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N.Y. Law Firm Pre-emptively Sues Secretary Who Threatened Rape Suit Against Partner

NY- A New York law firm has filed a pre-emptive suit against a secretary who it claims is demanding $9 million to drop what it says are false rape and sexual harassment charges against a partner.

In a complaint filed last Friday in Manhattan Supreme Court, Bivona & Cohen denied that partner Joseph V. Figliolo had raped the secretary, but said she had given him a consensual “lap dance” in his office.

Marlene Monteleone, a Bivona & Cohen partner, said her 38-lawyer firm, which specializes in insurance defense, had taken the step of suing first because it was being “held up” by the secretary, Windy Richards.

In its complaint, the firm says Richards and her lawyer threatened to file a suit alleging a pattern of “relentless” sexual harassment culminating in her rape by Figliolo, 59, on Nov. 17, 2007, unless Bivona & Cohen paid her $9 million.

Though such workplace claims are common, the filing of pre-emptive lawsuits against potential claimants remains a relatively rare and frequently controversial legal gambit. However, the tactic is a familiar one for the lawyer representing Bivona & Cohen.

Ronald M. Green of Epstein, Becker & Green was also the lawyer for Fox News commentator Bill O’Reilly, who in 2004 also pre-emptively sued a woman he said was preparing an “extortion” suit alleging sexual harassment. That suit was later settled under confidential terms. Bivona & Cohen is also being represented by Joan M. Gilbride of Kaufman Borgeest & Ryan.

Referring to Epstein Becker, Richards’ lawyer, Jonathan S. Abady of Emery Celli Brinckerhoff & Abady, said, “This is a lawsuit brought by a firm that according to its Web site prides itself on the tactic of filing what it describes as ‘preemptive’ lawsuits. We look forward to this matter being resolved in a court of law.” Abady declined further comment.

Philip M. Berkowitz, a partner specializing in employment law at Nixon Peabody who is not involved in the case, said such an aggressive stance most commonly arose in cases where a potential claimant is using the disclosure of highly embarrassing facts as leverage in settlement discussions. By striking first, he said, the accused hopes to remove some of the “shock value” of the allegations as well as put a different spin on them.

But Debra S. Katz, an employment plaintiffs lawyer in Washington, D.C., said pre-emptive suits never made sense because they were “clearly retaliatory acts” in the context of harassment and discrimination claims.

“They subject the employer to more liability for retaliation,” she said.

Katz also said such “thuggish” tactics, aimed at getting someone to back off a claim, usually had the opposite effect, inspiring claimants to fight harder.

Though Bivona & Cohen’s complaint strongly disputes Richards’ claims of rape or any unwilling conduct, its description of what unfolded at the firm hardly flatters the partner she allegedly approached. According to the complaint, Richards, 37, knew Figliolo had a drinking problem and decided to “exploit his vulnerability” in the Nov. 17 incident.

“Knowing that he would be receptive to the proposal of a ‘lap dance,’ Richards offered to perform a ‘lap dance’ on Figliolo while he sat at his desk,” the complaint states. “As she performed the ‘lap dance,’ Figliolo became aroused and ejaculated inside his underwear while he was wearing his underwear and pants, using a towel to clean up.”

Monteleone acknowledged that such conduct “would not be appropriate in any office” and said the firm had taken “appropriate remedial action” toward Figliolo. She declined to specify what actions the firm took.

In its complaint, the firm claims Richards’ behavior afterward showed there was no rape.

“In the weeks following the incident,” the suit claims, “Richards boasted to her co-workers that she caused Figliolo to ejaculate and showed them the soiled ‘trophy’ towel which she had removed from Figliolo’s office.”

The firm claims in its complaint that Richards, who began work as a secretary in August 2007, propositioned Figliolo, who is married to the sister of firm co-founder John Bivona, to cement her position at the firm despite her poor job performance. The complaint states she was frequently absent from work and spent much of the day talking to friends on the phone.

Indeed, the firm alleges Richards first claimed she was raped at a Feb. 12, 2008, meeting called by an office manager to discuss the secretary’s work absences.

Richards subsequently retained Abady, who allegedly asked Bivona & Cohen for $9 million to settle a suit his client was prepared to file, alleging “relentless” harassment culminating in rape.

In its court papers, the firm is seeking a declaratory judgment that the secretary was not harassed and that the firm is free to fire her on the nondiscriminatory grounds that she lied on her employment application by submitting a false Social Security number to conceal that she had a prior conviction on a drug charge. Richards is currently on paid leave from the firm, according to the complaint.

According to Monteleone, the firm has determined that Richards’ real name is Wendy Ogando, and she pleaded guilty in 1991 to a drug abuse charge in Ohio, for which she received a 1 1/2-year sentence. The execution of the sentence was suspended and she was put on probation.

The firm is also claiming defamation, tortious interference and intentional infliction of emotional distress.

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