Appellate Division of the Supreme Court of the State of New York, Fourth Department.
Petition unanimously dismissed and State Division of Human Rights' cross motion for an order of enforcement unanimously granted, without costs.
Each of the complainants had been employed by petitioner for 18 to 22 years in the battery unit of the coke oven department at petitioner's Lackawanna, New York plant. There were 360 employees in this unit, 85% of whom were Negroes, but only six of whom served as foremen. The facts reveal that each of the complainants worked for varying years either as a subforeman or temporary foreman, but when they sought permanent title, questions regarding their qualifications were raised for the first time. No complaints as to their performance had been made prior thereto. Petitioner's own records reveal that criticisms regarding these two complainants, which petitioner advanced as its reason for failing to promote them, actually occurred over a year after they were returned to their original nonsupervisory positions. The record amply demonstrated that these two complainants were meritoriously comparable to the evaluations of the other promotional candidates. The fact that three out of seven persons appointed to supervisory positions in the coke oven department were Negroes is not, standing alone, sufficient to overcome the Commissioner's finding of discrimination, particularly where, as here, blacks accounted for such an extremely low percentage of supervisory positions relative to their numbers in the unit. It is reasonable to conclude that complainants were deserving of promotion on the basis of their records and experience as subforemen. Whites who were no more meritorious and with substantially less experience and seniority were preferred over them. The Commissioner's finding of discrimination in equal terms, conditions and privileges of employment is thus "supported by sufficient evidence on the record considered as a whole" (Human Rights Law, § 298). Similarly, the evidence regarding retaliation against these complainants in refusing to promote them because they had filed a complaint against petitioner is not merely a scintilla of evidence, but such substantial evidence as a reasonable mind might accept as adequate to support the conclusion reached. (Matter of Stork Rest. v. Boland, 282 N.Y. 256, 273-274.) "One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose." (Matter of Holland v. Edwards, 307 N.Y. 38, 45.) Petitioner has not denied its failure to comply with the Commissioner's order as affirmed by the Appeal Board and has alleged no fact showing that it will comply. Accordingly there is sufficient showing of the need for an enforcement order, and it should be granted (Bethlehem Steel Corp. v. New York State Div. of Human Rights, 36 A.D.2d 566; Matter of Moskal v. State of New York, 36 A.D.2d 46).