A unanimous panel of the New York Appellate Division, 4th Department, has ruled that a gay Onondaga County probation officer is entitled to enforcement of the State Division of Human Rights order that he be reinstated to a supervisory position and awarded $43,000 as compensatory damages for his lost wages and mental anguish as a result of discriminatory action against him by the County Department of Probation. County of Onondaga v. Mayock & N.Y. State Division of Human Rights, 2010 Westlaw 4542948 (Nov. 12, 2010).
According to the decision by Administrative Law Judge Margaret A. Jackson, which was adopted by the Commission, Brian Mayock, an openly gay man, began working for the Probation Department in November 1990, and was soon advanced to the rank of general supervisor. The following year, he socialized with a probationer and drove him to Alcoholics Anonymous meetings (a violation of Department rules). The probationer thought Mayock was crowding him too much with unwanted personal attention and complained to the Probation Department, which sought to prosecute Mayock, but the case fell apart when the probationer did not want to be involved as a witness. Attempts to get Mayock to resign were unsuccessful, but eventually he agreed to admit that he had violated the Department's rules and he was docked 10 days vacation pay.
Mayock was reassigned to an investigations unit, on the rationale that he would have less direct involvement with probationers, but nonetheless a second incident occurred when he met another probationer at an AA meeting and went home with the probationer and his wife, where he was spotted by another probation officer and reported. This led to him being required to sign a directive that he was not supposed to have contact outside of work with anybody currently or previously on probation, after which he was transferred to a "desk job."
In 1993, the Department adopted a new Code of Conduct that specifically prohibited probation officers from having intimate relations with pobationers. In November of that year, Mayock was transferred back into a probation unit as a supervisor where he resumed making home visits on probationers, and continued to work without incident until the events that precipitated this case.
In November 2001, other staff members reported seeing a young male probationer get out of Mayock's truck. The young man was questioned and stated that he was gay, and Mayock was taken off his case. Neither of them admitted having any kind of inappropriate relationship, Mayock insisting he was just giving the man a ride to a class, which would not violate any specific Department rule. Nonetheless, Mayock was transferred to an investigations unit, accused of "spending too much time with a probationer under his supervision" and citing also the 1991 incident.
In December 2002, Mayock was permanently transferred to an investigations unit in a non-supervisory position in which he did not make field visits, and he became ineligible to earn overtime that he had normally earned as a supervisor. The Commissioner of Probation also instructed Mayock's supervisors not to assign him to investigate any cases involving young males, and that he should remain in an investigations unit under such a restriction as long as he worked for the Department. Mayock submitted numerous applications for transfers in response to posted openings, but all were rejected.
ALJ Jackson found, "When Complainant inquired why he had not been transferred back to a supervisory position, he was told that he had superior writing skills and superior analytical abilities that were needed in the investigation unit. Complainant's evaluations repeatedly indicated that he is underutilized in his current position as an investigator and that he has the necessary skills and approach that would be a major asset to supervision." When challenged on the refusal to move Mayock back into a supervisory position, the Department's response has been that "it is obligated to protect the public and probationers from probation officers that might cause them harm," and they didn't want to take a risk by assigning Respondent to situations where he would have contact with young male probationers.
In 2006, Mayock filed his discrimination complaint with DHR, alleging that the permanent re-assignment to investigations was based on his sexual orientation, and that the emotional distress he has suffered in connection with this discrimination was severe. The ALJ found that Mayock was well qualified for transfer back into a supervisory probation position, that he had "excellent evaluations and was clearly qualified," and that the Department had not "offered a legitimate business reason for its actions because Respondent fails to explain why Complainant held a variety of supervisory positions between 1993 and 2002, if the 1991 incidents were the paramount reasons for not giving [him] a supervisory position." The Judge found the Department's articulated reasons for its treatment of Mayock to be "unreasonable and pretextual," and ordered reinstatement to a supervisory position with damages for his lost overtime earnings and emotional distress.
In upholding this ruling, the Appellate Division panel found that this decision was supported by substantial evidence in the record. "Contrary to petitioner's contention," wrote the court, "we conclude that a rational basis exists for the determination that complainant established a prima facie case of discrimination by a preponderance of the evidence. Furthermore, there is a rational basis for the determination that petitioner's decision 'to penalize Complainant indefinitely was unreasonable and pretextual.' and thus that petitioner failed to rebut the presumption of discrimination by failing to provide nondiscriminatory reasons to support its decision." The court also found that record evidence supported the award of damages for mental anguish, not evidence about loss of sleep, loss of weight, intestinal problems, lack of motivation, and isolation and withdrawal from friends and co-workers. Only $25,000 of the damage award was for mental anguish, the rest being lost overtime pay, and the court found this amount supported by the record.
In effect, the Department treated smoke as fire; because Mayock was openly gay and had once, long again, become inappropriately involved with a male probationer, they overreacted to recent signs of friendliness to young male probationers with a punitive reassignment that seemed to be based on a stereotyped view of a gay male probation officer, in the absence of any evidence that he was not abiding by current Department rules regarding intimate relations with probationers. The resulting decision is a welcome rejection of stereotypical treatment of a gay employee.
Michael Swirsky, an appellate attorney for DHR, defended the Division's decision in the 4th Department.