DCJS worker files complaint

ALBANY, N.Y. _ A program manager at the state Division of Criminal Justice Services has filed a federal discrimination complaint alleging she was sexually harassed and bullied for years by a former forensics director before the agency transferred her to a new job against her wishes and moved her into an office that was formerly a storage closet.

The complaint was filed this week with the U.S. Equal Employment Opportunity Commission by Kimberly Schiavone, who has worked at DCJS since 2005. She alleges the agency's leaders did nothing in response to complaints by her and others against Brian J. Gestring, who was fired by the agency in March following a series of stories in the Times Union that exposed the agency's handling of the case.

Schiavone's discrimination complaint was submitted less than two weeks after an attorney for DCJS filed a related federal lawsuit accusing the agency of covering for Gestring and terminating her job after she cooperated in an inspector general's investigation of his behavior.

That civil rights suit was filed by Gina L. Bianchi against DCJS Commissioner Michael C. Green and two other agency leaders, General Counsel John M. Czajka and Human Resources Director Karen Davis.

Bianchi and Schiavone have come to symbolize what some say is a pattern in some state agencies in which high-ranking men accused of sexual harassment or other workplace misconduct have received private counseling memos or job transfers, but no formal discipline, while their accusers have faced retribution. The women's cases also received attention because the office of Inspector General Catherine Leahy Scott turned over Bianchi's confidential testimony in the Gestring investigation to DCJS, which used it to interrogate Bianchi before she was fired.

Schiavone had filed a workplace violence complaint against Gestring last August, but the agency did not follow up and never interviewed her about the complaint, said John W. Bailey, the attorney for Schiavone and Bianchi.

In a prior statement, DCJS said its decision last December to terminate Bianchi and transfer Schiavone were "appropriate actions ... to maintain the appropriate work environment at DCJS." Under state regulations, Bianchi was able to fall back to a junior-level attorney's position with the agency but suffered a $44,000-a-year pay cut.

Schiavone was transferred out of the forensics unit, where she was a program manager and had worked since 2005. Her new office was formerly a storage closet, her attorney said.

Gov. Andrew M. Cuomo has declined to comment on the case.

Schiavone's complaint with the Equal Employment Opportunity Commission alleges she was "subjected to ongoing harassment, gender-based discrimination, sexual harassment, a hostile work environment, age-based discrimination, and retaliation for complaining about the same."

In a recent interview, Gestring, a former New York Police Department scientist who was appointed director of DCJS's Office of Forensic Science in 2012, denied that he had harassed anyone and noted that DCJS conducted an independent investigation late last year that cleared him of wrongdoing.

Gestring described Schiavone as a "constant complainer" and alleged her job performance was problematic.

The inspector general's investigation of Gestring last year revealed a history of offensive and inappropriate behavior that began shortly after he started working for DCJS in July 2012. Records indicate that about four months after Gestring was hired, he received two counseling memos for misbehavior. Gestring signed the memos certifying that had read them, but added handwritten notes claiming he disagreed with the findings, had been forced to sign them, and that staff at DCJS had "agendas," according to details of the inspector general's investigation obtained by the Times Union.

Leahy Scott's investigators, who obtained sworn testimony from DCJS employees, said they were also told that Gestring had once encouraged Schiavone to file fraudulent sexual harassment charges against a male colleague _ a former Albany police officer _ in an apparent effort to have him terminated.

Schiavone's EEO complaint provided additional details about that allegation, including her assertion that she told Gestring the other employee had not sexually harassed her.

"Mr. Gestring indicated that it did not matter, and that I should file the report anyway because that was how you can get rid of employees," her complaint states. "Mr. Gestring also stated in front of me and others that when he worked in the New York City Police Crime Lab 'they' would plant evidence in a co-worker's drawer if they wanted the co-worker 'gone.'"

In October, Leahy Scott and her deputy inspector general, Spencer Freedman, met with Czajka, DCJS's top legal counsel, and Green to outline the findings of their investigation. Leahy Scott, who was appointed inspector general in 2013, followed up the October meeting with a five-page letter to DCJS on Dec. 6 outlining the findings of her investigation. The letter recommended the agency take action against Gestring and two other officials accused of mishandling the allegations, First Deputy Commissioner Mark Bonacquist and Davis, the human resources director.

The agency did not take action against those employees. Instead, DCJS said it had conducted its own investigation and could not sustain the allegations against Gestring.

Bianchi's lawsuit said that Green, who had counseled Gestring in 2012 for workplace misconduct, told her repeatedly when he interrogated her about her statements to the inspector general's office that she should have been more evasive in her answers.

After the case involving Gestring was made public in a Times Union story published March 18, Cuomo's office issued a statement saying the governor had asked the state's Joint Commission on Public Ethics to investigate the case _ the fourth investigation of the allegations by a state agency.