Shea v. McCall

Kane, J. Proceeding initiated in this court pursuant to Executive Law § 298 to review determinations of the State Division of Human Rights, dated August 9, 1983, which dismissed petitioner’s complaints of unlawful discriminatory practice based on sex and retaliation. A review of the record reveals that the State Division of Human Rights’ determinations of no probable cause and dismissal of the complaints were not arbitrary or capricious, as petitioner failed to produce evidence to support her assertions. Accordingly, the determinations must be confirmed (see, Matter of Gentili v State Div. of Human Rights, 106 AD2d 742; Matter of Piekielniak v New York State Dept. of Health, 90 AD2d 585). Petitioner’s allegation of an unlawful discriminatory practice based on sex is predicated upon the employer’s failure to offer her a newly created position, which consolidated formerly separate jobs. There is nothing in the record to refute the employer’s assertion that it simply offered the position in question to a better qualified individual. Petitioner’s complaint of an unlawful discriminatory practice based on sex is also belied by the fact that the employer has frequently promoted female employees. Turning to petitioner’s complaint based upon retaliation, we note that petitioner knew of the decision to eliminate her position prior to the time she filed her initial complaint. Determinations confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.