City of Schenectady v. State Division of Human Rights

• Court: New York Court of Appeals
• Writing for the Court: COOKE; JASEN; BREITEL, C.J., and JONES, WACHTLER and FUCHSBERG, JJ., concur with COOKE; JASEN, J., dissents and votes to affirm in a separate opinion in which GABRIELLI
• Citation: 335 N.E.2d 290,37 N.Y.2d 421,373 N.Y.S.2d 59
• Parties: , 335 N.E.2d 290, 35 Fair Empl.Prac.Cas. (BNA) 823, 10 Empl. Prac. Dec. P 10,449 CITY OF SCHENECTADY et al., Respondents, v. STATE DIVISION OF HUMAN RIGHTS, Appellant, and Schenectady Patrolmen's Benevolent Association, Intervenor-Respondent.
• Decision Date: 08 July 1975

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373 N.Y.S.2d 59 37 N.Y.2d 421, 335 N.E.2d 290, 35
Fair Empl.Prac.Cas. (BNA) 823,
10 Empl. Prac. Dec. P 10,449 CITY OF SCHENECTADY et al., Respondents,
v.
STATE DIVISION OF HUMAN RIGHTS, Appellant, and Schenectady
Patrolmen's Benevolent Association, Intervenor-Respondent. Court of Appeals of New York. July 8, 1975.

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Ann Thacher Anderson and Henry Spitz, New York City, for appellant.

Rosario Negri, Corp. Counsel, Schenectady (Thomas B. Hayner, Schenectady, of counsel), for respondents.

COOKE, Judge.

The question in issue on this appeal is whether there was substantial evidence to sustain the determination of the Commissioner of the State Division of Human Rights, as to discriminatory action by respondents City of Schenectady, the City of Schenectady Department of Police and the Chief of Police thereof. The complainant, a woman, had the right to be considered for appointment to the position of police sergeant and could not be denied consideration because of her sex.

Article 15 of the Executive Law, under the heading of the Human Rights Law, is deemed 'an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state' (Executive Law, § 290, subd. 2). The Legislature therein found and declared that the State 'has the responsibility to act to assure that every individual within this state is afforded an equal opportuni to enjoy a full and productive life' (Executive Law, § 290, subd. 3), and equal opportunity for employment is basic to that enjoyment (State Div. of Human Rights v. Kilian Mfg. Corp., 35 N.Y.2d 201, 207, 360 N.Y.S.2d 603, 608, 318 N.E.2d 770, 774). Section 296 thereof provides, in pertinent part, that '1. It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of the * * * sex * * * of any individual, to refuse to hire or employ or to bar * * * from employment such individual or to discriminate against such individual in * * * terms, conditions or privileges of employment.'

After notice and hearing, the Commissioner of the State Division of Human Rights determined and found that the City of Schenectady, its Department of Police and the Chief of Police thereof committed unlawful discriminatory practices against complainant Eva S. Hawkins 'by denying her an opportunity to become a Police Sergeant and by denying her the opportunity to transfer from one assignment to another because of her sex', in violation of the Human Rights Law (see Executive Law, § 297, subd. 4, par. c). The city and

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its Police Department and chief were ordered to offer to complainant the next available position of police sergeant and to pay to her as compensatory damages from August 3, 1971, the date complainant was certified by the Schenectady County Civil Service Commission, to the date said position is offered to her, the difference between her salary as a policewoman and what she would have earned had she been appointed a police sergeant. The record demonstrates that the State Human Rights Appeal Board had the right, as it did, to affirm the Division's findings of discrimination and to rule that they were supported by substantial evidence on the whole record (Executive Law, § 297--a, subd. 7). Since said findings of fact, on which the order of the Appeal Board is based, are supported by sufficient evidence on the record as a whole, they are conclusive (Executive Law, § 298) and should not have been disturbed. In making those findings, it was not necessary that the commissioner detail all items of evidence (see Matter of Dusinberre v. Noyes, 284 N.Y. 304, 308, 31 N.E.2d 34, 36; Matter of Scudder v. O'Connell, 272 App.Div. 251, 253--254, 70 N.Y.S.2d 607, 609; 146 A.L.R. 209, 229).

As the result of passing an examination (at the top of the list), complainant was appointed in 1956 as a Meter Attendant of the City of Schenectady, in which position she served for about seven months, mainly tagging cars for parking violations. After taking, passing and receiving the highest mark on a civil service examination for city policewoman, she was appointed to said position in 1957 and assigned to the Youth Aid Bureau. In said post, she investigated possible cases of neglect, patrolled areas of likely delinquency, went to court, referred matters to agencies, served warrants, was detailed to strike duty, ran spot checks of bars and worked day and night shifts.

In May, 1967, complainant took a civil service examination for the position of police sergeant, finishing as number eight, and, based on said test, a list was established on August 17, 1967. The list did not expire until four years later, extensions having been granted, and by July of 1971 complainant ranked third on the list. Officers Nelson and Small, both men, then ranked first and second respectively. The announcement for the 1967 promotional examination for police sergeant had listed at least four years service as a police patrolman as a minimum qualification, but the Schenectady County Civil Service Commission deemed that complainant had equivalent experience and could take the exam.

In 1971 complainant was certified eligible for appointment to the position of police sergeant and she and the two others certified appeared before an Oral Review Board. This board was esablished pursuant to a labor relations contract between the city and the Schenectady Patrolmen's Benevolent Association which provided that

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it be made up of 'three (3) disinterested persons, not residents of the City, one of whom shall be an expert in the field, who will examine the qualifications of the ranking applicants' and that it recommend to the city manager the name of the applicant, in its opinion best qualified, said recommendation being advisory. It also provided that in determining preference, for the purpose of promotions, seniority within rank shall control, all other conditions being equal. The review board at the time in question consisted of Chief Flater, Chief of the Town of Colonie Police Department, the head of an advertising agency and the third member, a bank official or postmaster. Chief Flater was the member considered as the expert in police work. When complainant appeared before the review board, no questions were asked of her about police work as such, but inquiries were made as to how her husband and son felt about her being a policewoman and as to whether she was afraid. Chief Flater stated that she was an excellent investigator, that it was too bad there were not any promotions within the Youth Aid Bureau, and that with her ability and knowledge she was certainly entitled to be a sergeant 'but you know, its just too bad there weren't any openings.' The Oral Review Board then recommended the appointment of Officer Nelson, who passed the written examination with a higher mark, but who possessed less seniority within the Police Department than complainant.

Later, Chief Flater told a representative of the Division of Human Rights that 'she (complainant) was extremely capable in her work; but the job in question was a Police Sergeant's job and he did not feel Investigator Hawkins should be a police sergeant because of the fact that she is a female.' Flater also stated that, even with her qualifications, he would not pick her for said position over a man. He told complainant that it was too bad she was a woman. In the administrative hearing (see Matter of Brown v. Ristich, 36 N.Y.2d 183, 189--190, 366 N.Y.S.2d 116, 122, 325 N.E.2d 533, 537; Matter of Sowa v. Looney, 23 N.Y.2d 329, 333, 296 N.Y.S.2d 760, 763, 244 N.E.2d 243, 245), the representative testified on cross-examination that, after interviewing the Schenectady City Manager, Chief of Police, a Lieutenant De Luca and others, he reported to a superior that 'it was their consensus that because she (complainant) was a female she couldn't be used in barroom brawls, riots, strifes, domestic strifes, rescue work, suicide attempts, escorting prisoners to jail or court.'

Complainant is one of only two female police officers employed on the Schenectady police force, both of whom are assigned exclusively to the Youth Aid Bureau. Although service as a patrolman was listed as a requirement for promotion to a sergeancy, a woman would not have been admitted to a patrolmen's examination. There are no positions known as policewoman sergeant in the City of Schenectady.

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The second instance of alleged discrimination took place on September 9, 1971, when complainant was passed over for two assignment vacancies for 'Patrolmen for general patrol duty.' Patrolmen interested had been asked to sign a bid sheet and the two males selected had less seniority than complainant, although the labor relations contract recited that the city was in accord with the principle that seniority should be a major factor in filling work assignments by superior officers, provided that, all other conditions being equal, the employee is fully qualified to perform the duties required. Responding to complainant's 'Request for Information', the chief of police wrote that, in view of the general statement of duties listed for 'Police Patrolman' and 'Policewoman', 'in my opinion it is not a question of any special qualifications. It is quite apparent that the position for which you were employed and the position of Police Patrolman...