New York State Division of Human Rights v. Young Legends, LLCNew York State Division of Human Rights v. Young Legends, LLC
In the Matter of NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Petitioners, v YOUNG LEGENDS, LLC, et al., Respondents. [934 NYS2d 628]—
Garry, J.
Between September and December 2006, petitioner Carolan L. Henninge (hereinаfter petitioner) was employed by respondent Young Legends, LLC in a franchise sandwich shop located
Following a public hearing at which Blackwoоd and Almonor appeared without counsel, an Administrative Law Judge (hereinafter ALJ) found that petitioner had been subjected to quid pro quo and hostile work environment sexual harassment and that Blackwood and Almonor were personally liable for the discriminatory conduct in that, as petitioner‘s employers and daily supervisors, each knew or should have known of the conduct but failed to do anything to address it. The ALJ recommended a damage award in the amount of $1,218.75 for lost wages and $25,000 for mental anguish аnd humiliation.
Upon administrative review, the Commissioner of Human Rights modified the ALJ‘s recommended order by increasing the mental anguish award to $500,000. SDHR thereafter commenced this proceeding pursuant to
Before SDHR‘s application for enforcement may be granted, this Court is required to review the record to determine “whether the underlying finding is supported by substantial evidence” (Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d 906, 906 [2006]; see
Petitioner, who was a high school student, testified in detail about Blackwood‘s “touchy feely” interactions with female employees, his offensive personal remarks and comments lаced with sexual innuendo, and the constant pressure he exerted upon petitioner to visit him alone in his apartment. She testified that when she eventually did so, he forced her to engage in sexual intercourse. Thereafter, petitioner returned to work but did not report the encounter to anyone other than to a friend who was not employed by Young Legends because, as she testified,
We reach a different conclusion as to Almonor. The original cоmplaint, filed in January 2007, charged only Young Legends and Blackwood with violations of the Human Rights Law; the complaint did not mention Almonor and was not personally served upon her. On December 17, 2007—four days before the fact-finding hearing—SDHR served Almonor, as well as the other respondents, with an amended notice of hearing and complaint that added Almonor as a respondent. SDHR contends that the untimeliness of this service is immaterial because Almonor—who appeared at the hearing and acknowledged that she received the amended documents—had actual notice, and the time limits imposed by the
To hold Almonor, as an owner of Young Legends, liable for Blackwood‘s conduct, proof was required that she “became a party to [the harassment] by encouraging, condoning, or approving it” (Matter of State Div. of Human Rights v St. Elizabeth‘s Hosp., 66 NY2d 684, 687 [1985] [internal quotation marks and citation omitted]; accord Matter of Grand Union Co. v Mercado, 263 AD2d 923, 924 [1999]). The original complaint contained no such allegation. When SDHR amended the caption to add Almonor‘s name, no corresponding alterations were made in the body of the complaint. As before, the complaint made allegations only against Blackwood, did not assert that Almonor
Moreover, nothing about the hearing served to place Almonor on notice that any claim was being made against her; instead, the record reveals that, throughout the proceedings, everyone present, including the ALJ and SDHR‘s counsel, apparently proceeded on the assumption that Blackwood was the only potentially liable individual. SDHR‘s counsel never suggested or argued that Almonor should be held liable and made no motion to amend the complaint to add аllegations against her. The ALJ stated more than once that the purpose of the hearing was to determine Blackwood‘s liability; he was given opportunities to call and cross-examine witnesses, introduce evidence, and examine and object to petitioner‘s exhibits. No such opportunities were afforded to Almonor, and Blackwood explicitly advised the ALJ that he was acting on behalf of no one but himself. The record also contradicts SDHR‘s contention that Almonor did not request an opрortunity to participate in the hearing. Near the end of the hearing, after Blackwood stated that he did not intend to call any witnesses, Almonor intervened to ask, “Since
In addition to the failure of notice, the record does not contain the requisite substantial evidence supporting a determination that Almonor is personally liable to petitioner (see Matter of State Div. of Human Rights v Koch, 60 AD3d at 777-778). The ALJ determined that Almonor was liable based upon a November 2006 letter, in which another employee advised Almonor that she was resigning because of Blackwood‘s objectionable conduct. This letter was admitted into evidence, the ALJ asked Almonor whether she had received it, and Almonor confirmed, in one word, that she had. No further testimony was elicited as to when the letter was received, whether Almonor spoke further with the other employee, investigated the allegations, or took any corrective aсtion in response, and no other evidence on this issue was presented during the hearing. Thus, SDHR failed to satisfy its “affirmative burden” to prove that Almonor condoned the discriminatory conduct (Matter of State Univ. of N.Y. at Albany v State Human Rights Appeal Bd., 81 AD2d 688, 689 [1981], affd 55 NY2d 896 [1982]).
Finally, we do not аgree that the award of $500,000 for petitioner‘s mental anguish and humiliation is “reasonably related to the wrongdoing, supported by the record and comparable to other awards for similar injuries” (Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823, 826 [2008]).2 Blackwood‘s conduct—including, among other things, forcible sexual intercourse with a high school student—was unquestionably reprehensible. However, in proceedings of this nature, damage awards for mental anguish and humiliation are to be based upon actual
Rose, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur.
Adjudged that the order of the Commissioner of Human Services is modified, without costs, by annulling so much thereof as (1) found respondent Melissa Almonor personally liable for discriminatory conduct towards petitioner Carolan L. Henninge and (2) awarded said petitioner $500,000 as compensatory damages for mental anguish and humiliation; petition dismissed against respondent Melissa Almonor, petition granted to the extent that respondents Young Legends, LLC and Dale Blaсkwood are directed to pay petitioner Carolan L. Henninge, within 30 days after service upon them of this Court‘s decision, the sum of $1,218.75 for lost wages, with interest from February 15, 2007, and the sum of $50,000 as compensatory damages, with interest from the date of the order of the Commissioner of Human Services; and, as so modified, confirmed.