An administrative law judge (ALJ) with the New York City Office of Administrative Trials and Hearings (OATH) recently ruled in favor of a complainant alleging sexual harassment and retaliation. Comm’n on Human Rights ex rel. Martinez v. Musso, et al, OATH Index No. 2167/14 (Feb. 27, 2015) (PDF file). The complainant, a former employee of a home improvement company, alleged that the respondent sent her an inappropriate text message and fired her when she complained to him about it. Her complaint to the New York City Commission on Human Rights (CHR) included copies of their text correspondence. The ALJ recommended $37,020 in back wages, damages, and fines. The final decision rests with the CHR, which stated that it will take the ALJ’s ruling under advisement.
According to the ALJ’s report and recommendation (the “Report”), the respondent hired the complainant through Goodwill Industries in July 2013 for a construction site cleanup job. On her fourth day, the respondent allegedly commented on the complainant’s weight and tried to “touch her waist,” Report at 2, but she blocked him with her arms. She met the respondent while off-duty on August 2, 2013 to pick up her paycheck. While she normally wore jeans to work, she was dressed differently at this time. The respondent then sent her a text message that said “Why don’t you look that good when you come to work?” Report at 3. She responded with a text stating that she found this inappropriate, and he reportedly responded with a text telling her she was fired. He also, according to the ALJ, told the respondent via text that he never actually needed to hire her, and that he had to create work for her.
The CHR brought a claim against the respondent, both individually and in his business capacity, for gender discrimination and retaliation under the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107(1)(a), (7). The respondent did not appear at a settlement conference or for trial. The complainant requested an adjournment to serve the charges and notice of trial again. When the respondent did not appear on the new trial date in November 2014, the ALJ found him in default and allowed the trial to proceed in his absence.
Under New York City law, if a respondent does not specifically deny or explain an allegation made in a complaint, it is deemed “admitted.” N.Y.C. Admin. Code § 8-111(c), 47 R.C.N.Y. § 1-14(b). Since the ALJ found the respondent in default, he also deemed all of the complainants’ allegations admitted. Beyond this, the ALJ “fully credited the complainant’s undisputed testimony,” Report at 3, noting that she supported her testimony with photos of the text messages. The director of Goodwill Industries’ job program also corroborated her testimony and offered her own testimony about referring the complainant to the CHR.
The ALJ found that the respondent discriminated against the complainant because of her gender, citing the text messages, the comments to her, and the attempt to touch her. He also found that the respondent unlawfully retaliated against the complainant by firing her immediately after she complained about his conduct. He recommended damages of $17,020 for back wages and $10,000 for mental anguish, as well as a civil penalty payable to the CHR of $10,000.
Phillips & Associates’ employment discrimination attorneys advocate for New York City workers who have endured violations of city, state, and federal employment laws. To schedule a free and confidential consultation with a knowledgeable and skilled advocate, contact us today online or at (212) 248-7431.
More Blog Posts:
New Harvard University Policy Demonstrates a Different Side of Sexual Harassment Law, New York Employment Attorney Blog, April 8, 2015
Police Detective’s Lawsuit Asserts Sexual Harassment, Retaliation Claims Under State Law, New York Employment Attorney Blog, March 18, 2015
Former Congressional Staffer Files Sexual Harassment Lawsuit Under Statute that Applies Federal Anti-Discrimination Law to Members of Congress, New York Employment Attorney Blog, March 11, 2015