Laverack & Haines, Inc. v. New York State Div. of Human Rights

• Decision Date: 14 July 1995
• Citation: 217 A.D.2d 955,629 N.Y.S.2d 595
• Court: New York Supreme Court — Appellate Division
• Parties: Matter of LAVERACK & HAINES, INC., Jardine, Emmet & Chandler, Aon Corporation, Sis, Sis of New York and Pinehurst Corporation, Petitioners, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Margarita Rosa, Commissioner, New York State Division of Human Rights, and George Burns, Respondents.

Page 595

629 N.Y.S.2d 595

217 A.D.2d 955

Matter of LAVERACK & HAINES, INC., Jardine, Emmet &

Chandler, Aon Corporation, Sis, Sis of New York and Pinehurst Corporation, Petitioners, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Margarita Rosa,

Commissioner, New York State Division of Human

Rights, and George Burns, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

July 14, 1995.

David W. Larrison, East Syracuse, for petitioners.

Lawrence Kunin, Gen. Counsel (Michael K. Swirsky, of counsel), New York City, for respondent--SDHR.

George F. Burns, Mexico, pro se.

Before DENMAN, P.J., and PINE, CALLAHAN, DOERR and BALIO, JJ.

MEMORANDUM:

Laverack & Haines, Inc. (petitioner) seeks to annul the determination of the New York State Division of Human Rights (SDHR) that found that petitioner unlawfully discriminated against complainant by terminating him from employment because of his age (see, Executive Law § 296[1][a]. We agree with SDHR that complainant made out a prima facie showing of age discrimination by establishing that petitioner terminated complainant and replaced him with a younger person. SDHR properly rejected petitioner's proffered nondiscriminatory reason for the job action, i.e., downsizing due to financial difficulties. There is substantial evidence to support the SDHR determination (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

SDHR properly awarded complainant back pay at the rate for a hearing representative position. It failed, however, to make any offset for unemployment insurance benefits and Social Security benefits received by complainant (see, Pioneer Group v. State Div. of Human Rights, 174 A.D.2d 1041, 1042, 572 N.Y.S.2d 207). Thus, the award of back pay must be reduced by the amount of those benefits.

We agree also with the SDHR determination that complainant is entitled to pension benefits; the matter must be remitted, however, for a determination of that amount. In addition, the SDHR determination that complainant is entitled to an award for mental anguish is supported by the testimony of complainant that he was "frightened to death" not to have a job at 63 and that he suffered loss of sleep and appetite. The amount awarded is excessive, however, and must be reduced from $25,000 to $10,000 (see, State Div. of Human Rights v. County of Onondaga Sheriff's Dept., 127 A.D.2d 986, 987, 513 N.Y.S.2d 68, affd. 71 N.Y.2d 623, 528 N.Y.S.2d 802, 524 N.E.2d 123).

Therefore, we remit this matter to SDHR to determine the award of back pay and complainant's pension benefits.

Determination modified on the law and as modified confirmed without costs and matter remitted to respondent New York State Division of Human Rights for further proceedings.

All concur except BALIO, J., who dissents and votes to annul the determination in the following Memorandum:

BALIO, J., (dissenting).

I agree with the majority that the New York State Division of Human Rights (SDHR) made out a prima facie showing of age discrimination. I am unable to agree, however, with the majority's conclusion that SDHR properly rejected the nondiscriminatory reason of Laverack & Haines, Inc. (petitioner) for terminating complainant from employment.

Petitioner established that, for financial reasons, it implemented a multi-faceted program for downsizing and cost-saving in 1982. That program included the sale of its insurance department and the elimination of the claims manager position at local offices. Although petitioner did offer the claims manager of the Buffalo office a demotion to the position of hearing representative, it offered the claims manager of the Albany office a part-time consulting position and retained the existing hearing representative in the Albany office. Petitioner likewise offered complainant, the claims manager in the Syracuse office, a part- time consulting position and retained the existing hearing representative.

"A reduction in work force due to economic conditions has been recognized as a legitimate, independent and nondiscriminatory reason...