New Paltz Central School District v. State Division of Human Rights

Crew III, J. (dissenting).

I respectfully dissent. The sole issue before this court is whether there is substantial evidence to support the Division’s determination (see, City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 423). If the findings of fact, on which the order of the administrative agency was based, are supported by sufficient evidence on the record considered as a whole, they are conclusive and the order should not be disturbed (supra, at 424; see also, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179). We are mindful that “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra, at 183) and that in weighing the evidence regarding petitioners’ justification for not appointing Erne, the Division enjoys wide latitude (see, Matter of New York City Bd. of Educ., Community School Dist. No. 1 v Batista, 54 NY2d 379, 384).

In the instant proceeding, the District’s policy concerning the appointment of coaches did not include a criteria for consideration of absences. Petitioner Mario Scalzi implemented an unwritten discretionary requirement that attendance would be a factor in determining whether to appoint applicants for coaching positions. Male applicants for coaching positions in the District were hired without consideration of their absences. However, Erne was denied an appointment as coach based upon her absences. Given that Erne established the co-ed tennis team at the high school in 1977 and coached it continuously until the 1982-1983 school year when, for the first time, the school had separate girls’ and boys’ teams and given the fact that Erne was appointed coach of the girls’ team, but not of the boys’ team, there was sufficient evidence to support the determination that petitioners’ justification for not appointing her was pretextual (see, supra).

It is true that there was record evidence that the District denied a coaching position to a male teacher allegedly due to excessive absenteeism. The record also established that he was suffering from alcoholism. It is altogether possible that he was denied the position for that reason rather than his absenteeism or a combination thereof. In any event, it is clear that even though another teacher had been denied a coaching position allegedly based upon his absenteeism, the Division was still of the opinion that, based upon the facts presented in this case, Erne was denied the coaching position due to her sex and not excessive absenteeism. That determination is supported by substantial evidence and I would therefore confirm it.

Adjudged that the determination is annulled, with costs, and petition granted.