Opinion
2011-12-20
In the Matter of Arthur J. HERBERT, petitioner, v. Galen D. KIRKLAND, etc., et al., respondents.
Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for petitioner. Fulbright & Jaworski, LLP, New York, N.Y. (Douglas P. Catalano and Neil G. Sparber of counsel), for respondent New York Institute of Technology.
Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for petitioner. Fulbright & Jaworski, LLP, New York, N.Y. (Douglas P. Catalano and Neil G. Sparber of counsel), for respondent New York Institute of Technology.
Proceeding pursuant to Executive Law § 298 to review a determination of the Commissioner of the New York State Division of Human Rights dated September 9, 2010, which adopted the recommendation and findings of an administrative law judge dated January 20, 2010, made after a hearing, finding that the petitioner did not establish that New York Institute of Technology discriminated against him in the terms, conditions, and privileges of his employment based upon his disability, in violation of Executive Law § 296, and dismissed the administrative complaint.
ADJUDGED that the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits, with costs to the respondent New York Institute of Technology, payable by the petitioner.
Even had the petitioner established a prima facie case of discrimination ( see Matter of McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019; Koester v. New York Blood Ctr., 55 A.D.3d 447, 448, 866 N.Y.S.2d 87), substantial evidence supports the determination of the Commissioner of the New York State Division of Human Rights that the petitioner's employer, New York Institute of Technology, had a legitimate, nondiscriminatory reason for terminating the petitioner from its employ, and that he did not show that this reason was a pretext for discrimination ( see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183; Matter of Sauer v. Donaldson, 49 A.D.3d 656, 657, 853 N.Y.S.2d 610; Genesky v. Local 1000, AFSCME, AFL–CIO, CSEA, 287 A.D.2d 594, 595, 731 N.Y.S.2d 758).