Opinion
December 8, 1970
Determination of State Human Rights Appeal Board, dated September 9, 1970, affirming, as modified by said board, the order of the Commissioner of the State Division of Human Rights, dated January 7, 1970, unanimously annulled and vacated, on the law, without costs and without disbursements, and the cross petition of State Division of Human Rights for an enforcement order dismissed, without costs and without disbursements, and the complaint of Thomas Harris dismissed. We conclude that the determination of the Appeal Board that the petitioners violated the Human Rights Law (Executive Law, art. 15) in their refusal to employ complainant in a clerical position, lacks the support of substantial evidence. The Harris complaint charged the petitioners Bache Co. and Marsha Chapman (personnel interviewer employed by Bache) with an unlawful discriminatory practice in their refusal to employ Harris allegedly on the basis of his race. The petitioners have grounded their rejection of the application for employment by Harris, a Negro, on what they considered to be his lack of initiative, evidenced, they felt, in his long prior employment without substantial advancement and in his over five-month period of unemployment, with a drawing of unemployment insurance benefits for some time prior to his application to petitioner Bache Co. As a matter of fact, Harris responded to the advertisement of Bache Co. just before scheduling of his first unemployment compensation review at which he would be required to demonstrate that he was actually looking for employment. The record lacks evidence supporting a finding of an intent to unlawfully discriminate against Harris because of his race or of bad faith in the rejecting of his application. It is undisputed that of the 14 prospects hired by the petitioner Chapman in the week she interviewed Harris, 7 were from minority groups, 5 of them being Negroes. Undisputed too are the commendable policies and practices pursued by Bache Co. in recent years in the training and hiring of minority group members. Quite clearly, the petitioners do not discriminate against Negroes, and did not against Harris because he is a Negro. Rather, it appears that Harris was turned down because his work history was considered unsatisfactory by the petitioners and because, in the petitioners' judgment, others, among the many applicants, had better prospects than he. The facts are more consonant with the conclusion that, throughout, the petitioners were acting rightfully within an employer's prerogatives, and if Harris was rejected improperly, it was done for reasons clearly extraneous to the statutory injunction. A finding of discrimination must be based on factors more substantial than Chapman's evasive responses to Harris and her hedging in her explanations to him as to why he was not offered employment. It was perhaps unwise (although understandable) to have Harris informed that Bache Co. was looking for prospects with more of a financial background, as such was not the case. There are of course more straightforward ways of letting an applicant know that he is not going to be hired, but it is fantasy to conclude from what transpired that Harris was rejected because of his race. The argumentation, built around the contrived statements and explanations of Chapman, does not constitute the substantial evidence required to support the subject determination. This court may and should overturn this improperly supported administrative determination which is, in effect, merely a substitution of an administrative board's judgment for a valid managerial decision. (See NLRB v. Audio Ind., 313 F.2d 858; cf. Eastern Greyhound Lines Div. of Greyhound Lines v. New York State Div. of Human Rights, 34 A.D.2d 916.)
Concur — Stevens, P.J., Eager, Capozzoli and McGivern, JJ.