
    In the Matter of Claude Davis, Petitioner, v Edward Mercado, as Commissioner Designate of the New York State Division of Human Rights, Respondent.
    [658 NYS2d 862]
   Determination of respondent State Division of Human Rights dated June 12; 1995, which, after a hearing, found no merit to petitioner’s complaint of race discrimination in employment and retaliation, unanimously confirmed, the petition denied and the proceeding brought pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, New York County [Charles Ramos, J.], entered September 19, 1995) dismissed, without costs.

Substantial evidence supports respondent’s findings that the candidates who received the two higher level positions sought by petitioner were not only more qualified, than petitioner but that petitioner lacked the necessary qualifications. Such findings undercut petitioner’s claim that his poor performance evaluations were part of a continuing pretext disguising a retaliatory motive linked to his having expressed to superiors his belief that the decisions not to promote him were based on race, and that such motive ultimately led to his termination. Nor is there any other basis to disturb respondent’s findings crediting the performance evaluations and other evidence offered by the employer of legitimate, nondiscriminatory reasons for its termination of petitioner (see, Matter of Collins v Codd, 38 NY2d 269, 271, quoting Matter of Stork Rest, v Boland, 282 NY 256, 267). Concur—Ellerin, J. P., Nardelli, Rubin and Williams, JJ.  