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Comm’n on Human Rights ex rel. Canty v.

Magnamart Cleaners & Launderers

OATH Index No. 2659/08 (Aug.7, 2008)

Petitioner established a prima facie case of age and gender discrimination against respondent employer.ALJ recommends $640 for lost income and a $1,000 civil penalty. ALJ further recommends dismissal of complaint against individual respondent.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

COMMISSION ON HUMAN RIGHTS

EX REL.

CARRIE CANTY

Petitioner

- against -

MAGNAMART CLEANERS & LAUNDERERS

AND “JANE DOE”

Respondents

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REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge

The New York City Commission on Human Rights (“petitioner”) brought this proceeding pursuant to section 8-107(1)(a) of the Administrative Code and section 1-71 of petitioner’s rules, based on a complaint filed by complainant Carrie Canty. See Admin. Code § 8-107(1)(a) & 47 RCNY § 1-71 (Lexis 2008). Petitioner alleged that in September 2006, respondents, Magnamart Cleaners & Launders (“Magnamart”) and “Jane Doe,”discriminated against Ms. Cantybecause of her age and gender. Respondents failed to answer or appear.

PRELIMINARY ISSUES

Because of respondents’ default, I received and reviewed petitioner’s proof of service and its pleadings to make sure that respondents were properly served with papers that notified them of the allegations against them, and apprised them of their procedural rights. Section 1-71(a) of petitioner’s rules of practice permits petitioner to docket a case at OATH by delivering to this tribunal a notice of referral and the pleadings, inter alia. The notice of referral shall include the last known address and telephone number of each complainant, respondent, and necessary party, state whether respondent has complied with section 1-14 of petitioner’s rules, and, if not, indicate whether petitioner is seeking to have respondent held in default. No notice of referral was submitted prior to or at the hearing. Rather, petitioner docketed this case by submitting the OATH intake sheet and a copy of the verified complaint only. Even though petitioner failed to follow its own rules, the absence of the notice of referral was not fatal.

Section 1-71(a) of petitioner’s rules further provides that, upon its referral of a case to this tribunal, our rules of practice govern, except as otherwise provided in petitioner’s rules. I found that the pleadings in petitioner’s verified complaint satisfied section 1-22 of OATH’s rules of practice (“our rules”), which governs the sufficiency of the petition. Moreover, we have often held that the purpose of administrative pleadings is notice, not jurisdiction, and a petition is sufficient if it affords notice of the matters to be adjudicated. Dep’t of Buildings v. Owner, Occupants Mortgagees of 31 West 11th Street, Apartments 6A 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994); Dep’t of Buildings v. 2837-39 Decatur Avenue, Bronx, New York, OATH Index No. 349/94 (Jan. 10, 1994). Petitioner submitted an affidavit of service to affirm that it served its verified complaint on respondents and the complainant, by first-class mail, on June 17, 2007, in accordance with section 1-11 of petitioner’s rules (ALJ Ex. 1). Petitioner’s verified complaint specified the incident that gave rise to the allegation of discrimination, and the section of the law allegedly violated. Accordingly, the case was docketed and apre-trial conference was scheduled for June 23, 2008.

At the conference, respondents failed to appear. Because petitioner was unable to provide proof that respondents were served with notice of the conference pursuant to sections 1-28(a) and 2-24(b) of our rules, it was directed to serve respondents with a notice of trialscheduled for July 18, with a proposal that the case would be conferenced prior thereto.See also 48 RCNY§ 1-26(c), permitting adjournment of a conference or trial. The complainant agreed to remain on call and wouldappear in person only if the respondents appeared. On July 18, respondentsagain failed to appear and were found in default.

Under section 1-28(a) of our rules, the notice of trial may be served personally or by mail. As proof of service, petitioner submitted a notice of trial which identified the complaint number and OATH index number, and notified respondents of the date, time and place of the hearing, and the remedy being sought. It further notified respondents that failure to appear would result in a default against them. Petitioner submitted an affidavit representing that personal service was made upon respondents on July 11(Pet. Ex. 1). In the affidavit, petitioner’s investigator, who served the notice, stated that he hand-delivered a copy of the notice to a person over 18 years of age, at what appeared to be Magnamart’s place of business. In support of his affidavit, the investigator submitted an activity report, in which he stated that when he entered the business location, he observed two men at the non-public area at the rear, which suggested that they were employees of the business. One approached him at the front of the premisesand the investigator “presented him [with] the envelope containing the notice”(Pet. Ex. 2).

Service Upon “Jane Doe”

Service of the petition, like its content, is concerned with fair notice. 31 West 11th Street, Apartments 6A and 6B, OATH 990/94. The same holds true for service of the notice of trial. Moreover, section 1-03 of petitioner’s rules provides that “[e]xcept where otherwise specified, service of a paper means any method of service described by section 2103 of the New York Civil Practice Law and Rules.”See47 RCNY § 1-03. Under CPLR § 2103, where a party is unrepresented by counsel, service shall be made by: 1) delivering the paper to the party personally; or 2) mail, to the party’s last known address; or 3) leaving it at the party’s address with a person of suitable age and discretion; or 4) faxing the paper to the party, with a follow-up mailing; or 5) sending the paper by overnight delivery service at the party’s last known address.See CPLR §§ 2103(c), 2103(b) (1), (2), (4), (5) and (6). Petitioner submitted nothing to establish that serving some unnamed individual at Magnamart’s place of business was reasonably calculated to give Jane Doe actual notice of this proceeding. Jane Doe was not personally served. The notice was not mailed to her. There was nothing to suggest that Jane Doe lived at the premises, or to even remotely establish a relationship between the person served and Jane Doe. The notice was not faxed to her at her address, which was not provided, and neither was it remitted by overnight mail. Accordingly, I find petitioner’s service attempt upon Jane Doe to be inadequate.

Service Upon Magnamart

Nothing in petitioner’s submissions identified the legal status of Magnamart, even though petitioner might have sought and obtained information from the Department of Consumer Affairs, through which cleaners and launderers are required to be licensed. While section 1-71(a) of the petitioner’s rules precludes petitioner from submitting to OATH, material relating to the investigation of the complaintupon its referral to this tribunal, that does not apply to the thoroughness of its efforts to properly identify the legal entity behind the business named in this proceeding. The lack of information on the legal entity is troubling. Nonetheless, section 1-03 of petitioner’s rules defines a respondent as any “person” who has been charged with the commission of an unlawful discriminatory practice in a complaint filed pursuant to petitioner’s rules. Such “person” includes proprietorships, associations, organizations and corporations. See 47 RCNY § 1-03; Admin. Code § 8-102(1).

Section 2103(b)(4) of the CPLR permits service upon a person of suitable age and discretion at the party’s residence only if service at the place of business cannot be achieved. Here, petitioner served the notice of trial upon an unnamed individual at the place of business. That personappeared to be an employee, and accepted the envelope from the investigator. This was barely sufficient to give the principal(s) of the entity identified as Magnamart,whether corporate or a proprietorship, notice of this proceeding. Accordingly, I reluctantly permitted the hearing to go forward.

For the reasons below, I find that petitioner has made a prima facie showing that respondent, Magnamart, discriminated against the complainantbecause of her age and gender, in violation of the Administrative Code, and recommend $640 in lost income and a $1,000 civil penalty. I further recommend that the complaint against Jane Doe be dismissed.

ANALYSIS

At the hearing, the complainant, an 80-year old female, was permitted to testify by telephone. She stated that on September 26, 2006, she was referred to Magnamart by the New York State Department of Labor Division of Employment Services (“DOL”) to work as a trouser presser. On that day, the air machine for drying the clothes was broken and she waited until about 2:30 p.m. for a mechanic to come in and repair it, after which she was assigned a trouser press, which was also broken. She testified that she had never worked on such a poorly maintained trouser press, which required her to use her foot to engage the pedal, during the four hours that she worked that day (Tr. 10, 11). When she returned the following day,Mohammed, the manager, paid her $40 for her previous day’s work,plus $10 for the time that she had spent waiting for the mechanic to repair the air machine, and told her that the owner, Charles, did not want her using the broken press for fear that she might get hurt. Mohammed said that they would either repair or replace the press over the weekend and instructed her to call the following Monday (Tr. 12, 13). Before she left, the complainant observed a man operating the press. When she called the following Monday, Jane Doe, the owner’s wife, answered the telephone, and told her, “Oh, we have three pressers. You’re an old woman” (Tr. 12-14). The complainant filed a report with DOL and, one week later,she was sentfor clerical training at an office in downtown Brooklyn. She started working at the Fire Department, through AARP, in November 2006, where she isstill employed, and where she works approximately 36 hours per week, earning minimum wage (Tr. 18-20).

The complainant testified that she has 35 to 40 years of experience as a presser (Tr. 14). For approximately two years prior to her experience with Magnamart, she had worked on a part-time basis as a presser for Supreme Dry Cleaners (“Supreme”) in MillBasin. Her schedule was three to four hours daily, four days per week, she was paidon a per garment basis and received approximately $250 to $300 in cash, weekly. She testified that Supreme had gone out of business about two to three days before DOL sent her to Magnamart. Before Supreme, she had been unemployed for about one and a half years and, prior to that, had been a full-time presser at Happy Man Dry Cleaners, earning about $400 to $500 per week. The complainant indicated that Magnamart was not as lucrativeas Supreme, which paid eighty cents per garment, compared to Magnamart’s seventy cents (Tr. 15-17). She overheard the manager state to another presser that he could earn as much as $100 per day (Tr. 14). She had nothing to substantiate her income claims and said that she had no idea where her tax returns might be (Tr. 18).

Sections 8-107(1)(a) of the New York City Administrative Code prohibits an employer or an employee or agent thereof, from discharging a person from employment because of age or gender. See, e.g.,Admin. Code § 8-107(a) (Lexis 2008). To be classified as an employer under the Human Rights Law, respondent must have four or more persons in its employ. Admin. Code § 8-102(5). Here, the complainant’s testimony suggested that Magnamart was an employer, as defined by the Administrative Code. Jane Doe told the complainant that Magnamart already had three pressers. In addition, there was Mohammed, another employee, whom the complainant characterized as the manager, and who appeared to deal with the day-to-day operation of the business. Therefore, at the least, Magnamart had four employees.

The existence of an employer-employee relationship is a factual determination made upon consideration of factors, which may include the right to control, the method of payment, who furnishes the equipment, the right to discharge, and the relative nature of the work. See Commissioners of the State Insurance Fund v. Lindenhurst Green & White Corp., 101 A.D.2d 730, 475 N.Y.S.2d 42 (1stDep’t 1984). An employer-employee relationship may be found where only one of those factors exists. Zeigler v. Fillmore Car Service, Inc, 83 A.D.2d 692, 442 N.Y.S.2d 276 (3d Dep’t 1981); Wittenstein v. Fugazy Continental Corp., 59 A.D.2d 249, 399 N.Y.S.2d 314 (3d Dep’t 1977). Thus, where a person works for another subject to substantial control, not only over the results produced but also over the means used to produce the results, that person qualifies as an employee. O’Brien v. Spitzer, 7 N.Y.3d 239, 818 N.Y.S.2d 844 (2006). Hence, even though the complainant was present at Magnamart for one day and worked for only four hours, the nature of her interaction with Mohammed, the manager, who assigned her to a trouser press, advised her of the per-garment rate at which she would be paid, and who reserved the right to discharge her, served to establish an employer-employee relationship between Magnamart and the complainant.

To prevail in an employment discrimination case, petitioner has the initial burden of establishing a prima facie case by showing that (1) the complainant is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment; and (4) the termination occurred under circumstances giving rise to an inference of discrimination. See Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 390 (2004); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Moreover, petitioner’s burden is de minimis. Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d Cir. 1999).

Here, petitioner has met its burden. At 80 years of age, the complainant unquestionably satisfied the first element of being a member of a protected class. She credibly testified that she had actually worked for 35 to 40 years as a trouser presserand recounted her work experience and remuneration during the years immediately preceding Magnamart. This demonstrated that she possessed the basic skills to make her eligible for the job, thereby satisfying the second element. Owens v. New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) (citations omitted). The third element is also satisfied because, after working at Magnamart for only one afternoon, she was laid off the following day.

As to the fourth element, the complainant testified that she was replaced by a male individual, thereby implicating her gender. Further, she stated that Jane Doe referred to her as an old woman,thereby implicating the complainant’s age. No testimony was adduced as to how the complainant discovered Jane Doe to be the owner’s wife or how she identified Jane Doe as the person who had answered the telephone.

Under section 8-107(13)(b) of the Administrative Code, an employer is liable for an unlawful discriminatory act of an employee or agent if (1) the employee or agent exercised managerial or supervisory responsibility; or (2) the employer knew of the employee’s or agent’s discriminatory conduct and endorsed it or failed to take immediate corrective action; or (3) the employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such conduct. The complainant testified that Mohammed was the manager of Magnamart. There was no testimony regarding Jane Doe’s presence at, or role with, Magnamart. However, given her relationship to the owner, it is reasonable to assume that Jane Doe had some kind of possessory interest in the business and therefore stood in her husband’s (the owner’s) shoes. Accordingly, I find that her remarks may be attributed to Magnamart.

I also find that Magnamart is liable for Mohammed’s dismissal of the complainant. Mohammed was the manager of the business who, while expressing the owner’s concern that the complainant might hurt herself as a basis for releasing her, replaced her with a male worker. Mohammed’s action, which appeared to be pre-textual and precipitated by the complainant’sage or gender, or both,makes the owner liable.

I therefore find that petitioner has met its burden of establishing a prima facie case of discrimination against the complainant, based on her age and gender.

FINDINGS AND CONCLUSIONS

  1. Petitioner properly served respondent, Magnamart Cleaners and Launderers, with Notice of Trial pursuant to section 1-28 of OATH’s Rules of Practice.
  1. Petitioner’s service attempt upon Jane Doe was not reasonably calculated to give Jane Doe notice of the trial.
  1. Petitioner established a prima facie case of age and gender discrimination against respondent, Magnamart Cleaners and Launderers, in violation of section 8-107(1)(a) of the New York City Administrative Code.

Recommendation

Under section 8-120(a)(8) of the Administrative Code, the relief sought upon a finding of unlawful discriminatory action may include damages for lost income and mental anguish. See Comm’n on Human Rights ex rel. De La Rosa v. Manhattan Bronx Surface Transportation. Operating Auth., OATH Index No. 1141/04, at 10 (Dec. 30, 2004), aff’d, Comm’n Dec. (Mar. 11, 2005); Comm’n on Human Rights ex rel. Rhodes v. Apollo Theatre Investor Group, OATH Index No. 676/91 (June 14, 1991), aff’d in part, modified in part, Comm’n Dec. (Mar. 11, 1992), modified, Sup. Ct. N.Y. Co. Index No. 10056/92 (Apr. 20, 1993). However, the relief must be commensurate with the wrongdoing and supported by the evidence. Anagnostakos,D/B/A Rolando’s Diner v. New YorkState Division of Human Rights, 46 A.D.3d 992, 846 N.Y.S.2d 798 (3d Dep’t 2007); New York City Transit Auth. v. State Division of Human Rights, 78 N.Y.2d 207, 219, 573 N.Y.S.2d 49, 54 (1991).

Petitioner seeks $30,000 in lost wages, $10,000 in compensatory damages for mental anguish, and a civil penalty of $10,000. I find that the relief sought is unsupported by the evidence. The complainant testified that within one week of the Magnamart incident, she was placed in a training program and commenced working for the Fire Department in November 2006. Therefore, at most, she lost one month of remuneration as a result of respondent’s adverse action. No testimony was elicited regarding her hours of work at Magnamart. However, given her part-time status at Supreme, I see no reason to assume differently here. She testified that at Supreme she earned $250 to $300 per week. She also indicated that Magnamart, with its dilapidated machines, was not as lucrative as Supreme, and paid less per garment. Magnamart paid her $40 for her four hours of service on the first day and she did not allege that she was underpaid. Assuming a four-hour per day, four-day work week, like Supreme, the complainant would have earned $160 weekly or $640 over the time that had elapsed before she commenced her job at the Fire Department. I must note also that neither petitioner nor the complainant provided solid proof of her previous income, but I credited the complainant’s testimony. Moreover, the complainant currently earns far in excess of $160 weekly, and is on par with what she earned at Supreme. Accordingly, I find that $640 in lost wages is appropriate.