12-1008-cv
Farren v. Shaw Environmental, Inc.



                                     UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st
day of January, two thousand thirteen.

PRESENT:

                    JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                    DEBRA ANN LIVINGSTON,

                                       Circuit Judges.

_____________________________________

ANN FARREN, as Administratrix of the Estate
of KENNETH FARREN,

                                      Plaintiff-Appellant,

                    v.                                                        No. 12-1008-cv

SHAW ENVIRONMENTAL, INC.,

                      Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                         SHAWN W. CAREY, The Carey Firm, LLC,
                                                                 Grand Island, NY.




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FOR DEFENDANT-APPELLEE:                                           MARGARET A. CLEMENS (Trent M. Sutton, on
                                                                  the brief), Littler Mendelson, P.C., Rochester,
                                                                  NY.

       Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff-appellant Ann Farren (“the plaintiff”) brings this employment-discrimination suit
on behalf of her late husband Kenneth Farren (“Farren”) based on the alleged harassment and
discrimination that he suffered while working as a foreman for defendant-appellee Shaw
Environmental, Inc. (“Shaw”). As relevant to this appeal, the plaintiff alleges that Shaw managers
refused, because of Farren’s sex, to respond to his complaints of sexual harassment in the
workplace, thus violating the ban against disparate treatment on the basis of sex under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1

        In a decision and order dated February 10, 2012, the District Court granted summary
judgment to Shaw on two grounds with respect to the plaintiff’s disparate-treatment claim. First,
the Court concluded that the claim is barred because the plaintiff failed to exhaust available
administrative remedies by not bringing the disparate-treatment claim before the New York State
Division of Human Rights (“DHR”) and the U.S. Equal Employment Opportunity Commission
(“EEOC”). See Farren v. Shaw Envtl., Inc., 852 F. Supp. 2d 352, 360–61 (W.D.N.Y. 2012). Second,
the Court concluded that the plaintiff failed to establish a prima facie cause of disparate treatment
because she had “offer[ed] no evidence of similarly situated female employees whose complaints
resulted in more decisive action than that afforded by [Shaw] to Farren’s complaint.” Id. at 360.

        The plaintiff now appeals the District Court’s grant of summary judgment with respect to
the disparate-treatment claim. We assume the parties’ familiarity with the facts and procedural
history of this case.




1 In her amended complaint, the plaintiff brought three claims under Title VII, alleging that Shaw (1) created a hostile

work environment by condoning the workplace sexual harassment suffered by Farren; (2) engaged in disparate treatment
on the basis of sex by refusing to respond to Farren’s complaints because of his sex; and (3) unlawfully retaliated against
Farren because of his complaints. The complaint also included analogous state-law claims under the New York State
Human Rights Law. The plaintiff abandoned her state-law claims in the court below, see Farren, 852 F. Supp. 2d at 357,
and on appeal she now abandons all but the disparate-treatment claim, see Appellant’s Br. at 12. Arguments not raised
on appeal are waived, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005), and therefore we consider only
Farren’s disparate-treatment claim under Title VII.

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                                           DISCUSSION

        We review an award of summary judgment de novo, “construing the evidence in the light most
favorable to the non-moving party and drawing all reasonable inferences in its favor.” Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quotation marks omitted).
Summary judgment is appropriate if “the movant shows that 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). A
genuine dispute exists “if ‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Gen. Star Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir.
2009) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)).

       For substantially the reasons stated in the District Court’s well-reasoned opinion, we
conclude that Farren failed to exhaust the disparate-treatment claim in the relevant administrative
proceedings before the DHR and EEOC. We now briefly summarize our reasoning.

        “Before an individual may bring a Title VII suit in federal court, the claims forming the basis
of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency.”
Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-5).
Consequently, “[e]xhaustion is ordinarily an essential element of a Title VII claim.” Id. at 70
(internal quotation marks omitted). “Claims not raised in an EEOC complaint, however, may be
brought in federal court if they are ‘reasonably related’ to the claim filed with the agency.” Id.
(quoting Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). We have
explained the meaning of “reasonably related” as follows:

       Recognizing that EEOC charges frequently are filled out by employees without the
       benefit of counsel and that their primary purpose is to alert the EEOC to the
       discrimination that a plaintiff claims she is suffering, we have allowed claims not
       raised in the charge to be brought in a civil action where the conduct complained of
       would fall within the “scope of the EEOC investigation which can reasonably be
       expected to grow out of the charge of discrimination.”

Butts, 990 F.2d at 1402 (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir.
1978)). “In this inquiry, the focus should be on the factual allegations made in the EEOC charge
itself, describing the discriminatory conduct about which a plaintiff is grieving,” and “[t]he central
question is whether the complaint filed with the EEOC gave that agency adequate notice to
investigate discrimination on both bases.” Williams, 458 F.3d at 70 (alteration and internal quotation
marks omitted).




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        Farren’s complaint to the DHR and EEOC did allege one variant of sex discrimination—
namely, that the sexual harassment he experienced at work was so pervasive as to create a hostile
work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (holding that, pursuant
to regulations of the EEOC, pervasive sexual harassment by coworkers can give rise to a Title VII
sex-discrimination claim); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (holding that
pervasive sexual harassment by a coworker of the same sex can give rise to a Title VII sex-
discrimination claim).

        The facts alleged in Farren’s administrative complaint to the DHR and EEOC, however, do
not reveal any suggestion of intentionally discriminatory treatment by Shaw’s managers on account
of Farren’s sex, and therefore the complaint did not provide those agencies with adequate notice of
the disparate-treatment claim. In other words, Farren’s administrative complaint discusses the
sexual nature of the alleged workplace threats in the course of making a hostile-work-environment
claim, but it does not state or suggest that Shaw’s managers responded to Farren’s claims differently
because of his sex. Rather, the complaint simply states that Shaw “took no action to correct the
situation.” Joint App’x at 64–65. The DHR and EEOC therefore reasonably viewed Farren’s
complaint as alleging sexual harassment by Farren’s coworker and an insufficient response by Shaw
managers—not disparate treatment by Shaw managers because of Farren’s sex. In this context, the
two types of sex-discrimination claims are sufficiently distinct, both factually and legally, such that
Farren’s failure to raise the disparate-treatment claim in his administrative complaint precludes our
consideration of that claim here.

        Because the disparate-treatment claim was not exhausted and the plaintiff has waived all
other claims, we need not examine any other aspect of the District Court’s opinion.

                                          CONCLUSION

        Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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