| Noho Star Inc. v New York State Div. of Human Rights |
| 2010 NY Slip Op 02843 [72 AD3d 448] |
| April 6, 2010 |
| Appellate Division, First Department |
| Noho Star Inc., Petitioner, v New York State Division ofHuman Rights et al., Respondents. |
—[*1] Caroline J. Downey, Bronx (Toni Ann Hollifield of counsel), for New York State Divisionof Human Rights, respondent. Brown & Gropper, LLP, New York (James A. Brown of counsel), for Ching Fai To,respondent.
Determination of respondent State Division of Human Rights, dated September 12, 2008,inter alia, awarding complainant damages upon a finding that his employment as a cook wasterminated by petitioner restaurant in retaliation for his having agreed to provide assistance toanother complainant in a proceeding alleging discrimination in violation of the State HumanRights Law, unanimously confirmed, the petition denied, the proceeding brought pursuant toCPLR article 78 (transferred to this Court by order of the Supreme Court, New York County[Marilyn Shafer, J.], entered March 24, 2009), dismissed, and the cross petition for enforcementof the determination granted, without costs.
The finding that complainant established a prima facie case of retaliatory discharge issupported by substantial evidence (see generally Matter of State Div. of Human Rights[Granelle], 70 NY2d 100, 106 [1987]) that petitioner terminated complainant within a dayafter it learned that he had agreed to be a witness in support of a discrimination complaint filedwith respondent Division by petitioner's former first cook. Statutory protection extends to anemployee who is named as a voluntary witness in a discrimination proceeding although nevercalled on to testify (Jute v Hamilton Sundstrand Corp., 420 F3d 166, 168 [2d Cir 2005];cf. Unotti v American Broadcasting Cos., 273 AD2d 68 [2000]; Sorrentino v BohbotEntertainment & Media, 265 AD2d 245, 245-246 [1999]), and a causal connection betweena protected activity and an adverse employment action can be inferred from evidence that theprotected activity was followed closely by discriminatory treatment (DeCintio v WestchesterCounty Med. Ctr., 821 F2d 111, 115 [2d Cir 1987], cert denied 484 US 965 [1987];see Velez v Frion Realty Corp., 300 AD2d 103 [2002]).
No basis exists to disturb the findings of credibility rejecting the testimony of petitioner'switnesses that they did not know that complainant had agreed to assist the former first cook, andthat the decision to terminate him had been made weeks earlier based on his lack of cooperationin training new chefs hired to replace the former first cook and reluctance to make certain types[*2]of desserts (see Granelle, 70 NY2d at 106). Thewitnesses' testimony in the latter regard was contradicted by the evidence that, just weeks beforeterminating complainant, petitioner had offered him a promotion to the first cook positionbecause he was a good chef who was qualified for the position. Nor did petitioner offer anydocumentation of its dissatisfaction with complainant's work.
Substantial evidence also supports the awards for emotional distress and back pay, andoffsets in favor of petitioner were properly denied on a record that contains no evidence as to theamount of any unemployment benefits or other income received by complainant (see ExxonShipping Co. v New York State Div. of Human Rights, 303 AD2d 241, 241-242 [2003],lv denied 100 NY2d 505 [2003]; Executive Law § 297 [4] [c]; see generallyMatter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216-217[1991]). Concur—Friedman, J.P., Sweeny, DeGrasse, Richter and Manzanet-Daniels, JJ.