Burhans/Rivera Sexual Harassment/Hostile Work Environment Claims Continue Against New York State

In Burhans and Rivera v. The State of New York (Sup. NY Index 152906/14), New York Supreme Court Judge Wooten held that plaintiff sufficiently alleged sexual harassment/hostile work environment (but not sex discrimination) claims against the defendant State.

Plaintiffs allege in their complaint that, under the New York State Human Rights Law, the State of New York, as plaintiff’s employer, is liable for the hostile work environment created by Lopez.

The court held that plaintiff’s sufficiently alleged that (1) the State of New York was their “employer” under State Human Rights Law section 292; (2) defendant, “through its supervisory personnel, had knowledge of Lopez’s past misconduct”; and (3) the State of New York “condoned” Lopez’s harassment.

As to whether the State condoned Lopez’s actions, Judge Wooten stated that under the New York State Human Rights Law, “plaintiffs must plead that their employer knew or should have known that its employee was being harassed, but failed to take proper action.”

The court explained:

Plaintiffs allege that [Sheldon] Silver, among other staff at the Assembly and the State of New York, knew of Lopez’s past confirmed sexual harassment against other women, prior to plaintiffs’ commencement of their employment. This includes the information reported by Complainants 1 and 2. Silver is responsible for drafting the sexual harassment policy, which calls for reporting complaints to the Ethics Committee and for an investigation. However, according to plaintiffs, instead of investigating sexual harassment complaints, Silver would reassign complainants or offer confidential settlements as a way to silence public complaints against Lopez for sexual harassment.

As set forth by plaintiffs, Lopez was never disciplined for his past behavior, nor were any actions taken to protect future employees who would be working with Lopez, despite there being many supervisory employees who were aware of Lopez’s harassment of prior female employees. Accordingly, plaintiffs have adequately pled that he State of New York should have known about Lope’s propensity for improper conduct, yet failed to take any preventative actions.

It rejected defendant’s argument that it could not have condoned Lopez’s harassment because it “responded quickly to plaintiffs’ complaints”, citing case law for the proposition that a “defendant’s termination of the alleged primary harasser promptly after plaintiff made her formal complaint does not necessarily show that defendant did not … condone … the alleged harassment before plaintiff made her formal complaint, or that defendant took reasonable corrective action in response to the formal complaint.”

The court analogized this case to Doe v. The New York State Assembly (Sup. Ct., Albany County, Mar. 15, 2005, McNamara, J., Index No. 3314/2004), in which the court declined to dismiss a complaint – based on the alleged rape of plaintiff by Sheldon Silver’s chief counsel James Michael Boxley – against the State of New York.

The court also cited the Southern District of New York’s denial of Sheldon Silver’s motion to dismiss plaintiffs’ federal action and that court’s observation that “this is not a case where the plaintiffs have offered mere conclusory assertions that Silver caused their rights to be violated” and that “[p]laintiffs have provided specific factual details such as names, dates and events to support their claims.”

It dismissed plaintiffs’ sex discrimination claims, however, finding that their allegations of harm to their careers were be “vague, conclusory and unsubstantiated” and that their post-complaint transfers to different positions within the Assembly did not qualify as “adverse employment actions”.

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