While the Roman Catholic Diocese of Rochester continues to inch toward a settlement with hundreds of survivors of childhood sexual abuse, a tiny group of abuse survivors similarly seeking satisfaction from Gannett Co. Inc. finds itself adrift in a sea of uncertainty.
The lack of progress prompted former Democrat and Chronicle news carrier Rick Bates last month to email an anguished plea to Gov. Kathy Hochul: “I beg of you to provide insight into how to move these cases forward toward a conclusion – from the purgatory they are currently in. … After more than three years, where is the justice for each plaintiff, for the little 11-year-old boy inside me, here?”
Gannett, Bates wrote, “has thrown up legal gambit after legal gambit, delay after delay, roadblock after roadblock, and years have gone by.”
Bates’ email also was addressed to state Attorney General Letitia James and Sen. Brad Madison Hoylman-Sigal, a Manhattan Democrat who is chairman of the Senate’s Judiciary Committee.
He has not received a response so far.
Bates is one of eight men who claim in CVA actions to have been molested by an adult co-worker when they were Democrat and Chronicle paperboys in the 1980s.
New York’s Child Victims Act was supposed to be a lifeline for adults who had suffered abuse as children. By temporarily rolling back a statute of limitations that protected alleged pedophiles and organizations that sheltered or enabled them, the act was meant to give victims a long-denied chance to confront their abusers.
After the diocese’s recent filing of a reorganization plan in its nearly four-year-old Chapter 11 bankruptcy, 485 men and women who say they were abused as children by priests, nuns and other church functionaries could start to be paid settlement amounts before the year ends.
But the plaintiffs in the Gannett cases see no end in sight.
Now coming up on their fourth year, the Gannett CVA cases have been on hold since December, when Gannett lawyers successfully pushed them out of the state courts and placed them before the state’s Workers’ Compensation Board.
Four months later, the board is not slated to hear evidence or take any action on the CVA complaints.
The delay has put the former carriers’ cases “in limbo, which is exactly how they feel,” says Amy Mathieu, an attorney with the Marsh Law Firm, a New York City- and Pittsburgh-based firm representing seven of the ex-paperboys.
Any court action that might start to move the former paperboys’ cases out of the becalmed waters they now sit in is not likely to begin until as much as six months in the future. If the cases do restart, months of legal jousting could easily put any resolution well into 2025, Mathieu says.
Like some 300 of the claimants in the diocese bankruptcy, the former D&C news carriers filed CVA complaints shortly after the act took effect in September 2019.
Swamped with abuse claims whose legitimacy it has not denied, the church turned to the Bankruptcy Court to work out a settlement.
Gannett decided to aggressively fight its accusers. Applying a strategy that at least temporarily seems to have flummoxed the ex-paperboys’ lawyers, the media company has managed to stalemate the former carriers.
Largely avoiding questions over its alleged failure to properly supervise Jack Lazeroff, the route supervisor whom Bates and seven of the eight carriers say repeatedly molested them, Gannett is basing its defense on the contention that as employees of the Rochester daily the carriers’ only recourse is the state’s workers’ compensation system.
Lazeroff died in 2003. He had attracted police attention over alleged sexual advances to minors in the 1980s. The D&C eventually fired him for reasons that are now unclear. In correspondence with Bates in 2018 before he filed the CVA claim, a Gannett official claimed the company could uncover no evidence to substantiate Bates’ abuse claims. A former D&C reporter later told Bates that he and colleagues had uncovered evidence supporting Bates’ claims, however.
Designed to ensure medical treatment for injured workers while protecting employers from litigation, New York’s workers’ comp system was created more than a century ago as the sole recourse for workers injured on the job. The Workers’ Compensation Board has so far not addressed the question of whether workers’ comp is indeed the proper venue to hear workplace sexual abuse claims.
Bowing to Gannett’s insistence that only the state’s Workers’ Compensation Board can say whether it or the courts can deal with the ex-carriers’ complaints, the judge overseeing the former paperboys’ CVA cases, Erie County Supreme Court Justice Deborah Chimes, agreed to put the CVA cases on an indefinite hold, pending a ruling by the board.
So far, neither Marsh Law Firm lawyers nor attorneys separately representing Bates have filed workers’ comp claims on behalf of their clients.
“We’re still looking at it,” says Mathieu.
Gannett’s lawyers maintain that since the former paperboys failed to file timely workers’ comp claims in the 1980s when they say they were molested or in 2019 when they filed CVA cases, they are shut out of the workers’ comp system and thus eligible for no compensation at all.
In February, attorneys for the ex-carriers filed an appeal with New York’s Fourth Department Appellate Division asking the appeals court to reverse “each and every part” of Chimes’ December ruling.
The former carriers’ attorneys have six months to file briefs arguing for reversal. So far, they have not done so but intend to before the six-month deadline is up, Mathieu says.
While readying an appellate brief, Mathieu says, the ex-carriers’ legal team is simultaneously consulting with a workers’ comp attorney to try to puzzle out how a workers’ comp case might be approached in what seems to be a novel circumstance.
A direct approach to workers’ comp could yield a faster resolution than an appeal, which could take as long as two years to play out, she adds.
Once the ex-carriers’ briefs are filed, Gannett’s lawyers would typically then file answering papers, after which a Fourth Department panel could hear oral arguments or could rule without doing so.
If the panel grants the carriers’ appeal, the cases would go back to Chimes. If it decides to leave Chimes’ December order in place, the former paperboys’ lawyers could appeal to the state’s highest court, the Court of Appeals. If the former carriers lose both levels of appeal, the Workers’ Compensation Board would be their only avenue.
If the Workers’ Comp Board were to consider the ex-paperboys’ cases, it would send them back to the state court, Mathieu believes, an outcome that would also put the cases back into Chimes’ court.
If the cases do go back to Chimes, Mathieu says, they would pick up not far from where they sat when they were filed nearly four years ago.
Gannett’s lawyers then could have to file a motion seeking dismissal, she says. Discovery, which has mostly been paused while Gannett pursued the workers’ comp gambit, would resume, while lawyers on both sides file briefs for or against continuing the case. If Gannett did not file a motion seeking dismissal, the cases would go to trial.
To Bates, the nearly four-year pause in the CVA cases has been an unconscionable delay.
“The CVA was enacted to reduce barriers faced by survivors of sexual abuse to come forward with their claims,” he wrote Hochul in the March email. In doing so, he wrote, “the CVA very likely saved my life.”
Added Bates: “Gannett should not be provided an infinite clock as they have had thus far to have this case considered. Enabling and encouraging delay is fatal to the vindication of the law.”
Changes to law covering workplace sexual assault proposed
A recently proposed state law would clarify ambiguities surrounding workplace sexual assault and New York’s workers’ compensation system.
The bill, put forward last month by Sen. Kevin Parker, D-Brooklyn, calls for keeping workers’ comp as the sole remedy for workplace accidents including sexual assault but carves out an exception for assaults committed by a fellow worker. A provision also would allow victims of workplace sexual assault to simultaneously “pursue other remedies at law.”
If signed into law, the bill would work to the advantage of former Democrat and Chronicle paperboys pressing Child Victims Act claims against Gannett Co. Inc.
The former carriers’ cases have been at least temporarily stymied by a reroute to the workers’ comp system. The reroute came after a judge bowed to Gannett’s lawyers’ insistence that because the paperboys were the paper’s employees, only the state’s Workers’ Compensation Board and not the courts can hear the CVA complaints.
The prospects for Parker’s bill are not clear, however. The Brooklyn lawmaker proposed similar measures in five previous legislative sessions. None ever made it to the Senate floor. In addition, two similar bills were proposed in earlier sessions by former Sen, Thomas Duane, a Manhattan Democrat. A measure proposed by Duane in 2011 also died in committee. A 2009 measure put forward by Duane made it to the floor but never advanced to the governor’s office.
—Will Astor
Will Astor is Rochester Beacon senior writer. The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. Submissions to the Letters page should be sent to [email protected].
Interesting that Gannett so quickly, relatively speaking, reached a settlement a few years ago after a class action lawsuit was filed alleging the company violated the Telephone Consumer Protection Act when its telemarketers used an automatic telephone dialing system to place tens of thousands of telemarketing calls to consumers’ cell phones in an effort to increase subscriptions to its newspapers, violating the terms of the Act and in many cases ignoring consumer requests to no longer be called. The suit was filed in 2014 and Gannett agreed to a $13.8 million settlement just two years later.