§ 528-13. Jurisdiction and procedures., Article II. Unlawful Discriminatory Acts, Chapter 528. Human Rights, Part II. Regulatory Local Laws, Code of Ordinances, Suffolk County

The Commission shall have jurisdiction to entertain a complaint where:

(1)

Any complainant or individual aggrieved by an unlawful discriminatory practice, by himself or herself or by such individual's attorney, makes, signs and files with the Commission a timely, verified complaint, in writing, which shall: a) state the name of the person alleged to have committed the unlawful discriminatory practice complained of, and the address of such person, if known; b) set forth the particulars of the alleged unlawful discriminatory practice; and c) contain such other information as may be required by the Commission. The Commission shall acknowledge the filing of the verified complaint and advise the complainant of the time limits and choice of forums set forth in this article; and

(2)

The Commission itself makes, signs and files a verified complaint alleging that a person has committed an unlawful discriminatory practice.

The Commission shall serve a copy of the verified complaint upon the respondent and all persons it deems to be necessary parties and shall advise the respondent of his, her or its procedural rights and obligations as set forth herein. Any verified complaint filed pursuant to this article may be amended pursuant to procedures prescribed by rules of the Commission by filing such amended verified complaint with the Commission and serving a copy thereof upon all parties to the proceeding.

The Commission shall not have jurisdiction to entertain a complaint if:

(1)

The complainant has previously initiated a civil action in a court of competent jurisdiction alleging an unlawful discriminatory practice as defined by this article with respect to the same grievance which is the subject of the complaint under this article, unless such civil action has been dismissed without prejudice or has been withdrawn without prejudice; or

(2)

The complaint has been filed more than one year after the alleged unlawful discriminatory practice occurred.

The Commission shall not entertain jurisdiction over a complaint filed against any Suffolk County governmental agency, department or body.

Answer.

(1)

Within 10 days after a copy of the verified complaint is served upon the respondent by the Commission, the respondent shall file a written, verified answer thereto with the Commission, and the Commission shall cause a copy of such answer to be served upon the complainant and any necessary party.

(2)

The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge or information sufficient to form a belief, in which case the respondent shall so state, and such statement shall operate as a denial.

(3)

Any allegation in the complaint not specifically denied or explained shall be deemed admitted and shall be so found by the Commission unless good cause to the contrary is shown.

(4)

All affirmative defenses shall be stated separately in the answer.

(5)

Upon request of the respondent and for good cause shown, the period within which an answer is required to be filed may be extended in accordance with the rules of the Commission.

(6)

Any necessary party may file with the Commission a written, verified answer to the complaint, and the Commission shall cause a copy of such answer to be served upon the complainant, respondent and any other necessary party.

(7)

Any answer filed pursuant to this section may be amended pursuant to procedures prescribed by rule of the Commission by filing such amended answer with the Commission and serving a copy thereof upon the complainant and any necessary party to the proceeding.

Withdrawal of complaint.

(1)

A complaint filed pursuant to Subsection A(1) may be withdrawn by the complainant as of right at any time prior to a determination of the issue of probable cause. Such a withdrawal shall be in writing and signed by the complainant.

(2)

Unless such complaint is withdrawn pursuant to a conciliation agreement, the withdrawal of a complaint shall be without prejudice:

(a)

To the continued investigation of the complaint by the Commission in accordance with rules of the Commission;

(b)

To the initiation of a complaint by the Commission based in whole or in part upon the same facts;

(c)

To the commencement of a civil action by the complainant in a court of competent jurisdiction; or

(d)

To the commencement of a civil action in a court of competent jurisdiction by the County Attorney.

Dismissal of complaint.

(1)

The Commission may, in its discretion, dismiss a complaint for administrative convenience at any time prior to the taking of testimony at a hearing. Administrative convenience shall include, but not be limited to, the following circumstances:

(a)

Commission personnel have been unable to locate the complainant after diligent efforts to do so;

(b)

The complainant has repeatedly failed to appear at mutually agreed upon appointments with Commission personnel or is unable or unwilling to meet with Commission personnel, to provide requested documentation, or to attend a hearing;

(c)

Relief is precluded by the respondent's absence or other special circumstances;

(d)

The complainant's objections to a proposed conciliation agreement are without substance;

(e)

Holding a hearing will not benefit the complainant;

(f)

The complainant has repeatedly engaged in conduct which is disruptive to the orderly functioning of the Commission;

(g)

Prosecution of the complaint will not serve the public interest;

(h)

The complainant has filed and has an action or proceeding pending before any administrative agency under any other law of the state alleging an unlawful discriminatory practice as defined by this article with respect to the same grievance which is the subject of the complaint under this article; or

(i)

The complainant has filed a complaint with the New York State Division of Human Rights alleging an unlawful discriminatory practice as defined by this article with respect to the same grievance which is the subject of the complaint under this article and a final determination has been made thereon.

(2)

The Commission shall dismiss a complaint for administrative convenience where a complainant requests that it do so for the purpose of commencement by the complainant of a civil action in a court of competent jurisdiction.

(3)

In accordance with the rules of the Commission, the Commission shall dismiss a complaint if the complaint is not within the jurisdiction of the Commission.

(4)

If, after investigation, the Commission determines that probable cause does not exist to believe that the respondent has engaged or is engaging in an unlawful discriminatory practice, the Commission shall dismiss the complaint as to such respondent.

(5)

The Commission shall promptly serve notice of any dismissal pursuant to this section upon the complainant, respondent and any necessary party.

(6)

The complainant may, within 30 days of service of a notice of dismissal, and in accordance with the rules of the Commission, apply to the Executive Director of the Commission for review of any dismissal pursuant to this section. Upon such application, the Executive Director shall review such action and issue an order affirming, reversing or modifying such determination or remanding the matter for further investigation and action. A copy of such order shall be served upon the complainant, respondent and any necessary party.

Mediation and conciliation.

(1)

If, in the judgment of the Commission, circumstances so warrant, the Commission shall, to the extent feasible, endeavor to resolve the complaint by any method of dispute resolution prescribed by rule of the Commission, including, but not limited to, mediation and conciliation.

(2)

Mediators shall be selected by the Executive Director of the Commission and may include Commission staff.

(3)

The terms of any conciliation agreement will contain such provisions as may be agreed upon by the Commission, the complainant and the respondent.

(4)

The members of the Commission and its staff shall not publicly disclose what transpired in the course of mediation and conciliation efforts.

(5)

If a conciliation agreement is entered into, the Commission shall embody such agreement in an order and serve a copy of such order upon all parties to the conciliation agreement. Every conciliation agreement is subject to public disclosure except where the Commission determines, either on its own or pursuant to a request of a party(ies), that disclosure is not necessary to further the purposes of this article.

Investigation.

(1)

Every complaint shall be investigated in a timely, comprehensive and thorough manner, according to standards and procedures to be adopted in the rules of procedure of the Commission.

(2)

Notwithstanding anything contained in § 119-3G of the Suffolk County Code to the contrary, the Commission may at any time issue subpoenas requiring attendance and giving of testimony by witnesses and the production of books, papers, documents and other evidence relating to any matter under investigation or any question before the Commission. The issuance of subpoenas shall be governed by the Civil Practice Law and Rules.

(3)

At the end of each investigation, the Commission shall prepare a final investigative report. The Commission shall make available, on the request of a complainant or respondent, a copy of the final investigative report.

Determination of probable cause.

(1)

Except in connection with Commission-initiated complaints, which shall not require a determination of probable cause, where the Commission determines that probable cause exists to believe that the respondent has engaged or is engaging in an unlawful discriminatory practice, the Commission shall issue a written notice to the complainant and respondent so stating. A determination of probable cause is not a final order of the Commission and shall not be administratively or judicially reviewable.

(2)

If a determination is made pursuant to Subsection J(1) that probable cause exists, or if a Commission-initiated complaint has been filed, the Executive Director of the Commission shall refer the complaint to an administrative law judge unless the matter would be more appropriately handled by the New York State Division of Human Rights and would further this article.

(3)

If a Commission-initiated complaint has been filed, the Executive Director of the Commission shall serve a notice upon the complainant, the respondent and any necessary party that the complaint has been so filed.

(4)

Nothing in § 528-13 shall be interpreted to prevent the receiving or other processing of complaints in accordance with any cooperative agreement with any federal or state agency concerned with the enforcement of laws against discrimination.

Hearing.

(1)

A hearing on the complaint shall be held before an administrative law judge, who shall be any attorney in good standing designated by the Commission.

(2)

The place of any such hearing shall be the office of the Commission or such other place as may be designated by the Commission. Notice of the date, time and place of such hearing shall be served upon the complainant, respondent and any necessary party.

(3)

The case in support of the complaint shall be presented before an administrative law judge. The complainant may present additional testimony and cross-examine witnesses, in person or by counsel. With respect to Commission-initiated complaints, the complainant may present additional testimony and cross-examine witnesses, in person or by counsel, if the complainant shall have intervened pursuant to rules established by the Commission.

(4)

The administrative law judge may, in his or her discretion, permit any person who has a substantial interest in the complaint to intervene as a party and may require the joinder of necessary parties.

(5)

Evidence relating to endeavors at mediation or conciliation by, between or among the Commission, the complainant and the respondent shall not be admissible at the hearing.

(6)

If the respondent has failed to answer the complaint within the time period prescribed in Subsection E above, the administrative law judge shall enter a default and the hearing shall proceed to determine the evidence in support of the complaint; provided, however, that, upon application, the administrative law judge may, for good cause shown, open a default in answering, upon equitable terms and conditions, including the taking of an oral answer.

(7)

A respondent who has filed an answer or whose default in answering has been set aside by the Commission for good cause shown, or a necessary party, or a complainant or other person who has intervened pursuant to the rules of the Commission, may appear at such hearing, in person or otherwise, with or without counsel, and cross-examine witnesses, present testimony and offer evidence.

(8)

The form and content of proof admissible at the hearing shall be prescribed in the rules of procedure of the Commission. The hearing shall not be governed by the rules of evidence applicable in the Supreme Court of the State of New York. The testimony taken at the hearing shall be under oath and shall be transcribed.

[Amended 3-7-2017 by L.L. No. 3-2017]

(9)

Subsequent to the hearing and to such briefing as the presiding administrative law judge may direct, the presiding administrative law judge shall prepare a recommended decision and order and forward that recommended decision and order, along with the record in the case, to the Executive Director.

Decision and order.

(1)

If, upon all the evidence at the hearing, and upon the findings of fact, conclusions of law and relief recommended by an administrative law judge, the Executive Director shall find that a respondent has engaged in any unlawful discriminatory practice as set forth in this article, the Executive Director shall state his/her findings of fact and conclusions of law and shall issue and cause to be served on such respondent an order for such relief as may be appropriate. Such order shall require the respondent to take such affirmative action as, in the judgment of the Executive Director, will effectuate the purposes of this article and shall include, but not be limited to:

(a)

Cease and desist from the unlawful discriminatory practice;

(b)

Hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, admission to or participation in a guidance program, apprenticeship training program, on-the-job training program or other occupational training or retraining program;

(c)

Selling, renting or leasing, or approving the sale, rental or lease of housing accommodations, land, or commercial space, or an interest therein, or the provision of credit with respect thereto, without unlawful discrimination, if such actions are appropriate;

(d)

Requiring training, monitoring, or adopting alternative policies;

(e)

Payment of compensatory damages to the individual aggrieved by such practice or act; or

(f)

Submission of reports with respect to the manner of compliance.

The Commission may also direct the payment of civil fines and penalties and attorney's fees to the County in the amounts and under circumstances described below in §§ 528-14 and 528-15.

(2)

If, upon all the evidence at the hearing, and upon the findings of fact and conclusions of law recommended by the administrative law judge, the Executive Director shall find that a respondent has not engaged in any such unlawful discriminatory practice, the Executive Director shall state his/her findings of fact and conclusions of law and shall issue and cause to be served on the complainant, respondent, and any necessary party or any complainant who has not intervened an order dismissing the complaint as to such respondent.

Reopening of proceeding by Commission. The Commission may reopen any proceeding, or vacate or modify any order or determination of the Commission, whenever justice so requires, in accordance with the rules of the Commission.

Injunction and temporary restraining order. At any time after the filing of a complaint with the Commission alleging an unlawful discriminatory practice where there is reason to believe that the respondent, or any other person acting in concert with the respondent, may do or cause to be done any act that would tend to render ineffectual relief that could be ordered:

(1)

The County may commence or cause to be commenced, a special proceeding in accordance with Article 63 of the Civil Practice Law and Rules for an order to show cause why the respondent and such other persons should not be enjoined from doing or causing such acts to be done; and

(2)

In the case of unlawful discriminatory practices in relation to the sale, lease, or rental of housing accommodations or commercial property, where the County has obtained injunctive relief pursuant to this section, a notice may be posted by the County in a conspicuous place on such housing accommodation or commercial property stating that such accommodation or property is the subject of a complaint before the Commission and that prospective buyers, renters, or lessees will take such accommodations or property at their own risk; provided, however, that no such notice shall be posted where the person charged with discrimination agrees in writing not to sell, rent, or lease such housing accommodations or property during the pendency of the action or proceeding against him, her, or it. Any willful destruction, defacement, alteration or removal of such notice by the owner or the agents or employees of the owner shall be a misdemeanor punishable upon conviction by a fine of up to $500.

(3)

Nothing herein shall prevent a complainant from applying to a court of competent jurisdiction for an injunction, temporary or permanent, or from filing a lis pendens against property.

Judicial review.

(1)

Any complainant, respondent or other person aggrieved by a final order of the Executive Director of the Commission issued pursuant to Subsections G and L above may obtain judicial review thereof in a proceeding as provided in this Subsection O.

(2)

Such proceeding shall be brought in Supreme Court, Suffolk County.

(3)

Such proceeding shall be initiated by the filing of a petition in such court and the issuance and service of a notice of petition returnable before such court. Thereupon, the court shall have jurisdiction of the proceeding and of the questions determined therein, and shall have power to make and enter upon the pleadings, testimony, and proceedings set forth in any written transcript of the record upon the hearing before the Commission an order annulling, confirming or modifying the order of the Commission, in whole or in part, or to grant to the petitioner, or any other party, such temporary relief, restraining order, or other order or relief as the court determines is just and proper.

(4)

A proceeding under this Subsection O must be instituted within 60 days after the service of the final order of the Commission.

Enforcement.

(1)

Any action or proceeding that may be appropriate or necessary for the enforcement of any order issued by the Commission pursuant to this article, including actions to secure permanent injunctions enjoining any acts or practices which constitute a violation of any such order, mandating compliance with the provisions of any such order, imposing penalties, or for such other relief as may be appropriate, may be initiated in any court of competent jurisdiction by the County on behalf of the Commission. In any such action or proceeding, application may be made for a temporary restraining order or preliminary injunction, enforcing and restraining all persons from violating any provisions of any such order, or for such other relief as may be just and proper, until hearing and determination of such action or proceeding and the entry of final judgment or order thereon. The court to which such application is made may make any or all of the orders specified, as may be required in such application, with or without notice, and may make such other or further orders or directions as may be necessary to render the same effect.

(2)

In any action or proceeding brought pursuant to Subsection P(1), no person shall be entitled to contest the terms of the order sought to be enforced unless that person has timely commenced a proceeding for review of the order pursuant to Subsection O.

(3)

An action or proceeding may be commenced in any court of competent jurisdiction on behalf of the Commission for the recovery of the civil and criminal penalties provided for in this article.

Institution of actions or proceedings. Where any of the provisions of this article authorize an application to be made, or an action or proceeding to be commenced on behalf of the Commission in a court, such application may be made or such action or proceeding may be instituted only by the County Attorney, such attorneys that may be employed by the Commission as are designated by the County Attorney or other individuals designated by the County Attorney.

Civil cause of action.

(1)

Any individual, including an individual who has filed a complaint with the Commission, claiming to be aggrieved by an unlawful discriminatory practice as proscribed by this article shall have a cause of action in any court of competent jurisdiction for damages, injunctive relief and such other remedies as may be appropriate; provided, however, that an individual who has filed a complaint with the Commission with respect to such alleged unlawful discriminatory practice withdraws the complaint so filed.

(2)

Notwithstanding any inconsistent provision of Subsection R, where a complaint filed with the Commission is dismissed pursuant to Subsection G for administrative convenience, an individual shall maintain all rights to commence a civil action pursuant to this article as if no such complaint has been filed.

(3)

A civil action commenced under this Subsection R must be commenced within two years after the alleged unlawful discriminatory practice occurred. Upon the filing of a complaint with the Commission and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such two-year limitation period shall be tolled.

(4)

Notwithstanding any inconsistent provision of this Subsection R, where a complaint filed with the Commission is dismissed for administrative convenience and such dismissal is due to the complainant's malfeasance, misfeasance or recalcitrance, the two-year limitation period on commencing a civil action pursuant to this section shall not be tolled.

(5)

Reasonable attorney's fees and costs may be awarded to a prevailing party in a civil action commenced pursuant to this Subsection R in accordance with applicable provisions of state law.

Pattern and practice investigations by County Attorney.

(1)

Whenever there is reasonable cause to believe that a person is engaged in a pattern or practice that results in the denial to any individual of the full enjoyment of any right secured by this article, a civil action on behalf of the Commission or the County may be commenced in a court of competent jurisdiction by filing a complaint setting forth facts pertaining to such pattern or practice and requesting such relief as may be deemed necessary to ensure the full enjoyment of the rights described in this article, including, but not limited to, injunctive relief, damages, and such other types of relief as are deemed appropriate. Nothing in this Subsection S shall be construed to prohibit an individual from filing a complaint pursuant to Subsection A or from commencing a civil action in a court of competent jurisdiction based upon the same facts pertaining to such pattern or practice as are alleged in the civil action, or the Commission from filing a Commission-initiated complaint pursuant to Subsection A alleging a pattern or practice of discrimination, provided that a civil action pursuant to this subsection shall not have previously been commenced.

(2)

A civil action commenced under this Subsection S must be commenced within two years after the alleged discriminatory practice occurred.

(3)

Such action may be instituted only by the County Attorney, such attorneys employed by the Commission as are designated by the County Attorney or other individuals designated by the County Attorney.