Opinion
472
March 13, 2003.
Determination of respondent Division of Human Rights, dated October 12, 2001, which ordered that petitioner cease and desist from discriminating against employees on the basis of age, and awarded complainant employee back pay and benefits with interest, retroactive contributions to his Social Security and pension funds and $10,000 for mental anguish, with related relief, unanimously confirmed, the petition and cross petitions denied and the proceeding brought pursuant to Executive Law § 298 and CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Jane Solomon, J.], entered January 18, 2002), dismissed, without costs.
Donald J. Fay, for petitioners.
Thomas R. Purcell, for respondents.
Before: Mazzarelli, J.P., Saxe, Sullivan, Ellerin, Gonzalez, JJ.
After the complainant employee sustained his de minimus burden of showing a prima facie case of age discrimination (see Schwaller v. Squire Sanders Dempsey, 249 A.D.2d 195, 196; and see Ferrante v. Am. Lung Assn., 90 N.Y.2d 623, 629), petitioner employer provided evidence meeting its consequent burden to set forth a legitimate, nondiscriminatory reason to support the termination (see id.), specifically a workforce reduction (see Matter of Laverack Haines v. New York State Div. of Human Rights, 88 N.Y.2d 734, 738-739; see also Hardy v. Gen. Elec. Co., 270 A.D.2d 700, 702, lv denied 95 N.Y.2d 765). However, there was substantial evidence that petitioner's proffered reason was false and that the actual motive was discrimination (see Ferrante, 90 N.Y.2d at 630), and thus respondent agency's finding that petitioner's asserted need to reduce its workforce was a mere pretext for discriminating against the complainant may not be disturbed (see Matter of State Div. of Human Rights [Cottongim] v. Onondaga County Sheriff's Dept., 71 N.Y.2d 623, 630-631). Substantial evidence also supports the finding that the complainant was diligent in seeking to mitigate lost earnings damages (see Rio Mar Rest. v. New York State Div. of Human Rights, 270 A.D.2d 47, 48, lv denied 95 N.Y.2d 763), and that he suffered mental distress that was reasonably related to petitioner's discriminatory conduct (see Matter of Hsu v. New York State Div. of Human Rights, 241 A.D.2d 913). The agency properly declined to offset the award by amounts not received as compensation for lost earnings (cf. Matter of Allender v. Mercado, 233 A.D.2d 153, appeal dismissed, lv denied 89 N.Y.2d 1055), including pension benefits (see Fisher v. Qualico Contr., 98 N.Y.2d 534, 538-539). We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.