After the complainant employee sustained his de minimus burden of showing a prima facie case of age discrimination (see Schwaller v. Squire Sanders Dempsey, 249 A.D.2d 195, 196; and see Ferrante v. Am. Lung Assn., 90 N.Y.2d 623, 629), petitioner employer provided evidence meeting its consequent burden to set forth a legitimate, nondiscriminatory reason to support the termination (see id.), specifically a workforce reduction (see Matter of Laverack Haines v. New York State Div. of Human Rights, 88 N.Y.2d 734, 738-739; see also Hardy v. Gen. Elec. Co., 270 A.D.2d 700, 702, lv denied 95 N.Y.2d 765). However, there was substantial evidence that petitioner's proffered reason was false and that the actual motive was discrimination (see Ferrante, 90 N.Y.2d at 630), and thus respondent agency's finding that petitioner's asserted need to reduce its workforce was a mere pretext for discriminating against the complainant may not be disturbed (see Matter of State Div. of Human Rights [Cottongim] v. Onondaga County Sheriff's Dept., 71 N.Y.2d 623, 630-631). Substantial evidence also supports the finding that the complainant was diligent in seeking to mitigate lost earnings damages (see Rio Mar Rest. v. New York State Div. of Human Rights, 270 A.D.2d 47, 48, lv denied 95 N.Y.2d 763), and that he suffered mental distress that was reasonably related to petitioner's discriminatory conduct (see Matter of Hsu v. New York State Div. of Human Rights, 241 A.D.2d 913). The agency properly declined to offset the award by amounts not received as compensation for lost earnings (cf. Matter of Allender v. Mercado, 233 A.D.2d 153, appeal dismissed, lv denied 89 N.Y.2d 1055), including pension benefits (see Fisher v. Qualico Contr., 98 N.Y.2d 534, 538-539). We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.