OMG LOL: Text Message Firing of Employee Who Opposed Sexual Harassment May Cost Employer $37K

An employer recently learned the hard way that firing an employee – because she rejected his sexual advances – by text message is a bad idea.

In Comm’n on Human Rights ex rel. Martinez v. Joseph “J.P.” Musso Home Improvement & Joseph Musso, OATH Index No. 2167/14 (Feb. 27, 2015), the New York City Office of Administrative Trials and Hearings (OATH) recommended an award of $37,020 – comprising $17,020 in lost wages, $10,000 for mental anguish, and a $10,000 civil penalty – against a company and its principal for gender-based employment discrimination and retaliation under the NYC Human Rights Law.

Among the undisputed facts:

On August 2, 2013, the complainant was off-duty and she met Mr. Musso to pick up her pay. Instead of the jeans that she normally wore to work, the complainant wore a pair of tights, a tank-top, and a sweater. After the complainant received her pay and left, Mr. Musso sent her the following text message, “Why don’t you look that good when you come to work?” The complainant answered via text, “That is inappropriate. Let’s keep this professional.” In a reply text, Mr. Musso wrote, “OK, you’re fired”.


In order to prove discrimination under the NYC Human Rights Law (Admin. Code § 8-107(a)), the petitioner was required to “prove by a preponderance of credible evidence that the complainant has been treated less well than other employees because of her gender.” She did so:

Mr. Musso’s references to Victoria’s Secret, his thwarted attempt to touch the complainant’s waist, his comments regarding her attire, and his text suggesting that her job was “make-work” all diminished the role of women in respondents’ workplace. Individually and collectively, Mr. Musso’s words and deeds subjected the complainant to unwanted, different treatment based on her gender. That was unlawful discrimination.


In addition, the complainant sufficiently proved retaliation:

By firing the complainant immediately after she protested that his remarks concerning her clothing were inappropriate and asked him to keep things professional, Mr. Musso also engaged in unlawful retaliation [under] Admin. Code § 8-107(7). … The complainant opposed Mr. Musso’s gender discrimination when she told him that his remarks were inappropriate and unprofessional. In direct response, Mr. Musso fired her. That was retaliation. Such an extreme, adverse employment action was reasonably likely to deter the complainant or others from engaging in protected activity.

Individual Liability

The owner of the company, Musso, was liable along with the company under Admin. Code § 8-107(13)(b)(1): “Because Mr. Musso owns the Company that hired the complainant and had direct control over employment decisions, both respondents are liable.”

Damages – Lost Wages

Complainant was entitled to lost wages of $17,020 plus interest. Here’s the math:

The complainant earned $280 for the week that she worked for the respondents. Assuming the same rate of pay (4 days per week, 7 hours per day, $10 per hour), the complainant would have earned $22,120 had she continued to work for respondents for 79 weeks. During that period, the complainant had two lower-paying temporary jobs for which she earned a total of $5,100. She earned $2,500 for five months of babysitting at $500 per month and approximately $2,600 for 20 weeks of work at a retail store for an average of 15.75 hours per week at $8.25 per hour. Thus, the complainant’s lost wages were $17,020 ($22,120 less $5,100). The complainant is also entitled to 9% interest on the lost wages, from the date of her termination, August, 2, 2013, until the Commission issues a final order.

Damages – Emotional Distress

Complainant was entitled to $10,000 in compensatory damages for mental anguish. “The standard is whether a reasonable person of average sensibilities could fairly be expected to suffer mental anguish from the incident. Among the factors to be considered are the severity and duration of the discrimination, the level of anguish caused by the misconduct, and comparable awards.”

Applying the law to the facts:

The complainant credibly maintained that she was hurt, shocked, and disappointed that she was fired. She also testified that the stress and financial pressure of losing her job caused her to lose weight and led to arguments between her and the father of her two children. The complainant suffered mental anguish. However, there was no specific evidence regarding the duration of that anguish or that the complainant ever sought treatment. It was also not shown that the complainant’s weight-loss or arguments with the father of her children could be attributed to respondents’ actions.

Based on the evidence presented, a $10,000 compensatory damage award is appropriate. See Comm’n on Human Rights ex rel. Chen v. NOC Construction Inc., OATH Index No. 1011/11 (Apr. 21, 2011), adopted, Comm’n Dec. & Order (June 26, 2011) ($7,500 award for mental anguish where employer fired worker because she planned to get married and have a baby). This case is similar to Chen, where an employer fired a female employee after less than one week on the job. When the employer was alone with the employee in a car, he asked her why such a beautiful girl did not have a boyfriend. After the employee replied that she had a boyfriend and planned to marry soon, the employer complained that she would have a baby and stop working. The next day, the employee was fired. According to the employee, she was angry and depressed, under considerable financial pressure, and her family blamed her for losing her job. The Commission imposed a $7,500 emotional damage award, based in part on findings that there was “no evidence that the complainant’s distress was extreme, debilitating, or protracted.” Chen, OATH No. 1011/11 at 16.

Here, as in Chen, the complainant was fired after less than a week of work due to the employer’s unlawful discrimination and she suffered obvious anguish, financial pressure, and family turmoil. And there was no evidence that such anguish was extreme or debilitating. Unlike Chen, where the complainant found another comparable job within ten days, the complainant here was unemployed for three or four months before she found a new, lower paying job. Because the anguish here was more prolonged, an award of $10,000 for emotional damages would be consistent with Commission precedent.

Civil Penalty

Finally, the ALJ determined that a civil penalty of $10,000 was warranted. “Relevant considerations include the pervasiveness of the violations, the public impact, and aggravating factors, such as offensive language.”

While there were “mitigating” factors (such as the employer’s relatively small size and no evidence of prior discrimination), there were aggravating factors:

Petitioner proved two separate violations of New York City’s Human Rights Law. Respondents sexually harassed the complainant and engaged in improper retaliation. And by failing to cooperate with petitioner’s investigation or participate in the proceedings, respondents also demonstrated a continued unwillingness to follow the law. Thus, a civil penalty of $10,000 is appropriate.

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