Before his retirement, John Marchisotto worked as a sergeant at the Staten Island Housing Unit of the New York Police Department. Carla Hollywood was his lieutenant. After she was assigned as his supervisor, Hollywood began to act in a manner Marchisotto found to be inappropriate.
Marchisotto claimed that Hollywood asked him if he was married and, when he replied in the affirmative, whether he was happily married. Marchisotto alleged that Hollywood asked him what he did when he wasn’t with his wife, and then brushed her breasts against his back. Marchisotto contended that, over the next several months, Hollywood would call him up to six times a day, telling him that she just wanted to hear his voice and see if he was there.
According to Marchisotto’s testimony, his rejection of Hollywood’s actions led her to start criticizing him. First, Hollywood challenged Marchisotto because he left his post at the Housing Unit during his tour of duty, which Marchisotto testified was standard practice. Second, in her performance review of Marchisotto, Hollywood rated his abilities as low in the areas of “evaluating personnel and…adaptability.”
In response to his evaluation by Hollywood, on February 5, 2004, Marchisotto wrote a letter to the head of the Housing Bureau, complaining about abuse of authority and inappropriate behavior, but not specifically mentioning sexual harassment. A week later, Marchisotto alleged that Hollywood approached him at the Housing Unit and, after asking if he was there alone, started to massage his neck. Marchisotto testified that Hollywood said that his evaluation “didn’t have to go that way,” and that she could “still make it right.” Marchisotto testified that Hollywood then took out a bottle of pink lotion, told him that she was “going to have a great time on Valentine’s Day,” and asked if he would like to try some of the lotion. According to Marchisotto, he declined, stating that he was “happily married,” and Hollywood “stormed out…in a rage.”
Five days later, a lieutenant, a sergeant, and a detective from the local precinct came to Marchisotto’s home, removed his firearms, and brought him to the precinct. At the precinct, Marchisotto was informed that he was being ordered to report to the Police Department’s psychological services unit the following day, which he did. Marchisotto was informed that he was being transferred out of the Housing Unit, and reassigned to the “Jersey Street record room.” Marchisotto was given a key to the record room, but not told what his assignment was, or what he should do in the record room. Marchisotto worked in the record room until August 23, 2005, when he retired, shortly after which he sued the Department for sexual harassment and retaliation.
When a jury awarded Marchisotto $300,000 on his retaliation claim, the Department moved to have the verdict overturned, primarily arguing that since the jury failed to find any sexual harassment, no claim for retaliation could stand. The Court demurred, noting that federal courts have “held repeatedly that to prove that he engaged in protected activity, the plaintiff need not establish that the conduct he opposed was in fact a violation of Title VII. Rather, to make out a prima facie case, the plaintiff must demonstrate a good faith, reasonable belief that the underlying challenged actions of the employer violated the law. Therefore, it is possible for an employee to reasonably believe that specified conduct amounts to harassment, even when that conduct would not actually qualify as harassment under the law.”
Marchisotto v. City of New York, 2007 WL 1098678 (S.D.N.Y. 2007).
This article appears in the July 2007 issue