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Subchapter
B Complaints, Answers, And Notification Of Obligations
§1-11
Complaints Generally.
(a)
Who may file. (1) Any person claiming to be aggrieved by an unlawful
discriminatory practice may in person, by his or her attorney, or
by a representative acting with appropriate legal authority make,
sign and file a written verified complaint with the Law Enforcement
Bureau in accordance with these rules.
(2)
The Law Enforcement Bureau may make, sign, and file a verified complaint
alleging that a person has committed an unlawful discriminatory
practice.
(b)
Form of complaints. All complaints shall be typewritten, and must
be signed and verified by the person making the complaint or,
in the case of a Commission-initiated complaint, by the Commission.
A complaint initiated by a person other than the Commission shall
be signed before a notary public or other person authorized by
law to administer oaths. Each complaint shall recite the name
of each complainant and respondent in a caption in the following
form:
CITY
OF NEW YORK
COMMISSION ON HUMAN RIGHTS
-------------------------------------------------x
In the Matter of the Complaint of: Verified Complaint
Complainant, Case No.
-against-
Respondent.
-------------------------------------------------x
(c) Contents of complaint. A complaint shall contain the following:
(1)
the full name and address of the person or persons making the complaint
or such other designation as appropriate. Each such person shall
be denominated a complainant. If a complaint is prepared by a complainant’s
attorney, the attorney’s name, address, telephone number and
facsimile number, if any, shall also appear on the complaint;
(2)
the full name and address, where known, of the person or persons
alleged to have committed an unlawful discriminatory practice. Each
such person shall be denominated a respondent;
(3)
a statement of the specific facts constituting the alleged unlawful
discriminatory practice. The statement shall contain, to the extent
known to the complainant, the exact or approximate date or dates
of the alleged discriminatory practices and, if the alleged discriminatory
practices are of a continuing nature, the dates between which those
continuing acts of discrimination are alleged to have occurred;
and the addresses or approximate locations of any places where the
acts complained of are alleged to have occurred; and
(4)
whether complainant has previously filed any other civil or administrative
action alleging an unlawful discriminatory practice with respect
to the allegations of discrimination which are the subject of the
complaint. In the event of a prior filing, a statement of the title,
docket, or similar identifying number, and forum before which such
other claim was filed, and a statement of the status or disposition
of such other action or proceeding should be made.
(d) What constitutes filing of a complaint or answer. A complaint
or answer is filed when it is accepted for filing by the Office
of the Docketing Clerk of the Law Enforcement Bureau.
(e)
Procedure upon receipt of complaint. The Law Enforcement Bureau
shall accept complaints for filing, note the date of filing on the
complaint, and assign a complaint number to the complaint. The Law
Enforcement Bureau shall thereafter serve by mail a copy of the
filed complaint upon each respondent and necessary party and shall
advise the respondent of his or her procedural rights and obligations.
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§1-12
Commission-initiated Complaints.
(a)
Procedure upon filing of a Commission-initiated complaint. Upon
filing of a Commission-initiated complaint, the Law Enforcement
Bureau shall immediately note the. date of filing on the complaint,
and assign a complaint number to the complaint. The Law Enforcement
Bureau shall thereafter serve a copy of the filed complaint upon
each respondent and shall advise the respondent of his/her procedural
rights and obligations.
(b)
Probable cause. The filing of Commission-initiated complaint shall
be deemed to be a determination of probable cause.
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§1-13
Amendments to Complaints.
A
complaint may be amended as of right at any time before the referral
of the complaint to the OATH pursuant to § 1—71 of this
chapter. Subsequent to the referral of a complaint to OATH, a complaint
may be amended by application to the presiding Administrative Law
Judge.
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§1-14
Answer.
(a)
Time for filing. The respondent shall file a verified answer with
the Law Enforcement Bureau within 30 days of having been served
with a complaint or an amendment thereof
(b)
Form and content of answer. The answer shall be verified as to the
truth of the statements therein, and 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. Any allegation in the
complaint not specifically denied or explained shall be deemed admitted
unless good cause to the contrary is shown. All affirmative defenses
and mitigating factors set forth in HRL §8-107(13)(d), §8-107(13)(e),
and §8-126(b) shall be stated separately in the answer.
(c)
Counterclaims and cross-claims. The respondent shall not be permitted
to interpose either a counterclaim or a cross-claim in the answer.
(d) Extension of time to answer. A respondent may apply to the Law
Enforcement Bureau for additional time to file an answer. Such a
request shall be granted for good cause shown.
(e)
Amendment of answer. A respondent may amend its answer to the original
complaint at any time prior to the referral of the complaint to
OATH pursuant to § 1—71 of this chapter. An amendment
to an answer subsequent to the referral of a complaint to OATH may
be made by application to the presiding Administrative Law Judge.
(f)
Notwithstanding the foregoing provisions, the following shall apply
with respect to complaints originally filed with the Commission
prior to September 16, 1991 and amendments thereof whether filed
before or after September 16, 1991:
(1)
A respondent may but is not required to file a verified answer to
the complaint. If a respondent elects not to file an answer to the
complaint, all allegations of the complaint shall be deemed denied.
(2)
A respondent must file a verified answer if the respondent has or
intends to assert affirmative defenses to the charges set forth
in the complaint.
(3)
Where a respondent files an answer, any allegation of the complaint
which is not answered or upon which respondent alleges insufficient
information shall be deemed denied.
(4)
An answer may be filed at any time after the service of the complaint
and no later than 15 days after service of a determination of probable
cause.
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§1-15
Representation. Complainants and respondents may be represented
by counsel. Counsel shall file with the Law Enforcement Bureau a
Notice of Appearance which shall recite the person or persons for
whom the attorney appears, and the attorney’s name, address,
and telephone and fax number.
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§
1-16 Change of Address. Complainants, respondents, and
their legal representatives are under a continuing obligation to
notify the Law Enforcement Bureau of any change in their addresses.
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Subchapter C Withdrawals And Dismissals
§1-2
1 Withdrawal of Complaints.
At
any time prior to the service of a notice that a complaint has been
referred to OATH, a complainant may withdraw a complaint that has
been filed.
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§
1-22 Dismissal of Complaint.
(a)
Dismissal for administrative convenience. The Law Enforcement Bureau
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:
(1)
Law Enforcement Bureau personnel have been unable to locate the
complainant after diligent efforts to do so;
(2)
the complainant has repeatedly failed to appear at mutually agreed-upon
appointments with the Law Enforcement Bureau or the Office of Mediation
and Conflict Resolution personnel, or is unwilling to meet with
the Law Enforcement Bureau or the Office of Mediation and Conflict
Resolution personnel, provide requested documentation, or to attend
a hearing;
(3)
the complainant has repeatedly engaged in conduct which is disruptive
to the orderly functioning of the Law Enforcement Bureau;
(4)
where the complainant is unwilling to accept a reasonable proposed
conciliation agreement;
(5)
prosecution of the complaint will not serve the public interest.
Without limitation, this shall include those circumstances where
it is not likely that further investigation will result in a finding
of probable cause or where the passage of time or other factors
have materially impaired the ability of a respondent to defend against
the allegations of the complaint; and
(6)
the complainant requests such dismissal, one hundred eighty days
have elapsed since
the filing of the complaint with the Law Enforcement Bureau, and
the Law
Enforcement Bureau finds (a) that the complaint has not been actively
investigated and
(b) that the respondent will not be unduly prejudiced thereby.
(b) Mandatory Dismissal for administrative convenience. The Law
Enforcement Bureau shall dismiss a complaint for administrative
convenience at any time prior to the filing of an answer by the
respondent if the complainant requests such dismissal, unless the
Law Enforcement Bureau has conducted an investigation of the complaint
or has engaged the parties in conciliation after the time the complaint
was filed.
(c)
Dismissal because the complaint is not within the jurisdiction of
the Commission. The Law Enforcement Bureau shall dismiss a complaint
in whole or in part where it concludes that the complaint or a portion
thereof is not within the jurisdiction of the Commission.
(d)
Dismissal for lack of probable cause. If, after investigation the
Law Enforcement Bureau determines that probable cause does not exist
to believe that the respondent has engaged or is engaging in an
unlawful discriminatory practice, the Bureau shall dismiss the complaint
in whole or in part as to such respondent.
(e)
Notification of dismissal. When the Law Enforcement Bureau makes
a determination pursuant to this section, it shall promptly serve
each complainant, respondent, and necessary party with an order
dismissing the complaint in whole or in part.
(f)
Review of order of dismissal. A complainant or respondent aggrieved
by an order of dismissal made pursuant to this section may apply
to the Chair for review of such order within 30 days of the service
of such order by serving a notice of application for review on all
other complainants and respondents, the Law Enforcement Bureau and
any necessary parties, and by filing such notice with the Office
of General Counsel.
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Subchapter D Investigatory
Procedures
§1-31
Policy.
The
procedures to be followed in investigative proceedings shall be
such as in the discretion of the Law Enforcement Bureau will best
facilitate accurate, orderly, and thorough fact-finding.
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§1-32
Subpoenas.
The
Law Enforcement Bureau may issue and serve subpoenas ad testificandum
and subpoenas duces tecum upon any person. Proceedings to enforce,
quash, fix conditions, or modify subpoenas shall be governed by
Article 23 of the New York Civil Practice Law and Rules.
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§
1-33 Investigative Record-keeping.
(a)
The Law Enforcement Bureau shall have the authority to make demands
for the preservation of records and for the continuation of the
practice of making and keeping records permitted by FIRL §8-1
14(b). The demand shall require that such records be made available
for inspection by the Law Enforcement Bureau and/or be filed with
the Law Enforcement Bureau.
(b)
Any person upon whom a demand has been made may assert an objection
to the demand within seven days after service of the demand by serving
such objection upon the Law Enforcement Bureau and filing such objection
with the Office of General Counsel. The Law Enforcement Bureau shall
have seven days from service of the objection to serve such person
with a written response to the objection and to file such response
with the Office of General Counsel. The Chair shall issue an order
on said demand and objection.
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§1-34
Availability of Investigatory Materials.
Upon
an order of the Law Enforcement Bureau dismissing the complaint,
complainant and respondent may examine the factual documentation
in the investigatory file.
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1-35 Pre-complaint Investigations.
In
addition to conducting investigations of allegations contained in
complaints filed pursuant to §1-1l and §1-12 of this chapter,
the Law Enforcement Bureau may investigate on its own initiative
possible violations of the HRL.
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Subchapter E Determination
Of Whether Probable Cause Exists
§1-51
Basis of Determination.
The
Law Enforcement Bureau shall find probable cause exists to credit
the allegations of a complaint that an unlawful discriminatory practice
has been or is being committed by a respondent where a reasonable
person, looking at the evidence as a whole, could reach the conclusion
that it is more likely than not that the unlawful discriminatory
practice was committed.
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§
1-52 Notice of Determination.
The
Law Enforcement Bureau shall serve a written notice of determination
upon complainant and respondent. Determinations which state that
probable cause has been found not to exist and that dismiss the
complaint shall state the reasons for the Law Enforcement Bureau’s
conclusion.
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§1-53
Review of Determination.
A
determination that probable cause exists to credit some or all of
the allegations of a complaint that an unlawful discriminatory practice
has been or is being committed is not reviewable. A determination
that probable cause does not exist to credit some or all of the
allegations of a complaint that an unlawful discriminatory practice
has been or is being committed, and that the complaint is accordingly
dismissed in whole or in part, is reviewable in accordance with
subdivision (f) of~1-22 of this Chapter.
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Subchapter F Mediation
And Conciliation
§1-61
Conciliation Agreements.
The
Law Enforcement Bureau, complainant, respondent, and other necessary
parties may at any time after the filing of a complaint agree to
a conciliated resolution of a complaint.
(a)
Form and Content. Every conciliation agreement shall contain an
acknowledgment of each complainant’s and respondent’s
execution of the agreement. The provisions of the conciliation agreement
may be such as are agreed to by the Law Enforcement Bureau, complainant,
and respondent.
(b)
Effective Date. A conciliation agreement shall be deemed binding
at the time that such agreement is executed by the Law Enforcement
Bureau and by all complainants and respondents and other necessary
parties entering into the agreement.
(c)
Entry of Order by Commission. When a conciliation agreement has
been fully executed, the Law Enforcement Bureau shall promptly forward
such agreement to the Chair. The signature of the Chair on a conciliation
agreement with the notation “SO ORDERED” shall be construed
to be an order of the Commission pursuant to HIRL §8-115(d)
directing the parties to such conciliation agreement to perform
each and all of their obligations under such conciliation agreement
in the time and manner set forth in such conciliation agreement.
The Chair shall deliver the order of the Commission to the Law Enforcement
Bureau for service upon the parties to the agreement.
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§
1-62 Requests for Assistance of Office of Mediation and Conflict
Resolution.
Upon
the request of the Law Enforcement Bureau, complainant, or respondent,
the Office of Mediation and Conflict Resolution shall endeavor to
assist the Law Enforcement Bureau, complainant, and respondent to
achieve a conciliated resolution of a complaint.
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Subchapter G Adjudication
Procedures
§1-71
Referral of Complaints to OATH.
(a)
When the Law Enforcement Bureau determines that a case is ready
for adjudication, the Bureau shall refer the case to OATH pursuant
to this section. Except as otherwise provided herein, OATH’
s rules of practice relating to hearing and pre-hearing procedures
(Title 48, Rules of the City of New York, chapter 1, and chapter
2, subchapter C) are hereby adopted by the Commission as the rules
of practice and the procedure of the Commission and shall apply
to adjudications referred to OATH by the Commission.
(b)
The Law Enforcement Bureau shall serve the Notice of Referral upon
the complainant, the respondent and any necessary party and file
it with OATH. The notice shall include the last known address and
telephone number of each complainant, respondent, and necessary
party. The notice shall state whether the respondent has complied
with the requirement of § 1-14 of this Chapter and, if not,
whether the Law Enforcement Bureau seeks to have respondent held
in default. The notices shall inform the complainant of his or her
right to intervene pursuant to OATH’s rules (48 RCNY §2-25).
No material relating to the investigation, the finding of probable
cause, or the substance of conciliation efforts shall be filed with
OATH.
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§
1-72 Motions relating to requests by Law Enforcement Bureau pursuant
to Subchapter D.
In
the event any party has failed to comply with any request by the
Law Enforcement Bureau for documents or other information pursuant
to Subchapter D of this Chapter, the Law Enforcement Bureau may
make a motion to have the Chair order compliance with such request.
Any party to whom such a request is made shall have an opportunity
to submit to the Chair any objections to such request. The Chair
may order compliance with such request or may order such other relief
as the Chair deems just and proper. In the event any party has failed
to comply with such an order compelling compliance with a request
by the Law Enforcement Bureau for documents or other information,
the Law Enforcement Bureau may make a motion to have the Chair make
such orders or take such actions as are permitted by HRL §8-118.
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§1-73
Motions relating to sanctions for failure to comply with order for
investigative record-keeping.
The
Law Enforcement Bureau may make a motion to have the Chair make
such orders or take such actions as are permitted by HRL 8-118 in
the event a respondent has failed to comply with an order for investigative
record-keeping issued by the Chair pursuant to §1-33 of this
Chapter.
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§1-74
Interlocutory review of Administrative Law Judge decisions and orders.
The
Chair shall entertain an interlocutory challenge to a decision or
order of an Administrative Law Judge where the presiding Administrative
Law Judge certifies the question for review. Any question not certified
by the presiding Administrative Law Judge may be raised by a party
to the Commission in connection with the Commission’s review
of a recommended decision and order in a case. Any challenge that
is certified by the Administrative Law Judge and entertained by
the Chair shall preclude further review by the Commission. The failure
of a party to challenge a decision or order of an Administrative
Law Judge other than a recommended decision and order, shall not
preclude that party from making such challenge to the Commission
in connection with the Commission’s review of a recommended
decision and order in a case, provided that the party timely made
its objection known to the Administrative Law Judge and that the
grounds for such challenge shall be limited to those set forth to
the Administrative Law Judge.
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§1-75
Time for Commission Consideration of Recommended Decision and Order.
(a)
Generally. The Commission shall commence consideration of a case
that is the subject of a recommended decision and order upon filing
of the recommended decision and order with the Office of General
Counsel.
(b)
Recommended decisions and orders not completely disposing of a complaint.
The Commission shall not commence consideration of a case that is
the subject of a recommended decision and order which, if adopted,
would not resolve the complaint in its entirety unless the Administrative
Law Judge certifies the portion of the case proposed to be decided
by the recommended decision and order to the Commission for immediate
consideration. Dismissal of all or part of a case shall have the
effect of a Recommended Decision and Order for the purpose of this
section.
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§1-76
Post-hearing Comments.
Each
party shall have twenty days after the commencement of Commission
consideration of the recommended decision and order as provided
in § 1-75 of this chapter to submit written comments to the
Commission. The comments should raise any objections to the recommended
decision and order. Comments shall be limited to the record below.
Objections not raised in the comments will be deemed waived in any
further proceedings. Comments shall be served upon all other parties
and shall be filed with the Office of General Counsel. Parties shall
apply to the General Counsel’s office for permission to submit
reply comments. Upon application filed with the Office of General
Counsel, the Chair may shorten or extend the time for comments or
replies for good cause shown. Comments and replies shall be served
upon the Commissioners by the Office of General Counsel.
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