Home/Appellate Division of the Supreme Court of New York/Pepsi-Cola Metropolitan Bottling Co v. State Human Rights Appeal Board

Pepsi-Cola Metropolitan Bottling Co v. State Human Rights Appeal Board

42 A.D.2d 760, 346 N.Y.S.2d 299, 6 Empl. Prac. Dec. (CCH) 8748, 1973 N.Y. App. Div. LEXIS 3755, 9 Fair Empl. Prac. Cas. (BNA) 1058
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 23, 1973
StatusPublished
Cited by7 cases

This text of 42 A.D.2d 760 (Pepsi-Cola Metropolitan Bottling Co v. State Human Rights Appeal Board) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pepsi-Cola Metropolitan Bottling Co v. State Human Rights Appeal Board, 42 A.D.2d 760, 346 N.Y.S.2d 299, 6 Empl. Prac. Dec. (CCH) 8748, 1973 N.Y. App. Div. LEXIS 3755, 9 Fair Empl. Prac. Cas. (BNA) 1058 (N.Y. Ct. App. 1973).

Opinion

Proceeding pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, dated May 8, 1972, which (a) reversed an order of the State Division of Human Rights, dated August 18, 1971, dismissing the complaint in question, (b) held there was probable cause to believe that petitioners had unlawfully discriminated against the complainant relating to employment and (c) remanded the matter to the division for further proceedings. Order of the Appeal Board annulled, on the law, and order of the division reinstated and confirmed, without costs. In our view, the Appeal Board erred in determining that the Division’s order dismissing the complaint on a finding of no probable cause was arbitrary, capricious and an abuse of discretion (Executive Law, § 297-a, subd. 7). The complaint charged petitioners with unlawfully terminating the. complainant’s employment in retaliation for previous complaints filed by him with the division against petitioners. The division’s dismissal of the complaint was based on its determination, after investigation, that the complainant had been discharged because of an unauthorized absence from his job assignment and that there was np. probable cause to believe that he had been terminated in retaliation for having filed previous complaints against petitioners. The record, considered as a whole, clearly justifies the division’s finding of no probable cause, in that the complainant unauthorizedly left his job assignment and refused to utilize petitioners’ available procedure for acquiring permission to leave the job assignment. In reversing the division’s order of dismissal and remanding the matter for further proceedings, the Appeal Board impermissibly exceeded the limited scope of its own review and substituted its own judgment for that of the division (WycTcoff Hgts. Hosp. v. State Div. of Human Bights, 38 A D 2d 596). Hopkins, Acting P. J., Munder, Martuscello, Shapiro and Brennan, JJ., concur.

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Bluebook (online)
42 A.D.2d 760, 346 N.Y.S.2d 299, 6 Empl. Prac. Dec. (CCH) 8748, 1973 N.Y. App. Div. LEXIS 3755, 9 Fair Empl. Prac. Cas. (BNA) 1058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pepsi-cola-metropolitan-bottling-co-v-state-human-rights-appeal-board-nyappdiv-1973.