445 F.3d 597 (2nd Cir. 2006), 05-4115, Schiano v. Quality Payroll Systems, Inc.

Docket Nº:05-4115 CV.
Citation:445 F.3d 597
Party Name:Nicole SCHIANO, Plaintiff-Appellant, v. QUALITY PAYROLL SYSTEMS, Inc. and Michael Tintweiss, Defendants-Appellees.
Case Date:April 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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445 F.3d 597 (2nd Cir. 2006)

Nicole SCHIANO, Plaintiff-Appellant,


QUALITY PAYROLL SYSTEMS, Inc. and Michael Tintweiss, Defendants-Appellees.

No. 05-4115 CV.

United States Court of Appeals, Second Circuit.

April 24, 2006

Argued: Feb. 17, 2006.

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Saul D. Zabell, Zabell & Associates, P.C., (R. Elizabeth Urena, of counsel), Bohemia, NY, for Plaintiff-Appellant.

Janet M. Connolly, Goldberg & Connolly (Robert C. Buff, of counsel), Rockville Centre, NY, for Defendants-Appellees.

Elizabeth E. Theran, Attorney, U.S. Equal Employment Opportunity Commission (James L. Lee, Deputy General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, of counsel), Washington, DC, for Amicus Curiae U.S. Equal Employment Opportunity Commission in support of Plaintiff-Appellant.

Before: KEARSE and SACK, Circuit Judges, and STANCEU, Judge. [*]

SACK, Circuit Judge.

The plaintiff, Nicole Schiano, appeals from the judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) granting summary judgment to the defendants on her claims, inter alia, that she was subjected to a hostile work environment on the basis of sex in violation of federal and state law. For purposes of the defendants' motion for summary judgment, it is undisputed that defendant Michael Tintweiss, a vice president of the defendant Quality Payroll Systems, Inc. ("QPS"): told Schiano that if she wanted a raise she was "sleeping with the wrong employee" (a reference to her romantic relationship with another co-worker) and repeated similar comments several times during the course of the next five months; at an office Christmas party in the presence of other employees, placed his hand on Schiano's skirt and upper thigh and photographed himself doing so; asked if they could go together to Schiano's hotel room after the party; and, on several occasions, approached Schiano from behind while she was working, leaned into her, and placed his hands on her back, neck, and shoulders. The district court concluded that this behavior was not severe or pervasive enough to create a hostile work environment and therefore granted summary judgment to the defendants.

"The question of whether a work environment is sufficiently hostile to violate Title VII is one of fact." Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir.2001). On a motion for summary judgment, the question for the court is whether a reasonable factfinder could conclude, considering all the circumstances, that "the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir.2000) (internal quotation marks omitted; emphasis in Whidbee). We cannot say, as a matter of law, that no reasonable jury could so conclude in this case. Accordingly,

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we vacate in part the judgment of the district court and remand for further proceedings.


"In setting forth the facts underlying this appeal from the district court's grant of summary judgment to the defendants, we construe the evidence in the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in [the plaintiff's] favor." Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir.2006) (citation omitted).

Schiano worked as a corporate financial assistant for QPS. The defendant Michael Tintweiss, as a vice president of QPS, had the power to discipline and to terminate the employment of all non-officer QPS employees, including Schiano.

In October 2001, Schiano began dating Matthew Barbis, a co-worker at QPS with whom she had been friends since before she began working for the company. The incidents that gave rise to this lawsuit began at a QPS office Christmas party in December 2001 and continued until Schiano resigned from her employment in May 2002.

The Christmas party took place at a restaurant in Alexandria, Virginia, where a QPS office was located. QPS employees, including Shiano and Tintweiss, who had traveled to Alexandria from the company's Long Island office, stayed overnight at a nearby hotel.

At the party, Tintweiss and Schiano began talking about a possible raise for Schiano. After Schiano suggested an amount, Tintweiss told her that if she wanted that much money she was "sleeping with the wrong employee." 1 Schiano contends that she immediately complained to QPS President Bert Geller about Tintweiss's comment, but that he "appeared to laugh off" her complaint. Dep. of Nicole Schiano, Feb. 10, 2004 (Schiano Dep.), at 34.

Later that evening, while Schiano sat at a table and spoke with other QPS employees, Tintweiss put his hand on Schiano's thigh, pulling her skirt up a few inches, and took a picture of his hand placed on her leg. The picture is included in the record as Plaintiff's Exhibit F in Support of Cross-Motion for Summary Judgment. Although Schiano denies it, Tintweiss asserted that while he took the picture he said something to the effect of "let's take one to get Matt (Matthew Barbis) jealous and see what he's missing." Aff. of Michael Tintweiss dated Oct. 27, 2002, at 2-3. Schiano testified that she pushed Tintweiss's hand away and told him to stop. She says that she told Julius Veit, the supervisor of QPS's tax and accounting department, that Tintweiss was making her uncomfortable.

As the Long Island employees were leaving the party, Schiano said something about the hotel rooms being nice; in response, Tintweiss asked if he could come to her hotel room with her. Schiano told him he should look at Veit's room instead.

Tintweiss's allegedly inappropriate behavior continued after the Long Island employees returned to their office. In the QPS lunchroom, in front of Barbis and other QPS employees, Tintweiss again told

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Schiano that she was "sleeping with the wrong employee." And on five or six occasions, while Schiano was seated at her desk, Tintweiss approached her from behind, placed his hands on her back or neck, and leaned into her while she worked. Twice, Tintweiss said that because Barbis was afraid of flying, Schiano should take Tintweiss on vacation with her instead. Commenting on Barbis's fear of flying, Tintweiss yet again told Schiano that she was "sleeping with the wrong employee." He also talked with Barbis about how "hot" Schiano was and what type of underwear she wore. 2

Schiano testified that from January through April 2002, she complained to Veit about Tintweiss's behavior on a weekly basis. Schiano says that she eventually asked Veit to assemble a partition around her cubicle to prevent having her work interrupted by other employees and to insulate her from Tintweiss and his behavior. She also testified that Tintweiss became visibly upset after the partition was installed, repeatedly leering at Schiano as he passed her cubicle.

In late April or very early May 2002, Barbis spoke with Veit about Tintweiss's behavior. On May 2, Veit spoke with Schiano and asked her permission to raise the issue with QPS President Geller. Veit met with Schiano again the following day. He asked her to put her complaints about Tintweiss in writing. Schiano said she would draft a letter during the following weekend. But she ultimately decided not to memorialize her complaint in writing because she "was unsure of how it was going to be used and what repercussions [it] would have." Schiano Dep. at 89. Veit then asked Schiano to speak to Geller about the situation. Schiano refused, stating that she "would not speak with him because [she] was feeling very intimidated and that [she] was caught in the middle." Id. Veit then told Schiano that from that point forward she should no longer report to him, but should report directly to Geller instead. At home that night, Schiano prepared a letter of resignation. The next day, May 7, 2002, Schiano presented Veit with her resignation letter. She told him that she "was very upset at the comments the previous day that [she] was to report to another manager and that [she] no longer felt that [she] wanted to work in that environment." Id. at 92. Veit apologized to her. Recanting his prior statement, he told her that she should continue to report to him. 3

Schiano declined to withdraw her resignation. On January 30, 2003, she brought this lawsuit alleging that QPS and Tintweiss had violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York State Human Rights Law ("NYSHRL"), by subjecting her to a hostile work environment that culminated in her constructive discharge and by retaliating against her when she complained. The suit also asserts New York state law claims against Tintweiss in his individual capacity as an aider and abettor.

In a memorandum and order dated July 12, 2005, the district court granted summary judgment to the defendants and dismissed Schiano's complaint. See Schiano v. Quality Payroll Sys., Inc., No. 03-CV-492, 2005 WL 1638167 (E.D.N.Y. July 12, 2005). The court concluded that Tintweiss's misbehavior was not severe or pervasive enough to constitute a hostile work environment under Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

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The court reasoned that, when compared with the facts outlined in relevant decisions of the Second Circuit and other federal courts of appeals, "the behavior to which Schiano was subjected (occasional touching, rude comments, and hostile stares) cannot be said to amount to more than relatively innocuous inciden[t]s of overbearing or provocative behavior. As such, they do...

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