Summary
reducing $35,000 award to $5,000, "notwithstanding the constant and blatant nature of the racial discrimination against" the plaintiff, "where the sole evidence of mental anguish was the complainant's own testimony that she was '[e]motionally and physically screwed up'"
Summary of this case from Laboy v. Office Equip. & Supply Corp.Opinion
May 8, 1989
Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the second and third decretal paragraphs of the determination are annulled, the determination is otherwise confirmed, and the proceeding otherwise dismissed on the merits, and the matter is remitted to the respondent New York State Division of Human Rights for a new assessment of compensatory damages consistent with this decision.
The determination that the petitioner discriminated against the complainant on the basis of race, terminating her employment in violation of Executive Law § 296, is supported by substantial evidence in the record (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176).
It is well settled that an award of compensatory damages to a person aggrieved by an illegal discriminatory practice may include compensation for mental anguish (see, Matter of Board of Educ. v McCall, 108 A.D.2d 855), and that an award may be based solely on the complainant's testimony (see, Cullen v Nassau County Civ. Serv. Commn., 53 N.Y.2d 492). However, in this case, notwithstanding the constant and blatant nature of the racial discrimination against the complainant, where the sole evidence of mental anguish was the complainant's own testimony that she was "[e]motionally and physically screwed up", without any evidence of the duration of her condition, its severity or consequences and without evidence of any treatment, we find the award of $35,000 for mental anguish grossly excessive and recommend on remittitur that a new award not to exceed $5,000 be made (see, Matter of Bayport-Blue Point School Dist. v State Div. of Human Rights, 131 A.D.2d 849; Catalina Beach Club v State Div. of Human Rights, 95 A.D.2d 766; cf., Matter of Trans World Airlines v New York Executive Dept., State Div. of Human Rights, 147 A.D.2d 575; SUNY Coll. of Envtl. Science Forestry v State Div. of Human Rights, 144 A.D.2d 962; see also, Matter of Almeter v State Div. of Human Rights, 133 A.D.2d 530, 531).
We further find that the award of back pay from the complainant's discharge in February 1985 until her reinstatement by the petitioner constitutes a punitive assessment against the petitioner rather than compensation. The record indicates that the complainant obtained new employment at the same pay in July 1985. The Division may not award what would amount to punitive damages solely on the finding that unlawful discrimination occurred (see, Batavia Lodge No. 196 v New York State Div. of Human Rights, 35 N.Y.2d 143, 146). The award of back pay must, therefore, be reduced to cover only the period that the complainant was out of work as a result of her unlawful discharge. However, the Division did not abuse its discretion in ordering the petitioner to reinstate the complainant (see, Matter of State Div. of Human Rights v County of Onondaga Sheriff's Dept., 71 N.Y.2d 623, 634).
Finally, we find that the three-year period between the filing of the complaint in 1985 and the issuance of the Division's determination in 1988 did not operate to divest the Division of jurisdiction. Absent a showing of substantial prejudice, the time limitations enunciated in Executive Law § 297 are directory and not mandatory (see, Matter of Sarkisian Bros. v State Div. of Human Rights, 48 N.Y.2d 816; Art Leather Mfg. Co. v State Div. of Human Rights, 144 A.D.2d 406). Kunzeman, J.P., Rubin, Spatt and Balletta, JJ., concur.