Imperial Diner, Inc. v. State Division of Human Rights

Proceeding pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, dated August 1, 1979, which affirmed an order of the State Division of Human Rights, dated October 27, 1978, which found that petitioners had discriminated against the complainant because of her creed and which ordered them to, inter alia, (1) offer to re-employ her; (2) pay her, as damages, her lost earnings; and (3) pay her $500 for her "shock, humiliation and outrage”. The State Division of Human Rights has cross-moved to enforce its order. Petition granted, order annulled and cross application denied, on the law, without costs or disbursements, and the complaint charging an unlawful discriminatory practice is dismissed. The finding by the State Division of Human Rights of unlawful discrimination was not supported by substantial evidence. The record discloses only one instance where, in the presence of other people, petitioner Kayantas uttered an intemperate, crude and anti-Semitic remark directed at complainant. Moreover, the record also reveals that on the same day the utterance was made Kayantas’ partner urged the complainant to return to work as a waitress at the petitioner diner, and that several days later when complainant returned *595to pick up her paycheck, Kayantas urged her to return and offered her a good station. Thus the record is devoid of evidence showing a systematic exclusion or restriction, or a generalized pattern of unlawful discrimination, or any evidence of persistent religious or other unlawful discrimination directed at the complainant. Absent such a showing we cannot confirm the order of the appeal board which affirmed the order of the State Division of Human Rights (Matter of Brooklyn Coll, of City Univ. of N. Y. v State Div. of Human Rights, 39 AD2d 707). Titone, J. P., Mangano, Rabin and Cohalan, JJ., concur.