Ferro v. R.I. Dep't of Transp.

DANIEL FERRO, Plaintiff, v. STATE OF RHODE ISLAND DEPARTMENTOF TRANSPORTATION by and throughits Director, Michael Lewisand JOSEPH GIGLIETTI and JOAN PARYANI, Defendants.

C.A. No. 11-348 S

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Date: February 19, 2014

OPINION AND ORDER

WILLIAM E. SMITH, Chief Judge.

The resolution of this motion concerns the proper application of sex discrimination law where the harasser and alleged victim are members of the same sex. Before the Court is Defendants' motion for summary judgment (ECF No. 32). For the reasons set forth below, the motion is GRANTED.

I. Background¹

Plaintiff Daniel Ferro's ("Plaintiff" or "Ferro") 10 months of employment at the Rhode Island Department of Transportation("DOT") were eventful. Ferro began work as a DOT inspector on July 19, 2009, learning on his second day on the job that he was to report to the East Providence, Rhode Island field office the following day to begin a probationary period of employment. (DefendantS' Statement of Undisputed Facts ("Defs.' SUF") ¶¶ 2-4, ECF No. 32-2.) Once at the field office, Ferro met Defendants Joseph Giglietti ("Giglietti") and Joan Paryani ("Paryani," and together with Giglietti and DOT, "Defendants"). (Id. at ¶ 5.) Giglietti was tasked with training Ferro, while Paryani worked as his supervisor. From the outset, Ferro and Giglietti clashed. Throughout Ferro's employment Giglietti made comments to Ferro that were sexual in nature, boorish, and inappropriate for the workplace.² (Plaintiff's Statement of Undisputed Facts ("Pl.'s SUF") ¶ 7, ECF No. 45.) According to Plaintiff, some of these comments intimated a desire on Giglietti's behalf to engage in sexual conduct with Ferro, others inquired about Ferro's sex life with his wife, and still others were simply crass in nature. (Id.) In addition, Giglietti made comments to co-workers suggesting that Ferro had undergone a sex change operation and other comments implicatingthat Ferro was a homosexual who was engaged in a sexual relationship with the Governor of Rhode Island. (Id.; Deposition of Daniel Ferro ("Ferro Dep.") 31, ECF No. 48-2.) Giglietti also routinely directed lewd gestures at Ferro, such as sticking up his middle finger or making a masturbatory motion. (Ferro Dep. 33; 35.) Ferro did not take Giglietti seriously, and instead thought Giglietti was making churlish jokes. (Ferro Dep. at 42; 45; 47.)

Ferro describes two sexual advances by Giglietti, but again states that he did not take these advances seriously.³ (Ferro Dep. at 42; 45.) In one, Giglietti and Ferro parked in a car during a break in the workday and Giglietti put his arm around Ferro, asked if Ferro wanted to kiss him, and stated he wanted to put his tongue in Ferro's mouth. (Ferro Dep. at 40-42.) In the second incident, Ferro and Giglietti were again in a state-owned truck, this time parked outside of Giglietti's home, when Ferro describes a "look" given to him by Giglietti, which Ferro understood to be an invitation to go into Giglietti's home and engage in sexual conduct. (Ferro Dep. at 42-45.)

While Giglietti's behavior, if it occurred, was clearly inappropriate, Ferro was no docile victim. In a probationary report assessing how Ferro was progressing with his work at theDOT, Ferro's supervisor suggested that Ferro "need[ed] to learn how to deal with fellow employees and the general public in a more professional manner." (Defs.' SUF at ¶¶ 7-8.) Ferro admits he routinely stuck his middle finger up at Giglietti. (Ferro Dep. at 33.) In addition, for Christmas, Ferro purchased a suggestive nightlight for Giglietti in the shape of a woman's leg.⁴ (Ferro Dep. at 80.)

Several particular incidents involving Giglietti and Ferro shed light on the nature of the interaction between them. These events have no sexual undertones, but reflect a growing rivalry between the two men. In September 2009, Ferro and Giglietti got into an argument about Ferro cutting his nails in a DOT field office. (Ferro Dep. at 75-76.) The disagreement escalated until Giglietti left the premises to avoid further confrontation. (Aff. of Joseph Giglietti ("Giglietti Aff.") ¶ 9, ECF No. 34.) Following this incident, a new-found harmony appears to have set in among the particular crew to which Ferro and Giglietti were assigned. Indeed, Ferro received two positive reviews and passed his probationary period. Ferro took Giglietti andanother man out to eat to thank them for their assistance in getting him through his probationary period. (Id. at ¶ 19.)

The harmony did not last long. On March 19, 2010, Ferro and a sub-contractor moved a billboard while doing work on a DOT project in Warren, Rhode Island. (Ferro Dep. 77-78.) At the end of the day, Giglietti asked Ferro to help him move the sign back to its original location. (Id.) Ferro first stated that he had a back issue, and then stated that he did not believe returning the sign to its original location was part of his job. (Id.) The two men again argued. (Giglietti Aff. ¶ 25.) Ferro was so loud during the argument that a DOT record keeper in a nearby office heard him and went outside to see what was happening. (Id.) A few days later, on March 24, 2010, Giglietti noticed that Ferro seemed hostile toward him. After Giglietti stated he was going to put gas in his truck, Ferro responded that Giglietti should pour gasoline on himself and light a match, but to be sure he did not damage the truck. (Ferro Dep. at 79.) Later that day, Ferro confronted Giglietti at his desk saying, among other things, that he was "tired of kissing [Giglietti's] ass because he was on probation." (Ferro Dep. 79.) That same day, Ferro brought a sign in the shape of an extended middle finger into the office and banged it on the table in the direction of Giglietti. (Ferro Dep. 34-35.)

A day later, Ferro sent an email that, according to Ferro, is central to the DOT's decision to terminate his employment. In that email to DOT supervisor John Pilkington, Ferro accuses Giglietti of having "issues with sex and always making insulting sexual remarks." (Defs.' SUF ¶ 23.) He describes Paryani⁵ as a "very arrogant person [who] constantly degrades me." (Id.) He then questioned whether Giglietti and Paryani were actually doing work on the Warren project or instead were inappropriately pursuing hobbies or wasting away time. (Id.) In response to this email, Pilkington launched an administrative investigation by contacting a human resources professional and scheduling a meeting with Ferro to discuss his accusations. (Id. at ¶¶ 27-28). On April 9, 2010, that meeting occurred, where Ferro stated that Paryani "berated and belittled" him and said that Giglietti "continually makes inappropriate comments of a graphic nature which [Ferro] finds offensive." (Id.) Ferro stated that these sexual jokes reflected poorly on the crew, and stated that some of the insults had been about his sexual orientation. (Id.) At no time in his email, or during this meeting, did Ferro allege that Giglietti had made sexual advances toward him. (Id. at ¶ 25.)

In due course, DOT Human Resources informed Union Chief Steward Mazen Alsabe ("Alsabe") of the allegations. (Id. at ¶ 29.) Alsabe then spoke to Giglietti and Paryani. (Id.) Alsabe reported back to Human Resources that Ferro was an antagonist on the crew who participated in sexual conversations and joking. (Id.) In addition, Ferro was noted for having a violent temper and Giglietti and Paryani stated they were afraid of him. (Id. at ¶¶ 29-30.)

Because of these statements, DOT decided to transfer Ferro to work on a different project - a decision the union agreed with since Ferro did not receive a decrease in pay, benefits or seniority at the new job site. (Id. at ¶¶ 32-35.) DOT told Ferro on April 26, 2010 that he was being reassigned because they needed additional manpower on a project in Warwick, Rhode Island. (Id. at ¶ 35.) Ferro was to report to his new post the next day. Instead, the next day Ferro arrived at the Warren project, where he slashed the tires of Giglietti's state-issued truck and made scratches in the paint along the passenger side. (Id. at ¶¶ 37-44.) Thereafter, Paryani informed DOT that Ferro was causing trouble on the job site. (Id. at ¶ 40.) After Ferro left the Warren work site, he twice called Paryani, once calling her a derogatory name and a second time making a comment about Paryani and a male co-worker. Ferro pleaded nolocontendere to charges relating to scratching and slashing the tires of Giglietti's truck.⁶ (Id. at ¶ 43.)

DOT informed Ferro the next day that he had been placed on administrative leave with pay pending an investigation into what happened at the Warren job site the day before. (Id. at ¶ 45.) Following a disciplinary hearing, on May 27, 2010, Ferro was terminated by the DOT. (Id. at ¶ 48.) Thereafter, he filed a grievance which was ultimately denied in December 2010. (Id. at ¶ 53.) Neither Ferro nor the union appealed the denial of the grievance. During this administrative process, however, another incident occurred. On June 17, 2010, Ferro drove past Giglietti while Giglietti was working on the Warren project and threw a cup of hot coffee out of his window and onto Giglietti. (Ferro Dep. at 74.)

Ferro believes he was targeted because he is a heterosexual.⁷ (Ferro Dep. at 38.) Following his terminationfrom DOT, Plaintiff brought the instant action alleging state and federal law violations. Ferro alleges that he was subject to hostile work environment sexual harassment due to Giglietti's behavior toward him and that he was inappropriately transferred within the DOT as retaliation for reporting this harassment. In addition, he seeks individual liability under Rhode Island law against the two individual defendants for aiding and abetting these violations.

Defendants argue that Plaintiff strikes out on all fronts. Specifically, with respect to the hostile work environment claims, Defendants move for summary judgment arguing, inter alia, that Plaint...