In #MeToo Era, New York Courts' New Sexual Misconduct Policy Was Done Too Quietly, Critics Charge
As New York state lawmakers were preparing to develop a new sexual harassment policy for employers last year, the Office of Court Administration revised its own policy for dealing with such claims, without public notice and in a way that critics say was done too quietly.
Most of the changes were minimal, but some were important. The revised policy deleted any reference to sexual harassment being illegal and significantly shortened sections intended to reassure victims that retaliation for complaints would not be acceptable.
And the changes came in the midst of the #MeToo movement that has swept abusive and predatory men out of positions of power in the arts, government, the legal world and other sectors.
The movement has led to some upheaval in New York’s legal community.
Former state Attorney General Eric Schneiderman, for example, resigned just hours after The New Yorker published an article detailing allegations that he physically abused romantic partners.
The sprawling New York state court system, with about 16,000 employees, has not seen a takedown on the level that has befallen, say, the worlds of film and corporate America.
But it is not free from stories of sexually inappropriate behavior between judges, clerks and court officers.
Concerns about changes to OCA’s sexual harassment policy were raised in July when Alexis Marquez, a former law clerk for acting Manhattan Supreme Court Justice Douglas Hoffman, filed a lawsuit in the U.S. District Court for the Southern District of New York claiming that the judge tried to broach inappropriate topics with her during work hours, such as talking to her about cases involving sexual relations.
Marquez alleged the judge became hostile toward her after she told him to stop contacting her through her personal email address. Hoffman has not commented on the allegations.
Marquez claimed in her lawsuit that OCA revised its sexual harassment policy after she complained about Hoffman’s behavior.
OCA spokesman Lucian Chalfen said her claims were not the impetus for the revised policy, saying her allegation is a “completely made-up assertion” and that Marquez refused to cooperate with investigators.
Chalfen said that the inspector general’s office does have a case management system to track individual complaint cases, but that it does not make the number of complaints it investigates public.
The Commission on Judicial Conduct is also a major player, with the power to investigate such claims and discipline judges accused of misconduct. Those judges can be publicly censured for their actions or even recommend that a judge be removed from the bench by the state Court of Appeals.
The CJC, in contrast to the inspector general, issues an annual report that contains the number of complaints it receives and investigates, the source of the complaints and how they were handled.
For example, in 2017, the commission received 2,143 complaints—the vast majority coming from criminal defendants and civil litigants—of which 148 resulted in investigations begun, the step taken to weigh whether formal charges should be brought.
In 2017 it disposed of 325 investigations. About 10 percent of those resulted in formal charges for judges.
Though the CJC numbers reflect total cases and are not broken down into categories.
Glenn Damato, president of the New York State Court Clerks Association, said he believes sexual harassment to be a “rampant” problem in New York’s courthouses, but that employees are often too frightened to come forward. Many, he said, don’t see a winning battle in pursuing justice through the same courts where their alleged abuse occurred or going before judges and referees who may be on friendly terms with the accused.
“You’re fighting OCA on their turf,” Damato said. “I think it should be done independently of the courts.”
In response to Damato, Chalfen said his characterization of the prevalence of sexual harassment in the courts has "no basis in fact."
"Reckless statements like that are just exploitative," Chalfen said. "As we have maintained, any allegation is immediately followed up and thoroughly investigated by our inspector general’s office, without regard to anyone’s title or position in the court system."
Changing the Policy
Chalfen said Chief Judge Janet DiFiore inquired about the court system’s sexual harassment policy after allegations against former movie producer Harvey Weinstein became public, supercharging the #MeToo movement.
She started to ask questions about the role of OCA in sexual harassment claims: Does the court system have a sexual harassment policy? When was the last time it was updated? Is it readily available to court system employees?
From there, the court system’s human resources staff took on the task of updating and doing “stylistic editing” to the policy to affirm a “commitment to and awareness of our employees.”
“We alerted employees of the update and access to the policy is clearly indicated on both our internal and external websites,” Chalfen said. “In the future, should we see the need, the policy will continue to be modified.”
Marquez also claims in her suit that she was subjected to a “fragmented, bewildering and Kafkaesque” system when she tried to speak up about her alleged harassment to OCA brass. Her lawsuit is ongoing.
But if you are seeking hard numbers on the prevalence of sexual harassment in the state’s court system, you would be hard-pressed to find out.
Data on the amount paid out to victims of sexual harassment in the state’s courts is sparse and no state entity tracks those settlements. The State Comptroller’s Office approves payments requested by OCA but does not separate them based on purpose. The State Attorney General’s Office retains public records on settlements between state workers and OCA but does not otherwise track complaints of sexual harassment or discrimination within the state's court system.
That’s partly by design. Policies are in place to protect victims of sexual harassment, and at times those accused, from exposure. A new law passed by the state Legislature mirrored that concept earlier this year, banning nondisclosure agreements in cases of sexual harassment except when requested by the victim.
The OCA has a similar policy in cases of sexual harassment and discrimination, though you won’t find any record of those complaints if you ask. The office does not release information on the ubiquity of such claims within the court system, and public information requests inquiring about complaints are denied.
In other words, learning more about cases of sexual harassment and discrimination within an entire branch of state government is akin to getting blood from a stone.
How Sexual Harassment Claims Are Handled
Complaints of such behavior are reported to the Office of the Inspector General for the state court system and locked away until a case is either resolved or dismissed. The office is overseen by DiFiore, who is responsible for appointing the next inspector general when a vacancy opens. The current inspector general, Sherrill Spatz, has been in that position since it was created in 2000.
Aside from DiFiore, there is no oversight of the office, which is the only avenue for court employees, attorneys and litigants to address cases of sexual misconduct within the court system. The Legislature has not provided oversight of the office, which was created unilaterally by former Chief Judge Judith Kaye.
The inspector general is also the last step the OCA advises victims to take when addressing claims of sexual misconduct, according to the revised sexual harassment policy.
The document suggests working out the situation either with the harasser or a supervisor before making a formal complaint. Victims are also told to contact the Work-Safe Office, which is an intermediary body that helps victims address workplace issues within the court system. The office may try to resolve the situation without referring the matter to the inspector general, but it may also suggest submitting a formal complaint.
But even that may not yield a resolution in some cases of sexual harassment. Court union leaders, who issued a letter to Gov. Andrew Cuomo after Marquez filed her suit calling on him to conduct an independent investigation of OCA, tell of members who have sent complaints to the inspector general and never heard back.
“There was a male who was claiming to be sexually harassed by a woman,” said Patrick Cullen, president of the Supreme Court Officers Association. “This one individual, I can remember, didn’t get any response from OCA whatsoever.”
Cullen said there’s a policy that victims who make a complaint to the inspector general are supposed to get a written determination of their complaint within two months, but that doesn’t always happen.
Some cases of sexual misconduct are also resolved without the Inspector General’s Office. Cullen suggested that court officials may move the alleged harasser to another location rather than settle the case with a formal complaint or litigation. That may satisfy the victim whose only request is to work away from their harasser.
OCA officials may also seek the resignation of alleged harassers to spare parties and the court system the pain of litigation.
Such was the case with John J. Marshall Jr., a Nassau County law clerk who stepped down from his post after the Inspector General’s Office began a probe into a complaint from the Nassau County District Attorney’s Office that Marshall made sexually inappropriate comments to female prosecutors.
But the inspector general does not have jurisdiction over judges and OCA does not have the power to admonish, censure or remove judges, although OCA does have the power to transfer judges to different venues and take away caseloads. Chalfen said there have been times where the inspector general has investigated claims of judicial misconduct and turned those filings over to the Commission on Judicial Conduct.
In one case almost three decades ago, for example, the commission publicly censured state Supreme Court Justice James Shaw for sexually harassing his secretary over a 12-year period, according to contemporaneous reporting. The harassment was physical and verbal. The commission chose not to recommend Shaw’s removal at the time because he was going to retire within a month of its decision anyway, according to reports.
There are few such cases today before the commission, which more commonly deals with judicial misconduct from the bench. Neither the commission nor OCA have had to deal with a case of sexual harassment or discrimination against a high-ranking official in recent years and public records on the issue are hard to come by.
Litigation's Harsh Light
Sometimes the harsh light of litigation is unavoidable, but it hasn’t always proved to be the easiest avenue for accusers.
Judy Torres-Albert was a principal court clerk in Brooklyn who says she was demoted to associate clerk for complaining about the lewd behavior of John Dougherty, a chief clerk in Brooklyn who is married to Brooklyn Criminal Court Judge Marguerite Dougherty.
In a lawsuit filed last year, Torres-Albert alleges that John Dougherty asked if she liked to take “naked pictures” and referred to her as “one of those hot Latinas.”
Dougherty retired after the suit was filed and court system officials told the New York Post that the Inspector General’s Office suspended its own investigation into Torres-Albert’s complaints because the New York State Court Clerks Association filed suit on her behalf.
In July, Manhattan Supreme Court Justice Paul Goetz threw out Torres-Albert’s Article 78 petition to get reinstated as a principal court clerk, finding that the decision was supported by negative performance reviews.
As for her sexual harassment claims against Dougherty, Goetz said Torres-Albert failed to show that her demotion was a response to her speaking out about Dougherty’s behavior. The record showed that Torres-Albert and her union spoke with the IG’s Office after she had already been demoted.
Torres-Albert is appealing Goetz’s ruling on her Article 78 petition, though Chalfen said that court system officials maintain that Torres-Albert was demoted for poor performance. But Damato, president of the court clerk's union, which is representing Torres-Albert in her suit, said he has no illusions that they can win an easy victory in the case.
“It’s very difficult for us to be victorious when a lot of these people work together,” he said.
Another case out of Nassau County is one in which former court clerk Tricia Moriates is locked in a battle with the court system. Moriates has alleged that Nassau County Supreme Court Justice Robert Bruno, her former boss, subjected her to inappropriate sexual conduct for years that ranged from disparaging remarks to unwanted touching while they were alone in his chambers.
Moriates and others who spoke with the Law Journal for this article said that there is essentially a patronage system in place for law clerks. Few judges post openings in their chambers for law clerks, and the jobs are typically meted out through relationships.
And politics plays a big role in the judiciary in Nassau County and beyond. State Supreme Court justices are elected, but are placed on the ballot through a complex nomination process that has routinely come under fire as giving too much influence to party bosses.
Thus, Moriates said in an interview, there is a “political pecking order” in some locales: break it and you might find yourself out of a job. So it is often the case, she said, that “everything is swept under the rug.”
Moriates got to know Bruno through her brother, who knew him before he got elected to the bench. She volunteered for Bruno’s campaign for the bench in 2008 and 2009.
In 2011, she was offered a job working in Bruno’s chambers as a law secretary, a plum job with stable hours, good benefits and good pay. When the judge's allegedly improper behavior started, Moriates said she was taken by surprise, as Bruno puts himself out to be a conservative family man, she said.
According to her lawsuit, filed in the U.S. District Court for the Eastern District of New York, Moriates alleges that sometime in late 2011, she was alone with Bruno in his chambers and the judge placed his hands on her shoulders.
Alarmed, she says, she stood to face the judge, who “aggressively kissed” her and put his tongue in her mouth.
Moriates said that a custodian then entered the chambers to collect the trash, which she saw as a chance to escape. Afterward, however, Moriates says she thought twice before speaking up against Bruno because she’s the primary wage earner for her household.
When she arrived in chambers the next day, she says, Bruno said nonchalantly: “We should never let that happen again.”
But it didn’t stop there, Moriates alleges. Over the next four years, Moriates said she endured Bruno’s “sexually offensive” and “bizarre” conduct toward her from time to time. He bought her a sheetrock knife when he took a trip to Las Vegas, for example.
In 2015, Moriates became pregnant. One day Bruno asked to touch her stomach; she reluctantly acquiesced, and she says he used the opportunity to grope her breast and once again stick his tongue in her mouth.
Moriates also alleges that Bruno generally said misogynistic things. When female court officers complained that Bruno would break protocol and take the bench without security present, for example, he would refer to them as “whiners” and “bitches,” and say that female officers were “useless” because they couldn’t protect him from anything.
In another incident, Moriates claims, the judge said something to the effect that women should stay home and take care of their children and that he referenced his wife, daughter-in-law and other women in his life to support his “sexually offensive comments.”
In September 2016, while she was on approved maternity leave, Moriates received a text message stating that Bruno was firing her. He refused to provide a reason, she said, other than that he was going in a “different direction.”
Now Moriates is making ends meet working on a per diem basis for local firms, but hasn’t been able to find a permanent position and in Nassau County and in neighboring Suffolk County, which she attributes to her decision to blow the whistle on Bruno after she was fired.
“Everything that I worked for was taken from me,” Moriates said. “He still gets all those things.”
Moriates says she told court system officials and the chief clerk that Bruno broke protocol by not first contacting Nassau County’s district executive; she also alleges that neither the court system, the chief clerk nor Justice Thomas Adams, Nassau County’s administrative judge, contacted the managing inspector general for bias matters or the Commission on Judicial Conduct about this apparent breach of protocol.
According to court papers, the state Attorney General’s Office, which represents Bruno, the court system, the chief clerk and Adams in the suit, denied all allegations in Moriates’ discrimination suit.
The attorney general also pushed back with affirmative defenses, including that Moriates didn’t speak up about Bruno’s alleged conduct until after she lost her job and that the doctrine of sovereign immunity bars a federal court from having jurisdiction over a state entity accused of violating state law.
The case is still moving forward and the parties are conducting depositions. According to papers filed in June, Moriates’ lawyer, solo attorney Eric Sanders, asked for files from the inspector general relating to sexual harassment claims filed from the beginning of 2009 through the end of 2016, but the court system says the requested period is overbroad.
The Attorney General’s Office also argues that Moriates never logged a complaint about sexual harassment while she was employed, and thus the request for files is “just a fishing expedition.”
The Attorney General’s Office referred questions about the Moriates case to OCA.
Chalfen said Moriates took her case to the media and the Equal Employment Opportunity Commission before meeting with investigators. Chalfen said the court system turned the case over to the conduct commission, and Sanders said that the commission interviewed Moriates in 2016, after her accusations made headlines.
Chalfen said that individual cases such as those of Torres-Albert, Moriates and Marquez can be riddled with "false allegations."
But he stressed the broader issue of sexual harassment within the state court system is not taken lightly by court officials.
“The Unified Court System takes all allegations of sexual harassment very seriously,” Chalfen said. “No weight is given as to who the complainant is or who the subject of the investigation may be. Complaints are investigated vigorously and completely.”
Sanders said he believes that the Moriates case is not an isolated incident. He said that sexual harassment is more widespread in the court system and in the legal community as a whole than some suggest, but that, like other sectors that have ultimately faced a day of reckoning about sexual harassment and abuse, the victims are nervous about coming forward, or are having their complaints buried.
“This is what’s going on all the time, but lawyers don’t want to talk about it,” he said.
Read more:
Witnesses Say Judiciary Needs More Transparency & Reporting Options on Sexual Misconduct
New York, New York! Taking the Lead to Combat Sexual Harassment in the Workplace
NY Employers Grapple With New Sexual Harassment Law Now in Effect
Special Prosecutor Interviewing Women Who Accused Eric Schneiderman of Abuse
