Comm n on Human Rights ex rel. Joo v. UBM Building Maintenance Inc. OATH Index No. 384/16 (Mar. 25, 2016)

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1 Comm n on Human Rights ex rel. Joo v. UBM Building Maintenance Inc. OATH Index No. 384/16 (Mar. 25, 2016) After a default trial, ALJ held that a maintenance company discriminated against a security officer under the City Human Rights Law when it terminated his employment based upon a policy of mandatory retirement the age of 65. ALJ recommended compensatory damages of $72,808, a civil penalty of $15,000, and that respondents undergo anti-discrimination training. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of COMMISSION ON HUMAN RIGHTS EX REL. DONG G. JOO Petitioner - against - UBM BUILDIMG MAINTENANCE INC., KUANG H. LEE (A.K.A. KYUNG HOON LEE), AND JEHWAN KIM Respondents REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge Petitioner, the New York City Commission on Human Rights ( Commission ), brought this action against respondents, UBM Building Maintenance Inc. ( UBM ), Kuang H. Lee (A.K.A. Kyung Hoon Lee), and Jehwan Kim, under section of the Administrative Code. By a verified complaint mailed on August 24, 2012, and an amended verified complaint mailed on September 20, 2012, the Commission charged respondents with violating the Administrative Code by discriminating against complainant Dong C. Joo based upon his age, and by retaliating against him for filing a complaint with the Commission. See Admin. Code 8-107(1), (7) (Lexis 2015). Respondents UBM and Lee filed an answer on October 24, 2012, denying the discriminatory and retaliatory conduct and asserting three affirmative defenses: 1) that the complaint failed to state a claim upon which relief may be granted; 2) that the complainant s

2 - 2 - claims are barred by the doctrine of unclean hands; and 3) that the complainant s claims are barred by waiver or estoppel. The answer, filed on October 25, 2012, admitted that Mr. Lee was the president of UBM and that Mr. Kim was a manager (Ans., paras. 3, 4). On June 30, 2015, the attorney who submitted the answer filed a letter indicating he was withdrawing from representing respondents. Respondents did not appear for a settlement conference on September 25, 2015, and a trial was scheduled for December 8, The trial date as well as pretrial discovery deadlines was included in a notice of trial mailed to respondents on September 28, On December 1, 2015, this tribunal granted petitioner s motion to compel respondents to reply to petitioner s discovery requests within five days. Comm n on Human Rights ex rel. Joo v. UBM Building Maintenance Inc., Lee, and Kim, OATH Index No. 384/16, mem. dec. (Dec. 1, 2015). Respondents did not reply to this motion. At the trial on December 8, 2015, petitioner s attorney appeared but respondents did not. After petitioner submitted proof that respondents were served with the complaint, an amended complaint, and a notice of trial, respondents were declared in default and the proceeding went forward in the form of an inquest (ALJ. Exs. 1, 2). Following the trial, petitioner s counsel submitted an initial brief on January 22, At the request of this tribunal, petitioner s counsel submitted a supplemental brief on February 12, 2016, on the issue of whether a private company s policy of enforcing a mandatory retirement age violates the City Human Rights Law. Based on the trial evidence, I find that respondents UBM and Mr. Lee violated sections 8-107(1) and 8-107(7) of the Administrative Code by discriminating against complainant based upon his age, and by retaliating against him for filing a complaint with the Commission. I recommend that complainant should be awarded compensatory damages of $72,808, that respondents should pay a civil penalty of $15,000, and that respondents should be ordered to undergo anti-discrimination training. ANALYSIS This case concerns an alleged violation of the City Human Rights Law (HRL), which makes it unlawful for an employer to discharge a person from employment because of their

3 - 3 - actual or perceived age. Admin. Code 8-107(1). The law applies to all employers who have four or more employees. Admin. Code 8-102(5) (Lexis 2015). Petitioner s primary witness was Mr. Joo, the complainant. He testified, by means of a Korean translator, that he began working as a security guard for UBM in approximately 2008, working at night at the Korean Embassy, monitoring visitors and viewing the surveillance video cameras. Mr. Lee was the owner of UBM and Mr. Kim was the manager and Mr. Joo s supervisor (Tr ). UBM employed at least eight employees at complainant s work location, with additional employees at UBM s headquarters (Tr. 14). Mr. Joo worked 44 hours per week and received a monthly wage of $1,800 per month, or around $450 per week, after taxes (Tr ; Pet. Ex. 1). In July 2012, Mr. Kim told Mr. Joo, who had turned 65 in September 2011, that he was no longer able to work for UBM because he was over 65 years old (Tr. 15). When Mr. Joo went to the UBM office to collect his final check, he requested a formal letter of termination. A few days later, on July 9, 2012, Mr. Joo received in the mail a letter (Pet. Ex. 2) from Mr. Lee, as the president of UBM, stating that Mr. Joo s employment had been discontinued because of UMB s policy that it does not employ the person over 65 years old. On August 10, 2012, Mr. Joo went to the Commission to file a complaint against UBM. During the interview, a Commission staff member telephoned Mr. Lee and spoke to him about Mr. Joo s allegations. Mr. Joo testified that, only minutes later, Mr. Joo received a call on his cell phone from Mr. Lee. Mr. Lee stated that Mr. Joo would regret it and would face consequences if he pursued legal action against UBM (Tr. 17). Mr. Joo produced a screen shot from his phone (Pet. Ex. 3) as well as a telephone call log (Pet. Ex. 4) confirming Mr. Lee s call of just under three minutes (Tr ). Former Commission attorney Garg also testified that, on August 10, 2015, she was present when a Commission supervisor telephoned Mr. Lee to speak with him about Mr. Joo s termination and, minutes later, Mr. Joo received a telephone call on his cell phone (Tr ). Mr. Joo testified that another security guard employed by UBM was also terminated when he reached 65 (Tr. 20). Following his termination, Mr. Joo was employed at a series of overlapping five part- and full-time jobs, as summarized in a table produced at the trial (Pet. Ex. 5). He worked temporarily at a dry cleaner for $150 per week. Then, after three to four months, Mr. Joo found another part-

4 - 4 - time job at a dry cleaner for $300 per week, or $1,200 per month (Tr. 21; Pet. Ex. 5). At the time of the trial, he was working two jobs and earning $1,300 per month (Tr. 23), some $500 less than he had been earning from UBM. Mr. Joo testified that being terminated from UBM made him anxious and caused him to have severe depression and phobia (Tr. 24). For about a year, he had nightmares and was unable to focus. In the nightmares, he was in a concentration camp and he was told he would be fired. In another dream he fell over a cliff and was given poisoned water (Tr ). First, there was no dispute that UBM is a covered entity under the HRL, since it had more than four employees. Admin. Code 8-102(5), (17) (Lexis 2015). It was therefore required to refrain from discriminatory practices. Turning to the merits of the employment discrimination, 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) he was qualified to hold the position; (3) he was terminated from employment; and (4) the termination occurred under circumstances giving rise to an inference of discrimination. See Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113 (1st Dep t. 2012)(citing Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004)); Rollins v. Fencers Club, Inc., 128 A.D.3d 401, 401 (1st Dep t 2015). At 65 years of age, the complainant satisfied the first element of being a member of a protected class. Mr. Joo credibly testified that he worked for respondents for four years as a security guard, and his dismissal letter stated that he was discharged from his employment with UBM because of a company policy of discharging anyone over 65 years of age, with no mention of any other reason for termination (Tr. 12, 14; Pet. Ex. 2). This was sufficient to establish that Mr. Joo was qualified to be a security guard, satisfying the second element. The third and fourth elements are also satisfied because Mr. Joo credibly testified that in July of 2012, Mr. Kim told Mr. Joo that he was being discharged due to his age, as per company policy. The letter from UBM, signed by Mr. Lee, which stated that Mr. Joo had served as a security guard since 2008 but that by our policy we do not employ the person over 65 years old, established that the reason for Mr. Joo s discharge was his age (Tr. 15, 16; Pet. Ex. 2). Therefore, the record demonstrates that Mr. Joo was terminated based on his age, a violation of the HRL.

5 - 5 - In petitioner s supplemental brief, petitioner contends that mandatory retirement policies are generally unlawful under the City HRL. The law provides that it is an unlawful discriminatory practice to any employer to discharge an employee because of actual or perceived age. The law contains no exception to this general prohibition of any discharge due to an employee s age. According to petitioner, this means that all mandatory retirement policies based upon age would violate the HRL. The sole exception would be mandatory retirement required by federal law, which would pre-empt City law. Pet. s Supplemental Post Trial Br. at 3 n.1. Petitioner contrasts the City HRL with the New York State Human Rights Law, which expressly permits compulsory retirement where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business. Exec. Law 296(3-a)(d) (Lexis 2015). The burden of establishing the existence of a bona fide occupational qualification would be on the respondent to be pleaded and proven as an affirmative defense. NY City Dep t of Personnel v. NY State Div. of Human Rights, 58 A.D.2d 787, 788 (1st Dep t 1977). Petitioner asserts that support for its interpretation of the City HRL making any mandatory retirement policy unlawful may be found in the Civil Rights Restoration Act of 2005, Admin. Code (Lexis 2015). This law provides that similar state or federal human rights statutes may be used as aids, but are a floor below which the City s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise. Williams v. NYC Housing Auth., 61 A.D.3d 62, (1st Dep t 2009) (quoting NYC Local Law No. 85 of ); see also Bennett v. Health Mgmt. Systems, Inc., 936 N.Y.2d 112,118 n.6 (1st Dep t 2011); Phillips v. City of New York, 66 A.D.2d 170, 206 (1st Dep t 2009). Nevertheless, I find it questionable whether, as petitioner s counsel asserts, all mandatory retirement systems and other age-based employment requirements, even those where the age requirement has been found to be a bona fide occupational qualification under state law, would be in violation of the City HRL. See Walter v. City of New York Police Dep t, 664 N.Y.S.2d 21, 22 (1st Dep t 1997) (noting that maximum age limit for New York City Police officers not impliedly repealed by general city and state human rights laws); Klotsche v. New York, 621 F. Supp. 1113, (S.D.N.Y. 1985) (holding that age cap of 29 years old for new police officers in the New York City Police Department is permissible under the equal protection clause

6 - 6 - where city has a public safety interest in a youthful police force and the age cap would also be permitted under the state human rights law); Knapp v. Monroe County Civil Service Com., 77 A.D.2d 817 (4th Dep t 1980) (holding that law setting age cap for new police officers in the New York City Police Department is permissible because it does not contravene the state human rights law and was not superseded because it applies to a separate category of civil service employers); NYS Div. of Human Rights ex rel. Kozlowski v. State, 62 A.D.2d 617, (4th Dep t 1978) (concluding that mandatory retirement age for state police officers under the state administered retirement plan did not violate the state human rights law because the requirement was not a subterfuge to evade the law s age discrimination provisions). In addition, both the New York City Police Department and the Fire Department have mandatory retirement ages in their pension plans which could, in theory, be challenged under the City HRL. See Admin. Code , (Lexis 2015). Mandatory retirement policies have been upheld against other discrimination claims. It seems well settled that, for certain professions, mandatory retirement does not violate the Equal Protection Clause of the federal Constitution. Gregory v. Ashcroft, 501 U.S. 452, 472 (1991) (mandatory retirement age of 70 for state court judges does not violate equal protection clause where state had a legitimate interest in maintaining a fully capable judiciary); Palmer v. Ticcione, 576 F.2d 459, 462 (2d Cir. 1978) (mandatory retirement age of 70 for school teachers upheld under equal protection clause because state has an interest in bringing in new, young teachers). Nor does compulsory retirement violate the Federal Age Discrimination in Employment Act (ADEA). EEOC v. Pennsylvania, 596 F. Supp. 1333, 1348 (M.D. Pa. 1984) (upholding mandatory retirement age of 60 for police officers under the ADEA where the age requirement was a bona fide occupational qualification and the maintenance of a youthful police force was reasonably necessary for the operation of the police department). The implications of making a broad finding as to the effect of the City HRL upon all agebased employment policies might be substantial and, at least in this case, unnecessary. Here the respondents failure to appear or offer any defenses to their retirement policies mandates a decision in favor of petitioner. I therefore find that, under the facts of this case, where respondents failed to appear at the trial or produce any evidence in support of the reasonability of UBM s mandatory retirement policy, petitioner has met its burden of establishing that respondents termination of Mr. Joo s employment based upon a stated company policy of

7 - 7 - discharging all workers who reach the age of 65 violated section 8-107(1) of the City Human Rights Law. The HRL also prohibits retaliation against any person who files a complaint or assists the Commission in an investigation. Admin. Code 8-107(7). Retaliatory conduct includes acts that are reasonably likely to deter a person from engaging in protected activity, such as filing a complaint. Id.; Williams, 61 A.D.3d at (defining retaliatory acts as those reasonably likely to deter a person from engaging in protected activity ). The undisputed evidence established that Mr. Lee retaliated against Mr. Joo. According to Mr. Joo and Ms. Garg, Mr. Lee, upon being notified that Mr. Joo was in the process of filing a complaint with the Commission, made a phone call to Mr. Joo saying that Mr. Joo would regret filing a lawsuit (Joo: Tr. 17; Garg: Tr ). Mr. Joo produced a screenshot (Pet. Ex. 3) and telephone records (Pet. Ex. 4) showing that a two-minute phone call was received from Mr. Lee at 4:03 p.m. on August 10, It is apparent that Mr. Lee s intent in calling Mr. Joo was to deter Mr. Joo from submitting his complaint of discrimination, a protected activity. Accordingly, Mr. Lee and UBM engaged in unlawful retaliatory conduct against the complainant. As noted, none of the respondents attended the hearing. Thus, there was no evidence to rebut petitioner s proof of discrimination based on Mr. Joo s age, or to rebut petitioner s proof of retaliatory conduct. The defenses raised in respondents answer involving unclean hands and estoppel are generally unavailable in a discrimination action and, in any event, rely upon facts which were unproven. See, e.g., Kopsidas v. Krokos, 294 A.D.2d 406, 407 (2nd Dep t 2002) (party raising issue of unclean hands must demonstrate that offending party is guilty of unconscionable conduct directly related to subject matter in litigation). In the Answer, UBM admitted that Mr. Lee was the President of UBM and that Mr. Kim was a manager (Ans., paras. 3, 4). Mr. Joo testified that Mr. Lee was the owner of the company and that Mr. Kim was the manager who first communicated that Mr. Joo was being terminated due to his age (Tr. 15). Pursuant to section 8-107(13)(b)(1) of the Administrative Code, an employer may be liable for discriminatory acts if the employee exercised managerial or supervisory responsibility. Based upon the undisputed fact that Mr. Lee was the owner of UBM and also the person who wrote Mr. Joo the letter notifying him that he was being terminated due to a UBM policy of

8 - 8 - discharging all workers over 65, Mr. Lee clearly exercised managerial and supervisory responsibility. As such, he is liable for the discrimination which occurred here. Mr. Kim held the position of manager, acted as Mr. Joo s supervisor, and also gave Mr. Joo the verbal announcement that Mr. Joo was being terminated. However, individual employees named are liable as an "employer" under section 8-107(1) only where they either possess ownership interests in the employing company or have discretionary authority to make final personnel decisions. Comm n on Human Rights ex rel. Manning v. HealthFirst, LLC, OATH Index No. 462/05 at 2 (March 15, 2006), adopted, Comm'n Dec. (May ), citing Comm n on Human Rights ex rel. Rhodes v. Apollo Theatre Investor Group, OATH Index No. 676/91, at 37 (June 14, 1991), modified in part, Comm n Dec. and Order (Mar. 11, 1992), modified, Sup. Ct. N.Y. Co. Index No /92 (Apr. 20, 1993). There is no proof here that Mr. Kim had any ownership interest in UBM. The evidence also indicated that Mr. Lee, not Mr. Kim, made the decision to terminate Mr. Joo. For these reasons, Mr. Kim should not be found liable under 8-107(1). In sum, the undisputed evidence proved that respondents UBM and Mr. Lee unlawfully discriminated against Mr. Joo by discharging him because of his age, and that UBM and Mr. Lee retaliated against Mr. Joo by making threats intended to deter him from filing a complaint. FINDINGS AND CONCLUSIONS 1. Respondents were properly served with the complaint and notice of trial and failed to appear. 2. Respondents UBM and Mr. Lee discriminated against Mr. Joo in July 2012 based on his actual or perceived age by terminating his employment, in violation of Administrative Code 8-107(1). 3. Respondents UBM and Mr. Lee discriminated against Mr. Joo in August 2012 by making threats in retaliation for Mr. Joo s filing of a complaint with the Commission, in violation of Administrative Code (7). RECOMMENDATION The final issue raised by the case concerns the appropriate relief. Under Section 8-120(a) of the HRL, the Commission may provide legal and equitable remedies, including compensatory

9 - 9 - damages to the person aggrieved and civil penalties. Compensatory relief may include mental anguish damages. Comm n on Human Rights ex rel. Latif v. New Master Nails, Inc., OATH Index Nos. 1576/10 & 1577/10 at 9 (Aug. 10, 2010), adopted, Comm n Dec. (Nov. 16, 2010); Comm n on Human Rights ex rel. De La Rosa v. Manhattan and Bronx Surface Transportation Operating Auth., OATH Index No. 1141/04 at 10 (Dec. 30, 2004), aff d, Comm n Dec. (Mar. 11, 2005). The relief should be commensurate with the wrongdoing and supported by the evidence. Anagnostakos d/b/a Rolando s Diner v. NYS Division on Human Rights, 46 A.D.3d 992, 994 (3d Dep t 2007). In this case, petitioner has requested the award of compensatory damages to Mr. Joo of $43,263 plus interest for lost back pay, $84,000 in front pay, and $125,000 for mental anguish. In addition, petitioner has asked for a civil penalty of $100,000 and affirmative relief of employee training. While it is clear that compensatory damages and a civil penalty are appropriate here, some of the amounts proposed by petitioner s counsel are excessive for a number of reasons. Back Pay Petitioner s calculation of the total back pay is flawed. At the time Mr. Joo was terminated as of July 8, 2012, he was earning approximately $2,000 per month, or $465 per week, after taxes, as confirmed by his 2012 W-2 statements (Pet. Ex. 1). Mr. Joo would thus have earned $82,770 from the time of his termination through the 178 weeks through the date of the OATH trial. In addition, Mr. Joo testified that he typically worked 44 hours per week, receiving no extra compensation for overtime (Tr. 13). Based upon this testimony, petitioner has requested that the back pay award be increased by $12,425 for the overtime compensation he would have been paid. Both federal law (Fair Labor Standards Act, 29 U.S.C. 207(a)(1)(Lexis 2015)) and state law (New York Minimum Wage Act, Labor Law 232 (Lexis 2016)) generally require the payment of overtime wages for work performed after 40 hours per week. If one divides Mr. Joo s weekly pay of $465 by 40, Mr. Joo s hourly rate of pay is calculated as $ Thus, Mr. Joo s extra overtime compensation at time and one-half for four hours should have been $69.72 per week. There were 178 weeks from July 8, 2012, to the date of the trial, for a total overtime calculation of $12,410, roughly the same amount as indicated in petitioner s post-trial brief. Mr. Joo s total earnings from regular wages of $82,770 and overtime of $12,410 totals $95,180.

10 The back pay must be reduced by Mr. Joo s earnings from his various employers since See Comm n on Human Rights ex rel. Cardenas v. Automatic Reading Corp., Comm r Dec. at 20 (Oct. 28, 2015). These earnings from six different employers are summarized on petitioner s chart (Pet. Ex. 5). 1 Mr. Joo indicated that he received a raise from Regent Cleaners in June 2013, requiring that the later Regent wages be calculated separately. The weekly rate for the later Regent Cleaners wages and the BBC Clearing wages are derived by dividing the monthly wages indicated by 4.3 to calculate the weekly rate. Although petitioner s counsel tallies these wages as $60,593, a more accurate total would be $61,292, as calculated in the table below: Employer Weekly Rate Start End No. Weeks Hope & Heaven $150 7/8/12 9/8/12 9 $1,350 Cleaner (Discharge Date) Spot Cleaner $300 10/8/12 12/15/12 10 $3,000 UBS America $220 1/2/13 3/30/13 13 $2,860 Regent Cleaners $125 10/1/12 5/31/13 35 $4,375 Regent Cleaners $ /1/13 12/8/15 (Trial Date) BBC Cleaning Corp. $ /15/13 12/8/15 (Trial Date) 131w, 4d $9, $40,511 TOTAL $61,292 Deducting the total wages earned of $61,292 from the total back pay of $95,180 leaves $33,888 as the back pay owed to Mr. Joo. This amount should be increased by interest of 9 per cent through the date of the Commission decision. Cardenas, Comm r Dec. at 21. Front Pay Petitioner also seeks an equitable award of front pay for future lost earnings, as authorized by Administrative Code section 8-120(a)(8). The purpose of awarding front pay is to make a victim of discrimination whole, providing compensation for loss of future as well as past earnings. Chisholm v. Mem l Sloan-Kettering Cancer Ctr., 824 F. Supp. 2d 573, (S.D.N.Y. 2011). A calculation of front pay should not be unduly speculative. Dunlap- McCuller v. The Riese Org., 980 F.2d 153, 159 (2d Cir. 1992). As noted in Cardenas, front pay 1 According to the back pay calculations in petitioner s post-trial brief, the indication on the table that respondent worked for $125 per week at Regent Cleaners through 5/31/2015 is in error and should read 5/31/2013, reflecting a raise Mr. Joo said he received.

11 is most appropriate when an employee has unique and narrowly focused skills, that may make it difficult to find comparable employment. Cardenas, Comm r Dec. at 23 (citing Osorio v. Source Enters., Inc., No. 05 Civ , 2007 WL , at *6 (S.D.N.Y. Mar. 2, 2007)). In this case, Mr. Joo testified that he was 65 years old in 2012, making him about 69 years old at the time of the trial. Mr. Joo speaks Korean but very limited English. Mr. Joo offered no information as to his retirement plans or whether he wished to continue to work as a security guard at UBM, stating only that, following his termination by UBM, he went to work in dry cleaning establishments because he had learned this trade (Tr. 27). He did not indicate how many hours per week he currently works or how many more years he intended to work. Some front pay award seems appropriate here, although not the amount requested by petitioner s counsel. While a security guard does not require a unique skill set, Mr. Joo s ability to speak only Korean and his age would likely limit his employability in many positions. Petitioner seeks front pay for 10 years until Mr. Joo reaches the age of 79, based upon actuarial data indicating that Mr. Joo s life expectancy as of 2013 would have been 82.5 years. Counsel s use of the actuarial table alone to establish that, had he not been terminated, Mr. Joo would have chosen to work full time at UBM as a security guard for another ten years seems unwarranted and highly speculative. Instead, five years front pay until Mr. Joo reaches the age of 74 seems a more plausible scenario and sufficient to adequately compensate Mr. Joo for the loss of his UBM salary. Petitioner s calculation of the appropriate front pay award as $700 per month seems inflated. According to Mr. Joo s wage table (Pet. Ex. 5), his current salary is $1,600 per month - $1,300 from BBC Cleaning Corp. and $300 from Regent Cleaners. Since Mr. Joo s salary at UBM was $2,000 per month, or $465 per week, and his current salary is $1,600, or $373 per week, Mr. Joo is entitled to $92 per week in front pay. At $92 per week for five years, Mr. Joo s front pay would be $23,920. Mental Anguish Petitioner has requested damages for mental anguish in the amount of $125,000. Damages for emotional distress have been found to be appropriate for wrongful discrimination where a reasonable person of average sensibilities could be expected to suffer mental anguish from the incident. Batavia Lodge v. NYS Div. of Human Rights, 43 A.D.2d 807, 810 (4th Dep t 1973), rev d for reasons stated by dissent, 35 N.Y.2d 143 (1974). Relevant factors included the

12 severity and duration of the discrimination, the level of anguish caused by the misconduct, and comparable awards. See Comm n on Human Rights ex rel. Cherry v. Stars Model Management, OATH Index No. 1464/05 at 15 (Mar. 7, 2006) adopted, Comm n Dec. & Order (Apr. 13, 2006), aff d sub. nom., Secor v. NYC Comm n on Human Rights, 13 Misc. 3d 1220A (Sup. Ct. N.Y. Co. 2006). The evidence in this case supporting a mental anguish award consists of Mr. Joo s testimony that, after his termination and until he found additional part-time work, he experienced depression and phobia and had nightmares every night (Tr. 24). He dreamed of being in a jail or concentration camp and being called up out of a line and told he would be fired. He also related a dream about being squeezed like a lemon, falling off a cliff, and being fed poisoned water (Tr. 24). I do not believe that Mr. Joo s testimony supports mental anguish damages of $125,000 for a number of reasons. While Mr. Joo was a credible witness, his testimony of general depression, for which he sought no treatment, did not suggest an extreme emotional impact. Nor was I persuaded that his bad dreams related solely to his termination from UBM. While the dream of being fired demonstrates an obvious link to his job termination, the dreams of being squeezed, falling off a cliff, and drinking poisoned water seemed fairly speculative. As compared to other victims of employment discrimination, Mr. Joo s discharge does not seem as severe. Mr. Joo found additional part-time work in October 2012, just three months after being discharged, when he found another two jobs at other cleaners. This additional work increased his weekly salary to $425, only slightly less than what his $465 weekly salary at UBM. As noted by the Commission in Cardenas, courts have generally limited emotional distress damages supported solely by a complainant s conclusory statements of distress to $30,000 to $125,000. Cardenas, Comm r Dec. at 25. Past damage awards for mental anguish in employment discrimination cases based upon discriminatory termination indicate these awards have rarely gone above $10,000. Comm n on Human Rights ex rel. Martinez v. Joseph J.P. Musso Home Improvement & Joseph Musso, OATH Index No. 2167/14 (Feb. 27, 2015) ($10,000 for mental anguish where employee sexually harassed and fired in retaliation for opposing discrimination); Comm n on Human Rights ex rel. Chen v. NOC Construction Inc., OATH Index No. 1011/11 at 16 (Apr. 21, 2011), adopted, Comm n Dec. & Order (June 26, 2011) ($7,500 for mental anguish where company terminated

13 complainant because of her gender where there is no evidence that complainant s distress was extreme, debilitating, or protracted ); Comm n on Human Rights ex rel. Zoleo v. Weinstein Family Services of NY, OATH Index No. 623/09 at 28 (Dec. 7, 2009), superseding (Mar. 25, 2009), adopted, Comm n Dec. & Order (Sept. 17, 2010) ($10,000 for mental anguish resulting from sexual harassment based on employer s yelling at complainant and making demeaning comments); Comm n on Human Rights ex rel. Campbell v. Personal Employment Services, OATH Index No. 1579/07 at 7 (Aug. 20, 2007), adopted, Decision & Order (Dec. 14, 2007) (mental anguish damages of $1,000 for discriminating against a job applicant on the basis of her age where applicant secured another job within days); Comm n on Human rights ex rel. Manning v. HealthFirst, LLC, OATH Index No. 462/05 at 29 (Mar. 15, 2006), adopted, Comm n Dec. & Order (May 10, 2006) ($10,000 for mental anguish where employer failed to accommodate disability and fired complainant weeks after returning to work, causing stress and depression for about three months). Petitioner relies upon only the Commission s decision in Cardenas case to support a $125,000 award in this case. As noted above, the discrimination in Cardenas, where the mental anguish damages were found to be $200,000, was far more egregious than the discrimination here. In Cardenas, the employee was subjected to frequent sexual harassment, including sexually suggestive remarks and occasional physical contact, for three years and treated for depression. Comm n on Human Rights ex rel. Cardenas v. Automatic Meter Reading Corp., OATH Index No. 1240/13 at 28, 30 (Mar. 14, 2014), modified on penalty, Comm r Dec (Oct. 28, 2015). As a result, she was compelled to quit her job. Id. at 2, 3. The impact of Mr. Joo s loss of his security guard job was far less consequential. None of the other federal cases cited to support a $125,000 mental anguish damage award are persuasive. In Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. N.Y. 2012), a jury award of mental anguish damages of $150,000 to a female police officer who faced some two years of discrimination and retaliation, developed stress headaches and vomiting, and consulted a doctor for depression was upheld as reasonable. In Patterson v. Balsamico, 440 F.3d 104 (2d Cir. N.Y. 2006), a jury award of $100,000 for mental anguish to an African-American correction officer who was subjected to racial slurs, assaulted, sprayed with mace and shaving cream, ultimately terminated, and, over the course of a four-month period, suffered from stomach problems and depression, was upheld as reasonable and supported by the evidence. It is difficult to see how

14 these cases, both of which concerned employees who suffered years of discrimination at their jobs, mandate a high damage award in the instant case. In Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56 (2d Cir. 2004), vacated and remanded for further consideration on other grounds, 544 U.S. 957 (2005), the appellate court affirmed jury awards of $125,000 for mental anguish for laboratory employees over 40 years old who were laid off. The Court stated that it reviewed the mental anguish awards based upon the duration of a complainant s condition, its severity or consequences, any physical manifestations, and any medical treatment. 381 F.3d at 78 (citing NYC Transit Auth. v. NYS Div. of Human Rights, 573 N.Y.S.2d 49, 55 (1991)). Meacham provides limited support for the damages sought here. In Meacham, the 18 employees receiving high emotional distress damages were long-term employees of 20 years or more. Several had been unable to obtain equivalent employment at all from the date of their discharge to the time of the trial some four years later. A recent case indicates that the Commission reserves extremely high awards for mental anguish for cases where there is convincing testimony of emotional trauma. In Comm n on Human Rights ex rel. Howe v. Best Apartments, Inc., Comm r Dec. (Mar. 14, 2016), the Commission awarded a housing applicant $2,500 after he claimed to be pretty upset by the denial of an apartment based upon his use of a section 8 voucher. The Commission based this minimal award upon the limited testimony of the complainant as to the emotional impact of having to seek another apartment. Howe, Comm r Dec. at 13. In the instant case, Mr. Joo was terminated in July from his position but, within three months, was able to secure two part-time jobs which placed his salary at only $20 per week less than he had been making at UBM. While his discharge was no doubt upsetting, there is no indication that he suffered long-lasting trauma or emotional harm. A mental anguish award of $15,000 seems adequate compensation, under these circumstances, to compensate Mr. Joo for respondents wrongful discharge. Civil Penalty Petitioner has also requested a civil penalty of $250,000, alleging that respondents discrimination was severe and willful. Pursuant to Administrative Code section 8-126(a), the Commission may impose civil penalties of up to $125,000 for violations of the Human Rights Law. Where the discriminatory practice was a willful, wanton or malicious act, a civil penalty up to $250,000 may be imposed. According to past cases, the relevant considerations in

15 assessing an appropriate civil penalty for discriminatory conduct include the pervasiveness of the violations, the impact on the public, and the presence of aggravated factors, such as use of offensive language. Chen, 1011/11 at 16. There is a limited basis to support a finding that Mr. Lee s conduct was willful. As indicated by Mr. Joo and Ms. Garg, Mr. Lee was told on the telephone by a Commission staff member that Mr. Joo s dismissal due to his age constituted a violation of the law and immediately called Mr. Joo to coerce him into dropping his complaint with the Commission. Yet this evidence did not establish that, at the time Mr. Joo was terminated for reaching the age of 65, Mr. Lee was aware that this action might be unlawful under the City HRL. Indeed, in areas outside New York City, mandatory retirement policies with bona fide occupational age requirements would be legal under New York State law. While Mr. Lee s ignorance of the City law is no excuse, the fact that his actions might be lawful outside New York City suggests a lesser penalty is called for. In this case, as in Best Apartments, there was insufficient proof to support a willfulness finding as to Mr. Lee s enforcement of a mandatory retirement policy. See Comm n on Human Rights v. Cu29 Copper Restaurant & Bar, OATH Index No. 647/15 (Apr. 7, 2015), modified on penalty, Comm n Dec. & Order (Oct. 28, 2015) (restaurant advertisement for a female bartender and a pizza man found not to be willful); cf. Comm n on Human Rights ex. rel. Jordan v. Raza, OATH Index No. 716/15 (July 27, 2015) (taxi driver who refused an African American mother and her daughters and then picked up two white passengers engaged in willful discrimination); Comm n on Human Rights ex rel. Longmire v. S & A Stores, Inc., OATH Index No. 1060/15 (July 6, 2015) (store willfully discriminated against the only African American customer in their store, when they watched him closely and engaged in a physical altercation with him). Even a penalty of $125,000, the maximum for non-willful violations, seems harsh under these facts. According to past cases, the relevant considerations in assessing an appropriate penalty for discriminatory conduct include the egregiousness of the violations, the public impact, and other aggravating or mitigating factors. Comm n on Human Rights v. Frambiose Pastry, Inc., OATH Index Nos. 727/13 & 728/13 (May 3, 2013), adopted, Comm n Dec. & Order (Sept. 25, 2013) (small bakery fined $10,000 for refusing to hire an applicant because she was black, and $5,000 for posting an advertisement for a counter girl ); Chen, 1011/11 at 17 ($5,000 civil penalty for small business with no history of prior discrimination); Comm n on Human Rights ex

16 rel. Canty v. Magnamart Cleaners & Launderers, OATH Index No. 2659/08 (Aug. 7, 2008), adopted, Comm n Dec. & Order (Feb. 19, 2009) ($1,000 civil penalty for laundry business with no history of discrimination that laid off employee based on age and gender); Comm n on Human Rights ex rel. Campbell v. Personal Employment Services, OATH Index No. 1579/07 at 7 (Aug. 20, 2007), adopted, Comm n Dec. & Order (Dec. 14, 2007) ($5,000 civil penalty for age discrimination by small employment agency with no history of past discrimination); Comm n on Human Rights (Cherry) v. Stars Model Management, OATH Index No. 1464/05 (Mar. 7, 2006), adopted, Comm n Dec. & Order (Apr. 13, 2006), aff d sub nom., Secor v. NYC Comm n on Human Rights, 13 Misc. 3d 1220A (Sup. Ct. N.Y. Co. 2006) ($15,000 civil penalty for racial discrimination by employment agency which handled bookings for hundreds of companies). It is true that respondents here failed to fully cooperate with the Commission s investigation and efforts to obtain discovery. They also failed to appear at the trial. These are both aggravating factors warranting a significant civil penalty. As appropriately observed by petitioner s counsel, there can be no mitigation in this case due to respondents default. Yet the limited facts available do not support a maximum penalty. From all appearances, UBM is a small company with slightly more than eight employees and the public impact of UBM s actions would appear to be small. While Mr. Joo believed the company had two offices, there is no indication of whether these were both commercial locations or simply spaces used by Mr. Lee. There is some indication in the record to suggest that UBM is no longer in business, since this tribunal s mailings to UBM and to Mr. Lee at a Woodside, New York address and a Little Ferry, New Jersey address were returned as undeliverable unable to forward. Finally, the fact that UBM s mandatory retirement policy might be lawful outside New York City suggests that a modest civil penalty is appropriate. For all of these reasons, I find that a civil penalty of $15,000 is appropriate here. Finally, petitioner has requested that respondent UBM be ordered to train all managers on the Human Rights Law and establish anti-discrimination policies. This is appropriate. In sum, I recommend that, for the discrimination found to have occurred here, respondents should pay compensatory damages of $72,808 to Mr. Joo, an amount which includes $33,888 for back pay, $23,920 for front pay, and $15,000 for mental anguish. Respondents

17 should also be assessed a civil penalty of $15,000 and be directed to train all managers on the HRL and establish anti-discrimination policies. March 25, 2016 SUBMITTED TO: CARMELYN P. MALALIS Commissioner APPEARANCES: EZRA CUKOR, ESQ. KATHERINE GREENBERG, ESQ. Attorneys for Petitioners No Appearance by or for Respondents John B. Spooner Administrative Law Judge