New York State Division of Human Rights v. Wackenhut Corp.

—Determination unanimously confirmed without costs, petition dismissed and cross petition granted. Memorandum: The determination of the New York State Commissioner of Human Rights (Commissioner) that respondent, the Wackenhut Corporation (Wackenhut), discriminated against complainant by terminating her employment as a security guard in retaliation for her prior complaints of gender discrimination is supported by substantial evidence (see, Executive Law § 298; Matter of Consolidated Edison Co. v State Div. of Human Rights [Easton], 77 NY2d 411 , 415, rearg denied 78 NY2d 909 ). Complainant established a prima facie case of retaliation (see, Matter of Milonas v Rosa, 217 AD2d 825 , 825-826, Iv denied 87 NY2d 806 ). Although Wackenhut produced evidence “articulating a legitimate, independent and nondiscriminatory reason for its action” (Matter of Milonas v Rosa, supra, at 826 ), the Commissioner’s finding that the reason proffered was pretextual (see, Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937 , 939) is supported by substantial evidence. In addition, Wackenhut failed to prove that complainant did not exercise diligent efforts to mitigate her damages (see, Matter of Walter Motor Truck Co. v New York State Human Rights Ap

Present — Den-man, P. J., Lawton, Balio, Boehm and Fallon, JJ.