A Cautionary Tale of Workplace Harassment in the Cuomo Administration

When Kimberly Schiavone, an employee of New York State’s Division of Criminal Justice Services, read about the Cuomo administration’s attempts to discredit Lindsey Boylan, the first woman to publicly accuse Governor Andrew Cuomo of sexual harassment, she experienced a pang of recognition. “I felt, they’re just doing the same old thing,” Schiavone told me. “Nobody knows anything. Nobody heard anything.”

The Division of Criminal Justice Services—referred to internally as D.C.J.S.—is the state agency that maintains New York’s criminal-history records and fingerprint files, and helps administer New York’s DNA databank. It occupies several floors in the Alfred E. Smith State Office Building, an Art Deco skyscraper across the street from the New York State Capitol, where the governor’s offices are located. In 2012, a forensic scientist named Brian Gestring was hired to run the agency’s Office of Forensic Services, which is responsible for the agency’s work with the DNA databank, and which monitors forensic labs in the state. He had previously worked in the New York Police Department’s crime lab and for the New York City medical examiner; on September 11th, he was hit in the head by falling debris at the World Trade Center. At the Office of Forensic Services, he set out to reform what he saw as an underperforming outfit.

Four months after he started, Gestring was called in for a “counselling session” with D.C.J.S.’s top two officials: Mike Green, who had recently been appointed by Cuomo as the head of the agency, and Gina Bianchi, its chief legal counsel. Green and Bianchi told Gestring that women in the office had complained about his repeated use of the phrase “splitting a pubic hair” to describe small quibbles, and saying “hump more” when he wanted them to work harder. Schiavone had complained that he’d told her to think things over “in the shower.” After the meeting, Green and Bianchi sent Gestring two memos warning him that “any further actions like these, or any retaliation against employees for bringing these to light,” could result in his firing. Gestring signed the memos. Below his signature on each, he wrote that he denied “all of the allegations set forth above” and that he was only signing because he’d been ordered to do so.

Kim Schiavone.

The problems got worse. Cathryn Levine, a senior forensic scientist in the office, told me that, one Halloween, when agency employees brought in their children for trick-or-treating, Gestring made a comment about how the kids could get candy throughout the building, or they could get “curry” on the seventh floor, where the I.T. department was located. Levine also said that, in 2015, Gestring reversed a promotion that she had recently received. To justify it, she said, he faulted her for, among other things, not notifying him in advance that she would be missing a meeting during a week when she was on jury duty. (Gestring denied all the allegations made by Levine. He said that Levine’s promotion had been reversed because of “specific performance problems.”)

Schiavone, who was a manager, told me that, near the end of one workday, Gestring called her into his office. He was upset that she had told Bianchi about a training decision he had made against Bianchi’s wishes. “I could hurt you right now if I wanted to,” Schiavone recalls him saying. On another occasion, Schiavone said, Gestring threatened to throw her and another employee out of one of the office’s windows. Schiavone told me that she had reported several incidents with Gestring to Karen Davis, the director of human resources at D.C.J.S. “None of them got addressed,” Schiavone said. According to Schiavone, Davis had been in the room when Gestring made the threat to throw her out a window. “She chuckled about it,” Schiavone told me. (Gestring denied making the comments that Schiavone ascribes to him. Davis, who still works at D.C.J.S., did not respond to requests for comment.)

Michael Nardolillo, a DNA-databank administrator, was the other person whom Gestring allegedly threatened to throw out of a window. Ironically, three years before Gestring’s arrival, he and Levine had filed a complaint about Schiavone, accusing her of harassing and mismanaging them. They eventually bonded over their mutual problems with Gestring. “It became evident that Brian was just the big bully that he is,” Nardolillo, who retired in 2016, said. “He was abusing Kim just as much as he was me.”

Both Schiavone and Levine described a work trip to New York City that they took with Gestring in 2013. The three stayed overnight in the city, and planned to drive back to Albany together. As they were getting ready to leave, Schiavone told me, Gestring offered to pick up her luggage from a hotel storage site. Schiavone said that her suitcase was black and had a curling iron sticking out of its front pocket. “And he said, ‘Oh, sure, sure that’s a curling iron,’ ” Schiavone told me. “And I said to him, ‘Don’t ever speak to me like that again.’ ” The car ride back was tense. Schiavone and Levine said that Gestring made a crack about Levine’s daughter enjoying “naked coed hot tubs” in college. (Gestring denied making these comments.)

The situation came to a head, by chance, in 2017. An Office of Forensic Services employee had mishandled DNA paperwork related to a high-profile murder case on Long Island, and the inspector general’s office was called in to investigate. The inspector general—at that time, a former New York State assistant attorney general named Catherine Leahy-Scott—is a kind of internal-affairs official for the state government, tasked with investigating the executive branch. During an interview with Leahy-Scott’s investigators, which was conducted under oath, Schiavone brought up the issues with Gestring. “They explained that they take these things very seriously,” she told me. “And that if I wanted them to initiate an investigation of Brian, and how he behaved, and how the agency responded to it, they would do that.”

The investigators then spoke with Levine. She turned over a journal in which she had kept contemporaneous notes of Gestring’s behavior. Bianchi, who by then had moved into a special-counsel role at D.C.J.S., vouched for both women’s allegations.

That October, Leahy-Scott met with Green and, according to a memo that Green later wrote, told him that her office had been investigating the allegations against Gestring. Green wrote that Leahy-Scott believed that Gestring had created an atmosphere of “fear and intimidation,” that Davis, in H.R., and another agency official, had failed to address problems with Gestring’s behavior, and that these issues left D.C.J.S. “exposed to future legal action.” Green, according to his memo, told Leahy-Scott that he took these issues “seriously,” and that he would “initiate and complete a comprehensive internal review of the matter.” (Green, who still runs D.C.J.S., did not respond to requests for comment.) Shortly after, according to Gestring, Green reassured him that the agency would launch a separate investigation. “Listen, I know that this stuff is false,” Gestring recalled Green telling him. “We will get to the bottom of this.”

The New York State Legislature held its first hearings on workplace sexual harassment in a quarter century two years ago. Witnesses who had worked in state government told lawmakers horror stories about an alphabet soup of acronymed agencies that needed to be navigated to report problems and seek help. Patricia Gunning, a former sex-crimes prosecutor who was harassed by her boss at the Justice Center, the state agency that investigates abuse and neglect of people with special needs, described her experience as “a complicated story of a hostile work environment, a sexualized frat-boy culture, and a sustained campaign of retaliation that I suffered as a result of standing up and speaking out.” According to a subsequent report, in the course of the hearings, “Witnesses exposed the grossly inadequate avenues of recourse available to them and widespread institutional failure to resolve matters without subjecting them to further harm.”

After meeting with Leahy-Scott, Green assigned an affirmative-action officer to conduct a “workplace climate investigation.” According to Gestring, on December 4th, he told Green that two of his employees were threatening to quit because of conflicts with Schiavone. Gestring said that if they did, he would leave, too. The next day, Green moved Schiavone to a different office at the agency—her new workspace had previously been used as a storage closet—and he fired Bianchi. The workplace-climate investigation had not yet been completed, but Green had asked for, and received, a recording of Bianchi’s interview with the inspector general’s investigators. According to documents Bianchi later filed in court, Green berated her in a tense two-hour meeting, telling her that her testimony had put him in a bad position. Schiavone, meanwhile, said she called an investigator in the inspector general’s office to tell him that she was being forced out.

A day later, Leahy-Scott sent a letter to Green memorializing her investigators’ findings. Leahy-Scott wrote that Gestring had “created a work environment at OFS rife with incidents of sexual harassment, ageism, racism, and threats of retaliation and physical violence.” She explicitly urged Green to “take action” against Gestring. (Leahy-Scott, through an attorney, declined to comment for this article.) It was at this point that Cuomo’s office appears to have gotten involved. On December 12th, Alphonso David, Cuomo’s chief counsel, met Leahy-Scott and Green in the State Capitol building. None of the participants have ever publicly discussed what was said in the meeting.

A day after this meeting, the affirmative-action officer sent Green a “Final Investigation Report.” The thirty-four-page document includes summaries of interviews conducted with all eighteen employees in the Office of Forensic Services. Several of the employees accused Schiavone and Levine of being aloof and disrespectful as managers. One mid-level employee said that she was fearful that Schiavone would “concoct some type of complaint” against her, and described a clique of veteran employees who, she said, were trying to “take Brian down.” Another employee, who praised Gestring, described the office as “very divided between the old and new people.” Most of the people interviewed said they had never witnessed inappropriate behavior in the office, though several noted that Gestring had a “booming voice” when he was frustrated, and made jokes that, “if taken out of context, could be made an issue.” A number of employees, when asked about comments Schiavone or Levine accused Gestring of making, said they did not hear or could not remember hearing the comments.

The report offers a vivid portrait of a fractious workplace. But there is little to suggest that the investigation was designed to thoroughly probe the more serious allegations raised by the inspector general. Schiavone told me that she had no idea that her interview with the affirmative-action officer was related to her allegations against Gestring. Another employee, when asked to describe the atmosphere in the office, responded with a sigh, and asked, “Is this confidential?” The report notes that Schiavone had accused Gestring of threatening to throw her out a window, and states that Gestring denied the accusation. The inspector general’s office, during its investigation, had contacted Nardolillo, who corroborated Schiavone’s account. Nardolillo told me that the affirmative-action officer never called him. The report notes that Davis had been accused of knowing about the problems with Gestring and failing to act, but she was not officially interviewed as part of the investigation, either. (When Davis spoke with the inspector general’s office, she said that she could not recall ever hearing Gestring threaten to throw Schiavone out a window.) The officer concluded that there was “insufficient evidence” to support any of the allegations against Gestring. Pointing to the complaints that multiple employees had made about Schiavone and Levine, the officer wrote that it was the two women who were, in fact, “the source of problems in OFS.”

Cathy Levine.

The punishments against Schiavone and Bianchi stood. Because of civil-service protections, Bianchi was terminated from her position as special counsel, but was able to remain at D.C.J.S. as a staff attorney—a similar job to the one she had when she joined the agency more than twenty years earlier. Her pay was cut by more than forty thousand dollars a year. Gestring stayed in his job. On January 3rd, 2018, Cuomo delivered his annual State of the State address. A few months earlier, the Times and The New Yorker had published articles about Harvey Weinstein that had helped spark the #MeToo movement. “Our country is finally taking a long look in the mirror as to how we treat women,” Cuomo said. “And we are disgusted with what we see.” He expressed his support for several anti-harassment measures, including new protections for whistle-blowers in the state government, “so victims are free to communicate complaints without fear of retaliation.” Two days later, Green sent a letter to Leahy-Scott saying that D.C.J.S. had taken “appropriate and necessary” actions, and that he now considered “this matter to be closed.”

In early March, 2018, Bianchi and Schiavone separately filed paperwork signalling their intent to sue Green and the other officials involved. On March 17th, the Albany Times Union published a story detailing the Cuomo administration’s handling of the allegations against Gestring. David, the governor’s counsel, issued a statement saying that the governor’s office had referred the matter to the proper authorities. “Anyone who is found to have engaged in inappropriate or retaliatory behavior will be held responsible to the fullest extent possible,” he said. (David, who is now president of the Human Rights Campaign, declined to comment for this article.)

Within a week, the agency moved to fire Gestring without making reference to Schiavone, Levine, or Bianchi. A year earlier, two New York State Police employees had reported a comment Gestring made during a meeting about the use of DNA evidence. According to court documents, someone at the meeting suggested that a case of rape involving children but no adults was not a crime. Gestring disputed the idea, and was alleged to have said, “I wish I could have known about that.” (Gestring denied making the comment.) On March 22nd, Green called Gestring and told him he was being fired because of the remark. The next day, Green sent an e-mail to the staff of D.C.J.S. “In light of published reports regarding personnel matters at the agency, I also want to assure you that we remain steadfast in our commitment to providing a workplace that fosters productivity and is free from any harassment or hostility,” he wrote. “We take all reports of misconduct seriously and discrimination and harassment are not tolerated.” He told his employees that if they had any questions or concerns, they could direct them to the agency’s human-resources office.

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