
    Long Island Rail Road Company et al., Petitioners, v. New York State Division of Human Rights et al., Respondents.
   In a proceeding pursuant to section 298 of the Executive Law, petitioners seek review of an order of the State Human Rights Appeal Board, dated January 18, 1973, which reversed and vacated a determination of the State Division of Human Rights • dismissing the complaint on a finding of no probable cause and remanded for' further proceedings. Petition granted, without costs, order of the State Human Rights Appeal Board annulled; and order of the State Division of Human Rights reinstated. In our opinion, the Appeal Board erred in determining that the division’s order which dismissed the complaint on a finding of no probable cause was arbitrary and capricious (Executive Law, § 297-a, subd. 7). The complainant, a woman possessing both B. A. and M. A. credits towards her Ph. D. and 7 years of teaching experience, charged petitioners with Unlawful discrimination by refusing to hire her as a clerk because of her sex. She claimed that she had been unjustly rejected on the ground of “over-qualification”, inasmuch as male job applicants with similar backgrounds were granted employment. The record, considered as a whole, clearly justifies the division’s finding of no probable cause. It not only appears that petitioners also rejected college-educated male job applicants whose sole experience was in teaching, but that males with some college background who were hired as clerks additionally possessed several years of business, sales or clerical experience. Whether petitioners discriminated against women on the managerial level or were correct in their assumption that complainant’s background would not render her a very satisfied clerk-employee, are not the relevant issues here. The sole issue is whether or not petitioners discriminated against complainant by refusing to hire her as a clerk because of her sex. By vacating the division’s order of dismissal, the board impermissibly exceeded the limited scope of its own review and arbitrarily substituted its own judgment for that of the division. Hopkins, Acting P. J., Munder, Latham and Christ, JJ., concur. Benjamin, J., dissents and votes to confirm the order of the Appeal Board.  