PROCEEDING pursuant to Executive Law § 298 to review a determination of the Commissioner of the New York State Division of Human Rights dated June 22, 2007, which adopted the recommendation and findings of an administrative law judge dated March 22, 2007, made after a hearing, finding that the petitioner had discriminated against the complainant in the terms, conditions, and privileges of employment on the basis of her pregnancy, and awarded the complainant damages in the principal sum of $15,000 for mental anguish and humiliation, and the principal sum of $1,956 for back pay, with predetermination interest accruing from April 15, 1996, only on the award for back pay, and the New York State Division of Human Rights cross-petitions to enforce the determination.
The opinion of the court was delivered by: Belen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN & CHERYL E. CHAMBERS, JJ.
OPINION, ORDER & JUDGMENT
The Commissioner of the New York State Division of Human Rights (hereinafter the Division) found that the petitioner had discriminated against the complainant employee, Ivette Rivera, on the basis of her pregnancy, and awarded damages to the complainant. The principal issue in this proceeding is whether the number of employees of the petitioner's interrelated entities may be aggregated to meet the four-employee statutory minimum required to be deemed an "employer" under Executive Law § 292(5). We find that they may, and adopt the "single employer doctrine" originally promulgated by the National Labor Relations Board and adopted by federal courts analyzing the 15-employee statutory minimum required under the federal statutory counterpart to New York's anti-discrimination statute. This minimum number of employees is also known as the employee-numerosity requirement, which must be met before an entity will be deemed an "employer" under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e[b]).
In this proceeding, the petitioner Argyle Realty Associates (hereinafter Argyle Realty) seeks review of a determination of the Commissioner of the Division (hereinafter the Commissioner) dated June 22, 2007, which adopted the recommendation and findings of an administrative law judge (hereinafter the ALJ) dated March 22, 2007, finding that the petitioner discriminated against the complainant in the terms, conditions, and privileges of employment on the basis of her pregnancy, and awarded her damages in the principal sum of $15,000 for mental anguish and humiliation and the principal sum of $1,956 for back pay, with predetermination interest accruing only on the award for back pay from April 15, 1996. The Division cross-petitions to enforce the determination.
The petitioner, Argyle Realty, identifies itself as a limited partnership which owns six apartment buildings on Argyle Road in Brooklyn. Argyle Realty identifies its general partner as G-P Argyle Corp. (hereinafter G-P Argyle), which the parties sometimes refer to as G.P. Argyle Corp. The sole officer, director, and shareholder of G-P Argyle is Theodore Dalmazio, who also serves as the manager and chief operating official of Argyle Realty, and holds himself out as the "president" of Argyle Realty. Dalmazio is also the majority shareholder in DAL Management Corp. and DAL Realty Management Corp. (hereinafter together DAL Management), which manage properties owned by Argyle Realty, among others.
The evidence adduced at the hearing before the ALJ was in sum and substance as follows: In or about 1992, Argyle Realty hired the complainant to be the superintendent of four of its buildings. In May 1995 the complainant became pregnant. In November 1995 the complainant was told to paint an apartment in one of Argyle Realty's buildings. However, the tenant of the apartment, upon learning of the complainant's pregnancy, refused to allow the complainant to paint. Shortly after this incident, Dalmazio terminated the complainant's employment. The complainant testified that Dalmazio terminated her employment because of her pregnancy, while Dalmazio testified that he did so because the complainant, without authorization, allowed nonemployees to perform her duties. In September 1996 the complainant secured new employment as the superintendent of a building across the street from one of the buildings she had maintained for Argyle Realty.
After her termination from employment, the complainant filed an administrative complaint with the Division alleging that her employment was improperly terminated on the basis of her pregnancy, and, thus, on the basis of her sex, in violation of Executive Law § 296(1). Argyle Realty moved to dismiss the administrative complaint on the ground that it was not an "employer" within the meaning of Executive Law § 292(5), which requires an "employer" to have four or more employees, since at the time of the alleged discrimination in 1995, it had only three employees. After a public hearing, the ALJ found that Argyle Realty, G-P Argyle, and DAL Management were interrelated entities, with common ownership and financial control, and that the employees of those entities--which collectively numbered at least four--should be aggregated for jurisdictional purposes. Consequently, the ALJ found that Argyle Realty was an "employer" within the meaning of Executive Law § 292(5), and therefore subject to article 15 of the Executive Law (see Executive Law § 290 et seq.), commonly known as the Human Rights Law (see Executive Law § 290).
On the merits, the ALJ found that the complainant was unlawfully discriminated against in the terms, conditions, and privileges of employment on the basis of her pregnancy. The Commissioner adopted the Alternate Proposed Order submitted by the Division's Adjudication Counsel, which was substantially similar to the ALJ's findings, and which recommended awarding the complainant, inter alia, the sum of $15,000 for mental anguish. Argyle Realty thereafter commenced the instant proceeding pursuant to Executive Law § 298 in the Supreme Court, Kings County, to review the Commissioner's determination and the Division cross-petitioned to enforce the determination. The matter was thereafter transferred to this Court pursuant to the Executive Law.
Executive Law § 292(5) recites that "[t]he term employer' does not include any employer with fewer than four persons in his employ" (see DeStefano v Kopelman, 265 AD2d 446). Relying on its 1995 payroll records, Argyle Realty alleges that it is not an "employer" within the meaning of Executive Law § 292(5) because it did not have more than three employees. Further, Argyle Realty contends that the employees of DAL Management as of 1995 cannot be aggregated with its own three employees as of 1995 for purposes of determining the four-employee minimum, and that it is therefore not subject to the Human Rights Law.
While Argyle Realty's payroll records suggest that it employed three or fewer employees in 1995, for the reasons set forth below, we find that the number of employees of Argyle Realty, G-P Argyle, and DAL Management may be aggregated to satisfy the four-employee minimum of the Human Rights Law. In so holding, we adopt the "single employer doctrine" used in similar cases interpreting ...