When Reporting Sexual Assault Becomes Grounds for Termination

The Fourth Department Confronts Retaliatory Discipline, Employer Pretext, and the Weaponization of Workplace Investigations Under the New York State Human Rights Law

An Analysis of Matter of Tessy Plastics Corp. v. New York State Division of Human Rights, 2026 NY Slip Op 06625 (4th Dep’t Nov. 13, 2026)

I. Introduction: When the Employer Turns Against the Employee Who Reports Sexual Misconduct

There is something fundamentally wrong with an employment system in which an employee reports being sexually assaulted by a coworker, only to find herself suspended almost immediately and subsequently terminated under the very workplace policies ostensibly designed to protect employees from sexual misconduct. The problem extends beyond questionable management decisions or an employer’s failure to appreciate the seriousness of a sexual-assault complaint. It implicates the fundamental protections afforded by the New York State Human Rights Law (NYSHRL), which prohibits employers from retaliating against employees for opposing unlawful discriminatory practices or participating in proceedings designed to enforce those protections. When an employer responds to protected activity by initiating disciplinary proceedings, imposing employment restrictions, or terminating the reporting employee under circumstances demonstrating retaliatory motivation, the employer commits an independent statutory violation. The employer cannot escape liability merely because it possesses general disciplinary authority or because the underlying allegation of sexual misconduct has not resulted in a separate finding of discrimination.

That principle is central to Matter of Tessy Plastics Corp. v. New York State Division of Human Rights, 2026 NY Slip Op 06625 (4th Dep’t Nov. 13, 2026), in which the Appellate Division, Fourth Department, unanimously confirmed a determination by the New York State Division of Human Rights (SDHR) finding that Tessy Plastics Corporation unlawfully retaliated against Rebecca A. Beebee after she reported that a coworker had sexually assaulted her. According to the administrative record, the employer suspended Beebee almost immediately after receiving her complaint and terminated her employment several weeks later without permitting her to return to work. Rather than acknowledging that the disciplinary measures constituted unlawful retaliation, Tessy Plastics defended the termination by asserting that Beebee herself had violated its sexual harassment policy. The SDHR Commissioner rejected that justification as pretextual after considering evidence that other employees who engaged in similar or more serious misconduct had not received comparably severe disciplinary sanctions. The Fourth Department concluded that substantial evidence supported the agency’s determination, confirming the resulting monetary awards, civil penalty, and remedial requirements.

The significance of the decision lies in the relationship between an employer’s legitimate disciplinary authority and the unlawful use of that authority to punish protected activity. Employers undoubtedly possess the right to investigate employee misconduct, enforce workplace policies, and impose appropriate discipline. However, the existence of that authority does not establish that every investigation, suspension, or termination is lawful. An employer cannot convert otherwise permissible personnel procedures into instruments of retaliation while expecting judicial review to focus exclusively upon whether those procedures were technically authorized. The relevant inquiry necessarily extends to the circumstances surrounding the disciplinary action, including its timing, the employer’s knowledge of the protected complaint, the consistency of its stated justification, and the treatment afforded to employees accused of comparable misconduct. Where those circumstances support a finding that disciplinary authority was exercised because an employee asserted statutory rights, the employer’s reliance upon workplace rules cannot insulate its conduct from liability.

The Fourth Department’s decision is especially important because retaliation frequently occurs through ordinary institutional mechanisms rather than overt declarations of discriminatory intent. An employer may characterize an immediate suspension as an administrative precaution, describe an investigation as a routine personnel matter, or justify termination by invoking a broadly written disciplinary policy. Those explanations may be legitimate, but their legitimacy cannot be presumed simply because the employer has selected terminology associated with lawful workplace management. The NYSHRL requires examination of the actual motivation and consequences of the challenged conduct. In Tessy Plastics, that examination revealed evidence supporting the Commissioner’s conclusion that the employer’s disciplinary explanation was pretextual, particularly because employees who engaged in similar or more serious misconduct were treated less harshly. The case therefore illustrates how an employer’s own disciplinary history may expose the difference between legitimate enforcement and retaliation disguised as compliance with internal policies.

Equally significant is the Fourth Department’s reaffirmation of the limited judicial function when reviewing administrative discrimination determinations under Executive Law § 298. The courts are responsible for determining whether substantial evidence supports the agency’s findings, not for independently reassessing competing factual explanations or substituting judicial preferences for rational administrative conclusions. That distinction is particularly consequential in retaliation cases, where the employer’s motivation frequently must be established through circumstantial evidence, including temporal proximity, inconsistent explanations, and comparative disciplinary treatment. The reviewing court cannot disregard the Commissioner’s rational assessment merely because the employer offers an alternative interpretation of the record. Taken together, these principles make Tessy Plastics an important decision concerning the misuse of workplace disciplinary authority, the evidentiary significance of selective enforcement, and the judiciary’s obligation to respect supported administrative findings in the enforcement of New York’s civil-rights protections.

II. The Retaliatory Sequence: Sexual-Assault Complaint, Immediate Suspension, and Termination

The circumstances surrounding Beebee’s suspension and termination demonstrate why retaliation claims must be evaluated through the complete sequence of events rather than through isolated personnel decisions. After reporting an allegation that a coworker had sexually assaulted her, Beebee was suspended almost immediately and subsequently terminated within weeks without being permitted to return to work. Tessy Plastics defended the termination by alleging that she had violated the company’s sexual harassment policy, but the SDHR Commissioner determined that the explanation was pretextual because other employees who engaged in similar or more serious misconduct had not been subjected to equally severe discipline. These circumstances presented more than a disputed employment decision following an employee complaint. They provided an evidentiary basis from which the Commissioner could conclude that the employer’s disciplinary response was causally connected to Beebee’s protected activity and that its stated justification did not reflect the actual reason for terminating her employment.

Executive Law § 296(7) expressly prohibits retaliation against individuals who oppose practices forbidden by the Human Rights Law or participate in proceedings concerning those practices. In Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313 (2004), the Court of Appeals identified the essential elements of a prima facie retaliation claim as protected activity, employer awareness, an adverse action, and a causal connection between the protected activity and the challenged conduct. The initial burden is minimal, and once the employee establishes a prima facie case, the employer must produce evidence of a legitimate, nonretaliatory justification for its actions. That burden of production does not require the factfinder to accept the employer’s explanation as true, nor does it eliminate the ultimate inquiry into whether the stated justification conceals unlawful retaliation. As the Court of Appeals explained in Rainer N. Mittl, Ophthalmologist, P.C. v. New York State Division of Human Rights, 100 N.Y.2d 326, 330–32 (2003), the factfinder must examine whether the evidence supports the employer’s asserted justification or instead establishes that the explanation was pretextual.

The Court of Appeals substantially reinforced the scope of New York’s antiretaliation protections in Matter of Clifton Park Apartments, LLC v. New York State Division of Human Rights, 41 N.Y.3d 326, 331–34 (2024), holding that a threat of litigation may itself constitute an adverse action under Executive Law § 296(7), even when the threatened lawsuit is never commenced. There, following the dismissal of an underlying housing discrimination complaint, the property owner’s attorney sent correspondence accusing the complainants of making false, fraudulent, and libelous allegations and threatening to pursue damages against them. The Court rejected the proposition that threatened litigation was categorically incapable of constituting retaliation, recognizing that the prospect of being sued for pursuing a discrimination complaint could discourage a reasonable person from exercising rights protected by the Human Rights Law. The SDHR had determined that the threatened litigation caused the complainants to divert resources toward obtaining legal assistance and could reasonably discourage protected complaints. The Court concluded that substantial evidence supported the agency’s adverse-action determination, although it remitted the matter because the agency had improperly allocated the burden concerning whether the complainants engaged in protected activity. The significance of the holding extends beyond the particular housing-discrimination dispute because it establishes that the retaliatory use of otherwise lawful legal procedures may satisfy the adverse-action requirement when the surrounding circumstances demonstrate their capacity to discourage protected activity.

The relationship between Clifton Park Apartments and Tessy Plastics is particularly instructive. Both decisions recognize that unlawful retaliation cannot be confined to conventional employment consequences such as discharge, demotion, or reduction in compensation. In Clifton Park Apartments, the threatened use of civil litigation constituted adverse action under the circumstances established by the administrative record, while in Tessy Plastics, the Fourth Department concluded that the SDHR Commissioner rationally determined that Beebee’s suspension constituted adverse action notwithstanding the continuation of her wages. The common legal principle is that conduct must be evaluated according to whether it could reasonably discourage protected activity, rather than according to the formal authority under which the employer or its representatives purported to act. An employer may possess the legal right to initiate civil litigation, just as it may possess the managerial authority to suspend an employee or investigate alleged misconduct. Neither authority confers immunity when the evidence establishes that the challenged action was undertaken for retaliatory purposes. The Human Rights Law protects against the misuse of those powers, not merely against employment decisions that result in immediate financial loss.

The employer’s asserted justification in Tessy Plastics also demonstrates why the burden-shifting framework cannot be reduced to a mechanical exercise in which the identification of a workplace rule resolves the retaliation claim. Tessy Plastics maintained that Beebee’s termination resulted from her violation of its sexual harassment policy, but the Commissioner was required to assess that explanation against the evidence concerning the company’s disciplinary practices. The administrative record established that other employees who engaged in similar or more significant misconduct had not received comparable sanctions, permitting the Commissioner to conclude that the employer’s explanation was pretextual. The importance of that evidence cannot be understated because discriminatory or retaliatory motivation ordinarily is not established through direct admissions. It is frequently demonstrated by examining whether an employer’s stated reasons withstand scrutiny when compared with its actual conduct toward other employees. A disciplinary policy may be facially neutral while its selective enforcement reveals impermissible motivation, particularly when the harshest sanction is imposed against an employee shortly after the employee engages in protected activity.

The Fourth Department’s conclusion therefore rested upon the combined significance of the immediate suspension, subsequent termination, and comparative disciplinary evidence, rather than upon an assumption that every adverse action following a discrimination complaint necessarily constitutes retaliation. Temporal proximity may support an inference of causation, but its evidentiary value becomes considerably stronger when accompanied by evidence undermining the employer’s stated justification. Here, the Commissioner had a rational basis to conclude that the company’s invocation of its sexual harassment policy did not explain the severity of the disciplinary response imposed upon Beebee. The decision illustrates why employers cannot establish lawful motivation merely by demonstrating that an employee’s alleged conduct might justify discipline in the abstract. The controlling issue is whether the challenged action was actually imposed for a legitimate reason or whether the employer selectively invoked its disciplinary authority because the employee exercised rights protected by the NYSHRL. Where substantial evidence supports the latter conclusion, the employer’s formal authority to investigate and discipline cannot defeat the statutory retaliation claim.

III. Paid Suspension Can Constitute Unlawful Retaliation

One of the most consequential aspects of the Fourth Department’s decision concerns its rejection of Tessy Plastics’ argument that suspending Beebee with pay did not constitute an adverse employment action under the NYSHRL. The employer’s position rested upon the assumption that an employee who continues receiving regular compensation during a suspension has not suffered a legally cognizable employment injury. The Fourth Department rejected that categorical proposition, concluding that the SDHR Commissioner rationally determined that Beebee’s suspension constituted adverse action under the circumstances presented. Relying upon Clifton Park Apartments, 41 N.Y.3d at 332, the Court recognized that the relevant inquiry is whether the challenged conduct could dissuade a reasonable employee from making or supporting a discrimination complaint. That standard does not require an immediate reduction in salary, termination of employment, or some other readily quantifiable economic injury. Rather, it requires an objective assessment of the nature and circumstances of the employer’s conduct, including whether the action would reasonably discourage employees from exercising rights protected by the Human Rights Law.

The distinction is particularly important because employers frequently characterize paid administrative leave as a neutral personnel measure, especially when an internal investigation concerns allegations of workplace misconduct. In appropriate circumstances, an employer may have legitimate reasons to separate employees temporarily, protect witnesses, preserve evidence, or prevent interference with an ongoing investigation. However, the existence of those legitimate purposes does not establish that every paid suspension serves them, nor does it preclude examination of whether a particular suspension was imposed for retaliatory reasons. An employee removed from the workplace may continue receiving compensation while simultaneously being deprived of ordinary responsibilities, professional opportunities, workplace relationships, or the ability to perform the duties associated with the position. Depending upon the circumstances, the suspension may also communicate to coworkers and supervisors that the reporting employee has become the subject of institutional scrutiny, potentially undermining professional standing and discouraging others from making similar complaints. Those consequences cannot be dismissed merely because the employer elects to continue paying the employee during the period of removal.

The circumstances surrounding Beebee’s suspension demonstrated why the Commissioner’s determination was entitled to substantial deference. Beebee reported that she had been sexually assaulted by a coworker and was suspended almost immediately afterward. Rather than returning to her position following the suspension, she was terminated within weeks, with the employer subsequently asserting that she had violated its sexual harassment policy. The suspension therefore could not be evaluated as an isolated administrative event divorced from the protected complaint and subsequent termination. The Commissioner was entitled to consider the sequence of events in determining whether the suspension constituted adverse action and whether the employer’s conduct was retaliatory. The Fourth Department concluded that the record supported the Commissioner’s determination, recognizing that a suspension imposed under these circumstances could reasonably discourage an employee from reporting sexual misconduct. Importantly, the Court did not establish that every paid suspension automatically constitutes retaliation. Its holding requires consideration of the particular facts and the objectively discouraging effect of the challenged action, rather than adopting a categorical exemption for suspensions accompanied by continued compensation.

The reasoning is consistent with the Court of Appeals’ broader interpretation of actionable retaliation in Clifton Park Apartments, where the threatened commencement of civil litigation was sufficient to satisfy the adverse-action element under the circumstances established by the administrative record. In that case, the complainants were not required to demonstrate that the threatened lawsuit had actually been filed before the SDHR could determine that the threatened action was reasonably capable of discouraging protected activity. Similarly, in Tessy Plastics, the continuation of Beebee’s wages did not foreclose a finding that her removal from the workplace constituted adverse action. Both decisions reject attempts to define retaliation through rigid categories that disregard the practical consequences of the challenged conduct. The proper inquiry focuses upon whether the employer’s actions, viewed objectively and in context, could discourage an individual from exercising statutory rights. That analysis reflects the Legislature’s broader purpose in prohibiting retaliation, because the Human Rights Law cannot function effectively if employers remain free to impose professionally damaging or intimidating consequences upon employees who report unlawful conduct, provided those consequences do not immediately diminish compensation.

The implications extend beyond private-sector employment to government agencies and other institutions where administrative restrictions may carry substantial professional consequences without producing an immediate loss of salary. Within law-enforcement organizations, for example, employees may be placed on modified duty, removed from investigative assignments, transferred from established commands, excluded from specialized responsibilities, or subjected to other restrictions while continuing to receive their regular compensation. Such actions may be justified by legitimate operational or disciplinary considerations, and their occurrence following protected activity does not automatically establish retaliation. Nevertheless, the agency’s characterization of the action as administrative, precautionary, or nonpunitive cannot conclusively determine whether it constitutes adverse action under the NYSHRL. The circumstances surrounding its imposition, its practical consequences, and its relationship to the employee’s protected activity remain relevant to the statutory inquiry. Where an employee is removed from meaningful duties after reporting discrimination or sexual harassment, the employer must confront the possibility that the action could reasonably discourage protected complaints, regardless of whether the employee continues receiving a paycheck.

The Fourth Department’s holding therefore closes an important avenue through which employers might otherwise attempt to avoid meaningful scrutiny of retaliatory conduct. If paid suspensions were categorically excluded from the definition of adverse employment action, employers could remove employees who report misconduct from ordinary workplace responsibilities, subject them to prolonged administrative restrictions, or otherwise interfere with their professional activities while maintaining compensation and asserting that no actionable injury occurred. Such an interpretation would substantially undermine Executive Law § 296(7) by allowing employers to impose nonfinancial consequences capable of discouraging employees from exercising protected rights. Tessy Plastics confirms that the legality of a suspension depends upon the governing facts and the objective retaliation standard, not simply upon whether wages continued during the period of removal. The decision reinforces the principle that statutory protection against retaliation encompasses employment consequences that may be professionally damaging, institutionally coercive, or reasonably intimidating even when they are not accompanied by an immediate economic loss.

IV. Selective Enforcement: When Workplace Policies Become Instruments of Retaliation

The most troubling feature of Tessy Plastics is the employer’s attempt to justify terminating an employee who reported sexual assault by invoking the company’s own sexual harassment policy. According to the Fourth Department, Tessy Plastics maintained that Beebee’s termination resulted from her alleged violation of that policy, notwithstanding the fact that she had been suspended almost immediately after reporting sexual misconduct by a coworker. The SDHR Commissioner rejected the employer’s explanation as pretextual after examining evidence that other employees who engaged in similar or more serious misconduct had not received comparable disciplinary sanctions. This distinction was central to the administrative determination because an employer’s authority to enforce workplace rules does not establish that a particular disciplinary action was motivated by legitimate considerations. The existence of a written policy, an alleged violation, or a procedurally authorized disciplinary mechanism cannot insulate an employer from retaliation liability when the evidence demonstrates that the policy was selectively enforced against an employee because she engaged in protected activity.

The legal significance of comparator evidence arises from the distinction between an employer’s asserted justification and its actual motivation. Under the burden-shifting framework governing NYSHRL retaliation claims, an employer that produces evidence of a legitimate, nonretaliatory reason for an adverse action satisfies its burden of production, but the factfinder must still determine whether that explanation is credible or merely pretextual. In Rainer N. Mittl, 100 N.Y.2d at 330–32, the Court of Appeals recognized the importance of evaluating the employer’s stated reasons against the evidentiary record, including disparate treatment of employees who engaged in comparable misconduct. The Fourth Department applied that principle in Tessy Plastics, concluding that the Commissioner’s pretext determination was rational because the administrative record contained evidence that employees accused of similar or more significant misconduct had been disciplined less severely. The employer’s reliance upon its sexual harassment policy therefore did not resolve the retaliation claim. Instead, the inconsistency between the sanction imposed upon Beebee and the treatment afforded to other employees provided a substantial evidentiary basis for questioning whether the policy violation was the actual reason for her termination.

Comparator evidence is particularly important because employers rarely acknowledge retaliatory motivation when defending disciplinary decisions. More commonly, the challenged action is attributed to policy violations, deficient performance, insubordination, workplace disruption, or other facially legitimate considerations. Such explanations may be entirely valid, but their validity must be established through the evidence rather than presumed from the employer’s characterization of the conduct. Where an employer asserts that a particular violation required termination, evidence that other employees committed comparable or more serious violations without receiving equivalent sanctions may undermine the credibility of that assertion. The relevant comparison must account for material differences in the employees’ conduct, disciplinary histories, responsibilities, and other circumstances legitimately bearing upon the appropriate sanction. However, where those considerations do not adequately explain the disparity, the factfinder may reasonably infer that the employer’s asserted justification was not the actual motivation for the challenged action. In Tessy Plastics, the Commissioner reached precisely that conclusion, and the Fourth Department determined that substantial evidence supported it.

The distinction between legitimate disciplinary discretion and unlawful selective enforcement is especially important because workplace policies frequently authorize a range of possible sanctions rather than mandating a single outcome. An employer may possess discretion to issue counseling, impose a warning, suspend an employee, or terminate employment depending upon the seriousness of the violation and other relevant circumstances. That discretion is not unlawful, but neither is it unlimited. When the employer exercises its discretion more severely against an employee who recently engaged in protected activity, the reasons for selecting that sanction become material to the retaliation inquiry. An employer cannot establish lawful motivation merely by showing that termination was among the available disciplinary options. It must confront evidence concerning whether comparable conduct ordinarily resulted in less severe consequences and whether the departure from established practice was attributable to legitimate considerations. The fact that a sanction is authorized by workplace policy does not establish that the decision to impose it was free from retaliatory motivation.

This principle has substantial implications for institutional disciplinary systems, particularly those that rely upon internal investigators, supervisory recommendations, and administrative determinations to impose employment consequences. A disciplinary process may comply with established procedures while nevertheless being initiated or administered for retaliatory purposes. Similarly, an internal investigation may concern conduct that legitimately warrants examination, but its timing, scope, intensity, or resulting sanctions may reveal selective enforcement when compared with the institution’s treatment of other employees. The existence of investigative authority does not eliminate the need to examine why that authority was exercised against a particular employee, especially where the investigation closely followed a complaint of discrimination or sexual harassment. Within public-sector agencies, including law-enforcement organizations, disciplinary records, investigative histories, supervisory communications, and comparative sanctions may therefore become central evidence in determining whether management acted for legitimate institutional purposes or used established disciplinary procedures to punish protected activity.

The concern is not that employees who report discrimination or sexual misconduct must be exempt from accountability for their own conduct. The Human Rights Law does not grant immunity from legitimate discipline, and employers retain the authority to investigate misconduct regardless of whether the employee has previously engaged in protected activity. Rather, the statute prohibits employers from allowing protected activity to influence disciplinary decisions in a manner that constitutes unlawful retaliation. An employee’s complaint cannot become the occasion for manufacturing allegations, exaggerating otherwise minor violations, selectively invoking workplace rules, or imposing disproportionate consequences that would not ordinarily follow comparable misconduct. The distinction must be determined through an objective assessment of the evidentiary record, including the timing of the disciplinary action, the employer’s stated explanations, the consistency of enforcement practices, and any material differences between the reporting employee and relevant comparators. These considerations permit the factfinder to distinguish legitimate accountability from retaliatory discipline without compromising the employer’s authority to maintain appropriate workplace standards.

In Tessy Plastics, the administrative record supported the Commissioner’s determination that the employer’s asserted disciplinary justification was pretextual, and the Fourth Department properly declined to substitute its own assessment for that rational finding. The decision reinforces that institutional compliance cannot be measured merely by the existence of written policies, formally authorized investigations, or disciplinary procedures that appear neutral on their face. The application of those procedures must withstand scrutiny when the surrounding evidence suggests that they were employed selectively against an individual who exercised rights protected by the NYSHRL. An employer cannot transform unlawful retaliation into legitimate workplace management simply by invoking a policy that it otherwise enforces less severely against employees accused of comparable or more serious misconduct. The determining consideration remains whether the disciplinary decision was genuinely motivated by lawful enforcement objectives or whether the employer used its institutional authority to impose consequences because the employee engaged in protected activity.

V. The Administrative Factfinder’s Role Cannot Be Displaced by Judicial Preference

The Fourth Department’s decision reinforces a fundamental limitation upon judicial review that carries particular significance in employment discrimination and retaliation proceedings: courts reviewing administrative determinations are not authorized to substitute their own assessment of conflicting evidence for the rational conclusions reached by the agency charged with resolving those disputes. Following the SDHR Commissioner’s determination that Tessy Plastics unlawfully retaliated against Beebee, the employer commenced a proceeding under Executive Law § 298 seeking to annul the determination, while the SDHR cross-petitioned to confirm and enforce its order. The Fourth Department emphasized that its review was confined to determining whether substantial evidence supported the Commissioner’s findings, rather than independently deciding whether the employer’s explanation for Beebee’s suspension and termination was more persuasive than the evidence supporting retaliation. This distinction is particularly consequential because employment discrimination claims frequently depend upon circumstantial evidence, competing explanations, and factual determinations concerning an employer’s actual motivation. Where the designated administrative factfinder has considered those matters and reached a rational conclusion supported by substantial evidence, judicial review cannot become a second opportunity for the employer to relitigate factual disputes simply because it disagrees with the outcome.

The substantial-evidence standard has long governed judicial review of administrative determinations under the Human Rights Law. In 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 179–82 (1978), the Court of Appeals explained that substantial evidence requires relevant proof sufficient to permit a reasonable person to accept the agency’s factual conclusions, while recognizing that the reviewing court’s responsibility differs fundamentally from that of the administrative factfinder. Similarly, in Rainer N. Mittl, 100 N.Y.2d at 331, the Court reaffirmed that judicial review of an SDHR determination does not authorize an independent weighing of conflicting evidence where the record provides a rational basis for the agency’s findings. The controlling principle was articulated in Matter of State Division of Human Rights (Granelle), 70 N.Y.2d 100, 106 (1987), where the Court of Appeals explained that the judicial function is exhausted once a rational basis exists for the administrative conclusion. These authorities recognize that substantial-evidence review serves an important supervisory function without transferring the agency’s factfinding responsibilities to the judiciary. The existence of evidence supporting a contrary conclusion does not, by itself, render the agency’s determination irrational or authorize a reviewing court to substitute its preferred interpretation of the record.

The Court of Appeals reaffirmed this allocation of authority in Clifton Park Apartments, 41 N.Y.3d at 333, emphasizing that reviewing courts cannot displace an administrative determination merely because the evidence is conflicting and another factual conclusion might also be reasonable. That principle was particularly important in Clifton Park Apartments because the SDHR had determined that an attorney’s threatened litigation constituted adverse action capable of discouraging the exercise of rights protected by the Human Rights Law. The Court of Appeals concluded that substantial evidence supported the agency’s adverse-action determination, notwithstanding the Appellate Division’s contrary assessment, while separately requiring remittal to correct the agency’s improper allocation of the burden concerning protected activity. The decision thus illustrates both aspects of legitimate judicial review: courts must respect rational administrative factual findings while remaining responsible for identifying and correcting errors of law. Those responsibilities are complementary rather than contradictory, and neither authorizes judicial reconsideration of factual disputes simply because the reviewing court might have reached a different conclusion had it served as the original factfinder.

The distinction assumes particular importance when an employer challenges an administrative finding of pretext. Determining whether an asserted disciplinary justification conceals unlawful retaliation often requires the factfinder to evaluate the timing of employment decisions, inconsistencies in the employer’s explanations, comparative treatment of other employees, and the relationship between protected activity and subsequent disciplinary measures. Those determinations may involve conflicting testimony and competing inferences, but their disputed character does not place them outside the administrative agency’s authority. In Tessy Plastics, the Commissioner considered evidence that Beebee was suspended almost immediately after reporting sexual assault, terminated several weeks later without returning to work, and subjected to more severe discipline than other employees who engaged in similar or more significant misconduct. The employer maintained that its disciplinary decision was justified by Beebee’s alleged violation of its sexual harassment policy, but the Commissioner concluded that the stated explanation was pretextual. The Fourth Department did not undertake an independent reassessment of which explanation it considered more convincing. Instead, it determined that the Commissioner’s findings were supported by substantial evidence and therefore could not be displaced through judicial preference.

The recognition of the SDHR Commissioner’s specialized expertise further supports this limitation upon judicial intervention. Administrative agencies charged with enforcing the Human Rights Law possess institutional experience in evaluating discrimination and retaliation complaints, including circumstances in which unlawful motivation must be inferred from the employer’s conduct rather than established through direct admissions. The administrative hearing provides the mechanism through which witnesses may testify, documentary evidence may be introduced, and competing factual explanations may be examined. The Commissioner then exercises the authority conferred by statute and regulation to determine whether the evidence establishes a violation. Although expertise does not insulate an agency from judicial correction, it informs the deference afforded to rational determinations made within the agency’s statutory responsibilities. A reviewing court remains obligated to examine the record for substantial evidence, ensure that the correct legal standards were applied, and address procedural defects that warrant judicial intervention. It cannot, however, transform those responsibilities into an unrestricted reconsideration of the evidentiary record or treat its own assessment of witness credibility and employer motivation as superior to a rational determination reached through the administrative process.

The significance of Tessy Plastics therefore extends beyond the particular retaliation finding. The decision preserves the distinction between factfinding and judicial review in an area of law where the evaluation of circumstantial evidence is frequently decisive. Employers remain entitled to challenge determinations unsupported by substantial evidence or affected by material legal error, but disagreement with an adverse credibility assessment or finding of pretext does not itself establish a basis for annulment. Where the record supports the Commissioner’s conclusion that an employer selectively enforced disciplinary policies against an employee who engaged in protected activity, a reviewing court cannot disregard that evidence merely because the employer offers an alternative explanation. The Fourth Department’s adherence to the substantial-evidence standard reinforces that judicial review must operate within its established boundaries, protecting against arbitrary administrative action without displacing the institutional role of the factfinder responsible for resolving disputed allegations of unlawful discrimination and retaliation.

VI. The Commissioner’s Authority and the Limits of Procedural Challenges

Apart from challenging the substantive retaliation determination, Tessy Plastics contested the authority of SDHR adjudication counsel to prepare an alternative proposed order that the Commissioner ultimately adopted. The employer maintained that adjudication counsel lacked authority to prepare the alternative recommendation, thereby challenging the administrative procedure through which the final determination was reached. The Fourth Department rejected that argument, relying upon the express language of 9 N.Y.C.R.R. § 465.17(c)(2), which permits adjudication counsel to prepare an alternative proposed order based upon the administrative record when the interests of justice require that procedure. The Court recognized that the governing regulations contemplate both an administrative law judge’s recommended order and an alternative proposal prepared by adjudication counsel, with the Commissioner retaining responsibility for the agency’s final determination. Consequently, the employer could not establish that the administrative process was unauthorized merely because the Commissioner adopted a recommendation prepared through a procedure expressly permitted by regulation.

The Fourth Department’s analysis was consistent with Matter of Janitronics, Inc. v. New York State Division of Human Rights, 239 A.D.3d 1190, 1192–93 (3d Dep’t 2025), which addressed the preparation of an alternative proposed order under the same regulatory framework. In Janitronics, the Third Department recognized that the interests-of-justice provision authorizes adjudication counsel to submit an alternative recommendation and that the proposed orders do not themselves constitute the agency’s final determination. Applying that reasoning, the Fourth Department acknowledged that the better administrative practice would have been to explain why the interests of justice warranted preparation of the alternative proposed order in Tessy Plastics. Nevertheless, the absence of an express explanation did not require reversal because the competing recommendations remained proposals subject to the Commissioner’s ultimate determination. The Court therefore distinguished between a procedural practice that could have been explained more fully and a defect sufficient to invalidate the agency’s final action. That distinction is important because administrative proceedings must comply with governing regulations, but not every alleged procedural deficiency establishes that the resulting determination is legally defective or warrants annulment.

The regulatory structure recognizes that the responsibility for rendering the final administrative determination rests with the Commissioner rather than exclusively with the administrative law judge who initially evaluates the hearing record. The administrative law judge’s recommended order represents an important component of the adjudicative process, but it does not necessarily bind the official vested with final decision-making authority. Where the regulations authorize an alternative proposed order, the Commissioner may consider that recommendation in determining the appropriate disposition, provided the final determination complies with applicable law and is supported by the administrative record. The distinction between recommending a disposition and exercising final decision-making authority prevents the administrative process from being reduced to the proposition that the first proposed order necessarily controls the outcome. It also preserves the Commissioner’s statutory responsibility to ensure that the agency’s final determination reflects a lawful application of the Human Rights Law to the evidence developed during the hearing.

That authority does not eliminate the importance of procedural regularity or transparency. Administrative procedures exist to ensure that parties receive the process required by law and that final determinations rest upon an identifiable evidentiary and legal foundation. Where regulations permit an alternative recommendation only when the interests of justice require it, explaining the basis for invoking that authority promotes transparency and reduces unnecessary disputes concerning the administrative process. The Fourth Department’s acknowledgment that such an explanation would have been preferable should therefore not be interpreted as suggesting that compliance with regulatory requirements is optional. Rather, the Court determined that the particular omission identified by Tessy Plastics did not justify disturbing the Commissioner’s determination because the alternative order was a proposal, not an independent final adjudication, and the procedure itself was expressly authorized. The ruling preserves the distinction between procedural objections that identify a legally consequential defect and objections that, although raising questions concerning administrative practice, do not establish a sufficient basis for annulling the agency’s action.

The employer’s procedural challenge must also be considered in relation to the governing standard of judicial review. Tessy Plastics sought to overturn a determination supported by evidence of immediate suspension following protected activity, subsequent termination, and less severe disciplinary treatment of employees accused of comparable or more serious misconduct. Its objection to the preparation of an alternative proposed order did not eliminate that evidence or establish that the Commissioner lacked authority to make the final determination. Nor did the existence of competing recommendations authorize the reviewing court to substitute its own factual conclusions for those adopted by the Commissioner. The Fourth Department properly treated the procedural issue as a separate question concerning regulatory authority and determined that the employer had failed to establish reversible error. This approach recognizes that procedural safeguards must be enforced according to their legal significance while preventing dissatisfaction with an administrative outcome from being transformed into an independent basis for disregarding otherwise sustainable factual findings.

Ultimately, the Fourth Department’s resolution of the procedural challenge reinforces the Commissioner’s final decision-making authority within the SDHR’s regulatory framework. The Court did not confer unrestricted discretion upon the agency or excuse departures from mandatory procedural requirements. It concluded that the challenged procedure was authorized and that the absence of an express interests-of-justice explanation did not require annulment under the circumstances presented. The distinction matters because administrative adjudication must remain both procedurally lawful and substantively accountable, with judicial review directed toward identifying actual legal defects rather than reconsidering the agency’s determination through collateral objections to authorized internal procedures. In Tessy Plastics, the employer failed to establish that the preparation or adoption of the alternative proposed order warranted disturbing the Commissioner’s findings, leaving the substantial-evidence determination of unlawful retaliation intact.

VII. Civil Penalties, Constitutional Rights, and the Administrative Enforcement of Civil-Rights Protections

Tessy Plastics also challenged the constitutionality of the SDHR’s authority to impose a civil penalty without affording the employer a jury trial, arguing that Executive Law § 297(4)(c)(vi) violated article I, § 2 of the New York Constitution. The challenge presented a question distinct from whether substantial evidence supported the Commissioner’s retaliation determination because it concerned the Legislature’s authority to establish an administrative enforcement mechanism capable of imposing monetary penalties for violations of the Human Rights Law. The Fourth Department rejected the employer’s constitutional argument, concluding that Tessy Plastics failed to demonstrate that the administrative proceeding involved a claim historically entitled to trial by jury or sufficiently analogous to a common-law action for which that right was constitutionally preserved. The decision reinforces an important distinction between an employer’s right to challenge an administrative determination through judicial review and an asserted constitutional entitlement to have every statutory civil penalty determined by a jury. The imposition of a monetary sanction does not, standing alone, establish that the proceeding falls within the historical scope of New York’s constitutional jury-trial guarantee.

The constitutional analysis begins with the historical limitations governing the right to trial by jury under New York law. In Matter of DES Market Share Litigation, 79 N.Y.2d 299, 304–05 (1992), the Court of Appeals explained that article I, § 2 preserves the right to a jury trial in actions where that right existed at common law before 1777, in proceedings where the Legislature extended the right between 1777 and 1894, and in subsequently developed causes of action sufficiently analogous to those historically tried before juries. The inquiry therefore requires an examination of the nature of the statutory proceeding and its relationship to historically recognized legal claims, rather than a categorical determination based upon the fact that monetary relief or a civil penalty may be imposed. Moreover, because Tessy Plastics challenged the constitutionality of a legislative enactment, it bore the substantial burden of demonstrating the statute’s invalidity beyond a reasonable doubt. See White v. Cuomo, 38 N.Y.3d 209, 216 (2022). The Fourth Department concluded that the employer failed to satisfy that burden because it did not establish that the SDHR proceeding was historically entitled to a jury trial or sufficiently analogous to an action protected by the constitutional guarantee.

The statutory origin of New York’s antidiscrimination protections was central to the Court’s reasoning. As recognized in Kimmel v. State of New York, 76 A.D.3d 188, 193 (4th Dep’t 2010), aff’d, 29 N.Y.3d 386 (2017), claims arising under the Human Rights Law are creatures of statute rather than causes of action existing independently at common law. The Fourth Department further observed that the relevant antidiscrimination provisions were first enacted in 1945, long after the historical periods governing the constitutional preservation of jury-trial rights. Although a modern statutory cause of action is not automatically excluded from constitutional jury-trial protection merely because it was enacted after 1894, the employer was required to establish a sufficient historical analogy to a proceeding traditionally tried before a jury. Tessy Plastics failed to make that showing. The Court therefore concluded that article I, § 2 did not entitle the employer to a jury trial before the SDHR could impose the civil penalty authorized by Executive Law § 297(4)(c)(vi). The holding rests upon the historical and statutory character of the particular proceeding, not upon any general proposition that administrative monetary sanctions are categorically exempt from constitutional scrutiny.

The distinction has substantial implications for the enforcement of civil-rights protections because the Legislature deliberately established administrative procedures through which discrimination and retaliation complaints may be investigated, adjudicated, and remedied without requiring every dispute to proceed initially through a judicial trial. The SDHR’s authority includes determining whether unlawful discriminatory practices occurred, awarding appropriate remedies, and imposing civil penalties where authorized by statute. These functions reflect the Legislature’s decision to provide an administrative enforcement mechanism addressing conduct that implicates both individual rights and the State’s broader interest in eliminating discrimination. If the mere imposition of a monetary penalty automatically required a jury trial, the statutory enforcement process could be substantially altered regardless of the historical nature of the underlying claim. The Fourth Department’s decision rejects that approach while preserving the judiciary’s responsibility to determine whether the administrative framework complies with applicable constitutional requirements. Employers remain entitled to challenge administrative determinations through authorized procedures, but they cannot invalidate the Legislature’s chosen enforcement mechanism merely by asserting that the financial consequences of an adverse determination necessarily trigger a constitutional jury-trial right.

The constitutional challenge also must be understood in relation to the distinct purposes served by administrative civil penalties. Unlike compensatory damages awarded to address an individual’s economic or noneconomic injuries, a civil penalty imposed under the Human Rights Law reflects the State’s independent interest in enforcing statutory obligations and deterring prohibited conduct. Retaliation presents a particularly significant enforcement concern because it does more than injure the employee subjected to adverse treatment. It may discourage other employees from reporting discrimination, participating in investigations, or assisting individuals seeking protection under the statute. The Legislature’s authorization of administrative penalties recognizes that unlawful retaliation can undermine the effectiveness of the entire enforcement system, particularly when employees perceive that invoking statutory protections may expose them to institutional punishment. The Fourth Department’s rejection of the jury-trial challenge preserves the SDHR’s authority to impose the civil penalty at issue through the administrative process established by the Legislature, subject to the constitutional and statutory limitations governing that authority.

Ultimately, the Fourth Department’s resolution of the constitutional question reinforces the validity of administrative enforcement as an essential component of New York’s civil-rights framework. Tessy Plastics was afforded the opportunity to contest the retaliation allegations through the administrative process and subsequently sought judicial review under Executive Law § 298. The employer’s dissatisfaction with the resulting civil penalty did not establish that the proceeding violated the constitutional right to a jury trial. By examining the historical character of the statutory claim and rejecting the asserted constitutional entitlement, the Court preserved the distinction between judicial protection of constitutional rights and judicial interference with an administrative enforcement structure authorized by law. The decision confirms that employers found to have violated the Human Rights Law may face civil penalties imposed through authorized administrative proceedings without automatically acquiring a constitutional right to have those penalties determined by a jury.

VIII. The Financial Consequences of Retaliation: More Than $281,000 Before Additional Interest and Fees

The financial consequences confirmed by the Fourth Department demonstrate that unlawful retaliation can produce substantial liability extending well beyond the wages an employee loses following termination. The Court directed Tessy Plastics to pay Beebee $82,208.60 in compensatory damages for lost wages, $25,000 for mental anguish and humiliation, and $40,000 in punitive damages. It also directed payment of $88,961 in attorney’s fees to the Law Offices of Mairead E. Connor, PLLC, and imposed a $45,000 civil fine and penalty payable to the Comptroller of the State of New York. The combined principal amount of these obligations totals $281,169.60, excluding accrued interest and the additional attorney’s fees to be determined following remittal. The magnitude of the award is particularly significant because the employer’s liability arose from its retaliatory treatment of an employee who reported sexual assault, rather than from a separate determination that the underlying assault allegation itself had been substantiated. The decision illustrates that retaliation constitutes an independent violation of the Human Rights Law and may generate substantial remedial consequences regardless of the ultimate disposition of the original discrimination or harassment complaint.

The compensatory awards reflect the distinct economic and personal injuries that may result when an employer responds to protected activity through suspension and termination. The $82,208.60 lost-wage award addresses the financial consequences attributable to Beebee’s unlawful removal from employment, while the $25,000 mental-anguish and humiliation award recognizes that retaliatory treatment may inflict injuries extending beyond lost compensation. An employee who reports sexual misconduct and subsequently becomes the target of disciplinary action may experience professional disruption, diminished financial security, and emotional consequences associated with being punished after invoking statutory protections. Although the existence and extent of such injuries must be established through the evidentiary record, the Human Rights Law recognizes that retaliation may cause both economic and noneconomic harm. The SDHR’s award, confirmed by the Fourth Department, reflects that distinction by separately compensating Beebee for lost wages and the mental anguish and humiliation associated with the employer’s unlawful conduct. These remedies serve the compensatory purpose of addressing injuries caused by retaliation rather than merely reimbursing the employee for salary that would otherwise have been earned.

The additional awards demonstrate that the statutory consequences of retaliation are not confined to compensation for individual losses. The $40,000 punitive-damages award and $45,000 civil fine and penalty serve purposes distinct from the lost-wage and mental-anguish awards, reflecting the broader remedial and enforcement authority available under the Human Rights Law. Importantly, the civil penalty is payable to the State rather than to Beebee, underscoring that unlawful retaliation implicates a public interest independent of the injuries sustained by the individual complainant. The State has a legitimate interest in ensuring that employees can report discrimination and sexual harassment without being subjected to adverse consequences intended to discourage protected activity. Where employers retaliate against complainants, the resulting conduct may deter other employees from reporting unlawful practices or participating in statutory enforcement proceedings. The availability of civil penalties therefore reflects the Legislature’s recognition that effective enforcement requires consequences capable of addressing violations that threaten both individual rights and the integrity of the statutory complaint process.

The attorney’s-fee award also represents a consequential component of the administrative determination. The Fourth Department confirmed the $88,961 award payable to Beebee’s counsel and separately concluded that she was entitled to recover reasonable attorney’s fees incurred in the judicial review proceeding as a prevailing party under Executive Law § 297(10). The Court remitted the matter to Supreme Court, Onondaga County, for determination of the additional amount. This aspect of the decision is particularly important because employers may pursue extensive administrative and judicial challenges after an adverse discrimination determination, requiring successful complainants to incur additional legal expenses to preserve remedies already awarded. The statutory authorization of attorney’s fees recognizes that the practical ability to enforce civil-rights protections may depend upon access to legal representation and the availability of fee recovery. Without such provisions, the financial burden of defending a favorable administrative determination could substantially diminish the value of the underlying relief and discourage employees from pursuing legitimate complaints. The additional fee award in Tessy Plastics therefore reinforces that prevailing complainants may be entitled to recover the reasonable legal expenses associated with defending their statutory rights during judicial review.

The Fourth Department also directed payment of nine-percent annual interest on the monetary awards, with different commencement dates reflecting the nature of the underlying obligations. Interest on the $82,208.60 lost-wage award was ordered to commence January 1, 2022, while interest on the mental-anguish award, punitive damages, attorney’s fees, and civil fine and penalty was ordered to commence October 10, 2025. These interest obligations materially increase the employer’s financial exposure beyond the principal amount confirmed by the Court, particularly because the lost-wage award accrues interest from a substantially earlier date. The additional attorney’s fees to be determined on remittal further establish that the total financial consequences were not fully resolved by the Fourth Department’s November 13, 2026 decision. The resulting liability demonstrates how retaliation proceedings may generate continuing financial obligations as an employer challenges an administrative determination and the successful complainant incurs additional expenses defending the award. The amounts confirmed by the Court must therefore be understood as the principal components of a broader financial obligation, rather than as the employer’s final aggregate liability.

Beyond the monetary awards, the Fourth Department directed Tessy Plastics to provide supervisors and employees with training concerning their obligations under the Human Rights Law to prevent unlawful retaliation. That requirement addresses the institutional conditions under which retaliation may occur and recognizes that monetary compensation alone does not necessarily prevent future violations. Employers must ensure that supervisors understand the distinction between legitimate disciplinary authority and unlawful retaliation, particularly when an employee has reported sexual harassment, discrimination, or other conduct protected by statute. Written policies are insufficient if supervisory personnel selectively enforce them against employees who complain, and formal training has limited value unless the institution’s actual disciplinary practices reflect the legal obligations being taught. The remedial training requirement therefore complements the monetary consequences by directing attention to the employer’s future compliance responsibilities, including the need to prevent disciplinary procedures from becoming instruments of retaliation.

The overall financial and institutional consequences confirmed in Tessy Plastics demonstrate that unlawful retaliation is neither a minor procedural violation nor an ordinary personnel dispute without broader significance. The employer’s decision to suspend Beebee almost immediately after she reported sexual assault, followed by termination under a justification the SDHR found pretextual, resulted in substantial compensatory damages, punitive damages, attorney’s fees, a civil penalty, statutory interest, and mandatory remedial training. These consequences reflect the Legislature’s determination that retaliation threatens the effectiveness of the Human Rights Law by discouraging individuals from invoking its protections. Employers therefore cannot evaluate the risks associated with retaliatory discipline solely by calculating the employee’s lost compensation or assuming that an administrative suspension carries no meaningful legal consequences. As Tessy Plastics demonstrates, the unlawful use of disciplinary authority against an employee who engages in protected activity may expose an employer to substantial financial liability while requiring institutional measures designed to prevent the recurrence of similar violations.

IX. The Public-Sector Implications: Disciplinary Authority Cannot Become a Substitute for Lawful Management

Although Tessy Plastics arose from a private-sector employment dispute, the Fourth Department’s reasoning carries substantial implications for public employers, particularly government agencies operating within hierarchical command structures where supervisors exercise considerable authority over personnel assignments, administrative investigations, performance evaluations, disciplinary recommendations, and continued employment. The distinction between legitimate disciplinary authority and unlawful retaliation becomes especially important when employees report discrimination, sexual harassment, or other conduct protected under the NYSHRL, only to encounter heightened scrutiny or adverse personnel decisions following their complaints. Public employers possess legitimate interests in maintaining discipline, investigating misconduct, and ensuring that employees comply with professional standards. Those responsibilities, however, do not diminish their statutory obligations under the Human Rights Law. An agency cannot establish that an employment action was lawful merely by demonstrating that the action was authorized by an internal rule, disciplinary regulation, or supervisory directive. The controlling inquiry remains whether the challenged conduct was motivated by legitimate institutional considerations or whether the employer exercised its authority to impose consequences because the employee engaged in protected activity.

The New York City Police Department provides a particularly relevant institutional example because its disciplinary framework authorizes extensive investigative and supervisory intervention into the conduct of members of the service. The Internal Affairs Bureau, departmental investigative units, commanding officers, and other supervisory personnel perform essential functions in identifying misconduct, preserving the integrity of investigations, and maintaining accountability within the Department. Those responsibilities are necessary components of effective law enforcement, and police officers who engage in legitimate misconduct must remain subject to appropriate investigation and discipline. Nevertheless, the existence of investigative authority does not insulate the decision to exercise that authority from scrutiny under the NYSHRL. An investigation initiated because an officer reported sexual harassment or discrimination may implicate statutory retaliation protections, just as disciplinary measures imposed disproportionately against an employee who engaged in protected activity may support an inference of unlawful motivation. The legal distinction is not between investigation and noninvestigation, but between the legitimate exercise of institutional authority and the use of that authority to punish protected conduct.

The Fourth Department’s treatment of Beebee’s paid suspension is particularly instructive in the public-sector context because government employers frequently impose administrative restrictions without immediately reducing an employee’s compensation. Within law-enforcement organizations, officers may be removed from regular assignments, placed on modified duty, transferred from specialized units, restricted from performing ordinary responsibilities, or subjected to other employment limitations while continuing to receive their salaries. Such actions may serve legitimate operational or investigative purposes, particularly where serious misconduct allegations require temporary personnel adjustments. However, the absence of an immediate financial loss does not conclusively establish that the action is immaterial under the retaliation provisions of the Human Rights Law. As Tessy Plastics demonstrates, the relevant inquiry considers whether the challenged employment action, evaluated objectively and within its factual context, could reasonably discourage protected activity. A government employer therefore cannot defeat a retaliation claim solely by asserting that an employee continued receiving compensation during a suspension or reassignment, particularly where the evidence supports a connection between the employment restriction and a preceding discrimination or harassment complaint.

The comparative disciplinary analysis employed in Tessy Plastics is equally significant for public employers because institutional disciplinary systems frequently involve considerable discretion over the severity of sanctions imposed for particular violations. A department may maintain a written disciplinary matrix, published procedures, or established penalty guidelines while nevertheless exercising discretion in determining whether misconduct warrants counseling, formal charges, suspension, reassignment, or termination. Where an employee who recently reported discrimination receives a substantially more severe sanction than employees accused of comparable or more serious misconduct, the employer’s actual enforcement history may become critical evidence concerning pretext. Material differences between employees must be considered, including the nature of the allegations, disciplinary histories, supervisory responsibilities, and other circumstances legitimately affecting the appropriate sanction. However, the existence of discretionary authority does not eliminate the requirement that the discretion be exercised for lawful reasons. When an employer invokes institutional standards more aggressively against an employee who engaged in protected activity, the resulting disparity may support an inference that the disciplinary justification was selected or exaggerated to conceal retaliation.

The same analysis applies to internal investigations that appear procedurally regular but may have been initiated, expanded, or administered for retaliatory purposes. An agency may comply with formal requirements governing investigative assignments, interviews, documentation, and supervisory review while the underlying decision to investigate remains subject to challenge if the evidence establishes an impermissible retaliatory motive. Procedural compliance and lawful motivation are distinct considerations, and the existence of one does not necessarily establish the other. Investigative records, contemporaneous communications, supervisory instructions, disciplinary histories, and comparative treatment of other employees may provide evidence concerning why an investigation was undertaken and whether the resulting employment consequences were consistent with established practices. The distinction does not permit employees to evade legitimate accountability by filing discrimination complaints. Rather, it requires public employers to ensure that disciplinary and investigative authority remains directed toward lawful institutional objectives instead of becoming a mechanism for punishing employees who exercise protected rights.

The institutional consequences of retaliation also extend beyond the individual employee subjected to adverse treatment. When employees observe that colleagues who report sexual harassment or discrimination subsequently become targets of disciplinary investigations, undesirable assignments, or disproportionately severe sanctions, the resulting perception may discourage others from reporting misconduct or cooperating with internal and external investigations. This chilling effect undermines the enforcement objectives of the NYSHRL because statutory protections depend upon employees being able to identify and oppose unlawful practices without reasonably fearing institutional punishment. The Court of Appeals recognized the importance of that concern in Clifton Park Apartments, where threatened civil litigation was sufficiently serious to constitute adverse action under the circumstances presented. The same underlying principle informs Tessy Plastics: retaliation may operate through the threatened or actual exercise of otherwise lawful authority when that conduct is reasonably capable of discouraging protected complaints. Public employers must therefore evaluate not only whether their disciplinary decisions comply with internal procedures, but also whether those decisions are supported by legitimate reasons that withstand scrutiny under the governing antiretaliation standard.

For law-enforcement agencies, the practical significance is that institutional accountability requires both the effective investigation of genuine misconduct and meaningful protection against the retaliatory misuse of investigative authority. These obligations are not mutually exclusive. An agency can maintain rigorous disciplinary standards while ensuring that employees who report discrimination or sexual harassment are not subjected to selective enforcement, manufactured allegations, or adverse employment consequences motivated by protected activity. Indeed, legitimate accountability is undermined when disciplinary procedures become associated with retaliation because such practices compromise confidence in the fairness and integrity of the investigative process. Tessy Plastics reinforces that an employer’s disciplinary authority must be examined according to its actual exercise rather than its formal existence, and that substantial evidence of selective enforcement may establish retaliation notwithstanding the employer’s reliance upon otherwise legitimate workplace rules. The law does not require public employers to relinquish disciplinary authority; it requires them to exercise that authority consistently with their statutory obligations and for purposes unrelated to an employee’s protected activity.

X. Conclusion: An Employer Cannot Convert Protected Activity Into a Disciplinary Offense

The Fourth Department’s unanimous decision in Tessy Plastics reinforces that the NYSHRL prohibits employers from using otherwise legitimate disciplinary authority to punish employees for reporting unlawful workplace conduct. Beebee reported that she had been sexually assaulted by a coworker, was suspended almost immediately, and was subsequently terminated under a disciplinary justification the SDHR Commissioner determined was pretextual. The administrative record included evidence that other employees who engaged in similar or more serious misconduct received less severe discipline, providing substantial support for the Commissioner’s retaliation finding. By confirming that determination, the Fourth Department reaffirmed that paid suspension may constitute actionable retaliation, selective enforcement may establish pretext, and reviewing courts cannot substitute their own factual preferences for rational administrative findings supported by substantial evidence.

The broader significance of the decision concerns the integrity of institutional disciplinary authority. Employers, including government agencies and law-enforcement organizations, must retain the ability to investigate misconduct and impose legitimate discipline, but that authority cannot become a mechanism for discouraging employees from exercising rights protected by the Human Rights Law. The existence of written policies, authorized investigations, or formally permissible sanctions does not establish lawful motivation when the evidence demonstrates that those mechanisms were employed selectively against an employee who engaged in protected activity. The central question is not whether an employer possessed the authority to discipline the employee, but whether that authority was exercised for a lawful purpose. In Tessy Plastics, the SDHR determined that it was not, and the Fourth Department concluded that substantial evidence supported that determination.

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