Sedlacek v. IBM Corp. , 485 N.Y.S.2d 599 ( 1985 )

Yesawich Jr., J.

Proceeding initiated in this court pursuant to Executive Law § 298 to review a determination of the State Division of Human Rights, dated November 29, 1983, which dismissed petitioner’s complaint of an unlawful discriminatory practice based on age.

In May of 1983, petitioner, then 59 years old, filed a verified complaint with the State Division of Human Rights charging IBM Corporation, his employer of 41 years, with denying him a promotion over the preceding eight years because of his age. After looking into petitioner’s allegations, the Division dismissed the complaint; petitioner has commenced this proceeding to review that disposition.

A determination made by the Division, following an investigation, to dismiss a complaint because probable cause is lacking will not be annulled unless it is shown to be arbitrary and capricious (Matter of Gajjar v Union Coll., 107 AD2d 917; Matter of Campchero v General Elec. Broadcasting, 88 AD2d 747). The record here is replete with evidence, which petitioner was afforded ample opportunity to rebut, that it was petitioner’s substandard performance which caused him to be passed over for promotion from the position of associate buyer to that of buyer; that 16 of IBM’s 49 buyers are over 50 years of age; and that 13 of those 16 buyers were promoted within the last four years. As the Division’s determination is not irrational, it should be upheld.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Main, Casey, Yesawich, Jr., and Levine, JJ., concur.