Sexual Harassment Lawsuit Continues Against Sheldon Silver

In Burhans v. Lopez, decided June 10, 2014, the Southern District of New York denied defendant Sheldon Silver’s motion to dismiss plaintiffs’ amended federal court complaint for failure to state a claim. This lawsuit arises out of sexual harassment committed by former New York State Assemblyman Vito Lopez against plaintiffs, who served as his legislative aides.

As relevant to Silver, plaintiffs alleged

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.” 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.”

Plaintiffs sought recovery under 42 USC § 1983. “In the case of a § 1983 claim of sexual harassment that creates a hostile work environment, a plaintiff must specifically show (1) intentional harassment, (2) based on sex, (3) under color of state law, (4) which was sufficient to render the environment hostile to the plaintiff.” Furthermore:

Under § 1983, an individual defendant may be held liable only if he or she was “personally involved” in the deprivation of the plaintiff’s rights. Personal involvement may be demonstrated by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference … by failing to act on information indicating that unconstitutional acts were occurring.

Defendant Silver argued that plaintiffs’ allegations are insufficient “contends that the allegations in the complaint are insufficient on four grounds: (1) he was not acting under color of state law; (2) he did not cause the deprivation of Plaintiffs’ rights; (3) he did not act with discriminatory intent; and (4) he is entitled to qualified immunity.

As to the “color of state” law claim the court held:

The inaction alleged by Plaintiffs—Silver’s failure to refer complaints of sexual harassment to the Ethics Committee, Silver’s failure to discipline Lopez, and Silver’s failure to take corrective measures to protect Lopez’s other employees—are all, arguably, examples of Silver’s failure to exercise his responsibilities as Speaker pursuant to the rules and policies of the Assembly. Plaintiffs, therefore, have sufficiently alleged that Silver acted under color of state law.

As to the second point, the court held:

Here, Plaintiffs adequately allege Silver’s “personal involvement” in the unconstitutional conduct, through Silver’s creation of a de facto policy or custom of tolerance of sexual harassment, through Silver’s deliberate indifference to Lopez’s misconduct and through Silver’s grossly negligent supervision of Lopez. Moreover, Plaintiffs provide sufficient factual support to show how Silver may have plausibly caused Plaintiffs’ injury. Plaintiffs claim that Silver was aware of prior incidents of sexual harassment involving Lopez and concealed them through confidential settlements and hushed reassignments. Plaintiffs further allege that Silver repeatedly failed to take the appropriate steps to address Lopez’s behavior. By not taking such steps, Silver created a culture “in which Lopez believed that he could sexually harass the women on his staff with impunity.”

Silver contends that he should not be held liable because he referred Plaintiffs’ complaints about Lopez to the Ethics Committee for investigation, but Silver’s argument misapprehends the scope of Plaintiffs’ allegations. Plaintiffs’ claim that Silver’s action and inaction, in the face of over a decade of successive complaints of sexual harassment against senior Assembly officials, fostered a culture of sex-based discrimination. It is not implausible, therefore, that Lopez’s sexual harassment of Plaintiffs was a foreseeable product of this culture. Their allegations are not so threadbare as to warrant dismissal, and similar cases have survived motions to dismiss. …

Furthermore, at the motion to dismiss stage, this Court need not decide whether Silver’s acts or omissions were the proximate cause of Plaintiffs’ injuries. … This is not a case where the plaintiffs have offered mere conclusory assertions that Silver caused their rights to be violated. Plaintiffs have provided specific factual details such as names, dates and events to support their claims. … Assuming the truth of Plaintiffs’ allegations and drawing all inferences in Plaintiffs’ favor as non-moving parties, the Court finds that Plaintiffs have alleged sufficient facts to establish a plausible claim that Silver participated in and caused the deprivation of their rights.

Next, the court held that plaintiffs adequately alleged that Silver acted with discriminatory intent:

Plaintiffs’ claims that Silver knew of previous sexual harassment complaints and shirked his legal responsibility to adequately address them and that he created a policy or custom in which Assembly officials were permitted to sexually harass employees are sufficient to establish intent.

To the extent that Silver argues that Plaintiffs have not alleged that he discriminated against them specifically on the basis of their sex, Silver misapprehends what is required at this stage. …
Even after discovery is complete, direct evidence of discriminatory intent is difficult to muster, and the trier of fact must often infer such intent based on circumstantial evidence. At the motion to dismiss phase, to keep their claims alive, Plaintiffs need only provide well-pleaded factual allegations, not evidence, of Silver’s discriminatory actions and intent. Plaintiffs have done so.

As to qualified immunity, the court held:

[N]either the law nor the facts (taken as true for purposes of this motion) support Silver’s claim of qualified immunity. First, Silver contends that the right at issue is the right to an investigation, but this argument misconstrues the nature of Plaintiffs’ complaint. Plaintiffs are not claiming the right to a process, they are claiming the right to a result—a sexual harassment-free workplace—and under the well-defined law of the Second Circuit, they were entitled to one. Plaintiffs allege that Silver was aware of Lopez’s pattern of behavior, that Silver knew of his obligation to take corrective action, but that he instead permitted Lopez to continue unchecked. No reasonable official (and in this case a lawyer) could have believed that turning a blind eye to Lopez’s misconduct was consistent with clearly established law. In fact, an official’s failure to remedy known sexual harassment complaints has defeated claims of qualified immunity in the past. (Emphasis added.)

Finally, the court denied defendant’s motion to dismiss their claims under the New York State and City Human Rights Laws. Silver argued that he was not an “employer” under either statute. The court disagreed, noting that Silver had “the power to do more than carry out personnel decisions made by others”, and was “personally involved in the conduct in question.”