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LIRR Clerk’s Claim Advances

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Railroad and one of its managers face liability for anti-gay harassment

A gay discrimination claim by Lorenzo Pugliese, a ticket clerk for the Long Island Railroad, will be allowed to go to trial, according to a ruling by U.S. District Judge Nicholas G. Garaufis of the federal district court in Brooklyn. Garaufis rejected dismissal motions by the railroad and one of its managers in a September 19 decision.

Pugliese’s complaint details incidents of unequal treatment and harassment in 2000 and 2001 while he was employed at the railroad’s Jamaica and Flatbush Avenue stations. In at least two instances, he claims, co-workers sought to frame him on sexual harassment charges in retaliation for his own conduct toward them, and management did not take his counter-charges seriously. He claims that things got bad enough that he felt he had to take a transfer to the Syosset station to get away from the hostile environment.

Pugliese filed a lawsuit in federal court, claiming that his constitutional right to equal protection of the laws had been violated by the railroad, which as a government-operated entity is bound to respect its employees’ constitutional rights. Pugliese included charges of the railroad violating the city’s gay rights law as well, but since the events at issue took place before the state passed a similar statute he claimed no state law infractions.

Garaufis cleared away several of the railroad’s objections quickly, finding that the manager Pugliese complained about, Nancy Greer, had sufficient seniority that she could be said to be acting for the railroad, subjecting it to liability. The judge also found that the LIRR, though as a state entity, is subject to the New York City Human Rights Law, and that the statute is not preempted by the federal Railway Labor Act, because the claim is not based on interpretation of any union contract.

On the merits, Garaufis found that Pugliese’s factual allegations, if proven, might enable him to prevail on both the constitutional and city law claims. His claims boil down to the allegation that Greer did not take his claims seriously by contrast to the false harassment charges that co-workers filed against him. The co-workers’ claims were investigated and found to be without merit, but Pugliese’s allegations were shunted aside, and nobody was disciplined for harassing him.

Greer sought to escape personal liability by claiming immunity. Federal law allows such claims by public employees if the constitutional said presented are not yet well established, as she said sexual orientation nondiscrimination claims were not in 2000 and 2001.

Rejecting this argument, Garaufis pointed to the U.S. Supreme Court’s gay equal protection decision from 1996, Romer v. Evans, which overturned a Colorado referendum that outlawed any state and local laws providing bias protection to LGBT citizens.

“The existence of a high profile and widely publicized case, such as Romer, is sufficient notice of the potential for a constitutional violation,” he wrote, so it was “objectively reasonable that Greer should have been aware of the legal implications of discriminating on the basis of sexual orientation.”

The judge also said that Pugliese alleged that Greer encouraged him to withdraw his complaint against an employee who was making false charges to undermine his authority and such action by the manager was not “objectively reasonable” and thus could subject her to liability.

Many federal trial judges have responded to equal protection claims by gay plaintiffs in a dismissive manner, commenting that because the Supreme Court did not find sexual orientation to be a “suspect classifica­tion” in Romer v. Evans—or in Lawrence v. Texas, its 2003 sodomy ruling—gay plaintiffs generally could not win sexual orientation discrimination claims because the justification put forward by government entity defendants would not be subjected to rigorous scrutiny; they would merely need to show a reasonable basis for their actions.

Garaufis rejected this reasoning, advanced by the railroad, and concluded that “while rational basis review is a relatively low standard, it is by no means a free pass to exoneration” for the defendant.

“The Supreme Court’s refusal to recognize homosexuals as a quasi-suspect class does not leave them entirely unprotected from invidious discrimina­tion,” the judge wrote.

Garaufis incorrectly characterized the Romer decision, in which the Supreme Court did not directly address but the question of suspect class, but the conclusion is correct—gay public employees have a right to be free of discrimination unless there is some rational basis for it.

In this case, the railroad is not arguing that it should be entitled to discriminate based on sexual orientation, but rather that it has not discriminated. In short, it is not offering any policy justification for treating complaints from a gay employee less seriously than complaints from non-gay employees. 

Turning to the city law claim, Garaufis found that Pugliese had not made an overwhelmingly strong case of the kind of harassment necessary to sustain a sexual orientation discrimination claim against the railroad, but that there was enough of a case to justify sending it to a jury.

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Updated 5:17 pm, July 20, 2018
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