| Matter of New York State Energy Research & Dev. Auth. v New YorkState Div. of Human Rights |
| 2008 NY Slip Op 03368 [50 AD3d 1361] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of New York State Energy Research and DevelopmentAuthority, Petitioner, v New York State Division of Human Rights et al.,Respondents. |
—[*1] Meredith H. Savitt, P.C., Albany (Meredith H. Savitt of counsel), for Ian A. Nitschke,respondent.
Lahtinen, J. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination of respondentState Division of Human Rights which, among other things, found petitioner guilty of anunlawful discriminatory practice based on gender.
In 1989, respondent Ian A. Nitschke applied for a position as an energy manager withpetitioner, a public authority that promotes innovative energy research. Nitschke had a doctoratein physics and nine years of energy research experience, including working on many projectssponsored by petitioner. He was one of two finalists for the job. The other was a female with aMaster's degree in engineering and virtually no relevant work experience. According to Nitschke,several employees of petitioner who interviewed him indicated with varying degrees ofspecificity that a female would be preferred for the position. The female candidate was hired inSeptember 1989. Subsequently, in May 1990, Nitschke obtained a job with the Department ofPublic Service, which works in conjunction with petitioner on some projects. Nevertheless, inJune 1990, he filed a complaint with respondent State Division of Human Rights (hereinafter[*2]SDHR) alleging that petitioner had engaged in an unlawfuldiscriminatory practice by not hiring him because of his gender. He contends that after filing thecomplaint, petitioner retaliated against him by, among other things, having him removed from apanel he served on at his job that interacted with petitioner.
Following protracted delays and two hearings, the SDHR determined that petitioner hadunlawfully discriminated against Nitschke on the basis of gender and also found merit to some ofhis retaliation contentions. The SDHR awarded him damages of $17,411.60 for back wages,$10,000 for emotional pain and suffering, and $20,000 as compensatory damages for theretaliatory conduct. This proceeding by petitioner ensued.
Determinations by the SDHR are "entitled to considerable deference due to its expertise inevaluating discrimination claims" (Matter of Matteo v New York State Div. of HumanRights, 306 AD2d 484, 485 [2003]; Matter of Phillips, 222 AD2d 592, 592 [1995])."In reviewing the [SDHR's] findings, the court is limited to determining whether those findingsare supported by substantial evidence (see, 300 Gramatan Ave. Assoc. v State Div. ofHuman Rights, 45 NY2d 176, 180) and may not weigh the evidence or reject the [SDHR's]determination 'where the evidence is conflicting and room for choice exists' " (Matter ofManhattan & Bronx Surface Tr. Operating Auth. v New York State Exec. Dept., 220 AD2d668, 668 [1995], quoting City of New York v State Div. of Human Rights, 70 NY2d 100,106 [1987]; see Executive Law § 298). "A determination may not be set aside'merely because the opposite decision would have been reasonable and also sustainable' "(Matter of Matteo v New York State Div. of Human Rights, 306 AD2d at 485, quotingMatter of Mize v State Div. of Human Rights, 33 NY2d 53, 56 [1973]).
Nitschke testified that two of petitioner's employees with whom he had prior businessrelationships (including Gunnar Walmet, who had primary authority regarding the hiringdecision) stated to him during their interviews with him that there was internal agency pressure tohire a female candidate. He related that, during a wrap-up interview, these individuals indicatedthat, because of the internal pressure, they would take a risk on a female candidate with very littleexperience. He further testified that, during his interview with petitioner's manager of humanresources, he suggested that he had qualifications superior to those of the female candidate andthe manager "became quite hostile to [him] and indicated that there was a very serious need tohire women candidates." While petitioner contends that this evidence is hearsay, such evidencemay be considered in an administrative proceeding of this nature (see Matter of Bellamy v New York StateDiv. of Human Rights, 8 AD3d 269, 270 [2004]; Matter of Butler v Nassau CountyCiv. Serv. Commn., 175 AD2d 159, 161 [1991]). Walmet's denial that he had made thestatements attributed to him by Nitschke or otherwise considered gender in making his decisioncreated a credibility issue for the SDHR. Moreover, Walmet's explanation that he preferred thecandidate with virtually no relevant experience because she might be innovative is in directconflict with the job vacancy notice which stated that experience was "highly desirable." TheSDHR also noted that the references of the candidates were treated differently in that bothreceived negative comments, but the detrimental information regarding the female candidate wasessentially ignored. While the case could have been decided differently on this record, theevidence is nevertheless sufficient to support the SDHR's finding under the discrimination rubric(see generally Forrest v Jewish Guild forthe Blind, 3 NY3d 295, 305 [2004]; Matter of Town of Lumberland v New YorkState Div. of Human Rights, 229 AD2d 631, 635 [1996]) and, in light of our scope ofreview, we are unpersuaded that the determination must be annulled.[*3]
The record further supports the retaliation determination.Although petitioner was not Nitschke's employer when the retaliation occurred, that does notnecessarily foreclose a finding of retaliation under the circumstances of this case (seegenerally Wanamaker v Columbian Rope Co., 108 F3d 462, 466 [2d Cir 1997]; DuBois vState of New York, 966 F Supp 144, 148 [ND NY 1997]). Petitioner and Nitschke'semployer had a very close working relationship on some projects. As part of his job within theOffice of Electricity and Environment of the Department of Public Service, Nitschke wasassigned to serve on technical evaluation panels. Those panels were part of an evaluation processdeveloped by petitioner, the panels reviewed energy research proposals received by petitioner andthey included a representative from Nitschke's employer. Petitioner exerted its influence withNitschke's employer to have him removed from a panel because he had filed the discriminationcomplaint against petitioner and to have him precluded from all future panels, detrimentallyaffecting his employment.
Finally, we have considered and find unavailing petitioner's argument that the award wasimproper. "[T]he [SDHR] has broad powers to adopt measures which [it] reasonably deemsnecessary to redress the injury" (Matter of Imperial Diner v State Human Rights AppealBd., 52 NY2d 72, 79 [1980]; see Matter of New York City Tr. Auth. v State Div. ofHuman Rights, 78 NY2d 207, 217 [1991]). The award is supported by the evidence and doesnot deviate markedly from comparable awards for similar injuries (see Matter of State Div. ofHuman Rights v Muia, 176 AD2d 1142, 1144-1145 [1991]).
Cardona, P.J., Carpinello, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.