Opinion
September 26, 1995
Appeal from the Supreme Court, Bronx County [Lottie Wilkins, J.].
Respondent Division's determination that respondent employer, a medical college, did not discriminate against petitioner employee, a phlebotomist, based on her HIV-positive disability, when it reassigned her to the billing department, is supported by substantial evidence ( see, Matter of Consolidated Edison Co. v New York State Div. of Human Rights, 77 N.Y.2d 411, 417-418) that petitioner knew of the employer's policy requiring employees to wear gloves on both hands when drawing blood and violated that policy on at least three occasions, and that the employer was unaware of similar infractions by any other employee. We note that fact-finding responsibility is lodged with the Division's Commissioner (Executive Law § 297 [c]), who is not bound by the Hearing Examiner's recommendation, who in this case was not the Hearing Officer who heard and saw the witnesses ( see, Matter of Simpson v Wolansky, 38 N.Y.2d 391, 394). We have reviewed petitioner's remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Kupferman, Ross and Tom, JJ.