        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

579
TP 16-01824
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF ALEKSANDR KLIMOV, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND
NEW YORK STATE DEPARTMENT OF TRANSPORTATION,
RESPONDENTS.


CHIACCHIA & FLEMING, LLP, HAMBURG (LISA A. POCH OF COUNSEL), FOR
PETITIONER.

AARON M. WOSKOFF, BRONX, FOR RESPONDENT NEW YORK STATE DIVISION OF
HUMAN RIGHTS.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA OF
COUNSEL), FOR RESPONDENT NEW YORK STATE DEPARTMENT OF TRANSPORTATION.


     Proceeding pursuant to Executive Law § 298 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Deborah A.
Chimes, J.], entered June 14, 2016) to review a determination of
respondent New York State Division of Human Rights. The
determination, among other things, dismissed petitioner’s claims of
unlawful discrimination based on national origin.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs, and the petition and cross petition are
dismissed.

     Memorandum: Petitioner commenced this proceeding pursuant to
Executive Law § 298 seeking to annul that part of the determination of
respondent New York State Division of Human Rights (SDHR) that
dismissed his complaint to the extent that he alleged unlawful
discrimination based on national origin. SDHR filed a cross petition
seeking to confirm and enforce that part of the determination finding
that respondent New York State Department of Transportation (employer)
unlawfully retaliated against petitioner, awarding him compensatory
damages, and imposing a civil fine on the employer. The proceeding
arises from a complaint filed by petitioner after the employer
declined to promote him to a supervisory position. Petitioner was
born in the former Soviet Union, and English is his second language.

     Our review of an administrative determination made after a
hearing is limited to whether it is supported by substantial evidence
                                 -2-                           579
                                                         TP 16-01824

(see Matter of Town of Islip v New York State Pub. Empl. Relations
Bd., 23 NY3d 482, 492; Matter of Russo v New York State Div. of Human
Rights, 137 AD3d 1600, 1600). “An administrative agency’s
determination need not be the only rational conclusion to be drawn
from the record[, and] the existence of other, alternative rational
conclusions does not warrant annulment of the agency’s conclusion”
(Matter of Jennings v New York State Off. of Mental Health, 90 NY2d
227, 239). It is well settled that, “in making a substantial evidence
determination, we do not weigh the evidence or assess the credibility
of the testimony presented” (Matter of DeOliveira v New York State
Pub. Empl. Relations Bd., 133 AD3d 1010, 1011 [internal quotation
marks omitted]; see Matter of Chenango Forks Cent. Sch. Dist. v New
York State Pub. Empl. Relations Bd., 21 NY3d 255, 267).

     We conclude that there is substantial evidence to support the
determination that the employer did not discriminate against
petitioner based on national origin. Even assuming, arguendo, that
petitioner met his burden of establishing a prima facie case of
discrimination based on national origin, we conclude that the employer
“presented a legitimate, independent and nondiscriminatory reason to
support its decision to offer the position to another employee”
(Matter of Scheuneman v New York State Div. of Human Rights, 147 AD3d
1523, 1524; see generally Forrest v Jewish Guild for the Blind, 3 NY3d
295, 305). At the hearing, members of the employer’s interview
committee testified that petitioner was not selected for promotion
based on their concerns that he could not communicate effectively in
the English language. Contrary to petitioner’s contention, an
employment determination based solely on a person’s ability to
communicate in the English language is not based on national origin
when such skills are “reasonably related” to the position (Fragante v
City & County of Honolulu, 888 F2d 591, 596-597, cert denied 494 US
1081; see Velasquez v Goldwater Mem. Hosp., 88 F Supp 2d 257, 262; see
generally People v Aviles, 28 NY3d 497, 502-503).

     We agree with the employer that the cross petition must be
dismissed as moot inasmuch as there is no dispute that the employer
has satisfied its obligations under the determination (see generally
Matter of Clark v New York State Dept. of Corr. & Community
Supervision, 138 AD3d 1331, 1332).




Entered:   May 5, 2017                         Frances E. Cafarell
                                               Clerk of the Court
