24 F. Supp. 3d 375
S.D.N.Y.2014Background
- Plaintiffs Victoria Burhans and Chloé Rivera, former legislative aides to Lopez, allege Silver as Speaker created a de facto policy tolerating sexual harassment by senior Assembly officials.
- Plaintiffs claim Silver was personally involved through action and acquiescence in fostering a culture permitting gender-based discrimination.
- Plaintiffs allege Lopez harassed them and Silver overruled Lopez’s termination decision, thus enabling misconduct and shielding others.
- Plaintiffs cite prior harassment complaints (2001 Boxley; 2003 Boxley conviction; 2009 Kellner) and concealment through settlements and reassignments.
- Plaintiffs allege Silver declined to investigate, discipline Lopez, or protect other employees, despite knowledge of harassment, leading to a hostile work environment.
- In 2012–2013, after complaints, Ethics Committee investigations led to sanctions against Lopez, with Silver endorsing removal, while investigations continued and settlements occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Silver acted under color of state law | Plaintiffs allege inaction under color of state law | Silver contends inaction is insufficient for color-of-law liability | Yes; inaction under Assembly rules supports color of state law |
| Whether Silver was personally involved and caused the deprivation | Silver’s creation of a tolerated culture and neglect caused rights violations | Plaintiff’s claims are insufficiently connected to Silver’s actions | Yes; allegations show plausible personal involvement and causation |
| Whether plaintiffs alleged discriminatory intent | Intent can be inferred from knowledge of harassment and failure to act | Intent not adequately pleaded | Yes; circumstantial evidence suffices at this stage |
| Whether Silver is barred by qualified immunity | Rights to a harassment-free workplace were clearly established | Qualified immunity should shield officials absent clearly established rights | No; not entitled to qualified immunity |
| Whether NYSHRL/NYCHRL claims survive against Silver as employer or supervisor | Silver has power to hire/fire and set pay, thus an employer and personally involved | Not an employer under NYSHRL/NYCHRL or not personally liable | Yes; Silver is an employer and personally involved; NYCHRL claims are liberally construed |
Key Cases Cited
- Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) (test for § 1983 personal involvement and supervisory liability)
- Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995) (personal involvement standard for § 1983 liability)
- Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) (guidance from Title VII in § 1983 hostile environment actions)
- Jemmott v. Coughlin, 85 F.3d 61 (2d Cir. 1996) (discriminatory intent may be inferred from conduct even without direct evidence)
- Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134 (2d Cir. 1993) (discriminatory intent may be inferred and harassment can support § 1983 claims)
- Holtz v. Rockefeller & Co., Inc., 258 F.3d 62 (2d Cir. 2001) (direct/indirect evidence of discriminatory intent; factors for inference)