Marilyn Manson’s Ex-Assistant Wins Appeal, Can Sue for ‘Horrific’ Sexual Harassment and Assault 

By Nancy Dillon/ Rolling Stone

“This is a great victory for all survivors as it provides a clear path for issues of repressed memories,” Ashley Walters’ lawyer says.

THE FORMER ASSISTANT who claims Marilyn Manson sexually assaulted her, whipped her and threw her against a wall during a drug-induced rage won a critical appeal ruling Wednesday that revives her previously dismissed lawsuit against the shock rocker.

Ashley Walters initially sued Manson, whose legal name is Brian Warner, with claims of sexual assault, sexual harassment, and sex discrimination in May 2021. She argued that while the alleged abuse took place during a “horrific” year of employment that ended in 2011, the typical two-year statute of limitations didn’t apply because she had suppressed her memories until 2020. She said the “delayed discovery” rule, which postpones the starting clock for statutes of limitations in cases where victims bury painful memories, had extended her window to file. She further alleged Warner used threatening behavior to ensure her silence.

A trial court judge considered her argument but ultimately tossed her case in May 2022, ruling she “failed to plead facts to invoke the delayed discovery rule.” Walters appealed, and a tribunal with California’s Second Appellate District sided with her Wednesday, reversing the lower court ruling and sending the case back to the judge for trial.

“Walters’s allegations of delayed discovery were sufficient to withstand demurrer, and we reverse,” the judges wrote in their ruling. They noted that while Warner’s defense team argued her allegations were “too memorable and happened too many times for her to have remembered none of it,” the court wasn’t supposed to concern itself with her ability to prove her claims at this stage of her case, only that she asserted them properly.

“This is a great victory for all survivors as it provides a clear path for issues of repressed memories and delayed discovery in these types of cases. I think the court is very firm in articulating a very clear decision as to why survivors have repressed memories and why that should be relevant when they come forward later in life to bring those claims,” Walters’s lawyer, James Vagnini, tells Rolling Stone. He noted that Warner’s camp also was ordered to pay the appellate costs as well. “We think that sends a message,” he says. Warner’s lawyers did not immediately respond to a request for comment.

In court filings, Walters alleged Warner forced her hand into his underwear, whipped her, threw dishes at her, pushed her into a wall, broke down doors to get to her, charged at her and forced her to stay awake for 48 hours straight, one time requiring her to stand on a chair for 12 hours.

Warner, 54, has denied Walters’ allegations and similar claims of abuse from more than a dozen women. In September, he reached a private settlement with a Jane Doe accuser who alleged he brutally raped her in 2011. Doe further claimed Warner deprived her of food and sleep during their abusive dating relationship and that he threatened to “bash her head in” if she reported him. That deal followed after Warner reached a separate settlement with Game of Thrones star Esmé Bianco in January. Bianco had alleged Warner raped and battered her.

Former accuser Ashley Morgan Smithline let her lawsuit end in default in January and formally recanted her allegations against Warner. A second Jane Doe sued Warner in January for sexual assault.

Read the article from Rolling Stone here.

Worker Settles Overtime Suit Against Home Remodeler

By Caleb Drickey/Law360 · 2023-10-16 19:49:04 -0400 ·  Listen to article

A worker who accused a home remodeling firm of misclassifying him as an overtime-exempt, salaried employee asked a New York federal court Monday to sign off on an individual settlement to his wage action.

In a letter to U.S. District Judge Diane Gujarati, ex-PHRG Management LLC remodeling consultant Sean Wachter said that a proposed $11,500 settlement to individual age claims would make him whole for withheld back wages and was a fair resolution to disputed claims.

The total settlement equates to more than 100% of what the plaintiff could have recovered under the Fair Labor Standards Act and New York Labor Law, Wachter said, adding: “The proposed settlement agreement is both fair and reasonable.”

Under the terms of the deal, Wachter would receive approximately $6,500 after the payment of attorney fees and expenses. That sum, the worker said, outpaced the roughly $2,400 unpaid overtime wage bill he racked up during his tenure at the company and amounted to roughly 55% of his total potential damages figure.

That return was fair, Wachter said, in light of the risks of further litigation. The worker noted that his former employer maintained its belief that he had been properly classified as an overtime-exempt outside sales worker and contested the number of overtime hours he worked.

“The settlement alleviates plaintiff’s risk of a lower recovery or no recovery at all,” the worker said.

Wachter’s attorneys, meanwhile, would receive an above-benchmark 40% cut of the total settlement fund, plus roughly $230 in expenses, for a total of approximately $4,700. Although Wachter noted that the Eastern District of New York generally limits attorney awards to 33% of a worker’s return, he said that the Second Circuit dissuaded district courts from placing ceilings on fee awards in 2020’s Fisher v. SD Protection Inc. 

He also argued that the proposed fee sat below a nearly $9,500 lodestar figure and was thus reasonable on its face.

Wachter accused the company of violating the FLSA and NYLL in a proposed class and collective action filed in November 2022. In his complaint, he alleged that he should have received time-and-a-half overtime wages instead of a flat, $1,000-per-week salary to compensate him for his up-to-60-hour workweeks.

Representatives of the parties did not immediately respond to requests for comment Monday.

Wachter is represented by Alexander White of Valli Kane & Vagnini LLP.

PHRG is represented by Anthony Mingione of Blank Rome LLP.

The case is Wachter v. PHRG Management LLC, case number 2:22-cv-07155, in the U.S. District Court for the Eastern District of New York.

–Additional reporting by Isaac Monterose. Editing by Nick Petruncio.

See the article from Law360 here.

Q&A: Attorney Sara Wyn Kane on Tough Sexual Assault Cases and New York’s Lookback Window

By Sara Hammel/The Landing

As one of Delta Captain Andrea Ratfield’s attorneys, Sara Wyn Kane of Valli Kane & Vagnini LLP is familiar with the specific and unique way airlines operate when it comes to sexual assault and harassment cases.

Her bio highlights her vast experience and professional accolades and explains, “Sara has devoted over twenty (20) years of her legal career fighting for her clients’ Civil Rights and against all varieties of employment discrimination (race, gender, age, disability, national origin, sexual orientation, and religion), sexual harassment/hostile work environment claims, wage and hour disputes and qui tams/whistleblower claims.”

A big thank you to Sara for giving her time to answer my questions and help victims of assault (all emphasis mine):

Q: I’ve seen a bunch of cases in the New York papers in the past year, including some high-profile lawsuits, taking advantage of the lookback window that ends very soon. (For example, a woman just filed a lawsuit against Bill Cosby alleging he drugged and raped her in the 1970s; she’s also suing the organizations her lawyer says “not only provided a platform for Mr. Cosby to showcase his fame and fortune to lure in women, but then put their own profits over the safety of their female guests by turning a blind eye to Mr. Cosby’s alleged sexual assaults on women”).

A: We have received many calls from individuals looking to assert their rights under the statute. We currently represent a woman against a well-known radio personality/author. She was allegedly assaulted many many years ago and had been prohibited from bringing her claims due to the statute of limitations. She is relieved to have an avenue by which to attempt to pursue them now. 

Q: What are some of the challenges in finding evidence and making a case for assaults that could be in the distant past, such as gathering old police reports and talking to witnesses? Should these potential roadblocks deter anyone from seeking legal advice about their assaults?

A: Certainly you have identified some of the potential obstacles to pursing older cases. Often, however, when someone has been the victim of an assault, they may have discussed it with a friend, family member, counselor and/or written in a journal—some type of contemporaneous confirmation of what transpired. Also, if someone does have the strength and courage to come forward many years later, it is likely that what took place is ingrained in their memories.

These cases are generally difficult regardless of whether they are brought soon thereafter or years later, but that does not mean it is not worth the effort. If nothing else, we strongly believe that the likelihood of success should NEVER deter anyone from seeking legal advice. Learning what your rights are is only a benefit, never detrimental. Being armed with knowledge is empowering—even if you choose not to act on it, we always encourage people to reach out and learn what options you may or may not have and to garner a better understanding of your legal rights.

Read the full Q&A from The Landing here.

How to Prepare a Strong Discrimination Claim Against Your Employer

By Kellie Hand

When faced with discrimination in the workplace, it is important to take action as soon as possible, as there are time limits for filing discrimination claims. The best way to protect yourself from discrimination, harassment, and retaliation is to (1) know your legal rights, (2) document everything allowed within state law and company policy (3) consult a legal professional, and (4) remember to take care of your mental and physical health. 

Know Your Rights

In the U.S., employees and job applicants are protected from discrimination in various aspects of employment under federal and state laws. These protections are based on specific “protected classes” such as Race, Color, National Origin, Religion, Sex (including sexual orientation and gender identity), Pregnancy (including childbirth or related medical conditions), Age, Disability, and Genetic Information. 

Note: The Age Discrimination in Employment Act (ADEA) protects individuals who are 40+ years old from age discrimination. However, state laws may have a lower age threshold. For example, New York State’s age discrimination law protects individuals 18+ years old.

Employment aspects protected from discrimination include (but are not limited to):

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements;
  • Recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Fringe benefits;
  • Pay, retirement plans, and disability leave;
  • Other terms and conditions of employment.

Employees are also protected from retaliation if they engage in a legally protected activity, such as reporting discrimination or participating in a discrimination proceeding or investigation. 

Document Everything 

Start by keeping a record of each incident you believe is discriminatory. This can include emails, memos, text messages, or any other form of communication. Also, make a note of any verbal conversations. Be as detailed as possible – write down dates, times, locations, people involved, what was said, and any witnesses. However, please be aware that what you can record and document will vary depending on state laws and company policies. 

Report the discrimination to your supervisor, Human Resources department, or any other relevant authority in your organization. Be sure to follow the company’s procedures for reporting, and do this in writing so you have a record of your report. Additionally, keep copies of your job evaluations and any letters or memos that show you perform your job well. This can be crucial if your employer tries to defend their actions by criticizing your job performance.

Get Legal Advice

If you feel you may be experiencing discrimination, consult with an employment law attorney right away to ensure that you are taking the best possible steps from the start. An employment lawyer can provide advice tailored to your specific situation, guide you through the process, and help protect your rights. 

Take Care of Yourself 

Experiencing discrimination in the workplace can be emotionally draining. Therefore, it is important to seek support from friends, family, or a mental health professional. Taking care of your physical health is also vital during stressful times.

What is the Gender Motivated Violence Protection Law?

While many people are familiar with the New York Adult Survivors Act, which opens a door for victims of sexual assault whose claims have fallen out of the statute of limitations to bring civil claims against their abusers, many haven’t heard of the Gender Motivated Violence Protection Law. 

However, the lesser-known Gender Motivated Violence Protection Law might have even more protections than the state Adult Survivors Act if the violent act occurred within the boundaries of New York City. The law provides a two-year lookback window–which began in March 2023 and ends on February 28, 2025– and similarly opens a doorway for victims to bring claims against their attacker without regard to when the incident occurred. However, the Gender Motivated Violence Protection Law covers more than only sexual violence and includes physical, verbal, psychological, and socio-economic violence. 

The Gender Motivated Violence Protection Law went into effect in Oct. 2018, extending the statute of limitations for civil charges for gender-motivated violence to seven years after the event occurred. An amendment was passed in January 2022 to open a two-year lookback window for victims whose claims were time-barred under the city law.

The two-year lookback window ends on February 28, 2025. It gives victims of gender-based violence an opportunity to recover damages against their accused attacker and is only effective for civil charges. A victim cannot bring criminal charges against the perpetrator under this law. 

To bring civil charges under the Gender Motivated Violence Protection Act, the victim does not have to reside in New York City but the act must have occurred in one of the five New York City boroughs. 

If you’ve experienced gender-based violence and are wondering if this law can help you, don’t hesitate to contact the compassionate legal team at VKV. We are here to stand by your side, advocate for your rights, and navigate this legal journey with you.

‘I don’t want to be in the darkness anymore’: Bronx case worker sues DSS over alleged sexual abuse, retaliation

By Aliyah Schneider/ Bronx Times

Disclaimer: This story details various accusations of sexual abuse.

A homelessness case worker on unpaid leave is suing the New York City Department of Social Services (DSS) and two of its employees over allegations that an office manager subjected her to relentless sexual abuse while her supervisor turned a blind eye.

The suit, which was filed by Trishana Jones on Sept. 12 in Bronx County Supreme Court against DSS — as well as her alleged harasser and direct supervisor — claims that the office manager sexually abused her from 2019-2022 and the agency failed to properly investigate it after she reported it.

Her lawsuit centers on allegations against Dason Noble, an office manager at the Northern Boulevard Queens DSS office they worked at together, who had the authority to discipline her. Jones, who lives in the Edenwald Section of the Bronx, initially thought they might develop a consensual romantic relationship, but instead, he abused his authority, according to Jones’ claims.

“I deserve justice for what I had to endure, and the world needs to see what happened,” Jones, 38, told the Bronx Times in her first interview since filing the lawsuit. “And I don’t want to be in the darkness anymore.”

According to the suit, Noble regularly coerced her into having sex with him in the workplace despite her saying she did not want to. She also accuses him of making degrading sexual comments and groping her in the office, ordering her to take explicit pictures in the bathroom for him, locking her in a storage room with him and recording sexual encounters without her consent, forcing her to take a contraceptive pill and choking her nearly to the point of unconsciousness, which led to bruising on her neck.

In one instance, Jones walked home in the winter without a jacket because he took it while trying to lure her into the stock room, according to the complaint.

Jones is requesting back pay, interest, compensatory and punitive damages, past and present pain and suffering damages, as well as attorneys fees. She has been on unpaid leave since Nov. 7, 2022, having been diagnosed with PTSD as a result of the alleged ordeal, according to her lawyers.

A DSS spokesperson told the Bronx Times that the agency cannot comment on ongoing litigation or investigations involving personnel, but that the well-being of staff is its “top priority.” The agency investigates, verifies facts and takes appropriate action — including prompt disciplinary action when warranted — when it learns of sexual harassment, the spokesperson said.

“We do not tolerate any instances of sexual harassment and take any such reports incredibly seriously,” the spokesperson added. “As we conduct a thorough investigation, we are committed to taking necessary action against any bad actors when warranted.”

Read the full article from the Bronx Times and a statement from Partner James Vagnini here.

NYC May Need To Rethink Property Transfer Program

By David Holtzman/ Law360

Law360 (September 13, 2023, 8:45 PM EDT) — A City of New York program that transfers distressed or tax-delinquent apartment buildings to nonprofit agencies for redevelopment may be on shaky ground amid a recent U.S. Supreme Court ruling and a lawsuit from property owners over the city’s failure to compensate them for lost equity.

The program, intended as a means for the city to renovate run-down properties without owning them directly, came under new scrutiny in the wake of the high court’s decision earlier this year in Tyler v. Hennepin County. The court said a state must give a property owner the chance to recover equity when their home is taken for nonpayment of taxes.

The high court’s ruling also brought fresh attention to the New York lawsuit, filed in 2019 in Manhattan federal court by three owners whose properties were taken through the city’s Third Party Transfer program.

The owners said they lost substantial equity when the city transferred ownership of their buildings to nonprofits Bridge Street Development Corporation and Neighborhood Restore. The city did not make a proper effort to notify them or give them a chance to address tax and building violations before taking the
properties, according to the lawsuit.

The program is also flawed because it has taken some properties that weren’t even run-down and owed a minimal amount in unpaid taxes or utility bills, the complaint said.

If a building on a given block is targeted for inclusion in the program, the city also targets other structures on that block that are tax-delinquent, whether or not they meet a statutory definition of “distressed.” The city defined a “distressed” property as one that has a tax lien of at least 15% of its value, and either five or more hazardous violations of the housing maintenance code or a lien of more than $1,000 for repairing “dangerous or unlawful conditions.”

New York Mayor Eric Adams and the city’s law office did not respond on Wednesday to a request for comment on the lawsuit or how the city might reform the transfer program.

A working group co-chaired by the city’s then-commissioner of the Department of Housing Preservation and Development, which manages the transfer program with the city’s finance department, recommended several changes in November 2021, including better communication with affected property owners. The group also said the city should consider tax delinquency and a building’s condition equally when weighing whether to take a property from its owner.

As a candidate for mayor, Adams criticized the program for discriminating against property owners of color, but he has said nothing about it since taking office in 2022, according to Matthew Berman, co-counsel for the three plaintiffs. Most of the properties taken through the program since it began in 1996
have been in 11 neighborhoods in the Bronx, Brooklyn and the Harlem section of Manhattan, according to a 2019 New York City Council report.

“I look forward to continuing reform discussions started in recent years, to ensure the next version of [Third Party Transfer] incentivizes owners to keep properties safe, habitable and healthy, to stay up to date on municipal bills, and to seek help immediately when they run into problems,” Pierina Sanchez, who represents one of the affected neighborhoods in the Bronx as the city councilor for District 14, told Law360 on Wednesday.

Sanchez chairs the council’s committee on housing and buildings.

In the Tyler case, the Supreme Court said the state of Minnesota gave no opportunity for a homeowner to recover the excess value in their property beyond their tax debt.

New York City has claimed its program is different for a number of reasons. In its 2019 report, the council noted that after the city issues a notice of foreclosure to property owners, it gives them four months to redeem their property by paying all outstanding arrears or entering into an installment plan to do so. The city has also said owners can sell their buildings before the city takes them as long as they pay the taxes that are due, Berman said.

“That doesn’t work, because you’ve only got a four-month window to act in,” he said. “It’s not so easy to sell a house in four months. It’s like a fire sale, and you’re going to lose a huge chunk of the value by being forced to sell under distressed circumstances.”

The three homeowners involved in the lawsuit also claimed they were not even notified of their options. McConnell Dorce, who owned a 3,200-square-foot multifamily building in the East New York neighborhood, said in the complaint he received no notice of the 2015 foreclosure action or a court’s judgment against him in 2017. He said he learned his building had been transferred when Neighborhood Restore posted a notice for tenants in 2018.

The other two owners were shareholders in housing cooperatives at two four-story buildings in Brooklyn; they also claimed they had no notice of the foreclosures. Bridge Street, the new owner, informed them after the transfer process that they had been converted from owners to renters, according to the
complaint.

In a separate case, a New York state appeals court in the Second Judicial Department in May overturned a lower court’s finding that the city had not given building owners a chance to pay their taxes prior to foreclosure. The city had provided the four-month window for the owners to respond, the court said,
although it took the opportunity to question aspects of the Third Party Transfer program.

“The loss of property ownership without compensation under the TPT program ‘is a widespread occurrence,’ often affecting ‘properties that are owned by minorities,'” according to the three-judge panel’s opinion. The panel encouraged the city council to address the issue of owners’ losing the equity in
their properties.

In the Dorce case, Manhattan U.S. District Judge John Koeltl denied the city’s motion to dismiss in June 2022, finding the three property owners had a basis for most of their claims. Since then, the parties have been engaged in discovery, Berman said.

McConnell Dorce et al. are represented by Matthew L. Berman, Robert J. Valli Jr. and Sara Wyn Kane of Valli Kane & Vagnini LLP, Keith H. Wofford of White & Case LLP, and Alexander Simkin, Phillip G. Kraft, Leon Kotlyar and Gregg L. Weiner of Ropes & Gray LLP.

The City of New York is represented by Michael S. Adler, Daniel K. Crandall, Margaret A. Devoe, Andrea B. Feller and Kent M. Langloss of the New York City Law Department.

BSDC Kings Covenant Development Fund Company Inc. and Neighborhood Restore Housing Development Fund Corp. are represented by Brian J. Markowitz of Tarter Krinsky & Drogin LLP.

The case is McConnell Dorce et al. v. City of New York et al., case number 1:19-cv-02216, in the U.S. District Court for the Southern District of New York.

–Editing by Philip Shea.

Read the article at Law360 here.

US appeals court adopts lower bar for proving workplace bias claims

By Daniel Wiessner/ Reuters

Aug 21 (Reuters) – A U.S. appeals court has thrown out its unique decades-old precedent that made it more difficult for workers to prove discrimination claims.

The en banc 5th U.S. Circuit Court of Appeals on Friday revived a lawsuit claiming Dallas County, Texas, required female jail guards, but not men, to work at least one day each weekend, overruling its longstanding precedent that federal anti-discrimination law only prohibits bias in “ultimate employment decisions” such as hiring, promotions and setting pay.

That precedent imposed a more strict standard than Title VII of the Civil Rights of Act 1964 itself, which applies to any “terms, conditions, or privileges of employment,” the New Orleans-based court said.

“It is no wonder … that no other court of appeals applies so narrow a concept,” Circuit Judge Don Willett wrote for the 5th Circuit.

Jay Ellwanger, a lawyer for the plaintiffs, said the ruling makes clear that Title VII prohibits all workplace discrimination.

Read the full article from Reuters here.

Female Delta Pilot Advances Sexual Harassment, Reprisal Claims

By Patrick Dorrian/ Bloomberg Law

Delta Air Lines Inc. must face a female pilot’s claims of workplace sexual harassment and that she was retaliated against for complaining about gender bias and harassment, including by being forced to undergo retreatment for alcohol abuse.

The ruling by the US District Court for the District of Minnesota rejected Delta’s contention that the retreatment requirement and other job actions cited by the pilot weren’t adverse for purposes of proving job retaliation, but instead were “beneficial opportunities” permitted by its collective bargaining agreement with her union. Binding case law “indicates otherwise,” the court said.

According to Andrea Ratfield, Delta’s adverse employment actions also included threatening her with termination and suspension, and manipulating her use of leave so it could demote her from captain to first officer. She started drinking to deal with trauma stemming from an incident in which she was raped while attending an aviation event in September 2017, which she reported to her supervisor, Ratfield says.

Ratfield says the sexual harassment she’s experienced in her Delta tenure includes being groped, her training manager asking her on a date, a supervisor calling her “princess,” and lewd hand gestures and comments. A supervisor also allegedly bragged to others that he had seen Ratfield’s breasts while she was breastfeeding, Judge Katherine Menendez said.

Those allegations sufficiently state a hostile work environment claim under the Minnesota Human Rights Act, the judge said. The alleged acts of harassment may be “of the type brushed off by courts in different eras,” but they “comprise the sort of workplace behavior today that reasonable people” likely wouldn’t tolerate, Menendez said.

At least two of the incidents alleged by Ratfield occurred within the time period for suing, the court said.

Her retaliation claims are plausible in light of the alleged close timing—two weeks—between when she reported unfair and discriminatory treatment and when Delta refused to accept secondary test results she received that contradicted an allegedly false positive test that triggered the retreatment requirement, Menendez said.

Ratfield also alleges the retreatment facility was told that she rubbed people at Delta the wrong way and that supervisors further tried to sabotage her retreatment and effort to regain her license to fly by sharing her false positive test with the facility, the judge said.

The court dismissed Ratfield’s gender discrimination claims, including her allegations that Delta accepted secondary test results from male pilots under similar circumstances, but not from her.

Those claims require Ratfield to prove she was qualified to be a pilot and thus implicate terms of her union CBA, Menendez said. They therefore are preempted by the Railway Labor Act. RLA preemption didn’t apply to Ratfield’s retaliation claims because they don’t require proof that Ratfield was qualified for her job, the judge said.

Valli Kane & Vagnini LLP, Nichols Kaster PLLP, and Ellwanger Law LLLP represent Ratfield. Dorsey & Whitney LLP represents Delta.

Read the full article from Bloomberg Law here.

A Win for Delta Captain Andrea Ratfield!

By Sara Hammel

For all those following what’s by far the most-read story in The Landing’s short history, we have a victory to report.

Captain Ratfield will have her day in court. Delta Air Lines’ motion to dismiss was denied on two of three claims. As United States District Judge Katherine Menendez writes in part in her August 11, 2023 decision,

Delta’s motion is denied to the extent it seeks dismissal for failure to state a claim. Ms. Ratfield has plausibly pleaded a claim for retaliation under Title VII and the MHRA and sexual harassment under the MHRA.

Retired Delta Captain Karlene Petitt, who knows more about the airline’s legal strategies than almost anyone, covered that side of things on her blog yesterday:

Delta Air Lines utilizes the Railway Labor Act (RLA) to get away with illegal actions. The airline, under the management of CEO and Board of Directors, Ed Bastian, has a history of retaliation and sexual harassment. They also have a history of filing motions to remove these cases from the courtroom and pull them into the grievance process, of which they own both the arbitrator and the process. 

Congratulations to Capt. Ratfield. The cost of taking a stand is high, and can drain both your finances and your energy. But she’s standing firm, and I look forward to continuing to follow her court case.

Read more at The Landing here.