Consolidated Edison Co. v. New York State Division of Human Rights , 160 A.D.2d 508 ( 1990 )

—In this CPLR article 78 proceeding transferred to this court by order of the Supreme Court, New York County (Herman Cahn, J.), entered on or about May 5, 1988, the order of the Commissioner of the State Division of Human Rights, dated January 19, 1988, which rejected the determination of the Administrative Law Judge and found that petitioner had discriminated against complainant on the basis of sex and race, and which directed, inter alia, that complainant be offered a supervisory position and awarded damages in the sum of $10,000 for mental anguish and humiliation, is unanimously annulled, the petition is granted, and the order vacated, without costs.

On August 12, 1983, complainant, Pamela Easton, an employee of the law department of petitioner, Consolidated Edison Company of New York, Inc., filed a complaint with the New York State Division of Human Rights (the Division), alleging that she had been "denied a transfer-promotion to a managerial position” because she is black and a woman. A public hearing pursuant to Executive Law § 297 was commenced on March 3, 1986 and continued on various dates thereafter until its conclusion on January 15, 1987. On September 15, 1987, Administrative Law Judge (AU) Rose Ferrandina issued recommended findings of fact, decision and order holding that the complainant had failed to prove the allegations of unlawful discrimination and dismissing the complaint.

By order dated January 19, 1988, the Commissioner rejected the ALJ’s determination and held that petitioner had "discriminated against Complainant on the basis of her sex and color, in violation of the Human Rights Law”. Pursuant to this finding, petitioner was ordered, inter alia, to pay complainant the sum of $10,000 as damages for hurt, humiliation and mental anguish, and to offer her a supervisory position with back pay and seniority.

In the instant proceeding, petitioner seeks judicial review pursuant to Executive Law § 298. The standard to be applied in reviewing a challenged administrative determination is whether it is supported by substantial evidence on the record as a whole. (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179-180.) Upon examination of the record, we conclude that the Commissioner’s determination fails to meet this standard.

The facts are essentially undisputed. Complainant, Pamela Easton, has worked in the calendar section of petitioner’s law department since 1975. Originally hired in the nonmanagerial position of clerk B, Ms. Easton received three promotions in approximately 2 1/2 years, gradually attaining one of the highest union, i.e., nonmanagement, positions, senior office assistant B.

In February 1982, Easton commenced a six-month maternity leave and, during this period, the supervisor of the calendar section, Thomas McLaughlin, unexpectedly resigned. Several people within the department, including Easton, were considered for the position.

Effective June 1982, the position of assistant calendar supervisor was offered to Charles Gallagher, a white male who had been employed by petitioner since 1976 and assigned to the calendar section as a clerk B in 1978. Although trained or "broken in” by Easton, who was a clerk A when Gallagher first began working in the calendar section, Gallagher had, by the following year, also reached the level of clerk A. Gallagher’s promotion to assistant calendar supervisor was granted with the understanding that his performance would be evaluated for six to eight months and, if he worked out well, he would be named calendar supervisor. In January 1983, Gallagher was promoted to the higher office.

Sometime thereafter, a decision was made to hire a second supervisor for the calendar section, and several of the law department’s employees, including two women, Cynthia Perez and Lorraine O’Sullivan, were approached, but none expressed an interest in the position. Advertisements were then placed in newspapers and, when they produced no satisfactory candidates, management again began to look within the law department. It was at this point that Easton and Daniel Mercado, a male hispanic, began to be considered for the position. Unlike Mercado, Easton had not first come to management to express an interest in the position.

After interviewing the two candidates and considering their relevant qualifications, Mercado was found to be the more qualified and, effective May 1, 1983, was named assistant calendar supervisor.

Although Easton did not receive the promotions in question, the record is devoid of support for the Commissioner’s conclusion that she was passed over "for reasons related to [her] sex and color”. Rather, the testimony of several management officials established that the successful candidates were in fact better qualified and possessed traits which merited additional recognition.

Thus, for example, both Gallagher and Mercado were college graduates while Easton was a high school graduate who had completed one semester of college. In addition, Gallagher and Mercado were experienced in the operation of computer terminals, a useful skill in the calendar section, which had begun to computerize its records as of late 1982. The evidence further established that Mercado had been a supervisor for approximately six years before being employed by petitioner, while Easton had no supervisory experience whatsoever.

Included in the testimony of the various supervisors and other management officials were other considerations, such as those relating to work habits and attitudes. Mercado was described as being dedicated, "giv[ing] 100%”, and putting in long days, which often included taking no more than half an hour for lunch. Similarly, Gallagher had demonstrated to his supervisors a "real eagerness to get the job done” and "was not a clock watcher * * * would stay late, [and was] very industrious”. In contrast, Easton, who was considered a good employee, did not exhibit the degree of motivation found in the other candidates. For example, while Mercado and Gallagher would complete assignments and exercise initiative to find out what more needed to be done, Easton would finish a task and simply await the assignment of another.

Thus, the record contains "legitimate, independent and nondiscriminatory reasons to support [petitioner’s] decision”, which suffice to rebut a prima facie case of discrimination. (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938-939.) Moreover, this record simply does not contain any evidence that the selection of Mercado and Gallagher over complainant was in any way motivated by considerations either of race or sex. Indeed, with respect to the claims of sex discrimination, we note that two women were first offered the position ultimately accepted by Mercado. In the absence of any such proof, it was improper for the Division to substitute its judgment for that of the petitioner employer. (See, Matter of New York Tel. Co. v Wethers, 36 AD2d 541, affd 30 NY2d 791.)

In light of this determination, we need not reach the remaining issues raised on appeal. Concur—Ross, Asch and Kassal, JJ. Smith, J., dissents in a memorandum and Kupferman, J. P., concurs in the dissent in a separate memorandum, all as follows: