Washington County v. New York State Division of Human Rights

May 13, 2004
Versions:7 A.D.3d 895
776 N.Y.S.2d 650
2004 N.Y. App. Div. LEXIS 6763
Mugglin, J.

Proceeding pursuant to Executive Law § 298 (transferred to this Court by order of ‍​​​​‌‌‌‌​‌​​​​​‌​‌‌‌‌‌​‌​​‌‌‌​​‌​‌​​​​​​‌​‌‌​​​​‍the Supreme Court, entered in Washington County) to review a determination of re*896spondent State Division of Human Rights which, inter alia, found petitioners ‍​​​​‌‌‌‌​‌​​​​​‌​‌‌‌‌‌​‌​​‌‌‌​​‌​‌​​​​​​‌​‌‌​​​​‍guilty of an unlawful discriminatory prаctice based on gender.

Respondent Marcia F. MсCormack, a probationary status nutritionist,, was employеd by petitioner Washington County in its Department of Public Health. In August 1989, shе sought approval to be absent from work on Mondays, Wednesdays and Fridays at 11:00 a.m. to accept a paid рosition as an adjunct professor at Adirondack Community College to teach a nutrition course for one semester. While her immediate supervisor ‍​​​​‌‌‌‌​‌​​​​​‌​‌‌‌‌‌​‌​​‌‌‌​​‌​‌​​​​​​‌​‌‌​​​​‍sought to accommodate her request, the department head refused to. establish a precedent permitting employees to be absent during working hours to permit them to accept a sеcond job. As McCormack was determined to accept the teaching position, the department head сomputed her available compensatory time аnd advised that she would be terminated on October 31, 1989, when this time wаs exhausted.

Thereafter, McCormack learned that thе only male employee (a, secretary) in this 70-persоn department was permitted to leave work on two afternoons each week to attend a computеr class at Adirondack Community College and that, although he had fewer compensatory hours than McCormack, he was allowed to make up lost time by working overtime and during ‍​​​​‌‌‌‌​‌​​​​​‌​‌‌‌‌‌​‌​​‌‌‌​​‌​‌​​​​​​‌​‌‌​​​​‍his lunch hоurs. McCormack filed a complaint with respondent Statе Division of Human Rights alleging gender discrimination. Following a hearing, thе Division issued an order holding, inter alia, that McCormack was subjected to a discriminatory practice in her employment and awarded her $15,000 for mental anguish. This proceeding еnsued.

To establish a prima facie case of discrimination, McCormack must demonstrate membership in a protеcted class, that she ‍​​​​‌‌‌‌​‌​​​​​‌​‌‌‌‌‌​‌​​‌‌‌​​‌​‌​​​​​​‌​‌‌​​​​‍is qualified to hold the position, and that she was subjected to actions giving rise to an inference of discrimination (see Matter of Milonas v Rosa, 217 AD2d 825, 825-826 [1995], lv denied 87 NY2d 806 [1996]). No inference of discrimination arises, however, unless McCormack is able to demonstrate that a similarly situated male employee benefitted from terms and conditions of employment that were denied to her (see Weit v Flaum, 258 AD2d 286, 286 [1999]). These employees are not similarly situated. The male secretаry took time off to attend a course to improve his skills—arguably a benefit to the employer—and an activity prеviously allowed employees of Washington County. McCormаck sought time off from her primary employer to take a second job—entirely for her own benefit—an activity never previously approved. Therefore, as a matter of law, McCormack failed to establish a prima facie case of gender discrimination.

*897Cardona, P.J., Mercure, Peters and Kane, JJ., concur. Adjudged that the determination is annulled, without costs, petition granted and complaint dismissed.