Ferro v. State of Rhode Island Dept of Transportation et al

Filing 54

ORDER granting 32 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 2/19/2014. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
STATE OF RHODE ISLAND DEPARTMENT
)
OF TRANSPORTATION by and through
)
its Director, Michael Lewis and
)
JOSEPH GIGLIETTI and JOAN PARYANI, )
)
Defendants.
)
___________________________________)
DANIEL FERRO,

C.A. No. 11-348 S

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.

Background 1
Plaintiff Daniel Ferro’s (“Plaintiff” or “Ferro”) 10 months

of employment at the Rhode Island Department of Transportation

1

The Court reviews the record in the light most favorable
to the non-moving party, making all reasonable inferences in his
favor.
Mellen v. Trs. of Boston Univ., 504 F.3d 21, 24 (1st
Cir. 2007). The facts are taken from portions of both parties’
respective statements of undisputed facts. These facts are not
in dispute unless expressly noted.

(“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”) ¶¶ 24,

ECF

No.

Defendants

32-2.)
Joseph

Once

at

Giglietti

the

field

office,

(“Giglietti”)

and

Ferro

Joan

met

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

that

to

Ferro

inappropriate

for

the

were

sexual

workplace. 2

in

nature,

(Plaintiff’s

boorish,
Statement

Undisputed Facts (“Pl.’s SUF”) ¶ 7, ECF No. 45.)
Plaintiff,
Giglietti’s

some

of

behalf

these
to

comments

engage

in

intimated

sexual

conduct

and
of

According to
a

desire
with

on

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 implicating

2

The particular language used by Giglietti is in dispute,
though Defendants accept Ferro’s version of events for the sake
of this motion.
The Court does the same.
Specifically,
Plaintiff claims that Giglietti persistently called him names
such as “peckerhead” and “cocksucker” throughout his employment.
(Deposition of Daniel Ferro (“Ferro Dep.”) 31, ECF No. 48-2).
2

that

Ferro

was

relationship

a

homosexual

with

the

who

Governor

was
of

engaged

Rhode

in

a

Island.

sexual
(Id.;

Deposition of Daniel Ferro (“Ferro Dep.”) 31, ECF No. 48-2.)
Giglietti also routinely directed lewd gestures at Ferro, such
as

sticking

motion.

his

middle

finger

(Ferro Dep. 33; 35.)

seriously,
jokes.

up

and

instead

or

making

a

masturbatory

Ferro did not take Giglietti

thought

Giglietti

was

making

churlish

(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
Dep. at 42; 45.)

(Ferro

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 stateowned 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.
While

Giglietti’s

(Ferro Dep. at 42-45.)

behavior,

if

it

occurred,

inappropriate, Ferro was no docile victim.

was

clearly

In a probationary

report assessing how Ferro was progressing with his work at the
3

Defendants dispute that these alleged advances ever
happened.
The Court credits the Plaintiff’s version of events
for the purpose of this motion.
3

DOT, 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.)
Giglietti

left

the

premises

The disagreement escalated until
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,

passed

probationary

his

Ferro

received
period.

4

two
Ferro

positive
took

reviews

and

Giglietti

and

Ferro notes that co-workers harassing one another is
“pretty typical treatment.”
(Ferro Dep. at 93.)
Explaining
what he meant, Ferro stated “[l]ike I've worked in shipyards,
construction companies, machine shops. You know, there tends to
be very vulgar language, treatment, comments. You know, I mean,
shop talk, for instance, you know. I never pursued it -- a legal
action because it was never to the extreme that Mr. Giglietti
was.” (Id. at 93.)
4

another man out to eat to thank them for their assistance in
getting him through his probationary period.
The harmony did not last long.

(Id. at ¶ 19.)

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

happening.

heard

(Id.)

him
A

and

few

went

days

outside

later,

on

to

see

March

what
24,

Giglietti noticed that Ferro seemed hostile toward him.

was

2010,
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.”
Dep. 79.)

(Ferro

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.

5

(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.”

He describes Paryani 5 as a

(Defs.’ SUF ¶ 23.)

“very arrogant person [who] constantly degrades me.”
then

questioned

whether

Giglietti

and

Paryani

(Id.)

were

He

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.
28).

On

April

9,

2010,

that

meeting

(Id. at ¶¶ 27-

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

(Id.)

the

insults

had

been

about

his

sexual

orientation.

At no time in his email, or during this meeting, did

Ferro allege that Giglietti had made sexual advances toward him.
(Id. at ¶ 25.)

5

Ferro alleges only one instance of inappropriate contact
with Paryani and no verbal incidents. (Ferro Dep. at 55-56.)
6

In due course, DOT Human Resources informed Union Chief
Steward Mazen Alsabe (“Alsabe”) of the allegations.
29.)

Alsabe then spoke to Giglietti and Paryani.

(Id. at ¶

(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.)

next day.

Ferro was to report to his new post the

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.

7

Ferro

pleaded

nolo

contendere 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.
¶ 53.)

(Id. at

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

heterosexual. 7

he

was

targeted

because

he

is

a

(Ferro Dep. at 38.) Following his termination

6

Ferro’s Complaint puts forth a claim for malicious
prosecution against Giglietti and the DOT. (Compl. ¶¶ 119-123).
Ferro now acknowledges that his nolo contendere plea forecloses
any such claim, and thus judgment in the Defendants’ favor is
proper with respect to Count VIII of the Complaint.
(Pl.’s
Objection to Defs.’ Mot. for Summ. J. 11, ECF 43-1.)
7

Defendants provide evidence that Ferro has subsequently
pursued a variety of legal actions against various employers.
Defendants seem to suggest this lawsuit is part of a pattern of
behavior by Ferro, whereby after being terminated from a job, he
hurls accusations at his former employer.
In addition,
Defendants provide evidence of prior interpersonal disputes
Ferro had with other co-workers at various jobs.
Evidence of
8

from 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,
claims,

with

respect

Defendants

move

to

for

the

hostile

summary

work

judgment

environment

arguing,

inter

alia, that Plaintiff has failed to establish that: (1) he is a
member

of

a

discrimination
sexual

protected
based

harassment

workplace;

and

on

sex;

since

(4)

the

severe and pervasive.

class;

he

(3)

(2)
he

partook

alleged

he

was
in

was

subject

subject
crass

harassment

to

humor

was

to

unwanted
at

the

sufficiently

With respect to the retaliation claim,

Defendants argue Plaintiff did not suffer an adverse employment
consequence, which forecloses his claim.
argue

Plaintiff

failed

to

properly

Finally, Defendants

raise

his

claim

for

individual liability under state law.

this type was not considered in deciding the instant motion.
Cf. Redd v. New York State Div. of Parole, 923 F. Supp. 2d 393,
399-400 (E.D.N.Y. 2013).
9

II.

Standard of Review
Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

When

analyzing

judgment

view

a

motion

for

summary

the

court

must

evidence in the light most favorable to the non-moving party and
must draw all reasonable inferences in the non-moving party’s
favor.

DeLia v. Verizon Commc'ns Inc., 656 F.3d 1, 3 (1st Cir.

2011).

“A genuine issue of fact exists where the evidence is

such

that

a

reasonable

nonmoving party.”
24

(1st

Cir.

jury

could

return

a

verdict

for

the

Taylor v. Am. Chemistry Council, 576 F.3d 16,

2009)

(internal

citation

and

quotation

marks

omitted).
Summary judgment has a dual nature.

The moving party bears

the initial burden of demonstrating a lack of a material issue
of fact, which shifts the burden to the non-moving party, who
then must show the trier of fact could rule in his favor with
respect to each issue.

Borges ex rel. S.M.B.W. v. Serrano-

Isern, 605 F.3d 1, 5 (1st Cir. 2010).
summary

judgment

conclusory

motion

allegations,

cannot

be

improbable

invective, or rank speculation.”
49,

54

(1st

Cir.

2010).

“A

“A properly supported

defeated

by

inferences,

relying

upon

acrimonious

Ahern v. Shinseki, 629 F.3d

party

who

aspires

to

oppose

a

summary judgment motion must spell out his arguments squarely
10

and distinctly, or else forever hold his peace.”

Higgins v. New

Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999).
“Even in cases where elusive concepts such as motive or intent
are

at

issue,

nonmoving

summary

party

rests

judgment
merely

may

be

upon

appropriate

conclusory

if

the

allegations,

improbable inferences, and unsupported speculation.”

Meuser v.

Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990)).

While questions related to sexual harassment may

be fact specific, summary judgment “is an appropriate vehicle
for

policing

Celulares

the

baseline”

Telefonica,

of

Inc.,

447

those
F.3d

claims.

79,

83

Pomales

(1st

Cir.

v.

2006)

(internal citation and quotation marks omitted).
III. Discussion
Title

VII

prohibits

an

employer

from

discrimination

“against any individual with respect to his compensation, terms,
conditions,

or

privileges

of

employment,

because

of

such

individual’s race, color, religion, sex, or national origin.” 42
U.S.C

§

2000e-2(a)(1).

Title

VII

does

not

discrimination based on sexual orientation.
at

259

(describing

discrimination

on

protect

against

Higgins, 194 F.3d

the

basis

of

sexual

orientation as a “noxious practice, deserving of censure and
opprobrium”

but

noting

that

“Title

VII

does

not

harassment simply because of sexual orientation.”).
11

proscribe
During his

deposition, Ferro disclaimed a theory of discrimination based on
his

sex,

instead

stating

that

he

was

discriminated

because of his status as a heterosexual.

against

(Ferro Dep. at 38.)

Taking Ferro’s statements at face value, they are fatal to his
Title VII action, since that statute protects heterosexuals no
more than it does homosexuals. 8

Moreover, even if the Court read

Ferro’s Complaint and deposition testimony as alleging sexual
harassment on the basis of “sex,” due to Ferro’s allegations
that

the

harassment

he

faced

resulted

from

the

individual

Defendants’ sexual desire for him, the claim would still fail.
Ferro has also brought state law claims.
Fair

Employment

unlawful
employment

“[f]or

Practices
any

agency,

Act

person,

labor

(“FEPA”)
whether

organization,

The Rhode Island

provides

that

or

not

an

or

employee,

it

is

employer,
to

aid,

abet, incite, compel, or coerce the doing of any act declared by
this section to be an unlawful employment practice.”
Laws § 28-5-7(6).

R.I. Gen.

Among the employment practices prohibited is

discriminating against an employee due to his “race or color,
religion,

sex,

sexual

orientation,

gender

identity

or

expression, disability, age, or country of ancestral origin.”
R.I. Gen. Laws § 28-5-7(1).

In addition, the Rhode Island Civil

8

Ferro’s theory would not be fatal to the state law claims.
Rhode Island state law provides protection for discrimination
based on sexual orientation.
See R.I. Gen. Laws §§ 28-5-7 and
28-5-6(14).
12

Rights Act (“RICRA”) prohibits discrimination on the basis of
“race,

color,

religion,

ancestral origin.”

sex,

disability,

age,

or

country

of

R.I. Gen. Laws § 42-112-1.

As is routine practice, the Court will analyze the federal
and state claims together. 9

See Rathbun v. Autozone, Inc., 253

F. Supp. 2d 226, 234, 236 (D.R.I. 2003), aff'd, 361 F.3d 62, 71
(1st

Cir.

2004)

(noting

that

the

Rhode

Island

Supreme

Court

routinely analyzes FEPA claims under Title VII and that FEPA and
RICRA claims rise and fall together).

Plaintiff seeks to impose

liability based on two main allegations: sexual harassment due
to a hostile work environment and retaliation for reporting that
harassment.
A.

Hostile Work Environment

To succeed on a claim for sexual harassment based on a
hostile work environment, a Plaintiff must demonstrate “(1) that
[he] is a member of a protected class; (2) that [he] was the
subject of unwelcome sexual harassment; (3) that the harassment
was based upon sex; (4) that the harassment was sufficiently
severe or pervasive so as to alter the conditions of plaintiff’s
employment and create an abusive work environment; (5) that the
sexually

objectionable

conduct

was

both

objectively

and

subjectively offensive, such that a reasonable person would find
9

Plaintiff and Defendants agree with this approach as they
briefed these issues together.
13

it hostile or abusive and the plaintiff perceived it to be so;
and

(6)

that

established.”

a

basis

for

employer

liability

has

been

See Barboza v. Town of Tiverton, C.A. No. 07-339-

ML, 2010 WL 2231995, at *5 (D.R.I. June 2, 2010).
Courts

often

remind

litigants

that

general civility code for the workplace. 10
Boca Raton, 524 U.S. 775, 788 (1998).

Title

VII

is

not

a

Faragher v. City of

Taking the facts in the

light most favorable to him, Ferro has succeeded in showing the
lack of decorum at the DOT during his brief tenure; he has
abjectly

failed,

however,

to

show

that

he

was

subject

to

unwelcome sexual harassment that was severe and pervasive – a
shortcoming that is fatal to his claims. 11
Ferro has also failed to raise a triable claim that he was
discriminated against based on sex, 12 or that the actions he

10

To a lesser extent, Ferro’s claims involve sexual
harassment accusations against Paryani. Having not responded to
Defendants’ opposition in this regard, those claims have been
abandoned – and for good reason.
Ferro alleges that Paryani
discriminated against him based on his heterosexual status
because she was homosexual and had a son who was homosexual as
well.
As previously noted, this is not actionable under Title
VII. Higgins, 194 F.3d at 259.
11

Contrary to the DOT’s position, Ferro’s status as a man
does not preclude him from recovery under Title VII. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998); see
also, Perez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19,
28 (1st Cir. 2011).
12

Ferro claims that Giglietti’s sexual desire for him
instigated the harassment alleged in his Complaint.
The
evidence suggests, however, that the two men had a rivalry, and
14

claims to have been offended by were unwelcome. 13

The Court need

not dwell on either of these issues, however, because it is
clear

that

Ferro

was

not

subject

to

severe

or

pervasive

harassment, and thus his claim fails.
To

be

actionable,

sexual

harassment

must

be

severe

or

pervasive such that a reasonable person would find it hostile or
abusive.

Harris,

510

U.S.

at

21.

Because

“[t]here

is

no

mathematically precise test to determine whether [a plaintiff]
presented sufficient evidence” about the severe and pervasive
hostile work environment they were subjected to, a court must
examine “all the attendant circumstances.”

Pomales, 447 F.3d at

that Giglietti sought to embarrass Ferro. Ferro readily admits
he thought Giglietti was joking and did not take him seriously
regarding any of the alleged sexual propositions.
(See Ferro
Dep. at 42; 45; 47.) “Most unfortunately” crass expressions of
sexual desire “are commonplace in certain circles, and more
often than not, when these expressions are used (particularly
when uttered by men speaking to other men), their use has no
connection whatsoever with the sexual acts to which they make
reference.” Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir.
1997); see also, Kreamer v. Henry’s Marine, No. Civ. A. 03-3139,
2004 WL 2297459, at *6 (E.D. La. Oct. 7, 2004) (finding that
defendant’s
repeated
grabbing
of
plaintiff’s
crotch
was
motivated by desire to humiliate plaintiff rather than sexual
desire).
13

Sexual harassment must be unwelcome to be actionable.
“[W]illing and frequent involvement” in the type of banter
complained about suggests that the conduct at issue is not
unwelcome or hostile. Weinsheimer v. Rockwell Int'l Corp., 754
F. Supp. 1559, 1564 (M.D. Fla. 1990) aff'd, 949 F.2d 1162 (11th
Cir. 1991).
It is undisputed that a culture of inappropriate
behavior prevailed at the DOT.
Ferro, while clearly often the
target of animosity from his co-worker, nevertheless partook in
this atmosphere.
15

83

(alteration

circumstances

in
to

original)
consider

(citation

are:

the

omitted).
frequency

The
of

the

discriminatory conduct, whether it was physically threatening or
humiliating,

or

a

mere

offensive

unreasonably

interfered

Id. at 83.

“Common sense, and an appropriate sensitivity to

with

the

utterance,
employee’s

and

whether

work

it

performance.

social context, will enable courts and juries to distinguish
between simple teasing and roughhousing among members of the
same

sex,

and

conduct

which

a

reasonable

person

in

the

plaintiff’s position would find severely hostile or abusive.”
Oncale

v.

(1998).
of

the

Sundowner

Offshore

Servs.,

Inc.,

523

U.S.

75,

82

Therefore, this Court must examine the “social impact
complained-of

behavior,

applying

an

appropriate

sensitivity to the social context of the workplace relations”
between the two men, while recognizing that all inferences must
be drawn in favor of the non-moving party.

Mann v. Lima, 290 F.

Supp. 2d 190, 196 (D.R.I. 2003).
Looking

realistically

at

the

social

context

of

an

organization such as the DOT, one expects a certain level of
salty language and inter-personal rivalry.
this

himself,

organizations
another.

explaining
employees

that
often

in

his

direct

Ferro acknowledges

experiences
vulgar

in

comments

similar
at

one

Therefore, the Court is mindful of this less-sensitive

social context.
16

Here, there is no evidence of the harassment at issue being
physically

threatening

or

humiliating.

with mere inappropriate utterances.

Instead,

Ferro

dealt

Ferro never alleges that he

felt intimidated by these exchanges, and the undisputed record
shows that Ferro’s co-workers were in fact physically afraid of
him.

Indeed,

it

was

Giglietti

who,

confrontation with Ferro, backed down.

when

engaged

in

a

Later, it was Ferro who

hurled a cup of hot coffee at Giglietti from a moving car.

In

this case, common sense counsels that the harassment Ferro faced
fails to meet the legal requirements.
For the foregoing reasons, summary judgment on counts I
through III is appropriate.
B.

Retaliation

Ferro’s retaliation claim may be quickly dispatched.

To

successfully bring a claim for retaliation, a plaintiff must
demonstrate, (1) that he engaged in protected conduct; (2) that
he

suffered

adverse

an

adverse

employment

employment

action

was

action;

connected

and
to

(3)
the

that

the

protected

activity. Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st
Cir. 2009).
Plaintiff’s retaliation claim revolves around his transfer
from a DOT project in Warren, Rhode Island to a DOT project in

17

Warwick,

Rhode Island. 14

This

transfer

did

not result

in

a

change in pay or seniority, but did add time to Plaintiff’s
commute.

According to Plaintiff’s theory, part of the reason he

took the job at the DOT was to work closer to home.
the record belies this claim.

Factually,

Ferro admits when he accepted

employment at DOT, he did not know in what town or location he
would

be

transfer

working.
did

not

Legally,

this

constitute

an

claim

adverse

fails

because

employment

the

action.

Ayala-Sepulveda v. Municipality of San German, 671 F.3d 24, 32
(1st Cir. 2012) (holding transfer to different department was
not adverse employment action where employee’s pay, rank and
duties remained the same).
For the foregoing reason, summary judgment on counts IV
through VI is appropriate.
C.

Individual Liability Under FEPA

Ferro’s

Complaint

asserts

individual

allegations

Giglietti and Paryani under R.I. Gen. Laws § 28-5-1.

against

Plaintiff

appears to have meant to bring a cause of action under R.I. Gen.
Laws § 28-5-7(6).

The provision of FEPA at issue provides that

it is unlawful “[f]or any person, whether or not an employer,

14

Ferro’s retaliation claim would fare no better if it were
premised on his termination from the DOT.
That termination
occurred after Ferro was arrested and pled nolo contedere to
charges related to vandalizing a DOT truck.
Such a firing
constitutes a legitimate, non-discriminatory reason for Ferro’s
termination. See Barboza, 2010 WL 2231995, at *7.
18

employment

agency,

labor

organization,

or

employee,

to

aid,

abet, incite, compel, or coerce the doing of any act declared by
this section to be an unlawful employment practice.”
Laws §

28-5-7(6).

This

Court

recently

certified

R.I. Gen.
a

question

about whether this statute permits individual liability.

See

Mancini v. City of Providence, Civil Action No. 13-92 S, 2013 WL
5423717 (D.R.I. Sept. 26, 2013).

Were the Rhode Island Supreme

Court to find individual liability does exist under the statute,
Ferro would still fail to state a claim.

Because, as discussed

in Section III.A and III.B, no violation of FEPA occurred, the
individual defendants cannot be said to have aided, abetted,
incited, or compelled a violation of FEPA.

This determination

does not require waiting for the Rhode Island Supreme Court’s
determination regarding individual liability.
IV.

Conclusion

For

the

reasons

stated

above,

summary judgment is GRANTED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: February 19, 2014

19

Defendants’

motion

for