IN RE: COUNTY OF ONONDAGA (2010)

MEMORANDUM AND ORDER

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [John C. Cherundolo, A.J.], entered May 19, 2010) to review a determination of respondent New York State Division of Human Rights.   The determination, among other things, directed petitioner to reinstate respondent Brian Mayock to a supervisory position and awarded respondent Brian Mayock the sum of $43,000 as compensatory damages for his lost wages and mental anguish.

It is hereby ORDERED that the determination is unanimously confirmed without costs, the petition is dismissed and the cross petition is granted.

Memorandum:  Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) that it unlawfully discriminated against respondent Brian Mayock (complainant), a probation officer, based on his sexual orientation by refusing to transfer him to positions that he previously had held, supervising individuals on probation.   In addition, the determination provided that complainant should be reinstated to a position supervising probationers.   Based on our review of the record, we confirm the determination and grant the cross petition of SDHR seeking to enforce it inasmuch as it is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 179-180;  Matter of New Venture Gear, Inc. v New York State Div. of Human Rights, 41 AD3d 1265, 1266-1267).   “It is peculiarly within the domain of the Commissioner [of SDHR], who is presumed to have special expertise in the matter, to assess whether the facts and the law support a finding of unlawful discrimination” (Matter of Club Swamp Annex v. White, 167 A.D.2d 400, 401, lv denied 77 N.Y.2d 809) and, “when a rational basis for the conclusion adopted by the Commissioner is found, the judicial function is exhausted” (Matter of State Div. of Human Rights [Granelle], 70 N.Y.2d 100, 106).   Contrary to petitioner's contention, we conclude that a rational basis exists for the determination that complainant established a prima facie case of discrimination by a preponderance of the evidence (see generally Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629).   Furthermore, there is a rational basis for the determination that petitioner's decision “to penalize Complainant indefinitely was unreasonable and pretextual” and thus that petitioner failed to rebut the presumption of discrimination by failing to provide nondiscriminatory reasons to support its decision (see generally Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305;  Ferrante, 90 N.Y.2d at 629-630).

Patricia L. Morgan

Clerk of the Court