Papeskov v. State Division of Human Rights , 400 N.Y.S.2d 65 ( 1977 )

Petition granted to the following extent: the determination of the State Human Rights Appeal Board and the order of the State Division of Human Rights are both unanimously annulled, on the law, without costs and without disbursements, and the matter remanded to the State Division of Human Rights for a proper investigative conference and for further proceedings not inconsistent with the determination of this court. In this proceeding brought pursuant to section 298 of the Executive Law, petitioner seeks to annul an order of the State Human Rights Appeal Board which affirmed an order of the State Division of Human Rights dismissing his complaint for lack of jurisdiction. Petitioner, formerly employed as a cook at the Rue Restaurant, filed a complaint with the State Division of Human Rights alleging discrimination in that he was denied equal terms, conditions and privileges of employment and was terminated because of his national origin, which is Bulgarian. An investigator for the Division of Human Rights contacted the employer and was told that petitioner had left the job of his own volition and had no difficulty relating to his peers. No investigatory conference was held, nor was any evidence taken other than this abbreviated and one-sided investigation. On this basis the investigator’s recommendation that the case be closed for lack of jurisdiction was adopted, the determination and order after investigation stating, inter alia, "The investigation did not reveal that the complainant’s birthplace was a factor in his employment termination.” It is clear that the dismissal of the complaint was based upon a record which did not afford a reasonable basis for an administrative determination and under such circumstances the matter should be remanded to the State Division of Human Rights to afford a proper basis for an informed determination as to the merits of the complaint (Tenenbaum v State Div. of Human Rights, 50 AD2d 257). Concur —Lupiano, J. P., Silverman, Evans and Markewich, JJ.