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A district court erred in rejecting a woman’s claim that she was the victim of a hostile work environment, a federal appeals court has ruled. The U.S. Court of Appeals for the Second Circuit said plaintiff Nicole Schiano alleged enough facts to support her claim that the misbehavior of her superior at a Long Island company was sufficiently severe or pervasive to amount to a hostile environment. But the circuit also upheld Eastern District Judge Denis Hurley’s decision dismissing state and federal claims of retaliation brought by Ms. Schiano in Schiano v. Quality Payroll System, Inc. , 05-4115-cv. Judges Robert Sack and Amalya Kearse, along with Judge Timothy Stanceau of the U.S. Court of International Trade, sitting by designation, decided the appeal. Judge Sack wrote the opinion. Ms. Schiano’s troubles allegedly began when she asked a vice president, Michael Tintweiss, for a raise at a 2001 company Christmas party in Alexandria, Va. Mr. Tintweiss allegedly told her she was “sleeping with the wrong employee.” Ms. Schiano had been dating co-worker Matthew Barbis. Mr. Tintweiss later countered that he made the remark in jest after Ms. Schiano jokingly asked for a raise of a million dollars. Ms. Schiano claimed she raised Mr. Tintweiss’ comment with the company president, but that he “appeared to laugh it off.” Mr. Tintweiss allegedly put his hand on her thigh and lifted her skirt a few inches during a photograph that was taken at the party. Ms. Schiano later submitted the photo with a motion for summary judgment. Back on Long Island, she alleged that Mr. Tintweiss again told her she was “sleeping with the wrong employee” � this time in front of Mr. Barbis and other co-workers. She claimed on a number of occasions that Mr. Tintweiss approached her from behind, placed his hands on her neck or back and leaned into her while she worked. Ms. Schiano eventually asked another superior to install a partition around her desk. She said that superior, after initially asking her to put her complaints in writing and appearing supportive, changed course and told her to report directly to the company president. Ms. Schiano presented her resignation letter on May 2 and the superior apologized and recanted, telling her she should again report to him. Ms. Schiano sued in 2003, charging that the company and Mr. Tintweiss had violated Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law because she was subjected to a hostile work environment that ended with her constructive discharge from the company. She also alleged the company retaliated against her for complaining of the treatment by Mr. Tintweiss. Judge Hurley granted summary judgment for the company, finding under the case law that Mr. Tintweiss’ behavior was not severe or pervasive enough to constitute a hostile work environment. ‘Innocuous’ Behavior The chief case was the U.S. Supreme Court decision in Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993). In Harris, the Court outlined some factors that may be considered in a hostile environment claim, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Applying these factors, Judge Hurley said that “the behavior to which Schiano was subjected (occasional touching, rude comments, and hostile stares) cannot be said to amount to more than relatively innocuous incidents of overbearing or provocative behavior. “As such they do not reach the requisite level of employment-altering severity” to support a hostile work environment claim, he said. On the appeal, Judge Sack agreed with the lower court that the retaliation claims must fail under both federal and state law, because Ms. Schiano “makes no allegation and presents no evidence that she was passed over for an expected raise or that any of her material benefits were actually in jeopardy.” In fact, he noted, Ms. Schiano did receive a raise in January following the Christmas party incident. ‘Humiliating’ Conduct But Judge Sack said the lower court “appears to have resolved Schiano’s claims (on hostile work environment) by examining each factor from Harrisin isolation, comparing and contrasting its presence in Schiano’s allegations with the fact patterns from previous cases.” He said the circuit has cautioned that prior cases where a reasonable juror could find that a work environment was sufficiently objectively hostile do not “establish a baseline” that plaintiffs in other cases must reach in order to prevail. Here, Ms. Schiano did not allege that any one of Mr. Tintweiss’ actions was severe enough in and of itself to create a hostile environment, he said. “She alleges an ongoing pattern of sexually offensive and humiliating conduct,” Judge Sack said. “By extracting the question of how ‘humiliating’ an instance was from the larger context of the case, the district court failed to evaluate the relevant conduct as a whole.” So comparing Ms. Schiano’s complaints with other circuit cases in which hostile environment claims were either rejected or allowed to proceed, he said, does not solve the problem. “These determinations are to be made on a case by case basis considering all the individual facts at hand,” Judge Sack said. The case was remanded for further proceedings and a trial. Saul D. Zabell and Elizabeth Urena of Zabell & Associates in Bohemia represented Ms. Schiano. Janet M. Connolly and Robert C. Buff of Goldberg & Connolly in Rockville Center represented Quality Payroll Systems. Elizabeth E. Theran of the Equal Employment Opportunity Commission appeared as amicus curiae. � Mark Hamblett can be reached at [email protected] .

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