Manhattan, NY (Law Firm Newswire) April 26, 2018 - While the Me Too movement forces institutions throughout America, from Hollywood to Congress, to confront the issues of workplace harassment and the abuse of women, one group of Americans continue to suffer in relative anonymity. In a Southern District of New York courtroom, Zein E. Obagi, Jr. of Obagi Law Group is fighting to give that group a voice.
While the Foreign Sovereign Immunities Act (FSIA) grants immunities to foreign sovereignties with respect to some aspects of United States law, it does not grant complete immunity. And one area where some foreign sovereignties are abusing these privileges — and in turn abusing the rights of American citizens — is in their employment practices.
At the intersection of the Me Too movement and abuses of the Foreign Sovereign Immunities Act is Fontoine v.The Permanent Mission of Chile to the United Nations, et al., S.D.N.Y. Case No. 17-CV-10086. This case will show that Ms. Fontoine, a single mother, was subject to harassment for more than two years — starting with her job interview and lasting beyond her unlawful termination, to withholding of her final payment for nearly four months. Even after her employment, it is suspected that her diplomatic superiors at the Chilean Permanent Mission wrote an anonymous letter to her new employer calling her a troublemaker.
The Permanent Mission of Chile has suggested that it and its diplomats are immune from suit, but, Obagi Law contends they are not. “The Second Circuit has held that where a foreign state has voluntarily agreed that the law of a particular country will govern a contract, the foreign state has waived its immunity to suit on that contract in the jurisdiction designated.”
Accordingly, Chile’s waiver of sovereign immunity will be one of the plaintiff’s paths to ensuring these actors’ awful conduct in the workplace is not swept under the federal rug. The contract between the Chilean Permanent Mission and Ms. Fontoine designated U.S. Law as applicable to her employment claim, thereby incorporating the protections of the New York City and New York State Human Rights Laws.
Some of the allegations against the defendants include the following:
• While interviewing for an administrative position at the Mission in New York City in May 2015, Ms. Fontoine was subjected to completely irrelevant questions about her marital status, the reason for her impending divorce, and where her estranged husband lived and worked.
• After being hired, Deputy Permanent Ambassador Carlos Olguin relayed to Ms. Fontoine in a group setting that Head of Chancery Fidel Coloma, the plaintiff’s superior, wanted a date with her – this put her awkwardly on the spot in her work setting, and others sensed and reacted to this awkwardness. When she told Mr. Olguin how awkward the comment made her feel, he became upset with her. He claimed that he was the ambassador, and had the power to change her contract at will.
• Deputy Ambassador Carlos Olguin asked to rub lotion on her hands while she was working.
• On another occasion, Deputy Ambassador Olguin asked plaintiff if she had a boyfriend, why not, and whether she was on Tinder. Following her response in the negative, the Deputy Ambassador proceeded to tell the plaintiff about a female Mission employee in Argentina, who was drooled about by all the men because of her big breasts and buttocks — a completely inappropriate workplace conversation by an diplomat to his secretary. He raved about how women threw themselves at him.
When it became clear that Ms. Fontoine was not comfortable with nor receptive to this treatment, the inappropriateness turned to threats and tactics designed to lay the groundwork for Ms. Fontoine's termination.
Among them, the Mission defendants allegedly:
• Threatened to arbitrarily and capriciously change the terms of Ms. Fontoine's employment.
• Accused her of speaking disrespectfully to male officials and ambassadors.
• Conjured up false claims of complaints about plaintiff without proof or substantiation.
• Stripped her of responsibilities.
• Threatened her with termination — and ultimately unlawfully terminated her employment.
The hostile work environment manifested into other tactics familiar to women throughout the workforce, including the imposition of rules unique and adverse to Ms. Fontoine regarding medical visits, child care and vacation time. All of this conduct was seen, condoned and even ratified by Chile’s top diplomat in Manhattan, Ambassador Cristian Barros.
After nearly two years of this harassment, Ms. Fontoine's level of anxiety and depression reached the point of physical illness. She began to seek medical help, and filed a complaint with the Ministry of Foreign Affairs.
This only ramped up the harassment to which Ms. Fontoine was subjected, including an ambassador calling her a liar. The Mission refused to issue a simple verification of employment without Ms. Fontoine first signing a modified contract of employment.
Even after Ms. Fontoine's unlawful termination in June 2017, the abuse continued. She did not get her final paycheck until nearly four months after wrongful termination, and only after Ms. Fontoine wrote a letter to the Secretary General of the United Nations asking to intervene on her behalf. She also wrote a letter to the President of Chile, Michelle Bachelet – all to no avail.
Ms. Fontoine subsequently thought she had moved on with her life, finding new gainful employment after her wrongful termination. At that time that, however, an “anonymous” letter arrived at Ms. Fontoine’s new employer, stating:
"I would like to notify you that this individual created major disruption in our organization to the point that many people suffered the consequences of her lies and slander. I join an article from the biggest newspaper in Chile that reported the problem in its pages. Be very wary."
Defendants’ conduct is textbook workplace harassment, the epitome of the abuse that has led to the rise of the Me Too movement. The fact that the harassment came at the hands of foreign officers and dignitaries while in the offices of a foreign sovereignty does not lessen the impact of the harassment, nor does it absolve the sovereignty of liability.
Instead, by entering into an employment agreement with a U.S. citizen, a foreign sovereignty agrees to adhere to, and is thus subject to, U.S. labor law. Obagi Law intends to hold each of the defendants fully liable for their extreme and outrageous conduct.
This case is Mr. Obagi’s fourth opportunity to represent an American against a foreign state. This is his second representation against a nation’s New York Permanent Mission to the United Nations in the Southern District of New York. He previously represented the driver for Sweden’s Permanent Mission to the United Nations who was severely personally injured after a workplace injury. That matter went to a non-jury trial in October 2017, and remains under submission as of this date.
Mr. Obagi has previously represented plaintiffs in successful judgment enforcement against Mexico, and in contractual business litigation against Mozambique.
Obagi Law Group, P.C.