NEW YORK, May 4 (Reuters) - After three tries, an 86-year-old beer vendor struck out trying to prove discrimination when her employer at New York's Shea Stadium moved her but not her younger, able-bodied co-worker.
A New York state appeals court on Tuesday ruled there was no evidence Aramark Inc. discriminated against Mildred Block, who walks with a cane. The company insisted the reassignment was due to the excessive lines at her beer stand, not her age or any perceived disability. She was moved to a food concession stand and replaced with a 75-year-old employee, according to court papers.
The dispute started in 2008, when Block was 83. She earned about $40 in tips per shift. While the company, which ran concessions at the ballpark, said she was inefficient, Block said one of the managers told her son that Block was an "antique dinosaur, old cripple" that Aramark did not want in Citi Field, the Mets stadium that replaced Shea in 2009.
Money was not the issue, said her lawyer Martin Silberman. She would have made about $3,000 in tips for a season. "Nobody fights this long and this hard for $3,000," Silberman said. "It was about vindicating her rights under the statute not to have to work in an environment where that kind of statement can be made."
Aramark attributed the long lines to Block, but she worked in tandem with a man half her age, who was not reassigned, the lawyer said. "It would be impossible to attribute it to one or the other," Silberman said.
Block filed an administrative complaint for unlawful discrimination with the New York Commission on Human Rights, but Commissioner Patricia Gatling dismissed her petition after an investigation. Supreme Court Justice Joan Lobis affirmed the commission's determination and Aramark's cross-motion to affirm.
CHANGE OF RESPONSIBILITIES
The Appellate Division, First Department, unanimously affirmed the dismissal. "The transfer was merely an alteration of her responsibilities and did not result in a 'materially adverse change,' since petitioner retained the terms and conditions of her employment, and her salary remained the same," the decision said. "There also was substantial evidence that petitioner failed to substantiate her claim of discrimination based on disability, since she had neither requested nor been refused a reasonable accommodation."
Silberman said the commission focused on the salary, not the manager's derogatory comment. "The commission on human rights and the justice on the Supreme Court accepted the evidence submitted by the employer and none of that included any affidavits," he said. "In the face of a directly discriminatory comment, they needed to -- at the very least -- go to that person and obtain a denial under oath."
The appellate justices said the commission's investigation was sufficient and the determination was rational. Drew Wellin, a volunteer attorney who represented the city, agreed.
"We feel that the Human Rights Commission made the correct decision, and offered Ms. Block a full and fair opportunity to make her case," Wellin said.
Aramark said it had the right to reassign employees as it chose and Block's position is not a "tipped" position. It is a violation of company policy to solicit tips, the decision says.
The appellate case is Block v. Gatling et al, New York Appellate Division, No. 4953-109600/09.
For Block: Martin Silberman of Silberman Law Firm.
For the commission: Larry Sonnenshein of the New York City Law Department and Drew Wellin of Proskauer for the city.
For Aramark Inc.: August Heckman III of Morgan Lewis.
(Reporting by Jennifer Golson; Editing by Howard Goller)