Opinion
February 4, 1999
Appeal from the Supreme Court (Teresi, J.).
In this action commenced pursuant to Executive Law § 296 Exec., plaintiff charges that defendants discriminated against him by permanently demoting him from his position as Deputy Superintendent for Program Services at Orleans Correctional Facility in Orleans County. His demotion resulted because of an incident in which he, and the then-facility Superintendent, James Wilkinson, both white men, allegedly subjected another facility Deputy Superintendent who was an African American, Frank Irvin, to ridicule by posting a photograph on the latter's door. The photograph depicted a bird-like stuffed animal approximately 18 inches tall with a long, multicolored beak and black body, wearing a black and white striped shirt, with a ball and chain attached to one of its ankles, placed behind the nameplate on Irvin's desk. Insulted, for he felt it was racist and evocative of Jim Crow, Irvin reported the occurrence to his superiors and, thereafter, upon the recommendation of Marion Borum, the Department of Correctional Services' Deputy Superintendent for Program Services, plaintiff was demoted. After several appeals ( see, 244 A.D.2d 636; 135 A.D.2d 1005), the matter was ultimately tried and a jury found that plaintiff had indeed been discriminated against and awarded him $90,000 for emotional pain and suffering and $238,000 in lost wages and benefits. Defendants appeal.
Without objection, Supreme Court instructed the jury — and the case went to trial — on a mixed motive theory of discrimination. "The standards for recovery under section 296 Exec. of the Executive Law [being] in accord with Federal standards under title VII of the Civil Rights Act of 1964" ( Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629), the decisions of Federal courts may be looked to for guidance in applying the mixed motive analysis ( see, e.g., Kipper v. Doron Precision Sys., 194 A.D.2d 855, 856-857). From those authorities, it is apparent that the burden is on the plaintiff to show that an illegitimate factor — such as race — played a motivating or substantial role in the defendant's employment decision ( see, Kirsch v. Fleet St., 148 F.3d 149, 162; Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181, cert denied 506 U.S. 826). If the plaintiff presents sufficient evidence to support an inference of impermissible discrimination, the burden then shifts to the employer to show that the employment decision would have been reached in the absence of that impermissible motive ( see, Tyler v. Bethlehem Steel Corp., supra, at 1181). Given these principles, the verdict should not be disturbed, for the record does not so preponderate in defendants' favor that the jury could not have reached its verdict by any fair interpretation of the evidence ( see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746; Santalucia v. County of Broome, 228 A.D.2d 895, 896).
Borum testified that the Department of Correctional Services (hereinafter DOCS) was making a concerted effort to increase the number of minority employees in administrative roles at upstate correctional facilities. He acknowledged, however, that poor treatment of these employees upstate made it difficult to accomplish this goal. As a consequence, when this incident occurred, Borum firmly believed that if plaintiff was not downgraded, it would "dampen" the desire of minorities to accept positions upstate in that it would signal to them the sort of treatment that they would be forced to endure. It takes no great imagination to conclude that the jury could have inferred from this testimony that Borum perceived this to be a racial event and, further, that Borum's perception was driven by the fact that plaintiff was white and Irvin was black, rather than the more objective view that the incident was merely an ill-advised prank. In this regard, plaintiff's expert in the field of labor/management relations and employment discrimination testified that the bird appearing in the photograph belies intimation of racial animus, as it did not resemble a crow and it was multicolored. Moreover, there was sufficient evidence within the record from which the jury could infer that plaintiff would not have been demoted had this incident not been considered racially motivated. This is borne out by a memorandum sent by Borum expressing concern as to the effect that tolerating the prank would have on interracial relationships and, as already noted, the dire impact it would have on DOCS' efforts to induce minorities to seek positions at upstate facilities.
Lastly, we find that any error occasioned by Supreme Court's decision to give an adverse inference charge in regard to defendants' witness, former DOCS Commissioner Thomas Coughlin, was harmless. Although the record indicates that Coughlin was not available, ostensibly because of circumstances beyond defendants' control, defendants were permitted to present evidence bearing on the reasons for Coughlin's absence and the jury was instructed that they could draw an adverse inference only if they found the explanation for his absence unreasonable.
Cardona, P. J., Mercure, Carpinello and Graffeo, JJ., concur.
Ordered that the judgment is affirmed, with costs.