State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 2 In the Matter of Clifton Park Apartments, LLC, &c., et al., Respondents, v. New York State Division of Human Rights, Appellant, et al., Respondents. (And Another Related Proceeding.)
Toni Ann Hollifield, for appellant. Michael J. Hutter, for respondents Clifton Park Apartments, LLC et al.
SINGAS, J.:
The New York State Human Rights Law prohibits retaliation against those who
make discrimination complaints or engage in other protected activity. We hold that a threat
of litigation may constitute the requisite adverse action to support a retaliation claim and, -1- -2- No. 2
therefore, respondent New York State Division of Human Rights (DHR) rationally
concluded that this element had been established here. Remittal is necessary, however,
because, as the parties agree, DHR improperly shifted the burden when analyzing whether
respondent CityVision Services, Inc. (CityVision) had engaged in protected activity.
I.
CityVision is a Texas-based not-for-profit corporation which tests whether housing
facilities engage in discrimination by having their agents pose as prospective tenants. In
2016, respondent Leigh Renner, a CityVision employee, placed a test call to petitioner
Clifton Park Apartments, LLC, as owner of Pine Ridge II Apartments (Pine Ridge)—a
housing facility located in New York—purportedly seeking to rent an apartment.
Following that call, CityVision filed a complaint with DHR, alleging that Pine Ridge had
discriminated against Renner based on her familial status in violation of the Human Rights
Law (see Executive Law § 296 [5] [a] [1]). CityVision maintained that Pine Ridge steered
Renner to a different apartment complex after discovering that she intended to reside in the
apartment with her children.
DHR investigated CityVision’s complaint and dismissed it, concluding that there
was no probable cause to support a finding that Pine Ridge engaged in familial status
discrimination. Following DHR’s determination, Pine Ridge’s attorney, petitioner David
H. Pentkowski, Esq., sent a letter to CityVision and Renner on Pine Ridge’s behalf. The
letter stated that Pine Ridge considered the allegations in CityVision’s DHR complaint to
be “false, fraudulent and libelous.” The letter explained that Pine Ridge was “looking to”
CityVision and Renner “personally for the damages that” Pine Ridge “sustained as a result
-2- -3- No. 2
of this wrongful conduct.” The letter concluded by stating that if CityVision and Renner
did not respond within a stated period, Pine Ridge would “assume that” they did “not intend
to take responsibility for these actions and [would] proceed accordingly.” In response,
CityVision and Renner filed a second complaint, alleging that Pine Ridge and Pentkowski
retaliated against them for filing the first discrimination complaint. CityVision and Renner
claimed that Pine Ridge and Pentkowski sent the letter to intimidate them and, thus,
interfere with their protected rights.
A public hearing ensued before an administrative law judge (ALJ). A CityVision
employee testified that CityVision’s staff was “shocked” when they received Pentkowski’s
letter, and “had to scramble around . . . to locate counsel,” thereby diverting resources in
response to the letter. The ALJ recommended a finding of unlawful retaliation, a damages
award payable to CityVision, and a civil fine. Concerning the first element of the
retaliation claim, the ALJ placed the burden on Pine Ridge and Pentkowski to show that
CityVision’s initial discrimination complaint was “made in bad faith,” and concluded that
they failed to meet that burden. The ALJ further determined that Pentkowski’s letter was
retaliatory and threatening because it sought damages from CityVision and Renner for
filing the initial complaint. DHR adopted the ALJ’s recommendation as its final order,
amending it only to award CityVision attorney’s fees.
Pine Ridge and Pentkowski then commenced this Executive Law § 298 proceeding
to annul DHR’s determination. DHR cross-petitioned to enforce its determination and to
transfer the matter to the Appellate Division.
-3- -4- No. 2
Upon transfer from Supreme Court, the Appellate Division annulled the
determination and granted the petition (see 204 AD3d 1358, 1361 [3d Dept 2022]).
Concerning the first element of the retaliation claim, the Court concluded that the ALJ and
DHR “improperly shifted the burden” to Pine Ridge and Pentkowski “to prove, in the first
instance, that CityVision did not hold a reasonable belief that Pine Ridge was engaging in
housing discrimination” (id. at 1360). The Court did not remit the matter to DHR for
further proceedings, however, because “[t]he hearing evidence failed to support the finding
that” Pine Ridge and Pentkowski “took adverse action against CityVision, under the third
prong of the test for retaliation” (id.). The Court held that the “retaliation complaint must
be dismissed” because it could not conclude that “the mere sending of the letter rose to the
level of retaliation” (id. at 1360-1361). We granted DHR leave to appeal (see 39 NY3d
904 [2022]), and now reverse the Appellate Division’s judgment and remit the matter for
further proceedings.
II.
The Human Rights Law (Executive Law article 15) makes it “unlawful to retaliate
against” a person “for opposing discriminatory practices” (Forrest v Jewish Guild for the
Blind, 3 NY3d 295, 312 [2004]). More specifically, Executive Law § 296 (7) states:
“It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because [they have] opposed any practices forbidden under this article or because [they have] filed a complaint, testified or assisted in any proceeding under this article.”
-4- -5- No. 2
The parties do not dispute that the retaliation claim before us should be “analyzed under
the same burden-shifting framework established for” other discrimination cases (Treglia v
Town of Manlius, 313 F3d 713, 719 [2d Cir 2002]). Under this approach, a plaintiff bears
the burden to establish a prima facie retaliation claim (see Forrest, 3 NY3d at 312-313).
To meet that burden, the plaintiff must show that (1) they have “engaged in protected
activity,” (2) the defendant “was aware that” the plaintiff “participated in” the protected
activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) “there is
a causal connection between the protected activity and the adverse action” (id.). Only the
first and third elements of CityVision’s retaliation claim are at issue here.
We address the third element of the retaliation claim first. In Burlington N. & S. F.
R. Co. v White (548 US 53 [2006]), the Supreme Court considered the antiretaliation
provision of title VII of the Civil Rights Act of 1964 (see 42 USC § 2000e-3 [a]), which
relates to employment discrimination. The Supreme Court concluded that the adverse
action element is satisfied when “a reasonable employee would have found the challenged
action materially adverse” in that “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination” (Burlington, 548 US at 68 [internal
quotation marks omitted]).
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 2 In the Matter of Clifton Park Apartments, LLC, &c., et al., Respondents, v. New York State Division of Human Rights, Appellant, et al., Respondents. (And Another Related Proceeding.)
Toni Ann Hollifield, for appellant. Michael J. Hutter, for respondents Clifton Park Apartments, LLC et al.
SINGAS, J.:
The New York State Human Rights Law prohibits retaliation against those who
make discrimination complaints or engage in other protected activity. We hold that a threat
of litigation may constitute the requisite adverse action to support a retaliation claim and, -1- -2- No. 2
therefore, respondent New York State Division of Human Rights (DHR) rationally
concluded that this element had been established here. Remittal is necessary, however,
because, as the parties agree, DHR improperly shifted the burden when analyzing whether
respondent CityVision Services, Inc. (CityVision) had engaged in protected activity.
I.
CityVision is a Texas-based not-for-profit corporation which tests whether housing
facilities engage in discrimination by having their agents pose as prospective tenants. In
2016, respondent Leigh Renner, a CityVision employee, placed a test call to petitioner
Clifton Park Apartments, LLC, as owner of Pine Ridge II Apartments (Pine Ridge)—a
housing facility located in New York—purportedly seeking to rent an apartment.
Following that call, CityVision filed a complaint with DHR, alleging that Pine Ridge had
discriminated against Renner based on her familial status in violation of the Human Rights
Law (see Executive Law § 296 [5] [a] [1]). CityVision maintained that Pine Ridge steered
Renner to a different apartment complex after discovering that she intended to reside in the
apartment with her children.
DHR investigated CityVision’s complaint and dismissed it, concluding that there
was no probable cause to support a finding that Pine Ridge engaged in familial status
discrimination. Following DHR’s determination, Pine Ridge’s attorney, petitioner David
H. Pentkowski, Esq., sent a letter to CityVision and Renner on Pine Ridge’s behalf. The
letter stated that Pine Ridge considered the allegations in CityVision’s DHR complaint to
be “false, fraudulent and libelous.” The letter explained that Pine Ridge was “looking to”
CityVision and Renner “personally for the damages that” Pine Ridge “sustained as a result
-2- -3- No. 2
of this wrongful conduct.” The letter concluded by stating that if CityVision and Renner
did not respond within a stated period, Pine Ridge would “assume that” they did “not intend
to take responsibility for these actions and [would] proceed accordingly.” In response,
CityVision and Renner filed a second complaint, alleging that Pine Ridge and Pentkowski
retaliated against them for filing the first discrimination complaint. CityVision and Renner
claimed that Pine Ridge and Pentkowski sent the letter to intimidate them and, thus,
interfere with their protected rights.
A public hearing ensued before an administrative law judge (ALJ). A CityVision
employee testified that CityVision’s staff was “shocked” when they received Pentkowski’s
letter, and “had to scramble around . . . to locate counsel,” thereby diverting resources in
response to the letter. The ALJ recommended a finding of unlawful retaliation, a damages
award payable to CityVision, and a civil fine. Concerning the first element of the
retaliation claim, the ALJ placed the burden on Pine Ridge and Pentkowski to show that
CityVision’s initial discrimination complaint was “made in bad faith,” and concluded that
they failed to meet that burden. The ALJ further determined that Pentkowski’s letter was
retaliatory and threatening because it sought damages from CityVision and Renner for
filing the initial complaint. DHR adopted the ALJ’s recommendation as its final order,
amending it only to award CityVision attorney’s fees.
Pine Ridge and Pentkowski then commenced this Executive Law § 298 proceeding
to annul DHR’s determination. DHR cross-petitioned to enforce its determination and to
transfer the matter to the Appellate Division.
-3- -4- No. 2
Upon transfer from Supreme Court, the Appellate Division annulled the
determination and granted the petition (see 204 AD3d 1358, 1361 [3d Dept 2022]).
Concerning the first element of the retaliation claim, the Court concluded that the ALJ and
DHR “improperly shifted the burden” to Pine Ridge and Pentkowski “to prove, in the first
instance, that CityVision did not hold a reasonable belief that Pine Ridge was engaging in
housing discrimination” (id. at 1360). The Court did not remit the matter to DHR for
further proceedings, however, because “[t]he hearing evidence failed to support the finding
that” Pine Ridge and Pentkowski “took adverse action against CityVision, under the third
prong of the test for retaliation” (id.). The Court held that the “retaliation complaint must
be dismissed” because it could not conclude that “the mere sending of the letter rose to the
level of retaliation” (id. at 1360-1361). We granted DHR leave to appeal (see 39 NY3d
904 [2022]), and now reverse the Appellate Division’s judgment and remit the matter for
further proceedings.
II.
The Human Rights Law (Executive Law article 15) makes it “unlawful to retaliate
against” a person “for opposing discriminatory practices” (Forrest v Jewish Guild for the
Blind, 3 NY3d 295, 312 [2004]). More specifically, Executive Law § 296 (7) states:
“It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because [they have] opposed any practices forbidden under this article or because [they have] filed a complaint, testified or assisted in any proceeding under this article.”
-4- -5- No. 2
The parties do not dispute that the retaliation claim before us should be “analyzed under
the same burden-shifting framework established for” other discrimination cases (Treglia v
Town of Manlius, 313 F3d 713, 719 [2d Cir 2002]). Under this approach, a plaintiff bears
the burden to establish a prima facie retaliation claim (see Forrest, 3 NY3d at 312-313).
To meet that burden, the plaintiff must show that (1) they have “engaged in protected
activity,” (2) the defendant “was aware that” the plaintiff “participated in” the protected
activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) “there is
a causal connection between the protected activity and the adverse action” (id.). Only the
first and third elements of CityVision’s retaliation claim are at issue here.
We address the third element of the retaliation claim first. In Burlington N. & S. F.
R. Co. v White (548 US 53 [2006]), the Supreme Court considered the antiretaliation
provision of title VII of the Civil Rights Act of 1964 (see 42 USC § 2000e-3 [a]), which
relates to employment discrimination. The Supreme Court concluded that the adverse
action element is satisfied when “a reasonable employee would have found the challenged
action materially adverse” in that “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination” (Burlington, 548 US at 68 [internal
quotation marks omitted]). If a plaintiff meets this objective standard, the adverse action
element is satisfied. The Supreme Court adopted this test to effectuate the intent of the
antiretaliation provision—to protect an individual “from retaliation that produces an injury
or harm” while “[m]aintaining unfettered access to statutory remedial mechanisms”
(Burlington, 548 US at 64, 67 [internal citation omitted]). The Court recognized that
antidiscrimination statutes “depend[ ] for [their] enforcement upon the cooperation of
-5- -6- No. 2
[those] who are willing to file complaints and act as witnesses” and interpreting
antiretaliation provisions “to provide broad protection from retaliation helps ensure the
cooperation upon which accomplishment” of their “primary objective depends” (id. at 67;
see Crawford v Metropolitan Government of Nashville and Davidson Cty., 555 US 271,
279 [2009]).
Neither party disputes that Burlington provides the appropriate standard for
assessing adverse action under the Human Rights Law. Applying that test, the Appellate
Division erred by concluding that there was insufficient evidence that Pine Ridge and
Pentkowski took adverse action against CityVision and Renner based on the initial
complaint. We reject the notion that the letter could not amount to adverse action as a
matter of law. Instead, determining whether a threat of litigation amounts to adverse action
is properly left to a fact-specific determination (see e.g. Hollandale Apts. & Health Club,
LLC v Bonesteel, 173 AD3d 55, 69 [3d Dept 2019] [eviction threats “may constitute
adverse actions . . . , even when the eviction is never carried out”]; cf. Moran v Simpson,
80 Misc 2d 437, 438 [Sup Ct, Livingston County 1974] [concluding that the
commencement of a libel lawsuit in response to a complaint under the Human Rights Law
was an adverse action]). A per se rule precluding litigation threats from constituting
adverse action would impermissibly restrict New York’s antiretaliation statute (see
Executive Law § 296 [7]) in violation of the legislative directive to construe the Human
Rights Law liberally to eliminate discrimination in this State (see id. § 300).
Having rejected the per se rule, our review of DHR’s analysis concerning whether
CityVision and Renner satisfied the adverse action element is limited. When reviewing
-6- -7- No. 2
DHR’s “findings on the presence of unlawful discrimination,” this Court “may not weigh
the evidence or reject” DHR’s “choice where the evidence is conflicting and room for a
choice exists” (Matter of State Div. of Human Rights v County of Onondaga Sheriff’s Dept.,
71 NY2d 623, 631 [1988] [internal quotation marks omitted]; see Rainer N. Mittl,
Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331
[2003]). Instead, “the judicial function is concluded when it is determined that” DHR’s
“determination is supported by substantial evidence on the record” (County of Onondaga
Sheriff’s Dept., 71 NY2d at 631; see Executive Law § 298). “Put a bit differently, the
reviewing court should review the whole record to determine whether there is a rational
basis in it for the findings of fact supporting the agency’s decision” (300 Gramatan Ave.
Assoc. v State Div. of Human Rights, 45 NY2d 176, 182 [1978] [internal quotation marks
omitted]). On judicial review, DHR’s determinations are “accorded substantial deference
when” it “acts within [its] area of expertness,” and we have recognized that “identifying
discriminatory acts . . . requires expertness” (County of Onondaga Sheriff’s Dept., 71 NY2d
at 630; see 300 Gramatan Ave. Assoc., 45 NY2d at 183).
Here, DHR concluded that Pentkowski’s letter threatened litigation and that such
threats could have dissuaded a reasonable person from bringing the original discrimination
charge. Initially, DHR rationally concluded that the letter threatened litigation. The letter
specifically stated that Pine Ridge was looking to CityVision and Renner for damages and
warned that Pine Ridge would proceed as necessary to obtain such damages.
Further, the record established that Pentkowski’s letter “shocked” CityVision’s
employees and forced CityVision to expend resources and “scramble . . . to locate counsel”
-7- -8- No. 2
to address the threat. In the circumstances presented, it was rational for DHR to conclude
that the threatening letter caused CityVision to divert resources and could have dissuaded
a person from pursuing a discrimination claim to protect their rights under the Human
Rights Law. Indeed, a potential plaintiff might be chilled from filing a discrimination
complaint when weighing the harm caused by the threat of retaliatory litigation, let alone
the injury potentially occasioned by actual retaliatory litigation. DHR’s determination that
the litigation threat amounted to adverse action in this case was rational and, thus,
supported by substantial evidence.
We turn to the first element of the retaliation claim. Although we have never
adopted the “reasonable belief” standard (see Matter of Mohawk Finishing Prods. v State
Div. of Human Rights, 57 NY2d 892, 893-894 [1982]), and do not do so here because the
parties agree that it applies, Appellate Division and DHR precedent requires CityVision
and Renner to demonstrate that they were engaged in protected activity by showing that
the initial complaint was based on a reasonable belief that Pine Ridge had engaged in
unlawful housing discrimination (see Matter of New York State Off. of Mental Retardation
& Dev. Disabilities [Staten Is. Dev. Ctr.] v New York State Div. of Human Rights, 164
AD2d 208, 210 [3d Dept 1990]; State Div. of Human Rights v GPA Dev. Corp., NYS DHR
Case Nos. 10122321 and 10122322 [Feb. 1, 2012] [available at 2011 NYHUM LEXIS 16,
*20]). DHR therefore erred by putting the burden on Pine Ridge and Pentkowski to show
that the allegations advanced by CityVision in the initial DHR complaint were made in bad
faith. As the Appellate Division concluded, DHR failed to “undertake any analysis as to
whether CityVision reasonably believed that Pine Ridge” had engaged in a discriminatory
-8- -9- No. 2
practice during the test call (204 AD3d at 1360). Because DHR failed to make any non-
conclusory factual findings on this issue, remittal is necessary so that DHR may determine
whether CityVision and Renner established the first element of the retaliation claim.
Accordingly, the judgment should be reversed, with costs, and the matter remitted
to the Appellate Division with directions to remand to DHR for further proceedings in
accordance with this opinion.
Judgment reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the New York State Division of Human Rights for further proceedings in accordance with the opinion herein. Opinion by Judge Singas. Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.
Decided February 15, 2024
-9-