CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS ------* In the Matter of the Complaints of : LUZ PILAR RUIZ, : Complainant, : Complaint No. -against- : EM 00465-08/29/88 ARCADE CLEANING CORPORATION, : NAMIK URUCI, Supervisor, : Respondents. : ------* MARIA SANDOVAL, : Complainant, : Complaint No. -against- : EM 01525 -07/21/89 ARCADE CLEANING CORPORATION, : Respondent. : ------* JOSEFINA HERNANDEZ, : Complainant, : Complaint No. -against- : EM 01303 - 05/26/89 ARCADE CLEANING CORP., : JOSE ECHEVARRIA, Manager, : JAY GONZALES, Supervisor, : Respondents. : ------

RECOMMENDED DECISIONS AND ORDERS

BEFORE: Steven E. Presberg Administrative Law Judge Hearings Division

APPEARANCES: For the Commission

Robert Hammel, Esq. Deputy Commissioner for Law Enforcement New York City Commission on Human Rights 40 Rector Street, 9th Floor New York, NY 10006

By: Lawrence Mariano Siry, Esq. Staff Attorney and Susan Slovak, Esq. Supervising Attorney, of Counsel APPEARANCES: For the Complainants

Dienst, Serrins, Newman, O'Malley & Epstein 233 Broadway New York, NY 10273

By: Alan Serrins, Esq. Of Counsel Realmuto & D'Alessio 59 John Street New York, NY 10038

By: Richard Realmuto, Esq. Kenneth Horenstein, Esq. Of Counsel

For Respondents Arcade Cleaning Corp., Jose Echevarria and John Gonzalez

Epstein Becker & Green, P.C. 250 Park Avenue New York, NY 10177

By: Jerrold Goldberg, Esq. Jeffrey M. Landes, Esq. Of Counsel For Respondent Namik Uruci John J. Leo, Esq. 87 Sixth Avenue, Suite 500 New York, NY 10001 CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS ------* In the Matter of the Complaints of : LUZ PILAR RUIZ, : Complainant, : Complaint No. -against- : EM 00465-08/29/88 ARCADE CLEANING CORPORATION, : NAMIK URUCI, Supervisor, : Respondents. : ------* MARIA SANDOVAL, : Complainant, : Complaint No. -against- : EM 01525 -07/21/89 ARCADE CLEANING CORPORATION, : Respondent. : ------* JOSEFINA HERNANDEZ, : Complainant, : Complaint No. -against- : EM 01303 - 05/26/89 ARCADE CLEANING CORP., : JOSE ECHEVARRIA, Manager, : JAY GONZALES, Supervisor, : Respondents. : ------*

COMPLAINTS AND HEARING

On January 24, 1989, Luz Pilar Ruiz filed a verified complaint with the New York City Commission on Human Rights (hereinafter "Commission") alleging discrimination in employment based on sex, on the part of her employer Arcade Cleaning Corporation (hereinafter "Arcade") and a former supervisor, Namik Uruci. She additionally charged Respondents Arcade and Uruci with unlawful retaliatory conduct. On August 2, 1989, Maria Sandoval filed a verified complaint with the Commission alleging discrimination in employment, manifested by "third party" retaliation on the part of Arcade.

On June 6, 1989, Josefina Hernandez filed a verified complaint with the Commission alleging discrimination in employment, based on sex, on the part of her employer Arcade and Jose Echevarria, Manager, and Jay Gonzalez, Supervisor. She additionally charged Respondents with unlawful retaliatory conduct against her. In an amended complaint dated October 19, 1989, Hernandez additionally alleged that her national origin was a basis for unlawful discriminatory conduct toward her by Respondents. These three complaints were consolidated prior to their referral by the Law Enforcement Bureau (hereinafter "Bureau") to the Hearings Division for trial. Respondents' pre-hearing motions

to sever the complaints, or to try them ad seriatim were denied. The complaints were jointly tried in a lengthy public hearing held on numerous dates commencing on September 13, 1993. The final hearing date was December 20, 1993. Post-Hearing memoranda were received from all counsel on or about March 18, 1994. Reply memoranda on behalf of all parties except Respondent Namik Uruci were received on or about April 1, 1994.

SUMMARY OF THE PARTIES' CONTENTIONS

Complainant Luz Pilar Ruiz Complainant Ruiz asserts that she was the victim of quid pro

quo sexual harassment at the hands of Respondent Namik Uruci, her supervisor. She alleges that Uruci first attempted to rape her, subsequently did rape her at gunpoint on one occasion, and by intimidation and threats coerced her to acquiesce to his sexual demands on future occasions. Additionally, Ruiz asserts that she was sexually assaulted by two other employees of Respondent Arcade. She further asserts that she notified appropriate personnel of the company as to these events, and that the employer is liable for the actions of its supervisors.

Complainant Maria Sandoval

Complainant Sandoval asserts that she was the victim of "third party" retaliation by the company. Specifically, she charges that subsequent to her brief period of employment as an office cleaner, the company refused to re-hire her on account of the complaint filed by her daughter, Luz Pilar Ruiz.

Complainant Josefina Hernandez

Complainant Hernandez asserts that she was the victim of quid pro quo sexual harassment at the hands of Respondents Jose Echevarria and Jay Gonzalez. She additionally alleges that Respondent Gonzalez created a hostile work environment for her, and acted in an unlawful retaliatory manner toward her. She asserts that the employer is liable for the actions of these supervisors.

Respondent Arcade Cleaning Corporation

With respect to the Ruiz complaint, the corporate Respondent Arcade asserts that in the first instance, any sexual relationship between Ruiz and Uruci was consensual and therefore not harassment. Arcade's position is that even if Uruci's conduct was improper, the company took prompt corrective action by accepting the Latter’s resignation, once they were apprised of:- the alleged acts. With respect to the Sandoval complaint, Arcade's position is that no unlawful retaliation took place. Rather, it is argued that her temporary position ended at the conclusion of the regular vacation season, and that her poor work performance was a lawful reason that justified Arcade's refusal to rehire her. With respect to the Hernandez complaint Arcade asserts that any relationship between Hernandez and Respondent Echevarria was

consensual, and that no quid pro quo harassment was proven. Arcade also asserts that no quid pro quo or hostile work environment harassment was proven with respect to Respondent Gonzalez, and that Hernandez' work assignments were free of any unlawful retaliation.

Respondent Namik Uruci

Respondent Uruci denies having any sexual relationship with Complainant Ruiz, or subjecting her to quid pro quo sexual harassment.

Respondent Jose Echevarria

Respondent Echevarria denies having any sexual relationship

with Complainant Hernandez, or subjecting her to quid pro quo sexual harassment.

Respondent Jay Gonzalez

Respondent Gonzalez denies subjecting Complainant Hernandez to any quid pro quo sexual harassment, or to creating, through his words and actions, a hostile work environment for her.

Summary of the Tribunal's Determination

For the reasons discussed below, this Tribunal finds for Complainant Ruiz as against Arcade Cleaning Corporation and Namik Uruci; for Arcade Cleaning Corporation in its defense of the claim filed by Maria Sandoval; for Arcade Cleaning Corporation and Jose Echevarria in their defense of the claim filed by Josefina Hernandez; and, for Arcade Cleaning Corporation and Jay Gonzalez in their defense of the claim filed by Josefina Hernandez. Appropriate awards of damages and affirmative relief are therefore proposed in the decision on the Ruiz complaint. It is recommended that the Sandoval and Hernandez complaints be dismissed. I.

FINDINGS OF FACT

A. Complaint of Luz Pilar Ruiz

1. Complainant Luz Pilar Ruiz came to the United States from Columbia in 1986 with her mother and daughter (T. 29, 226).1 She married the child's father, Carlos Ruiz, in December 1986 (Jx. 22). She began working for Arcade Cleaning Corporation hereinafter "Arcade")2on June 30, 1987 as a night office and bathroom cleaner earning approximately $11 per hour (T. 30, 31, 76). 2. Ruiz learned about the job at Arcade through a friend, who gave her the name of Joe Echevarria. Ruiz called Echevarria to inquire about work. Echevarria was the night operations manager, reporting to John DiGiovanni, Assistant Vice President. After some preliminary questions regarding Ruiz' age, marital status, whether or not she had children and how long she had been in this country, he made an appointment for her. Ruiz was ultimately hired (T. 30, 31, 124, 2588, 2589, 2592). 3. Ruiz spoke very little English in 1987. At the beginning of her employment she was assigned to 1211 Sixth Avenue. Her job included the removal of garbage, cleaning offices, bathrooms, walls, toilets, doors and floors. She worked evenings and nights, from approximately 5:00 p.m. to midnight (T. 31, 32, 52, 53).

1 "T." preceding a page number refers to the transcript of the hearing. "Cx." refers to Complainants' exhibits. "Rx." refers to Respondents' exhibits. "Hx." refers to Hearing Officer's exhibits. "Jx." refers to joint exhibits, admitted by stipulation of all parties.

2 At the hearing, no objection was raised to amending the complaint to include the corporate respondent's new name, "Initial." Since virtually all of the testimony referred to "Arcade" I also will refer to Arcade as the company herein. 4. Within two months of starting her job, Ruiz suffered the first of a series of horrific sexual attacks and abuses. In the first incident a man wearing an Arcade uniform molested Ruiz. He was in an elevator that she boarded. He caused the elevator to stop, took out his penis and pushed Ruiz against the wall of the elevator. He grabbed Ruiz' neck. When she started screaming he let her out. Ruiz reported this incident to Joe Echevarria, Joe Encino, the supervisor at the building, and a forelady named Elizabeth (T. 32-35, 140). 5. Ruiz was next assigned to the building known as Tower 49, where her cleaning duties were essentially unchanged. Upon her first meeting with her new supervisor, Mike Fejzula, the latter asked Ruiz to show him her green card, and to "be good to me." Fejzula cornered Ruiz in a locked room, pushed himself at her and attempted to kiss her. According to Ruiz, he appeared to have been drinking. Fejzula said "Kiss me. Don't you like me?" Ruiz started screaming, at which point Fejzula attempted to calm her down and let her out of the room. Subsequently, Fejzula reported that Ruiz had not been cleaning properly. When Joe Echevarria called her to Arcade's office, Ruiz explained that Fejzula's discontent was due to the incident. Echevarria told her "That's the way those people are," and said he would take care of solving the problem (T. 36-41). 6. When confronted by an employee's claim of harassment, Echevarria's procedure began with an analysis of the person bringing the complaint. Echevarria would first consider "if it came from a legitimate source...a person who didn't have any ax to grind with the supervisor." If the complaining employee was one "who had never had any problems (Echevarria) would investigate it with more of an open mind" (T. 2954, 2955). 7. After Ruiz' complaint about Fejzula, Echevarria questioned him. Fejzula denied touching Ruiz. Subsequently, Echevarria decided to go to Ruiz' work location with Fejzula in order "to see what would happen when I put them both together... to see how they would react in front of each other, to see if I could see something." When they arrived at Ruiz' floor, they found her sitting down. Echevarria got upset at her "malingering" and he admonished her for it and for her poor work performance. Echevarria was then unable to resolve Ruiz' complaint, "because it was her word against his." The next day Echevarria told Ruiz he "was disappointed with having her sitting down when she was supposed to be working and especially since she was a new employee." Ruiz apologized. Fejzula was later promoted to the position of District Manager (T. 40, 2816, 26282631, 2958-2967). 8. In November of 1987 Ruiz began her assignment at 65 Broadway. Joe Echevarria introduced her to her new supervisor, Namik Uruci, who was a district manager. Within two or three days, Uruci appeared during her shift and asked her how old she was, whether she was married, had any children and where she was living. Uruci told Ruiz to be good to him and that he would let her go home early. Although previously given an eight hour work shift, Uruci started Ruiz with only a six hour shift (T. 42-45,

125, 175).

9. During this time Ruiz learned that her husband had been sexually abusing their daughter. Ruiz was represented in Family Court proceedings by a lawyer retained through her union's benefit fund. In December 1987, Ruiz told Joe Echevarria about her difficulties with her husband. He told her that he knew she had some problems and wanted to help (T. 46-49). Echevarria gave this information to Uruci (T. 64, 65). 10. Ruiz met Supervisor Uruci for a second time when he came to the building she was assigned to. Uruci offered to take Ruiz home. Though she repeatedly said no, he insisted. Ruiz was working a 5:30 p.m. to 12:30 a.m. shift. She usually took the subway home to Queens. Because it seemed convenient, and he was her supervisor, Ruiz agreed to let Uruci drive her home. Before arriving at Ruiz' home, Uruci parked the car in a dark place under a bridge. He then took out a condom and put it on, and attempted to rape Ruiz. He grabbed at Ruiz, touched her breast and started kissing her. Ruiz got frightened, started screaming, and Uruci relented and took her home (T. 51, 53). 11. The following day, Ruiz was very scared but reported to work as usual. Another supervisor answered a phone call from Uruci, who wanted to speak to Ruiz. He told Ruiz he needed to talk to her. At about 10:00 p.m., Uruci arrived at Ruiz' worksite and said she would have to see him. That night, in his car, Uruci raped Ruiz at gunpoint telling her "you have no choice." He warned her not to tell anyone, saying she could lose her job, then dropped her off near her home (T. 54-57).

12. During the next six to eight months Uruci, through intimidation as Ruiz' supervisor, compelled her to have sex with him on numerous occasions. These incidents took place in his car, after he ordered Ruiz to wait for him at her worksite. Uruci would either call in advance, or leave a message with Targi Aniello, another supervisor at Ruiz' next worksite, 730 Fifth Avenue. Targi would inform Ruiz of Uruci's instructions that she wait outside the building or call at a designated time. Targi Aniello's supervisor was Uruci. On one occasion, Uruci appeared at Ruiz' home and saying "You have to do, you have to do" compelled her to perform oral sex on him (T. 56-64, 287, 288, 322, 323, 350-362). 13. Namik Uruci's immediate supervisor was Joe Echevarria (T. 67). 14. Miriam Mendoza met Ruiz in February of 1988. Mendoza was working in a video store and saw Ruiz, in the store, crying. Mendoza and Ruiz subsequently became friends and Mendoza ultimately rented a room in Ruiz' apartment. Mendoza was a witness to Uruci being present in Ruiz' apartment. She recalled him changing the lock on the door on one occasion, and hearing noise, screaming, and fighting from Ruiz bedroom on another occasion. On the latter occasion, she recalled Uruci being in Ruiz ' bedroom with the door locked. When she demanded that he open the door to make certain Ruiz was okay, she recalls that Ruiz was crying. Mendoza and Uruci started arguing with each other, cursing each other, with Mendoza warning Uruci not to harm Ruiz. After that incident, Mendoza never saw Uruci again at Ruiz' apartment. During the time she lived there, Mendoza described Ruiz' physical condition as very stressed and recalled that Ruiz was constantly crying (T. 318-329, 342-359). 15. At 65 Broadway, Ruiz' immediate supervisor was Jimmy Ramusch, who in turn reported to Uruci. As there were no lockers or facilities for the women, they changed into their Arcade cleaning uniforms in the Supervisor's office. Ramusch would, at times, remain while the women changed into their uniforms (T. 69, 1726-1728). 16. Shortly after her arrival at 65 Broadway, Supervisor Ramusch asked Ruiz to go out dancing with him. When she declined, Ramusch began pressuring Ruiz by complaining about her work performance in cleaning the three floors to which she was assigned. Ruiz reported this to Joe Echevarria (T. 68-70, 73, 74, 180-182). 17. On Wednesday, July 27, 1988, Ruiz informed Echevarria by telephone about the repeated rapes committed by Uruci. She did not tell him sooner out of fear. Uruci had threatened her, her daughter and her mother with physical harm. In addition, Ruiz feared the loss of her job and the valuable union benefit of an attorney to represent her and her daughter in Family Court. Echevarria, unable to meet with Ruiz the next day, gave her an appointment at his office for Friday (T. 75-78). 18. Ruiz intended to meet with Echevarria as scheduled, despite another threatening phone call from Uruci warning her not to say anything. Ruiz was "very nervous, confused, afraid." Ruiz became ill and rescheduled the appointment for Monday (T. 79-82).

19. On the weekend prior to her scheduled meeting with Echevarria, Ruiz became very ill. She was scared, "feeling very badly" and could not eat. After going to the hospital, she was advised to take three days leave. Ruiz' next hospital visit came after an anonymous caller told her she had AIDS, and Uruci confirmed to her that he was infected. Ruiz was admitted to the hospital for five days and sent home on disability for one week. Subsequently, Ruiz went to a health center in order to have an HIV test, which she later repeated twice. Although all tests were negative, Ruiz is still afraid (T. 81, 91-104, 208-210; Cx. 5). Ruiz indicated that the incidents with Uruci caused her to feel "very humiliated, ashamed, with fear (T. 114)." She continues to feel traumatized (T. 115). 20. The doctor at the hospital, Dr. Taverna, referred Ruiz to Dr. Capello, a psychiatrist. Ruiz saw Dr. Capello approximately once a week from mid-August of 1988 until June of 1989. Dr. Capello prescribed the medications Desyryl and Buspar for Ruiz, advising her that they would be good for her nervousness. Dr. Capello also placed her on disability for six months (T. 105-112, 2638-2640). 21. Ruiz first contacted the Commission on Human Rights after her first hospital visit in the summer of 1988. She also contacted the Victim Services Agency, in September or October of 1988 and met with a social worker/counselor (T. 88-90, 143, 213;

Jx. 1). She also became a patient of the Puerto Rican Family Institute, Queens Mental Health Clinic ( Jx. 21).

22. Prior to Ruiz' meeting with Echevarria, she received a call at home from Dean Qira, an Arcade supervisor, requesting that she help Uruci by not reporting what he had done (T. 366-369, 454). In addition, Uruci called Ruiz' mother, Maria Sandoval at her worksite and instructed her to wait after work so he could drive her home. Uruci indicated that he had something important to discuss with her. That night, Uruci told Sandoval that he had a problem with her daughter Pilar, and that she (Sandoval) needed to convince her daughter not to tell about a certain problem in the office. Uruci appeared very nervous to Sandoval at this time (T. 473-479). 23. Despite these phone calls, Ruiz went to Echevarria's office and said she "had something terrible to tell him." Ruiz then informed Echevarria that Uruci' had forced her into a sexual relationship. Echevarria "told her to stop right there, that I needed to speak to the Vice-president, alert him of what she was alleging, and whether she wanted to pursue it." Ruiz said she did want to pursue it, and Echevarria left to advise Vice President Peter Klaver (T. 2822). 24. Prior to this, but subsequent to Ruiz' telephone call the previous week, Echevarria questioned Uruci about Ruiz' allegations. According to Echevarria, Uruci admitted to having a sexual relationship with Ruiz but asserted it was consensual. Echevarria asked Uruci "how can you do this?" in view of an informal "code of conduct" which ruled out such relationships. Uruci's reply was that "it was between her and him. It was personal. It was between them, two adults (T. 2895-2897)." 25. The nature of the local office cleaning industry,-~ of which Respondent Arcade is a major employer, is that the cleaning service (generally unskilled labor) is provided to large office buildings. These buildings are mostly vacant at night, and serviced by a work force that is almost exclusively female. The first line of supervisory staff is largely male. Arcade had approximately 3,000 employees in 1988 (T. 2239, 2248, 2249, 2359). 26. The collective bargaining agreement between the association representing the employers and the union, Local 32B32J SEIU, contains a "no discrimination" clause which reads: "There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability of any individual in accordance with applicable law, national origin, sex or union membership (Rx. 6)." 27. According to Mr. Echevarria, he came to Arcade "after they had undergone a bad period where there were individuals who were selling jobs and had sexual relations with employees for jobs." As night operations manager for Arcade, Echevarria encountered employees who had "bought" their jobs. He was frequently offered money by employees, or sex, in order for the employee to "buy" their job. Echevarria denied ever accepting any such offer (T. 2601-2605, 2947, 2970, 2978).

28. Notwithstanding his asserted refusal to accept money or sex in return for employment, Echevarria did accept various gifts from Arcade cleaners. These included a tie, crystal paper weight, a jacket, cookies, cakes, and bottles of liquor. Echevarria indicated that if in his judgment the gift being offered was too expensive, he would turn it down (T. 26242626). 29. Henry Belaus, Arcade's manager of employee relations, issued a memorandum to all employees dated January 11, 1988. The topic was "sexual harassment" and it read, in pertinent part: "... all employees should be aware that the policies of Arcade prohibit sexual harassment of any employee by another employee, including but not limited to, harassment of a subordinate by a supervisor. Employees who feel that they are suffering any form of sexual harassment should discuss it first with their immediate supervisor. However, if their immediate supervisor is in any-way involved in the harassment the employee should request a meeting with the supervisor's superior. In either case, the harassment situation should be reported by management, in the strictest confidence, to Pete Klaver, Director of Equal Employment Opportunity Programs or to myself.

Alternatively, employees who feel that they are

suffering any form of sexual harassment may discuss it directly with Pete Klaver or myself.

Arcade wishes to assure all employees that any incident of sexual harassment will be fully investigated in strict confidence. Although each situation will be evaluated individually, Arcade will take whatever steps are necessary to remove sexual harassment from the working environment should it be found to exist. These steps include discipline, transfer, demotion or termination of the offending employees (Rx. 5)."

30. Prior to the writing of the above memo, Arcade had no written and disseminated policy, or guidelines, or instructions to workers and supervisors with respect to sexual harassment. At most, a policy regarding sexual harassment was "implied." As stated by Mr. Echevarria, "We were all grown men. We knew how to conduct ourselves professionally" (T. 2599, 2953). 31. In January of 1988, Mr. Belaus discussed the issue of sexual harassment in a meeting with supervisors and managers. He recalled Joe Echevarria, John Gonzalez, Namik Uruci, Murat Mela and Mike Fejzula being present. The discussion lasted approximately one hour (T. 2236-2250). Targi Aniello, a supervisor, apparently did not attend, nor did he remember ever receiving or posting the sexual harassment memo (Rx. 5) in his building (T. 2538, 2539). 32. No formal training was provided by Arcade to managers regarding sexual harassment, and the company's approach to this issue was admittedly reactive, rather than proactive (T. 2042, 2044, 2045, 2047). 33. In the absence of any written policy prior to January 11, 1988, an informal "pact" or understanding was agreed to by Mr. Echevarria, the night operations manager, and the district managers, who reported to him. This "pact" came about as a consequence of a "period where there were individuals who were selling jobs and had sexual relations with employees for jobs." Included among this group were a former night operations manager and former district managers. The pact provided "that we would not embarrass each other and we would not let anybody else who came into the department embarrass us or the department." the pact specifically renounced the selling of jobs, asking for -sexual favors, putting anybody in a compromising position, and required everyone to be treated equally in accordance with the rules (T. 2600-2604). 34. Henry Belaus, manager of employee relations was aware of this pact. Dean Qira brought it to his attention in either 1986 or 1987. Belaus replied "That's good. We don't have any problems here in that regard, do we?" Qira replied "Absolutely not." Echevarria and Uruci were present during this conversation. Belaus apparently found it unnecessary to inquire further (T. 2329-2334). Belaus indicated that the entire industry was rife with charges of selling jobs for money and sex, and that both managers and subordinates were well aware of it (T. 2373-2389).

35. Namik Uruci had the authority as a district manager to affect the workload of an employee, to take disciplinary action for various reasons, and to fire an employee for infractions such as fighting, theft and insubordination (T. 2885, 2886). 36. Joe Echevarria brought Ruiz' complaint to Peter Klaver, (then) Vice President of Human Resources. Klaver indicated that he wanted to talk to Ruiz, and was told by Echevarria that she only spoke Spanish. Echevarria appointed Sonia Somarriba, an administrative assistant, to act as translator. Somarriba was told that the reason for the meeting was that "an allegation (had been) made against Uruci and Peter Klaver wanted to know what was the problem at that point." Somarriba was already acquainted with both Uruci and Ruiz. In reply to Klaver's questions such as "What was the problem?" and "How was he bothering you?" Ruiz did not recount all of the details previously given to Echevarria. She did, however, state that Uruci would go to her building and pick her up, but she "did not want to get in the car" (T. 1967-1969, 2007-2009). 37. Klaver informed Thomas Calderone, (then) Vice President of Operations about the Ruiz complaint and his conversation with her. Klaver indicated that in his meeting with Ruiz, she did not volunteer any information and was very apprehensive. Within the next two days, Calderone met with Ruiz in his office, again with an assistant acting as translator. At this meeting, Ruiz specifically stated that Uruci was forcing her to have sex with him (T. 2134-2138).

38. Within the next two days, Klaver and Calderone brought Uruci in to question him about the allegations. Uruci admitted having a sexual relationship with Ruiz but denied using force. After conferring with Arcade President Bob Ward, it was determined that Uruci would be given a chance to resign, or else face termination. Uruci chose to resign. Calderone noted in Uruci's personnel records that he was not eligible to be rehired (T. 2139-2144, 2169-2172). 39. Anna Zietek is a former office cleaner for National Cleaning Company, Namik Uruci's employer subsequent to his leaving Arcade. Uruci was Zietek's supervisor. One month after starting work, Uruci offered Zietek a ride home at the end of her shift, at approximately 12:30 a.m. After getting into the car, Uruci exposed his genitals, asked Zietek "to touch him" and pointing to a gun in the back seat, said "Look what is behind you." Uruci told Zietek that if she was quiet and did as he asked, she could get a "better job and good atmosphere" at work, but if she caused trouble, she could lose her life. Zietek jumped out of the car. Because she was afraid and needed her job, she did not report this incident. Subsequently, Uruci repeatedly asked her for sex with the understanding that he could make her job easier (T. 3230-3235, 3255-3261, 3263, 3264, 3268, 3269). 40. An unidentified investigator placed the following hand written notation, dated May 23, 1989, into the Commission's file regarding the Ruiz complaint: "Frank Ortiz has informed with that

(sic) there is a warrant being issued to Namik Uruci for first degree rape (Jx. 5)."

41. At one point, when Ruiz' worksite (building) was about to be reassigned to another cleaning company, Uruci arranged for her to be transferred to another building serviced by Arcade, and therefore continue to be under his supervision. As a union member, Ruiz could have remained at the worksite as the employee of another company, pursuant to the collective bargaining agreement. Therefore, had Ruiz not been transferred, she would no longer have been supervised by Uruci or subject to his intimidation and quid pro quo sexual harassment (T. 1775-1777). 42. Ruiz met her future husband at the age of 15, in Columbia. He was 25 years older than she was (T. 227, 386, 387). Shortly thereafter, he forced her to have sex with other men and women, and describe the experiences to him (T. 257-259, 418, 419, 427). He also attempted to rape her sister, causing Ruiz to attempt suicide at the age of seventeen (T. 249, 250, 387). 43. After their arrival in the United States, Ruiz continued to suffer both verbal and physical abuse from her husband. This included death threats, and a chronic drinking problem. On one occasion, after he had moved out of their home, he had her furniture removed (T. 127, 227-229, 232-237). He also began to sexually abuse their daughter (T. 46, 48, 171, 389-392). Nevertheless, the husband sought custody or visitation rights relative to the child (T. 239, 240, 392, 393, 396, 397). 44. In February of 1988, continuing to feel threatened by her husband, Ruiz obtained an order of protection against him (T. 432-434). 45. At Arcade, Ruiz was never given information or guidance on how a complaint regarding sexual harassment should be brought within the company (T. 113). 46. Dr. Capello prescribed anti-depressants for Ruiz. He noted that she complained about being very depressed, very anxious, having headaches and an inability to sleep. He also noted that Ruiz said these problems began when she started working at Arcade. Upon further inquiry, Ruiz told Dr. Capello that her depression stemmed from sexual abuse that had been forced upon her at work (T. 2640, 2650-2654; Cx. 6). 47. At one point, Dr. Capello noted that Ruiz' anxiety, depression, lack of appetite and lack of sleep was such that "she really wasn't functioning as a human being" (T. 2657). 48. Ruiz suffered "flashbacks" about being sexually assaulted, and Dr. Capello diagnosed her as suffering from post traumatic stress disorder due to the incidents she described at work. Dr. Capello specifically did not attribute the post traumatic stress disorder to Ruiz' husband threatening to kidnap their child (T. 2670-2675, 2701, 2708; Rx. 4). 49. Ruiz was ultimately discharged in March of 1989 after using a tenant telephone to call police in a non-emergency. She subsequently filed a grievance and returned to work pending the outcome. She thereafter left her employment, voluntarily, in June of 1989 (T. 1798).

B. Complaint of Maria Sandoval

1. Complainant Maria Sandoval came to this country with her daughter, Complainant Luz Pilar Ruiz, and granddaughter Cathy, in 1986 (T. 464). 2. Sandoval worked as an office cleaner for Arcade from July 5 to September 15, 1988. Sandoval's shift ran from 4:45 p.m. to 10:30 p.m. and included several different locations (office buildings) in Manhattan (T. 466-470, 529). 3. Sandoval was hired as a replacement cleaner, filling in for employees on vacation (1742, 1748, 1954; Hx. 3, Jx. 23). The collective bargaining agreement specifies the normal vacation period as April 1 to September 15 (T. 1715; Rx. 6). 4. During her first or second week of employment, supervisors came to Sandoval's worksite to inspect her work. The supervisors found excessive dirt and were very critical of her cleaning (T. 559-563). 5. On or about September 15, Jose Echevarria informed Sandoval that as the regular employees had returned from vacation, there was no more work for her. A notation was made in her file to the effect that she was a slow worker (T. 585-588, 597, 2328). 6. A limited number of "vacation replacement" employees are kept on at the end of the vacation season (T. 1743-1745). 7. Wishing to continue working at Arcade, Sandoval called the office periodically to ask whether any work was available.

Although unable generally to get through to Echevarria, she was advised to keep trying (T. 585, 586). Sandoval eventually came to the Arcade office to fill out an application, but was finally told that she was not eligible for rehire due to her work performance (T. 625, 1955). 8. Sandoval testified that Echevarria once questioned how she could expect to be employed again, "knowing that my daughter had brought a lawsuit against the company." However, she apparently did not mention this alleged remark to a Commission investigator on July 21, 1989, nor is it found in her formal complaint (T. 492; Hx. 3; Jx. 23).

C. Complaint of Josefina Hernandez

1. Complainant Josefina Hernandez came to the United States from the Dominican Republic on or about August 16, 1981, at the age of 20. She left behind two children less than two years old, whom to this day she sees rarely. As a child, she suffered physical abuse from her father, who on one occasion threw her against a wall, causing injury to her head. Her formal education ended at the eighth grade. Her first jobs upon arriving in the United States were as a waitress, supermarket cashier and manicurist (T. 642-648, 797, 823, 825, 826, 830, 1053-1055). 2. Approximately seven years later, in June of 1988, Hernandez met Jose Echevarria at the Copacabana nightclub in Manhattan. They danced and spoke, and Echevarria invited Hernandez to apply for a job with Arcade. Hernandez had indicated that she was not working at the time. Three days later, Hernandez went to the offices of Arcade and was hired as an office cleaner (T. 648-651). Her first assignment was replacing someone who was out on disability. Subsequently, she filled in for an employee who was on vacation (T. 845, 846, 852). 3. One week later, according to Hernandez, she went to see Echevarria "Because a girl had told me that in order to get a permanent status at the job, I needed to buy it." Hernandez asked Echevarria if this was so, and according to her, he replied "Well, this doesn't apply to you. As long as you behave well with me, you don't have to buy it" (T. 655). 4. That night, at Echevarria's invitation, Hernandez accompanied him to the Copacabana after work. They sat at a table, talked, danced, then Echevarria drove her home. Hernandez testified that she was "nervous" (T. 659-665). 5. Soon after this, Hernandez again met Echevarria after work. According to Hernandez, she received a message from her supervisor that Echevarria called and requested that she meet him. They drove to the Copacabana, but were unable to get in because the line was too long. Echevarria then drove Hernandez home (T. 666-671, 868, 869). 6. About a week later, according to Hernandez, she again received a message from Echevarria, through her supervisor, to meet Echevarria after work. When she met him, he said it was his birthday and they would go to the Paladium, another Manhattan nightclub. They were joined at the Paladium by several friends of Echevarria, and they danced. According to Hernandez, she went to the Paladium with him "Because he had told me that I needed to behave well with him, and that's what I was doing, behaving well with him so that I wouldn't lose my job." However, Hernandez also testified that she did not have a good time that evening because Echevarria was not paying enough attention to her: "He was chatting with his friends in English, I was standing there just looking. . . I wasn't feeling well because I was just standing there. Is this what he invited me here for, to be standing here?" Echevarria drove her home. About a week later, Hernandez gave Echevarria a tie as a birthday gift (T. 671-675, 886-890, 1084, 1093, 1094). 7. Two days later, Echevarria called Hernandez at home to take her to a movie. According to Hernandez, the two later returned to his apartment where "he offered a glass of wine to me" and they subsequently "had sex." According to Hernandez, she "felt bad, terrible" because she "had to have sex with him" against her wishes, and "would rather buy my job then (have) sex with him." Asked by Bureau Counsel why she did not buy her job, Hernandez testified "Because he never said this to me. Had he said it, would have bought my job (T. 671-678, 893)." According to Hernandez, she then took a shower and told Echevarria that she wanted to go home. He took her home (T. 686, 687, 689). 8. About a week later, according to Hernandez, Echevarria came to her work location to tell her he wanted to go out with her the following day. When they subsequently got together, according to Hernandez, they went to his apartment. There Echevarria allegedly commented about her having a lot of hair on her vagina, and proceeded to shave Hernandez with his electric razor. Asked by Bureau Counsel why she let him do that, Hernandez replied "because I needed to be nice to him so he wouldn't fire me." Hernandez testified that she spent the night at his apartment having sex with Echevarria, and that he talked of making her a "forelady" at the company. The next day, according to Hernandez, they went out for lunch and then Echevarria drove her home (T. 690-701). 9. Hernandez testified regarding a subsequent, undated encounter. She stated that Echevarria came to her work location with Dean Qira, and told her of a complaint supposedly made about her cleaning, followed by his asking her out again. This was after her transfer to 520 Madison. Hernandez testified that Echevarria took her out to dinner. Afterwards, they stopped at a video store where Echevarria rented a movie, before proceeding to his apartment. Once there, they drank some wine and watched the (as described by Hernandez) "very dirty movie." Hernandez asserted that she did not want to watch the movie, so "When we started having sex, I turned the TV off." She also testified, in response to the question "How did you feel during this encounter?" (by Bureau Counsel) by saying "Embarrassed, terrible. I would ask him to turn the lights off because I was embarrassed that -- he could leave the TV on, but at least turn the lights off" (T. 707-715). During her two to three months of work at the 520 Madison location, Hernandez went out with Echevarria just on this one occasion. In fact, this was the last time they went out together (T. 927-932, 1084, 1085). 10. The frequency of these "dates" apparently slowed, as

Hernandez testified ". . . when I first started working there when I was at 730, we used to go out more frequently than later on when I was transferred to 520 Madison" (T. 925). Hernandez testified that she went to Echevarria's apartment approximately 7 to 10 times. She could not, however, recall what floor his apartment was located on (T. 913). 11. Notwithstanding her assertion that she felt "bad, terrible" about her alleged involuntary relationship, Hernandez went to Echevarria to complain about a paycheck discrepancy and seek his help (T. 904, 905, 908, 909). In addition, she sought out Echevarria to ask him to get jobs for various friends and relatives (T. 1055-1057). 12. Several months later, Hernandez went to Echevarria's office. She gave him a gift wrapped bible, and told him about a dream she had of her father. In her dream, her father told her that Echevarria "had killed a woman and to look in the book for the proof." The next time Hernandez saw Echevarria was months later when she went to complain to him about her subsequent supervisor Jay Gonzalez (T. 720-725, 933936, 1083, 1084). 13. Approximately one or two months later, Hernandez was suspended for three days for wearing sneakers, although she "would see these Yugoslav women going to work in sneakers, and they wouldn't get laid off. Just me." Hernandez could not recall who her supervisor was that imposed the suspension. Hernandez had indicated to Investigator Maldonado that she was not aware of any such rule. However, her signature appears on a list of Arcade employee rules, written in Spanish (T. 729, 945; Jx. 8, 20).

14. Sometime after returning to work, Hernandez received a telephone call from an Arcade supervisor directing her to report to a work assignment at 23rd Street and Sixth Avenue. The supervisor, whom she later met, was Respondent Jay Gonzalez Hernandez remained at this location for approximately a month to a month and a half (T. 730-734). 15. As the company's contract was completed for the above location, Hernandez was next assigned to the building at 1290 Avenue of the Americas. Her supervisor continued to be Respondent Gonzalez. At this point, according to Hernandez, Mr. Gonzalez began to ask Hernandez to go out with him. He also allegedly "made a comment about (Hernandez) having nice breasts." Hernandez replied, "Why? Did you see them?" Gonzalez indicated that he watched Hernandez as she worked, bent over, picking up garbage. This conversation allegedly took place about a week and three days after Hernandez began her assignment at 1290 (T. 735739). 16. About a week later, Mr. Gonzalez again appeared on Hernandez' floor in the middle of her shift. He asked her to go to Miami with him for the weekend. She said no (T. 741-743). Hernandez testified that she did not take this "request" seriously (T. 975). 17. About four or five days later, Gonzalez again came to Hernandez' floor when she was alone, and again asked her to go to Miami with him. Hernandez "told him in a bad manner, 'No, I don't want to go. I don't want to go. I'm working now."' Gonzalez told her that she "would get to know lots of nice places, that Miami was very nice, that everything would go well." Hernandez replied that she did not wish to go. Asked by Bureau Counsel why she didn't want to go with Gonzalez to Miami, Hernandez testified "I didn't want the same thing that happened with Joe Echevarria to happen again with him." Asked by Counsel what she meant, Hernandez testified "That he was going to use me just exactly like Joe Echevarria had used me" (T. 744-746). 18. Although her work had not previously been criticized, (not including the verbal report of a complaint she received from Echevarria and Dean Qira at 520 Madison) after she refused his Miami invitation Gonzalez became critical of Hernandez' work. According to Hernandez, Gonzalez then retaliated against her by reassigning her to another floor, reducing her hours from eight to "six hours, seven hours, like that, six hours, seven hours, seven and a half hours," and removing her "permanent" employee status. This occurred in April of 1989 (T. 746-748). 19. Approximately eight days later, on or about April 27, Hernandez stopped working as she became ill. She suffered what she terms a "nervous breakdown" when Gonzalez came to her floor "about four times to pressure me with very strong terms to do my job very quickly." An elevator operator found Hernandez very ill, nervous, crying and vomiting. An unidentified Arcade employee called an ambulance. The last thing Hernandez recalled at 1290 Sixth Avenue that night was "this woman who wanted to go in the ambulance with me," whom Hernandez could identify only as "Columbian." Hernandez did not want her in the ambulance. Asked by Counsel why she did not want her, Hernandez testified "Because at the time she put me to work with Gonzalez, she gave me a soda she said 'the soda is hot, go look for some ice in the refrigerator.' So when I went to the freezer to get some ice, I noticed that she poured something in my cup" (T. 749, 750, 757767). 20. Hernandez was taken to a hospital at 59th Street and Ninth Avenue, where she was attended to and remained for between one and two hours. The emergency room doctor asked her to wait so he could take her home. As to what had taken place, the doctor informed Hernandez that it was "a panic attack, nervous. He referred me to another hospital, but I didn't go" (T. 768, 970). 21. The next day, Hernandez went to Arcade's main office. She spoke to Joe Echevarria and "told him everything that had happened at 1290." She also gave him a document that she received at the hospital, though she could not understand it as it was written in English. Echevarria told her "I'm going to see what I can do." Although Hernandez "told them that I couldn't work because I was. . . pretty ill," she in fact "went back to work the following day." Upon her return to 1290, she was informed by Gonzalez that she had been reassigned to "the route," which is filling in for other cleaners at various locations (T. 769-771). 22. Prior to being transferred from building 1290, Hernandez met with Arcade's CEO, a Mr. Ash. This meeting came about when Hernandez shared her experiences with an unidentified patron at a restaurant located at 1290. This person spoke to-the; son of the restaurant owner, who in turn apparently contacted Mr. Ash. Using this unidentified restaurant patron as an interpreter, Hernandez "told what was happening to me, what Gonzalez was doing to me. . . the way he was pressuring me, that he had stripped me of my permanent job because I refused to go with him to Miami. I told him that I was very ill at the job and that Gonzalez refused to call an ambulance." Significantly, Hernandez then further testified:

Q. Did you tell (Mr. Ash) about anything that you have related to us in testimony about Mr. Echevarria? A. No, other than when he asked me, "Who put you to work in the company," and I said, "Joe Echevarria." Q. Why didn't you tell him? A. I don't know. (T. 774-778, 1047) 23. Mr. Ash "said that he would solve my problem, that I could go tranquil to work" (T. 780). 24. The next day, Hernandez reported to the Arcade office. Henry Belaus and Joe Echevarria were there, and informed Hernandez verbally and in writing that she had been granted "permanent" status at a new location, 375 Hudson. Both Belaus and Echevarria had become aware of Hernandez' meeting with Mr. Ash, as they asked her about the meeting. These conversations took place approximately in the beginning of May, 1989 (T. 785788, 1006-1009). 25. After about a month in her new assignment, Hernandez went out on disability because she was feeling very ill. She was under the care of Dr. Balta, a psychiatrist, since her illness at

1290 Sixth Avenue earlier that spring. Hernandez testified with respect to her symptoms: "I was having all these nightmares, I was very nervous, I could leave my keys somewhere and forget where I had left them. . . I couldn't sleep at night, I would cry a lot. I would go to work in fear." Asked why she went to work in fear, Hernandez attributed her fear to her supervisor, "Milenia" who she said pressured her with respect to her cleaning (T. 789-792). 26. Hernandez first went to the Human Rights Commission approximately in May of 1989, and spoke with Nilda Maldonado. Hernandez testified that she "told (Maldonado) about what happened to me with Gonzalez and what happened to me with Joe Echevarria" and that she was afraid of Echevarria. She specifically testified that she never loved Joe Echevarria, never told anyone that she loved him, that at no time was her relationship with him a voluntary one, that she never went out with him because she liked him, and never told anyone that she liked him (T. 793-797, 881, 882, 1090, 1099; Jx. 6, 7). 27. According to the notes of Commission Intake Supervisor Nilda Maldonado, Hernandez "agreed to his (Echevarria) invitation (to go to the Copacabana) because she thought that this was just a friendly friendship." The notes further indicate that Hernandez "stated that in or about November 1988 Mr. Echevarria broke the relationship with her." The notes further indicate that Hernandez "stated at the beginning she started the relationship with Echevarria because she felt that having sex with him was the condition to hold her job. She stated that she wanted to admit that shortly after the relationship she fell in love with Echevarria" (Jx. 8). 28. According to the notes taken by an unidentified Commission investigator, Hernandez stated that she went out with Echevarria "because she liked him" (Jx. 2). Hernandez testified that she does not recall telling either Nilda Maldonado or Marlin Segarra, Commission staff, that she went out with Echevarria because she loved him or even liked him (T. 903, 904). 29. In her complaint dated June 6, 1989, Hernandez states in part:

Shortly after I was hired, Respondent Echevarria began to asked (sic) me out to dinner and to the movies. *** At the beginning I accepted Respondent Echevarria's invitations because I thought he was offering me a friendship without and (sic) intimate interest. Subsequently I felt that my job was a condition of the relationship. Then, our relationship became a mutual volunteer relationship. * * * In or about November 1988 Respondent Echevarria ended our relationship. I don't have any knowledge as to why Respondent Echevarria made this determination (Hx. 2).

30. In her amended complaint dated October 19, 1989, Hernandez states in part:

Shortly after I was hired Respondent Echevarria began to ask me out to the movies and to dinner. Respondent Echevarria told me that if I got involved in a sexual relationship with him he would promote me to floor lady. I felt that being involved in a sexual relationship with Respondent Echevarria was a condition of my employment. Based upon this, I became involved in a sexual relationship with Respondent Echevarria (Hx. 2A).

31. Hernandez testified that she did enjoy the dinner, show and movie that Echevarria took her to on one occasion (T. 900, 901). In addition, though she testified at the hearing to feeling "bad, terrible" and "nervous" regarding Echevarria, at her deposition she conceded having had a "good time" with him on their first Copacabana "date" (T. 859-862). 32. At the Commission, prior to the signing and filing of the complaint, Nilda Maldonado read the complaint to Hernandez, in Spanish, and explained the meaning and significance of each part (T. 1079-1082). 33. Notwithstanding Hernandez' testimony regarding Gonzalez having made comments to her about her breasts, no mention of any such remark is found in any of the notes of Commission investigators. Nor is such a remark found in either the original or amended complaints. Hernandez testified that she believes that she did tell Nilda Maldonado about this conversation, but does not recall if she told Marlin Segarra. However, Hernandez testified that she always wore her uniform buttoned to the top (neck), thereby making it seemingly difficult for lecherous eyes to gaze where they are unwelcome (T. 973-97-5; Hx. 2, 2A; Jx. 2, 8). 34. Notwithstanding Hernandez' testimony regarding Respondent Echevarria's alleged "behave well with me" comment, no mention of such a remark is found in any of the notes of Commission investigators. Nor is such a comment found in either the original or amended complaints (Hx. 2, 2A; Jx. 2, 8). 35. Milena Djordjevic was a cleaning supervisor for Arcade at 375 Hudson Street during the time that Hernandez was assigned to that location. On October 12, 1989, she verbally warned Hernandez about her excessive absenteeism. On November 21, 1989, Milena gave Hernandez a written warning reciting 13 absences including Mondays and Fridays. The absences cited did not include any time during which Hernandez was out on disability (T. 1310-1314, 1321-1324; Jx. 20). 36. On February 26, 1990, Hernandez received another written warning about excessive absenteeism, this time citing 9 additional absences taken (T. 1325, 1326; Jx. 20). 37. After repeated complaints about poor (or no) cleaning by Hernandez, lodged by the Arcade customer occupying the space to which Hernandez was assigned, Arcade supervisor Murat Mela made an on-site inspection. This inspection found Hernandez' cleaning to be deficient, with Hernandez refusing to perform various required tasks. This occurred in the winter/early spring of 1990. Mela fired Hernandez for refusing to perform her assigned work. On March 16, 1990, after Hernandez had filed a grievance with the union over her termination, she agreed to a settlement of her grievance which converted her termination into a 4-day suspension without pay (T. 1034-1037; Jx. 20). 38. On April 27, 1990, Milena again issued a written warning to Hernandez regarding the poor quality of her work (T. 1038, 1335, 1336; Jx. 20). 39. In November, 1990, numerous additional complaints were received regarding Hernandez' cleaning. She received another written warning and was ultimately terminated on November 27, 1990 (T. 800-805, 1039-1044, 1337-1343; Jx. 20).

II.

ANALYSIS OF EVIDENCE AND CONCLUSIONS OF LAW

A. Complaint of Luz Pilar Ruiz 1. Liability of Respondent Namik Uruci

The Administrative Code of the City of New York (hereinafter "Code") prohibits an employer from discriminating against an employee in the terms or conditions of employment because of one's sex.3Sexual harassment (for the purpose of this

3 The relevant portion of the former Code, Section 8-107(1)(a), which applies to this case because of the dates of the alleged unlawful conduct, provides: "It shall be an unlawful discriminatory practice. . . (for) an employer, because of the. . . sex of any individual. . . to discriminate against such particular complaint, quid pro quo sexual harassment) is included within the definition of prohibited conduct. This particular form of sexual harassment is demonstrated when submission to or rejection of unwelcome sexual conduct by an individual is used as a basis for employment decisions affecting such individual. Karibian v. Columbia University. et al., 14 F.3d 773 (2d Cir. 1994), cert. denied, 114 S.Ct. 2693 (1994). The most obvious employment "decision" conditioned upon submission to sexual conduct is either termination, or retention of one's employment.

Showalter v. Allison Reed Group Inc., 767 F. Supp. 1205 (D.R.I. 1991). In order to prevail on a quid pro quo theory a complainant must prove, by a preponderance of the evidence, that she was subjected to unwelcome sexual harassment and that her submission thereto was made a condition of employment, or affected a term or privilege of employment. Meritor Savinas Bank v. Vinson, 477 U.S. 57 (1g86); Sparks v. Pilot Freight Carriers, 830 F.2d 1584 (11th Cir. 1987); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1986). The threshold question to be resolved in this analysis is whether or not Complainant Ruiz' testimony was credible. It was. Ruiz' testimony was in fact corroborated by other witnesses. Her mother and Miriam Mendoza both testified to Respondent Uruci's presence in their apartment. Uruci denied ever being there. Former company Vice President Thomas Calderone indicated that Uruci had admitted to having a sexual relationship with Ruiz

individual. . . in the terms, conditions or privileges of employment." which he termed consensual. Virtually all of Arcade Management apparently believed Ruiz' complaint. Henry Belaus, Manager of Employee Relations, testified that it was "unusual" that Ruiz was transferred, and that he doesn't know why it happened. The strong inference is that Uruci engineered it in order to retain supervisory authority over Ruiz and continue his unlawful sexual conduct. After Ruiz complained to the company about Uruci, Belaus felt it was best to terminate Uruci. He obviously believed Ruiz. Peter Klaver, former Vice President of Human Resources, also apparently believed Ruiz. Klaver was aware that Calderone believed that Ruiz had been physically threatened. It was Klaver who ultimately decided to terminate Uruci. Night Operations Manager Echevarria agreed with this decision. Uruci, notwithstanding the testimony of Calderone, denied ever having any sexual relationship with Ruiz. Uruci's testimony was wholly incredible. He denied having admitted to company management his sexual conduct toward Ruiz. He denied ever discussing the problems of job selling, or sexual relationships with employees, notwithstanding Echevarria's testimony regarding the pact not to embarrass the company. He denied ever meeting Miriam Mendoza, who was Ruiz' roommate and identified him as being at their apartment. He denied changing a lock on Ruiz' door despite the testimony of Ruiz, her mother and Mendoza. He denied being fired from Arcade, despite the testimony of every company executive.

In an effort to establish an "alibi" of sorts, Mirjana Mirjanic testified on Uruci's behalf. She was a cleaner for Arcade, and a friend of Uruci. Her parents in fact were friends of Uruci before he came to this country from Yugoslavia. Mirjanic testified that she frequently used Uruci's car. She also testified that she picked him up "every day" after work, but conceded that there were exceptions to this routine (T. 3027). Hence, counsel suggests that Ruiz' testimony about Uruci forcing her to ride home with him on two occasions, should be disbelieved. I conclude otherwise. First, by Mirjanic's own testimony, she did not literally drive him home every night after work. Second, on cross-examination Mirjanic admitted that Uruci owned more than one car, a matter upon which Uruci's own subsequent testimony was very evasive. Clearly, even without considering whether Mirjanic's family friendship with Uruci would render her testimony suspect, it is obvious that her testimony cannot preclude Ruiz' allegations. Finally, there was the testimony of Anna Zietek, a cleaner supervised by Uruci some years later. Zietek testified that Uruci used the same late night, car ride home modus operandi in attempting to extract sexual favors from her. She was subsequently fired, by Uruci, assertedly for poor cleaning. She admitted that she was angry about this, and when she learned of the instant proceeding sought out Complainant's Counsel. Respondent suggests that her damaging testimony is motivated by revenge. While I would acknowledge that possibility, I nevertheless conclude that Zietek was a credible witness. Her testimony bolsters Complainant's, because it independently establishes Uruci's propensity to engage in a certain pattern of conduct. Respondents argue alternatively that even if Uruci had a sexual relationship with Ruiz, it was consensual. Counsel points to differences between the testimony of Ruiz and Mendoza regarding an incident with Uruci at their apartment. Counsel further suggests that Ruiz sought out Uruci as a means of gaining protection from her abusive husband, and points to the incident where Uruci changed the lock on Ruiz' apartment door. Counsel argues that this suggests that their relationship was consensual. If so, why would Uruci deny it? In any event, the more logical conclusion is that after one attempted rape, one rape at gunpoint, and a viable threat of both physical violence and the loss of her job, Ruiz felt that she had no means to resist the unwelcome attacks. Ruiz' testimony on this was clear, credible and unwavering. Uruci "used" her whenever he wanted. I am satisfied that Uruci did rape Ruiz and by threat of violence or loss of job, coerced her into submitting to his sexual demands on several occasions. The incident with the lock, coming as it did months after the incidents in the car, further illustrates the extent of Ruiz' victimization. Submission to sexual demands as testified to by Ruiz, under threats of physical violence, loss of one's job, and displaying a gun constitute conduct which the Penal Law of this state labels rape, coercion and sexual abuse. In Gilardi v. Schroeder, 833 F.2d 1226 (7th Cir. 1987) the Court approvingly noted the reference to the applicable state (Illinois) penal provisions in assessing defendant's conduct. [See also Hicks v. Gates Rubber Co., 833-F.2d 1406 (1Oth Cir. 1987)] Such conduct, whether or not the subject of a criminal prosecution, by definition establishes the basis for a finding of quid pro quo sexual harassment. Meritor, supra . As the evidence is overwhelming that Uruci's sexual advances were unwelcome, and inasmuch as he threatened Ruiz with the loss of her job, his conduct must be found to be unlawful under the Administrative Code's Human Rights provisions.

2. Liability of Respondent Arcade The next inquiry focuses on the potential liability of the corporate Respondent, Arcade. The general rule, recently reaffirmed in this Circuit, is that since "the quid pro quo harasser, by definition, wields the employer's authority to alter the terms and conditions of employment - either actually or apparently (emphasis added) - the law imposes strict liability on the employer for quid pro quo harassment." Karibian, supra, citing Kotcher v. Rosa & Sullivan Appliance Center. Inc., 957 F.2d 59 (2d Cir. 1992) and Carrero v. New York City Housing Authority 890 F.2d 569 (2d Cir. 1989). Respondent Arcade urges, in the event of a finding of sexual harassment against Uruci, several grounds for not finding the corporate employer liable. First, it is suggested that "an employer cannot be held liable for the criminal conduct of its employees outside the workplace. "4It is not contested that the

4 Respondent Arcade's Memorandum of Law, p. 48, citing Banque Worms v. Luis A. Duque Pena E. Hijos, LTDA., 652 F. Supp. 770 (S.D.N.Y. 1986). harassment complained of, attributable to Uruci, took place offsite and not during working hours.5 However, the seemingly sweeping principle urged by the company is in reality the District Court's interpretation of the "RICO" statute 6regarding the liability of an innocent corporation for damages as a consequence of employee fraud. In the cited case, a bank which had been defrauded of $8 million by a shipping corporation employee, sought recovery from the corporation. The Court found that where the fraudulent acts of the employee were not authorized, and corporate officials neither knew of nor benefited from the fraudulent acts, the corporation was not liable for the banks losses. A major difference between that case and a quid pro quo sexual harassment case is the purpose of the respective statutes, as interpreted in the case law. As the District Court held in Banque Worms concerning employee fraud:

The notion that a corporation should be vicariously responsible under RICO for the independent fraudulent acts of one of its employees is a rather startling one. By its plain terms, RICO only imposes liability on corporations that benefit from the racketeering activity. Indeed, the initial intent of the statute was to protect corporations from criminal infiltration, not to make

5 Although the incident involving an unidentified person in an elevator, and the Fejzula assault, both occurred on the job site and during the work shift.

them the responsible parties .7 (emphasis in original) However, in the quid pro quo sexual harassment context, the only relevant inquiry is: whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances. (emphasis added) Karibian, supra. Hence, it is obvious that the strict liability standard, while not applicable in a RICO case, applies to the Ruiz complaint. Unlike the RICO context, Title VII of the Civil Rights Act of 1964 purposely imposes strict liability in order to compel corporate behavior sufficient to preclude the unlawful conduct. Therefore, Arcade's position that Ruiz' failure to report her complaint sooner than she did precludes corporate liability, is not supported by precedent. Even if we were to examine Ruiz' actions, we could not find them unreasonable per se. True, both Ruiz, the company, and perhaps other employees would have been better served by a more swift complaint on the part of Ruiz. However, the circumstances within the company itself caused Ruiz to act with trepidation. First, there was the permissive and pervasive culture of job selling for sex and money during the company's not too recent past. Second, no formal sexual harassment policy existed until January of 1988, after some of the most horrific attacks had

6 6 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961-1968 (1982 & Supp. III 1985). 7 7 652 F.Supp. at 772. already been visited upon Complainant. In addition, the policy itself was not written in any language other than English, although many of the cleaning staff understood little of the language. Lastly, the evidence indicates that the policy was not universally distributed and posted. The company also was deficient in its training of management. While the testimony was in some conflict over the extent of seminars attended or discussions during staff meetings, the most revealing testimony came from Night Operations Manager Echevarria. A high ranking supervisor with several years of management experience, Echevarria nevertheless felt that he could not further pursue a serious complaint of sexual assault by a subordinate, when he found that subordinate to be "malingering." Echevarria's failure to consider Ruiz' complaint against Fejzula, "because it was her word against his" and because both Echevarria and Fejzula had found her sitting when she should have been working, sends the clearest message possible: that the company was completely oblivious and insensitive to sexual assaults on its cleaning women. Finally, the company argues that it took swift action once Ruiz complained about Uruci. Therefore, urges counsel, "it may not be charged with discrimination." 8The cases cited by counsel all apply to hostile work environment cases rather than quid pro quo harassment cases. An employer may be held liable for quid pro quo sexual harassment by a supervisor, even where a lack of employer knowledge would defeat a hostile work environment

8 Respondent's brief, page 50. harassment claim. Nichols v. Frank, 732 F. Supp. 1085 (D.Or. 1990). Hence, the "swift action" principle or lack of notice defense is not relevant to the Ruiz complaint. The company's remaining argument against a finding of liability on its part is that Ruiz "did not have the proper legal authorization to work at the time she applied" and had Arcade known this, "she would not have been offered employment."9This theory, now known as the "after-acquired evidence" doctrine has found acceptance in varying degree in several Federal circuits. For a number of reasons, I find this doctrine inapplicable to the Ruiz complaint. The company did not clearly establish that Ruiz was ineligible to be employed, nor did it establish that the company, even with such knowledge, would not have hired her. Her testimony that she did not have a "Green Card" upon commencing her employment (T. 3305) does not preclude her from having had authorization to work. Further, there was evidence that supervisors engaged in the practice of assisting employees to obtain work-related documents - valid or otherwise. Hence, notwithstanding the federal proscription on hiring undocumented workers,10the company's "vigilance" in this area is unresolved. In East Texas Motor Freight Systems v. Rodriquez, 431 U.S. 395 (1977), the Supreme Court noted that an employee whose lack of qualifications would have precluded his hiring, might not,

9 Id., P. 53. 10 See Section 274(a) of the Immigration Reform and Control Act ("IRCA"), which provides for employer sanctions such as fines for the hiring of undocumented workers.

upon subsequent termination, suffer any Title VII injury. Subsequent federal court decisions have analyzed what has come to be known as resume or application fraud, as a defense to a charge of discriminatory discharge. In Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (1Oth Cir. 1988), the Court concluded that an employer will prevail if it can show that it knew of the fraud at or before the time it terminated the employee in question. In Agbor v. Mountain Fuel Supply Company, 81 O F. SUPP. 1 247 (D. Utah 1993), the Plaintiff expressly stated on his employment application that he was a United States citizen. In reality, he was not a citizen, and lacked work authorization. Upon his subsequent termination, he brought a Title VII action alleging discrimination based on race and national origin. The court granted the employer's motion for summary judgment: It is, therefore, unnecessary for the employer to prove whether the employee intended to misrepresent himself on the job application if the employer demonstrates that it would not have hired the employee if it had known the employee's true status. . . (the employer) has an established policy not to hire non-citizen job applicants without valid work authorization from the United States Immigration Service. . . (and) established this policy to ensure compliance with federal immigration law. . . . It is clear that citizenship status, or proper work authorization, is a material element of (their) employment decisions.11 Clearly, in the case at bar, citizenship status was not demonstrated to be a material element of Arcade's employment decisions. In Summers, supra, the Court further reasoned that no injury is suffered by a hypothetically terminated "doctor" for reasons of age, race, religion and sex when, in fact, the employee was not really a "doctor" and hence not qualified for the position

formerly held in any event.12 In Wallace v. Dunn Construction, 968 F.2d 1174 (11th Cir. 1992) the Eleventh Circuit was not persuaded that "no injury" could be suffered by a claimant under similar circumstances. However, the Court did indicate that such application fraud could preclude certain remedies such as back pay and reinstatement.

Our own Second Circuit has yet to announce its view of the "after-acquired" evidence doctrine. However, the Southern District has specifically rejected the argument that the doctrine would operate as a complete bar to recovery. Moodie v. Federal Reserve Bank of New York, 831 F.Supp. 333 (S.D.N.Y. 1993), reargument denied 835 F.Supp. 751. Citing Moodie, our Appellate Division, First Department, also has precluded such a sweeping, automatic protection from potential liability based on "after- acquired" evidence. Reinach v. Wisehart, _ A.D.2d N.Y.S.2d

(NYLJ, 11-25-94, p.26 colt 5).

11 11 810 F. SUPP. at 1253. The Supreme Court heard arguments on November 2, 1994 in McKennon v. Nashville Banner, No. 93-1543, an appeal from a Sixth Circuit ruling which held the after-acquired evidence doctrine to be a complete bar to recovery. In the absence of such authoritative guidance, I would decline to apply it in the Ruiz complaint or, for that matter, any sexual harassment case. The cases cited by Respondent are those alleging discriminatory terminations. The logic of the employer argument, as accepted in Summers, supra, is that no cause of action will accrue for wrongful termination where the initial employment itself was based on some "fraud." Hence, there can be no injury where there

was never any entitlement. However, a quid pro quo sexual harassment case such as Ruiz, which is a "submission" type case, 13necessarily alleges a harm which is independent of any hiring or terminating decision. Therefore, Respondent's "application fraud" argument to avoid liability is rejected.

3. Damages

Pursuant to (former) Section 8-109(2)(c) of the Code, the Commission is given broad discretion to grant both legal and equitable remedies to a prevailing Complainant. Such relief may include compensatory damages for mental anguish suffered as a result of respondents' discriminatory acts. Matter of Horgan, 194 A.D.2d 674, 599 N.Y.S.2d 99 (2d Dep't. 1993), citing Matter of

12 864 F.2d at 708. Board of Education v. McCall, 108 A.D.2d 855, 485 N.Y.S.2d 357 (2d Dep't. 1985). See Hwu v. Chai Kosher, NYCCHR Complaint No. EM01798, Rec. Dec. and Order (July 12, 1992), modified Dec and Order (Oct. 21, 1992, $4000 mental anguish award where sexually explicit jokes caused embarrassment and nervous anxiety with physical symptoms); Acha v. Beame, NYCCHR Complaint No. 10934-EG, Rec. Dec. and Order (June 28, 1991), modified Dec. and Order (Dec. 13, 1991, $250,000 award for severe mental anguish caused by five year pattern of retaliatory abuse, threats of violence or

death and punitive job assignments); Boyce v. Cable Estates, NYCCHR Compl. No. 06073261-EP, Dec. and Order (Aug. 15, 1986, $10,000 mental anguish award for psychological distress and physical disorders where Complainant was terminated after rejection of sexual propositions).

a. Damages for Mental Anguish

In order for mental anguish damages to be awarded, there must be a sufficient showing of the existence and extent of an injury and the evidence presented must be sufficient to support a determination that "a reasonable person of average sensibilities could fairly be expected to suffer mental anguish from the incident." Batavia Lodge No. 196 v. State Div. of Human Rights, 43 A.D.2d 807, 810, 350 N.Y.S.2d 273, 278 (dissenting opinion cited by the Court of Appeals in reversing at 35 N.Y.2d 143, 359 N.Y.S.2d 25 (1974)).

13 See Karibian, supra, for discussion of differences of evidence and harm suffered in "submission" and "refusal" quid pro quo sexual harassment cases. Accordingly, credible testimony by the complainant concerning the mental anguish experienced can be sufficient to sustain an award for mental anguish if corroborated by reference to the circumstances of the alleged incident. See Matter of 50 Horgan, supra; New York City Transit Authority v. State Division of Human Rights and Adrienne Nash, 78 N.Y.2d 207, (1991); Cullen v. Nassau County Civ. Service, 53 N.Y.2d 492, 442 N.Y.S.2d 470 (1981); Matter of Bayport Blue Point School Distr. v. State Division of Human Rights, 131 A.D.2d 849 (2d Dept. 1087);

Catalina Beach Club v. State Division of Human Rights, 95 A.D.2d 776, 463 N.Y.S.2d 244 (2d Dept. 1983). The record here amply demonstrates that Complainant Ruiz suffered terrible humiliation and severe mental anguish as a result of the abuse inflicted upon her. First, there was the assault by an unidentified employee in an elevator. Next, Supervisor Fejzula assaulted her in a locked room by groping her and attempting to kiss her. These assaults happened shortly after she began working at Arcade, which in turn was shortly after her arrival in this country. She spoke virtually no English, was the sole means of support for herself, her mother and her daughter, and had no one else to turn to for help. In fact, her erstwhile husband was both abusive to her, and had sexually molested her daughter. This was all merely the prelude to the horrific abuse yet to be suffered at the hands of supervisor Uruci. Ruiz' testimony regarding her mental anguish was credible.

She was very frightened after the rape attempt and actual rape in the car. When Uruci would "use her whenever he wanted" subsequently, she felt shame and humiliation (T. 52, 54, 55, 57, 114). She was tired, traumatized, sad and defenseless (T. 115). Her psychiatrist, Dr. Capello, essentially corroborated her symptoms, diagnosing her extreme nervousness as post traumatic stress disorder attributable to sexual abuse. He further concluded that at one point, Ruiz was so severely suffering from anxiety, depression, lack of appetite and lack of sleep that "she really wasn't functioning as a human being" (T. 2657). No case has ever been brought to trial before this tribunal involving the level of abusive conduct found here. Numerous prior cases have involved conduct that includes sexually offensive comments or incidents of unwanted touching. In Porter v. Corona Congregational Church and Bryer,14the Respondent employer, a senior pastor of the church, continually leered at the employee/Complainant. He repeatedly made comments to her about her body, compelled her to accompany him to various meetings and functions so as to give the impression that they were a couple, and would, without cause or invitation discuss such matters as the size of his childrens' sexual organs. Ultimately, he would touch or stroke Complainant's arms, and when she objected, struck her in the face. The Administrative Law Judge (hereinafter "ALJ") recommended an award of $50,000 as compensation for mental anguish. On review, the Commission increased that portion of the damages to $100,000 citing the "persistent and highly intrusive nature" of the conduct to which Complainant had been subjected.

14 NYCCHR Compl. No. EM0133-3/10/89-DE, Rec. Dec. and Order (August 18, 1992), aff'd Dec. and Order (December , 1992).

In Lebron v. Caterair International,15an employee was subjected to hostile work environment sexual harassment. This took the form of verbal abuse and unwanted touching which was assaultive. The assaultive conduct included touching, grabbing her breasts, putting hands between her legs and touching her vagina. The ALJ termed this "physical sexual harassment of a particularly offensive nature" and recommended an award of $75,000 as compensation for mental anguish. The Commission affirmed. On review, Supreme Court, Queens County, remitted for imposition of a reduced damage award not exceeding $50,000.

In Acha v. New York City Police Department, et. al. ,16 Complainant was subjected to horrendous abuse and harassment at the hands of her co-workers - New York City Police Officers - who objected to a woman succeeding as a police officer. Derogatory comments and lewd gestures were made to her. She received prophylactics and photos of nude men and women in the mail. Officers spoke openly about their desire to see Complainant injured or dead. She received unequal assignments and was treated unequally in retaliation for having filed a complaint. The ALJ recommended that $100,000 be awarded as compensation for mental anguish. The Commission awarded $250,000 instead, although on

15 NYCCHR Compl. No. E90-02061, Rec. Dec. and Order (January 28, 1994), aff'd. Dec. and Order (March 16, 1994), aff'd. as to finding of liability, but remitted for imposition of reduced damage award, Caterair International Corn. v. N.Y.C. Commission on Human Rights, N.Y.L.J. 9-22-94 (Sup. Ct. Queens Co.).

16 NYCCHR Compl. No. 10934-EG and 04124144-EG, Rec. Dec. and Order (June 28, 1991), aff'd. and damages increased, Dec. and Order (December 13, 1991).

review Supreme Court decreased the damage award to the original $100,000 amount. Our Court of Appeals recently reviewed the appropriate factors and considerations in determining proper damage awards in discrimination cases .17The Court stated The existence of compensable mental injury may be proved, for example, by medical testimony. . . Mental injury may be proved by the complainant's own testimony, corroborated by reference to the

circumstances of the alleged misconduct.18 In that case, the State Division of Human Rights had awarded $450,000 as damages for mental anguish to a bus driver. The bus driver sought a restricted duty assignment after becoming pregnant, because she had a history of prior miscarriages and fertility problems. Her personal physician advised her to avoid sudden jolting or jarring, and excessive lifting and bending. However, despite the employer's policy of granting restricted duty assignments to male employees with temporary disabilities, Complainant's request was denied. Unable to forego her income, she continued to work and suffered a miscarriage. This action on the employer's part, along with three other instances of disparate treatment formed the basis of Complainant's case. On review, the Appellate Division reduced the mental anguish damage award to $75,000. The Court of Appeals reversed, disapproving the lower court's seemingly arbitrary substitution of "its own view

17 N.Y.C. Transit Authority v. State Div. of Human Rights and Nash, 78 N.Y.2d 207, 573 N.Y.S.2d 49 (1991). 18 18 573 N.Y.S.2d at 54. that a maximum of $75,000 would adequately compensate complainant."19On remand, the Appellate Division reinstated the $450,000 award. Recently, the State Division of Human Rights awarded substantial damages in a sexual harassment case. In Bice v. Parkview Auto Sales Inc., Case No. 5-E-05-86-109987E, (ALJ Straub, March 30, 1993) Complainant was subjected to both verbal and physical abuse. Her supervisor would frequently rub against her, touch and grab her, or "accidentally" bump into her. In one instance, the supervisor grabbed her hips and pulled her back and forth in order to simulate sexual activity. In other instances, the supervisor would grab her on the thigh and crotch, and regularly smack his hand on her backside. When she complained to management, the offending supervisor called her a "stupid bitch" and "dumb cunt." He also left offensive and insulting notes at her desk. Complainant and other witnesses testified that the abuse at her employment adversely impacted upon her health and family life. The ALJ awarded back pay and $125,000 in compensatory damages for mental suffering. The agency's back pay award determination was modified, but the award for mental anguish was affirmed. Matter of New York State Division of Human Rights v. Parkview Auto Sales, Inc., _ A.D.____ , 616 N.Y.S.2d 113 (4th Dep't. 1994). In the case at bar, persuasive medical testimony was heard

as to the severity of Complainant's mental anguish, which has

persisted for years after her abuse. She has had two hospital admissions, has received considerable outpatient psychiatric treatment, and has required several prescription drugs. Nash, supra, requires that "the relief imposed. . . be reasonably related to the discriminatory conduct" and "neither punitive nor arbitrary. "20It is difficult to contemplate, in an employment discrimination case, conduct more egregious, more intrusive or physically assaultive than that which occurred here. That said, Respondents assert that Complainant's mental anguish is more likely attributable to hurtful events in her personal life rather than to any employment related harm. While there was considerable testimony relating to Complainant's difficulties with her husband, notably his alleged child abuse and resulting custody proceedings. Nevertheless, Ruiz' treating psychiatrist unequivocally attributed her stress and anxiety to problems at work. Common sense in this case requires an acknowledgment that Ruiz was beset with several personal difficulties, including her abuse by Uruci. Respondents cannot be held responsible for Ruiz' other problems. However, notwithstanding her many difficulties, Ruiz demonstrated convincingly that absent unlawful abuse, she could hold a job, raise her child and otherwise function successfully. It was Namik Uruci, far more than any other factor, which caused her extreme hurt, stress, humiliation, fear, depression and anxiety. Ruiz was sexually abused, threatened, then told by

her abuser that he might have AIDS. Reflecting upon the damage

19 19 573 N.Y.S.2d at 55. awards in the cases discussed above, and considering the far greater harm in this case, I recommend that $300,000 be awarded as compensation for mental anguish.

b. Reinstatement of Employment

Ruiz continued to work even after she reported the abuse by Uruci. She continued working for approximately ten months after Uruci left the company. After incidents in which she was criticized for her cleaning, and one instance where she used a tenant telephone to call police in a non-emergency, Henry Belaus decided to terminate her (T. 1798). When Ruiz filed a union grievance regarding her termination, the company reinstated her pending resolution of the grievance. Ruiz ultimately left her employment, voluntarily, on June 27, 1989. Had she left at any time during Uruci's employment I would have no difficulty finding her to have been constructively terminated. However, even ten months later, it is entirely rational to attribute Ruiz' apparently bizarre behavior - making the police call - to lingering stress from her earlier abuse. I conclude that the abuse by Uruci could not be deemed "cured" simply by his termination. Ruiz' ability to work in a satisfactory manner had been badly damaged, through no fault of her own. Complainant Ruiz does not seek damages for lost wages, nor for expenses related to seeking employment or for medical care. She did work for a considerable time - almost one year beyond the last abusive incident with Uruci. However, if it were not for

20 20 573 N.Y.S.2d at 54. Uruci's conduct, it is entirely likely that Ruiz would have continued in the employ of the company for the foreseeable future. Therefore, Complainant Ruiz should be afforded the option of regaining her position with the company at the rate of pay that she would be earning currently if she had never left. The company should extend this offer of reemployment to be effective until ninety days from the date of the Commission's final Decision and Order in this case. Ruiz may or may not be interested in returning to work for Respondent. The choice, however, should be hers to make.

c. Affirmative Relief

The Bureau seeks the imposition of extensive affirmative relief including the promulgation of a policy against sexual harassment by Arcade, and participation by company employees in a training program. Former Code Section 8-109(2)(c) authorizes this Commission to award affirmative relief. It is obvious that the company's previously promulgated sexual harassment policy, such as existed, failed. First, substantial testimony at the hearing revealed that this industry in general had traditionally been rife with job-selling for both sexual favors and money. There was ample testimony as well that such practices were prevalent at Arcade. In fact, the company concedes as much in pointing out through the testimony of witnesses, and in Counsel's brief, that extensive changes were effected in top level management in 1985 to correct such improper practices . 21It was a mere two years later that Ruiz encountered Arcade supervisors Uruci and Fejzula. Second, notwithstanding the issuance by Henry Belaus of a memo regarding company sexual harassment policy, the evidence suggests that virtually no effort was expended toward implementation. The policy statement was issued in English only, although English was not the primary language of many employees. The policy statement, according to a number of witnesses, was not universally posted or distributed. Hence, it is easy to see how individuals such as Uruci and Fejzula felt free to act upon their vile impulses. A statement regarding the company's sexual harassment policy can only be effective if it in fact reaches all employees. Therefore, the company should publish a sexual harassment policy which provides a structure and alternative routes for an employee to make a complaint either regarding a co-employee or supervisor. The policy should warn of appropriate disciplinary actions where sexual harassment occurs. The policy should be issued in English and in at least two additional languages that reflect the prevalent language usage among the company's workforce. The policy should be posted at each building serviced by Respondent as well as in its own offices. Finally, the policy should be distributed to all employees within ninety (90) days of the final Decision and Order in this case, and to every new employee upon commencing employment.

21 Respondents' Reply Memorandum, p. 22.

Inasmuch as the evidence revealed outrageous abuse by at least one supervisor, and glaring insensitivity on the part of others, the company should require that every supervisor attend a training session of at least three (3) hours duration, about how to prevent sexual harassment and how to handle complaints of sexual harassment. These training sessions should be completed within six (6) months of the final Decision and Order in this case. The Commission's training Institute can provide information on various training session options.

d. Civil Penalties

The Bureau seeks the imposition of civil penalties pursuant to Code Section 8-126, which authorizes such a remedy in order "to vindicate the public interest." The Code provides that such a penalty may be as much as $100,000 where "an unlawful discriminatory practice was the result of the respondent's willful, wanton or malicious act." In Baca v. 119-121 East 97th Street Corp.,22this tribunal considered for the first time the newly enacted Code provisions for imposing a civil penalty. Said provisions were added to the Code by the enactment of Local Law No. 39 of 1991, to take effect ninety days thereafter and apply to violations committed on or after such effective date. Local Law 39 was passed by the Council

22 NYCCHR Compl. No. AH-92-0280, Rec. Dec. and Order (February 10, 1993), remanded Dec. and Order (March 31, 1993), Rec. Dec. and Order on Remand (May 4, 1993), aff'd Decision and Order (May 28, 1993), aff'd. sub nom. 119-121 East 97th Street Corp. v. City of New York Commission on Human Rights, Index No. 116372/93 (Sup. Ct. N.Y. Co. Part 25, February 1, 1994). on June 5, 1991 and signed by the Mayor on June 18, 1991, making it effective on September 18, 1991. As the events in the case at bar preceded the effective date of this section, civil penalties cannot be considered.

B. Complaint of Maria Sandoval

The standard of proof which prevails in proceedings before this tribunal is that of a preponderance of the evidence.23In this complaint I find that Maria Sandoval has not met this standard. Complainant Sandoval's case rests upon the assertion that her failure to obtain reemployment was an act of retaliation by the company, for the filing of a complaint by Sandoval's daughter. The evidence in support of this assertion is simply insufficient.

It is not contested, despite a discrepancy between her complaint and trial testimony that Sandoval was hired as a temporary, seasonal employee. No commitment of employment was made beyond the summer vacation period. It also was not contested that very few of the temporary summer employees obtained permanent positions. There was testimony to the effect that Complainant's cleaning was poor and "slow." Respondent asserts that this, rather than any retaliation, precluded further employment of

23 23 See Code Section 8-120. Complainant. Respondent offered testimony that a notation describing Sandoval as being a slow worker was added to her file, and that, therefore, company personnel could not offer her further employment. At trial, Counsel for Respondent conceded that a search failed to locate this document. Complainant suggested that such failure should lead me to draw the adverse inference that no such notation was made. Actually, I find it more ambiguous. The lack of such a notation would not prove that Complainant was "otherwise qualified" but rather only that a witness' recollection was inaccurate. However, the testimony revealed that more than one supervisor actually found her work to be unsatisfactory. The logic behind Complainant's case is also unpersuasive. Although it is not unreasonable to assume the possibility of corporate hostility to the filing of a complaint, in the case at bar the retaliation alleged seems misdirected. First, although Sandoval's daughter Luz Pilar Ruiz did bring a "complaint" to the attention of management in the summer of 1988, her formal complaint filed with this Commission was dated approximately a year later - well after Sandoval's temporary position had ended. Second, the company's swift decision to terminate Uruci - the object of Ruiz' complaint - hardly demonstrates company anger toward Sandoval, or Ruiz, for having brought the matter to the attention of management. Third, the more logical target of retaliation would seem to be Ruiz, who actually brought the complaint. As the testimony indicated, she continued to work well beyond the date of Uruci's departure. Notwithstanding the seeming illogic of the Sandoval complaint, her claim would in fact be meritorious if there were any adverse employment decisions that were motivated by retaliation for any activity, assistance, etc. on her part in relation to her daughter's complaint.24 Such motivation could be inferred from Sandoval's testimony, attributing a "smoking gun" remark to Night operations manager Echevarria. Specifically, Sandoval testified that after numerous unsuccessful attempts to gain employment with the company, Echevarria questioned how she could expect to be employed again, "knowing that my daughter had brought a lawsuit against the company" (T. 492). An inference of retaliation based on the above testimony, while permissible, would not be mandatory. However, in this case I find considerable reason to discount such testimony. No mention of such a statement by Echevarria is found in either the notes of Commission investigators, or in the filed complaint. As these documents were written 3 1/2 years closer in time to the alleged incident than the date of Sandoval's hearing testimony, it is difficult to understand why the statement first arose at the hearing. Considering the magnitude of such a statement, I cannot easily imagine it being previously forgotten. Similarly, as Complainant spoke to Spanish speaking staff at the Commission, cannot easily imagine the statement being lost in translation or misunderstood. I can only conclude that it is just as likely that the statement was never made, as that it was. Upon such equivocal proof I must find for Respondent.

24 24 See Code Section 8-107(7). C. Complaint of Josefina Hernandez

1. Allegations regarding Jose Echevarria

Complainant Hernandez charges that she was subjected to quid pro quo sexual harassment by Night Operations Manager Echevarria. Per Karibian, supra, she therefore had to prove that a tangible job benefit was linked to her acceptance or rejection of unwelcome sexual advances. Stated from the point of view of Complainant, her case is as follows. Respondent Echevarria is said to have "recruited" her at the Copacabana night club to come to work as an office cleaner for Arcade. When she did so, he subsequently informed her that her continued employment depended upon her "behaving well" with him. Thereafter, Hernandez, under the asserted compulsion of the threat of losing her job, went on three "dates" with Echevarria after work to Manhattan nightclubs. According to Hernandez, no sexual advances -- welcome or otherwise -occurred. However, Hernandez asserts that on subsequent occasions she accepted Echevarria's invitations, and submitted to sexual relations out of a belief that he conditioned her employment on such submission. Echevarria testified that he never had a sexual relationship with Hernandez, though they did go out socially on a few occasions. Even without resolving this important factual dispute, Complainant's case must fail as the record is bereft of

any reasonable inference of compulsion.

Complainant's case relies upon a statement she attributes to Echevarria, to wit, "behave well with me." Complainant asserts that this was Echevarria's message to her, setting forth what was required in order to keep her job. It is noteworthy that Echevarria did not initiate this conversation with Hernandez. Rather, she went to him under somewhat perplexing circumstances. Hernandez states that she went to Echevarria because a co-worker had alluded to a "requirement" that one must "pay" for a permanent job. Why this would cause her to inquire further and "clarify" the situation, when no one had made any demand upon her, is mystifying. Nevertheless, she did inquire of Echevarria, who according to Hernandez replied, "Well, this doesn't apply to you. As long as you behave well with me, you don't have to buy it" (T. 655). According to Hernandez, this one statement is the entire basis for her supposed submission, over the course of several months, to numerous unwanted sexual encounters. Complainant's assertion is not credible. First, she indicates that other than the above statement, Echevarria never threatened, warned, advised, or coerced her in any way. Therefore, she relies completely upon that one statement in explaining all of her subsequent allegedly involuntary actions. However, notwithstanding the great significance of the alleged statement, in that it permits the inference of sexual blackmail and that it allegedly accounts for all of her actions, the statement is nowhere to be found in either the notes of

Commission investigators with whom Sandoval spoke initially, in her original complaint, or in her amended complaint. As these documents were written much closer in time to the alleged incidents than was the testimony at the hearing, a serious question arises as to why such a damning statement was not recalled until years later. Under these circumstances it would not be unreasonable to conclude that the statement is either a fabrication, a distortion or a misunderstanding. According to Echevarria, when Hernandez questioned him about the supposed need to "buy" her job, he indicated that it was not so, that her job behavior (in so many words) would be all that would bear upon her continued employment. Next, Hernandez' statements and actions are in conflict with her assertion that she was coerced. For example, asked with particularity as to each "date" or "encounter" with Echevarria why she "acquiesced" to his wishes, she referred uniformly to her belief that she had to "behave well with him." However, Hernandez complained that on her third "date" with Echevarria, their evening at the Paladium on the occasion of his birthday, that she "wasn't feeling well because I was just standing there. Is this what he invited me here for, to be standing here?" Displeasure over Echevarria not paying enough attention to her is hardly consistent with a feeling of coercion. Hernandez further testified that a week later she gave Echevarria a tie as a birthday gift. Again, this is hardly consistent with being coerced. Hernandez also testified that she ultimately met with the company CEO to complain about alleged harassment at the hands of a subsequent supervisor, Jay Gonzalez. During the meeting, she omitted any reference to improper conduct on the part of Echevarria. In addition, when asked by Bureau Counsel why she did not accept her subsequent supervisor's (Jay Gonzalez) invitation to travel with him to Miami, Hernandez testified "I didn't want the same thing that happened with Joe Echevarria to happen again with him (Gonzalez)." Asked by Counsel what she meant, she testified "that he was going to use me just exactly like Joe Echevarria had used me." In actuality, if Hernandez' complaint is to be believed, Echevarria did not "use" her, but rather "abused" her. The notes of a Commission investigator state that Hernandez indicated that Echevarria broke off the "relationship" with her, which she had started. In this context, then, it seems that Hernandez' refusal of a relationship with Gonzalez was attributable to displeasure with her earlier, transitory, relationship with Echevarria. This testimony also is at odds with an inference of coercion by Echevarria. Further to an analysis of her actions, Hernandez testified that long after any "relationship" with Echevarria had ended, and notwithstanding her assertion that she felt "bad, terrible" about what had allegedly been done to her, she nevertheless sought him out to ask for jobs for various friends and relatives. Again, if she had been coerced earlier and the alleged abuse had ended, it is illogical that Hernandez would initiate subsequent, unnecessary interactions.

Hernandez' own words, found in the complaints and investigators' notes portray a far more ambiguous picture than one of coercion. In her original complaint, Hernandez states that she initially accepted Echevarria's invitations for dates because she "thought that he was offering me a friendship." She did not attribute her acceptance of his invitations to any admonition to "behave well with" him. She goes on to state "Subsequently I felt that my job was a condition of the relationship." While this statement is clear in elucidating Complainant's subjective belief, it does not indicate why she believed this was so. The "smoking gun" statement is notable in its absence, as is any other evidence to support the bare conclusory allegation of coercion. Even more damaging to Hernandez' credibility and case is the following statement in her complaint: "Then, our relationship became a mutual volunteer relationship." This sentiment certainly contrasts with Hernandez' claims of coercion. Relationships between supervisors and subordinates inevitably contain a risk of misunderstanding or abuse. Some people will use their positions to impress, cajole, or worse, to pressure and intimidate. In the case at bar, even assuming Hernandez accepted Echevarria's initial invitations voluntarily and without any compulsion, as soon as an aspect of her employment was conditioned on her response to sexual demands, a quid pro quo sexual harassment case has been made. However, the so-called "smoking gun" statement is very difficult to accept given that Hernandez proffered it first several years after the incident. Second, even assuming the statement itself is credible, it is very ambiguous both on its face and in the context in which it supposedly was made. A non-incriminating interpretation is equally plausible as the interpretation suggested by Complainant. Complainant's situation was substantially different from that of Complainant in the case of Luz Pilar Ruiz, decided above. Hernandez had been in this country for seven years and had held several jobs prior to her employment with Arcade. In this respect she was not someone who was so naive as to be completely vulnerable to unwanted or improper conduct. In her amended complaint, Hernandez asserts that Echevarria promised her a promotion to "floor lady" (forelady?) in return for a sexual relationship. In her testimony, however, Hernandez stated that Echevarria spoke of making her a "forelady" but did not do so as a quid pro quo for anything. According to Hernandez' testimony, this discussion occurred after the two already had several "dates" and sexual encounters. Counsel asserts that with respect to Echevarria's "behave well" comment, "there was every reason for Hernandez to understand that Echevarria was requiring sex for her to obtain a permanent position. "25 Counsel argues that this conclusion on Hernandez' part is inescapable considering the job-selling that was rife in the industry and company. I do not accept this argument. Hernandez was employed at Arcade for one week before hearing, from an unidentified co-worker, of the "need" to buy one's job. There was no evidence that she saw or heard of any specific impropriety during that one week. Hernandez, unlike

25 25 See Complainant's Brief, pp. 27-28.

Ruiz, had no reason to expect that sexual abuse or coercion were part and parcel of the worksite. Finally, although Hernandez' amended complaint charges all Respondents with discrimination based on, inter alia, national origin, no evidence was presented with respect to the complaint against Echevarria to support such a charge. To sum up, the evidence suggests that the relationship between Hernandez and Echevarria, to whatever extent it existed and however intimate or non-intimate, was a voluntary one. Therefore, that branch of Hernandez' complaint which charges Arcade and Echevarria with unlawful employment practices, based

on alleged quid pro quo sexual harassment by Echevarria, is dismissed. 2. Allegations regarding Jay Gonzalez

a. Quid Pro Ouo Sexual Harassment and Retaliation

As noted above, Hernandez has charged all Respondents with discrimination based on national origin. With respect to the charges against Arcade and Gonzalez, no evidence was presented that would support such a charge. Therefore that branch of Hernandez' complaint must be dismissed. Although her complaint does not specify, a liberal reading would require the conclusion that Hernandez charges Jay Gonzalez and Arcade with both auid pro quo and hostile work environment sexual harassment, as well as retaliation. Upon review of the facts and prevailing legal standards, I am persuaded that the complaint must be dismissed. To establish a quid pro quo claim with respect to supervisor Gonzalez, Hernandez had to prove that Gonzalez conditioned some tangible job benefit upon her acceptance or rejection of unwelcome sexual advances. Karibian, supra. I believe that unwelcome sexual advances were made. Though Gonzalez denied it, Hernandez testified that he asked her to go out with him and on more than one occasion asked her to travel to Miami with him. Inasmuch as senior company management relocated Hernandez after she complained about Gonzalez, it appears that they believed her as well. Based on Hernandez' testimony and actions, it is apparent that Gonzalez' advances were unwelcome and, obviously, rejected. Therefore, remaining to be proved was the threat of, or actual withholding of some job benefit. Hernandez asserts that she received undesirable work assignments and was "stripped" of her "permanent" status in retribution by Gonzalez for her rejection of him. The evidence does not support these assertions. With respect to her status, there was no proof as to what "permanent" status meant, when she assertedly received it, and how it was taken away. Hernandez testified that it was Gonzalez who verbally advised her, at building 1290, that she was "permanent." According to her, Gonzalez then took this status away. No evidence was presented to demonstrate what Hernandez "lost" by this alleged action. She continued working, as before. The strongest inference is that any such "status" or "tenure" is more likely governed by the collective bargaining agreement in effect, and by senior company management, rather than at the whim of a lower level supervisor. In fact, this conclusion is supported by the statements and actions of senior company management subsequent to Hernandez' complaining of Gonzalez' conduct. Hernandez was informed by Joe Echevarria and Henry Belaus that Gonzalez had no authority to "remove" her from a building, but rather that seniority as determined by the collective bargaining agreement governed the choices available to cleaners. This conversation took place subsequent to Arcade CEO Ash contacting Belaus. This in turn immediately followed Hernandez' complaining to Ash about Gonzalez. With respect to hours of work or floor assignments, Hernandez' testimony was too vague and ambiguous to infer that either Gonzalez, or anyone at Arcade, "retaliated" against her. On the issue of her work hours, Hernandez offered no documents such as pay stubs. She testified that Gonzalez reduced her work hours from eight to "six hours, seven hours, like that, six hours, seven hours, seven and a half hours." I find this factually inadequate to support the inference alleged. Similarly, Hernandez asserted that she was assigned more difficult, or larger floors to clean by Gonzalez. Again, her conclusory and ambiguous testimony was outweighed by the company's reference to the collective bargaining agreement which specified the limits of work assignments.

b. Hostile Work Environment Per Karibian supra,

A hostile work environment exists "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult," that is "sufficiently severe or pervasive to alter the conditions of the victim's employment.”26

Further, a plaintiff bringing such a claim must satisfy the following criteria: membership in a protected group, recipient of unwelcome advances, target of harassment based on sex, and harassment which affects a term, condition or privilege of

employment.27Finally, to hold an employer liable, a plaintiff must demonstrate that the employer "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.”28Under this standard, the credible evidence with respect to the Hernandez complaint against Jay Gonzalez falls short. The original complaint alleges that Gonzalez, a low level supervisor, asked Hernandez on one occasion to go to Miami with him. The complaint asserts as well that Gonzalez then overwhelmed Hernandez with work and criticized her performance. The amended complaint asserts that "on at least two occasions" Gonzalez asked her to spend a weekend in Miami with him. In her trial testimony,

26 26 14 F.3d at 779, citing Harris v. Forklift Systems, Inc., 114 S.Ct 367 (1993), quoting Meritor, supra, 477 U.S. at 65, 67. 27 27Meritor, supra, at 63-69.

28 28Karibian, supra, quoting Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59 (2d Cir. 1992) at 63.

Hernandez also alleged that Gonzalez had begun asking her to go out with him and had told her she had nice breasts. Inasmuch as the alleged comment about her breasts appeared nowhere in her complaints, nor in any of the notes of investigators -- all of which were written much closer in time to the actual events alleged than at the time of her testimony -- I must discount this testimony. What remains then are the Miami invitations. They were clearly unwanted, and in fact rejected unambiguously. However, the evidence hardly establishes that a term or condition of employment was affected. Hernandez continued to be employed. Though she alleged that her work hours were reduced, her testimony on this matter was vague and equivocal, and unsupported by any hard evidence such as a pay stub. Similarly, with respect to her assertion that she was overwhelmed with work, her unspecific testimony was insufficient to rebut the company's reference to collective bargaining work rules which removed the very supervisory discretion she complained of. The two Miami invitations themselves, alone, do not constitute a hostile work environment. There was no offensive touching, or other physical contact, as existed in Rhodes v. Apollo Theater Investors Group, NYCCKR Compl. No. 676/91 Decision and Order (March 11, 1992). In Harris, supra, the Supreme Court held that conduct that is not severe or pervasive enough to

create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.29

While verbal abuse and harassment can create a hostile work environment, this tribunal has held that such a finding must be based upon "severe" and "persistent" conduct which affects Complainant's psychological well being.30 Although Counsel for the Bureau and Complainant seek to portray Gonzalez' conduct as pervasive or persistent by referring to his "repeated invitations" it is obvious that these were at most two isolated incidents. Counsel also derides the company for taking no action against Gonzalez or requiring training so as to prevent any recurrence of abuse. While the company's actions in this regard would be highly relevant to any complaint filed subsequent to the Hernandez complaint, her only interest is in the amelioration of her own situation. Finally, it should be noted that to the extent that Gonzalez' conduct was inappropriate the company did ameliorate Hernandez' situation immediately upon notification. After Hernandez' conversation with him, company CEO Ash arranged for her reassignment so that she would no longer be supervised by Gonzalez. In fact, Hernandez was reassigned to a worksite with a female immediate supervisor. The fact that this all happened in an ad hoc fashion, and due to a chance meeting between Ash and Hernandez, points to a need for a more formal structure for

29 29 114 S.Ct. at 370 30 See Rhodes, supra; Hwu, supra.

receiving and considering employee complaints. Nevertheless, this does not detract from the company's swift and effective action to prevent any escalation of Gonzalez' conduct into the unlawful. Therefore, this branch of Hernandez' complaint must be dismissed.

III.

RECOMMENDED DECISIONS AND ORDERS31

A. Luz Pilar Ruiz In the Matter of the Complaint of Luz Pilar Ruiz, it is hereby ordered that 1. Respondents Arcade Cleaning Corporation and Namik Uruci pay Ruiz damages in the amount of three hundred thousand dollars ($300,000) as compensation for severe mental anguish. 2. Respondent Arcade Cleaning Corporation extend an offer of reemployment to Ruiz, to be effective as of the date of the final Decision and Order to be issued in this case and to be in effect for ninety (90) days thereafter, at the rate of pay that she would be earning currently had she not left the company.

3. Respondent Arcade cease and desist from any discriminatory employment practices as defined by Title VII of the Civil Rights Act of 1964 or the Administrative Code of the City of New York.

31 These Recommended Decisions and Orders must be read in conjunction with the Commission's Final Decisions and Orders in the above cases.

4. Respondent adopt, implement and publish a sexual harassment policy which provides a structure and alternative routes for an employee to make a complaint either regarding a co-employee or supervisor. The policy should be issued in English and in at least two additional languages that reflect the prevalent language usage among the company's workforce. The policy should be posted at each building serviced by the company as well as in its own offices. Finally, the policy should be distributed to all employees within ninety (90) days of the final Decision and Order in this case, and to every new employee upon commencing employment. 5. Every supervisor currently employed by the company should attend a training session of at least three (3) hours duration, about how to prevent sexual harassment and how to handle complaints of sexual harassment. These training sessions should be completed within six (6) months of the final Decision and Order in this case. B. Maria Sandoval In the Matter of the Complaint of Maria Sandoval, it is hereby ordered that the complaint be dismissed.

C. Josefina Hernandez

In the Matter of the Complaint of Josefina Hernandez, it is hereby ordered that the complaint be dismissed.

DATED: December 5, 1994 SO ORDERED.

Steven E. Presberg Administrative Law Judge Hearings Division