J. W. Mays, Inc. v. New York State Human Rights Appeal Board

Proceeding pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, dated February 20, 1981, affirming an order of the State Division of Human Rights, dated April 14, 1980, which, after a hearing, sustained the complaint against the petitioner and imposed a penalty. The State division has cross-moved for enforcement of the order. Order confirmed and proceeding dismissed, without costs or disbursements. Cross application granted. Upon the prima facie showing that complainant may have been transferred out of the phonograph record department because she is a woman, inasmuch as she was the first woman salesperson to be assigned to the record department in five years and she had not, according to her testimony, been advised prior to the transfer that her work performance was unsatisfactory, petitioner J. W. Mays, Inc., then had the burden of showing that the transfer was made for “‘some independent legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination’” (Matter of Maloff v City Comm. on Human Rights [Anilyan], 46 NY2d 908, 910). That petitioner did not meet its burden and that the transfer was based on complainant’s sex, is supported by substantial evidence. The testimony of the man in over-all charge of the record departments in petitioner’s eight stores was, for example, that complainant was a good worker, but she could not perform in the “fast-moving” record department, a department where the other five salespersons were male, and had been all male for some five years. Petitioner argues essentially that it proved its case that complainant was transferred for incompetence, but that the Administrative Law Judge 818 erred in his evaluation of the testimony. The record does not support petitioner’s argument. We have examined petitioner’s remaining contentions and find them also to be without merit. Hopkins, J. P., Titone and Rabin, JJ., concur.