In Matter of Commission On Human Rights Ex Rel. Liserny Fernandez, Petitioner v. Gil’s Collision Services Inc. d/b/a D & R Collision Corp. and Gilbert Velez, Jr., 2023 WL 3974499 (N.Y.C. Comm’n on Human Rights May 31, 2023), the NYC Commission on Human Rights, inter alia, found that an award of $275,000 in mental anguish damages was appropriate. Notably, it declined to adopt OATH’s recommendation of a $150,000 award.
From the decision:
Ms. Fernandez endured substantial gender-based harassment almost daily over the course of her employment, and eventually lost her job because she spoke up and objected to this unlawful treatment. Respondent Velez’s uninvited sexualized comments occurred when they were alone, in front of coworkers, and in front of Ms. Fernandez’s mother. Respondent Velez laughed at Ms. Fernandez when she expressed discomfort. As time went on, Respondent Velez’s behavior escalated. He pressured Fernandez to engage in sexual acts with him. Eventually, the persistent verbal harassment became physical. Respondent Velez grabbed Ms. Fernandez’s breasts while she was working. Respondent Velez proceeded to blame Ms. Fernandez for his thoughts and behavior, and ultimately constructively discharged her by significantly reducing her hours and ceasing to respond to her inquiries about returning to work and her employment status.
The persistent nature of the gender-based harassment, and its verbal and physical manifestations, weigh in favor of a $275,000 emotional distress damages award.
During her employment with Respondents, Ms. Fernandez’s psychological status was fundamentally altered. While working, Ms. Fernandez developed ongoing feelings of anger, which impacted her friendships and familial relationships. She no longer wanted to be around her family and felt embarrassed. She started to cry often and had difficulty sleeping. Ms. Fernandez began to take medicine to treat her sleep struggles. She began trying to cope with the abuse by increasing her alcohol consumption. Her mother witnessed these effects, which her testimony corroborated.
After Respondents ended her employment, the impacts of the sexual harassment worsened. Ms. Fernandez’s anger intensified, and she became depressed, and anxious. The depression continued for over a year. Moreover, she began seeing a psychologist weekly. Ms. Fernandez was diagnosed with PTSD. In a letter, her psychologist stated that Ms. Fernandez’s PTSD was a result of the sexual harassment she experienced while employed by Respondents.
At the time of the trial, more than five years after the discrimination occurred, Ms. Fernandez was still taking medication to help her sleep and had difficulty working with men, which she attributed to her experiences at Gil’s Collision. She described flashbacks that led her to hyperventilate, and she continued to be treated by a psychologist. This psychologist stated in her letter that Ms. Fernandez was still coping with both emotional and physical challenges resulting from the harassment, and continuing to wrestle with fear and anxiety. The mental anguish Ms. Fernandez suffered continues to affect her.
The psychological and emotional harm, which impact personal relationships and professional interactions, support a $275,000 emotional distress damages award.
The Commission additionally justified its decision by reference to awards in similar cases.