Phoebe v. State Division of Human Rights , 418 N.Y.S.2d 55 ( 1979 )

— Determination of the State Human Rights Appeal Board, dated October 17, 1978, aifirming an order of the Commissioner of the State Division of Human Rights dated January 30, 1978, modified, on the law and the facts, to the extent of granting the petition with respect to the May 24, 1975 incident, reimbursing petitioner for one day’s pay, with interest from that date, and otherwise confirmed, without costs and disbursements. Petitioner, a Muslim, filed a complaint with the State Division of Human Rights against amtrak on April 11, 1975, alleging racial and religious discrimination. Eleven days later she was charged with being out of uniform because she did not wear slacks or the official uniform skirt which exposed her legs from the knees down. One of the tenets of petitioner’s faith is that a woman should have only her hands and a portion of her face exposed to view. Her regular slacks had just been washed and were still damp and so she wore an ankle-length skirt on the date in question. Her immediate supervisor, with whom she had been having difficulties, refused to allow her to work that day and she lost one day’s pay. Evidence was adduced at the hearing that other employees who violated the dress regulation were not criticized by the same supervisor. In fact, on the very day in question, another ticket seller was wearing blue denim dungarees, and no action was taken. On June 6, 1975, obviously as a result of this incident, the general supervisor circulated a memorandum formulating a dress code. We find it difficult to believe that the supervisor was unaware that petitioner had filed a human rights complaint against her, considering the fact that amtrak had been served on or about April 16, 1975, some eight days before the incident in question and we conclude that the so-called enforcement of the amtrak dress requirement code on that day was an act of retaliation against the petitioner, in violation of the Human Rights Law, for having filed a complaint with the division. "There was not substantial supporting evidence to the contrary (Executive Law, §§ 295, 297), and the findings of the Commissioner were not appropriate” (Winitt v State Div. of Human Rights, 50 AD2d 767, 768). The commissioner’s decision was not supported by substantial evidence, whereas the substantial evidence did support a finding that the incident of May 24, 1975, was based on religious and racial discrimination. Concur — Sandler, J. P., Bloom and Ross, JJ.