Draman v. Lamar Advertising of Penn, Inc.

Determination unanimously annulled on the law without costs and matter remitted to respondent New York State Division of Human Rights for further proceedings in accordance with the following Memorandum: In this proceeding transferred to this Court pursuant to Executive Law § 298, petitioner seeks review of the determination of the Commissioner of respondent New York State Division of Human Rights (Division) dismissing his complaint following a public hearing. The complaint alleges that petitioner was forced to resign from his employment because of his religious beliefs (see, Executive Law § 296 [1] *809[a]). We conclude that the determination of the Commissioner is inconsistent because he concludes both that petitioner failed to establish a prima facie case of discrimination and that petitioner’s employer “has presented sufficient evidence to rebut the presumption of discrimination.” The presumption of discrimination arises only if the employee establishes a prima facie case of discrimination (see, Texas Dept of Community Affairs v Burdine, 450 US 248, 254). Additionally, we conclude that, in deciding whether petitioner established a prima facie case, the Commissioner improperly considered the reasons given by petitioner’s employer for its actions (see, Ferrante v American Lung Assn., 90 NY2d 623, 629). Finally, the Commissioner erred in failing to determine whether the reasons given by petitioner’s employer for its actions were a pretext for discrimination. “Once the [employer] ‘responds to the [employee’s] proof by offering evidence of the reason for the [employee’s discharge], the factfinder must then decide’ * * * ‘whether the [discharge] was discriminatory’ ” (St. Mary’s Honor Ctr. v Hicks, 509 US 502, 518-519, quoting United States Postal Serv. Bd. of Governors v Aikens, 460 US 711, 714-715). We therefore annul the determination and remit the matter to the Division for a new determination with findings of fact. (Executive Law § 298 Proceeding Transferred by Order of Supreme Court, Erie County, Glownia, J.)

Present — Pigott, Jr., P. J., Hayes, Wisner and Kehoe, JJ.