Matter of Secor v City of New York

[*1] Matter of Secor v City of New York 2006 NY Slip Op 51924(U) [13 Misc 3d 1220(A)] Decided on October 3, 2006 Supreme Court, New York County Stone, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2006
Supreme Court, New York County

In the Matter of the Application of Timothy Secor, Stars Model Management, Petitioners,

against

The City of New York, Commission on Human Rights, Respondents.



106647/06

Lewis Bart Stone, J.

Petitioners Timothy Secor and Stars Model Management (collectively "Secor"), commenced this proceeding by Notice of Motion dated May 13, 2006, to set aside a Decision and Order (the "Decision") of Respondent, City of New York Commission on Human Rights ("Commission"), dated April 13, 2006, which found that Secor had discriminated against Shameika Cherry ("Cherry") by denying her an employment opportunity based upon her race, and imposed certain remedies.

The process by which the Commission reached its Decision included a Determination of Probable Cause, a contested evidentiary hearing before an administrative judge of the New York City Office of Administrative Trials and Hearing (the "Administrative Judge"), who made findings of facts and recommendations, in a Report and Recommendation (the "Report") dated March 7, 2006, concluding that Petitioner had discriminated against Cherry, that Secor was an employment agency as such term is defined in New York City Administrative Code ("Code") §8-102(2) and recommending that a civil penalty of $15,000 be imposed against Secor, that compensatory damages of $10,000 be awarded in favor of Cherry, that Timothy Secor be required to attend sensitivity training classes and that Secor and his company implement a policy against discrimination, and train any employees it may have to comport themselves consistent with that policy.

The Commission's Decision adopted the findings of fact and conclusions of law in the Report and its recommendation of civil damages and penalty and ordered Secor to attend sensitivity training and required that his organization institute a policy against discrimination. [*2]

Secor's petition seeks to have the Decision set aside under Code §8-107 and New York on the grounds that Secor is not an employment agency as defined in General Business Law ("GBL") §172, and that the award "was arbitrary and capricious and meant to be punitive rather than compensatory." Although the term "employment agency" is defined under Code §8-102(2) and GBL §171 instead of the provisions cited by Secor, this court will treat such petition as if the correct provisions were cited.

The Commission, by its Answer to the Petition, dated July 26, 2006, cross-moved to enforce the Decision in its entirety.

FACTS

On or about October 9, 2004, Cherry, an African American, learned of a modeling position through a website, InstantCast. com., which invited readers to call a Manhattan based telephone number to arrange for an interview. Timothy Secor, who posted the notice, owned and operated Stars Model Management. When Cherry called the number to apply, Timothy Secor asked as to her ethnicity to which she replied that she was black, and Secor stated, "You're not wanted here. Don't call back." Stunned, she told her mother and an aunt, who, pretending to be white, called back and who was offered an interview. Following her aunt's call, Cherry called back and was dismissed with a racial epithet.

Secor does not challenge here that he unlawfully discriminated against Cherry by reason of her race but instead challenges the Decision on the grounds that neither he nor his organization is an employment agency and seeks a reduction in the compensation damages award to Cherry on the grounds that the size of the award was arbitrary and capricious, and that the award was meant to be punitive rather than compensatory.

EMPLOYMENT AGENCY

Article 8 of the Code, sets forth and defines certain acts as unlawful discriminatory practices. Among them are the discrimination by an employment agency against any person because of such person's race. Code §8-107(1)(b). It is the gravamen of the case that Secor violated such provision.

At the hearing, the parties were given an opportunity to present evidence, to argue, and to submit memoranda on the issues. The Administrative Judge, following this input, considered at length whether the Petitioner was an "employment agency" within the meaning of Code §8-102(2), which defines "employment agency" to [*3]include "any person undertaking to procure employees or opportunity to work." In his Report, the Administrative Judge considered a series of cases which looked to the function performed by the alleged discriminator to determine whether such person was an "employment agency" within the meaning of the statute, rather than to look at whether the "agency" was licensed, or purported to be an "employment agency."

One case, cited by both the Administrative Judge and the Commission, directly addresses this issue. In Commission v. Boll, 1974 WL 2796, 8 Fair Empl. Prac. Cas. (BNA) 1139 (NY Co Sup. Ct. 1974), the Court found that Boll, a volunteer unpaid "counselor" of the Harvard Business School Club, who for years conducted weekly meetings for male graduates of the school on methods and techniques of interviewing for positions and made available a collection of job leads and generally counseled attendees how to proceed in their job searches, was in fact an employment agency under the statutory definition.[FN1] The Court in Boll further found that such determination was one of fact and that the Commission had sufficient facts before it to reach such conclusion. While Boll, as a decision of a Court of equal jurisdiction to this Court, does not bind this Court, this Court finds the reasoning in Boll to be persuasive and the findings of fact by the Administrative Judge in this case to sufficiently support a similar conclusion here.

The Administrative Judge also considered a series of Federal decisions, construing the term "employment agency" under Federal anti-discrimination statutes [FN2] which reached the same conclusion, that it is function, rather than form or licensure which determines whether the statutory definition has been met. See, Dumar v. Mount Vernon, 612 F.2d 974 (5th Cir. 1980) (county personnel board which administered the county civil service system was an "employment agency"). Kaplowitz v. Univ. of Chicago, 387 F.Supp 42 (Dist. Ct. ND Ill 1974) (student placement facility at a law school was an "employment agency") and Scaglione v. Chappaqua Cent. School Dist., 209 F. Supp. 2d 311 (Dist. Ct. SDNY 2002) (county personnel office was an "employment agency").

While the definition of "employment agency" under Federal law is not dispositive upon the construction of the Code, it is illustrative that the construction of the term "employment agency" by the Administrative Judge, the Commission and [*4]Boll are clearly mainstream decisions in the anti-discrimination arena. Accordingly, Secor's argument that because he was not a licensed employment agency and because the licensing authorities had not sanctioned him for being unlicensed,[FN3] he was not covered by the Code, is unsustainable.

Secor also asserts that the size of the award to Cherry for mental anguish was arbitrary and capricious and was meant to be punitive, rather than compensatory. The Code provides for both civil penalties and compensatory damages to be awarded following a finding of an unlawful discriminatory practice. Accordingly, as unlawful discriminatory practice was found, both civil penalties and compensatory damages were awardable. Secor does not in his petition challenge the amount of the civil penalty.

Under Code §8-120(8), the Commission is authorized to award compensatory damages in the event it finds that a respondent has engaged in any unlawful discriminatory practice.

Secor argues that the $10,000 compensatory damages found were too high under the factual record, and implies that a portion of this award, if not all, was punitive, rather than compensatory. Secor further argues that, with respect to this award the Commission failed to take into consideration certain mitigating circumstances recited in Secor's petition and that such failure is evidence of the Administrative Law Judge's "lack of objectivity and neutrality" in determining the amount of damages to be awarded.

Code §8-107(13)(e) expressly provides for mitigation of certain penalties and damages which would otherwise be awardable following a determination that an unlawful discriminatory act has been committed. However, such provision only provides for mitigation of civil penalties and punitive damages and in determining an employee's liability under respondeat superior liability under §8-107(13)(b)(3). None of such issues are present here. Thus, under the principle of statutory construction of expressio unius est exclusio alterius, Code Article 8 must be construed to exclude mitigation as a factor to be considered by the Commission in determining the award of ordinary damages under such article against individuals or employers who had directly engaged in unlawful discriminatory acts. See, McKinney's Statutes §240. As issues of mitigation are irrelevant in this case, the fact that the Administrative Judge ignored such issues cannot be evidence of his lack of objectivity and neutrality. [*5]

As Secor concedes in his petition, compensatory damages in a discrimination case may include compensation for mental anguish. However, Secor argues both that there was insufficient proof of mental anguish and that the amount of the award, $10,000, was too high.

Although in Secor's petition, Secor asserts "there is no evidence in the record besides complainant's own testimony that she endured pain and suffering" such assertion is false. Nancy Jenkins, Cherry's mother, also testified at the hearing that as a result of the discrimination Cherry "was very withdrawn, she cried a lot, she didn't eat, she lost weight...she didn't sleep." (Hearing transcript p. 61). Thus, although there was no medical evidence, there was substantial evidence on the record of Cherry's anguish and suffering.

The Commission at the hearing initially sought compensatory damages of $20,000, (but in closing arguments only requested $10,000 in compensatory damages); the Administrative Judge awarded $10,000. In reaching his decision, the Administrative Judge considered and discussed five cases which reviewed awards for mental anguish made by the State Division of Human Rights (hereafter "SDHR") in unlawful discrimination cases.[FN4] The cases discussed by the Administrative Judge in his Report follow.

In City of NY v. SDHR, 250 AD2d 273 (1st Dept. 1998) aff'd 93 NY2d 768 (1999), the First Department reduced an award of $20,000 for mental anguish to $10,000. The award was solely based on the complainant's testimony that he was "hurt," "angry" and "emotional." In Ravena-Coeymans-Selkirk Cent. School Dist. v. SDHR, 109 AD2d 988 (3rd Dept. 1985), the Third Department reduced an award of $10,000 for mental anguish to $5,000. The award was based solely on the complainant's testimony as to her upset, difficulty of sleeping and severe migrane. In Dept. Of Correctional Services v. SDHR, 207 AD2d 585 (3rd Dept. 1994), the Third Department reduced an award of $25,000 for mental anguish and humiliation to $10,000, saying "given the absence of proof of the severity and consequences of [the complainant's] condition, an award of $10,000 is more consistent with awards for comparable injuries in the past". In Manhattan & Bronx Surface Trans. Operating Auth. v. SDHR, 220 AD2d 668 (2nd Dept. 1995), the Second Department set aside an award of $30,000 and remanded for a new award not to exceed $7,500. The award [*6]was based solely on the complainant's testimony and no medical or psychiatric treatment was sought. In Port Washington Police Dist. v. SDHR, 221 AD2d 639 (2nd Dept. 1995), the Second Department set aside an award for $200,000 and remitted for a new award not to exceed $5,000, noting that "the complainant's discussion of her mental anguish was brief and there was no evidence of the duration of her condition, its severity or consequence or evidence of treatment." Id. at 640.

While not referring to every reported case relating to an award for mental anguish, the Administrative Law Judge selected a representative sample of SDHR awards to ascertain how to formulate an award in an area where precision in the ascription of suffering to dollars is at best an estimation. In the five cases considered in the Report, converting the size of awards found acceptable by the various Appellate Division to 2006 dollars [FN5] using the Federally determined Consumer Price Index for the New York City Metropolitan area [FN6] from the date of the earlier decisions show such cases to have approved the following economic amounts; City of NY v. SDHR - $12,214.89, Ravena Coeymans, - $9,456.32, Department of Correctional Services - $13,731.44, Manhattan & Bronx - $10,014.76, and Port Washington, - $6,676.51.

Based on the foregoing, the award of $10,000 in this case was clearly within the parameters of the decisions cited and therefore neither arbitrary nor capricious.

Secor's petition cites four cases on this issue. Such cases not only do not support Secor's assertion that the award here was improper, but instead support the award of the Commission.

Three of these cases address mental anguish damages awarded by SDHR, and one addresses an award by the Commission.

In Wantagh Union Free School Dist.v. SDHR, 122 AD2d 846 (2nd Dept. 1986), the Court found that an award for "mental anguish" damages of $5,000, "established by the testimony of the complainant alone...cannot be termed grossly excessive." The present value of such award is $9,283.76.

In School Board of Education of the Chapel of the Redeemer Lutheran Church v. Commission, 188 AD2d 653 (2nd Dept. 1992), the Second Department reduced a $12,000 award for mental anguish as excessive to $7,500 because "an award of $7,500 is more consistent with awards for comparable injuries and proof of mental [*7]anguish made in the past.'" Id. at 654. The present value of such award is $10,878.47.

In Town of Lumberland v. SDHR, 229 AD2d 631 (3rd Dept. 1996), the Third Department reduced an award of $50,000 for emotional distress and humiliation, based solely on the complainant's testimony and a single visit to a physician who gave her a one-time prescription for tranquilizers, to $20,000. The present value of such award is $25,940.08.

In New York Transit Auth. v. SDHR, 78 NY2d 207(1991), the Court of Appeals expressly addressed and set forth the standards to be used in determining whether an award for mental anguish caused by an unlawful discriminatory practice was appropriate in amount. In that case, the State Division had awarded the complainant $450,000 and the Second Department had reduced the award to $75,000. The Court of Appeals vacated the reduction, returning it to the Second Department, stating:

the Appellate Division, in exercising its authority to review the Commissioner's award for legal error and excessiveness, did not do what the law required it to do: determine whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries. We therefore remit the matter to that court for review under the proper standard.

In the remainder of the opinion, the Court of Appeals noted that the Second Department in its decision had cited cases where it had upheld awards under $5,000 or reduced awards to that range where there was a single instance of discrimination and "scant proof of actual injury." The Court of Appeals also cited other cases where awards of $10,000 to $25,000 had been upheld on the facts.

Thus, under the Court of Appeals standard, the Administrative Law Judge, having found that Cherry's mental anguish was real and established by more than her testimony alone and that there were real consequences, looked to awards approved by the Courts in other cases in similar situations to set his recommendation. He did what the Court of Appeals required him to do.

This Court finds that the determination of the size of the damage award for mental anguish by the Administrative Judge, as adopted by the Commission, was not arbitrary or capricious nor does it represent an award for anything other than a compensation for Cherry's mental anguish as a result of Secor's illegal behavior.

The petition is dismissed, the cross motion of the Commission is granted. This is the Decision and Order of the Court. [*8]

Settle Order.

DATED:OCTOBER 3, 2006

NEW YORK, NEW YORK

Hon. Lewis Bart StoneJustice of the Supreme Court Footnotes

Footnote 1: The statutory definition reviewed in Boll was an earlier version of the current law which is functionally indistinguishable from the current definition.

Footnote 2: 42 U.S.C.A. §2000e(c). However, the Federal statute expressly includes persons "with or without compensation" a provision not present in the Code. As Secor was clearly acting with the expectation of compensation, this distinction between the Code and Federal law is irrelevant.

Footnote 3: As licensing is, in this Court's opinion irrelevant as to whether Secor was an "employment agency" under Code Art. 8, this Court expresses no opinion on whether Secor should in fact be licensed under City or State law.

Footnote 4: The New York State Human Rights Law, while quite similar to Code Art. 8, differs in detail. However, the same principles as to the size of compensation awards for mental anguish apply equally to both statutes. Accordingly, these cases provide proper precedent. Secor apparently agrees as his petition cites court decisions on awards rendered by both State Division of Human Rights and the Commission indiscriminately, without distinction between them.

Footnote 5: The Report was issued on March 7, 2006.

Footnote 6: See the Report of Bureau of Labor Statistics of which this court, sua sponte, takes judicial notice. Comparing old court awards solely by nominal dollar amounts makes no economic sense. See http://www.bls.gov/cpi/.