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Lesley Shiner v. State University of New York

November 2, 2012


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Plaintiff Lesley Shiner ("Plaintiff" or Shiner") commenced this employment discrimination action against the State University of New York, University at Buffalo ("SUNY") and Dr. Jude Fabiano ("Fabiano"). Shiner, a clerk within the instrument management services department at University at Buffalo Dental School, alleges that Fabiano, the former Associate Dean for Clinical Affairs, subjected her to sexual comments, unwanted sexual advances and sexual assaults at the 2010 department Christmas party. Plaintiff sued SUNY and Fabiano for sexual harassment under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §200e, et seq. She also asserted various other federal and state law claims against Fabiano only.

SUNY has moved to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). SUNY argues that based upon the allegations in Plaintiff's complaint and the affirmative defense set forth by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and its progeny, it cannot be held liable under Title VII. For the reasons that follow, Defendant SUNY's motion to dismiss is denied.


Plaintiff filed her initial complaint on December 1, 2011. Therein, she alleged sexual harassment under Title VII and the New York State Human Rights Law, discrimination pursuant to Section 1983 of Title 42 of the United States Code, and common law claims of assault and battery.*fn1 On April 2, 2012, SUNY filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). SUNY argued, among other things, that it could not be liable for Plaintiff's state law claims due to the State of New York's Eleventh Amendment immunity. On May 14, 2012, Plaintiff filed an amended complaint. On that same day, SUNY and Plaintiff filed a joint stipulation stating that in light of the amended complaint, they agreed to treat SUNY's initial motion to dismiss as moot.

Plaintiff's amended complaint asserts causes of action against Defendant Fabiano for sexual harassment under Title VII and discrimination under Section 1983, as well as common law claims of assault and battery. The only claim asserted against SUNY in the amended complaint is sexual harassment under Title VII. On May 24, 2012, SUNY renewed their motion to dismiss, arguing that the allegations in Plaintiff's complaint, taken as true, fail to state a viable claim against SUNY under Title VII.*fn2


Shiner began working as a clerk within the instrument management services department of the University at Buffalo Dental School ("UB Dental School") in August of 1998.*fn3 Fabiano served as Associate Dean for Clinical Affairs at UB Dental School. Steve Colombo was the Director of Clinical Operations. Both men had supervisory authority over Shiner although she did not report directly to either of them.

The UB Dental School holds an annual department Christmas party for staff. The party is organized by Colombo and funded by the UB Foundation. At the 2008 and 2009 department Christmas parties, Colombo and Fabiano made sexually inappropriate and sexually explicit comments in front of staff members, including Shiner. Upon receiving an email invitation to the 2010 department Christmas party, Shiner informed her direct supervisor, Patricia Sellick, that she did not want to attend the party because of the "sexual and verbal abuse" that had occurred at previous department Christmas parties.

The Christmas party was held on December 21, 2010 at a local bar. Despite her complaints with respect to the tenor of the previous Christmas parties, Shiner attended. She was seated near Fabiano and Colombo. Over the course of the party, Colombo and Fabiano made inappropriate and sexually explicit remarks, comments and gestures. Fabiano made unwelcome sexual advances to Shiner and another staff member, and sexually assaulted Shiner. The most egregious acts committed by Fabiano included: (1) fondling Shiner's breasts; (2) placing his mouth on Shiner's ear and inserting his tongue in her ear; (3) chasing Shiner around a table (4) grabbing Shiner and Jackie Haefner, another female staff member, by their necks and "bending them over a table" in front of other staff members; (5) pushing Shiner and Haefner's faces together and instructing them to kiss, stating that he wanted some "girl on girl" action, and telling Shiner and Haefner that he wanted the three of them to be together sexually; (6) pulling Shiner on his lap and asking Shiner to meet him somewhere after the party; and (7) forcefully pinching and squeezing Shiner's ribs when she did not submit to his advances. The majority of this conduct occurred in front of Sellick, Shiner's direct supervisor, Colombo, and other department employees.

It appears that Fabiano was the primary aggressor against Shiner. However, Colombo encouraged and cheered much of Fabiano's behavior. At one point during the party, Colombo grabbed Shiner's hand and pulled her onto his lap, stating to Fabiano "you might be the boss, but I have her now."

The following day, Shiner told a number of her co-workers as well as Sellick that she was extremely upset about what had occurred at the party, and specifically that Fabiano propositioned her, humiliated her, and hurt her. Sellick told Shiner to "do something about it", to which Shiner replied, "you are the one who's supposed to do something."

At some point after the December 2010 party, although it is unclear when, Shiner filed a complaint with the University at Buffalo Employee Relations Office. On March 3, 2011, Michael Glick, Dean of UB Dental School, informed Fabiano that his current term appointment would end on March 12, 2012. On March 7, 2011, Sarah Augustynek, Assistant Director of Employee Relations, advised Fabiano that he was suspended without pay as a result of his conduct at the Christmas party. In accordance with the terms of his union contract, Fabiano was issued a formal notice of discipline on March 8, 2011.*fn4 Based upon the allegations in the complaint, it is unclear how long the suspension lasted or what, if ...

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