green
Positive treatment
15.9 score
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986
2006
2026
Top citers, strongest first. 48 distinct citers.
discussed
Cited as authority (rule)
Hayes v. Hillside Family of Agencies
Even assuming, arguendo, that plaintiff established a prima facie case of discrimination based on her status as a domestic violence victim, we conclude that defendant met its initial burden on the cross-motion by establishing "legitimate, independent, and nondiscriminatory reasons to support its employment decision" ( Matter of Miller Brewing Co. v State Div. of Human Rights , 66 NY2d 937, 938 [1985]; see generally Davis v School Dist. of City of Niagara Falls , 4 AD3d 866, 867 [4th Dept 2004]; Roundtree v School Dist. of City of Niagara Falls , 294 AD2d 876, 877-878 [4th Dept 2002]).
discussed
Cited as authority (rule)
Long v. Aerotek, Inc.
It is far from clear as to whether the limited information provided by defendants constituted clear proof of "legitimate, independent, and nondiscriminatory reasons" for the behavior that led to plaintiff's resignation that was sufficient to rebut the inference of discrimination and shift the burden back to plaintiff to show those reasons to be pretextual ( Matter of Miller Brewing Co. v State Div. of Human Rights , 66 NY2d 937, 938 [1985]; accord Ferrante v American Lung Assn. , 90 NY2d 623, 629 [1997]).
discussed
Cited as authority (rule)
Figueroa v. New York State Division of Human Rights
Although petitioners established a prima facie case of retaliation, the District “came forward with ‘legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]’ ” (Matter of Childs v New York State Div. of Human Rights, 57 AD3d 1457 , 1458 [2008], lvs dismissed 12 NY3d 888 [2009], 13 NY3d 926 [2010], quoting Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]), and petitioners failed to show that those reasons were pretextual (see Matter of Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 129 [1995]).
discussed
Cited as authority (rule)
Figueroa v. New York State Division of Human Rights
Although petitioners established a prima facie case of retaliation, the District “came forward with ‘legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]’ ” (Matter of Childs v New York State Div. of Human Rights, 57 AD3d 1457 , 1458 [2008], lvs dismissed 12 NY3d 888 [2009], 13 NY3d 926 [2010], quoting Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]), and petitioners failed to show that those reasons were pretextual (see Matter of Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 129 [1995]).
discussed
Cited as authority (rule)
Lambert v. Macy's East, Inc.
The burden then shifts to the employer or employers “ ‘to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision’ ” (Ferrante v American Lung Assn., 90 NY2d at 629 , quoting Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).
discussed
Cited as authority (rule)
Lichtman v. Martin's News Shops Management, Inc.
The defendants met their prima facie burden of setting forth nondiscriminatory reasons for the plaintiffs termination (see Texas Dept. of Community Affairs v Burdine, 450 US 248, 254-255 [1981]; Ferrante v American Lung Assn., 90 NY2d at 629 ; Matter of Laverack & Haines v New York State Div. of Human Rights, 88 NY2d 734, 738 [1996]; Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).
discussed
Cited as authority (rule)
Monsay v. New York State Division of Human Rights
Even assuming, arguendo, that petitioner established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by petitioner by presenting the requisite “legitimate, independent, and nondiscriminatory reasons to support its employment decisión^]” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).
discussed
Cited as authority (rule)
Harrison v. Chestnut Donuts, Inc.
The burden then shifted to Chestnut Donuts to rebut the presumption of discrimination by presenting evidence of “legitimate, independent, and nondiscriminatory reasons to support its employment decision” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330).
discussed
Cited as authority (rule)
Wharton v. Town of North Hempstead
The burden then shifts to defendant “to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]; see also Ferrante, 90 NY2d at 629 ).
discussed
Cited as authority (rule)
Bemis v. New York State Division of Human Rights
The burden then shifted to GE to show “legitimate, independent, and nondiscriminatory reasons to support its employment decision” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).
discussed
Cited as authority (rule)
Stephenson v. Hotel Employees & Restaurant Employees Union Local 100
Defendants met their burden of rebutting plaintiffs’ prima facie age discrimination case by presenting admissible evidence of a “legitimate, independent, and nondiscriminatory reason[ ]” for the termination of plaintiffs’ employment (Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997], quoting Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).
discussed
Cited as authority (rule)
Davis v. School District of City of Niagara Falls
Even assuming, arguendo, that plaintiff established a prima facie case of age discrimination, we conclude that defendants established “legitimate, independent, and nondiseriminatory reasons to support its employment decision” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]; see Roundtree v School Dist. of City of Niagara Falls, 294 AD2d 876, 877 [2002]).
discussed
Cited as authority (rule)
Clark v. Town of New Hartford Department of Buildings & Grounds
Even assuming, arguendo, that decedent established a prima facie case of age discrimination, we conclude that the Town came forward with “legitimate, independent, and nondiscriminatory reasons to support its employment decision [s]” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]; see Matter of Laverack & Haines v New York State Div. of Human Rights, 88 NY2d 734, 738-739 [1996]; Bockino v Metropolitan Transp.
discussed
Cited as authority (rule)
Forrest v. Jewish Guild for the Blind
The bias inherent in the reprehensible remarks alleged does not alone satisfy the plaintiff’s burden of showing that defendants’ explanations for the complained-of conduct are pretextual; yet, she has offered nothing else tending to show that the nondiscriminatory reasons for defendants’ conduct toward plaintiff were false or that their conduct toward her was actually motivated by bias (see Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 939 [1985]).
discussed
Cited as authority (rule)
Horwitz v. L. & J.G. Stickley, Inc.
Assuming without deciding that plaintiff made the required showing here, the burden then shifted to defendant “ To rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision’ ” (Ferrante v American Lung Assn., supra at 629, quoting Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).
cited
Cited as authority (rule)
King v. Brooklyn Sports Club
Group, supra at 612; cf., Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 939 [1985]).
discussed
Cited as authority (rule)
Arendt v. General Electric Co.
School Dist. of Greenlawn, 136 F3d 104 , 109-110 [1998]), our review of the record reveals that defendant convincingly rebutted the presumption of discrimination by setting forth “legitimate, independent, and nondiscriminatory reasons to support its employment decision [s]” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]; see Ferrante v American Lung Assn., supra).
discussed
Cited as authority (rule)
Kelderhouse v. St. Cabrini Home
Accordingly, the burden shifted to plaintiff to prove by a preponderance of the evidence that defendants’ stated reason for his termination was merely a pretext for discrimination (see, Matter of Miller Brewing Co. v State Div. of Human Rights, supra, at 938-939; see also, Texas Dept. of Community Affairs v Burdine, 450 US 248, 252-253 ).
cited
Cited as authority (rule)
Zenni v. Hard Rock Cafe International, Inc.
Div. of Human Rights, 66 N.Y.2d 937, 938 , 489 N.E.2d 745, 746 , 498 N.Y.S.2d 776, 777 (1985). 8 .
discussed
Cited as authority (rule)
Alie v. Nynex Corp.
These standards also apply with equal force to employment discrimination claims arising under the New York Executive Law and the New York City Charter and Administrative Code. 2 See, e.g., Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.1992); Strauss v. Microsoft Corp., 814 F.Supp. 1186 , 1190 n. 5 (S.D.N.Y.1993); Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938-39 , 498 N.Y.S.2d 776, 777-78 , 489 N.E.2d 745, 746-47 (1985); Pace College v. Commission on Human Rights, 38 N.Y.2d 28, 33 , 377 N.Y.S.2d 471, 474 , 339 N.E.2d 880, 881 (1975).
discussed
Cited as authority (rule)
Sogg v. American Airlines Inc.
Once defendant does so, in order to prevail plaintiff must prove, by a preponderance of the evidence, that the defendant’s stated reasons are only a pretext for discrimination (Texas Dept. of Community Affairs v Burdine, supra, at 252-253; Matter of Miller Brewing Co. v State Div of Human Rights, supra, at 938-939).
discussed
Cited as authority (rule)
Strauss v. Microsoft Corp.
(2×)
See, e.g., Song v. Ives Laboratories, Inc. 957 F.2d 1041, 1046 (2d Cir.1992); Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938-39, 498 N.Y.S.2d 776, 777-78 , 489 N.E.2d 745, 746-47 (1985). 6 .
cited
Cited as authority (rule)
Spence v. Maryland Casualty Co.
Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776, 778 , 489 N.E.2d 745, 746 (1985).
discussed
Cited "see"
Childs v. New York Division of Human Rights
Even assuming, arguendo, that petitioner established a prima facie case of sex discrimination or retaliation (see Executive Law § 296 [1] [a]; [7]; see generally Rainer N. Mittl, Ophthalmologist, P.C., 100 NY2d at 330 ), we conclude that the Department came forward with “legitimate, independent, and nondiscriminatory reasons to support its employment decision^]” (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]; see generally Matter of Laverack & Haines v New York State Div. of Human Rights, 88 NY2d 734, 738-739 [1996]; Bockino v Metropolitan Transp.
examined
Cited "see"
Allen v. Advanced Digital Information Corp.
(3×)
See Brown v. County of Oneida, 41 F.Supp.2d 172, 180 (N.D.N.Y.1999) (citing Tomka v. Seiler, 66 F.3d 1295 , 1304 n. 4 (2d Cir.1995) (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985))); see also Weinstock v. Columbia Univ., 224 F.3d 33 , 42 n. 1 (2d Cir.2000) (identical standards apply to employment discrimination claims brought under both Title VII and N.Y.
examined
Cited "see"
Cox v. Quick & Reilly, Inc.
(3×)
See Tomka v. Seiler, 66 F.3d 1295 , 1304 n. 4 (2d Cir.1995) (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985)); see also Stetson v. NYNEX Serv.
examined
Cited "see"
Dunbar v. County of Saratoga
(3×)
See Tomka v. Seiler, 66 F.3d 1295 , 1304 n. 4 (2d Cir.1995) (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985)); see also Stetson v. NYNEX Serv.
discussed
Cited "see"
Samide v. Roman Catholic Diocese
In analyzing these claims, “New York courts have often relied upon federal law for guidance in the development of its Human Rights Law” (Nacinovich v Tullett & Tokoyo Forex, Inc., 1998 WL 1050971 , *3 [Sup Ct, NY County, May 18, 1998]; see, Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937 ).
examined
Cited "see"
Treglia v. Town of Manlius
(3×)
See Miller Brewing Company v. State Division of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985); Van Zant v. KLM Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996).
examined
Cited "see"
Aguirre v. New York State Police
(3×)
See Miller Brewing Co. v. State Div. of Human Rights., 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985); Kersul v. Skulls Angels, Inc., 130 Misc.2d 345 , 495 N.Y.S.2d 886 (1985).
examined
Cited "see"
Carroll v. Bayeriche Landesbank
(3×)
See Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985).
examined
Cited "see"
Epstein v. Kalvin-Miller International, Inc.
(3×)
See Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (citing Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 , 498 N.Y.S.2d 776 , 489 N.E.2d 745, 747 (1985)).
examined
Cited "see"
Epstein v. Kalvin-Miller International, Inc.
(3×)
See Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (quoting Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 , 498 N.Y.S.2d 776 , 489 N.E.2d 745, 747 (N.Y.1985)); see also, e.g., O’Connor v. Frawley, 175 A.D.2d 781 , 573 N.Y.S.2d 675 , 676 (1st Dep’t 1991).
discussed
Cited "see"
Bembry v. Darrow
(2×)
See Miller Brewing Company v. State Division of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 745 , 489 N.E.2d 745 (1985); Van Zant v. KLM Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996).
discussed
Cited "see"
Kathy Coraggio v. Time Inc. Magazine Company, Time Warner, Inc., Karen Magee, Lisa Pols
See Miller Brewery Co. v. State Div'n of Human Rights, 498 N.Y.S.2d 776, 777-78 (N.Y.1985). 7 Accordingly, we hold that the district court did not abuse its discretion when it exercised pendent jurisdiction over plaintiff's state law claims and dismissed those claims on the merits, notwithstanding its decision to dismiss plaintiff's federal claim. 8 We have considered all of the plaintiff's arguments on appeal and find them to be without merit. 9 Accordingly, the judgment of the District Court is hereby AFFIRMED.
examined
Cited "see"
Parker v. Chrysler Corp.
(3×)
See Miller Brewing Co. v. State Division of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985).
examined
Cited "see"
Anthony Sutera v. Schering Corporation
(3×)
See Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938-39 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985).
discussed
Cited "see"
Landwehr v. Grey Advertising Inc.
In this deduction of workforce” case, plaintiff has sufficiently proven a prima facie case of age discrimination under the Human Rights Law and the Administrative Code of the City of New York pursuant to the requirements enunciated in McDonnell Douglas Corp. v Green ( 411 US 792 ; see, Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937 ; Ioele v Alden Press, 145 AD2d 29 ).
examined
Cited "see"
Perry v. Prudential-Bache Securities, Inc.
(3×)
See Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985).
examined
Cited "see, e.g."
Hargett v. New York City Transit Authority
(3×)
See, e.g., Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938-939 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985); Leopold v. Baccarat, Inc., 174 F.3d 261 , 264 n. 1 (2d Cir.1999); Cruz v. Coach Stores, Inc., 202 F.3d 560 , 565 n. 1 (2d Cir.2000).
examined
Cited "see, e.g."
Faggiano v. Eastman Kodak Co.
(3×)
See, e.g., Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985); O’Connor v. Frawley, 175 A.D.2d 781 , 573 N.Y.S.2d 675 , 676 (lst'Dep’t 1991); lóele v. Alden Press, Inc., 145 A.D.2d 29, 35 , 536 N.Y.S.2d 1000 (1st Dep’t 1989).” Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). 8 .
examined
Cited "see, e.g."
Turner v. National Railroad Passenger Corp.
(3×)
See, e.g., Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 , 498 N.Y.S.2d 776, 778 , 489 N.E.2d 745, 747 (1985); O’Connor v. Frawley, 175 A.D.2d 781 , 573 N.Y.S.2d 675 , 676 (1st Dep’t 1991); loele v. Alden Press, Inc., 145 A.D.2d 29, 35 , 536 N.Y.S.2d 1000, 1003 (1st Dep't 1989).
examined
Cited "see, e.g."
Dunson v. Tri-Maintenance & Contractors, Inc.
(3×)
See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) (“Although there are differences between the State [Human Rights Law ‘HRL’], the City HRL and the ... [ADEA], age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA.”); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.1992) (noting that “elements of proof of liability for a case commenced under [New York State Human Rights Law] have been the same as those required under the federal age discrimination in employment act”); …
discussed
Cited "see, e.g."
Town of Lumberland v. New York State Division of Human Rights
Further, Golembiowsky’s qualifications for the position as well as the Town Supervisor’s testimony that, at the time of her 1988 reappointment, he felt that Golembiowsky was a good officer and all of the Town Board members had voted for her reappointment, clearly satisfied her initial burden such that petitioner was required to present evidence of a legitimate, independent and nondiscriminatory reason for its failure to reappoint her (see, Matter of Milonas v Rosa, 217 AD2d 825, 826 , lv denied 87 NY2d 806 ; see also, Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, …
examined
Cited "see, e.g."
Melnyk v. Adria Laboratories
(3×)
In applying this statute, New York courts have looked to federal cases interpreting federal discrimination statutes “for purposes of determining the elements of a prima facie case and the shifting burdens of proof [sic] in discrimination cases.” Mastrangelo v. Kidder, Peabody and Co., Inc., 722 F.Supp. 1126 (S.D.N.Y.1989); see e.g., Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 (1985); Ioele v. Alder Press, Inc., 145 A.D.2d 29 , 536 N.Y.S.2d 1000 (1st Dept. 1989).
examined
Cited "see, e.g."
Alvin Joel TYLER, Plaintiff-Appellee Cross-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellant Cross-Appellee
(3×)
See, e.g., Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938-39 , 489 N.E.2d 745, 746-47 , 498 N.Y.S.2d 776, 777-78 (1985); Grumman Aerospace Corp. v. New York State Div. of Human Rights, 151 A.D.2d 573, 573 , 542 N.Y.S.2d 681, 682 (2d Dep’t 1989) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989)); Ioele v. Alden Press, Inc., 145 A.D.2d 29, 35 , 536 N.Y.S.2d 1000, 1003 (1st Dep’t 1989).
examined
Cited "see, e.g."
Samuel S. SONG, Plaintiff-Appellant, v. IVES LABORATORIES, INC., Defendant-Appellee
(3×)
See, e.g., Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 , 498 N.Y.S.2d 776, 778 , 489 N.E.2d 745, 747 (1985); O'Connor v. Frawley, 573 N.Y.S.2d 675 , 676 (1st Dep’t 1991); Ioele v. Alden Press, Inc., 145 A.D.2d 29, 35 , 536 N.Y.S.2d 1000, 1003 (1st Dep’t 1989).
examined
Cited "see, e.g."
Mastrangelo v. Kidder, Peabody & Co., Inc.
(3×)
See e.g., Miller Brewing Co. v. State Division of Human Bights, 66 N.Y.2d 937 , 498 N.Y.S.2d 776 , 489 N.E.2d 745 , (1985) (citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973)); loele v. Alden Press, Inc., 145 A.D.2d 29 , 536 N.Y.S.2d 1000 (1st Dep’t 1989).
In the Matter of Miller Brewing Company
v.
State Division of Human Rights
v.
State Division of Human Rights
New York Court of Appeals.
Dec 17, 1985.
APPEARANCES OF COUNSEL, David Rees Davies for appellant., Martin N Silberman for respondents.
Cited by 116 opinions | Published
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be - reversed, without costs, and the matter remitted for further proceedings.
We agree with the Appellate Division that complainants, former employees of Better Brands, Inc., established a prima facie showing that they had been subject to employment discrimination by Miller based upon their age. The Appellate Division erred, however, in holding that Miller failed to rebut the presumption of discrimination. Establishment of the prima facie case by complainants shifted the burden to Miller to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. (Matter of Pace Coll, v Commission of Human Rights, 38 NY2d 28, 38; Texas Dept. of Community Affairs v Burdine, 450 US 248, 254-256.)
An examination of the record indicates that the general sales manager of Better Brands, who also had the responsibility for the selection of former Better Brands’ employees for employment, had articulated legitimate, independent and non[*939] discriminatory reasons to support the decision not to hire complainants. Specifically, the general sales manager testified: "The only directive that I received was to pick the strongest proficient people with * * * merchandising skills and techniques * * * I utilized my personal knowledge and the knowledge of my sales managers on those that were aggressive and ambitious, strong merchandisers that had demonstrated their ability to merchandise over the last twelve, fourteen months.” Thus, the record contains evidence that Miller’s employment decision was predicated upon lawful business considerations of merchandising proficiency, aggressiveness, and experience, which the Division of Human Rights improperly declined to weigh against the prima facie case of employment discrimination. Accordingly, this matter should be remitted to the Division of Human Rights to afford complainants the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” (Texas Dept. of Community Affairs v Burdine, 450 US 248, 253, supra, citing McDonnell Douglas Corp. v Green, 411 US 792, 804.)
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to the Appellate Division, Second Department, with directions to remand to the State Division of Human Rights for further proceedings in accordance with the memorandum herein.