A horn player sidelined by the New York Philharmonic over a vile sexual assault allegation is suing the venerable symphony orchestra for his job back, insisting the encounter with a fellow musician who says she was drugged and raped ”was consensual” and that “no drugs were involved.”
Details of the alleged attack first publicly surfaced in a New York magazine article published last month. “A Hidden Sexual-Assault Scandal at the New York Philharmonic,” the headline read, followed by a subhead asking: “Two musicians were fired for sexual misconduct. Why are they back with the orchestra?”
Matthew Muckey, who since 2008 has held a tenured position as associate principal and third trumpet at the NY Phil, argues in a federal lawsuit filed Wednesday that his sacking violates the lifetime appointment promised in his contract. In it, Muckey says that even though authorities declined to prosecute, heaps of extremely negative press has now left the musicians’ union—which helped him keep his position when the accusations previously surfaced—unwilling to help him anymore.
“Since April 13, 2024, Mr. Muckey has been barred from performing in any concerts of the Philharmonic, which as of the date of this Complaint, totals at least nine (9) concerts, including the Spring Gala with Gustavo Dudamel in which he was scheduled to perform on April 24, 2024,” according to Muckey’s lawsuit, which was filed Wednesday in Manhattan federal court. “In addition, Mr. Muckey has been barred from rehearsing for the Philharmonic’s tour in China which is scheduled for June 2024 and the tour in Vail which is scheduled for July 2024.”
Vail, as it happens, is where Muckey’s current problems began.
In July 2010, Muckey was with the NY Phil for a weeklong residency in the wealthy resort town, according to Vulture, New York’s standalone entertainment vertical. After their second concert, a handful of the musicians were hanging out at a condo one of them had rented for the stay, the magazine reported. There, Muckey met a “probationary” French horn player who had just joined the orchestra, his complaint states.
Cara Kizer was only the second woman to play in the Philharmonic’s horn section since its founding in 1842, according to Vulture. Kizer had a few hours to kill before her husband would be arriving to join her, so once things wound down at the get-together, she accepted Muckey’s invitation to join him and principal oboe Liang Wang for a glass of wine at a nearby apartment Muckey had booked for the week.
“You don’t ever think your colleagues are going to do something nefarious,” Kizer told investigative reporter Sammy Sussman.
When they got to Muckey’s place, he and Wang tried to get Kizer into the hot tub with them, which she did not do, according to Sussman’s article. She did, however, welcome a glass of red wine Wang later gave her, after which Kizer said she remembers nothing else from that evening.
All signs pointed to Kizer having been raped, according to Vulture. The article says she woke up in Muckey’s bed the next morning, naked, and that he wouldn’t make eye contact with her or tell her what had happened. There were various physical signs of an assault, too, as well as a positive hair-follicle test for GHB, known as a “date rape drug.”
In his complaint, Muckey contends he “denied the 2010 Allegations as being false and [that] he fully cooperated in the multiple, thorough investigations conducted by local authorities.”
“He voluntarily consented to a full physical exam specifically pertaining to a sexual assault investigation as well as to a complete search of his rented condominium,” it goes on. “At that time, the Philharmonic determined that there was no basis to inquire or take any adverse employment action against Mr. Muckey based upon the 2010 Allegations.”
Local authorities did not think they had enough evidence to charge Muckey, who went back to New York and got on with his life. Kizer, on the other hand, obtained an order of protection that barred Muckey from having anything to do with her. (Kizer says she was still forced to see him at rehearsals, Vulture reported.) She also discovered that Kizer had been accused of rape a few years earlier, according to the article.
Muckey was married in 2013, and has two children, according to his complaint. Five years later, it says, the Vail episode came back to haunt him. In the wake of movie mogul Harvey Weinstein’s rape conviction and the “Me Too” movement it spawned, the 2010 allegations resurfaced. The Philharmonic hired a retired judge to investigate, and Muckey was fired on Sept. 4, 2018, “based upon the 2010 Allegations,” his complaint states.
Muckey says in the filing that the American Federation of Musicians Local 802 filed a wrongful dismissal grievance on his behalf and forced the Philharmonic to arbitrate.
“At the conclusion of the arbitration, the Arbitrator determined that the Philharmonic had not established that Mr. Muckey engaged in the drugging or sexual assault alleged,” Muckey’s complaint states. “On April 4, 2020, the Arbitrator issued the Award which granted the grievance of the Union and ordered that Mr. Muckey… be reinstated at the Philharmonic and that all contractual benefits lost, including full back pay and seniority be restored. Until April 12, 2024, the date on which the article rehashing the 2010 Allegations appeared in Vulture, Mr. Muckey has been a tenured member as Associate Principal and Third Trumpet in good standing at the Philharmonic.”
On April 13, according to the complaint, the Philharmonic’s counsel emailed Muckey’s lawyer: “I am writing to confirm that Mr. Muckey should not attend Philharmonic rehearsals or performances until further notice.” That night, the Philharmonic announced publicly that Muckey “was barred from all rehearsals and performances,” it says.
Five days after that, New York Philharmonic President and CEO Gary Ginstling issued his own statement, saying the “details revealed in the New York magazine article are horrifying to me personally.”
“[A] decision about their future with the New York Philharmonic will be made in due course,” Ginstling’s statement said.
To this, Muckey’s complaint argues, “The clear message by the Philharmonic to the public was that Mr. Muckey… [was] not being assigned to any Philharmonic activity solely because of the 2010 Allegations.”
“The matter has been investigated and put to bed and it is time for it to end,” Muckey’s attorney, Steven Hyman, told the New York Post Wednesday.
Local 802 has also expressed a full-throated backing of Kizer, which Muckey objects to, according to his complaint.
“Notwithstanding that Local 802 had commenced the arbitration on Mr. Muckey’s
behalf that restored him to the Philharmonic, Local 802’s President, Sara Cutler, issued a public statement to The New York Times in an article published on April 15, 2024, in which [she] publicly stated its full support of the Philharmonic’s Suspension of Mr. Muckey and its refusal now to represent Mr. Muckey.”
She said the shunting aside of Muckey (and Wang, who was suspended pending further review, as well) were “good first steps, but they can’t be the last.”
“Ms. Cutler did not state that the Philharmonic’s sidelining of Mr. Muckey was in
violation of the Award which ordered Mr. Muckey’s reinstatement with back pay and seniority and that Local 802 would seek enforcement of the Award and restoration of Mr. Muckey to his tenured position as Associate Principal and Third Trumpet,” the complaint says. “Nor did Ms. Cutler state that the allegations which appeared in New York magazine were the same as those that were the subject of the arbitration commenced by Local 802 four years ago when it was determined that such allegations did not constitute just cause to terminate Mr. Muckey and the Award was granted in his favor.”
Instead, according to Muckey’s complaint, “Ms. Cutler publicly stated that, ‘I am horrified by what was in the [New York magazine] story and we are committing the full resources of Local 802 to erase the culture of complicity that has raged at the N.Y. Philharmonic for too long.”
Muckey is now asking a judge to force the Philharmonic to reinstate him, to issue a declaratory judgment that Local 802 “has breached its duty of fair representation,” and to award him attorneys’ fees, costs, and disbursements, as well as economic and punitive damages, in amounts to be determined at trial.
A spokesperson for the New York Philharmonic did not immediately respond to a request for comment.
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