IN RE: Vincent A. SAUER (2008)

Proceeding pursuant to CPLR article 78 to review a determination of Michelle Cheney Donaldson, as Commissioner of the New York State Division of Human Rights, dated March 20, 2006, which confirmed the recommendation of an Administrative Law Judge, made after a hearing, and determined that Delta Air Lines, Inc., did not discriminate against the petitioner on the basis of age.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs to the respondent Delta Air Lines, Inc.

The petitioner is a former employee of Pan American Air Lines (hereinafter Pan Am).   In 1992, he filed a complaint with the New York State Division of Human Rights alleging that Delta Air Lines, Inc. (hereinafter Delta), unlawfully discriminated against him in violation of Executive Law § 296(1)(a) by refusing to hire him on the basis of his age when he applied for a job with Delta after it acquired a portion of Pan Am.

 In a CPLR article 78 proceeding to review a determination of an administrative agency made after a hearing required by law, and at which evidence was taken, the agency's determination must be upheld if it is supported by substantial evidence (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).   In the instant case, the determination of the Commissioner of the New York State Division of Human Rights should be confirmed since there was substantial evidence to support the conclusion that Delta did not deny the petitioner's application for employment on the basis of age (see 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   While the petitioner established a prima facie case of discrimination, the record supports the Commissioner's finding that Delta utilized a permissible seniority-based hiring program by which employees were generally hired according to seniority from each specific department (see Matter of Delta Air Lines v. New York State Div. of Human Rights, 91 N.Y.2d 65, 73-74, 666 N.Y.S.2d 1004, 689 N.E.2d 898).   Delta provided a legitimate, non-discriminatory reason for its hiring decision, and the petitioner did not show that this reason was a pretext for discrimination (see Stephenson v. Hotel Empls. and Rest. Empls. Union Local 100 of AFL-CIO, 6 N.Y.3d 265, 271, 811 N.Y.S.2d 633, 844 N.E.2d 1155;  Matter of Laverack & Haines, Inc. v. New York State Div. of Human Rights, 88 N.Y.2d 734, 738-739, 650 N.Y.S.2d 76, 673 N.E.2d 586).