Comm n on Human Rights v. Aksoy OATH Index No. 1617/15 (Aug. 24, 2015), rejected, Comm n Dec. & Order (June 21, 2017), appended Evidence established that respondent violated New York City s Human Rights Law by posting an advertisement on Craigslist for Eastern European waitresses and a female bartender/phone person. Civil penalty of $5,000 and affirmative relief recommended. Commission dismissed the charges, finding that petitioner failed to prove that the restaurant was an employer with four or more employees covered by the Human Rights Law. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of COMMISSION ON HUMAN RIGHTS Petitioner - against - AYHAN AKSOY a/k/a JOHN AKSOY 1 Respondent KEVIN F. CASEY, Administrative Law Judge REPORT AND RECOMMENDATION Petitioner, the New York City Commission on Human Rights ( Commission ), brought this action against respondent, Ayhan Aksoy a/k/a John Aksoy, under section 8-109(c) of the New York City Administrative Code ( Human Rights Law ), alleging that respondent discriminated based on gender and national origin by circulating an employment advertisement for Eastern European waitresses and a female bartender/phone person on Craigslist, in violation of section 8-107(1)(d) of the Human Rights Law. Admin. Code 8-107(1)(d) (Lexis 2015). In a Verified Answer and Position Statement ( Resp. Ans. ), respondent admitted that 1 The caption has been amended to reflect that there is only one respondent. In the complaint, petitioner referred to Ayhan Aksoy and John Aksoy as respondents. In his answer, respondent asserted that he occasionally refers to himself as John Aksoy, the English version of his name, and he does not know anybody else named John Aksoy (ALJ Ex. 1). In subsequent correspondence and a motion to compel, petitioner referred to respondent as Ayhan Aksoy a/k/a John Aksoy.
- 2 - he posted the advertisement (Pet. Ex. 6). However, he stated that he unwittingly used a poor choice of words, he lacked any intent to discriminate, he was not an employer, and he only posted the advertisement as a favor for a friend (Resp. Ans. at 3-4). Trial was initially adjourned at petitioner s request to accommodate a witness s schedule and was later adjourned at respondent s request to give him an opportunity to retain or consult with counsel (Tr. 4). At trial on August 7, 2015, petitioner relied on testimony from one of its employees and respondent, and offered documentary evidence. Respondent testified in his own behalf and also offered documentary evidence. For the reasons set forth below, I find that petitioner proved that respondent violated section 8-107(1)(d) of the Human Rights Law and recommend a $5,000 civil penalty with other affirmative relief. ANALYSIS At the outset of trial, petitioner was permitted to amend the complaint, over respondent s objection, to allege that respondent was an employer or agent thereof rather than an employer (Tr. 5). Absent prejudice to the parties, the rules of the Commission and this tribunal allow for amendment of the pleadings. See 47 RCNY 1-13; 48 RCNY 1-25. There was no undue prejudice here. Though respondent denied that he was an agent for the restaurant, the admissions contained in his answer suggested otherwise (Resp. Ans. at 3-4). See, e.g., Dep t of Transportation v. McKoy, OATH Index No. 199/98, at 5-6 n.1 (Jan. 9, 1998) (charges amended to conform to the proof where there was no prejudice to respondent). During trial, Ms. Canales, a tester employed by petitioner, credibly testified that she saw an advertisement on Craigslist seeking 2 full-time Eastern European waitresses and a female bartender/phone person for night shifts at busy, upscale family-owned restaurant on Manhattan s Upper East Side (Tr. 15-17; Pet. Ex. 1). Ms. Canales replied to the advertisement by sending two e-mails with similar resumes. One e-mail was from a female applicant and the other was from a male applicant (Tr. 17; Pet. Exs. 2, 3). The e-mails were sent with a feature notifying Ms. Canales when each was opened (Tr. 20). According to Ms. Canales, the female applicant s e-mail was opened but the male applicant s e-mail was not (Tr. 20; Pet. Ex. 4). In
- 3 - response to a subpoena, Craigslist later informed petitioner that respondent paid for the advertisement with his credit card (Pet. Ex. 5). In his answer and testimony, respondent explained why he posted the advertisement (Ans. 3-4; Tr. 27). He recalled meeting with a friend, whose first name was Sadrjoun, in a Turkish restaurant on 14th Street in Manhattan (Tr. 48). They were casual acquaintances who had previously met a handful or a dozen times (Tr. 47; Resp. Ans. at 3). Sadrjoun mentioned that he was recently hired as the manager of a different restaurant on the Upper East Side and they were short-staffed (Tr. 41). Respondent, who was out of work at the time, offered to post an advertisement for Sadrjoun as a favor (Tr. 10-11, 28; Resp. Ans. at 4). Respondent quickly wrote the advertisement and posted it on Craigslist (Tr. 27; Resp. Ex. A). Shortly afterwards, Sadrjoun met respondent and told him that he could not find the advertisement on Craigslist (Tr. 28-29, 31). Respondent re-posted the advertisement, which was found by petitioner (Tr. 29). According to respondent, he received 15 to 30 e-mails in response to the advertisement and he forwarded all of them to Sadrjoun (Tr. 41, 68-69). Respondent opened the first few and quickly looked to see if they were females who spoke Russian (Tr. 41, 49, 62). Section 8-107(1)(d) of the Human Rights Law provides that it is an unlawful discriminatory practice for an employer or agent thereof to circulate any employment advertisement which expresses, directly or indirectly, any limitation, specification or discrimination regarding national origin or gender. This provision applies to employers with four or more employees. Admin. Code 8-102(5). Here, the credible evidence established that, on behalf of a restaurant, respondent posted an employment advertisement which expressed a preference based on gender and national origin. See Comm'n on Human Rights v. Shalom Bombay 2, LLC, OATH Index No. 544/15 at 2 (Apr. 23, 2015) (finding that advertisement for Indian waiter or waitress discriminated based on national origin); Comm'n on Human Rights v. Rozario, OATH Index No. 1273/15 at 4 (June 3, 2015) (finding that advertisement for waitress discriminated based on gender). It can be inferred from the evidence that the restaurant had at least four employees. According to the advertisement, the restaurant was very busy and seeking to hire three workers (Pet. Ex. 1). Respondent claimed that Sadrjoun was the restaurant manager who wanted to hire more females because the current employees were predominantly male (Tr. 10, 72; Resp. Ans. at 4). Because
- 4 - respondent claimed that he could no longer recall the restaurant s name, not much is known about the restaurant or its total number of employees. However, based on the nature of the business, the text of the advertisement, and respondent s statements, it appears that Sadrjoun, the restaurant manager, had at least three co-workers. The evidence also showed that respondent acted as Sadrjoun s agent. By his own admission, respondent wrote the advertisement at Sadrjoun s behest, posted it on the internet, reposted it, and was reimbursed for expenses. He forwarded 15 to 30 responses to Sadrjoun and took the time to check some of the responses to see if they were from qualified applicants. Those were the acts of an agent. See Restatement (Third) of Agency 1 (2006) ( Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act ). Respondent offered a variety of defenses to the charges. For example, he claimed that he wrote the advertisement in haste and the wording was ill-advised due to his poor language skills (Tr. 59, 63). He also claimed that the advertisement specified Eastern European waitresses, because most of the restaurant s employees were men and the manager wanted more diversity, some conservative or religious female customers were not comfortable being served by men, and many customers spoke Russian (Tr. 72; Resp. Ans. at 4). These inconsistent and unsupported claims do not withstand scrutiny. In general, I found respondent s testimony to be unpersuasive. I was not convinced by his claims that he did not recall Sadrjoun s last name, he did not know the name of the restaurant that Sadrjoun managed, and he no longer had Sadrjoun s e-mail address (Tr. 60). Respondent argued that there was nothing unusual about not knowing the full names of people we do business with in New York City. He noted, for example, that he had been going to the same pizzeria for seven years and did not know the owner s full name (Tr. 57). But that analogy is inapt. It is one thing to not know the last name of a local pizzeria owner; it is quite another thing to forget the name of the pizzeria. It was similarly difficult to believe respondent s claim that his inbox, outbox, and contacts list had no trace of Sadrjoun s e-mail address, even though respondent had received 15 to 30 e-mails on Sadrjoun s behalf and forwarded them to him in the past year.
- 5 - Respondent s suggestion that he wrote the advertisement in haste is inconsistent with his assertion that he took the time to ask Sadrjoun about his ideal candidate, that he tailored the advertisement based on the manager s needs, and that he re-posted the advertisement (Resp. Ans. at 4). Similarly, respondent s suggestion that he lacked fluency in English was not credible. He was very well-spoken when he testified. Although Turkish is his native language, he has been speaking English for 15 to 20 years (Tr. 63). Moreover, he recently graduated with honors from a local college with a degree in computer science and he plans to attend graduate school (Tr. 56, 64-65). Based on respondent s testimony and his background, it appears that respondent knew exactly what he was doing when he posted an advertisement for Eastern European waitresses. He was carrying out Sadrjoun s wishes and discriminating based on gender and national origin. The evidence that respondent opened the response from the female applicant, and did not open the e-mail from the male applicant, further demonstrated that he engaged in improper discrimination and violated section 8-107(1)(d) of the Human Rights Law. On this point, respondent again offered inconsistent and unpersuasive testimony. He initially claimed that he was checking the responses to see if the applicant had the necessary qualifications but later claimed that he was simply acting out of curiosity (Tr. 49, 63). Finally, it does not matter that respondent did not make the final hiring decision. Posting the advertisement, by itself, was improper discrimination. See Comm n on Human Rights v. Crazy Asylum, LLC, OATH Index Nos. 2262/13, 2263/13 & 2264/13 at 6 (Jan. 30, 2014) ( The plain language of the Human Rights law, making it a violation to post a gender-specific job advertisement, demands a finding of discrimination based on the advertisement alone ). The charges should be sustained. FINDINGS AND CONCLUSIONS 1. Petitioner established that respondent acted as an agent of an employer, as defined by section 8-102 of the Human Rights Law. 2. Petitioner proved that respondent placed an advertisement for employment which expressed a limitation as to gender and national origin, in violation of section 8-107(1)(d) of the Human Rights Law.
- 6 - RECOMMENDATION Petitioner seeks a civil penalty of $15,000 due to respondent s lack of candor and the fact that he discriminated in two different ways, based on national origin and gender (Tr. 77-78). Respondent argued that such a penalty would be excessive in light of his limited resources, his minimal connection to the restaurant, and lesser penalties imposed on other parties who have defaulted in other cases (Tr. 75). For the proven charge, petitioner may impose a civil penalty of up to $125,000 to vindicate the public interest. Admin. Code 8-126(a). Recent civil penalties, following trial, under the City s Human Rights law generally range from $5,000 to $15,000. See, e.g., Rozario, OATH 1273/15 at 5 ($5,000 penalty recommended for restaurant that posted an advertisement on Craigslist for a waitress ); Shalom Bombay 2, LLC, OATH 544/15 at 3 ($5,000 civil penalty recommended for restaurant that placed Craigslist advertisement for an experienced Indian waiter or waitress ); Crazy Asylum, LLC, OATH 2262/13 at 7 ($5,000 civil penalty and affirmative relief recommended on summary judgment granted in favor of petitioner where respondents posted Craigslist advertisement for waitresses ); Comm n on Human Rights v. Cu29 Copper Restaurant & Bar, OATH Index No. 647/15 at 5 (Apr. 7, 2015) ($7,500 civil penalty and affirmative relief for restaurant that advertised for female bartender and pizza man ); 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) (civil penalty of $15,000 and affirmative relief recommended where respondents discriminated based on gender and race, by posting an advertisement for a counter girl and refusing to hire an applicant because she was black). Cases at the higher end of the range involve additional acts of discrimination beyond placement of a single discriminatory advertisement. Relevant considerations include the egregiousness of the discrimination, the potential impact on the public, previous findings of discrimination against the respondent, and the degree to which the respondent cooperated with petitioner s investigation. Cu29 Copper Restaurant & Bar, OATH 647/15 at 4-5 (citing 119-121 East 97th St. Corp. v. NYC Comm n on Human Rights, 220 A.D.2d 79, 88-89 (1st Dep t 1996)); Comm n on Human Rights v. Jenkins, OATH Index No.
- 7-2331/13 at 8 (Dec. 18, 2013), adopted, Comm n Dec. & Order (April 14, 2014) (enhancing penalty in default proceeding because of respondent s total lack of cooperation and downright disdain by hanging up the phone on the Commission investigator several times ). Where respondents accept responsibility for posting discriminatory advertisements and take corrective action, lesser penalties are appropriate. See Settlements, NYC Commission on Human Rights (2014) http://www.nyc.gov/html/cchr/html/settlements/2014.shtml (listing 20 cases in 2014 where employers agreed to pay civil penalties of $2,500 for posting discriminatory advertisement declaring a preference for female applicants). A $5,000 civil penalty is appropriate here. Respondent does not appear to be the owner, operator, or employee of a restaurant. The evidence tended to show that this was an isolated episode where he posted an advertisement for someone else. Though the advertisement cited by petitioner violated the Human Rights Law in two different ways, discriminating based on gender and national origin, it involved a single act by respondent. And respondent correctly noted that other parties who have committed similar acts and failed to cooperate have received penalties far below the $15,000 that petitioner now seeks. The facts of this case are closer to Rozario, Shalom Bombay 2, LLC, and Crazy Asylum, LLC, where $5,000 civil penalties were recommended for restaurants that posted discriminatory advertisements on Craigslist, than to Cu29 Copper Restaurant & Bar, cited by respondent, where a $7,500 penalty was recommended. In Cu29 Copper Restaurant & Bar, an employer posted an advertisement containing dual violations of the Human Rights Law, seeking a female bartender and a pizza man. OATH 647/15 at 4. But there is an important difference. There, respondents failure to cooperate and provide discovery and their failure to appear for the trial and second conference were deemed aggravating factors because it is in the public interest to have individuals respond and participate in a process designed to cure discriminatory practices.... Id. at 5, citing Comm n on Human Rights v. Chae Choe, OATH Index No. 2617/09 at 9 (Sept. 25, 2009), adopted, Comm n Dec. & Order (Dec. 10, 2009). Here, respondent could have been more forthcoming, but he did not refuse to cooperate. He submitted a detailed answer, participated in conferences, and took an active role at trial. Accordingly, I recommend imposition of a $5,000 civil penalty and the affirmative relief of requiring respondent to undergo anti-discrimination training. See Admin. Code 8-120(a)
- 8 - (authorizing the Commission to require respondent to take affirmative action to effectuate the purpose of the City s Human Rights Law). August 24, 2015 Kevin F. Casey Administrative Law Judge SUBMITTED TO: CARMELYN P. MALALIS Commissioner APPEARANCES: ELIZABETH OSLEY, ESQ. Attorney for Petitioner AYHAN AKSOY Respondent