Corning Glass Works v. Ovsanik

• Decision Date: 13 December 1994
• Citation: 84 N.Y.2d 619,644 N.E.2d 1327,620 N.Y.S.2d 771
• Parties: , 644 N.E.2d 1327, 6 NDLR P 52 In the Matter of CORNING GLASS WORKS, Respondent, v. Ronald P. OVSANIK, Appellant, and New York State Division of Human Rights, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 771

620 N.Y.S.2d 771

84 N.Y.2d 619, 644 N.E.2d 1327, 6 NDLR P 52

In the Matter of CORNING GLASS WORKS, Respondent, v. Ronald P. OVSANIK, Appellant and New York State Division of Human Rights, Respondent.

Court of Appeals of New York.

Dec. 13, 1994.

[84 N.Y.2d 621] [644 N.E.2d 1328] Raymond J. Urbanski, Elmira, for appellant.

Sheila A. Donohue, Lawrence Kunin and Michael K. Swirsky, New York City, for New York State Div. of Human Rights, respondent.

[84 N.Y.2d 622] Reed Smith Shaw & McClay, Pittsburgh, PA (Scott F. Zimmerman and Martha Hartle Munsch of the Pennsylvania Bar, admitted

[644 N.E.2d 1329] pro hac vice, of counsel), and Christopher J. Thomas, Corning, for Corning Glass Works, respondent

OPINION OF THE COURT

CIPARICK, Judge.

The question presented on this appeal is whether an 8 1/2-year delay by respondent State Division of Human Rights (DHR) in processing the complaint of discrimination against petitioner Corning Glass Works caused that party substantial prejudice warranting dismissal of the complaint. Although the delay was inordinate, petitioner has not shown that it was actually prejudiced thereby. Thus, the drastic remedy of dismissal was unwarranted.

Complainant suffers from a hereditary neurological condition that causes involuntary tremors in his fingers, hands, and head. He was hired by petitioner on January 9, 1984, and terminated on February 27, 1984 while still on probationary status. On March 6, 1984, he filed a complaint of handicap discrimination with respondent DHR. Hearings were conducted before Administrative Law Judge (ALJ) Eric Glazer on March 11, 1987, October 13-14, 1987, May 4, 1988, and September 7-8, 1988. After ALJ Glazer's resignation in 1990, the matter was referred to Acting Chief Administrative Law Judge Albert Kostelny.

In August 1991 (7 1/2 years from complaint and 4 1/2 years from start of hearing), ALJ Kostelny issued a decision based upon the hearing transcripts and papers. He recommended that petitioner be ordered to reinstate complainant as a probationary employee and that, upon completion of complainant's probationary term, he be made a permanent employee with seniority and retirement credits retroactive to January 9, 1984, the original hiring date. Kostelny also recommended that petitioner be ordered to pay complainant eight weeks' back pay, plus $5,000 in damages for mental anguish.

An administrative appeal ensued and on April 8, 1992, Chief Administrative Law Judge Manuel Del Valle issued an Alternative Proposed Order recommending that complainant be immediately reinstated as a permanent employee and awarded full back pay from February 1984, plus $25,000 compensatory damages. In October 1992, DHR Commissioner Margarita Rosa adopted the recommendations in the alternative proposed order and issued the final determination.

Petitioner commenced this proceeding pursuant to Executive Law § 298 to challenge DHR's determination. The Appellate Division granted the petition and annulled the DHR determination. Relying on Matter of General Motors Corp. v. Rosa 82 N.Y.2d 183, 604 N.Y.S.2d 14, 624 N.E.2d 142, the Appellate Division held that petitioner was denied due process when Commissioner Rosa, who had appeared as general counsel for DHR in the early stages of the proceeding, issued the final order. However, rather than remitting the matter for review by an impartial arbiter and issuance of a final order, as we did in General Motors (supra), the Appellate Division concluded that dismissal of the complaint was required in this case, because, in its view, "the unexplained delay of 8 1/2 years between the filing of the complaint and the Commissioner's final determination * * * caused substantial prejudice to [petitioner]" (199 A.D.2d 959, 960, 606 N.Y.S.2d 475). The Court determined that the long delay substantially prejudiced petitioner in two respects: it deprived petitioner of the ability to prove whether ALJ Glazer had agreed to make complainant's application for Social Security disability benefits part of the record, and it significantly increased its liability for back pay.

We granted complainant leave to appeal.

We reject petitioner's claim that the 8 1/2-year delay in this case was substantially prejudicial as a matter of law (see, Matter of Harris & Assocs. v. deLeon, 84 N.Y.2d 698, 702, 622 N.Y.S.2d 217, 646 N.E.2d 438 [decided today]. It is well settled that the time limits contained in Executive Law § 297 ^* are directory only (see Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 N.Y.2d 816, 818, 424 N.Y.S.2d 125, 399 N.E.2d 1146; Union Free School Dist. No. 6 v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 380-381, 362 N.Y.S.2d 139, 320 N.E.2d 859). They exist for the benefit of complainants and should not be used to oust DHR of jurisdiction and shelter those charged with violating the statute unless there is a showing of substantial actual prejudice attributable to the delay (see, Matter of Harris & Assocs. v. deLeon, 84 N.Y.2d at 703, 622 N.Y.S.2d 217, 646 N.E.2d 438, supra; Sarkisian, 48 N.Y.2d, at 818, 424 N.Y.S.2d 125, 399 N.E.2d 1146, supra; Union Free School Dist., 35 N.Y.2d, at 380-381, 362 N.Y.S.2d 139, 320 N.E.2d 859, supra; see also, Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 177-178, 495 N.Y.S.2d 927, 486 N.E.2d 785, cert. denied 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655). Thus, we must decide whether petitioner was actually prejudiced by the administrative agency's delay such that dismissal of the complaint was warranted.

In support of its claim of prejudice, petitioner argues that the long delay increased its liability for back pay and urges us to follow Federal case law holding that an employer suffers prejudice when inordinate delay in processing claims substantially increases back pay liability (see, e.g., Equal Empl. Opportunity Commn. v. Dresser Indus., 668 F.2d 1199, 1204, n. 13; Equal Empl. Opportunity Commn. v. Alioto Fish Co., 623 F.2d 86, 89).

We note that the Federal approach is inconsistent with prior statements of this Court. In Matter of Cortlandt Nursing Home v. Axelrod (supra), we stated that "[w]here administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary administrative proceeding, the agency, or court reviewing a final administrative order, is authorized to dismiss the proceeding" (66 N.Y.2d, at 180, 495 N.Y.S.2d 927, 486 N.E.2d 785 [emphasis added]. Increased exposure for back pay liability does not implicate a party's ability to defend. While the party's purse is affected, its ability to mount a defense is not. What harm exists can be redressed without resorting to the drastic remedy of dismissing the complaint. An administrative agency awarding back pay, at an appropriate hearing or otherwise, can assess the nature and length of the delay, determine whether it is unreasonable, and adjust back pay accordingly. A reviewing court can similarly remit the matter to the agency with instructions to exclude so much of the award as is attributable to the agency's unreasonable delay (see, e.g., State Div. of Human Rights [Hudson] v. General Motors Corp., 107 A.D.2d 1081, 486 N.Y.S.2d 542).

Petitioner also claims that it was prejudiced by the delay in that it was deprived of the opportunity to prove whether complainant's Social Security disability applications were intended to be part of the record. We note that the documents remain available and may be considered by DHR when an impartial arbiter reviews the record anew.

In Cortlandt (supra), this Court was...