State Division of Human Rights v. County of Monroe

Determinations annulled, on the law, without costs, and complaint dismissed. Memorandum: [28] In State Div. of Human Rights v County of Monroe (73 AD2d 1058, lv denied 50 NY2d 805), we reserved decision and remanded for further proof and findings concerning "the duties and responsibilities of a deputy sheriff-patrol and the similarities and/or differences between that position and a police officer”. After a hearing, the administrative law judge determined that the proof concerning the nature of the deputy sheriff-patrol position and its similarity to that of police officer was irrelevant because it related to circumstances occurring during and after October 1975 whereas the complainant was initially rejected for the position in June 1975. This was error. The administrative law judge expressly found that there was continuing discrimination until complainant’s final interview in April 1976 and, based on that finding, rejected petitioner’s contention that the complaint was not filed within one year of the date of the discriminatory conduct. The evidence concerning circumstances existing in October 1975 and thereafter was, therefore, relevant. Considering all of the evidence, including proof of the circumstances after October 1975, we find that petitioners have made a convincing and virtually unrefuted demonstration that the positions of deputy sheriff-patrol and police officer are similar and that the nature of the deputy sheriff-patrol position is such that age is a bona fide occupational qualification. A finding to the contrary could not be supported by substantial evidence. All concur, except Callahan, J., who dissents and votes to confirm the determination dated March 14, 1984, in the following memorandum.