Opinion
Argued January 10, 1979
Decided February 15, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH A. SARAFITE, J.
Sybil H. Pollet and Gary J. Greenberg for appellants.
Allen G. Schwartz, Corporation Counsel (Allan Serrins and Karene Freeman of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court, New York County, with directions to remand to the New York City Commission on Human Rights for further proceedings in accordance herewith.
The commission could reasonably conclude that a prima facie case of retaliation had been established in view of the fact that one of the reasons stated for the complainant's discharge was her prior complaint of discrimination which had been dismissed by the commission. The commission erred however in concluding that it need not consider whether there is any substance to the other reasons stated by the petitioners as legitimate nonretaliatory grounds for the dismissal. The standard is not, as the commission suggests, that a discriminatory reason "fatally taints" the discharge; nor is the standard, as the petitioners suggest, that the employee must show that the discriminatory ground was the "sole reason" for the discharge.
Once the prima facie showing of discrimination had been made, the burden shifted to the petitioners to show that "the employee was terminated for some independent legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination" (Matter of Pace Coll. v Commission on Human Rights, 38 N.Y.2d 28, 40; see, also, Matter of Maloff v Commission on Human Rights, 38 N.Y.2d 329). Thus upon remittal, the commission should "weigh the evidence, make the permissible inferences, and * * * come to conclusions supported by the evidence" as to whether the unsatisfactory rating was, in this instance, based on legitimate nondiscriminatory grounds or whether those grounds were used as a pretext or were substantially influenced by discrimination (Matter of Pace Coll. v Commission on Human Rights, supra, p 40).
As to the appropriateness of the remittal to fix damages see Matter of Maloff v City Comm. on Human Rights (Schriber) ( 46 N.Y.2d 902 [decided herewith]).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum.
Order reversed, etc.