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Prosecutor in sex bias suit wants Niagara County-hired law firm disqualified

LOCKPORT – A Niagara County prosecutor who is accusing District Attorney Michael J. Violante of sexual discrimination is trying to have the county-hired law firm disqualified from the case.

The Buffalo firm Bond Schoeneck & King conducted an investigation of Assistant District Attorney Elizabeth R. Donatello’s allegations before her lawsuit was filed in U.S. District Court in Buffalo. That report, which discounted all of Donatello’s accusations against Violante, presumably would be a cornerstone of the county’s defense if the case goes to trial.

This means that Bond Schoeneck, and specifically the attorneys from that firm who conducted the investigation, would be both witnesses and advocates, Donatello’s lawyers argue. That’s an improper duplication of roles and a conflict of interest, and should require the county to hire another law firm, the motion contends.

The county’s lawyer, Sharon M. Porcellio of Bond Schoeneck, issued a statement saying, “Throughout this case, Ms. Donatello has exercised her right to use the lawyers of her choice. Yet Ms. Donatello is now seeking to deny the county the opportunity to do the same. There is no conflict of interest or other issue that should prevent Bond Schoeneck & King from representing the county. We look forward to moving beyond these issues so that the county will finally be able to defend itself against Ms. Donatello’s allegations.”

The papers were filed on Donatello’s behalf by attorneys David P. Marcus of Clarence and Andrew P. Fleming of Hamburg. Fleming said he would not discuss details of the case.

The 25-page Bond Schoeneck report, which is attached to the disqualification motion, accuses Donatello of demanding “special treatment” for herself in terms of salary and caseload.

“We have a different view of the facts,” Fleming said. “Elizabeth is not seeking special treatment; she’s seeking equal treatment. That’s what this lawsuit is about: unequal treatment and retaliation.”

Donatello, a sex crimes prosecutor, was reassigned to welfare fraud cases last fall, a transfer that isolated her from all the other prosecutors by moving her office to the Human Resources Building in Niagara Falls.

In October 2013, Donatello filed a complaint with the U.S. Equal Employment Opportunity Commission. The lawsuit, accusing Violante of discriminating against women and of taking an excessive interest in their physical attributes, was filed in federal court in January of this year.

Violante, 69, was accused of “repeatedly making off-color comments to or about almost all of the women in the office,” including Donatello.

He allegedly asked whether another female prosecutor had breast-enhancement surgery, and on another occasion allegedly discussed the topic with Donatello, telling her she didn’t need to worry about having such a procedure, according to the lawsuit.

“While (Donatello) distorts facts and fabricates events in order to paint a self-serving picture of the district attorney, she ignores the fact that she herself her earned a reputation in the office for openly discussing sexual matters, whether it be commenting on her own breasts or inviting others to watch pornography on her work computer,” the report says. Donatello used to handle all child porn cases in the county.

Donatello’s suit also contends that Violante favored a male sex crimes prosecutor, Robert A. Zucco, over her. It said Violante let Zucco arrive at work late and leave early because Zucco, 63, is a widowed father of three, while the childless Donatello, 45, “had her husband to support her,” the lawsuit alleges. Donatello objected that she was carrying more of the sex crime workload than she should have been, but Violante told her to stop complaining about Zucco, who has 12 years more seniority and is paid $25,000 more per year than Donatello.

The Bond Schoeneck report asserts that Zucco handled more cases and trials than Donatello, while Donatello took more days off than anyone on the staff in 2011 and 2013, and was second in time off in 2012. It also said Zucco is more efficient, completing more work in less time than Donatello.

Donatello said in an email to Violante, attached to the report, that Zucco had made several errors that resulted in indictments being dismissed, or felony sex crimes ending up as misdemeanor pleas.

The report points out that two of Violante’s three deputy prosecutors are women, and that women hold many of the highest-paid positions on the staff. It says Donatello was one of only two prosecutors to get a raise in 2010, because of a special request from Violante to the County Legislature, as The Buffalo News reported at the time.

The Bond Schoeneck report includes a letter that seemingly refutes the contention in the lawsuit that Violante fired Donatello after a confrontation over Zucco on March 6, 2013, and reinstated her after a meeting the following week.

The letter from Violante to Donatello says that she must stop openly complaining about “a specific co-worker.” It says, “Your current behavior and treatment of your co-worker is unacceptable and will not be tolerated. I also advised you that if you are unwilling to do what is required of you, you could either seek other employment or risk being terminated.” It asked Donatello to tell Violante in writing by March 8, 2013, whether she would return to work or resign.

Donatello responded with a lengthy email, also in the report, which began, “I was really happy to read I wasn’t fired. I will return to work Monday. I can absolutely do what you ask with respect to Rob Zucco.” But the email went on to complain about “the unfair and unequal treatment I receive with respect to Rob Zucco.”