Nominations sought for the Empire Star Public Service Award

This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.


To search this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Tuesday, May 17, 2016

An 18-year delay by the State Division of Human Rights in issuing its determination characterized as being “jurisprudentially intolerable”

An 18-year delay by the State Division of Human Rights in issuing its determination characterized as being “jurisprudentially intolerable”
Matter of New York State Dept. of Correction and Community Supervision v New York State Div. of Human Rights, 137 AD3d 1512, Appellate Division, Third Department

In August 1995 Kenneth W. Howarth filed the first of his two complaints with respondent State Division of Human Rights [SDHR] alleging that the New York State Department of Corrections and Community Supervision [DCCS] had discriminated against him on the basis of a disability.*

In the words of the Appellate Division, “SDHR did not commence hearings on the 1995 and 1997 complaints until 2004. Although the testimony was neither long nor complicated, the hearings were not concluded until 2006. Finally, in 2013, an Administrative Law Judge [ALJ] determined, among other things, that DCCS had granted light-duty assignments to employees with disabilities incurred on the job, whereas employees with disabilities that were not work related—such as Howarth—were denied light-duty assignments. The ALJ also found that DCCS had discriminated against Howarth by placing him on involuntary leave under the Civil Service Law, resulting in the use of leave accruals and leave without pay.”

The ALJ's recommended award directed DCCS to pay to the trustee in bankruptcy** any lost wages and benefits that had not been restored to Howarth for times that he was out of work between July 1994 and August 1997, as well as compensatory damages of $20,000 for mental anguish. To the extent of the "unrestored lost wages and benefits" was not determined, the State Comptroller was ordered to "perform an accounting" to supply this information and determine these amounts. DCCS was also ordered to revise its policy regarding light-duty assignment and provide discrimination prevention training to all of its employees.

The Commissioner of Human Rights adopted the ALJ's recommendations in December 2013, with some modifications not relevant here, and found DCCS guilty of an unlawful discriminatory practice based on disability.

DCCS appealed the Commissioner's determination.

Addressing a procedural issue, the Appellate Division rejected DCSS’s argument that because a public employer has discretion when using Civil Service Law procedures regarding an employee, SDHR did not have jurisdiction over this matter. The court held that where it is alleged that such procedures are used in a discriminatory manner under the Human Rights Law, SDHR does have jurisdiction.

However, the court said it agreed with DCCS’s argument that the complaints should be dismissed because of SDHR's delay in processing them. The controlling statute, said the court, “sets forth time limits, measured in mere days and months, requiring SDHR to promptly consider and determine discrimination complaints.” 

Although the Appellate Division noted it was well aware that [1] the time limits in Executive Law §297 are "directory only," citing Corning Glass Works v Ovsanik, 84 NY2d 619, [a case involving an eight-year delay] and [2] that these time limits "exist for the benefit of complainants and should not be used to shelter those charged with violating the statute unless there is a showing of substantial actual prejudice," the court said that “the time that elapsed here from the initial complaint until the Commissioner issued her final order was more than 18 years” and by an agency “long known for its troublesome and excessive delays.”

In the words of the Appellate Division, “this delay of nearly a generation has plumbed a new depth of administrative inertia that has, in our view, reached the point of being ‘jurisprudentially intolerable.’”

The court noted [1] that Howarth will receive no financial benefit here, inasmuch as the order directs payment to the trustee in bankruptcy; [2] although not in the record, it was represented at oral argument that Howarth is now deceased; [3] SDHR has made no effort to offer any explanation or excuse for its apparently unexplainable and indefensible delay; [4] there is no allegation that DCCS contributed to the delay, and [5] the complaints filed by Howarth presented issues that were relatively simple and straightforward.

In the court’s view, the most difficult part of the matter would have been reconstructing the unrestored lost wages and benefits for the various times that Howarth was out of work. Rather than SDHR making this determination, the Commissioner ordered the State Comptroller to do so.***

As to the Commissioner directing DCCS to draft a new light-duty assignment policy and embark on a discrimination prevention training program for all of its employees, the Appellate Division observed that this directive is based on DCCS's policy in effect two decades ago when the complaints were filed. Its imposition now, without regard to DCCS’s currently evolved policy and subsequent training, lacks support in the record and creates potentially expensive, time-consuming and unnecessary action by DCCS.

Finding that there is substantial prejudice to DCCS occasioned by this "intolerable delay" and that such delay is "an abuse of SDHR's discretion," the Appellate Division annulled SDHR’s determination.

* The second of these complaints filed with SDHR alleged that DCCS had discriminated against Howarth yet again because of disability and it had retaliated against him for having filed his first complaint.

** As a result of being out of work, as well as other factors, Howarth filed for bankruptcy in 1996.

*** Although the Commissioner cited no statutory or other authority giving her the power to order the Comptroller to conduct yet another administrative inquiry to gather the necessary information, the Appellate Division said it need not decide this issue as it was annulling the Commissioner's determination on other grounds.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.