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Ann Farren, As Administratrix of the Estate of Kenneth Farren v. Shaw Environmental

February 10, 2012

ANN FARREN, AS ADMINISTRATRIX OF THE ESTATE OF KENNETH FARREN, PLAINTIFF,
v.
SHAW ENVIRONMENTAL, INC., DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge

DECISION AND ORDER

I. INTRODUCTION

In this action, Plaintiff Ann Farren, as the Administratrix of the estate of her late husband Kenneth Farren, seeks damages for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq., by Kenneth Farren's former employer, Defendant Shaw Environmental, Inc. Plaintiff alleges that Farren was impermissibly discriminated against on the basis of gender, and that Defendant improperly retaliated against Farren for reporting sexual harassment by a co-worker. Pending before this Court is Defendant's Motion for Summary Judgment. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendant's motion should be granted.

II. BACKGROUND

A. Factual Background

In 2003-2004, Farren was a member of Laborers' International of North America Local 210, and employed by Defendant as a laborer's foreman on a construction site. (Affidavit of Bruce Saldana, Docket No. 75-3, ¶¶ 2-5, 8). As part of his duties, Farren would work with operators, members of International Union of Operating Engineers, Local 17. (Declaration of Richard Prohaska, Docket No. 73-5, ¶¶ 1, 3, 5; Saldana Aff. ¶¶ 3, 5). Bruce Saldana, a union labor steward for the project, "witnessed and was privy to many arguments and confrontations between Mr. Farren and a union operating engineer named Albert Puma" (Saldana Aff. ¶ 4, 6). Those arguments: began in 2003 over a dispute about jurisdiction between the operators and the laborers on the site. From that point on the confrontations between Al Puma and Ken Farren seemed to be almost constant and while they often included jurisdictional disputes, they seemed to me to be more about Al Puma wanting to harass Ken Farren and destroy Ken's authority and reputation on the job site.

(Saldana Aff. ¶ 8). Saldana explained that "[a]s laborer foreman, Ken Farren had an obligation to stand up for his union members regarding jurisdictional disputes and Al Puma was angry to have his authority challenged by any man on the job." (Saldana Aff. ¶ 9). The "verbal and psychological abuse" directed at Farren, according to Saldana, "went way beyond the bounds of what any worker in any workplace should have to tolerate." (Saldana Aff. ¶ 11). Saldana "on more than one occasion" heard Puma direct statements at Farren "that were hostile, threatening and sexual in nature" and "were almost always about Ken Farren not being a real man, and that he, Al Puma, was the man and that he'd prove it to Ken by 'f***ing [sic] him.' " (Saldana Aff. ¶¶ 12-13). Saldana averred that other workers informed him that Puma would say things to them "like 'How could you listen to a guy like that. He's not a man. A man don't act like that.'" (Id. ¶ 16).

Saldana asserted that, sometime in late 2003 or early 2004, he informed Mark Page, the field construction manager for Defendant, "that we needed some clarification on jurisdictional rules and that he had an operator, Al Puma, starting serious trouble with my labor foreman, Ken Farren." (Saldana Aff. ¶ 21). When nothing changed between Puma and Farren, Saldana requested that the matter be referred to Richard Prohaska, Defendant's office construction manager. (Id. ¶ 23). Saldana met with Prohaska, and told him about the arguments and that "Puma was sexually harassing Ken Farren." (Id ¶¶ 24-25). According to Saldana's version of events, Prohaska "said something to the effect of 'What? Get the hell out of here. You can't be serious," and that the situation was one for Farren, Puma and Saldana to work out among themselves. (Id. ¶ 26).

On September 13, 2004, Puma verbally harassed and threatened another laborer, James Thigpen. (Saldana Aff. ¶¶ 31-33; Statement of Kenneth Farren,*fn1 Docket No. 73-8, at 14). Farren interceded, and after "very heated words" were exchanged, Puma walked off the job site. (Saldana Aff. ¶ 33; Farren Statement at 14). The next day, Puma approached Farren in the presence of Saldana and asked why Farren reported him to management. (Saldana Aff. ¶ 34; Farren Statement at 14). Puma became verbally abusive, stating, "I'm going to fuck you," "I won't rest until I fuck you," and "I'm going to fuck you, and tell everyone I fucked you." (Farren Statement at 14; Saldana Aff. ¶ 34). This altercation was also reported to Prohaska that same day, September 14, 2004. (Saldana Aff. ¶ 35; Farren Statement at 15; Prohaska Decl. ¶¶ 6-8, 10-11). Prohaska assured Farren and Saldana that he would investigate the matter and "discipline or address Puma."

(Saldana Aff. ¶ 37; Farren Statement at 15; Prohaska Decl. ¶¶ 6-8).

Prohaska stated that he interviewed Puma as a result of the complaint. (Prohaska Decl. ¶¶ 13-15; Affidavit of Al Puma, Docket No. 75-8, ¶¶ 2-6 (initially submitted in connection with Farren's New York State Division of Human Rights claim)). Puma reported to Prohaska that he told Farren:

I did not threaten Thigpen and his information was 'bullsh--t' [sic]. After [they] discussed the issue further, [Puma] told Farren the next time [he] saw Farren do anything that was not in the Company's guidelines, I was going to f--k him.

I stated to him 'No, I'm not going to f--k you, you are going to f--k yourself and I'll be the one to squeal on you. I'll be man enough to tell you to your face that I squealed.' (Puma Aff. ¶ 8; see Prohaska Aff. ¶ 15). Prohaska had also been advised that an employee of Defendant's client, the Army Corps of Engineers, had heard Puma using foul language. (Prohaska Aff. ¶ 16). He verbally reprimanded Puma and advised him to watch his language and treat others with respect. (Prohaska Aff. ¶ 16-17). Prohaska also advised Puma "that he needed to watch his language around the Army Corps of Engineers." (Prohaska Aff. ¶ 17).

Shortly thereafter, having not heard of the outcome of Prohaska's investigation into the matter, Saldana and Farren went to Peter Coutts, the senior project manager and Prohaska's supervisor, and reported the trouble Farren was having with Puma (Deposition of Peter Coutts, Docket No. 73-8 at 10-11, 22, 33; Saldana Aff. ¶¶ 38-40). Farren reported to Coutts that when the argument began to get heated, Puma "opened the excavator door and came out and stood on the track of the excavator and told [Farren] if he doesn't shut the fuck up he's going to come down there and fuck him in the ass." (Coutts Dep. at 34). Coutts described Farren's demeanor at this time as "loud and boisterous and waiving his arms around and using a lot of typical vulgarities and at one point laughing." (Coutts Dep. at 34-35, 83). It seemed to Coutts that the issue was "not taken seriously by the people that were bringing me the message to begin with until they said they were going to sue at the end of the conversation." (Coutts Dep. at 83). He nonetheless took the matter seriously and told Saldana and Farren that "he was going to take some action." (Saldana Aff. ¶42; see Coutts Dep. at 35). When interviewed by Coutts, Puma admitted to making the statements alleged, but stated that it was "in no means a threat sexually against Ken Farren and that he thought it was in his terms bullshit that Kenny was thinking that he was sexually harassed." (Coutts Dep. at 39). Although verbal warnings were generally given regarding abusive language on the job site (Coutts Dep. at 64-65), Coutts suspended Puma for a week without pay. (Coutts Dep. at 40; Saldana Aff. ¶ 43).

Neither Prohaska nor Coutts were aware of any further incidents between Puma and Farren, and no complaints regarding the sufficiency of Puma's punishment were raised. (Prohaska Aff. ¶ 18; Coutts Dep. at 41, 69-70, 78). Saldana avers, however, that Puma's vicious harassing and threatening comments to Farren increased when he returned to the job site. (Saldana Aff. ¶ 47). Farren left the job on October 11, 2004 and did not return to work for several days. (Saldana Aff. ¶ 47). When Saldana visited Farren at home, he: tried to talk [Farren] into coming back but he was convinced that Puma was not going to stop, and that he would try to rape or molest [Farren] and that no one from Shaw was going to do anything to prevent it. [Saldana] couldn't really argue with him on that because it certainly seemed that Shaw was not interested in doing anything to seriously correct the situation. (Saldana Aff. ¶¶ 47, 50). Saldana averred that he "told Mark Page, the field construction manager for [Defendant], that Ken Farren left the job because he was sexually harassed by Al Puma," but "no one took any action against Puma." (Saldana Aff. ¶¶ 55-56). On November ...


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