Opinion
July 23, 1973
Proceeding pursuant to section 298 Exec. of the Executive Law to review an order of the State Human Rights Appeal Board, dated May 8, 1972, which (a) reversed an order of the State Division of Human Rights, dated August 18, 1971, dismissing the complaint in question, (b) held there was probable cause to believe that petitioners had unlawfully discriminated against the complainant relating to employment and (c) remanded the matter to the division for further proceedings. Order of the Appeal Board annulled, on the law, and order of the division reinstated and confirmed, without costs. In our view, the Appeal Board erred in determining that the Division's order dismissing the complaint on a finding of no probable cause was arbitrary, capricious and an abuse of discretion (Executive Law, § 297-a, subd. 7). The complaint charged petitioners with unlawfully terminating the complainant's employment in retaliation for previous complaints filed by him with the division against petitioners. The division's dismissal of the complaint was based on its determination, after investigation, that the complainant had been discharged because of an unauthorized absence from his job assignment and that there was no probable cause to believe that he had been terminated in retaliation for having filed previous complaints against petitioners. The record, considered as a whole, clearly justifies the division's finding of no probable cause, in that the complainant unauthorizedly left his job assignment and refused to utilize petitioners' available procedure for acquiring permission to leave the job assignment. In reversing the division's order of dismissal and remanding the matter for further proceedings, the Appeal Board impermissibly exceeded the limited scope of its own review and substituted its own judgment for that of the division ( Wyckoff Hgts. Hosp. v. State Div. of Human Rights, 38 A.D.2d 596). Hopkins, Acting P.J., Munder, Martuscello, Shapiro and Brennan, JJ., concur.