Laverack & Haines, Inc. v. New York State Division of Human Rights

Determination modified on the law and as modified confirmed without costs and matter remitted to respondent New York State Division of Human Rights for further proceedings in accordance with the following Memorandum: Laverack & Haines, Inc. (petitioner) seeks to annul the determination of the New York State Division of Human Rights (SDHR) that found that petitioner unlawfully discriminated against complainant by terminating him from employment because of his age (see, Executive Law § 296 [1] [a]). We agree with SDHR that complainant made out a prima facie showing of age discrimination by establishing that [956] petitioner terminated complainant and replaced him with a younger person. SDHR properly rejected petitioner’s proffered nondiscriminatory reason for the job action, i.e., downsizing due to financial difficulties. There is substantial evidence to support the SDHR determination (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 181-182). SDHR properly awarded complainant back pay at the rate for a hearing representative position. It failed, however, to make any offset for unemployment insurance benefits and Social Security benefits received by complainant (see, Pioneer Group v State Div. of Human Rights, 174 AD2d 1041, 1042). Thus, the award of back pay must be reduced by the amount of those benefits. We agree also with the SDHR determination that complainant is entitled to pension benefits; the matter must be remitted, however, for a determination of that amount. In addition, the SDHR determination that complainant is entitled to an award for mental anguish is supported by the testimony of complainant that he was "frightened to death” not to have a job at 63 and that he suffered loss of sleep and appetite. The amount awarded is excessive, however, and must be reduced from $25,000 to $10,000 (see, State Div. of Human Rights v County of Onondaga Sheriffs Dept., 127 AD2d 986, 987, affd 71 NY2d 623). Therefore, we remit this matter to SDHR to determine the award of back pay and complainant’s pension benefits. All concur except Balio, J., who dissents and votes to annul the determination in the following Memorandum: