Stasiak v. Montgomery Ward & Co., Inc.
| Decision Date | 21 December 1978 |
| Citation | 411 N.Y.S.2d 700,66 A.D.2d 962 |
| Parties | , 28 Fair Empl.Prac.Cas. (BNA) 1451 In the Matter of John J. STASIAK, Jr., Petitioner, v. MONTGOMERY WARD & CO., INC., Respondents. |
| Court | New York Supreme Court — Appellate Division |
John J. Stasiak, Jr., petitioner pro se.
Frank J. Warner, Jr., Albany, for respondent Montgomery Ward & Co.
Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, MAIN and MIKOLL, JJ.
Proceeding pursuant to section 298 of the Executive Law to review a determination of the State Human Rights Appeal Board, dated August 9, 1978, which affirmed an order of the State Division of Human Rights finding no probable cause to believe that the respondent, Montgomery Ward & Co., Inc., engaged in unlawful discriminatory practices based on race, color or sex.
Petitioner, a white male, contends that he was terminated from his position as an auditor with Montgomery Ward despite his seniority so that Montgomery Ward could preserve its minority affirmative action record. In support of this contention, petitioner has alleged that his supervisor told him he was being terminated because of a reduction in work force, but that two female auditors, one of whom was black, was retained despite the fact that they had less seniority. In response to petitioner's complaint filed with the State Division of Human Rights alleging both race and sex discrimination, Montgomery Ward contends that petitioner was the only auditor whose work performance was questionable and that, therefore, he was laid off first despite his seniority. In support of this contention, Montgomery Ward submitted a recent evaluation critical of petitioner's work and a salary sheet indicating that petitioner had not received a raise in over two years. Petitioner replied that he had never been informed that his performance was questionable. Following an investigation, the complaint was dismissed for lack of probable cause and the Human Rights Appeal Board affirmed the dismissal. This proceeding ensued.
In order to sustain a dismissal of a complaint before the complainant has had his opportunity to present his case in a formal manner, it must appear virtually as a matter of law that the complaint lacks merit (Glen Cove Public Schools v. New York State Human Rights Appeal Bd., 58 A.D.2d 591, 592, 395 N.Y.S.2d 493, 494; Mayo v. Hopeman Lbr. & Mfg. Co., 33 A.D.2d 310, 313, 307 N.Y.S.2d 691, 694, cf. Matter of Commissioner of N. Y. State Dept. of Civil Serv. v....
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...in and persuade a fair and detached fact finder' that that there is no substance in the complaint"); Stasiak v. Montgomery Ward & Co., 66 A.D.2d 962, 962, 411 N.Y.S.2d 700, 701 (1978) ("In order to sustain a dismissal of a complaint before the complainant has had his opportunity to present ......
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...merit." Robertson v. New York, 240 A.D.2d 504, 504, 659 N.Y.S.2d 773, 774 (2d Dept. 1997); Stasiak v. Montgomery Ward & Co., Inc., 66 A.D.2d 962, 962, 411 N.Y.S.2d 700, 701 (3d Dept. 1978). Notably, New York courts have not been entirely consistent in describing this standard, occasionally ......
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