
    City of Schenectady et al., Respondents, v State Division of Human Rights, Appellant, and Schenectady Patrolmen’s Benevolent Association, Intervenor-Respondent.
    Argued May 8, 1975;
    decided July 8, 1975
    
      
      Ann Thacher Anderson and Henry Spitz for appellant.
    I. The record strongly supports the Division’s finding of discrimination. (Matter of Andresen v Rice, 277 NY 271; Matter of Berni v Leonard, 69 Misc 2d 935, 40 AD2d 701, 32 NY2d 933, 414 US 1045; Griggs v Duke Power Co., 401 US 424; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Weeks v Southern Bell Tel. & Tel. Co., 408 F2d 228.) II. This court should sustain the power of the Division upon finding discrimination to direct that an appointing authority subject to State and local civil service laws offer the next appropriate line item to complainant listed eligible at the time of such discrimination. (Matter of Delicati v Schechter, 3 AD2d 19; Bethlehem Steel Corp. v New York State Div. of Human Rights, 36 AD2d 898, 899; ILA of N. Y. v State Div. of Human 
      
      Rights, 39 AD2d 896; Matter of Board of Higher Educ. of City of N. Y. v Carter, 14 NY2d 138; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Carow v Board of Educ. of City of N. Y., 272 NY 341; Matter of Felder v Fullen, 263 App Div 986, 289 NY 658; Matter of Board of Educ. of Syracuse City School Dist. v State Div. of Human Rights, 38 AD2d 245.)
    
      Rosario Negri, Corporation Counsel (Thomas B. Hayner of counsel), for respondents.
    I. There is not sufficient evidence of discrimination by the City of Schenectady, its Police Department or the Chief of Police in the promotional appointing process. (Matter of New York Stock Exch. v New York State Div. of Human Rights, 37 AD2d 941; Matter of Berni v Leonard, 69 Misc 2d 935, 40 AD2d 701, 32 NY2d 933, 414 US 1045; Matter of Button v Rockefeller, 76 Misc 2d 701.) II. The State Division of Human Rights does not have statutory authority to direct upgrading of a public employee subject to the Civil Service Law. (Matter of Meenagh v Dewey, 286 NY 292, 707; Matter of Sable v Pinkard, 71 Misc 2d 126; Board of Educ. of City of N. Y. v Nyquist, 31 NY2d 468; Amico v Erie County Legislature, 36 AD2d 415, 30 NY2d 729; Matter of Madden v Reavy, 284 NY 418; Matter of Andresen v Rice, 277 NY 271; Palmer v Board of Educ. of Union Free School Dist. No. 2, Town of Geddes, 276 NY 222; Matter of Carow v Board of Educ. of City of N. Y., 272 NY 341; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435.)
   Cooke, J.

The question in issue on this appeal is whether there was substantial evidence to sustain the determination of the Commissioner of the State Division of Human Rights, as to discriminatory action by respondents City of Schenectady, the City of Schenectady Department of Police and the Chief of Police thereof. The complainant, a woman, had the right to be considered for appointment to the position of police sergeant and could not be denied consideration because of her sex.

Article 15 of the Executive Law, under the heading of the Human Rights Law, is deemed "an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state” (Executive Law, § 290, subd 2). The Legislature therein found and declared that the State "has the responsibility to act to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life” (Executive Law, § 290, subd 3), and equal opportunity for employment is basic to that enjoyment (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 207). Section 296 thereof provides, in pertinent part, that "1. It shall be an unlawful discriminatory practice: (a) For an employer, because of the * * * sex * * * of any individual, to refuse to hire or employ or to bar * * * from employment such individual or to discriminate against such individual in * * * terms, conditions or privileges of employment.”

After notice and hearing, the Commissioner of the State Division of Human Rights determined and found that the City of Schenectady, its Department of Police and the Chief of Police thereof committed unlawful discriminatory practices against complainant Eva S. Hawkins "by denying her an opportunity to become a Police Sergeant and by denying her the opportunity to transfer from one assignment to another because of her sex”, in violation of the Human Rights Law (see Executive Law, § 297, subd 4, par c). The city and its Police Department and chief were ordered to offer to complainant the next available position of police sergeant and to pay to her as compensatory damages from August 3, 1971, the date complainant was certified by the Schenectady County Civil Service Commission, to the date said position is offered to her, the difference between her salary as a policewoman and what she would have earned had she been appointed a police sergeant. The record demonstrates that the State Human Rights Appeal Board had the right, as it did, to affirm the Division’s findings of discrimination and to rule that they were supported by substantial evidence on the whole record (Executive Law, § 297-a, subd 7). Since said findings of fact, on which the order of the Appeal Board is based, are supported by sufficient evidence on the record as a whole, they are conclusive (Executive Law, § 298) and should not have been disturbed. In making those findings, it was not necessary that the commissioner detail all items of evidence (see Matter of Dusinberre v Noyes, 284 NY 304, 308; Matter of Scudder v O’Connell, 272 App Div 251, 253-254; 146 ALR 209, 229).

As the result of passing an examination (at the top of the list), complainant was appointed in 1956 as a Meter Attendant of the City of Schenectady, in which position she served for about seven months, mainly tagging cars for parking violations. After taking, passing and receiving the highest mark on a civil service examination for city policewoman, she was appointed to said position in 1957 and assigned to the Youth Aid Bureau. In said post, she investigated possible cases of neglect, patrolled areas of likely delinquency, went to court, referred matters to agencies, served warrants, was detailed to strike duty, ran spot checks of bars and worked day and night shifts.

In May, 1967, complainant took a civil service examination for the position of police sergeant, finishing as number eight, and, based on said test, a list was established on August 17, 1967. The list did not expire until four years later, extensions having been granted, and by July of 1971 complainant ranked third on the list. Officers Nelson and Small, both men, then ranked first and second respectively. The announcement for the 1967 promotional examination for police sergeant had listed at least four years service as a police patrolman as a minimum qualification, but the Schenectady County Civil Service Commission deemed that complainant had equivalent experience and could take the exam.

In 1971 complainant was certified eligible for appointment to the position of police sergeant and she and the two others certified appeared before an Oral Review Board. This board was established pursuant to a labor relations contract between the city and the Schenectady Patrolmen’s Benevolent Association which provided that it be made up of "three (3) disinterested persons, not residents of the City, one of whom shall be an expert in the field, who will examine the qualifications of the ranking applicants” and that it recommend to the city manager the name of the applicant, in its opinion best qualified, said recommendation being advisory. It also provided that in determining preference, for the purpose of promotions, seniority within rank shall control, all other conditions being equal. The review board at the time in question consisted of Chief Flater, Chief of the Town of Colonie Police Department, the head of an advertising agency and the third member, a bank official or postmaster. Chief Flater was the member considered as the expert in police work. When complainant appeared before the review board, no questions were asked of her about police work as such, but inquiries were made as to how her husband and son felt about her being a policewoman and as to whether she was afraid. Chief Flater stated that she was an excellent investigator, that it was too bad there were not any promotions within the Youth Aid Bureau, and that with her ability and knowledge she was certainly entitled to be a sergeant "but you know, its just too bad there weren’t any openings.” The Oral Review Board then recommended the appointment of Officer Nelson, who passed the written examination with a higher mark, but who possessed less seniority within the Police Department than complainant.

Later, Chief Plater told a representative of the Division of Human Rights that "she [complainant] was extremely capable in her work; but the job in question was a Police Sergeant’s job and he did not feel Investigator Hawkins should be a police sergeant because of the fact that she is a female.” Plater also stated that, even with her qualifications, he would not pick her for said position over a man. He told complainant that it was too bad she was a woman. In the administrative hearing (see Matter of Brown v Ristich, 36 NY2d 183, 189-190; Matter of Sowa v Looney, 23 NY2d 329, 333), the representative testified on cross-examination that, after interviewing the Schenectady City Manager, Chief of Police, a Lieutenant De Luca and others, he reported to a superior that "it was their consensus that because she [complainant] was a female she couldn’t be used in barroom brawls, riots, strifes, domestic strifes, rescue work, suicide attempts, escorting prisoners to jail or court.”

Complainant is one of only two female police officers employed on the Schenectady police force, both of whom are assigned exclusively to the Youth Aid Bureau. Although service as a patrolman was listed as a requirement for promotion to a sergeancy, a woman would not have been admitted to a patrolmen’s examination. There are no positions known as policewoman sergeant in the City of Schenectady.

The second instance of alleged discrimination took place on September 9, 1971, when complainant was passed over for two assignment vacancies for "Patrolmen for general patrol duty.” Patrolmen interested had been asked to sign a bid sheet and the two males selected had less seniority than complainant, although the labor relations contract recited that the city was in accord with the principle that seniority should be a major factor in filling work assignments by superior officers, provided that, all other conditions being equal, the employee is fully qualified to perform the duties required. Responding to complainant’s "Request for Information”, the chief of police wrote that, in view of the general statement of duties listed for "Police Patrolman” and "Policewoman”, "in . my opinion it is not a question of any special qualifications. It is quite apparent that the position for which you were employed and the position of Police Patrolman are, to a very large degree, completely different.” About a month and a half previously, however, the chief had issued a directive making certain organizational changes in the Schenectady Police Department. Provision was made for the Investigation Division with three sections: Detective, Juvenile and Special Service. The directive stated: "All personnel of each section * * * shall be interchangeable within the division. At the discretion of the division commander, with the approval of the Chief and Assistant Chief of Police, personnel may be reassigned within the section when the need so dictates.”

"Discrimination today is rarely so obvious, or its practices so overt that recognition of the fact is instant and conclusive” (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209, supra ). Clearly, there was substantial evidence on the record as a whole to sustain the findings of the State Division of Human Rights. In regard to the denial of an opportunity to become a police sergeant, this could be found in the irrelevant inquiries made of complainant when she appeared before the Oral Review Board, the relevant questions which were not placed before her, the indicative statements made to her on that occasion, the requirement of service as a patrolman for promotion as a police sergeant, and the revealing comments made by the expert on the board, the city manager and the chief of police to a division investigator. In respect to denial of the opportunity to transfer to another assignment, the assignment was on a bid basis, the labor relations contract stated that the city was in accord with the principle that seniority was to be a major factor in filling assignments, the males selected had less seniority than complainant, the chief of police responded that it was not a question of special qualifications but that complainant’s position as policewoman and that of police patrolman were to a large degree completely different, and there was a previous directive of the chief that all personnel of each section shall be interchangeable within the division.

The argument of respondents that the Oral Review Board, in its review of the candidates for police sergeant, "by its very nature and contractual experience, was independent of the City and the Police Department” and that, therefore, any discrimination of the board cannot be attributed to respondents is not sound. The labor relations contract, to which the city was a party, established the board as part of the method for appointment. The city appointed its members and the agreement provided that "such recommendation [of the board] shall be advisory, but failure to accept the same * * * shall be the basis for a grievance.” It is declared policy of the State to afford every individual within this State "an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity * * * because of discrimination * * * not only threatens the rights and proper privilege of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants” (Executive Law, § 290; Board of Educ. of Tuxedo Union Free School Dist. No. 3 v State Div. of Human Rights, 68 Misc 2d 1035, 1037; cf. Matter of Board of Higher Educ. of City N. Y. v Carter, 14 NY2d 138, 145). The Human Rights Law declares that it is an unlawful discriminatory practice for "an employer, because of * * * sex * * * of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment” (Executive Law, § 296, subd 1, par [a]; see Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead v New York State Div. of Human Rights, 42 AD2d 49, 52). Since the statute is to be "construed liberally for the accomplishment of the purposes thereof’ (Executive Law, § 300), the City of Schenectady should not be permitted to avoid responsibility for discriminatory acts of persons appointed by it and under a procedure which it itself established, pursuant to the labor relations agreement. Sexual discrimination in employment being deplorable, it is the duty of courts to make sure that the Human Rights Law works and that the intent of the Legislature is not thwarted by a combination of strict construction of the statute and a battle with semantics (cf. Culpepper v Reynolds Metals Co., 421 F2d 888, 891). The proof justified the conclusion that the promotion selective process was influenced by unlawful sex discrimination, and the imputation of these considerations to the city is necessary if the Human Rights Law is to have meaning.

The city urges that, since the State Division of Human Rights dismissed the complaint against the city manager, "by its very nature” it amounted to a dismissal against the petitioners-respondents. It cites Matter of New York Stock Exch. v New York State Div. of Human Rights (37 AD2d 941) but, there, the court held that, where there is no evidence of discrimination and the employment application contains misstatements of fact which form the basis of rejection of the application for employment, there can be no finding of discrimination and that, under the circumstances, the board’s finding of discrimination was not supported by sufficient evidence. Here, to the contrary and as outlined, there was substantial evidence of discrimination and, hence, a different result is appropriate.

The city claims that, at the time of the oral examination, complainant did not meet the minimum qualification of having served on a permanent basis in the competitive class as a police patrolman, which was a bona fide job qualification for promotion. However, complainant had been permitted to take the written test and appear before the review board, the Schenectady County Civil Service Department having found that she had the equivalency of four years’ permanent service as a police patrolman, and the male officer who received the appointment as sergeant had been assigned as an investigator in the Youth Aid Bureau at the same time as complainant and continued to serve in that capacity until his promotion. Thus, although complainant was a policewoman and not a police patrolman, the work assignment of the appointee and complainant from 1966 to the date of appointment was the same. This court has held that, when a hiring standard adversely affects equal employment opportunity for a protected class of persons, judicial scrutiny is warranted and it is incumbent upon the employer to show that the standard bears a rational relationship to and is a valid predictor of employee job performance and that it does not create an arbitrary, artificial and unnecessary barrier to employment, operating invidiously to discriminate on the basis of an impermissible classification (Matter of Sontag v Bronstein, 33 NY2d 197, 201; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 367, affid 29 NY2d 921). Here, respondents have submitted no evidence justifying the conclusion that a female police officer, by virtue of her sex, is unqualified to serve as police sergeant. In Matter of Berni v Leonard (69 Misc 2d 935, affd 40 AD2d 701, affd 32 NY2d 933, cert den 414 US 1045), Special Term stated (p 937): "The idea that women as such cannot be 'patrolmen’ will not be upheld unless supported by actual proof’. It was pointed out that, there, women could take an examination for the position of policewoman sergeant and none of the women excluded from the police sergeant’s examination, under rules of the County Civil Service Commission and the Police Department, had experience relating to duties exclusively reserved for men. The Court of Appeals held (p 934) that the Civil Service Commission prescription to include four years’ experience as a police patrolman was not per se unreasonable and bore a sufficient relationship with the position to be filled "upon the facts in this case.” It also stated that the record did not sustain a claim, although none was made, that women were denied the opportunity to become patrolmen. But, in the instant situation, there is no policewoman sergeant position in the Schenectady Police Department; the County Civil Service Department had found that complainant had equivalent experience to that of four years as police patrolman; there is undisputed proof that, at the time complainant took her written examination, the tests for police patrolman and policewoman were the same; and, most significantly, the experience of the male appointee, while in the Youth Aid Bureau, corresponded to that of the female complainant in the same bureau.

Although public employers are not excluded from the sanctions directed toward discriminatory practices under the Human Rights Law (Board of Educ. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead v New York State Div. of Human Rights, 42 AD2d 49, 51, affd 35 NY2d 673, supra; Matter of Glen Cove Municipal Civ. Serv. Comm. v Glen Cove Nat. Assn. for Advancement of Colored People, 34 AD2d 956; cf. Matter of Board of Higher Educ. of City of N. Y. v Carter, 14 NY2d 138, supra), the commissioner did not have the power to direct the city and its police department to offer complainant the next available position of police sergeant, since such a direction would in effect deprive the appointing authority of the power of selection (Matter of Berger v Walsh, 291 NY 220, 223; Matter of Delicati v Schechter, 3 AD2d 19, 21). Since the award of compensatory damages is dependent upon the offer of appointment and since that part of the commissioner’s order is defective, the monetary award was also invalid.

The order of the Appellate Division should be reversed and the matter remitted to that court, with directions to remand for further proceedings, not inconsistent herewith, to effectuate the purposes of the Human Rights Law (see Executive Law, § 297, subd 4, par c).

Jasen, J.

(dissenting). I agree with the Appellate Division that there was insufficient evidence to support the finding by the State Division of Human Rights of sex discrimination in the promotional appointing process by the City of Schenectady Department of Police. The issue on this appeal is not whether a woman has a right to be appointed to the position of police sergeant, but whether there was sufficient evidence presented before the State Division of Human Rights to establish discrimination which denied the complainant consideration for promotion on account of her sex.

The State Division of Human Rights, following a public hearing on a complaint filed by Eva Hawkins, found that the City of Schenectady, the City of Schenectady Department of Police, and John P. Murphy, the Chief of Police, petitioners-respondents herein, had discriminated against the complainant because of her sex, and ordered that petitioners-respondents cease and desist from such discrimination and that they take certain affirmative action to effectuate the purposes of the Human Rights Law. Upon appeal, the State Human Rights Appeal Board found that the order was supported by substantial evidence and affirmed. Petitioners-respondents then initiated this proceeding in the Appellate Division to annul that order. The Appellate Division held that there was insufficient evidence to support the finding of sex discrimination and, therefore, granted the petition and annulled the order. I agree that the record does not support the finding made by the State Division of Human Rights, and, accordingly, would affirm.

The gravamen of the first allegation contained in the complaint was that petitioners-respondents, and others, had unlawfully discriminated against the complainant because of her sex in refusing to promote her to a vacant position of police sergeant in August, 1971. The record indicates that she had been continuously employed by the Police Department as a policewoman since 1957. Her two principal assignments were to the Youth Aid Bureau and to the position of driver for the Accident Investigation Unit. In May, 1967 she passed a Schenectady County Civil Service promotional examination for the position of patrol sergeant in the Schenectady Police Department. Based on the test results, a promotion list was established in August, 1967 and was due to expire on August 17, 1971. She initially ranked eighth on the list; by July, 1971, due to other appointments from the list, she had moved up to third. Two males ranked ahead of her. The complainant, along with both males ahead of her, applied for the vacant position of police sergeant.

Pursuant to the collective bargaining agreement between the City of Schenectady and the Patrolmen’s Benevolent Association, a three-member review panel was named to interview the candidates and recommend one candidate for appointment by the city manager. The city manager was not required to follow this advisory recommendation. Although the record is silent as to which candidate was recommended by the panel, in early August the city manager appointed the male officer who ranked first on the eligibility list.

Viewing the record most favorably to the complainant, I conclude that there is insufficient evidence to support the finding of sex discrimination. I do not believe that the manner in which the three-member review panel conducted its interview of complainant can be considered discriminatory. It is true that the panel questioned complainant as to how her husband and son felt about her work, and whether she had feelings of fear in the course of her work. However, this alone does not justify the inference drawn by the Division that the panel was expressing an inclination to discriminate against her on the basis of sex in reviewing the applications, particularly in the absence of any evidence that the questions asked at the other interviews differed markedly from the questions she was asked. Likewise, I do not think that any inference of an inclination to discriminate can be drawn from the fact that the panel did not question her as to her experience and qualifications. The panel had access to the personnel files of each of the three applicants and presumably reviewed them. The complainant’s file undoubtedly detailed her qualifications and experience to an extent that there may have been no additional need at the oral interview to pursue these matters. Again, it is important to note that in this regard also the record is silent as to the nature of the questions asked the other applicants at their oral interviews.

As to the comment made during the interview by the Colonie Chief of Police, one of the panel members, that "it [is] too bad that they couldn’t create an opening for a Sergeant in the Youth Aid Bureau”, I believe the statement is equivocal. The Colonie Chief of Police was apparently familiar with the complainant’s work and performance, and clearly felt she deserved a promotion in the Youth Aid Bureau, but may nevertheless have felt that the other candidates were better qualified for the current vacancy of patrol sergeant in the department. Even if I were to agree with the conclusion reached by the Division that the words spoken by the Colonie Police Chief demonstrated discrimination, there is no evidence in the record that the other members of the review panel agreed with or associated themselves with these remarks. As the Appellate Division wrote (p 571), "there [is] simply no evidence adduced to demonstrate that the attitude of one of its members had influenced the decision of the committee in its supposed recommendation.” Nor is there any evidence in the record as to which person was recommended by the panel. Moreover, I would further note in this regard that the Division specifically exonerated the city manager from any discrimination. The finding that the city and the other petitioners-respondents discriminated against complainant is inconsistent with this finding with respect to the city manager, who is the only person empowered to make the appointment.

The majority also place undue emphasis on two additional matters in the record. Both involve the testimony of the representative of the Division who investigated this complaint. At one point he testified that the Colonie Chief of Police had told him that he would not select the complainant for this position over a man. Earlier the same representative had testified that after interviewing the Schenectady City Manager and Chief of Police, and others, he concluded that "it was their consensus that because she was a female she couldn’t be used in barroom brawls, riots” and the like. The majority’s reliance on this testimony seems misplaced because the Division itself made no mention of such testimony in its detailed findings of fact and apparently discredited it. This is in sharp contrast to the Division’s view of the Colonie Chief of Police’s statement that "it [is] too bad that they couldn’t create an opening for Sergeant in the Youth Aid Bureau” in that the Division specifically found that such a statement had been made. We should not now ascribe greater weight to that testimony than the Division itself chose to.

Certainly, where discrimination is found, it should not be tolerated. The sole issue here concerns the sufficiency of the evidence, and I feel that, on this record, the Appellate Division correctly determined that there was not sufficient evidence to show discrimination. In my view, the majority, in probing into the record beyond the Division’s actual findings, unjustifiably find substantial evidence.

Chief Judge Breitel and Judges Jones, Wachtler and Fuchsberg concur with Judge Cooke; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Gabrielli concurs.

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein. 
      
      . As the majority correctly point out, the complaint alleged a second act of discrimination in September, 1971, in that complainant was not selected to fill one of two vacancies for "Patrolmen for general patrol duty”. However, the majority do not disclose that in August, 1972, before these hearings were conducted by the State Division of Human Rights, complainant accepted a promotion to driver of an accident investigation car, an assignment which she described as being preferable to being a patrolman for general patrol duty. She also admitted at the hearing that, because of this preferable assignment, she would not accept a patrolman assignment even if offered. Therefore, as the Appellate Division correctly noted, this second matter has been mooted and is not relevant to our present inquiry. The Division, by failing to even mention the second matter in its briefs, can be deemed to have acknowledged that this is now moot.
     
      
      . Charges of unlawful discrimination filed against the City Manager of the City of Schenectady and the president of the Schenectady Patrolmen’s Benevolent Association were dismissed.
     
      
      . On May 22, 1971, complainant took the quadrennial examination for police sergeant and failed it despite the fact that she achieved passing scores in 1963 and 1967. As a result, her name did not appear on the new promotional list established in August, 1971.
     
      
      . Officer Nelson, who originally ranked second on the examination with a score of 88%, was the one promoted. The complainant, who originally ranked eighth, had a score of 79% on the 1967 test.
     