Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 1 of 30

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

KIMBERLY SCHIAVONE, an individual,
COMPLAINT WITH

Plaintiff,

DEMAND FOR JURY
TRIAL

-againstCivil Case No.:
BRIAN GESTRING, MICHAEL C. GREEN,

1:18-cv-1453 (LEK/CFH)

KAREN DA VIS, MARK BONACQUIST,
STATE OF NEW YORK, JOHN D O E # 1 ,
JOHN DOE #2, JOHN DOE #3, JOHN DOE #4,
JANE ROE # 1 , JANE ROE #2, JANE ROE #3,
and JANE ROE # 4,

Defendants.

Plaintiff Kimberly Schiavone, by and through her attorneys, Bailey, Johnson &

Peck, P . C . , as and for her Complaint complaining about Defendants, jointly and

severally, alleges as follows:

NATURE OF THE ACTION

1.

Plaintiff Kimberly Schiavone is an employee of the State of New York,

Division of Criminal Justice Services ("DCJS"), an executive department agency located

in Albany, New York. This case concerns Brian Gestring, Michael C. Green, Karen

Davis, Mark Bonacquist, the State of New York, and John D o e # 1 - 4 and Jane D o e # 1

- 4 (hereinafter referred to collectively as "Defendants") unlawful retaliation against

Plaintiff Kimberly Schiavone ("Plaintiff') for her complaints and testimony detailing the

systemic sexual harassment, age discrimination, gender discrimination, racism, and

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workplace violence that occurred, and was permitted to continue, by executive

management officials within DCJS.

2.

This is a civil action in which Plaintiff is seeking damages arising out of

Defendants' violations, under color of state law, of Plaintiffs rights, privileges and

immunities secured by, inter alia, the First Amendment of the United States Constitution,

the Fourteenth Amendment of the United States Constitution, the Civil Rights Act of

1 8 7 1 , 42 U . S . C § 1 9 8 3 , 29 U . S . C § 623(d) and the Constitution and laws of the State of

New York.

3.

Plaintiff also seeks a remedy for violations of the laws of the State of New

York based on the supplemental jurisdiction of this Court pursuant to 28 U . S . C § 1 3 6 7 ,

seeking relief for damages that Plaintiff has suffered as a result of being discriminated

and retaliated against by Defendants.

4.

Defendants collectively engaged in a pattern and practice of retaliation

against Plaintiff, acting in coordination with one another and, upon information and

belief, Defendants John Does and Jane Roes to be named, in order to deprive Plaintiff of

her most fundamental liberties, and failed to prevent subsequent unconstitutional acts,

and acts violative of State and Federal law against Plaintiff.

THE PARTIES

5.

Plaintiff Kimberly Schiavone is an adult female over the age of forty (40).

She is a citizen of the United States of America who currently resides in the Northern

District of New York.

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6.

At all times relevant, Plaintiff was an "Employee" of the DCJS and the

DCJS was an "Employer" of the Plaintiff within the meeting of 42 U S C § § 2000e, et seq.

and the Human Rights Law of the State of New York.

7.

During Plaintiffs twenty-two (22) years of public service, and in particular,

from 1 9 9 6 until August 2 0 1 7 , Plaintiff had an unblemished employment record.

8.

Between June 2006 and December 1 3 , 2 0 1 7 , Plaintiff held the position of

Forensic Services Program Manager within the DCJS Office of Forensic Services (OFS).

9.

Defendant Brian Gestring (hereinafter "Defendant Gestring"), sued herein

individually, is a resident of the State of New York.

10.

Between July 2 0 1 2 and December 1 3 , 2 0 1 7 , Defendant Gestring was the

Director of OFS and Plaintiffs immediate supervisor.

11.

Defendant Michael C. Green (hereinafter "Defendant Green"), sued herein

individually, is a resident of the State of New York.

12.

At all times herein relevant, Defendant Green was the Acting

Commissioner

1

of DCJS, serving in the title of Executive Deputy Commissioner of

DCJS.

13.

As Acting Commissioner of DCJS, Defendant Green had the power to

make personnel decisions regarding Plaintiffs employment.

1

For all intents and purposes, Michael C. Green serves and functions as the DCJS Commissioner.

However,

Defendant Green, despite having been first appointed in 2 0 1 2 , has never been confirmed by the NYS State Senate
and, thus, does not technically hold the statutorily designated position ofDCJS's Commissioner. He is in the
Executive Deputy Commissioner line.

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14.

As Acting Commi sioner of DCJS, Defendant Green was ultimately

responsible for the supervision and continued employment of Defendant Brian Gestring.

15.

Defendant Karen Davis (hereinafter "Defendant Davis"), sued herein

individually, is a resident of the State of New York.

16.

At all times herein relevant, Defendant Davis was the Director of Human

Resources for DCJS.

17.

Defendant Mark Bonacquist (hereinafter "Defendant Bonacquist"), sued

herein individually, is a resident of the State of New York.

18.

At all times herein relevant, Defendant Bonacquist was First Deputy

Commissioner for DCJS.

19.

Defendant, State of New York, is a state organized and maintained pursuant

to the New York State Constitution with it

principal office located at the State Capital,

Albany, New York.

20.

Defendants John Does # 1 - 4 and Jane Roes # 1 - 4 are individuals who are

residents of the State of New York and employees of the State of New York, including

employee

and/or supervisor

at DCJS, the Governor's Office, the Office of the New

York State In pector General s Office, and other executive branch employees who

participated in the retaliatory actions against Plaintiff, but whose specific identities are

currently unknown.

They are sued herein individually, and their names will be

substituted at a later time.

21.

At all times herein relevant, Defendants John Does and Jane Roes were

employees of the State of New York and were involved in Plaintiffs wrongful adverse

4

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employment action and/or the subsequent conspiracy to fail to rectify that adverse

employment action.

22.

Defendants are named in both their individual and official capacities.

JURISDICTION AND VENUE

23.

This Court has jurisdiction over the subject matter of this action pursuant to

28 U . S . C . § 1 3 3 1 .

This Court has supplemental jurisdiction over Plaintiffs New York

State law claims under 28 U . S . C . § 1 3 6 7 .

24.

Venue is proper in this district pursuant to 28 U . S . C . § 1 3 9 1 because a

substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this

district and the Plaintiff and a majority of the Defendants reside in the Northern District

of New York. Pursuant to 28 U . S . C . § 1 3 9 1 ( b ) , an action may be brought where any

Defendant resides if all Defendants are residents of the State wherein the district is

located, as here.

The retaliatory and tortious conduct also occurred in the jurisdiction of

the Northern District of New York.

CONDITIONS PRECEDENT

25.

On or around June 5, 2 0 1 8 , Plaintiff timely submitted a charge of

discrimination on the basis of, inter alia, sex and age to the U . S . Equal Employment

Opportunity Commission (EEOC) of the State of New York. A copy of this charge of

discrimination is attached, marked Exhibit "A", and incorporated by reference.

26.

The Equal Employment Opportunity Commission (EEOC) assumed

jurisdiction over Plaintiffs charge pursuant to Title 42 of the United States Code, section

5

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2000e and notice of the charge was served on the DCJS pursuant to statutory

requirements.

27.

On October 2 5 , 2 0 1 8 , Plaintiff received a "notice of right to sue within 90

days" from the EEOC. A copy of this notice is attached, marked Exhibit "B", and

incorporated by reference.

FACTUAL ALLEGATIONS

28.

Plaintiff commenced employment at DCJS on July 5, 2005 as a Project

Coordinator.

29.

In June 2006, Plaintiff was asked by then DCJS Commissioner Chauncey

Parker, and First Deputy Commissioner Martin Cirincione, to manage the implementation

of the June 23, 2006 legislative DNA expansion.

30.

In June 2006, Plaintiffs title changed from Project Coordinator to Forensic

Services Program Manager.

31.

Plaintiff is a female and over the age of forty (40) and as such is a member

of a protected class.

32.

Plaintiff is a civil service employee and a member of a union. At all times

relevant to the suit, Plaintiff was acting in the scope of her employment for DCJS.

33.

Upon information and belief, DCJS is aware of, and has been since on or

about the year 2 0 1 2 through reports of employees, that there is disparate treatment,

sexual harassment, ageism, racism, as well as a hostile work environment at DCJS.

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34.

DCJS is required to and failed to provide fair and equal treatment in terms

of employment including discipline and sanctions for misconduct of employees without

regard to gender, race, age, or other classification.

35.

Commencing in the year 2 0 1 2 , and continuing on various dates up to the

present, Plaintiff has suffered a series of discriminatory and retaliatory actions by the

Defendants since complaining of a hostile work environment, workplace violence, and

discrimination on account of her age and sex. As a result of the Defendants' ongoing and

persistent discriminatory policies and practices, Plaintiff has suffered the following:

36.

Plaintiff was subjected to repeated sexual jokes, comments, threats of

physical violence, threats of professional retribution, hostile behavior, taunts, racist

comments, sexist comments, and demeaning comments by Defendant Gestring. Such

treatment repeatedly included, but was not limited to, comments about "splitting a pubic

hair", "hump more", "think about it in the shower"; comments that a certain older female

manager was a "troll" and going on to state that performance criticism could be ignored

because that manager was "jealous" because the younger female subordinate "was so

attractive" and the manager "was a troll"; indicating that the managers over 40 could be

ignored by the younger female staff; referring to a curling iron as a sex toy; asking a

female employee if her daughter at college was enjoying naked; co-ed hot tub parties,

referencing his sex life, showing employees pictures of his wife in a bikini; referring to

Plaintiff as an "annoying person"; referring to employees over the age of 40 as "stupid"

or "dumb"; shouting; repeatedly referring to an employee as a well-known convicted sex

offender (Jared Fogle); telling a female employee that her husband was going to knock

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her teeth out, publicly shaming employees in front of subordinates; hanging a photo of

convicted sex offender Bill Cosby in his office; threatening to throw employees out the

gth

floor window; calling the Plaintiff into his office after all of the other staff had left for

the day, with the light dimmed, and proceeding to yell and threaten Plaintiff by stating "I

could hurt you right now if I wanted to";

accusations

Plaintiff was instructed to make false

of sexual harassment against another employee who was over the age of 40

indicating that it was "a way to get him fired"; derogatory comments about Asian

employees; referring to Plaintiff as "old girl" and younger female employees as "young

girl"; pressure and demands that Plaintiff issue false positive performance evaluations for

a younger female subordinate; comments about younger female employees wearing pants

with "juicy" on the rear-end; demand to inspect Plaintiff's personal cell-phone while not

making similar requests of other employees; and overall instituting a retention and

termination policy that discriminatorily hires and promotes young females while

denigrating older employees and males.

37.

Plaintiff rebuffed Defendant Gestring's repeated sexually explicit and

inappropriate comments.

Plaintiff reported Defendant Gestring's inappropriate conduct

to management personnel whom included Defendants Davis and Bonacquist.

38.

Upon information and belief, Defendant Davis and/or Defendant

Bonacquist reported Plaintiff's complaints to Defendant Green.

39.

No action was taken by Defendants Davis, Bonacquist or Green to remedy

Defendant Gestring' s conduct.

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40.

Defendant Gestring discriminated and retaliated against Plaintiff by

reassigning her to tasks that were performed by her subordinates, issuing a false negative

performance evaluation and ridiculed Plaintiff requiring Plaintiffs subordinates to review

her work.

41.

Defendant Gestring assigned Plaintiff clerical work that she had not

performed prior to confronting Defendant Gestring, stripping her of managerial duties.

Defendant Gestring further retaliated against Plaintiff by then issuing a negative

performance evaluation of her reflecting on her supervision and managerial skills during

a period when Plaintiff had not had supervision and managerial duties.

42.

Following one instance where Plaintiff was called into Defendant

Gestring's office after all other staff had left for the day, where he had the lights dimmed

and proceeded to yell at Plaintiff stating that he could hurt her if he wanted, Plaintiff

reported the incident, as well as Defendant Gestring's request that Plaintiff file a false

sexual harassment complaint against another employee, to Defendant Davis as DCJS's

Director of Human Resources.

43.

Upon information and belief, little or no investigation of Plaintiffs

complaint was conducted.

44.

Approximately two to three weeks after her report, during which time

Plaintiff did not hear back from DCJS management, Plaintiff was told in a meeting with

Defendants Davis and Bonacquist that she was not to speak of the incident again and was

expected to continue "to act in a professional manner".

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45.

Defendant Davis was present at a second incident when Defendant Gestring

threatened to throw Plaintiff and another employee out of an

gth

floor window.

In

response, Defendant Davis chuckled at the remark and took no action to reprimand

Defendant Gestring.

46.

In May and June 2 0 1 7 , Plaintiff testified before members of the Inspector

General's Office about the pervasive hostile, discriminatory, and retaliatory atmosphere

in DCJS Office of Forensic Services.

Plaintiff's testimony included but was not limited

to the incidents described above and relayed to the Office of the Inspector General that

while incidents had been reported to DCJS Director of Human Resources no actions have

been taken to remedy the misconduct committed by Defendant Gestring.

4 7.

Plaintiff requested that her testimony to the Office of the Inspector General

not be made public or disclosed to any individual within DCJS for fear of retaliation.

48.

In July 2 0 1 7 , Defendant Gestring began to pressure Plaintiff and demand

that Plaintiff make false statements in a performance evaluation of a younger favored

female employee to which Plaintiff supervised.

49.

Plaintiff refused and was subjected to increasing pressure and retaliatory

behavior by Defendant Gestring.

50.

Thereafter, on or around August 4, 2 0 1 7 , Plaintiff filed a final complaint

with Defendant Davis by completing a Workplace Violence/Bullying Report detailing

some of the incidents described herein.

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51.

DCJS Workplace Violence Prevention Policy and Guidelines require that

reports of Workplace Violence/Bullying be reported to union representatives and be

followed-up with the reporting employee.

52.

Upon information and belief, DCJS did not report to Plaintiff's Union that a

Workplace Violence/Bullying Report had been filed against Defendant Gestring.

53.

Further, as of the date of this Complaint, no one has contacted the Plaintiff

to investigate her Workplace Violence/Bullying Report.

54.

Days after she filed the Workplace Violence/Bullying Report, Defendant

Gestring issued an unsatisfactory performance evaluation against Plaintiff.

Upon

information and belief, the unsatisfactory evaluation was in response and retaliation of

Plaintiff's filing of the Workplace Violence/Bullying Report.

55.

Upon information and belief, Defendant Green and non-party witness John

Czajka requested a transcript of Plaintiff's testimony before the Office of the Inspector

General.

56.

On October 24, 2 0 1 7 , Defendant Green and non-party witness Czajka met

with the Inspector General and her Executive Deputy Inspector General to discuss the

incidents described herein.

57.

Upon information and belief, prior to December 5 , 2 0 1 7 , Defendant Green

was provided a copy of Plaintiff's testimony before the Office of the Inspector General

and/or verbally advised by the Inspector General or the sum and substance of Plaintiff's

testimony.

1 1

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58.

On December 5 , 2 0 1 7 , Plaintiff was asked to appear for a meeting with

Defendant Green, Defendant Davis, and Defendant Bonacquist.

59.

At the aforementioned December 5, 2 0 1 7 meeting, Plaintiff was informed

that she was being transferred because she could no longer work with Defendant

Gestring.

60.

Notably, upon advising Plaintiff of the transfer, Defendant Green asked

Plaintiff if she needed a tissue . . . . Plaintiff was not crying nor was she sick at the time.

61.

On or before December 6, 2 0 1 7 , the Inspector General issued a report and

letter to Defendant Green and non-party witness Czajka detailing all of the incidents

described herein and finding that the Office of Forensic Services within DCJS was "rife

with incidents of sexual harassment, age discrimination, racism, and threats of

retaliation."

62.

Against her wishes, Plaintiff was forced to move to a position that she had

no experience or background in performing. Plaintiff worked for over ten years in a job

that she enjoyed performing and she was forced to take a position that she is not trained

to perform because of her testimony about the systematic discrimination taking place at

DCJS.

Plaintiffs transfer was tantamount to a demotion in her employment insofar as it

results in decreased promotional opportunity and stigma to Plaintiffs professional career.

63.

In addition to Plaintiffs transfer, she was forced to move from an executive

office to a storage closet. Plaintiff was forced to use the storage closet as her office

despite open offices being available. Plaintiff is shunned by her former co-workers and

executive staff.

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64.

Plaintiff was informed by her now-supervisor that he was instructed by

Defendant Bonacquist that she was to prepare detailed performance plan for every task

she performs. Upon information and belief, Plaintiffs co-workers were not required to

prepare performance plans in the level of detail that Plaintiff has been required.

65.

After media outlets reported on DCJS' systemic harassment, in March

2 0 1 8 , Defendant Gestring was fired for allegedly making inappropriate remarks some ten

months earlier unrelated to Plaintiffs employment.

66.

Upon information and belief, the alleged inappropriate remarks were

reported to executive staff contemporaneous to being made but no investigation or action

was taken against Defendant Gestring at that time.

67.

A DCJS spokeswoman stated that the firing wasn't related to this case.

68.

Following Defendant Gestring's termination, a meeting was held by

Defendant Green at which all Deputy Commissioners were in attendance.

69.

Plaintiff has since been told by staff of the Deputy Commissioners which

attended the meeting that Defendant Green represented and/or inferred to the Deputy

Commissioners that Plaintiffs complaints against Defendant Gestring were unfounded

and that she was transferred based on performance concerns.

70.

On March 23, 2 0 1 8 , Defendant Green issued an electronic message to all

DCJS staff that complaints against Defendant Gestring had been fully and impartially

investigated with all decisions made based on the facts.

any complainant as part of this investigation.

13

However, no one interviewed

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71.

The alleged impartial investigation was performed by members of DCJS

not an outside individual or agency.

72.

The investigation conducted by the Office of the Inspector General and the

conclusions raised therefrom were ignored by DCJS.

73.

Said e-mail inferred to all DCJS staff that the complaints made by Plaintiff

were unfounded.

74.

Based on comments made at the meeting held with the Deputy

Commissioners and the inferences within the March 2 3 , 2 0 1 8 e-mail, Plaintiffs

reputation among her colleagues has been irreparably damaged.

75.

Based on the representations and inferences made by Defendant Green

Plaintiffs promotional opportunities and upward advancement in DCJS and other State

agencies has been irreparably damaged.

76.

Since Defendant Gestring's termination, Plaintiff has requested that she be

returned to her position at the Office of Forensic Services.

77.

Plaintiffs request was denied.

Upon information and belief, Plaintiffs request was denied in retaliation

due to her testimony before the Office of the Inspector General and/or complaints to the

Defendants of the continued pervasive hostile and discriminatory environment Plaintiff

and other employees have been subjected to at DCJS.

78.

The Defendants have fostered and continue to foster an atmosphere of

discrimination, retaliation, harassment, and a hostile work environment based upon age

and gender. Such treatment was and has been known to occur for years and the

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Defendants have deliberately, recklessly, and/or negligently participated in such acts

and/or failed to cease or discourage such practices.

79.

The Defendants subjected the Plaintiff to more restrictive terms of

employment and scrutiny and otherwise subjected her to unequal treatment of

employment due to her sex and/or age.

80.

The Defendants subjected the Plaintiff to more restrictive terms of

employment, scrutiny, and otherwise subjected her to unequal treatment of employment

due to her complaints of discrimination, retaliation, and workplace violence.

81.

Despite knowledge of such practices and treatment, the Defendants have

deliberately and/or recklessly failed to correct or cease such practices nor seek

elimination of said practices.

82.

Since Defendant Gestring was appointed to the position of Director of OFS,

Defendants implemented a discriminatory policy and procedure for retaining, promoting,

demoting, transferring and terminating employees. Defendants' policy and procedure

included discriminating against applicants by changing job qualifications, job

responsibilities and job duties in order to hire/promote applicants that were female, young

and attractive.

83.

In at least once instance, Defendant Gestring altered a position posting to

allow for a younger less-qualified female candidate to apply for the position when she

would not otherwise be eligible to do so.

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84.

In tum, older female and male applicants were passed over for jobs and

promotions that they were otherwise qualified, and more often, more qualified to perform

then those female applicants that were awarded the position.

85.

This policy remained in place for several years and was not corrected or

changed by DCJS.

86.

This policy and procedure was so widespread and pervasive that it

impacted office morale and resulted in significant turnover.

87.

Due to this policy, over half of the workforce over the age of 40 employed

by the DCJS Office of Forensic Services was forced into retirement or to transfer out of

OFS.

88.

Defendants' unlawful employment practices described in this Complaint

involve similar acts of discrimination and hostility that took place over several years.

At

times, the unlawful acts would take place on a daily basis and with such frequency that

the culture of the office was molded around these discriminatory practices.

89.

Whenever Plaintiff reported these unlawful acts, Defendants either ignored

Plaintiffs reports, threatened Plaintiff with retaliation, or outright retaliated against

Plaintiff.

90.

The Defendants have encouraged, approved, continued and expanded,

concealed and participated in such perpetuation of said hostility and illegal and

unconstitutional practices to the detriment and injury of the Plaintiff.

91.

By acting as described above, the Defendants acted with malice or with

reckless disregard for the Plaintiffs rights. Plaintiff was caused to suffer harm, including

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but not limited to, anxiety, embarrassment, humiliation, degradation, stress, harm to

reputation and good name, anger, fear, and nervousness. Such acts by the Defendants

have injured the Plaintiff and subjected her to extreme emotional harm and injury for

which she is entitled to compensation therefore.

AS AND FOR THE FIRST CAUSE OF ACTION PURSUANT TO TITLE VII
(HOSTILE WORK ENVIRONMENT)

92.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs I through 89 above.

93.

The hostile acts described above are objectively severe and pervasive such

that a reasonable person would find them hostile.

94.

Plaintiff subjectively perceived the above mentioned acts in that they were

severe, pervasive, hostile and discriminatory.

95.

Plaintiff is a member of a protected class.

96.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under Title VII and that Plaintiff was harassed and subjected to

a hostile work environment.

97.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE SECOND CAUSE OF ACTION PURSUANT
TO THE NYS HUMAN RIGHTS LAW
(HOSTILE WORK ENVIRONMENT)

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98.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 95 above.

99.

Defendant Green, due to his power to do more than carry out personnel

decisions made by others in the course of his employment, is considered an "employer"

under the Human Rights Law.

100.

Alternatively, Defendant Green is an "aider and abettor" pursuant to NYS

Executive Law §296(6) and, therefore, his discrimination and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability is the New York State DCJS.

101.

Defendant Davis, due to her power to do more than carry out personnel

decisions made by others in the course of her employment, is considered an "employer"

under the Human Rights Law.

102.

Alternatively, Defendant Davis is an "aider and abettor" pursuant to NYS

Executive Law §296( 6) and, therefore, her discrimination and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability is the New York State DCJS.

103.

Defendant Gestring, due to his power to do more than carry out personnel

decisions made by others in the course of his employment, is considered an "employer"

under the Human Rights Law.

104.

Alternatively, Defendant Gestring is an "aider and abettor" pursuant to

NYS Executive Law §296(6) and, therefore, his discrimination and/or retaliation is

unlawful.

The employer for purposes of aiding and abetting liability is the New York

State DCJS.

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105.

Defendant Bonacquist, due to his power to do more than carry out

personnel decisions made by others in the course of his employment, is considered an

"employer" under the Human Rights Law.

106.

Alternatively, Defendant Bonacquist is an "aider and abettor" pursuant to

NYS Executive Law §296(6) and, therefore, his discrimination and/or retaliation is

unlawful.

The employer for purposes of aiding and abetting liability is the New York

State DCJS.

I 07.

Defendants John Doe and Jane Roe, due to their power to do more than

carry out personnel decisions made by others in the course of his employment, is

considered an "employer" under the Human Rights Law.

108.

Alternatively, Defendants John Doe and Jane Roe are an "aider and

abettor" pursuant to NYS Executive Law §296(6) and, therefore, his discrimination

and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability

is the New York State DCJS.

109.

The hostile acts described above are objectively severe and pervasive such

that a reasonable person would find them hostile.

110.

Plaintiff subjectively perceived the above mentioned acts in that they were

severe, pervasive, hostile and discriminatory.

1 1 1 .

Plaintiff is a member of a protected class.

112.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under the Human Rights Law of the State of New York and

that Plaintiff was harassed and subjected to a hostile work environment.

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113.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE THIRD CAUSE OF ACTION PURSUANT TO TITLE VII
(DISPARATE TREATMENT)

114.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs I through 1 1 1 above.

115.

At all times relevant, Plaintiff belonged to a protected class.

116.

At all times relevant, Plaintiff was qualified for her position and met all

legitimate expectations of her employer.

117.

By engaging in the foregoing conduct, Defendants took an adverse

employment action against Plaintiff under circumstances giving rise to an inference of

discriminatory intent.

118.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under Title VII and that Plaintiff was treated in a disparate

manner.

119.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE FOURTH CAUSE OF ACTION PURSUANT TO TITLE VII
(DISPARATE IMPACT)

120.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 1 7 above.

121.

At all times relevant, Plaintiff belonged to a protected class.

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122.

By engaging in the foregoing conduct, Defendants fostered and

implemented a discriminatory policy and practice that has a disproportionately adverse

impact against the Plaintiff.

123.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under Title VII that Defendants created an employment

practice that has a disproportionately adverse effect on members of a protected class.

1 24 .

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE FIFTH CAUSE OF ACTION PURSUANT TO TITLE VII
(RETALIATION)

125.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 2 2 above.

126.

By engaging in the foregoing conduct, Plaintiff opposed an unlawful

employment practice committed by the Defendants.

127.

In response to Plaintiffs opposition, Defendants retaliated and took an

adverse employment action against the Plaintiff.

128.

That a causal connection exists between Plaintiffs opposition and

Defendants' adverse employment action.

129.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under Title VII and that Plaintiff was retaliated against for

opposing the foregoing conduct and discrimination.

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130.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE SIXTH CAUSE OF ACTION PURSUANT
TO THE NYS HUMAN RIGHTS LAW
(RETALIATION)

131.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 2 8 above.

132.

Defendant Green, due to his power to do more than carry out personnel

decisions made by others in the course of his employment, is considered an "employer"

under the Human Rights Law.

133.

Alternatively, Defendant Green is an "aider and abettor" pursuant to NYS

Executive Law §296(6) and, therefore, his discrimination and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability is the New York State DCJS.

134.

Defendant Davis, due to her power to do more than carry out personnel

decisions made by others in the course of her employment, is considered an "employer"

under the Human Rights Law.

135.

Alternatively, Defendant Davis is an "aider and abettor" pursuant to NYS

Executive Law §296(6) and, therefore, her discrimination and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability is the New York State DCJS.

136.

Defendant Gestring, due to his power to do more than carry out personnel

decisions made by others in the course of his employment, is considered an "employer"

under the Human Rights Law.

22

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 23 of 30

1 3 7.

Alternatively, Defendant Gestring is an "aider and abettor" pursuant to

NYS Executive Law §296(6) and, therefore, his discrimination and/or retaliation is

unlawful.

The employer for purposes of aiding and abetting liability is the New York

State DCJS.

138.

Defendant Bonacquist, due to his power to do more than carry out

personnel decisions made by others in the course of his employment, is considered an

"employer" under the Human Rights Law.

139.

Alternatively, Defendant Bonacquist is an "aider and abettor" pursuant to

NYS Executive Law §296(6) and, therefore, his discrimination

unlawful.

and/or retaliation is

The employer for purposes of aiding and abetting liability is the New York

State DCJS.

140.

Defendants John Doe and Jane Roe, due to their power to do more than

carry out personnel decisions made by others in the course of his employment, is

considered an "employer" under the Human Rights Law.

141.

Alternatively, Defendants John Doe and Jane Roe are an "aider and

abettor" pursuant to NYS Executive Law §296(6) and, therefore, his discrimination

and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability

is the New York State DCJS.

142.

Defendants violated rights guaranteed to Plaintiff under the Human Rights

Law in that they subjected or aided and abetted others in retaliating against Plaintiff

because of her testimony to the Office of the Inspector General on issues of age

discrimination, racism, sexual harassment, and workplace violence.

23

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 24 of 30

143.

Defendants violated rights guaranteed to Plaintiff under the Human Rights

Law in that they subjected or aided and abetted others in retaliating against Plaintiff

because of her reported complaints against Defendant Gestring on issues of age

discrimination, racism, sexual harassment, and workplace violence.

144.

The underlying provision of the New York Human Rights Law here is N.Y.

Exec. L a w § 296(1)(e), which makes clear that it is unlawful "For any employer . . . to

discharge . . . any person because he or she has opposed any practices forbidden under

this article or because he or she has filed a complaint, testified or assisted in any

proceeding."

145.

By engaging in the foregoing conduct, Plaintiff opposed an unlawful

employment practice committed by the Defendants.

146.

In response to Plaintiffs opposition, Defendants retaliated and took an

adverse employment action against the Plaintiff.

1 4 7.

That a causal connection exists between Plaintiffs opposition and

Defendants' adverse employment action.

148.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under the Human Rights Law of the State of New York and

that Plaintiff was retaliated against for opposing the foregoing conduct and

discrimination.

149.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

24

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 25 of 30

AS AND FOR THE SEVENTH CAUSE OF ACTION PURSUANT TO TITLE VII
(DISCRIMINATION)

150.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 4 7 above.

151.

By engaging in the foregoing conduct, Defendants took an adverse

employment action against the Plaintiff.

152.

The Defendants' actions and adverse employment action were based on, or

motivated by Plaintiffs sex.

153.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under Title VII and that Plaintiff suffered an adverse

employment action because of her sex.

AS AND FOR THE EIGHTH CAUSE OF ACTION PURSUANT
TO THE NYS HUMAN RIGHTS LAW
(DISCRIMINATION)

154.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 5 1 above.

155.

By engaging in the foregoing conduct, Defendants took an adverse

employment action against the Plaintiff.

156.

Defendant Green, due to his power to do more than carry out personnel

decisions made by others in the course of his employment, is considered an "employer"

under the Human Rights Law.

25

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 26 of 30

157.

Alternatively, Defendant Green is an "aider and abettor" pursuant to NYS

Executive Law §296(6) and, therefore, his discrimination and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability is the New York State DCJS.

158.

Defendant Davis, due to her power to do more than carry out personnel

decisions made by others in the course of her employment, is considered an "employer"

under the Human Rights Law.

159.

Alternatively, Defendant Davis is an "aider and abettor" pursuant to NYS

Executive Law §296(6) and, therefore, her discrimination

and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability is the New York State DCJS.

160.

Defendant Gestring, due to his power to do more than carry out personnel

decisions made by others in the course of his employment, is considered an "employer"

under the Human Rights Law.

161.

Alternatively, Defendant Gestring is an "aider and abettor" pursuant to

NYS Executive Law §296(6) and, therefore, his discrimination and/or retaliation is

unlawful.

The employer for purposes of aiding and abetting liability is the New York

State DCJS.

162.

Defendant Bonacquist, due to his power to do more than carry out

personnel decisions made by others in the course of his employment, is considered an

"employer" under the Human Rights Law.

163.

Alternatively, Defendant Bonacquist is a n ' aider and abettor" pursuant to

NYS Executive Law §296(6) and, therefore, his discrimination and/or retaliation is

26

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 27 of 30

unlawful.

The employer for purposes of aiding and abetting liability is the New York

State DCJS.

164.

Defendants John Doe and Jane Roe, due to their power to do more than

carry out personnel decisions made by others in the course of his employment, is

considered an "employer" under the Human Rights Law.

165.

Alternatively, Defendants John Doe and Jane Roe are an "aider and

abettor" pursuant to NYS Executive Law §296(6) and, therefore, his discrimination

and/or retaliation is unlawful.

The employer for purposes of aiding and abetting liability

is the New York State DCJS.

166.

By engaging in the foregoing conduct, Defendants took an adverse

employment action against the Plaintiff in violation of New York State Executive L a w § §

296(1)(a) and 296 3-a(a).

167.

The Defendants' actions and adverse employment action were based on, or

motivated by Plaintiffs gender and/or age.

168.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under the New York State Human Rights Law and that

Plaintiff suffered an adverse employment action because of her sex.

AS AND FOR THE NINTH CAUSE OF ACTION PURSUANT
TO 42 U.S.C. § 1983 - FOURTEENTH AMENDMENT
(DISCRIMINATION)

169.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 166 above.

27

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 28 of 30

170.

The conduct committed by the Defendants described above was done so

while acting under color of law.

171.

By engaging in the foregoing conduct, Defendants have violated rights

guaranteed to the Plaintiff under the Equal Protection Clause of the 14th Amendment to

the United States Constitution and that Plaintiff was subjected to a hostile work

environment and discriminated against based on her age and gender.

172.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE TENTH CAUSE OF ACTION PURSUANT
TO 42 U.S.C. § 1983 - FOURTEENTH AMENDMENT
(RETALIATION)

1 73.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 7 0 above.

174.

The conduct committed by the Defendants described above was done so

while acting under color of law.

175.

By engaging in the foregoing conduct, Defendants took an adverse

employment action against the Plaintiff because Plaintiff complained of or otherwise

opposed discriminatory conducted committed by Defendants.

176.

As aforementioned, Plaintiff has sustained damages by reason of the

Defendants' wrongful actions and omissions.

AS AND FOR THE ELEVENTH CAUSE OF ACTION PURSUANT

28

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 29 of 30

TO 42 U.S.C. § 1983 - FIRST AMENDMENT
(RETALIATION)

177.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1 through 1 7 4 above.

178.

Plaintiff testified before the New York State Office of the Inspector General

regarding systemic problems of

exual harassment, age discrimination, gender

discrimination, racism, and workplace violence in DCJS, as well as the the refusal by

Defendants to respond to her complaints of these issues.

179.

In so doing, Plaintiff clearly testified on a matter that is of political, social

and societal concern.

180.

The public importance of the e topics has been highlighted in various forms

of State, local and national media.

181.

lndeed, New York State Governor Andrew Cuomo, in his 2 0 1 8 State of the

State addres ,

tated that the nation ' is taking a long look in the mirror as to how we treat

women, and we are disgusted with what we see.

And we should be."

And, in December

2 0 1 7 , he responded to a news organization stating, "When you say, ' I t ' s state

government,

woman,

It

you do a di service to women, with all due respect, even though you're a

It's not government.

comedians.

182.

1t s society.

It's politicians.

It was Harvey Weinstein in the arts industry.

It's chefs, right?

It's systemic."'

In March 2 0 1 8 , the New York State Legislature passed a sexual harassment

bill, which is supposed to provide additional protections to victims of harassment.

29

 Case 1:18-cv-01453-LEK-CFH Document 1 Filed 12/17/18 Page 30 of 30

( d)

Damages for emotional distress, pain and suffering, statutory damages,
Medical expenses, and interest;

(e)

Reasonable attorneys' fees and costs pursuant to 42 U S C § 1 9 8 8 and all
other applicable laws; and

(f)

Dated:

Such other and further relief as appears just and proper.

December 1 7, 2 0 1 8

Bailey, Johnson & Peck P.C.

/'

By:�--��������--r-�J hn W. Bailey
ar Roll No.: 1 0 1 0 6 9
rystal R. Peck
Bar Roll N o . :

514375

Attorneys for Plaintiff
5 Pine West Plaza, Suite 507

Washington Avenue Extension
Albany, New York 12205
( 5 1 8 ) 456-0082

JWBailey@baileyjohnson.com
CRPeck@baileyjohnson.com

33