses that included sleeping on the job and

previously grabbing her buttocks and breasts without her consent,

Seabury began to be increasingly harassed by male friends of

Fenton, who had been suspended as a result of the initial

reports. Seabury testified that this group of men, along with

Fenton, were known by the name "the boys club" within the

correctional facility. Seabury further testified that one of her

supervisors, Captain Hal Smith, also referred to the group of men

by that phrase. According to Seabury, members of the boys club

began to level slurs at both Seabury and another female employee

who had reported Fenton for sexual harassment, slurs that

included rat, bitch, slut and whore. The men also began making

rat noises while in the presence of the two female employees. 

According to Seabury, one such male employee stated, "That

f***ing bitch don't miss a f***ing trick" in reference to Seabury

and while in her presence. Seabury explained that this

harassment occurred on a daily basis and that she always reported

the incidents to Smith.1 Seabury testified that Smith would tell

her, "be tough" and "[y]ou need to be strong," but failed to

reprimand the offending employees. Seabury also testified that

Smith communicated that he held different professional

expectations for the alleged male harrasers than for Seabury,

informing her that "boys will be boys" and "you know how those

1 Petitioner's sexual harassment policy directs employees

to bring complaints "to a supervisor of [the employee's] choice,"

with permissible methods of notification, including "requesting

an individual interview" with that supervisor. Given that

Seabury complied with this policy by reporting the alleged

harassment to Smith, we need not decide the question of whether

the lack of an employee's compliance with such reporting policy

would offer a defense to liability (see generally Forrest v

Jewish Guild for the Blind, 3 NY3d at 312 n 10). 
-4- 520239 

boys are." When Seabury specifically reported to Smith that she

believed that the fellow female employee who had also reported

Fenton had been assigned, by one of the individuals in the boys

club,2 to a stressful, undesirable and potentially more dangerous

shift as a form of harassment, Smith suggested that Seabury go

speak to the employee who had made the assignment. Seabury

clarified that the same employee had also been harassing her and

then asked Smith if he still thought she should go speak to him. 

He responded, "That's how you approach it" and explained that it

was "nice" of that employee to prepare the schedule. According

to Seabury, she printed explanations of illegal workplace

harassment from the Internet and provided them to Smith. Such

prompting was to no avail, however, as Smith did not reprimand

the offending male employees.

Seabury further testified that, despite this daily

harassment, she planned on continuing to work and to reach her

retirement. Seabury explained that she wanted to be the first

female sergeant to retire from the correctional facility, and

additional evidence established that Seabury had worked in excess

of 17 years, more than two-thirds the number of years necessary

to receive a pension based on 25 years of service. She

elaborated that another female sergeant previously had worked at

the facility but had not reached retirement. Without

specifically identifying the alleged culprits, Seabury testified

that employees would make known their plans to cause that female

sergeant to cry during her shift. Seabury explained that these

unidentified employees continued such harassing behavior until

that female sergeant quit. Seabury further explained that,

notwithstanding her retirement goal, the harassment she suffered,

2 In this and other portions of the record, Seabury's

testimony umambiguously establishes that she identified such

harassers, by name, to Smith. Such evidence contradicts

petitioner's assertion that Seabury failed to identify the

specific men who were harassing her. Given that the record does

not support petitioner's factual contention, we need not address

the plausibility of petitioner's related argument that any

inaction on Smith's part is attributable to Seabury's nonspecific

reports. 
-5- 520239 

which was not ameliorated despite her daily reports to her

supervisor, eventually caused her to leave her employment. 

Considering the evidence presented at the hearing, there is

a rational basis for the determination that, but for Seabury's

gender, she would not have suffered the harassment that she

described and that such harassment altered the conditions of her

employment so as to create an abusive work environment. Notably,

the ALJ credited Seabury's testimony, and this Court will defer

to that determination (see Matter of Arcuri v Kirkland, 113 AD3d

at 914; Matter of West Taghkanic Diner II, Inc. v New York State

Div. of Human Rights, 105 AD3d at 1108). Relying on that

credited testimony, the proof established that the persons

harassing Seabury were all male members of a group of friends and

coworkers who were identified, as a group, by their gender. In

addition, many of the slurs leveled at Seabury and the other

female who reported Fenton's sexual harassment invoked the

victims' gender (compare Matter of Grand Union Co. v Mercado, 263

AD2d 923, 924-925 [1999]). Further, a reasonable person could

conclude that Smith indicated to Seabury that he held different

expectations for male and female employees and that women

employees were required to be strong and tough while male

employees were permitted to "be boys," without any reprimand. At

a minimum, such statements by Smith and his lack of corrective

action condoned such conduct (see Matter of New York State Dept.

of Correctional Servs. v New York State Div. of Human Rights, 53

AD3d 823, 825 [2008]), and there is a rational inference that

Smith's directive to Seabury, his inferior, that she should

confront one of the offenders regarding his gender-based

harassment of another female employee effectively encouraged the

harassment that Seabury suffered (see generally Matter of State

Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687

[1985]). Accordingly, the Commissioner's determination was

rational in light of the evidence presented (see Matter of West

Taghkanic Diner II, Inc. v New York State Div. of Human Rights,

105 AD3d at 1107; Matter of New York State Dept. of Correctional

Servs. v New York State Div. of Human Rights, 53 AD3d at 825;

Matter of R & B Autobody & Radiator, Inc. v New York State Div.

of Human Rights, 31 AD3d 989, 990-991 [2006]; Matter of Grand

Union Co. v Mercado, 263 AD2d at 924).
-6- 520239 

We will not reduce Seabury's $300,000 award for noneconomic

injuries. An award for noneconomic damages will be upheld where

it is reasonably related to the wrongdoing, supported by

substantial evidence and comparable to other awards for similar

injuries (see Matter of Freudenthal v County of Nassau, 99 NY2d

285, 291 [2003]; Matter of New York City Tr. Auth. v State Div.

of Human Rights, 78 NY2d 207, 217 [1991]; Matter of New York

State Dept. of Correctional Servs. v New York State Div. of Human

Rights, 53 AD3d at 826; Matter of Kondracke v Blue, 277 AD2d 953,

954 [2000]). Seabury testified that the male coworkers'

harassment led to extensive psychological trauma that included

suicidal ideations and required medication. Seabury's

psychiatrist confirmed these reports and testified that he had

diagnosed Seabury with posttraumatic stress disorder and major

depressive disorder. The psychiatrist opined that the causes of

such conditions were Seabury's frequent and recurring thoughts

regarding the harassment that she suffered at the correctional

facility. Considering Seabury's testimony and the medical proof

elaborating on the severe effects that the discrimination had on

her, the award is reasonably related to the wrongdoing, supported

by substantial evidence and comparable to awards for similar

injuries (see Matter of New York State Dept. of Correctional

Servs. v New York State Div. of Human Rights, 53 AD3d at 826;

Matter of Kondracke v Blue, 277 AD2d at 954; Matter of Town of

Hempstead v State Div. of Human Rights, 233 AD2d 451, 454-456

[1996], appeal dismissed 89 NY2d 1029 [1997], lv denied 90 NY2d

807 [1997]; Matter of New York City Tr. Auth. v State Div. of

Human Rights, 181 AD2d 891, 895 [1992], lv denied 80 NY2d 762

[1992]).

Next, we agree with Seabury's argument that the

Commissioner should not have offset her award based on past and

future workers' compensation benefits. Workers' Compensation Law

§ 29 (1) provides that, when a benefits recipient pursues a legal

remedy against a third party with respect to the same injuries

for which he or she is receiving benefits, the relevant insurance

carrier "shall have a lien on the proceeds of any [resulting]

recovery . . . to the extent of the total amount of compensation

awarded." One purpose of Workers' Compensation Law § 29 (1) is

to "shift the burden of paying compensation from the carrier

. . . to the party actually responsible for the injury" (Matter
-7- 520239 

of Murphy v New York City Police Dept., 270 AD2d 733, 733 [2000];

accord Matter of Beth V. v New York State Off. of Children &

Family Servs., 22 NY3d 80, 90 [2013]). By its unambiguous terms,

Workers' Compensation Law § 29 (1) grants a lien without any

exception for when an award of damages has already been reduced

in recognition of a workers' compensation award. Accordingly, an

interpretation of Workers' Compensation Law § 29 (1) that allowed

a reduction in the initial award of damages would not foreclose

the plain application of a lien to that already reduced award,

which would permit the absurd result of punishing the injured

party with a "double debit instead of preventing a double

benefit" (Dietrick v Kemper Ins. Co. [American Motorists Ins.

Co.], 76 NY2d 248, 252 [1990]). Therefore, we reject the notion

that an award that would be subject to such a lien may be reduced

at the outset, because such a scheme is inconsistent with

Workers' Compensation Law § 29 (1). Accordingly, the

Commissioner erred as a matter of law by reducing Seabury's award

for past lost wages by $88,200 and her award for future lost

wages by $176,400 on the basis of workers' compensation benefits. 

In addition, we agree with Seabury that the damages should

have properly reflected consideration of the pension that she

would have received absent the harassment, given that any remedy

should "make the victim whole for injuries suffered as a result

of discriminatory employment practices" (Matter of Beame v

DeLeon, 87 NY2d 289, 297 [1995]), and that we have unambiguously

established that such a remedy includes the consideration of

"pension rights [that are] established with reasonable certainty"

(Lamot v Gondek, 163 AD2d 678, 680 [1990]; see Matter of Laverack

& Haines v New York State Div. of Human Rights, 217 AD2d 955, 956

[1995], revd on other grounds 88 NY2d 734 [1996]; see generally

Reid v Weir-Metro Ambulance Serv., 191 AD2d 309, 310 [1993];

McWeeney v New York, New Haven & Hartford R.R. Co., 282 F2d 34,

36 [2d Cir 1960], cert denied 364 US 870 [1960]). However,

considering that petitioner bears the sole responsibility of

making the complainant whole and could do so by payment

commensurate with any damages attributable to loss or diminution

of pension (see e.g. Lamot v Gondek, 163 AD2d at 680), the

Commissioner's order that petitioner take steps to involve the

Office of the State Comptroller and the New York State and Local

Retirement System – presumably to have them provide an actual
-8- 520239 

pension – was an abuse of discretion (see generally Weiss v New

York State Human Rights Appeal Bd., 102 AD2d 471, 473 [1984]

[holding that Commissioner erred in ordering state employer to

provide the promotion to a victim that the victim would have

received absent age discrimination instead of providing a proper

award of monetary damages]).3

Because it attempted to provide Seabury her actual

anticipated pension, SDHR never calculated the monetary award

that would compensate Seabury for the loss of that expected

annuity.4 Given the absence of an initial determination in that

regard, we remit for the limited purpose of resolving the amount

of damages that will make Seabury whole to the extent that her

pension has been diminished, in whole or in part (see State Div.

of Human Rights v New York State Dept. of Correctional Servs., 91

AD2d 832, 833 [1982]; Sears v New York State Div. of Human

Rights, 73 AD2d 913, 915 [1980], lv denied 49 NY2d 705 [1980]). 

Finally, petitioner did not establish that Seabury failed

to mitigate damages relating to her pension to the extent that

she failed to obtain a collateral offset in the form of

disability retirement benefits (see generally CPLR 4545 [a]). As

is relevant here, petitioner bore the burden of establishing its

entitlement to a collateral offset – a collateral source payment

that particularly corresponds to a category of loss for which

3 Given this conclusion, we need not address the related

question of whether the remedy was also unlawful to the extent

that the Office of the State Comptroller and the New York State

and Local Retirement System had no legal authority to assist in

the provision of such a remedy. 

4 Notably, for the purposes of such calculation, Seabury's

testimony that she planned to work for 25 years was credited, she

provided the relevant portions of her collective bargaining

agreement and she provided evidence of her wages for the final

three full years of her employment, which allows for the

computation of her final average salary (see generally Retirement

and Social Security Law § 608). 
-9- 520239 

damages are awarded – by clear and convincing evidence (see

Johnson v New York City Tr. Auth., 88 AD3d 321, 328 [2011]; Young

v Knickerbocker Arena, 281 AD2d 761, 764 [2001]). It is

uncontested that Seabury has never applied for such benefits (see

e.g. Young v Tops Mkts., 283 AD2d 923, 926 [2001]).

Petitioner – in its briefs to the Commissioner and to this Court

– broadly asserts that the record establishes that Seabury would

have been entitled to disability retirement benefits or

performance of duty disability benefits. Having failed to

identify in any meaningful detail which specific statutory

provisions it relies upon for the proposition that Seabury is

qualified for such benefits, or the further specific provisions

that would establish what amount Seabury would receive if she

were so entitled, we are unable to say that petitioner met its

burden of establishing by clear and convincing evidence that

Seabury was obligated to mitigate damages by obtaining a

collateral offset (compare Johnson v New York City Tr. Auth., 88

AD3d at 328, with Terranova v New York City Tr. Auth., 49 AD3d

10, 18-20 [2007], lv denied 11 NY3d 708 [2008]).

The remaining issues have been considered and found to be

without merit. 

Peters, P.J., Egan Jr. and Rose, JJ., concur.
-10- 520239 

ADJUDGED that the determination is modified, without costs,

by (1) increasing the award for past lost wages from $107,558.51

to $195,758.51, (2) increasing the award for future lost wages

from $208,837.02 to $385,237.02, and (3) annulling so much

thereof as ordered petitioner to work with the Office of the

State Comptroller and the New York State and Local Retirement

System regarding respondent Lora Abbott Seabury's pension; matter

remitted to respondent New York State Division of Human Rights

for a determination of damages related to Lora Abbott Seabury's

pension; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court