Summary
noting that the NYSHRL "was amended in 1985 to permit pre-employment inquiry into the arrest records of law enforcement applicants"
Summary of this case from Petty v. City of N.Y.Opinion
April 27, 1987
Adjudged that the petition is granted, on the law and as a matter of discretion, without costs or disbursements, to the extent that the division's order is modified, by (1) deleting therefrom the provisions directing the petitioner Sheriff of Rockland County to hire the respondent Withers as a mounted patrolman and pay him back pay for that position and pay him compensatory damages for mental anguish and humiliation in the amount of $35,000, the proceeding is otherwise dismissed, and the matter is remitted to the division for imposition of a new award for mental anguish and humiliation which shall not exceed $7,500.
The division correctly determined that the petitioner discriminated against the respondent Withers based on his arrest record. In 1981 when the petitioner requested the respondent Withers to complete his application for employment as a mounted patrolman, it was a prima facie discriminatory practice to inquire about prior arrests on an application for employment (see, Executive Law § 296; Matter of New York State Dept. of Mental Hygiene v State Div. of Human Rights, 66 N.Y.2d 752). Although Executive Law § 296 was amended in 1985 to permit preemployment inquiry into the arrest records of law enforcement applicants (see, L 1985, ch 208), this amendment is clearly prospective in nature and is thus inapplicable to the instant matter (see, Matter of New York State Dept. of Mental Hygiene v State Div. of Human Rights, supra). In addition, the determination of the division that the petitioner was denied employment based solely on his arrest record was based on substantial evidence and cannot be disturbed (see, Executive Law § 298; Matter of New York State Dept. of Correctional Servs. v McCall, 109 A.D.2d 953; Schuck v State Div. of Human Rights, 102 A.D.2d 673).
Nevertheless, the record indicates that the respondent Withers was never sworn in, or paid, as a mounted patrolman. Under these circumstances, the division lacked the power to direct the petitioner, a public employer, to hire the respondent Withers for the position sought, "since such a direction would in effect deprive the appointing authority of the power of selection" (see, City of Schenectady v State Div. of Human Rights, 37 N.Y.2d 421, 430, rearg denied 38 N.Y.2d 856; Weiss v New York State Human Rights Appeal Bd., 102 A.D.2d 471, 473; State Div. of Human Rights v New York State Dept. of Correctional Servs., 91 A.D.2d 832, 833; Matter of New York State Dept. of Correctional Servs. v McCall, 111 A.D.2d 571; Matter of New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 A.D.2d 546, affd 66 N.Y.2d 752, supra; Sears v New York State Div. of Human Rights, 73 A.D.2d 913, appeal denied 49 N.Y.2d 705). Accordingly, those portions of the division's order directing the petitioner Sheriff of Rockland County to hire the respondent Withers as a mounted patrolman and awarding the respondent Withers back pay for that position cannot stand (see, State Div. of Human Rights v New York State Dept. of Correctional Servs., supra; Matter of New York State Dept. of Correctional Servs. v McCall, supra; Sears v New York State Div. of Human Rights, supra).
Finally, the division properly exercised its authority to award compensatory damages for mental anguish. It is well settled that an award of compensatory damages to a person aggrieved by an illegal discriminatory practice may include compensation for mental anguish (Matter of Board of Educ. v McCall, 108 A.D.2d 855, lv denied 65 N.Y.2d 601; State Div. of Human Rights v New York State Dept. of Correctional Servs., 90 A.D.2d 51), and that such an award may be based solely on the testimony of the complainant, as occurred in the instant proceeding (Cullen v Nassau County Civ. Serv. Commn., 53 N.Y.2d 492). However, the $35,000 award in this case is clearly excessive. Therefore, the matter is remitted to the division for the imposition of a new award not to exceed $7,500. Mollen, P.J., Mangano, Eiber and Sullivan, JJ., concur.