Judge Richard Arcara
Shiner is a clerk at the University of Buffalo Dental School. Fabiano was the school’s associate dean for clinical affairs. Colombo its director of clinical operations. Both had supervisory authority over Shiner. Shiner sued SUNY and Fabiano for sexual harassment under Title VII of the Civil Rights Act after Fabiano made inappropriate, lewd sexual comments and advances, and sexually assaulted her, at a 2010 departmental Christmas party. Colombo cheered Fabiano’s behavior. Finding Shiner stated a claim for hostile work environment harassment, the court denied SUNY’s assertion of a Faragher/Ellerth defense. Even if SUNY were right that the Faragher/Ellerth defense did not apply because Fabiano was not SUNY’s proxy or alter ego the court found SUNY did not prove, by preponderant evidence, that it took reasonable steps to prevent harassment and remedy the conduct after it was brought to SUNY’s attention. Despite Shiner’s complaints of “verbal and sexual abuse” at prior parties, SUNY allegedly did not take action against Fabiano until March. Also, absent discovery, it was unknown if Colombo could be found to have contributed to a hostile work environment, and what action, if any, SUNY took to investigate or correct his behavior.