State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 520412 

________________________________

In the Matter of NEW YORK

STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY

SUPERVISION,

Petitioner,

v MEMORANDUM AND JUDGMENT

NEW YORK STATE DIVISION OF

HUMAN RIGHTS,

Respondent,

et al.,

Respondents.

________________________________

Calendar Date: February 10, 2016

Before: Peters, P.J., Garry, Rose, Devine and Clark, JJ.

__________

Kevin P. Bruen, New York State Department of Corrections

and Community Supervision, Albany (Benjamin H. Rondeau of

counsel), for petitioner.

Caroline Downey, New York State Division of Human Rights,

New York City (Toni Ann Hollifield of counsel), for New York

State Division of Human Rights, respondent.

__________

Rose, J.

Proceeding pursuant to Executive Law § 298 (transferred to

this Court by order of the Supreme Court, entered in Albany

County) to review a determination of the Commissioner of Human

Rights which, among other things, found petitioner guilty of an

unlawful discriminatory practice based on disability.
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Kenneth W. Howarth suffered from neurocardiogenic syncope,

a condition that caused him to occasionally faint while

performing his duties as a correction officer employed by

petitioner. Howarth fainted as he left work in his car in July

1994, causing an accident, and petitioner placed him on

involuntary leave pending a medical examination pursuant to Civil

Service Law § 72. Because his request for a light-duty

assignment was denied, he was required to exhaust his accumulated

leave time, after which he earned no salary until the medical

unit of respondent Department of Civil Service found him fit and

he was returned to duty in October 1994. Two months later,

Howarth again fainted at work, and petitioner again placed him on

involuntary leave. Petitioner again denied Howarth's request for

a light-duty assignment and terminated his employment in January

1995. Howarth contested his termination under the Civil Service

Law and, in August 1995, he also filed the first of his two

complaints with respondent State Division of Human Rights

(hereinafter SDHR) alleging that petitioner had discriminated

against him on the basis of a disability. In September 1995, a

hearing officer restored him to his job with back pay and

benefits. 

As a result of being out of work, as well as other factors,

Howarth filed for bankruptcy in 1996. In April 1997, he again

fainted at work and was again placed on involuntary leave. 

Although he was found fit to return to work by the Department of

Civil Service in June 1997, he was involved in yet another motor

vehicle accident in July 1997 and again placed on involuntary

leave. He then filed the second of these complaints with SDHR

alleging that petitioner had discriminated against him again and

also retaliated against him for his first complaint. Once again,

he was found fit by the Department of Civil Service, he returned

to work in August 1997 with restored pay and benefits, and

ultimately he was promoted to sergeant. 

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. 

Seven years then passed without a decision. Finally, in 2013, an

Administrative Law Judge (hereinafter ALJ) determined, among

other things, that petitioner had granted light-duty assignments
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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 found that

petitioner 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 petitioner 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, but the extent of the unrestored lost wages and

benefits was not determined. Instead, the Comptroller was

ordered to "perform an accounting" to supply this information and

determine these amounts. Petitioner 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 this

proceeding to review the determination ensued. 

Initially, we are unpersuaded by petitioner'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. Where it is alleged that such

procedures are used in a discriminatory manner under the Human

Rights Law, SDHR has jurisdiction (see Matter of New York State

Dept. of Correctional Servs. v New York State Div. of Human

Rights, 57 AD3d 1057, 1058-1059 [2008]; see also Matter of State

Div. of Human Rights [Granelle], 70 NY2d 100, 106-107 [1987]). 

Further, the issue of whether there was substantial evidence to

support the findings of discrimination and retaliation is not

raised by petitioner in its brief before this Court. 

We must agree, however, with petitioner's primary

contention that the complaints should be dismissed because of

SDHR's delay in processing them. The controlling statute sets

forth time limits, measured in mere days and months, requiring

SDHR to promptly consider and determine discrimination complaints

(see Executive Law § 297). We are well aware that the time

limits in Executive Law § 297 are "directory only" (Matter of

Corning Glass Works v Ovsanik, 84 NY2d 619, 623 [1994] [eight-
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year delay]), and that they "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" (id. at 624). 

Nevertheless, the time that elapsed here from the initial

complaint until the Commissioner issued her final order was more

than 18 years. In an agency long known for its troublesome and

excessive delays (see e.g. Matter of Diaz Chem. Corp. v New York

State Div. of Human Rights, 91 NY2d 932 [1998] [14-year delay];

Matter of Louis Harris & Assoc. v deLeon, 84 NY2d 698 [1994]

[seven-year delay]), 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"

(Matter of Diaz Chem. Corp. v New York State Div. of Human

Rights, 91 NY2d at 935 [Bellacosa, J., concurring]). Indeed, in

a case decided by SDHR six years quicker than this one, we

"decr[ied] SDHR's egregious delays," stating that "they were an

abuse of SDHR's discretion that prejudiced all parties" (Matter

of New York State Dept. of Labor [Unemployment Ins. Appeal Bd.] v

New York State Div. of Human Rights, 71 AD3d 1234, 1238-1239

[2010], lv denied 15 NY3d 714 [2010]). 

In weighing the impact of this delay, we take note of the

fact that the complainant will receive no financial benefit here,

inasmuch as the order directs payment to the trustee in

bankruptcy. Although not in the record, it was represented at

oral argument that Howarth is now deceased. Furthermore, SDHR

has made no effort to offer any explanation or excuse for this

apparently unexplainable and indefensible delay. There is no

allegation that petitioner contributed to the delay, and the

complaints presented issues that were relatively simple and

straightforward. Seemingly, 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 make these determinations, however, the Commissioner

ordered the Comptroller to do so. Nor is there any reason to

believe that, with Howarth now deceased, the Comptroller will be

able to gather the information necessary to determine these
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amounts.1

Finally, the Commissioner directed petitioner to draft a

new light-duty assignment policy and embark on a discrimination

prevention training program for all of its employees. As

petitioner contends, however, this directive is based on

petitioner's policy in effect two decades ago when the complaints

were filed. Its imposition now, without regard to petitioner's

currently evolved policy and subsequent training, lacks support

in the record and creates potentially expensive, time-consuming

and unnecessary action by petitioner. Under these circumstances,

we find that there is substantial prejudice to petitioner

occasioned by this intolerable delay. Moreover, such delay is an

abuse of SDHR's discretion, and its determination must be

annulled (see Matter of New York State Dept. of Labor

[Unemployment Ins Appeal Bd.] v New York State Div. of Human

Rights, 71 AD3d at 1238-1239; Matter of Heller v Chu, 111 AD2d

1007, 1008-1009 [1985], appeal dismissed 66 NY2d 696 [1985]). 

The remaining arguments are academic.

Peters, P.J., Garry, Devine and Clark, JJ., concur.

ADJUDGED that the determination is annulled, without costs,

petition granted and complaints dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 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, we need not decide this issue as we are

annulling the Commissioner's determination on other grounds.