Opinion
January 28, 1975
Present — Marsh, P.J., Witmer, Cardamone, Simons and Goldman, JJ.
Determination unanimously confirmed, with costs, and cross motion for order of enforcement granted. Memorandum: The commissioner found that reasonable grounds existed for petitioner, Loblaw, Inc., to decline to employ complainant when he first applied in early 1972 for a job as truck driver. He also found that after complainant filed complaint against petitioner for discrimination against him, petitioner employed several other truck drivers without contacting or considering complainant. In view of the complainant's apparent qualifications, the evidence before the commissioner placed upon petitioner the burden of explanation of its failure to offer complainant a job later that year and thus show that it did not act in retaliation because of his complaint ( McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802). The record presented a factual basis for the Commissioner's finding that petitioner acted in retaliation (see Bethlehem Steel Corp. v. New York State Div. of Human Rights, 36 A.D.2d 898).