Human Trafficking Case Vs Fil-Am Publisher, Ex-Tourism Official Settled

by Joseph G. Lariosa

CHICAGO (JGL) – A human trafficking case filed by Filipina caregiver Rosenda Millabangco Gonzaga against Filipino American publisher Bert Pelayo and his wife, Linda Pelayo, and their daughter, Joy McCarthy, and Joy’s husband, Chris McCarthy, and a former beauty queen-turned-Philippine Tourism Director Emma Ruth Yulo-Kitiyakara has been settled out of court before a full-blown jury court trial could start.

Terms of the settlement were not disclosed.

A similar case filed by United States federal authorities in Milwaukee, Wisconsin in 2004 ended up in the deportation of Filipino doctors Jefferson N. Calimlim Sr. and his wife Elnora M. Calimlim to the Philippines in 2012 after serving six years in federal prisons on human trafficking charges and after paying $900,000 in restitution to the victim and an additional $1-million in punitive damages after they were found liable for Civil RICO violation for human trafficking with respect to peonage, slavery, involuntary servitude, harboring an alien, mail an wire fraud.

In a discontinuance order on March 18, 2014, U.S. Circuit Judge Denny Chin of the U.S. District Court for the Southern District of New York said, “It having been reported to this Court that this matter has been settled, it is hereby ordered that this action is discontinued with prejudice but without costs; provided, however, that if the parties have not executed settlement agreements within 30 days of the date of this order, any party may apply by letter within the 30-day period for restoration of the action to the calendar of the undersigned, in which event the action will be restored.”

Gonzaga of Sta. Ana, Manila in the Philippines initially filed a 15-count claim for relief against the McCarthys, Pelayos and Yulo-Kitiyakara separately and/or collectively for violating her TVPRA (Trafficking Victims Protection Re-authorization Act of 2008) for involuntary servitude, forced labor, trafficking into servitude, unlawful conduct with respect to documents, Fair Labor Standards Act (FLSA) and New York Labor Law for minimum wage, unpaid overtime, “spread-of-hours” pay, conversion for taking away her passport without authorization and exclusion of plaintiff’s ownership rights in the property; intentional infliction of emotional distress, breach of contract, quantum meruit and unjust enrichment, a victim of human trafficking, held in conditions of involuntary servitude and forced labor for nearly 11 months.

PELAYOS AND McCARTHYS OFFERED TO SETTLE THE CASE

The Pelayos and McCarthys initially offered to settle the case, leaving Ms. Yulo-Kitiyakara as lone defendant. She was blamed by the Pelayos and McCarthys in answer to “cross-claim and cross-claim” for “the acts, or recklessness, carelessness and negligence.” They also demanded “judgment for contribution and/or indemnification in whole or in part and that the respective degrees of negligence of Yulo-Kitiyakara, be ascertained, determined and adjudicated and that defendants(s) Joy McCarthy, Chris McCarthy, Linda Pelayo and Bert Pelayo, have judgment over and against” co-defendant Yulo-Kitiyakara, “as their proportionate share commensurate with their respective degrees of negligence as will be decided on at the trial herein.”

As a hold-out in the settlement, Yulo-Kitiyakara “denies the material allegations” of Gonzaga’s complaint while asserting in her counterclaim that she has suffered reputational damages and severe stress as result of Gonzaga’s accusations, and seeks to recover money damages, attorney’s fees and the expenses of this litigation as well as certain cash ‘advances’ ($2,500) allegedly made to Gonzaga and travel expenses advanced on Gonzaga’s behalf.”

Judge Laura Taylor Swain, however, granted Gonzaga’s motion to dismiss Yulo-Kitiyakara’s Counterclaim “without leave to replead, with respect to all elements of the Counterclaim other than the claim for repayment of $2,500 in advances.”

According to court records, in 2009, Yulo-Kitiyakara felt she “needed help in caring for her husband, who had a worsening Parkinson’s condition, and in packing their belongings in anticipation of her retirement in June 2011.” She decided to hire a housekeeper and caregiver from Manila as part of her household staff for a period of two years in her Manhattan, New York apartment.

Gonzaga said that she landed at the San Francisco International Airport on April 22, 2010. During her flight from California to New York, Yulo-Kitiyakara informed her “for the first time” that she (Ms. Gonzaga) would not be working for Yulo-Kitiyakara but instead for “another family.”

Gonzaga’s new family turned out to be Joy McCarthy and husband Chris McCarthy, daughter and son-in-law, respectively, of New York’s Filipino Reporter publisher-editor Bert Pelayo and his wife, Linda Pelayo.

SALARY REDUCED BY LESS THAN A THIRD

Three weeks into her employment as housekeeper and caregiver of the McCarthy family at Orangeburg, New York home, Linda Pelayo told Gonzaga she “would not earn $1,600 salary (as) agreed in the Philippine contract (with Ms. Yulo-Kitiyakara). Instead, she would be paid $500 a month, $100 to be withheld to cover (Gonzaga’s) debts (cash advances from Yulo) in the Philippines,” according to court records.

Instead of earning $9.68 per hour as enumerated in her contract, Gonzaga would be earning $1 per hour if she were paid $400 a month for working at least 400 hours.

The contract prepared by Yulo-Kitiyakara for Gonzaga which they both signed in Manila on Feb. 16, 2010, detailed Gonzaga’s duties as employee of Yulo-Kitiyakara as “dusting furniture and cleaning the apartment, machine washing clothes, sheets and towels, cooking, washing of dishes and various other tasks related to household work.” The contract was presented to the U.S. Embassy by Gonzaga in order for her to be issued an A-3 diplomatic visa, a visa issued to personal employees, attendants and servants of foreign officials holding an A visa.

The contract also stipulated that Gonzaga “shall render a minimum of seven (7) hours (of work) per day, five (5) days of service a week and be ready to render at least 1 ½ hours of overtime work per day or a minimum of forty (40) hours of overtime per month; overtime pay shall be computed at 1 ½ times the basic pay per hour; after ninety (90) days of employment, the employer will remit payment by check or electronic transfer to the employee’s bank account; and the Employee cannot be required to work after the agreed work hours without prior agreement and just compensation.”

GONZAGA’S PLIGHT LONGER THAN BAOANAN

Gonzaga’s plight was longer than that of Marichu Suarez Baoanan, who complained in 2009 that she was subjected by the family of Philippine Ambassador to the United Nations Lauro Baja for “three months to involuntary servitude forced labor, peonage, debt bondage, and slavery as a domestic worker in their home on Manhattan’s Upper East Side” in 2008. The case was also later settled.

Gonzaga, in a complaint filed on her behalf by Carletta F. Higginson, Andrew J. Thomas and Daniel D. Welsh of Jenner & Block in New York and Los Angeles, California, respectively, said she was seeking compensatory and punitive damages, including attorney’s fees, against the defendants, who “confined her, stripped her of her passport, restricted communication with people outside the home and forced her to clean the homes of the defendants and their friends” under threats of being handcuffed and deported to the Philippines if she disobeyed their orders.

It was also another lawyer from Jenner & Block, who assisted Irma Martinez, who sued the Calimlims in Milwaukee. Like Martinez, Gonzaga was also granted by U.S. immigration authorities a four-year T-Visa that gives her a path to a Green Card and U.S. citizenship.

With no contact from the “outside” world, on or about March 1, 2011, while the McCarthys were out of the house, Gonzaga purchased a bus ticket to a town in California and took a taxi to the bus terminal in Manhattan and dashed for her freedom

Yulo-Kitiyakara could not make any comment on the settlement on advice of her lawyer, Leo L. Rosales, when reached by this reporter. Likewise, Bert Pelayo and his lawyer, Salvador Tuy, did not respond to email requests for comment by this reporter.

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PHOTOCAPTIONS

Bert and  Linda Pelayo (Photo grab from The FilAm.net)

Emma Ruth Yulo-Kitiyakara (www.philippinesnewyork.org)

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