Comfort v. New York State Human Rights Appeal Board

Proceeding initiated in this court pursuant to section 298 of the Executive Law to review a determination of the State Human Rights Appeal Board, dated February 8,1983, which affirmed an order of the State Division of Human Rights dismissing petitioner’s complaint for lack of probable cause. H When petitioner was notified that she was to be terminated from her employment, she elected to pursue an internal grievance procedure by filing an age discrimination complaint with her employer’s Equal Employment/Affirmative Action office. A majority of the three-member panel that investigated petitioner’s allegations found insufficient evidence of age discrimination to sustain the complaint. The employer’s president agreed and petitioner’s employment was terminated. She thereafter filed a complaint with the State Division of Human Rights, alleging discrimination on the basis of her age. The Division conducted an investigation and found no probable cause to believe that the employer had engaged in an unlawful discriminatory practice. Petitioner took an appeal to the Board, which affirmed the Division’s order. 11 The determination of the Appeal Board must be confirmed and the petition dismissed. The Board may not substitute its judgment for that of the Division where the Division’s order is supported by substantial evidence and is not arbitrary or an abuse of discretion (Matter of Misterman v New York State Human Rights Appeal Bd., 94 AD2d 924; Matter of Logan v New York State Human Rights Appeal Bd., 86 AD2d 910). The scope 664 of our review is no broader than that of the Board (see Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 57). It has been emphasized that “the division’s expertise in evaluating discrimination claims * * * may not be lightly disregarded in view of its wide discretion, legislatively endowed, to weigh and assess the conduct of the parties and to reach conclusions based on what is fairly inferable from the facts” (State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276, 284). 11 The record establishes that the Division conducted an adequate investigation and afforded petitioner a full and fair opportunity to present evidence in support of her complaint. The results of the investigation indicate that the employer terminated petitioner for what it believed were deficiencies in her performance and was not motivated by age discrimination. Nor did the investigation reveal any pattern of age discrimination, as alleged by petitioner. Under these circumstances, the Board’s affirmance of the Division’s finding of no probable cause was proper (see State Div. of Human Rights v WBEN, Inc., 96 AD2d 1141; Matter of Misterman v New York State Human Rights Appeal Bd., supra). ¶ Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.