Opinion
05-05-2017
In the Matter of Aleksandr KLIMOV, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS and New York State Department of Transportation, Respondents.
Chiacchia & Fleming, LLP, Hamburg (Lisa A. Poch of Counsel), for Petitioner. Aaron M. Woskoff, Bronx, for Respondent New York State Division Of Human Rights. Eric T. Schneiderman, Attorney General, Albany (Joseph M. Spadola of Counsel), for Respondent New York State Department of Transportation.
Chiacchia & Fleming, LLP, Hamburg (Lisa A. Poch of Counsel), for Petitioner.
Aaron M. Woskoff, Bronx, for Respondent New York State Division Of Human Rights.
Eric T. Schneiderman, Attorney General, Albany (Joseph M. Spadola of Counsel), for Respondent New York State Department of Transportation.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking to annul that part of the determination of respondent New York State Division of Human Rights (SDHR) that dismissed his complaint to the extent that he alleged unlawful discrimination based on national origin. SDHR filed a cross petition seeking to confirm and enforce that part of the determination finding that respondent New York State Department of Transportation (employer) unlawfully retaliated against petitioner, awarding him compensatory damages, and imposing a civil fine on the employer. The proceeding arises from a complaint filed by petitioner after the employer declined to promote him to a supervisory position. Petitioner was born in the former Soviet Union, and English is his second language.
Our review of an administrative determination made after a hearing is limited to whether it is supported by substantial evidence (see Matter of Town of Islip v. New York State Pub. Empl. Relations Bd., 23 N.Y.3d 482, 492, 991 N.Y.S.2d 583, 15 N.E.3d 338 ; Matter of Russo v. New York State Div. of Human Rights, 137 A.D.3d 1600, 1600, 28 N.Y.S.3d 156 ). "An administrative agency's determination need not be the only rational conclusion to be drawn from the record[, and] the existence of other, alternative rational conclusions does not warrant annulment of the agency's conclusion" (Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 239, 660 N.Y.S.2d 352, 682 N.E.2d 953 ). It is well settled that, "in making a substantial evidence determination, we do not weigh the evidence or assess the credibility of the testimony presented" (Matter of DeOliveira v. New York State Pub. Empl. Relations Bd., 133 A.D.3d 1010, 1011, 19 N.Y.S.3d 627 [internal quotation marks omitted]; see Matter of Chenango Forks Cent. Sch. Dist. v. New York State Pub. Empl. Relations Bd., 21 N.Y.3d 255, 267, 970 N.Y.S.2d 900, 993 N.E.2d 386 ). We conclude that there is substantial evidence to support the determination that the employer did not discriminate against petitioner based on national origin. Even assuming, arguendo, that petitioner met his burden of establishing a prima facie case of discrimination based on national origin, we conclude that the employer "presented a legitimate, independent and nondiscriminatory reason to support its decision to offer the position to another employee" (Matter of Scheuneman v. New York State Div. of Human Rights, 147 A.D.3d 1523, 1524, 47 N.Y.S.3d 834 ; see generally Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). At the hearing, members of the employer's interview committee testified that petitioner was not selected for promotion based on their concerns that he could not communicate effectively in the English language. Contrary to petitioner's contention, an employment determination based solely on a person's ability to communicate in the English language is not based on national origin when such skills are "reasonably related" to the position (Fragante v. City & County of Honolulu, 888 F.2d 591, 596–597, cert. denied 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 ; see Velasquez v. Goldwater Mem. Hosp., 88 F.Supp.2d 257, 262 ; see generally People v. Aviles, 28 N.Y.3d 497, 502–503, 46 N.Y.S.3d 478, 68 N.E.3d 1208 ).
We agree with the employer that the cross petition must be dismissed as moot inasmuch as there is no dispute that the employer has satisfied its obligations under the determination (see generally Matter of Clark v. New York State Dept. of Corr. & Community Supervision, 138 A.D.3d 1331, 1332, 28 N.Y.S.3d 639 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs, and the petition and cross petition are dismissed.