Executive Law Proceeding Transferred by Order of Supreme Court, Monroe County, Wisner, J.
Determination unanimously confirmed without costs, petition dismissed and cross petition granted. Memorandum: The determination of the New York State Commissioner of Human Rights (Commissioner) that respondent, the Wackenhut Corporation (Wackenhut), discriminated against complainant by terminating her employment as a security guard in retaliation for her prior complaints of gender discrimination is supported by substantial evidence ( see, Executive Law § 298; Matter of Consolidated Edison Co. v. State Div. of Human Rights [Easton], 77 N.Y.2d 411, 415, rearg denied 78 N.Y.2d 909). Complainant established a prima facie case of retaliation ( see, Matter of Milonas v. Rosa, 217 A.D.2d 825, 825-826, lv denied 87 N.Y.2d 806). Although Wackenhut produced evidence "articulating a legitimate, independent and nondiscriminatory reason for its action" ( Matter of Milonas v. Rosa, supra, at 826), the Commissioner's finding that the reason proffered was pretextual ( see, Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939) is supported by substantial evidence. In addition, Wackenhut failed to prove that complainant did not exercise diligent efforts to mitigate her damages ( see, Matter of Walter Motor Truck Co. v. New York State Human Rights Appeal Bd., 72 A.D.2d 635, 636). Thus, the award of back pay was proper.
Present — Denman, P.J., Lawton, Balio, Boehm and Fallon, JJ.