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Burhans v. Lopez

United States District Court, S.D. New York

June 10, 2014


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[Copyrighted Material Omitted]

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For Victoria Burhans, Chloe Rivera, Plaintiffs: Kevin Todd Mintzer, Kevin Mintzer, P.C., New York, NY.

For Vito Lopez, Defendant: Jonathan Samuel Hershberg, Rottenberg Lipman Rich, P.C., New York, NY; Laura Sack, Lyle Stewart Zuckerman, Vedder Price P.C. (NY), New York, NY.

For Sheldon Silver, Defendant: Bettina Barasch Plevan, LEAD ATTORNEY, Proskauer Rose LLP (NY), New York, NY; Kristin Sara Rozic, Proskauer Rose LLP (NY), New York, NY.


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ANALISA TORRES, United States District Judge.

Plaintiffs, Victoria Burhans and Chloë Rivera, bring this action under 42 U.S.C. § 1983, alleging gender discrimination and hostile work environment in violation of the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also assert parallel state and city law claims, alleging violations of the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 290, and the New York City Human Rights Law (" NYCHRL" ), Administrative Code of the City of New York § 8-107. Defendant Sheldon Silver (" Silver" ), moves to dismiss the amended complaint (the " complaint" ) under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons set forth below, Silver's motion is DENIED.


In this action, Plaintiffs, who both served as legislative aides to former New York State Assemblyman Vito Lopez (" Lopez" ), allege that prior to and during their employment, Silver, as Speaker of the Assembly, " created a de facto policy or custom in which sexual harassment by senior officials . . . was tolerated or condoned." Am. Compl. ¶ 19. Plaintiffs claim that Silver, in the exercise of his statutory authority and while carrying out his administrative responsibilities, was personally involved--through his actions and his acquiescence--in establishing a culture that fostered the violation of Plaintiffs' constitutional right to a workplace free of gender-based discrimination. Plaintiffs also allege that they were sexually harassed by Lopez, that Silver " personally assisted Lopez," that Silver was " deliberately indifferent" to Lopez's ongoing misconduct and that Silver was " grossly negligent in supervising Lopez." Id. ¶ 89.

In support of their allegations regarding Silver's role in the deprivation of their rights, Plaintiffs cite multiple complaints of sexual harassment against Assembly officials dating back more than a decade.[1] In 2001, Assembly employee Elizabeth Crothers " reported to Silver that Michael Boxley . . . Silver's chief counsel, had sexually assaulted her." Id. ¶ 20. Despite the accusation, Silver kept Boxley on. In 2003, Boxley was convicted of the crime of sexual misconduct under N.Y. Penal Law § 130.20. During his guilty plea, Boxley admitted under oath to having sex with another female Assembly employee without her consent. Id.; In re Boxley, 8 A.D.3d 949, 950, 780 N.Y.S.2d 37 (2004). In 2009, a junior staff member for Assemblyman Micah Kellner complained to one of Kellner's senior aides that Kellner was sexually harassing her. The aide relayed the complaint to William Collins, the Assembly's Chief Counsel for the Majority " and who reported directly to Silver," and provided Collins with transcripts of chat exchanges between Kellner and the junior staff member. Am. Compl. ¶ 22. The Assembly, however, did not investigate the complaint, which Plaintiffs attribute to " a longstanding practice in the chamber of shielding members from embarrassment." Id. (citation omitted).

Plaintiffs also allege that Silver was directly involved in managing at least three recent, separate complaints of sexual harassment involving Lopez which were lodged prior to Plaintiffs' employment in his office. In December 2011, a Lopez employee (" Complainant One" ) complained to Yolande Page, the Assembly's Deputy Director of Administration, that Lopez had

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sexually harassed Complainant One and other women staff members. Id. ¶ 23. In response, Page informed Complainant One that she needed to contact the Office of Counsel for the Majority to make a formal complaint. Id. ¶ 25. During the same month, a second Lopez employee (" Complainant Two" ) contacted Page about filing a sexual harassment complaint against Lopez. Id. ¶ 32. Both women were referred to Collins and Carolyn Kearns, the Assembly's Deputy Counsel for the Majority and Majority Counsel to the Ethics Committee. Id. ¶ ¶ 26, 28, 30, 32-34. At about the same time, Silver learned of the complaints against Lopez. Id. ¶ ¶ 27, 31, 36, 39. On January 11, 2012, Lopez fired Complainant Two, but Silver overruled Lopez's decision and retained Complainant Two on the Assembly payroll. Id. ¶ 37.

In January 2012, at the suggestion of James Yates, Counsel to the Speaker, Collins spoke with Deputy Attorney General Arlene Smoler, who informed Collins that the Assembly was legally obligated to conduct an investigation into the complainants' allegations. Id. ¶ ¶ 40, 41. At a January 24, 2012 meeting, Collins relayed Smoler's advice to Silver, Yates and Kearns. Id. ¶ ¶ 42, 43. Collins also expressed his own opinion that the Assembly was required to investigate. Id. ¶ 43. In February 2012, Silver transferred the complainants from Lopez's office to other jobs in the Assembly. Id. ¶ 46. Following private mediation, Silver approved a settlement whereby the Assembly paid a total of $103,080 to the complainants and Lopez paid $32,000. Id. ¶ ¶ 52, 55. However, Silver did not order an investigation into the allegations, did not refer the matter to the Ethics Committee, did not discipline Lopez and did not take measures " to protect the other employees in Lopez's office." Id. ¶ ¶ 44, 45, 54. In addition, at Silver's direction, Collins contacted the complainants and reminded them of their obligation to keep the settlement confidential. Id. ¶ 75.

In March 2012, Kearns spoke with another female employee who " was very stressed and urgently wanted to leave Lopez's office." Id. ¶ 47. Although the employee did not wish to file a formal complaint, " Silver learned of [her] request for a transfer and the circumstances of her request," but did not take any action. Id. ¶ ¶ 48, 49.

In April 2012, Lopez hired Plaintiffs, both women in their twenties, as legislative aides. Id. ¶ ¶ 56, 57. Shortly thereafter, Lopez began making unwelcome sexual overtures--commenting on their appearance and engaging in unwanted physical contact. For example, Lopez insisted that Plaintiffs not wear a bra to work. Lopez also touched Burhans' inner thigh, and grabbed Rivera's hand, tightening his grip when she tried to pull away. See, e.g., id. ¶ ¶ 66, 67.

In July 2012, Plaintiffs separately complained about Lopez's behavior to Kearns. Id. ¶ ¶ 68, 70. In mid-July, Plaintiffs ceased working for Lopez, but Silver authorized their remaining on the payroll. He eventually arranged their transfer to new jobs with other members of the Assembly. Id.

Plaintiffs' complaints were referred to the Assembly Standing Committee on Ethics and Guidance (the " Ethics Committee" ), which concluded its investigation in August 2012. Id. ¶ ¶ 72, 73. The Ethics Committee found Plaintiffs' allegations to be credible and recommended terminating Lopez's committee and seniority privileges. Id. ¶ ¶ 73, 74. Silver publicly adopted the Ethics Committee's findings and imposed on Lopez the recommended sanctions. Id. ¶ 74. After the ...

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