New York State Tug Hill Commission v. New York State Division of Human Rights

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Jefferson County [Hugh A. Gilbert, J.], entered July 26, 2007) to review a determination of respondent-petitioner New York State Division of Human Rights. The determination found after a hearing that petitioner-respondent had unlawfully discriminated against respondent-petitioner Clark Waring Blackburn, Jr. It is hereby ordered that the determination is modified on the law and the petition is granted in part by reducing the award of [1170] compensatory damages for mental anguish and humiliation to $15,000 and as modified the determination is confirmed without costs, and the cross petitions are granted in part and petitioner-respondent is directed to pay respondent-petitioner Clark Waring Blackburn, Jr. the sum of $114,425 for back pay, together with interest at the rate of 9% per annum, commencing September 1, 2000, and the sum of $15,000 for mental anguish and humiliation, with interest at the rate of 9% per annum, commencing March 30, 2007. Memorandum: Petitioner-respondent (petitioner) commenced this proceeding pursuant to Executive Law § 298 seeking review of the determination of the Commissioner of respondent-petitioner New York State Division of Human Rights (Commissioner) that petitioner had unlawfully discriminated against respondent-petitioner Clark Waring Blackburn, Jr. (complainant) based on his age, and awarding complainant back pay and compensatory damages for mental anguish and humiliation. We note at the outset that our review of that determination “is limited to consideration of whether substantial evidence supports the [Commissioner’s] determination” (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [2003]; see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978]), and we “may not weigh the evidence or reject the Commissioner’s determination ‘where the evidence is conflicting and room for choice exists’ ” (Matter of Manhattan & Bronx Surface Tr. Operating Auth. v New York State Exec. Dept., 220 AD2d 668, 668 [1995], quoting Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106 [1987]). Contrary to petitioner’s contention, we conclude that there is substantial evidence in the record to support the Commissioner’s determination that the termination of complainant’s employment was motivated by age discrimination and that the legitimate, nondiscriminatory explanation offered by petitioner, i.e., a reorganization, was pretextual (see Matter of Bemis v New York State Div. of Human Rights, 26 AD3d 609, 611-612 [2006]; Exxon Shipping Co. v New York State Div. of Human Rights, 303 AD2d 241 [2003], lv denied 100 NY2d 505 [2003]). In support of the determination, the Commissioner relied, inter alia, upon evidence that complainant, petitioner’s oldest employee, was not offered an opportunity previously offered to a younger employee to remain employed at a lower pay grade; new younger employees were hired and existing younger employees were promoted with raises within months of complainant’s termination; and petitioner operated with more supervisory positions [1171] after the termination of complainant, a supervisory employee, than before his termination. “It is peculiarly within the domain of the Commissioner, who is presumed to have special expertise in the matter, to assess whether the facts and the law support a finding of unlawful discrimination” (Matter of Club Swamp Annex v White, 167 AD2d 400, 401 [1990], lv denied 77 NY2d 809 [1991]). That finding, moreover, need not be based upon proof that age was the only factor in the complainant’s termination or that the explanation offered by petitioner was false. Rather, the finding must be based upon proof estabhshing that petitioner’s “stated reason was not the only reason and that [complainant’s] age did make a difference” (Montana v First Fed. Sav. & Loan Assn. of Rochester, 869 F2d 100, 105 [1989]; see Matter of Miller Brewing Co. v State Div. of Human Rights, 166 AD2d 705, 706 [1990], lv denied 77 NY2d 805 [1991]). Here, the Commissioner’s determination that the age of complainant played a role in petitioner’s decision to terminate him is supported by substantial evidence, and thus “the judicial function is exhausted” (Manhattan & Bronx Surface Tr. Operating Auth., 220 AD2d at 668). We also reject petitioner’s contention that the Commissioner failed to make appropriate deductions or offsets from the back pay award of pension benefits received by complainant following his termination. Those benefits were earned by complainant based on his prior employment with the State of New York and were provided to him through the state retirement system. Thus, petitioner has not been required to pay complainant twice for the same time period, i.e., for both pension benefits and back pay (cf. Talada v International Serv. Sys., Inc., 899 F Supp 936, 960 [1995]; Meschino v International Tel. & Tel. Corp., 661 F Supp 254, 257 [1987]). In addition, complainant submitted evidence that the unlawful termination of his employment by petitioner resulted in a reduction of complainant’s length of service in the state retirement system and a loss of pension benefits. Thus, contrary to petitioner’s contention, the failure to deduct from the back pay award the pension payments received by complainant does not result in a windfall for complainant (cf. Munnelly v Memorial Sloan Kettering Cancer Ctr., 741 F Supp 60, 62 [1990]). We agree with petitioner, however, that the award of $25,000 in compensatory damages for mental anguish and humiliation is not supported by the evidence (see generally Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992, 994 [2007]; Matter of State of New York v New York State Div. of Human Rights, 284 AD2d 882, 883-884 [2001]), and we conclude [1172] that the maximum award supported by the evidence is $15,000. We therefore modify the determination accordingly. All concur except Scudder, P.J., and Lunn, J., who dissent and vote to annul the determination in accordance with the following memorandum.