Assembly Staff Member Sufficiently Alleges § 1983 Sexual Harassment Claim Against Dennis Gabryszak

In Kennedy v. NYS, 14-CV-990S, NYLJ 1202751641711 (WDNY Mar. 3, 2016), the Western District of New York held that plaintiff – a member of NYS Assembly Member Dennis Gabryszak’s staff – plausibly alleged hostile work environment sexual harassment against Mr. Gabryszak under 42 U.S.C. § 1983, and therefore denied defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

“To establish a hostile-work environment claim under Section 1983, a plaintiff must demonstrate that (1) she was intentionally harassed; (2) the harassment was based on her race or gender; (3) such actions were taken under color of state law; and (4) the harassment was so severe as to render the work environment hostile to her.”

Plaintiff alleges, in her Amended Complaint, the following:

Kennedy was hired on or about September 30, 2013, to act as Director of Community Relations in Defendant Gabryszak’s regional office in Cheektowaga, NY. From that date until the close of the Cheektowaga office upon Gabryszak’s resignation in January 2014, Kennedy worked under Gabryszak’s supervision, with [chief of staff Adam] Locher as her “immediate manager/supervisor.” Almost immediately upon Kennedy’s hiring, Gabryszak began making comments, gestures, and advances of a sexual nature toward her. Kennedy alleges, inter alia, that Gabryszak invited her to a couples’ massage, asked her whether she had a boyfriend and stated that she should “become pregnant”, frequently made comments about strip clubs and prostitutes and invited Kennedy to go to strip clubs with him, embarrassed her by purchasing a gift for her at a work event, caused her to view pictures of “scantily clad women” on a camera belonging to the office, and made various comments about her looks. Kennedy claims that Gabryszak’s unwelcome and offensive advances grew more “outrageous over time,” and that she “made every attempt to avoid Defendant Gabryszak but her primary job duties could not be accomplished without regular interaction with him.” Kennedy also alleges that she made several complaints regarding the behavior to Locher, who took no action except to tell her that this “was just how Dennis (Defendant Gabryszak) was.”

The court held that plaintiff “has plausibly stated a § 1983 claim against Gabryszak,” noting that the alleged acts of harassment “are more than single, isolated examples of verbal abuse.”

However, the court dismissed plaintiff’s claims under Title VII against the State of New York and the New York State Assembly due to lack of subject-matter jurisdiction. Specifically, plaintiff fell within Title VII’s “personal staff” exemption and therefore was not an “employee” within the meaning of that statute.

It also dismissed her claims against Sheldon Silver on the grounds that he was entitled to “qualified immunity” and that his actions did not rise to the level of “personal involvement” in the alleged violations.

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