| Matter of Anagnostakos v New York State Div. of HumanRights |
| 2007 NY Slip Op 09651 [46 AD3d 992] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Rolandos Anagnostakos, Doing Business asRolando's Diner, Petitioner, v New York State Division of Human Rights, Respondent, et al.,Respondent. |
—[*1] Caroline J. Downey, State Division of Human Rights, New York City (Michael K. Swirskyof counsel), for State Division of Human Rights, respondent.
Mercure, J.P. Proceeding pursuant to Executive Law § 298 (transferred to this Courtby order of the Supreme Court, entered in Broome County) to review a determination ofrespondent State Division of Human Rights which found petitioner guilty of unlawfuldiscriminatory practice based on age.
In 1998, respondent Shirley R. Fiske filed a complaint with respondent State Division ofHuman Rights (hereinafter respondent) alleging that petitioner subjected her to age-related verbalharassment, reduced her hours and terminated her because of her age. Fiske had worked as awaitress at petitioner's diner for 20 years until she was terminated in September 1997, at the ageof 63. Following a hearing, an Administrative Law Judge recommended that Fiske's claim bedismissed. Upon further review, however, respondent sustained the complaint and awarded Fiskedamages in the amount of approximately $39,000 with interest for back pay and $45,000 formental anguish and humiliation. This proceeding to nullify respondent's determination thenensued.[*2]
We conclude that there is substantial evidence in therecord to support respondent's determination that Fiske was subjected to a hostile workenvironment and that her reduction in hours and termination were motivated by agediscrimination. A hostile work environment is one in which " 'the workplace is permeated withdiscriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter theconditions of the victim's employment and create an abusive working environment' " (Forrest v Jewish Guild for the Blind, 3NY3d 295, 310 [2004], quoting Harris v Forklift Systems, Inc., 510 US 17, 21[1993]; see Matter of New York StateDept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d 906, 906-907[2006]). Here, respondent credited the testimony of Fiske and another former waitress thatpetitioner and his wife, a de facto supervisor, called Fiske a "stupid old yaya"—a Greekterm for grandmother—in front of customers every day during the last several years of heremployment, frequently encouraged her to retire due to her age and would not allow her to dressin the same manner as younger waitresses. Given the frequency of this conduct, which wasoccasionally accompanied by threatening physical gestures, and the additional testimony of Fiskeregarding her resulting emotional distress, respondent's finding that a hostile work environmentexisted is amply supported by the record (see Matter of New York State Dept. of CorrectionalServs. v State Div. of Human Rights, 28 AD3d at 907; Matter of Grand Union Co. vMercado, 263 AD2d 923, 924-925 [1999]).
With respect to respondent's finding of age discrimination, we note that in order to establisha prima facie case of discrimination, a complainant must "show membership in a protected class,that he [or she] was qualified to hold [the] position and . . . was discharged undercircumstances giving rise to an inference of discrimination" (Matter of Bemis v New York State Div. of Human Rights, 26 AD3d609, 611 [2006]; see Forrest v Jewish Guild for the Blind, 3 NY2d at 305;Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). This burden was satisfiedthrough evidence that despite advertisements for the diner proclaiming her to be "The FinestWaitress in Binghamton," petitioner frequently suggested that Fiske retire, reduced her hours,and then ultimately terminated her, replacing her with a much younger waitress. Respondentrejected petitioner's nondiscriminatory explanation—that Fiske had never worked a fullfive days a week, any reduction in her hours was at her request, and that she quit after a disputeabout a customer's bill—as lacking in credibility and pretextual (see generally Forrest vJewish Guild for the Blind, 3 NY3d at 305). Indeed, we note that petitioner's explanation wascontradicted not only by Fiske's account but also by a customer who witnessed her firing andpetitioner's own statements on an unemployment insurance form. Inasmuch as respondent " 'isgranted discretion to resolve conflicting testimony and [this Court's] role is limited to assessingwhether the determination is supported by substantial evidence,' " there is no basis to disturbrespondent's finding that petitioner unlawfully discriminated against Fiske (Matter of Board of Educ. of New PaltzCent. School Dist. v Donaldson, 41 AD3d 1138, 1141-1142 [2007] [citation omitted];see Matter of Bemis v New York State Div. of Human Rights, 26 AD3d at 611-612).
We agree with petitioner, however, that the award of $45,000 in compensatory damages formental anguish and humiliation is not supported by the evidence. In reviewing such an award, wemust "determine whether the relief was reasonably related to the wrongdoing, whether the awardwas supported by evidence before [respondent], and how it compared with other awards forsimilar injuries" (Matter of New York City Tr. Auth. v State Div. of Human Rights, 78NY2d 207, 219 [1991]). While Fiske's testimony supports her contention that she sufferedhumiliation and anguish over an extended period of time, in light of past awards for comparableinjuries and "in the absence of any proof of the severity and consequences of her condition," weconclude that the evidence does not support a compensatory award in excess of $20,000(Matter of Town of Lumberland v New York State Div. of Human Rights, 229 AD2d631, 637 [1996]; [*3]see Matter of R & B Autobody & Radiator, Inc. v New York StateDiv. of Human Rights, 31 AD3d 989, 991 [2006]; Matter of State of New York vNew York State Div. of Human Rights, 284 AD2d 882, 884 [2001]; Matter of New YorkState Dept. of Correctional Servs. v State Div. of Human Rights, 241 AD2d 811, 812 [1997],lv denied 92 NY2d 807 [1998]; see also Matter of Bell v New York State Div. of Human Rights, 36AD3d 1129, 1132 [2007]).
Petitioner's remaining arguments, to the extent that they are not rendered academic by ourdetermination herein, have been considered and found to be lacking in merit.
Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination ismodified, without costs, by reducing the amount awarded for mental anguish and humiliationfrom $45,000 to $20,000, and, as so modified, confirmed.