Comm'n on Human Rights (Cherry) v



Comm'n on Human Rights (Cherry) v. Stars Model

Management

OATH Index No. 1464/05 (Mar. 7, 2006), aff’d, Comm’n Decision and Order (Apr. 13, 2006), appended

Model consulting and job placement service found to be an employment agency and to have engaged in discrimination against a job applicant on the basis of race in violation of section 8 107.1(b) of the Administrative Code of the City of New York. ALJ recommends that a civil penalty of $15,000 be imposed against respondent, that complainant be awarded compensatory damages of $10,000 for mental anguish, and that respondent undergo sensitivity training and adopt and post a non discrimination policy.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

COMMISSION ON HUMAN RIGHTS,

EX REL.

SHAMEIKA CHERRY

Petitioner

- against -

STARS MODEL MANAGEMENT

and

TIMOTHY SECOR

Respondents

_____________________________________________________

REPORT AND RECOMMENDATION

RAYMOND E. KRAMER, Administrative Law Judge

This human rights proceeding was referred to this tribunal pursuant to Title 8 of the N.Y.C. Administrative Code and Title 47 of the Rules of the City of New York ("RCNY"). The verified complaint (complaint no. M-E-R-5-1016448-E), dated November 12, 2004, alleges that the complainant, Stars Model Management, Inc., and its owner, Timothy Secor, discriminated against Shameika Cherry on the basis of her race in refusing to consider her for an advertised modeling opportunity, in violation of section 8-107.1(b) of the Administrative Code (ALJ Ex. 1).

ANALYSIS

The complaint in this matter alleged that on October 9, 2004, Ms. Cherry called Stars Model Management to inquire about an advertised modeling opportunity and was refused consideration for the opportunity on the basis of her race. Respondent denies the allegations made by complainant and further argues that it is not an "employment agency" as defined by section 8-102(2) of the Administrative Code, and is therefore beyond the scope of the Commission’s jurisdiction.

Factual Findings

On Saturday, October 9, 2004, Ms. Cherry, a twenty-three year-old African American woman, found an advertisement on a subscription web service called offering the following modeling opportunity:

Top designers urgently need models for a runway fashion show. Your modeling debut will broadcast nationally on the E! cable network.

One of New York's busiest model management companies is immediately booking 75 beautiful models for this assignment.

TO APPLY:

Immediately call (212)758-3545, and ask for "E CHANNEL FASHION SHOW".

Calls are accepted during our business hours which is weekdays 10:00 AM to 6:00 PM or Saturday 11:30 AM to 3:00 PM, Eastern Standard Time. Have a pen and paper ready when calling. If the phone lines are busy or no answer, then keep trying.

Pay $500 per day.

(Pet. Ex. 1).

Ms. Cherry, who had never modeled before but was interested in getting started in the field, thought this might be a good opportunity, since the ad made no mention of any prerequisites nor need for prior experience. She called the listed number, and a man answered and said "Models." She said, "Hello," and the man said, "You're a black girl," and hung up the phone. Not sure that she had heard him correctly, Ms. Cherry called back and when the same man answered, she asked, "Did you just hang up on me?" He responded in a “nasty” tone by asking, "What is your ethnicity?" She replied, "What does that have to do with anything?", but answered that she was black. He hung up on her again (Tr. 13).

In disbelief, Ms. Cherry telephoned her aunt, Nancy Jenkins, to describe what had just occurred. Ms. Jenkins, who also testified at the hearing, confirmed receipt of the call. She urged Ms. Cherry to call back again, because she could not believe what Ms. Cherry had just related (Tr. 55, 57). Ms. Cherry arranged a three-way call, so that Ms. Jenkins could listen in, and dialed the number again.[1]

Once again the same man answered, saying “Models.” Ms. Cherry told him that she was calling pertaining to the E fashion show models. He asked her ethnicity, and she told him that she was black. He replied “Blacks are not welcome [or wanted] here,” and hung up on her (Cherry: Tr. 13; Jenkins: Tr. 57). While the man never identified himself in any of the conversations that they had that day, there was no dispute that it was Mr. Secor who answered the phone each time she called (Tr. 15).

Ms. Cherry called a fourth time, Mr. Secor answered the phone, and she said again, "I'm calling about your fashion show." Mr. Secor asked her ethnicity, and when she answered that she was black, he said "Uh, no," and hung up on her (Tr. 15).

Ms. Cherry then called Ms. Jenkins and asked her to call the number and say that she was another race. Ms. Cherry set up another three-way conversation and listened as Ms. Jenkins called the number (Tr. 16). When Mr. Secor answered, Ms. Jenkins told him that she was calling about the E fashion show. Mr. Secor asked her what her ethnicity was, and she told him that she was white. He then asked her where she lived, and she told him that she lived in Sands Point, Long Island. Mr. Secor seemed impressed and remarked that Sands Point was a really nice area. He asked her why she was interested in modeling and Ms. Jenkins told him that she had always wanted to model. Mr. Secor replied “that’s good,” and asked her height. She answered that she was six feet, two inches tall and he again commented "that’s really, really good." He then asked her weight and she replied that she weighed 150 pounds. At that, Mr. Secor told her that she was too skinny and hung up the phone (Cherry: Tr. 16; Jenkins: Tr. 58).

Ms. Jenkins and Ms. Cherry discussed the conversation briefly, and Ms. Jenkins commented “I can’t believe this guy” and referred to him in less than flattering terms (Tr. 59). She told Ms. Cherry that the latter should call him back and tell him as much. Ms. Cherry testified that she called Mr. Secor a fifth time and told him that she was black. Mr. Secor told her that blacks were not wanted and hung up (Tr. 17).

Ms. Cherry testified that she next had her friend, Sandy Taveras, call the number from Ms. Cherry’s cell phone to inquire about the modeling opportunity. When Mr. Secor answered, Ms. Taveras told him that she was calling about the fashion show. Mr. Secor asked her ethnicity, and she said that she was Dominican. Mr. Secor told her “okay” and that he would see her on Monday (the calls were made on a Saturday). He asked nothing about whether Ms. Taveras had any prior modeling experience (Tr. 17-18).

Ms. Cherry called Mr. Secor back a seventh and eighth time. On each occasion once again, Mr. Secor immediately asked her ethnicity, she answered that she was African American, and he hung up on her or said "no" (Tr. 19-20).

On the ninth and final call, when Mr. Secor answered “Models,” Ms. Cherry asked him why African Americans were not allowed in the show. Mr. Secor replied, "We don't take niggers here, it's that simple," and hung up the phone (Pet. Ex. 3; Tr. 20).

Ms. Cherry testified that she routinely tape records her business calls, and that she taped all of her calls to Mr. Secor. She taped the first two calls in lieu of having the pen and paper ready as the ad suggested, and she taped the remaining calls because of the nature of Mr. Secor’s responses (Tr. 21). For reasons not explained, neither the tapes of these calls nor transcripts were submitted at the hearing. Petitioner submitted Ms. Cherry's cellular telephone calling record for October 9, 2004 (Pet. Ex. 2). The calling record indicated that Ms. Cherry called the number for Stars Model Management nine times between 11:47 a.m. and 12:37 p.m. that day.

Ms. Cherry testified that she spoke to family members that same day about what had occurred, and they advised her to report the incident to a television news station. That same afternoon, Ms. Cherry called UPN 9 News and explained what happened. On the following Monday or Tuesday, Barbara Nevins Taylor of UPN 9 News called to arrange an interview with her about the matter. Ms. Cherry played her audiotape of her phone calls with Mr. Secor for Ms. Taylor, who recorded all the calls on her own tape recorder. Ms. Cherry testified that Ms. Taylor interviewed Mr. Secor later that same week, and the interview was televised on the evening news (Tr. 27-28, 46).

A couple of days after she was interviewed, Ms. Taylor called her and told her that she had been contacted by the Commission on Human Rights and that they wanted her to file a complaint with the Commission (Tr. 28).

Petitioner submitted a videotape of the UPN 9 News report in support of its allegations (Pet. Ex. 3). In the news report, two of the taped telephone conversations from October 9th were replayed, with captioning appearing on the screen. The tape of the first conversation, as played in the videotape, captured the following:

Mr. Secor: [phone ringing] “Models.”

Ms. Cherry: "Hi. Yes, I was calling to find out about your show."

Mr. Secor: "What's your Ethnicity?"

Ms. Cherry: "I'm sorry?"

Mr. Secor: "What's your Ethnicity?"

Ms. Cherry: "Black."

Mr. Secor: "No. You're not wanted here. Don't call back."

Ms. Cherry: "Okay." [click]

(Pet. Ex. 3).

The tape of the second conversation, which Ms. Cherry testified was the ninth and final conversation that she had with Mr. Secor that day, revealed the following brief exchange:

Ms. Cherry: “Hello.”

Mr. Secor: "Models, can we help you?"

Ms. Cherry: "Yes, how come African Americans are not allowed

in the show?"

Mr. Secor: "We don't take niggers in the show, it's simple." [click]

(Pet. Ex. 3).

Ms. Cherry testified that she felt humiliated, embarrassed, and ashamed following her encounter with Mr. Secor. She said that it bothered her because it was her introduction to the business and it hurt her feelings. It discouraged her from proceeding further with attempts at a modeling career. She testified that this was the first time anything like this had occurred to her, and it made her feel as if she was not as good as anyone else because she was black. She claimed that she lost sleep because of the humiliation she suffered and that she felt violated and offended (Tr. 32-33). Ms. Cherry acknowledged, however, that she sought no treatment or medical attention for her mental anguish, nor did she ever take any medication for such (Tr. 37).

Ms. Jenkins, Ms. Cherry’s aunt, confirmed that Ms. Cherry appeared “depressed” after the incident, that she cried a great deal, and that she withdrew from family activities for a period of time. She also confirmed that Ms. Cherry lost her appetite and had trouble sleeping in reaction to the incident, and that this was the first time an incident of this nature had occurred to her (Tr. 60-61).

Mr. Secor, who is a quadriplegic and confined to his bed, participated in the hearing via speaker telephone. Mr. Secor testified that he is the owner and sole principal of Stars Model Management, which he insisted is not an employment agency, but is a “model management” agency - it manages models and books them for modeling assignments. Mr. Secor testified that the agency helps women get jobs and choose wardrobes, and gives them advice and counsels them in an effort to help them obtain employment. Mr. Secor said that his clients include fashion magazines such as Vogue, video companies, MTV, sometimes television stations, swimwear companies, clothing or garment industry companies, book covers, and "whatever the people ask us to do" (Tr. 67).

Mr. Secor testified that his company works with all people regardless of race, color or creed. He stated that between fifty and sixty percent of the models he cast for the E Channel fashion show were African Americans, and that they did a show six days later in which seventy-five percent of the models were African Americans (Tr. 67-68). For the E Channel fashion show, Stars Model received calls, interviewed the girls, and sent them to numerous rehearsals held for the show, where they would be booked (Tr. 68).

Mr. Secor testified that Ms. Cherry's first call to him on October 9, 2004 was "very aggressive." He said that she was not the typical person that they were looking for, as they were looking for a "sweet, innocent, feminine type -- we’re looking for fashion models not people who are, you know, very aggressive" (Tr. 68-69). Mr. Secor could not specify the manner in which Ms. Cherry was “aggressive,” and when pressed, claimed it was just a “feeling” that he got from her (Tr. 72). He testified that the company does not interview everyone who calls, only “those people that sound appropriate” (Tr. 72).

Mr. Secor testified that Ms. Cherry proceeded to barrage him with between 90 and 160 phone calls over the course of the next hour and a half to hour and forty minutes. In an effort to discourage her, they disconnected the telephone lines three times for ten to twenty minutes each time, hoping that she would stop calling. Each time they reconnected the lines, however, she would call again. He stated that Ms. Cherry’s tone in these calls escalated from initially “aggressive” to “vicious.” When asked what he meant by “vicious,” Mr. Secor claimed that Ms. Cherry repeatedly threatened him, "I'm going to get you" (Tr. 68-69, 76).

Mr. Secor denied ever telling Ms. Cherry that she could not come to the shoot or was not welcome because she was black. He admitted, however, to referring to Ms. Cherry as a "nigger" at one point, but only as "a last resort because this individual had literally backed me into the corner and I was, I felt I was like almost defenseless against this battery of calls" (Tr. 69). When asked to explain further, Mr. Secor testified that he reacted to the numerous and persistent calls Ms. Cherry made and the fact that she "started off aggressive [...] [t]hen she got hostile [...] [t]hen she got vicious [...] [a]nd finally she got ferocious" (Tr. 72-74).

Mr. Secor testified that during their first telephone call, he “probably” told Ms. Cherry that the show was overbooked, because it was in fact overbooked at that time (Tr. 74, 76). Mr. Secor denied telling Ms. Cherry that blacks were not needed and not to call back (Tr. 74). Despite his claims that she called him between 90 and 160 times, he was unable to produce any telephone records of such a volume of incoming calls (Tr. 76).

Mr. Secor testified that he never saw the UPN 9 News report, but he recalled his interview with Ms. Taylor. He described Ms. Taylor as “a very dishonest lady,” because she arranged to meet him under a false pretext. Posing as a casting director for the TV show America’s Next Top Models, she appeared at his apartment/business office, where he had arranged to have models present at her request, but instead she confronted him with the audio recording of his telephone conversations with Ms. Cherry and questioned him about it (Tr. 72). He did not deny the content of the conversations as taped, but explained that Ms. Cherry kept calling despite being told “no thank you” and added “we’re not perfect here” (Pet. Ex. 3).

Mr. Secor testified that he has been a quadriplegic for seventeen years, the result of an accident in which he was run over by a bulldozer in 1988. He is hooked up to three different oxygen machines and only leaves his apartment to go by ambulance to the hospital (Tr. 70-71). He described himself as having a “low quality of life,” and claimed that he mostly lives for his business and “helping girls” to become models (Tr. 70).

I found Ms. Cherry to be an entirely credible witness. She was straightforward, candid and unequivocal in her testimony. She limited her testimony to the facts as she recalled them and made no apparent attempt to embellish them. She contemporaneously reported the incident to family members and to a television station, and backed up the latter report with tape recordings of all of her conversations with Mr. Secor. Her testimony was credibly corroborated by her aunt, who listened in on one or more of the conversations with Mr. Secor and even placed her own call to him, posing as a white applicant. Ms. Cherry’s testimony was further corroborated by her cell phone records, which documented her nine calls that day to Mr. Secor in the space of fifty minutes, as well as her calls to her aunt and to UPN 9 News, and by the news videotape, on which two of Ms. Cherry’s taped conversations with Mr. Secor were played, including the last and most offensive one.

Most significantly, Ms. Cherry’s testimony was corroborated in all critical respects by Mr. Secor himself, who admitted receiving multiple phone calls from Ms. Cherry that day, being the only one to answer those calls, turning Ms. Cherry away repeatedly, and finally referring to her as a “nigger,” by stating in their last conversation that “We don’t take niggers in the show, it’s simple” (Pet. Ex. 3).

Respondent sought to impeach Ms. Cherry's testimony by insinuating that Ms. Cherry's motivation in pursuing this matter was financial gain. He pointed to her persistent calls that day, her subsequent decision to call the media, and the fact that she had her aunt and her friend call and pose as applicants, with her aunt further falsely claiming to be a white woman from Sands Point. However, it is highly implausible that Ms. Cherry would seek financial gain by calling an employment advertisement with the expectation that she would be discriminated against. I also credit Ms. Cherry's testimony that, given the discriminatory response by Mr. Secor, her subsequent calls were to confirm that he was denying her consideration for employment based on her race.

With respect to her call to the media, she credibly testified that she did so at the suggestion of family members who were outraged for her at the treatment she had received. She had no reason to expect that UPN 9 News would get back to her or follow up on her story when she reported it. Indeed, what made her story particularly credible for the station was the fact that she was able to document with audiotapes what Mr. Secor had said. Moreover, despite respondent’s attempts to portray Ms. Cherry as financially insolvent, she was working at the time. Nor did she initiate the pending complaint on her own, but rather she was invited to file by petitioner, once the news story about the incident was aired.

Lastly, the fact that Ms. Jenkins and Ms. Taveras falsely posed as applicants neither undermined Ms. Cherry’s or Ms. Jenkins’s credibility, nor proved that Mr. Secor was a victim of some type of “set up” as his counsel tried to argue (Tr. 8). Ms. Jenkins's and Ms. Taveras’s calls were very similar to steps taken by Commission testers when they receive reports of discriminatory conduct. See e.g., Comm'n on Human Rights v. Fugardi, rec. dec. and Order (Nov. 15, 1991) (tester used an alias while investigating an unlawful housing practice complaint). Respondent found himself in this situation not because of what Ms. Cherry or her aunt or friend did, but because of how he conducted himself.

In contrast to Ms. Cherry, I found Mr. Secor’s testimony, where it diverged from Ms. Cherry’s, to be incredible. His attempts to discredit Ms. Cherry or to explain away his conduct were neither credible nor supported by the evidence. Thus, for example, Mr. Secor tried to claim that he only used the “N” word as a last resort and in frustration after Ms. Cherry had pestered him with more than a hundred phone calls over almost two hours. Yet, Mr. Secor produced no phone records or witnesses to corroborate his claims, while Ms. Cherry's calling records clearly tell a far different story - that she called Mr. Secor only nine times over the course of 50 minutes, with none of the calls lasting more than a minute. Likewise, Mr. Secor denied that he ever indicated that black applicants were not welcome to apply for the show, yet he can clearly be heard on the UPN News video replay of a portion of Ms. Cherry’s audiotape, twice asking her ethnicity, and telling her that she was not wanted when she revealed that she was “black.”

With respect to his allegations that he was harassed by a very aggressive Ms. Cherry, he could do more than characterize her with adjectives such as "hostile," "vicious," and "ferocious," without being able to provide any details or specifics of things she did or said. The most he could articulate was that he had a “feeling” about her. Yet, his phone exchanges with her were demonstrably brief and in the two tapes that were played in the UPN 9 News video, he was the only one who said anything offensive and he hung up on her. Indeed, Ms. Cherry was interested in getting started in modeling and certainly had no motive to be hostile or aggressive in her initial calls to him. His uncorroborated accusations that Ms. Cherry repeatedly threatened to “get him” not only rang hollow, but were contradicted by the recordings in the news report which contained no such threats. Indeed, each time she called, she never identified herself but simply inquired about the show, only to have Mr. Secor hang up on her as soon as he learned that she was black. She had no opportunity to make threats.

In sum, I credit Ms. Cherry’s testimony in all respects regarding the content and circumstances of her conversations with Mr. Secor. The evidence was further compelling that race was the sole motivating factor for Mr. Secor’s refusal to consider Ms. Cherry for possible booking for the E Channel fashion show. The advertisement for the position required no prior experience, nor did it indicate any limitations or restrictions. Each time that Ms. Cherry called to inquire, she was immediately asked her ethnicity and told by Mr. Secor that she was not wanted when he learned that she was black or African American. Mr. Secor provided no legitimate reason for refusing her. His claim that the show was “overbooked” and that he “probably” told Ms. Cherry as much initially, was a clear post-incident fabrication, as evidenced by his extended interview of Ms. Jenkins for possible referral to the show when he believed her to be a white woman and by his invitation to Ms. Taveras, who told him that she was Hispanic, to appear for the show. It was E Channel fashion show officials who ultimately decided which models to book and, as Mr. Secor noted, the many rehearsals held for the show were still ongoing. He could not be sure as of October 9th how many of his models would be booked, and thus he had no reason to close out the referrals as of that date. Mr. Secor also failed to produce any evidence to support his bald assertion that fifty or sixty percent of the women he referred for this fashion show were African American.

Mr. Secor contradictorily claimed at other points that he turned away Ms. Cherry away because she did not sound like the “sweet, innocent, feminine type” that he purported to be looking for. This vague trial claim was likewise a clear after-the-fact pretext invented by him in an effort to explain away his discriminatory conduct. He simply had no basis to make such judgment in his brief exchanges with Ms. Cherry, who barely had an opportunity to say anything before Mr. Secor would hang up. As the testimony and tapes of their calls made clear, at most, Ms. Cherry evinced a tone of disbelief at the way she was treated. In the end, Mr. Secor could cite to no more than her persistence in calling back to justify his vague characterizations of her. Not only was that persistence understandable in the context, but to excuse or justify Mr. Secor’s conduct on such basis would be to defy common sense.

I find that on October 9, 2004, Ms. Cherry was discriminated against by Mr. Secor and Stars Model Management Company on the basis of her race. The next issue to be addressed is whether this constitutes discrimination by an employment agency in violation of section 8-107.1(b) of the Administrative Code.

Employment Agency

In its complaint, petitioner seeks a finding that respondent violated section 8-107.1(b) of the New York City Administrative Code, which states:

It shall be an unlawful discriminatory practice [...] [f]or an employment agency or an employee or agent thereof to discriminate against any person because of such person's actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant or applicants for its services to an employer or employers.

Admin. Code § 8-107.1(b) (Lexis 2005).

Respondent argues that Stars Model Management, Inc. does not constitute an employment agency pursuant to section 8-102(2) of the New York City Administrative Code, which states, "The term "employment agency" includes any person undertaking to procure employees or opportunities to work." Admin. Code § 8-102(2).

In Comm'n on Human Rights v. Boll, 1974 WL 2796 (Sup. Ct. N.Y. Co. 1974), the court upheld the Commission's finding that respondent Boll, a private individual, was functioning as an employment agency under section B1 8.0(2) of the Administrative Code.[2] In Boll, the respondent provided counseling and guidance to recent Harvard Business School graduates, as well as a collection of job leads and executive employment opportunities that he received from recruiting firms and employers at a rate of about two notices a week. In so holding, the court noted that "the Human Rights Law must be liberally construed to effectuate its purposes," which the court further noted was “to insure that opportunities for employment in New York City are available equally to all persons regardless of age, race, creed, color, national origin, sex or physical handicap…” Boll, 1974 WL at 2796. This principle is codified in section 8 130 of the current Administrative Code, which states: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof." Admin. Code § 8-130.

Like the respondent in Boll, respondent Stars Model Management provides advice, counseling and employment opportunities. The company fields calls, screens applicants through interviews, gives advice to improve applicants’ chances of obtaining employment, and refers applicants to clients for potential employment. The agency’s clientele includes numerous businesses, some of them well known, in the fashion, entertainment, magazine and publishing industries. Despite respondent's assertions that it is not an employment agency, Mr. Secor's own testimony indicates that it is "in the business of managing and booking models for modeling assignments," and of linking models with employers for particular jobs. In Mr. Secor's own words, the essence of his business can be summed up in “three words . . . make a match. Match a particular talent with particular wants and needs of a client" (Tr. 67).

The fact that Stars Model Management may not possess a license from the Department of Consumer Affairs to operate as an employment agency, as repeatedly stressed by respondent’s counsel, is of no significance in determining the jurisdictional issue here. As the courts have made clear, it is the nature of an entity’s operations that are critical to the analysis of whether it is an employment agency, not its public or registered identity. Boll, 1974 WL at 2796; see also Dumas v. Town of Mount Vernon 612 F.2d 974 (5th Cir. 1980) (finding County Personnel Board to be an “employment operation”); Kaplowitz v. University of Chicago, 387 F.Supp.42 (N.D. Ill. 1974) (finding a law school to be an “employment agency” because it operated a student placement facility); Scaglione v. Chappaqua Central School District, 209 F.Supp.2d 311 (S.D.N.Y. 2002) (finding that county personnel office was an “employment agency” within the statutory meaning). The self-described nature of respondent’s operations makes it abundantly clear that it falls within the scope of the city’s Human Rights Law.

Accordingly, I find that Stars Model Management is an employment agency pursuant to section 8-102(2) of the Administrative Code.

Civil Penalty, Damages, and Equitable Remedies

The Commission seeks imposition of civil penalties and compensation for emotional distress against the respondent. Section 8-126 of the Administrative Code provides that where the Commission finds that a person has engaged in an unlawful discriminatory practice, the Commission may, to vindicate the public interest, impose a civil penalty not to exceed $50,000, and in the case of a willful, wanton or malicious act of discrimination, a civil penalty not to exceed $100,000. Pursuant to section 8-120 of the Administrative Code, a party found to have engaged in an unlawful discriminatory practice may be subject to "payment of compensatory damages to the person aggrieved by such practice or act." Furthermore, the Commission "shall require the respondent to take such affirmative action as, in the judgment of the commission, will effectuate the purposes of this chapter." Admin. Code §8-120(a). Petitioner requests a civil penalty of $30,000 and compensatory damages of $20,000 for mental anguish. Petitioner also requests that respondent be ordered to implement a non-discrimination policy and for Mr. Secor to receive sensitivity training.

The civil penalty "is not intended to compensate the complainant but to punish the Volator." 119-121 East 97th Street Holding Corp. v. New York City Comm'n on Human Rights, 220 A.D.2d 79, 88, 642 N.Y.S.2d 638, 644 (1st Dep't 1996). In determining the appropriate amount of civil penalties, consideration is given to "how egregious the violation is and its impact on the public," Southgate v. United African Movement, NYCCHR Complaint No. MPA95-0851, PA95-0031, rec. dec. and Order (June 30, 1997), dec. and Order (Sept. 24, 1997). On review of Commission decisions, because the Commission is precluded from assessing more than $100,000 as a civil penalty in any case, the courts have applied a principle of proportionality. 119-121 East 97th Street Holding Corp., 220 A.D.2d at 88, 642 N.Y.S.2d at 644.

In 119-121 East 97th Street Holding Corp., a landlord was fined $25,000 for discriminating against a tenant on the basis of sexual orientation and disability by making repeated written and verbal attacks against the tenant over the course of eighteen months for the purpose of having the tenant move out. In determining the appropriate civil penalty, the court noted that while the acts of the landlord were egregious, the public interest was not greatly impacted by the landlord's actions because the landlord owned a relatively small number of units, and there was no evidence of prior discrimination on the part of the landlord. The court accordingly reduced the fine from the originally recommended amount of $100,000 to $25,000.

In Southgate v. United African Movement, NYCCHR Complaint No. MPA95-0851, PA95-0031, dec. and order (Sept. 24, 1997), a respondent was fined $5,000 for discriminating against a reporter on the basis of race by denying her entrance into a publicly advertised forum. In determining the appropriate civil penalty, the court noted that the public was not greatly impacted by respondent's actions, but that the manhandling of a Commission on Human Rights Law Enforcement Bureau tester by respondents was an aggravating factor.

In Comm'n on Human Rights v. Silver Dragon Restaurant, OATH Index No. 677/03 (May 30, 2003), modified on penalty, Comm'n Dec. (July 28, 2003), modified on penalty, Silver Dragon Restaurant v. City of New York Comm'n on Human Rights, NYLJ, Mar. 31, 2004, at 24 (Sup. Ct. Kings Co.), a restaurant was fined $5,000 for discriminating against a Commission on Human Rights investigator posing as a customer on the basis of race by requiring her to pay for her order before she received her food while not requiring the same from other customers. In determining the appropriate civil penalty, the court noted the lack of aggravating factors other than the offensive nature of the act itself.

In Comm'n on Human Rights v. Hudson Overlook, LLC, OATH Index No. 2094/04 (Jan. 20, 2005), a landlord was fined $5,000 for discriminating against a tenant by failing to provide a reasonable accommodation for her disability in its refusal to install a ramp at the entrance of the tenant's building. In determining the appropriate civil penalty, the administrative law judge noted that there was no indication on the record that the landlord knowingly violated the Administrative Code, or how much of an impact such a discriminatory act would have on the public. However, the judge found that the landlord ignoring the tenant's request for a reasonable accommodation, failing to answer the Commission's complaint or appear before the tribunal, and attempting to terminate her tenancy when it was found in default in the hearing, constituted aggravating factors. Lastly, the judge did not consider the landlord's rude behavior toward Commission employees to be an aggravating factor in determining a civil penalty.

In Comm'n on Human Rights v. Space Hunters, Inc., OATH Index No. 997/04 (May 31, 2005), a room listing service was fined $15,000 for discriminating against a transsexual customer seeking a housing accommodation on the basis of her gender identity. The factors considered in determining the penalty amount included the fact that the discrimination was a single act on the part of the respondent but that it was of a willful nature, that the respondent had a history of discriminatory conduct, that the respondent listed apartments for several hundred landlords and thus the discriminatory conduct had a significant negative impact on the public interest, and that the respondent refused to cooperate with the Public Advocate's Office and Human Rights Commission, cursing at representatives of both agencies during their investigations of the matter.

In the instant case, Mr. Secor discriminated against Ms. Cherry by denying her an employment opportunity on the basis of her race. I find that the discrimination was a single act insofar as it consisted of a series of telephone calls occurring over the span of 50 minutes. Aggravating the discrimination was the offensive language used by Mr. Secor during the ninth telephone conversation. I further find that this aggravating circumstance is not mitigated by Mr. Secor's unsupported claim that Ms. Cherry called him between 90 and 160 times and acted aggressively over the telephone. Instead, I find Mr. Secor's lack of remorse for his actions and his claim that Ms. Cherry's "aggressiveness" justified his use of offensive language with her to be an aggravating factor. Lastly, based on Mr. Secor's own testimony, which indicates that respondent handles bookings for hundreds of modeling opportunities on behalf of diverse and in some instances well known, companies, such discriminatory practice has a significant impact on the public. Accordingly, I recommend that the respondent be fined $15,000.

Damages for mental anguish may be awarded based upon whether "a reasonable person of average sensibilities could fairly be expected to suffer mental anguish from the incident." See Batavia Lodge v. New York State Division on Human Rights, 35 N.Y.2d 143, 359 N.Y.S.2d 25 (1974), rev'd and adopting diss. opin. reported at 43 A.D.2d 807, 810, 350 N.Y.S.2d 273, 277 (4th Dep't 1973). Mental anguish may be established by the credible testimony of a complainant. See Cullen v. Nassau County Civil Service Comm'n, 53 N.Y.2d 492, 442 N.Y.S.2d 470 (1981).

Factors contributing to the amount of an award for damages for mental anguish include the severity of the offense, the duration of the discriminatory practice, the number of incidents, and past awards granted for similar circumstances. New York State Dep't of Correctional Services v. New York State Division of Human Rights, 225 A.D.2d 856, 638 N.Y.S.2d 827 (3rd Dep't 1996). Furthermore, "there must be some evidence of the magnitude of the injury, to assure that the Commissioner's damage award is neither punitive nor arbitrary." New York City Transit Auth. v. State Division of Human Rights, 78 N.Y.2d 207, 217, 573 N.Y.S.2d 49, 54 (1991).

In support of its argument that $20,000 in compensatory damages is appropriate, petitioner cites City of New York v. New York State Division of Human Rights, 250 A.D.2d 273, 682 N.Y.S.2d 387 (1st Dep't 1998), aff'd, 93 N.Y.2d 768, 698 N.Y.S.2d (1999), in which a complainant was disqualified for the title of sanitation worker at the Department of Sanitation because the complainant was born with the birth defect spina bifida, the complainant received a $10,000 award for mental anguish where the only evidence was the complainant's testimony that he was "hurt," "angry," and "emotional." 250 A.D.2d at 278, 682 N.Y.S.2d at 390.

Other prior discrimination cases involving denial of employment opportunities include Board of Education of the Ravena-Coeymans-Selkirk Central School District v. New York State Division of Human Rights, 109 A.D.2d 988, 486 N.Y.S.2d 469 (3d Dep't 1985), in which a complainant, denied employment on the basis of age and gender, was awarded $5,000 in compensatory damages based on the complainant's testimony that she was upset, had difficulty sleeping, and had serious migraine headaches of an extended period of time that her attendance at a headache clinic failed to alleviate; Consolidated Edison Company of New York, Inc. v. New York State Division of Human Rights, 77 N.Y.2d 411, 568 N.Y.S.2d 569 (1991), in which a complainant, passed over for two promotions on the basis of both gender and race, was awarded $10,000 in compensatory damages based on mental anguish complainant encountered every day when she had to report to those persons less qualified who had been promoted over her; New York State Dep't of Correctional Services v. State Division of Human Rights, 207 A.D.2d 585, 615 N.Y.S.2d 531 (3d Dep't 1994), in which a complainant, denied a promotion on the basis of gender, was awarded $10,000 in compensatory damages based on complainant's testimony that she felt frustrated, depressed and angry, lost sleep and became embroiled in arguments with her fiancé over the matter, saw a psychiatrist five or six times, and was stigmatized by fellow employees because she filed the grievance; Manhattan and Bronx Surface Transit Operating Authority v. New York State Executive Dep't, 220 A.D.2d 668, 632 N.Y.S.2d 642 (2d Dep't 1995), in which a complainant, denied employment on the basis of age, was awarded $7,500 in compensatory damages based on complainant's testimony that he felt devastated, lost sleep and gained weight, but did not seek medical or psychiatric treatment; Port Washington Police District v. State Division of Human Rights, 221 A.D.2d 639, 634 N.Y.S.2d 195 (2d Dep't 1995), in which a complainant, denied an appointment to a police department on the basis of gender, was awarded $5,000 in compensatory damages where "the complainant's discussion of her mental anguish was brief and there was no evidence of the duration of her condition, its severity or consequences or evidence of treatment." 221 A.D.2d at 640, 634 N.Y.S.2d at 196.

In the instant case, the evidence indicates that upon learning her race during their first telephone conversation, Mr. Secor told Ms. Cherry that she was not wanted and not to call back, repeatedly turned her away on learning her race in repeated follow up calls, and during the final telephone conversation told her that "We don't take niggers." Ms. Cherry testified that she felt humiliated, embarrassed, ashamed, violated and offended, and that she lost sleep over the encounter. This was the first time that she had been the victim of such overt discriminatory conduct, and she was particularly embarrassed about it in front of her family. Her aunt credibly confirmed the emotional impact that the incident had on Ms. Cherry and the change in her behavior it caused. Ms. Cherry also noted that this was her first attempt at entering the modeling business and that her treatment by Mr. Secor discouraged her from further pursuing a modeling career. However, Ms. Cherry testified that she did not seek any treatment for pain and suffering, nor was she on any medication to alleviate any pain and suffering.[3]

Upon consideration of the facts in the instant case, including the fact that there was a single act of discrimination but that it involved the use of particularly offensive language, Ms. Cherry's testimony concerning how the discriminatory act affected her, the compensatory damages awarded in prior cases involving similar circumstances, and the fact that unlike those similar cases, this matter involved the denial of a short-term employment opportunity, I recommend that Ms. Cherry be awarded $10,000 in compensatory damages for mental anguish. That award is also consistent with the amount petitioner initially requested for Ms. Cherry in its closing argument during the trial (Tr. 79).

Lastly, in consideration of the offensive nature of Mr. Secor's act of discrimination and his unapologetic attitude concerning it, I recommend that Mr. Secor be directed to attend sensitivity training classes and that respondent be directed to adopt and display a written non discriminatory policy in its place of business. Graffino v. General Claims Investigations, NYCCHR Complaint No. EM00088-4/13/88, amended rec. dec. and order (Sept. 11, 1995), dec. and order (Dec. 20, 1995); Comm'n on Human Rights v. Silver Dragon Restaurant, OATH Index No. 677/03 (May 30, 2003), modified on penalty, Comm'n Dec. (July 28, 2003), modified on penalty, Silver Dragon Restaurant v. City of New York Comm'n on Human Rights, NYLJ, Mar. 31, 2004, at 24 (Sup. Ct. Kings Co.).

FINDING AND CONCLUSION

1. The Commission proved by a fair preponderance of the credible evidence that on October 9, 2004 respondent, Stars Model Management, discriminated against Shameika Cherry on the basis of race by denying her consideration for employment in a fashion show.

2. Stars Model Management is an employment agency pursuant to section 8-102(2) of the New York City Administrative Code.

RECOMMENDATION

I recommend that a civil penalty of $15,000 be imposed against Stars Model Management Company, and that Shameika Cherry be awarded $10,000 in compensatory damages for mental anguish. I further recommend that Timothy Secor be required to attend sensitivity training classes and that respondents be required to implement a policy against discrimination, and train any employees it may have to comport themselves in a manner consistent with that policy.

Raymond E. Kramer

Administrative Law Judge

March 7, 2006

SUBMITTED TO:

PATRICIA GATLING

Commissioner

APPEARANCES:

PAUL PLOTSKER, ESQ.

Attorney for Petitioner Commission on Human Rights

ANIL TANEJA, ESQ.

Attorney for Respondents

Commission on Human Rights’ Decision, April 13, 2006

______________________________________________________

THE CITY OF NEW YORK

COMMISSION ON HUMAN RIGHTS

In the Matter of

SHAMEIKA CHERRY

Appellant

- against –

STARS MODEL MANAGEMENT & TIMOTHY SECOR

Respondents

______________________________________________________

DECISION AND ORDER

On November 12, 2004, the petitioner filed a Verified Complaint with the New York City Commission on Human Rights (hereafter referred to as the "Commission") alleging violations of the Administrative Code of the City of New York. Specifically, that the respondent denied her an employment opportunity on the basis of her race. In their Verified Answer, the respondents claimed that they were not an employment agency; therefore, the Commission lacked jurisdiction over the matter, and denied ever speaking with the petitioner.

On March, 2, 2005, the Commission reached a Probable Cause Determination and referred the matter to the Office of Administrative Trials and Hearings (hereafter referred to as "OATH") for a trial.

The trial was conducted before Administrative Law Judge Raymond E. Kramer on June 1, 2005. Respondent Secor participated in the proceedings via telephone due to a disability and the difficulty travel presents for him. The petitioner, her aunt and respondent Secor testified at the trial. In addition, a videotape of a news report, including recorded telephone conversations between the petitioner and respondent Secor were presented as evidence.

Petitioner testified that she responded to an advertisement seeking models for a fashion show. Respondent Secor answered the telephone, questioned her ethnicity, and hung-up on her when she responded that she was black. Petitioner contacted her aunt, arranged a conference call, and dialed the number again. Respondent Secor answered the telephone, again inquired about the petitioner's ethnicity, and responded "blacks are not wanted here." The petitioner testified to at least seven more telephone conversations over a period of 50 minutes wherein the respondent questioned her ethnicity, and hung-up on her. During the final call, respondent Secor told the petitioner, "we don't take niggers in the show." The petitioner taped several of the telephone calls, including the final call referred to above, which was one of two audio tape recordings entered into evidence. The petitioner also testified that between the first and the last call, petitioner had one of her friends call and indicate that she was Dominican when questioned about her ethnicity. Respondent Secor made an appointment for her to meet with him in his office on the next business day. Petitioner's aunt, Nancy Jenkins, corroborated those aspects of the petitioner’s testimony that related to her, including, overhearing one of the telephone calls, advising the petitioner to call the press, and the testimony regarding the petitioner’s mental state after the incident; which included depression, inability to sleep and a withdrawal from family affairs.

Contrary to the respondents' statements in the Verified Answer, i.e., that the conversations with the petitioner never occurred, respondent Secor testified at the trial that the petitioner called him between 90 and 160 times over a period less than two hours, that she became hostile after he told her that he was not seeking additional models, and that petitioner's hostility led him to say things he would not ordinarily say. Consistent with his Verified Answer, he continued to claim that he was not an employment agency; therefore, the Commission lacked jurisdiction to file and prosecute a complaint.

In choosing to credit the petitioner's testimony and discredit the testimony of respondent Secor, ALJ Kramer cited several pieces of evidence that corroborate the petitioner's version of events, including her telephone records (which reveal only nine calls), the testimony of her aunt, and the taped conversations themselves. Respondents were unable to produce any records showing a high volume of calls during the period; the tapes themselves belie respondent Secor's assertion of hostility on the part of the petitioner, and the fact that respondent Secor made an appointment with the petitioner's "Dominican" friend contradicts his statement that he was not interviewing additional models because the show was full.

The Commission agrees with Administrative Law Judge Raymond E. Kramer's assessment of the evidence and his legal analysis of the jurisdictional issue. Respondent Secor's own testimony that he, through the management company, advises and counsels models, assists them with wardrobe choices and helps them get jobs clearly places him within the definition of "employment agency" a's intended by the Administrative Code of the City of New York.

Administrative Law Judge Raymond E. Kramer, after hearing the testimony, having an opportunity to observe the demeanor of the witnesses, and analyzing existing precedent, issued a Report and Recommendation on March 7, 2006. The Administrative Law Judge recommended that the respondents be ordered to pay a fine to the city in the amount of $15,000; pay the petitioner $10,000 in compensatory damages; that respondent be required to institute a policy against discrimination and that respondent Secor be required to attend sensitivity training. The Commission believes that the findings and recommendations are appropriate and adopts them.

IT IS HEREBY ORDERED, that the respondents pay a fine to the city in the amount of $15,000; pay the petitioner $10,000 in compensatory damages; that respondent institute a policy against discrimination and that respondent Secor attend sensitivity training.

Failure to abide by this Order may result in penalties authorized by section 8-124 of the Administrative Code of the City of New York.

SO ORDERED:

NEW YORK CITY COMMISSION ON HUMAN RIGHTS

GRACE LYU-VOLCKHAUSEN, Commissioner, Human Rights Commission

MATTHEW FOREMAN, Commissioner, Human Rights Commission

PATRICIA L. GATLING, Commissioner, Human Rights Commission

-----------------------

[1] Ms. Cherry was a little vague as to the exact order in which she placed her various phone calls, but the phone records she submitted indicated that she called her aunt after the first two calls to the modeling agency (Pet. Ex. 2).

[2] B1-2.0(2), from an earlier version of the Administrative Code, provided the same definition of "employment agency" as the current section 8-102(2).

[3] At one point, Ms. Cherry also claimed that she missed a week of work in reaction to the incident (Tr. 47-48). No evidence, however, was provided as to any financial loss she may have suffered as a result, nor did petitioner make any claim for lost wages or out-of-pocket expenses.

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