
    In the Matter of Vincent A. Sauer, Petitioner, v Michelle Cheney Donaldson et al., Respondents.
    [853 NYS2d 610]
   In a CPLR article 78 proceeding to review a determination of an administrative agency made after a hearing required by law, and at which evidence was taken, the agency’s determination must be upheld if it is supported by substantial evidence (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). In the instant case, the determination of the Commissioner of the New York State Division of Human Rights should be confirmed since there was substantial evidence to support the conclusion that Delta did not deny the petitioner’s application for employment on the basis of age (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). While the petitioner established a prima facie case of discrimination, the record supports the Commissioner’s finding that Delta utilized a permissible seniority-based hiring program by which employees were generally hired according to seniority from each specific department (see Matter of Delta Air Lines v New York State Div. of Human Rights, 91 NY2d 65, 73-74 [1997]). Delta provided a legitimate, nondiscriminatory reason for its hiring decision, and the petitioner did not show that this reason was a pretext for discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006]; Matter of Laverack & Haines v New York State Div. of Human Rights, 88 NY2d 734, 738-739 [1996]). Skelos, J.P., Fisher, Covello and Eng, JJ., concur.  