Shiner v. State University of New York, University at Buffalo et al

Filing 26

DECISION AND ORDER denying #6 #10 Defendant State University's Motions to Dismiss for Failure to State a Claim. Case is referred to Magistrate Judge Hugh B. Scott for further proceedings. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/2/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
LESLEY SHINER,
Plaintiff,
v.

DECISION AND ORDER
11-CV–01024

STATE UNIVERSITY OF NEW YORK,
UNIVERSITY AT BUFFALO,
DR. JUDE A. FABIANO, ASSOCIATE DEAN,
OFFICE OF CLINICAL AFFAIRS
Defendants.

INTRODUCTION
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.
PROCEDURAL HISTORY
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.1 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.

1

Plaintiff’s initial com plaint listed each cause of action separately but failed to specify the
Defendant or Defendants each cause of action was being asserted against. Therefore, it was unclear as
to which cause of action applied to which Defendant.

2

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.2
ALLEGED FACTS
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 1998.3 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.

2

Plaintiff argues that SUNY is precluded from m aking a second m otion to dism iss pursuant to the
“om nibus requirem ents” of Federal Rule of Civil Procedure (“FRCP”) 12(g). However, a m otion to dism iss
under FRCP 12(b)(6) falls under an exception to the om nibus m otion rule in FRCP 12(g)(2). Because that
exception is clear and prevents a plaintiff from intentionally filing a defective com plaint in order to prom pt a
m otion to dism iss in the expectation that a later-filed am ended pleading will be beyond the Court’s scrutiny
under Rule 12(b)(6), plaintiff’s counsel’s argum ent is troubling to the Court. Moreover, upon the filing of
the am ended com plaint in this case, the parties stipulated and agreed that the original m otion to dism iss
was m ooted by plaintiff’s am endm ent of the com plaint as of right. Therefore, the instant m otion to dism iss
is procedurally correct and will be considered on its m erits.
3

The facts set forth herein reflect the allegations in Plaintiff’s am ended com plaint. All well-pleaded
allegations are accepted as true for the purposes of this m otion to dism iss, but do not constitute the
findings of the Court. See Chambers v. Time W arner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

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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
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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

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issued a formal notice of discipline on March 8, 2011.4 Based upon the
allegations in the complaint, it is unclear how long the suspension lasted or what,
if any, additional contractual disciplinary proceedings occurred with respect to
Fabiano. According to Plaintiff’s complaint, no disciplinary action has been taken
against Colombo.
DISCUSSION
W hen ruling on a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court must “accept all of the plaintiff’s factual allegations
in the complaint as true and draw inferences from those allegations in the light
most favorable to the plaintiff.” Starr v. Georgeson S’holder, Inc., 412 F.3d 103,
109 (2d Cir. 2005). A complaint should be dismissed only if it fails to contain
enough allegations of fact to state a claim for relief that is “plausible on its face.”
Bell Atl. Corp. V. Twombly, 550 U.S. 544 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In considering a motion to dismiss, “the issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198
(2d Cir. 2011).
Here, Plaintiff alleges that SUNY subjected her to a hostile work
environment under Title VII. SUNY argues that Plaintiff’s claim should be

4

The notice of discipline was issued pursuant to Article 19 of the 2007-2011 Agreem ent between
the State of New York and the United University Professions.

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dismissed since it is clear, from the face of the complaint, that SUNY is exempt
from liability based upon the affirmative defense set forth by the Supreme Court
in Faragher v. Boca Raton and its progeny. As outlined below, SUNY’s motion to
dismiss based upon the affirmative defense is pre-mature and will be denied
without prejudice for renewal later in the litigation.
In order to state a cause of action for hostile work environment
discrimination under Title VII, Shiner must allege: (1) that her workplace was
permeated with conduct that was “sufficiently severe or pervasive to alter the
conditions of her work environment”; and (2) “a specific basis exists for imputing
the conduct that created the hostile environment to [her] employer.” Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007). The first element of a hostile work
environment claim requires that the plaintiff’s allegations demonstrate that the
environment was both subjectively and objectively hostile. See Gregory v. Daly
243 F.3d 687, 691-92 (2d Cir.2000).
Although “isolated, minor episodes of harassment do not merit relief under
Title VII”, the Second Circuit has made clear that “even a single episode of
harassment, if severe enough, can establish a hostile work environment.” Torres
v. Pisano, 116 F.3d 625, 632-33 (2d Cir. 1997). Indeed, single instances of
unwelcome touching or sexual assaults are often sufficient to support a prima
facie claim of sexual harassment. See e.g., Tomka v. Seiler Corp., 66 F.3d 1295,
1305 (2d Cir. 1995) (case law is clear that “even a single incident of sexual
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assault sufficiently alters the conditions of the victim’s employment and clearly
creates an abusive work environment”); Wahlstrom v. Metro-North Commuter
R.R., 89 F. Supp. 2d 506, 511 (SDNY 2000) (single incident where co-worker
approached plaintiff, embraced her and slapped her buttocks sufficient to defeat
motion for summary judgment on hostile work environment claim because
“physical contact between the parties was neither harmless nor accidental”);
Yaba v. Roosevelt, 961 F. Supp. 611, 620 (SDNY 1997) (denying motion to
dismiss hostile work environment claim based on one event, because plaintiff
alleges a “serious incident of sexual harassment [that]...if credited by a jury, could
be judged sufficient to have created a hostile or offensive working environment”).
Plaintiff’s complaint alleges that Fabiano subjected to her to lewd sexual
comments and advances, grabbed her breasts, chased her around a table,
inserted his tongue in her ear, and forcefully pinched her ribs when she refused to
submit to his requests. These egregious acts took place at an employer-funded
party, in front of Plaintiff’s colleagues, while another one of Plaintiff’s supervisors
laughed and cheered Fabiano’s behavior. Based upon the Second Circuit
precedent discussed above, Plaintiff’s allegations, if true, are plainly sufficient to
state a claim for hostile work environment harassment.
In addition to establishing that she was subjected to a hostile work
environment, Plaintiff must also establish that the conduct which created the
hostile environment should be imputed to the employer. Leopold v. Baccarat,
8

Inc., 239 F.3d 243, 245 (2d. Cir. 2001). W hen the alleged harasser holds a
supervisory position over a plaintiff, his or her conduct is automatically imputed to
the employer unless the employer is able to successfully raise an affirmative
defense that examines the reasonableness of the conduct of both the employer
and the employee. Id. at 245. This defense, set forth by the Supreme Court and
deemed the Faragher/Ellerth affirmative defense, requires proof of the following
two elements: (1) “the employer exercised reasonable care to prevent and correct
any harassing behavior”, and (2) “the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided by the
employer to avoid harm otherwise”. Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998).
The Faragher/Ellerth affirmative defense is not available when the alleged
perpetrator of the harassment holds a sufficiently high position within
management to be considered the employer’s proxy, such that his or her actions
are automatically imputed to the employer. See Townsend v. Enterprises, Inc.,
679 F.3d 41 (2d Cir. 2012) (the Faragher/Ellerth affirmative defense is
unavailable when the supervisor in question is the employer’s proxy or alter ego);
Faragher, 524 U.S. at 789-90 (presidents, owners, proprietors, partners,
corporate officers, and supervisors with a high position in the management
hierarchy are the types of officials who can be considered an organization’s alter
ego).
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SUNY argues that the allegations in Plaintiff’s complaint demonstrate that
both elements of the Faragher/Ellerth defense have been satisfied and therefore
the claim against the school must be dismissed. Plaintiff maintains that the
Faragher/Ellerth defense does not apply here, since Fabiano is sufficiently high
ranking in the organization to be considered SUNY’s proxy or alter ego. SUNY
contends that Fabiano, an assistant dean of the UB Dental School, does not
occupy a sufficiently high position within the SUNY management system as a
whole to be considered a proxy or alter ego of SUNY. In evaluating SUNY’s
motion to dismiss, the Court does not reach this argument Even if SUNY is
correct and Fabiano is not SUNY’s proxy or alter ego, dismissal of Plaintiff’s
claims would still be improper since there is insufficient evidence before the
Court, at this stage of the proceeding, to prove that SUNY exercised reasonable
care and is entitled to the Faragher/Ellerth defense as a matter of law.
The employer bears the burden of proving the Faragher/Ellerth affirmative
defense by a preponderance of the evidence. Leopold, 239 F.3d at 245. A party
faces a significantly heightened standard to obtain judgment as a matter of law on
an issue as to which that party bears the burden of proof at trial. Granite
Computer Leasing Corp. v. Travelers Indem. Co., 894 F.2d 547, 551 (2d Cir.
1990) (“It is rare that the party having the burden of proof on an issue at trial is
entitled to a directed verdict”). The Second Circuit has concluded that with
respect to the Faragher/Ellerth affirmative defense, even summary judgment is
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cautioned against unless “the evidence is so overwhelming that the jury could
rationally reach no other result.” Fairbrother v. Morrison, 412 F.3d 39, 53 (2d Cir.
2005).
SUNY has failed to meet this high standard. As outlined above, in order to
take advantage of the affirmative defense, SUNY must show that: (1) it took
reasonable steps to prevent harassment and remedy the conduct promptly when
it was brought to SUNY’s attention; and (2) that the harassed employee
unreasonably failed to avail themselves of SUNY’s corrective or preventative
opportunities. Ellerth, 524 U.S. at 765. If there exists any issue of fact as to
whether an employer’s action to prevent or correct harassment is effectively
remedial and prompt, judgment as a matter of law is inappropriate. Gallagher v.
Delaney, 139 F.3d 338 (2d. Cir. 1998).
In light of the allegations set forth in the complaint which must be regarded
as true, and without additional discovery and factual findings, SUNY cannot
establish that it is entitled to this defense as a matter of law. Plaintiff’s complaint
alleges that upon receiving an invitation to the 2010 Christmas party, she
informed her supervisor that she did not want to attend because of the “verbal
and sexual abuse” that had occurred at Christmas parties in years past. This
allegation is sufficient to raise a question of whether Plaintiff complained prior to
the December 2010 party and whether SUNY exercised reasonable care to
promptly correct the sexually harassing conduct or prevent future conduct. See
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Prince v. Madison Square Garden, 427 F.Supp. 2d 372, 382 (SDNY 2006)
(denying employer’s motion to dismiss on grounds that plaintiff failed to allege
facts sufficient to support imputing liability to her employer, since there were
issues of fact as to the adequacy of the employer’s investigation of plaintiff’s
sexual harassment complaint and reasonableness of the parties’ conduct); Little
v. NBC, Inc., 210 F. Supp. 2d 330 (SDNY 2002) (where there is evidence that
plaintiffs’ supervisors routinely mocked or dismissed their informal complaints of
discrimination and harassment, a genuine issue of fact existed as to whether
employer’s policy was effective).
Furthermore, Plaintiff alleges that the harassing conduct occurred in
December, and it appears that SUNY did not take any action until March.
W ithout the benefit of additional details regarding when Plaintiff complained to UB
Employee Relations, and what, if any, investigation took place in the meantime,
this Court cannot evaluate the promptness and adequacy of SUNY’s response.
Moreover, it appears that while some action was taken against Fabiano, the
length of the suspension and outcome of the formal disciplinary proceeding
initiated against him are not known at this time.5 See Howley v. Town of
Stratford, 217 F.3d 141 (2d Cir. 2000) (employee presented enough evidence to

5

The com plaint alleges that on March 3, 2011, the Dean of UB Dental School inform ed Fabiano
that his current term appointm ent would end on March 12, 2012. However, it is unclear as to whether this
was because of Fabiano’s behavior at the 2010 Christm as party or due to som e other reason. Since the
length of Fabiano’s suspension is unknown, it is also unclear as to whether Plaintiff had to continue
working with Fabiano during the year rem aining in his term appointm ent.

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withstand summary judgment with respect to the second element of her hostile
work environment claim, i.e., that her employer’s response to her complaints was
inadequate, where employer took five weeks to mete out discipline after
employee complained of verbal abuse and discipline consisted of only a weekend
suspension).
Finally, Plaintiff alleges that she was also harassed by Colombo, that she
had previously complained about him and that no disciplinary action was taken
against him. W ithout additional factual discovery, it is unknown if Colombo could
be found to have contributed to a hostile work environment and what, if any,
action SUNY took to investigate or correct his behavior. See Garcia v. College of
Staten Island, 2012 U.S. Dist. LEXIS (EDNY 2012)(employer’s motion to dismiss
based upon the Faragher/Ellerth affirmative defense denied, without prejudice for
renewal on a summary judgment motion, since “even assuming the Court could
view [the employer’s harassment policy] on this motion and that it was in effect at
the time of these incidents, it is unclear whether the parties’ actions complied with
the policy); Gallagher, 139 F.3d at 348-349 (vacating a district court’s granting of
summary judgment where district court concluded that moving an employee’s
office to a different part of the building was a prompt and adequate response to a
harassment complaint, since “a jury could disagree on how prompt, appropriate
and adequate was the response”).

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In sum, the facts of this case may ultimately establish that SUNY is exempt
from liability based upon the Faragher/Ellerth affirmative defense. However, at
this stage of the litigation the Court simply does not have enough information to
evaluate the merits of this defense. The motion to dismiss is denied without
prejudice with respect to SUNY’s ability to assert the affirmative defense going
forward in this matter.

Conclusion
For all of the foregoing reasons, State University of New York’s motion to
dismiss is denied.
This case is referred to Magistrate Judge Hon. Hugh B. Scott who is
hereby designated to act in this case as follows: Pursuant to 28 U.S.C. Section
636(b)(1)(A) and (B), all pre-trial matters in this case are referred to the
above-named United States Magistrate Judge, including but not limited to: (1)
conduct of a scheduling conference and entry of a scheduling order pursuant to
Fed. R. Civ. P. 16, (2) hearing and disposition of all non-dispositive motions or
applications, (3) supervision of discovery, and (4) supervision of all procedural
matters involving the aforementioned or involving the preparation of the case or
any matter therein for consideration by the District Judge. The Magistrate Judge
shall also hear and report upon dispositive motions for the consideration of the
District Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and (C). All motions or
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applications shall be filed with the Clerk and made returnable before the
Magistrate Judge. The parties are encouraged to consider the provisions of 28
U.S.C. Section 636(c) governing consent to either partial or complete disposition
of the case, including trial if necessary, by the Magistrate Judge. Consent forms
are available from the office of the Magistrate Judge or the office of the Clerk of
Court.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: November 2, 2012

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