Two thoughts on the Faruqi sexual harassment trial

NOTE TO READERS: I am updating this post daily with the previous day's trial testimony. As of January 21, I have also decided to reorganize the post to include the most recent testimony before the jump. Prior days' testimony will be below the jump, as well as my "two cents," which I posted last week as the trial began.

I hope that everyone is following the Marchuk v. Faruqi & Faruqi sexual harassment trial that is taking place as we speak in Manhattan. If you haven't been, then now is the time to start!

Two Cents.flickr.YatoobinCC The most un-sexy photo I was able to include
with this blog post.

Plaintiff Alexandra Marchuk alleges that she and others were sexually harassed by law partner Juan Monteverde while she was a first-year associate. She says that the firm didn't do anything about Mr. Monteverde's behavior because he was a "rainmaker" who brought a lot of business into the firm.

UPDATE (1/23/15): Several current and former firm employees testified yesterday that Ms. Marchuk seemed to be enamored of Mr. Monteverde and "followed him around like a lost puppy." One witness, who was walking behind Ms. Marchuk and Mr. Monteverde after the 2011 holiday party (the night of the alleged sexual assault), said that they were kissing and holding hands. The office manager said that they sat together at the party "like magnet and steel." A paralegal said that she and co-workers gossiped at the party about how Ms. Marchuk was "shadowing" Mr. Monteverde and about their seemingly close relationship in general. Cross-examination focused on the witnesses' bias and the fact that they did not know what was going on with Mr. Monteverde and Ms. Marchuk behind the scenes.

The office manager also testified that Mr. Monteverde's carpet was replaced because he was "intense" and wore it out faster than the other attorneys by rolling on it in his desk chair -- not because of blood stains from the sexual encounter after the holiday party, as alleged by Ms. Marchuk.

The judge warned the parties that he wanted them to wrap up the testimony by next Tuesday (January 27). Mr. Monteverde is expected to testify on Monday. The lawyers will be arguing motions today (no testimony), and closing arguments are expected the first week in February.

My regular blog post for today discusses the employer mistakes that might have contributed to this litigation trauma.

Thanks as always to Law360 (paid subscription required) for the trial information. Read on for previous days' updates!

UPDATE (1/22/15): Firm co-founder Nadeem Faruqi continued his testimony yesterday, saying that Mr. Monteverde was put on probation effective January 1, 2012, and was denied bonuses in 2013 and 2014, after he admitted to having sexual relations with Ms. Marchuk after the firm holiday party in December 2011. Mr. Faruqi testified that he called Mr. Monteverde a "f**king idiot" and told him that he might not have a job when he returned from a trip to Spain. He said that he instructed Mr. Monteverde never to have another "romantic liaison" with a co-worker.

(Although this may seem like less than an effective response to alleged sexual harassment, co-founder Lubna Faruqi testified that she had understood that the sexual encounter was consensual. Based on what Mr. Monteverde said. Oh, well.)

Thanks again to Law360 (paid subscription required).

UPDATE (1/21/15): Did Juan Monteverde's "rainmaker" status make him think he was "the golden goose, so to speak"? Yes it did, according to former Faruqi partner Shane Rowley, who testified yesterday. Mr. Rowley, who is now practicing law with another firm, said that Mr. Monteverde created a "toxic culture" but that co-founder Nadeem Faruqi had ignored it because Mr. Monteverde brought so much business to the firm. Also, two friends of Ms. Marchuk testified that she was reluctant to take legal action and was concerned about retaliation.

The jury also heard testimony yesterday from Mr. Faruqi. Ms. Marchuk's lawsuit alleges that Mr. Monteverde kissed her and grabbed her breast in September 2011, on her third day at the firm. Mr. Faruqi testified yesterday that he had an emergency meeting with Mr. Monteverde about the incident as soon as he heard about it. According to Mr. Faruqi, Mr. Monteverde admitted it and apologized, but said that it was consensual. Mr. Faruqi said that he told Mr. Monteverde in no uncertain terms to refrain from having any further contact with Ms. Marchuk in social settings, saying, "You work for me. She works for me. This is never to happen again."

(According to the lawsuit, Ms. Marchuk went with Mr. Monteverde to a hearing soon afterward. She contends that Mr. Monteverde "drank heavily" on the train ride afterward and "bragged that he liked a good hearing even more than he liked sex." The law firm claims that Ms. Marchuk specifically asked to go to the hearing with Mr. Monteverde.)

Hat tip, yet again, to Law360 for the above. (Paid subscription required.)

UPDATE (1/16/15): According to this morning's Law360, Ms. Marchuk admitted yesterday to having $289,000 in student loan debt (mercy!) when she started working at Faruqi, but she denied being out for money. Oddly, it sounds as if the defense is trying to (a) paint her as being out for money (or vengeance against Mr. Monteverde) and (b) a victim who was manipulated into filing suit by the fiancee of a former partner who has a grudge against Mr. Monteverde. Ms. Marchuk also testified that a counterclaim by the firm (later dropped), which accused her of having an obsession with Mr. Monteverde, made her "look completely unhinged." She has asserted retaliation and defamation claims based on the counterclaim in addition to her sexual harassment claim. After yesterday's testimony, the trial adjourned until Tuesday.

UPDATE (1/15/15): Today's Law360 has a good summary of yesterday's testimony. Ms. Marchuk testified that the alleged sexual harassment caused her to suffer Post-Traumatic Stress Disorder. On cross-examination, she admitted to telling a friend "that she hoped the firm would 'pay [her] off to go away," and joked with another friend "that they could move to Hawaii if she won a large settlement." However, Ms. Marchuk denied that she had "a set plan" and said that "it was a fantasy." She also admitted knowing that Mr. Monteverde was married and that his wife was pregnant on the night of the "forceful sex" incident, but I'm not sure those facts help Mr. Monteverde.

ORIGINAL POST, DATED 1/14/15 (with a few minor edits): The New York Post had a good article last week about the testimony. (Naturally!) But, salacious details aside, I actually have two serious legal points to make about this case:

1. Contrary to what the firm's attorney says, the fact that an alleged sex act occurred "after hours" should not be a defense to a hostile work environment claim. Ms. Marchuk and Mr. Monteverde apparently agree that a "forceful" sex act occurred at 3 a.m. in the firm offices, after a holiday party. Ms. Marchuk contends that it was a sexual assault, while Mr. Monteverde says it was just rough, consensual sex. Assuming Ms. Marchuk is correct, then the fact that this occurred after hours should not shield the firm from a hostile environment claim, given that (a) the alleged harasser was Ms. Marchuk's boss, (b) this event was allegedly the culmination of a pattern of sexually inappropriate behavior on Mr. Monteverde's part, and (c) the alleged assault occurred after a firm-sanctioned function. If Ms. Marchuk was forced or felt pressured to give in to Mr. Monteverde's sexual demands because he was her boss, then that should be enough to establish a hostile work environment, no matter when or where the alleged assault occurred. (Mind you, I'm not saying that this happened.)

2.  I think the judge correctly barred evidence of the revenues that Mr. Monteverde brought to the firm. The trial judge is apparently allowing evidence that Mr. Monteverde is a big rainmaker, but he won't allow evidence of specific revenue figures. I agree, and think specifics could prejudice the jury. But Mr. Monteverde's rainmaker status could be relevant to (a) why Ms. Marchuk might have felt pressured to go along with his alleged sexual demands, and (b) why the firm might have failed to take appropriate remedial action. From the defense side, his status could be relevant to show why Ms. Marchuk was the one actively pursuing Mr. Monteverde sexually, as he claims. (Again, I am not saying that any of this is what happened.)

OK, there's my two cents for now. Feel free to add your own two cents in the comments. Updates will continue until the jury returns!

Image credit: From flickr, Creative Commons license, by Yatoobin.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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