State Division of Human Rights On Complaint of Davey v. Commissioner of New York State Dept. of Civil Service
| Decision Date | 07 April 1977 |
| Court | New York Supreme Court — Appellate Division |
| Parties | , 26 Fair Empl.Prac.Cas. (BNA) 1444 STATE DIVISION OF HUMAN RIGHTS on the complaint of Mary K. DAVEY, Petitioner, v. COMMISSIONER OF NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, and Commissioner of New York State Department of Social Services, Assistant Commissioner Carmen Shang, Respondents. |
Condon, Klocke, Ange, Gervase & Sedita, Grace Ange, Buffalo, for petitioner Davey.
Beverly Gross, State Div. of Human Rights, Laurence Kunin, Croton-on-Hudson, for petitioner State Div. of H.R.
Louis J. Lefkowitz, New York City, Douglas Cream, Buffalo, for respondents.
Before MARSH, P. J., and MOULE, CARDAMONE, GOLDMAN and WITMER, JJ.
The State Human Rights Appeal Board dismissed the appeal of Mary K. Davey, petitioner, holding that it had been divested of its jurisdiction to determine the appeal on the merits because petitioner had instituted an Article 78 proceeding.
Petitioner is a Hearing Officer employed by the New York State Department of Social Services. She filed a complaint with the State Division of Human Rights on March 12, 1974 charging the Department of Social Services and the Department of Civil Service with discrimination in connection with the appointment of a certain male instead of petitioner to the position of Supervising Hearing Officer of the Social Services Department for the Buffalo Region.
On October 2, 1974 petitioner commenced an Article 78 proceeding seeking inter alia mandamus relief against the State Division of Human Rights to require it to proceed immediately with a public hearing on her complaint. At that time, seven months had elapsed since petitioner had filed her original complaint. On October 18, 1974, prior to the October 24th return date of the Article 78 proceeding, the Division issued a determination finding "no probable cause" on her complaint of discrimination. Petitioner promptly appealed this determination to the Human Rights Appeal Board on October 24, 1974.
Subsequently, Special Term dismissed the Article 78 proceeding as moot and later amended its order and directed a hearing to inquire whether the provisional Supervising Hearing Officer for the Buffalo Region should be removed and the petitioner declared eligible for the post. Following such a hearing, Special Term on October 7, 1975 dismissed the petition on the merits.
The appeal from the Division's finding of "no probable cause" was dismissed by the State Appeals Board in May, 1976.
Subdivision 9 of section 297 of the Human Rights Law contains an election of remedies provision that any person aggrieved by an unlawful discriminatory practice shall have a cause of action in any appropriate court for damages "unless such person had filed a complaint" with the State...
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