Grand Union Co. v. MercadoGrand Union Co. v. Mercado
Proceeding pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination оf respondent State Division of Human Rights which found petitioner guilty of an unlawful discriminatory practice based on gender and age.
Respоndent Martha Mailloux (hereinafter respondent), born on April 25, 1932, filed a charge of age and gender discrimination against petitioner, her employer, with the State Division of Human Rights (hereinafter DHR) in May 1991. Respondent had been working for petitioner as a frozen food selector since 1979. In 1989, two co-workers, Wally Simmofis and David Briggs, began verbally and physically harassing respondent, the only female employee in thе frozen food warehouse. The harassment culminated with respondent sustaining injuries as a result of an October 2, 1990 incident in which Simmons lifted respоndent by the legs, turned her upside down over his shoulder and attempted to place her head first into a garbage receptacle. He then carried her down the aisle and slammed her body into the door to the men’s room. Respondent eventually ceased working on October 15, 1990, claiming she was unable to perform her work duties due to her injuries.
At the conclusion of hearings held in December 1997 and March 1998 in сonnection with her discrimination charges, the Administrative Law Judge issued a determination finding that petitioner had engaged in discriminatory conduсt. DHR adopted these findings and ordered petitioner to pay respondent back pay in the amount of $92,665.06, from the time respondent disсontinued working until her retirement on May 1, 1994,
An employer may be held accountable for an employee’s discriminatory acts where “the employer became a party to it by encouraging, condoning or approving it” (Matter of Totem Taxi v State Human Rights Appeal Bd.,
Respondent testified that shе reported to her supervisor, Mickey Thomas, that Simmons taunted and harassed her with objectionable comments such as remarking that shе was taking a man’s job away and that she was too old and slow. She also stated that Briggs made similar derogatory comments to her, including “she’s thе biggest whore here in Grand Union”. Thomas relayed these reports to the general manager of the warehouse, Curt Taylor, who informed rеspondent that he would talk to Simmons and Briggs concerning their behavior. Briggs and Simmons nevertheless continued to regularly harass respondent аbout her gender and age. Respondent further complained to Thomas regarding physical acts by both men, such as taking her machine аway or knocking her over. Thomas again indicated to respondent that he would speak with Briggs and Simmons and assured her the two co-workеrs would not bother her again.
Although Thomas testified that he warned Simmons that he would be fired if he had any inappropriate contact with rеspondent, Simmons did not refrain from engaging in such conduct, as evidenced by the injuries sustained by respondent in October 1990. The October incident was reported by respondent and as a result, Simmons was suspended for three days, despite being previously warned by Taylor that any further incidents would result in his dismissal. When respondent expressed her dis
Four male warehouse co-workers testified on behalf of respondent, all revealing that they heard disparaging remarks regarding age and gender being made by Simmons and Briggs toward respondent. Two employees related that on more than one occasion, they witnessed physical harassment. One сoworker even reported Simmons’ harassment of respondent to Thomas on several occasions.
We find the record in this cаse clearly portrays a job site infected with increasingly aggressive acts of verbal and physical discrimination and an employеr, aware of numerous complaints, that failed to take appropriate measures to halt such conduct. Hence, substantiаl, if not overwhelming, evidence exists to support DHR’s determination that petitioner’s inaction and inability to thwart the verbal and physical hаrassment regarding respondent’s gender and age by two of its employees constituted a condonation of their employees’ аctions and a failure to remediate a hostile work environment (see, Matter of Capabilities, Inc. v State Div. of Human Rights,
Next, although pеtitioner concedes that the exclusivity provisions of the Workers’ Compensation Law do not bar an action under the New York Human Rights Lаw, petitioner argues that respondent’s election to receive workers’ compensation benefits precluded the discriminаtion proceeding. We disagree. Respondent’s monetary recovery for the intentional acts of discrimination in the DHR proceeding was offset by the amount of workers’ compensation benefits she was paid. Workers’ Compensation Law § 29, which was designed to prеvent the receipt of double recovery (see, Matter of Raponi v Orange & Rockland Utils.,
Peters, J. P., Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, with costs to resрondent Martha Mailloux, and petition dismissed.
Notes
The amount awarded to respondent represented the total amount due for back wages plus fringe benefits, minus the amount she received in workers’ compensation benefits over the same time period.