State Div. of Human Rights v. Jamestown Tel. Corp.

• Decision Date: 12 July 1976
• Citation: 386 N.Y.S.2d 141,53 A.D.2d 1061
• Parties: , 19 Fair Empl.Prac.Cas. (BNA) 664 STATE DIVISION OF HUMAN RIGHTS on complaint of Barbara ELLIS and Judith Newman, Respondents, v. JAMESTOWN TELEPHONE CORPORATION, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 141

386 N.Y.S.2d 141

53 A.D.2d 1061, 19 Fair Empl.Prac.Cas. (BNA) 664

STATE DIVISION OF HUMAN RIGHTS on complaint of Barbara ELLIS and Judith Newman, Respondents, v. JAMESTOWN TELEPHONE CORPORATION, Petitioner.

Supreme Court, Appellate Division, Fourth Department.

July 12, 1976.

George, Greek, King, McMahon & McConnaughey, Columbus, Ohio, William R. Blood, Jamestown, for petitioner.

Beverly Gross, Ann Anderson, New York City, for respondents.

Before CARDAMONE, J.P., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

MEMORANDUM:

This is a proceeding under section 298 of the Executive Law by Jamestown Telephone Corporation, petitioner, against the New York State Division of Human Rights, Barbara Ellis and Judith M. Newman, respondents, for review and annulment of the determination by the respondent Division, dated June 13, 1974, affirmed by the State Human Rights Appeal Board on June 30, 1975 and served on petitioner on January 30, 1976, that petitioner discriminated against respondents Ellis and Newman because of sex, with respect to the terms and conditions of their employment, concerning their maternity leaves and permission to return to work after confinement for childbirth.

Petitioner contends that the Division erred (1) in finding substantial evidence to support the charges by respondents Ellis and Newman of discrimination against them, (2) in entertaining the charges before respondent women had exhausted their contractual remedies with respect to grievance and arbitration procedures provided for in their collective bargaining agreement, and respondent women had exhausted their contractual deferment of their complaints to respondent Division until they have explored their contractual rights, (3) in failing to comply with the 60-day provision of subdivision 4 of section 297 of the Executive Law, and so the complaints should be dismissed and (4) in holding that petitioner discriminated against respondent women and in ordering petitioner to make monetary payments to them. Petitioner contends (5) that respondent women, Ellis and Newman, respectively declined to continue to work or return to work when authorized, and had no intention of working during the periods of their pregnancies when they did not work and the Division erred in ordering petitioner to pay them back pay. This point, logically is part of petitioner's point (1) above, and we so treat it.

The record contains substantial evidence to support the Commissioner's findings and conclusions, adopted by the Division, that petitioner did in fact discriminate against Ellis and Newman by requiring them to quit work two months before their expected delivery dates and not authorizing their early return to work after delivery; by refusing to permit them to apply their sick leave credits to such absences; and by refusing to continue to pay the premiums on their Blue Cross and Blue Shield insurance coverages; and that said respondents were willing to work and were denied work for the respective periods designated by the Commissioner; and so we are concluded on these questions of fact (State Division of Human Rights on Complaint of Gilinsky v. Columbia University, 39 N.Y.2d 612, 385 N.Y.S.2d 19, 350 N.E.2d 396, decided June 8, 1976; Executive Law, § 298).

Petitioner's point (2) is without merit in law. Respondents Ellis and Newman were not required to exhaust their contractual remedies...