A lawsuit charging a former associate dean with sexual harassment has been settled for $255,000 – and the University at Buffalo will pay most of the amount.
Dr. Jude A. Fabiano and the university settled with Lesley Shiner, 64, of East Amherst, who worked as a clerk at the School of Dental Medicine’s instrument management services for 14 years. Shiner claimed Fabiano made unwelcome sexual advances toward her at a Dec. 21, 2010, off-campus party and created a hostile work environment.
Fabiano’s behavior “badly traumatized” her and she did not feel safe at work, according to her lawsuit.
A document filed in U.S. District Court disclosed the sides reached a settlement “without any admission of liability, guilt or wrongdoing on the part of defendants.”
“He thought it best to put it behind him, and I think everyone believed it best to resolve it in the fashion it was,” said attorney Michael A. Brady, who represented Fabiano, of the lawsuit.
“To the extent that Dr. Fabiano gave any offense, he certainly didn’t mean to,” Brady said.
Several who attended the office party at Neighbor’s Pub on Kenmore Avenue in the Town of Tonawanda provided statements to the university that acknowledged Fabiano’s unbecoming behavior.
“Everyone was drinking,” one clinical worker recalled. “I saw people sitting on people’s laps and touching each other. It was a weird party.
“He was touchy. You could tell he had too many drinks,” the worker said of Fabiano.
Four partygoers said they watched and heard Fabiano encourage Shiner and another clerk to kiss. Five others said they did not hear what he said but recalled seeing him put his arms around their necks and pull them together.
That was one of four unpleasant encounters with Fabiano at the party that Shiner cited in her lawsuit.
“I went home and cried,” Shiner said in a statement to the Town of Tonawanda Police Department.
Others interviewed as part of the university’s investigation, however, said Shiner did not look uncomfortable.
“She looked to me like she was having a good time,” said a supervisor in the clinical operations department. “When she left, she came up behind me and said she had a great time.”
Another supervisor said the two women were “giddy and giggling” when Fabiano put his hands on their shoulders to pull them together.
“They didn’t kiss. They didn’t want to,” the supervisor said. “They weren’t agitated. It seemed like everyone was having fun. No one was struggling to get out of where they were.”
As part of the settlement, Shiner agreed to withdraw her complaint while Fabiano and the university agreed to pay $255,000, according to court papers.
Fabiano is personally responsible for and will contribute $40,000 to the settlement.
The university will cover the remaining $215,000. Of that amount, $65,000 will be paid to Shiner as back and front pay and the remainder will be paid as non-economic compensatory damages, according to the court document.
A check for $190,000 will be sent to Lindy Korn, who is Shiner’s attorney, and Korn will deduct legals fees and costs and forward the remaining amount to Shiner. Korn could not be reached to comment.
The settlement covers all claims for damages and legal fees and costs.
“By settling the lawsuit, Dr. Fabiano doesn’t have an opportunity to present his case fully in front of jury,” Brady said. “He at all times has denied any intention of ever discriminating against the plaintiff or ever intentionally trying to harm her in any way.
“The determination to resolve the lawsuit was made largely out of financial considerations,” Brady said.
In her lawsuit, Shiner said the dental school department has long been a sexually hostile work environment, and she cited other incidents but did not name any other individual in her lawsuit.
“She had complaints about other people and events that had nothing to do with Dr. Fabiano,” Brady said.
Fabiano, 62, began working at the university in 1980 as a clinical instructor, earned a promotion in 1985 and became full time in 1999.
“I saw it as part of my role at the dental school to socialize with staff members at these department parties,” Fabiano said in state court papers when he sued the state to be reimbursed for his legal defense costs. “The actions allegedly taken by me and others at the party, including the plaintiff, may have been silly, boorish or socially inappropriate at times, but they were part of the socializing which occurred at the party.”
About two months after the party, the university sent Fabiano a letter, advising him he was being suspended without pay because of the incidents at the party. The dean of the dental school also informed him his current term appointment would end the following March, according to the lawsuit.
In a second settlement, concerning a dispute between Fabiano and the State Attorney General’s Office over legal defense costs, the state has agreed to cover Fabiano’s legal fees for defending the Shiner suit.
The State Attorney General’s Office had resisted paying Fabiano’s legal bills in the federal case. What happened at the party occurred outside the scope of his state university post, the state office initially contended.
After State Supreme Court Justice John F. O’Donnell granted Fabiano’s petition to make the state cover his legal defense costs in the federal suit, the State Attorney General’s Office filed notice it would appeal O’Donnell’s order at the state Appellate Division.
But in State Supreme Court papers filed on Aug. 23, the state office said it would withdraw its appeal.
In the state settlement, Fabiano waived his request to be reimbursed for his legal fees related to his suit against the State Attorney General’s Office, as well as any costs related to any criminal action pending against him in Town of Tonawanda Court connected to Shiner’s complaint.
Fabiano was charged in Town of Tonawanda Court with forcible touching and unlawful imprisonment, both misdemeanors, and harassment, a violation.
Town Justice Daniel T. Cavarello granted defense attorney Kevin Spitler’s motion to dismiss the unlawful imprisonment charge against Fabiano. Cavarello also acquitted Fabiano of forcible touching. The judge convicted him of harassment and sentenced him to a conditional discharge.
Fabiano appealed the conviction.
Attorney Lawrence J. Vilardo, who handled his appeal, argued that the town judge erred in admitting evidence about the “sexually charged atmosphere” at the dental school while excluding evidence of the Amherst woman’s bias and motive to lie.
Erie County Judge Michael L. D’Amico ordered a new trial for the harassment charge in his April 4 decision.
At the town trial, Spitler was not allowed to try to elicit statements from two witnesses that Shiner was using the sexual harassment claim “as her ticket out of the job” she did not like.
D’Amico ruled “the testimony should not have been disallowed, since it essentially denied the defendant the right to present his case.”
The town court has scheduled further proceedings on the harassment case on Sept. 30.