Gray v. Albany Medical Center Hospital , 485 N.Y.S.2d 601 ( 1985 )

Harvey, J.

Proceeding initiated in this court pursuant to Executive Law § 298 to review a determination of the State Division of Human Rights, dated February 23,1983, which dismissed petitioner’s complaint of an unlawful discriminatory practice based on race and color.

Petitioner, who is black, was dismissed from her position as a nurse aide with respondent and filed a complaint of an unlawful discriminatory practice with the State Division of Human Rights. She alleges that her termination was predicated on racial considerations. Following an investigation, the Division determined that there was no probable cause to believe that respondent engaged in the unlawful discriminatory practice complained of. Petitioner appealed to the State Human Rights Appeal Board and, since her appeal was pending before the Board on June 1, 1984 when Executive Law § 297 (a) was repealed (L 1984, ch 83, § 2) and the Board was abolished, the instant proceeding was properly commenced in this court pursuant to Executive Law § 298 (L 1984, ch 83, § 3).

The Division’s investigation revealed that petitioner, who was assigned to the nursery to care for newborn infants, was negligent in the performance of her duties. The record reveals that petitioner had received several warnings regarding her attitude, attendance and work performance. She had been denied annual merit increases on more than one occasion. Both her peers and superiors had complained that the manner in which she performed her duties was negligent to the point of endangering the newborns entrusted to her care. The investigation further revealed that respondent had previously discharged white employees for the same reason that petitioner was terminated. Respondent also continued to employ a number of black employees following petitioner’s termination. The record amply supports the Division’s finding that there was no probable cause to support petitioner’s charges of racial discrimination, and the complaint was properly dismissed. We may not substitute our judgment for that of the Division where its determination is not arbitrary and capricious (see, Matter of Comfort v New York State Human Rights Appeal Bd., 101 AD2d 663).

Determination confirmed, and petition dismissed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.