The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
MEMORANDUM OPINION and ORDER
On March 10, 2009, the plaintiff, Janice Moncriffe, filed a Complaint alleging that the defendants, Classique Interiors & Design, Inc. ("Classique" or "the corporation") and one of its owners, Paul Drysdale, discriminated against her on the basis of sex by (1) creating a hostile work environment; (2) constructively discharging her; and (3) retaliating against her for protesting the discrimination. (See Complaint at 3-4). These actions, she asserts, violate both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e et seq. ("Title VII"), and the New York Human Rights Law, N.Y. Exec. Law, §§ 290 et seq. ("NYHRL"). The parties consented to the jurisdiction of the undersigned magistrate judge for all purposes. On April 18, 2011, the Court entered a default judgment against defendant Classique because the corporation had failed to appear through counsel, as required. See Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir. 1967) ("[I]t is settled law that a corporation cannot appear other than by its attorney.").
A non-jury trial was conducted before me on April 18, 2011. The plaintiff testified in her own behalf. The remaining individual defendant, Paul Drysdale, the principal and owner of the defaulting corporate defendant, although present chose not to testify but did make a statement (unsworn) in summation following the plaintiff's testimony.
The following findings of fact are based on undisputed testimony by the plaintiff.
In April 2005, defendant Drysdale, a native of Jamaica (Tr. 34) hired plaintiff, also a native of Jamaica (Tr. 4), as a receptionist/administrative assistant at Classique. (Tr. 5-6).
Within weeks of her employment, Drysdale began telling the plaintiff sexual jokes while she was working. (Tr. 9). Several weeks later, Drysdale began unlawful contact with the plaintiff by slapping her on the buttocks. (Id.). The plaintiff verbally protested and the defendant ceased such conduct; however, it resumed a short time later. (Tr. 10).
When it resumed matters got worse. Defendant Drysdale exposed his penis to the plaintiff, inquiring whether her boyfriend's was as big as his. (Tr. 11). He also made lewd comments about plaintiff's sexual practices and genitalia. (Id.). Drysdale would also come up behind her and grab her breasts with both hands. (Tr. 10). The plaintiff resisted these advances; however, the plaintiff's paychecks thereafter began to bounce. (Id.).
In the Spring of 2006, defendant Drysdale locked the plaintiff in the building after the other employees had left for the day and physically tried to force her to have sexual intercourse with him. (Tr. 11-12). She successfully fought him off. (Tr. 12). While she threatened to contact the police, she refrained from doing so because she was in the United States unlawfully at the time and feared deportation. (Tr. 13). Moreover, the plaintiff, a single parent supporting her thirteen (13) year old daughter and attending college part-time, feared she would be unable to find other employment due to her immigration status if she went to the police. (Id.).
In October 2007, defendant Drysdale again forcibly touched the plaintiff in the vaginal area and rubbed his penis against her buttocks. (Tr. 14). This time the police were notified and criminal charges were brought against him. (Tr. 16-17).
On October 19, 2007, defendant Drysdale was arrested on charges of forcible touching, N.Y. Penal Law § 130.52; attempted forcible touching, N.Y. Penal Law §§ 110 & 130.52; and harassment, N.Y. Penal Law § 240.26. (See Plaintiff's Ex. 1). The plaintiff was the complainant. (Tr. 19). The jury convicted the defendant on all counts.*fn1 (See Plaintiff's Ex. 1.)
The plaintiff testified that she never returned to work because she was afraid Drysdale would retaliate against her. (Tr. 18).
The plaintiff testified that when she left the employ of Classique in October 2007, she was making $400.00 per week. (Tr. 26). She found employment with Expression Distribution for ten (10) months at $275.00 per week. (Tr. 26-27). She left her job at Expression Distribution when she began receiving threatening anonymous phone calls on her cell phone at home. (Tr. 27). At the time of trial, the plaintiff was continuing to receive Worker's Compensation. (Id.).
The plaintiff testified that following her termination of employment at Classique she began receiving weekly group therapy at a Mount Sinai Hospital ...