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N.Y. Reamed Over Discrimination-Claim Delay

ALBANY, N.Y. (CN) - A New York appeals court reamed the state's human rights division for waiting 18 years to sort out a disability-discrimination claim.

Kenneth Howarth, a correction officer with the New York Department of Corrections and Community Supervision, brought the claim in question after he was fired in January 1995.

Howarth said he had a fainting disorder called neurocardiogenic syncope that caused him to faint while driving from work in July 1994, causing an accident.

With the department refusing to place Howarth on light-duty work pending a medical exam, the officer had to use up accumulated leave time before going unpaid while awaiting the clearance to return to work.

That came in October, but Howarth allegedly suffered another fainting spell at work two months later and was again placed on involuntary leave until he was fired.

Howarth's ensuing protest led to his reinstatement with back pay and benefits in September 1995, a month after he filed a complaint for disability discrimination with the state Division of Human Rights.

In 1997, the cycle repeated, with Howarth placed on involuntary leave twice after fainting and twice returned to the job. Howarth filed a second complaint with the Division of Human Rights that year as well.

Hearings on his disability complaints did not occur until 2004, however, and no decision on them came until December 2013, when the division ruled that the corrections department was guilty of unlawful discrimination based on disability.

An administrative law judge who heard Howarth's complaints found that the department granted requests for light-duty assignment to employees who incurred disabilities on the job but did not similarly accommodate workers whose disabilities were not work-related - like Howarth.

The judge determined the department should pay lost wages and benefits that had not been restored to Howarth for the times he was out of work between 1994 and 1997. That award, though, was directed to a bankruptcy trustee, since Howarth filed for bankruptcy in 1996 citing several factors, including the strain of being out of work.

No exact amount was calculated, with the division leaving that chore to the state comptroller.

The corrections department sued for judicial review of the findings, contending Howarth's complaints should be dismissed because the division took so long in processing them.

A unanimous five-judge panel of the Appellate Division's Third Department in Albany agreed last week, lambasting the division for the 18 years that lapsed between Howarth's first complaint in 1995 and the final ruling in 2013.

"In an agency long known for its troublesome and excessive delays, 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,'" Justice Robert Rose wrote, citing a 1994 decision that criticized a 14-year delay by the division.

"Indeed, in a case decided by SDHR [state Division of Human Rights] 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.'"

Rose said the division failed to offer "any explanation or excuse for this apparently unexplainable and indefensible delay."

No blame seemed to lie with the corrections department, the March 31 decision notes, nor with Howarth's complaints, which "presented issues that were relatively simple and straightforward."

While a sticking point may have been calculating the lost wages and benefits ordered paid to the bankruptcy trustee, that duty was passed on to the comptroller - even though, a footnote says, the division might not have had the authority to do so.

With Howarth now dead, that job might be even more difficult, according to the five-page opinion.

The division, as part of its findings, ordered the corrections department to write a new policy on light-duty assignment and offer new discrimination-prevention training to all employees.

Since those directives were based on procedures in effect two decades ago, however, the judges found that "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."

As a result "substantial prejudice to petitioner" occurred, they said, ruling that the division's guilty finding "must be annulled."

Presiding Justice Karen Peters and justices Elizabeth Garry, Eugene Devine and Christine Clark concurred.

A spokesman for the Division of Human Rights said by email Monday that the agency is committed to protecting New Yorkers from discrimination "by achieving timely resolutions to all complaints that are filed."

He said that 96 percent of all pending complaints were filed within the last year and that 97 percent of open investigations are less than 6 months old.

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