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Salen v. Blackburn Building Services, LLC

United States District Court, D. Connecticut

January 6, 2017

MATTHEW SALEN, Plaintiff,
v.
BLACKBURN BUILDING SERVICES, LLC Defendant.

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Plaintiff, Matthew Salen, brought this action against his former employer, Defendant Blackburn Building Services, LLC (“Blackburn”). Mr. Salen asserts two causes of action against Blackburn. The first and second counts of his Complaint allege that Defendant subjected him to a hostile work environment. Compl. ECF No. 1, at pp. 16-19. He claims that this harassment constituted discrimination against him on the basis of his sex in violation of the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §46a-51 et seq. and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e et seq. Id. In the third and fourth counts, he claims that Blackburn retaliated against him when he complained about the harassment, in violation of the same statutes. Id. at 19-22. He requests compensatory and punitive damages as well as other relief. Id. at 23.

         Defendant moves for summary judgment on all of Mr. Salen's claims. For the reasons that follow, the motion is DENIED.

         I. Factual Allegations[1]

         Blackburn, a family owned business, provides professional janitorial services in and around Waterford, Connecticut. Def.'s L. R. 56(a) Stmt. ¶ 1. Blackburn hired Matthew Salen as an Assistant Supervisor in November 2011. Id. at ¶ 2. Several days after he started working at Blackburn, the Company promoted Mr. Salen to Supervisor because the original Supervisor did not appear for work. Id. at ¶ 4.

         Irene and Steven Blackburn are owners and executives at Blackburn. Def.'s L. R. 56(a) Stmt. ¶¶ 7-8. The Blackburns are married, and three of their sons-Andre, Gabriel, and Manny-are relevant to this dispute. Id. at ¶¶ 7-10. Andre Blackburn served as Human Resources manager for Blackburn during the relevant time period. Id. at ¶ 10. Abigail Blackburn is Manny Blackburn's wife and worked as Marketing Manager for the Company. Id. at ¶ 9. Jorge Rodriguez, Maritza Soto, Brad Piscatelli and Ray Erazo worked as Supervisors for the Company. Id. at ¶¶ 13-15. Gabriel Blackburn assisted the company while Mr. Salen was employed there, but was not a Blackburn employee and rather worked full-time for the State of Connecticut. Compl. ¶ 35.

         Andre Blackburn was away from work in April and May of 2013. Compl. ¶ 11. During his absence, a number of people shared human resources responsibilities, including Abigail Blackburn, Irene Blackburn and Jorge Rodriguez. Def.'s L.R. 56(a) Stmt. ¶ 25. The parties dispute the relationship between Mr. Salen and Mr. Rodriguez. Defendants assert that the two were equal in authority, see id. at ¶ 66, while Mr. Salen claims that the two “were the same, or [Salen] was a little bit below” in “terms of the order of authority at the company.” See Pl.'s L.R. 56(a) Stmt. ¶ 66, citing Def.'s Mot., ECF No. 62-1, Appendix, Salen Dep. 83:5-8 (hereinafter “Salen Dep”).

         a. The April 10, 2013 Incident

         At around 5:00 p.m. on April 10, 2013, while Andre Blackburn and Mr. Salen were working in Blackburn's Waterford office, Andre Blackburn asked Mr. Salen to hang a poster on the wall of a conference room. Def.'s L. R. 56(a) Stmt. ¶ 20. Mr. Salen stood on a chair to hang the poster. Id. While Mr. Salen was doing so, Mr. Blackburn put his arms around Mr. Salen's waist for several seconds. Id. at ¶ ¶ 21-44. During his deposition, Mr. Salen stated that Andre Blackburn put his hands on Mr. Salen's penis for two seconds while Mr. Salen was standing on the chair. Id. at ¶ 23. At this point, Mr. Salen said, Mr. Blackburn was behind Mr. Salen, so that his face was touching Salen's “crack.” Id. Salen Dep. 137: 10-11. See also Compl. ¶ 24 (“Mr. Blackburn was behind the chair the Plaintiff was standing on and Mr. Blackburn grabbed the Plaintiff from behind and wrapped his arms around his lower waist near his genital region, and in the same motion Mr. Blackburn placed his face in the Plaintiffs buttocks.”). At this point, Mr. Salen stated that he “jumped off the chair and damn near ripped [Andre Blackburn's] face off.” Salen Dep. 136:1-8.

         In an e-mail response to an investigation about the incident, Andre Blackburn stated that he “wanted to hold onto Matt's waist just to make sure he was steady and would not fall” and that he “first asked [Salen] if it was okay, to which he replied ‘yes.”' Gabriel Blackburn Investigation Report, 2, Pl.'s Opp. Mem, Ex. 10, ECF No. 65-23 (hereinafter “Gabriel Blackburn Investigation Report”). No one directly witnessed the incident, but Martiza Soto, a Blackburn supervisor, “saw Mr. Salen exit the office visibly upset” and Wilberto Santiago, night floor crew member, saw Mr. Salen standing on the chair through the conference room window. Pl.'s Stmt. of Disp. Facts, ECF No. 65-21, ¶ 3.

         Mr. Salen occasionally worked with Andre Blackburn while employed at Blackburn. Def.'s L. R. 56(a) Stmt. ¶ 6. Until April 2013, Mr. Salen testified that he had “no issues” with Andre Blackburn. Id. See Salen Dep. 60:4-7. Mr. Blackburn is gay, and Mr. Salen admits to being uncomfortable with gay people. Def.'s Stmt. ¶ 60; Def.'s Mot. for Summ. J., 5; Salen Dep. 13: 7-11 (“I have a problem when [homosexuals] try to touch me, when they try to play passes on me.”). Shortly after the incident, Andre Blackburn took leave from the office for several months. Def.'s L. R. 56(a) Stmt. ¶ 11. He did not return to work until July 2013, but communicated with Blackburn employees, as well as Mr. Salen, by e-mail and text message.

         b. Blackburn's Response to the Incident

         Mr. Salen felt uncomfortable after the incident and mentioned it to several Blackburn officers. He first reported the incident to Jorge Rodriguez, his supervisor, on the evening of April 10th. Def.'s L. R. 56(a) Stmt. ¶ 24; Pl.'s L. R. 56(a) Stmt. Att. 1, ECF No. 65-1, Salen Aff., ¶ 3. He reported the incident to Abigail Blackburn, who served as the Company's interim Human Resources Director, at some point one week later. Salen Aff. ¶ 7; Def.'s L.R. 56(a) Stmt. ¶ 26. On May 27, 2013, Abigail e-mailed the owners of the company, Irene and Steven Blackburn, to report Mr. Salen's complaints. See E-Mail Correspondence, 2, Pl.'s Opp. Mem., Ex. 12, ECF 65-11. In the email Abigail Blackburn summarized the story that Mr. Salen had told her.

         She wrote that: “Andre asked Matt to hang something up for him. When Matt did this Andre grabbed him around the waist and continued to hold on to him with his face near his rear. Andre asked him ‘does this make you feel uncomfortable because if so I should not do it.'” Id. Her e-mail also stated that Andre had called Mr. Salen and “stat[ed] to him that he was dying.” Id. She added that Mr. Salen was “very uncomfortable and will continue to be … unless it is addressed.” Id. at 2-3. Irene Blackburn responded to Abigail's e-mail on June 13, proposing a disciplinary plan. Id. at 7. Specifically, she suggested that Andre should “apologize to Matt” and that there would be a “note in Andre's file, as he never had an incident before or since, and anyone deserves a second chance.” Id. In the e-mail correspondence, Abigail Blackburn called Irene Blackburn “Mom” and Irene called Abigail Blackburn “Abby.” Id. at 2, 7.

         Mr. Salen had also told Irene Blackburn about the incident at some point before June 2013. Id. at 27-30. At this meeting, he told Irene Blackburn that he was “worried' about Andre and otherwise answered her questions about the encounter. Salen Dep. 225:21-227:7. He “complained about physical touching to Abigail and Irene, ” but did “not mention Andre touching his penis or putting his face in Salen's butt.” Id. at 29. At this meeting Irene Blackburn also asked Mr. Salen if his job at Blackburn was “the best job [he'd] ever had.” Id. at 225: 15-18.

         Irene Blackburn's disciplinary proposal never came to fruition. The e-mail correspondence in the record, as well as Plaintiff's opposition brief, suggests that Abigail Blackburn prepared a report for Andre Blackburn to sign and planned for him to “formally apologize” to Mr. Salen around June 18, 2013. See E-Mail Correspondence, Pl.'s Opp. Mem., Ex. 12; Pl.'s Opp. Mem., 5. On the day of the interview, it was cancelled. Compl. ¶ 35.

         Eventually, Gabriel Blackburn, who worked for the State of Connecticut and not for Blackburn, conducted an investigation of the incident. Def.'s L.R. 56(a) Stmt. ¶ 30. At deposition, Irene Blackburn stated that she asked Gabriel to conduct the investigation because “he owe[d her] big time” and because he “ha[d] the skills, ” since he is a Director of Human Resources. Id. at Appendix, Irene Blackburn Dep. 66: 14-16. She clarified that Gabriel Blackburn did not owe her money, but rather owed her a favor. Id. at 62: 6-8.

         Gabriel Blackburn interviewed and took statements from several witnesses to the incident, namely Mr. Salen, Wilberto Santiago, Jorge Rodriguez and Martiza Soto. Id. at ¶ ¶ 31-32. The parties dispute whether Gabriel Blackburn interviewed every witness to the incident. Plaintiff contends that Gabriel Blackburn did not interview Andre Blackburn, Irene Blackburn or Abigail Blackburn. Pl.'s Stmt. of Disp. Facts, ECF No. 65-21, ¶ 6. Gabriel Blackburn's report does contain a statement that Andre Blackburn submitted by e-mail. See Gabriel Blackburn Investigation Report, 2.

         As a component of his investigation, Gabriel Blackburn prepared a statement for Mr. Salen to sign. See Def.'s L.R. 56(a) Stmt, Appendix, Gabriel Tr., at 27:6-20, see also Gabriel Blackburn Investigation Report, 2. The signed statement given by the Plaintiff to the Defendant dated June 18, 2013 makes no mention of Andre Blackburn putting his face in the Mr. Salen's buttocks or touching Mr. Salen's penis. See Id. Rather, the statement says that the Plaintiff “was holding the sign and he [Andre Blackburn] grabbed me by waist and the chair.” Id. Plaintiff admits that he signed the statement but denies that his signature was given “by his own free will.” Pl.'s L.R. 56(a) Stmt. ¶ 33. Mr. Salen admits that he did not tell Gabriel Blackburn during the interview that Andre Blackburn had touched his penis or put his face in his “crack, ” but said that he did not mention this because “it was not asked.” Id. at ¶ 39, Salen Dep. 222: 17-22. Gabriel Blackburn's investigation notes indicate that Mr. Salen had said that he was “not filing any type of sexual harassment or anything but wanted to report it because he felt uncomfortable and didn't want to lose his job over this incident.” See Pl.'s Opp. Mem, Ex. 10, Blackburn Investigation Report, 2.

         On July 23, 2013, Gabriel Blackburn issued a memorandum to Mr. Salen entitled “Closeout notice and letter of expectation, ” which concluded that: “There is no evidence to substantiate any type of work rule or policy violation by Andre Blackburn. Matt [Salen] himself stated that he didn't want to make a big deal about this and to report it. He acknowledges that he was not harassed.” Gabriel Blackburn Investigation Report, 2; Def.'s L.R. 56(a) Stmt. ¶ 49. The letter thanked Mr. Salen for bringing the matter to the attention of Jorge Rodriguez, which was “the proper channel to communicate confidential issues related to coworkers.” Id. at ¶ 50.

         Prior to filing the closeout notice, Gabriel Blackburn heard that Mr. Salen discussed the incident with Maritza Soto and Wilberto Santiago, two of his co-workers. Def.'s L.R. 56(a) Stmt. ¶ 53. Mr. Blackburn indicated in the July 23, 2013 letter that he had learned that Mr. Salen had shared the information about his complaint with co-workers who had “no business being involved.” Id. at Appendix, Ex. 5, Closeout Notice. He noted that the memorandum would serve as a “letter of expectation” that the Plaintiff would not do this in future incidents. Id. The parties dispute whether the letter was disciplinary in nature. Compare Pl.'s L. R. 56(a) Stmt. ¶ 57 and Def.'s L.R. 56(a) Stmt. ¶ 57.

         Mr. Salen had been “counseled or coached” on the need for confidentiality on three occasions beforehand. Def.'s L.R. 56(a) Stmt. ¶ 54. See also Salen Dep. 110:6-19. On one of these occasions, Mr. Salen suggested in a Facebook posting that he had seen a person steal a toothbrush. Pl.'s Opp. Mem., 3, citing id. at Ex. 8, ECF No. 65-10, January 26, 2012 Memorandum. In the second instance, Mr. Salen asked another supervisor about his recent drug test. Id.

         Around the time of the “letter of expectation, ” Mr. Salen received a raise from $14.25 per hour to $14.50. Def.'s L.R. 56(a) Stmt. ¶ 59. The record does not establish conclusively why Mr. Salen received a raise. Andre Blackburn testified that he didn't “determine solely who hands out money” and did not participate in the decision to give Mr. Salen a raise. Def.'s L.R. 56(a) Stmt. Appendix, Andre Blackburn Dep. 124: 6-16 (hereinafter “Andre Blackburn Dep.”).

         c. Blackburn's Sexual Harassment Policy

         Blackburn's Employee Handbook includes a sexual harassment policy that states that it is “against the policies of the Company for any employee of the company, for an employee of the Company, male or female, to harass another employee sexually, that is, by making unwelcome sexual advances, sexual favors or other uninvited verbal or physical conduct of a sexual nature.” Salen Aff., Ex. 4, ECF 65-6, Employee Handbook, pp. 10-11. The Handbook also sets out a complaint procedure. Id. at 11. Under the Handbook, an employee should “initiate a complaint with the senior manager [designated to handle workplace harassment complaints] as soon as possible.” Id. The Handbook explains that the Senior Manager will then:

promptly have a confidential preliminary investigation made into the matter. If, after the completion of this preliminary investigation, it is determined that there is cause for finding a violation of this policy, the Company will notify the complainant and the charged of the finding, orally. The charged employee will be requested to respond to the complaint. … After the response of the charged employee has been made, and any further investigation that is warranted has been carried out, the Company will make a final decision. If the Company finds that the allegations in the complaint have been established by the investigation, the Company will initiate discipline [that is] appropriate to the offense and the employees involved and may include discharge.

Id. at 11. The record does not establish whether Blackburn had designated a specific managerial employee to receive workplace harassment complaints during the time period relevant to this lawsuit.

         d. Other Harassment at Blackburn

         After the incident, Mr. Salen felt that he “wasn't being treated right by employees.” Def.'s L. R. 56(a) Stmt. ¶ 69; Salen Dep. 235:6-7. Shortly after September 2013, several co-workers had stated to the Plaintiff that Salen was “Andre's lover boy” and that when he would get a phone call they would say, “Oh. is that Andre on the phone?” Def.'s L. R. 56(a) Stmt. ¶ 71; see also Compl. at ¶ 30. Mr. Salen said that he “was the joke of Blackburn.” Salen Dep. 236: 24-25. The parties dispute whether these are the only comments the Mr. Salen described his co-workers making to him in connection with the April 10, 2013 incident. The comments began shortly after September 2013. Salen Dep. 237: 22-23.

         Mr. Salen testified during his deposition that he did not tell Abigail Blackburn about co-workers making fun of him regarding the incident during the meeting between him, Abigail Blackburn and Jorge Rodriguez. Def.'s L. R. 56(a) Stmt. ¶ 70; Salen Dep. 209:16-212:15. Later, he did mention his co-workers' disturbing behavior to Abigail Blackburn and Jorge Rodriguez during a conversation on the porch. Salen Dep. 234:20- 235: 7. He also did not complain about the treatment to Andre, Gabriel, Irene or Steven Blackburn. Id. at ¶ 73.

         e. Mr. Salen's Termination

         On September 20, 2013, Mr. Salen submitted a resignation letter to Ray Erazo, stating: “[a]s of today I am unfortunately putting in my two week notice to end my employment. Thanks for everything.” Def.'s L. R. 56(a) Stmt. ¶ 83, id. at Appendix, Ex. 11, Resignation Letter. At his deposition, Mr. Salen stated that he did not intend to work at Blackburn after the expiration of the two week period, because he was “going to leave with respect.” Id. at ¶ 86; Salen Dep. 30:5-11.

         After several meetings, supervisors at Blackburn decided that “it would be in the company's best interest to accept the Plaintiff's resignation effective immediately.” Id. at ¶¶ 88-90. See also Andre Blackburn Dep. 123: 8-17 (“when we received his resignation we decided to accept that, and accept it effective immediately as opposed to waiting two more weeks for him to still work, be exposed to clients, be exposed to other employees, and it didn't seem good for morale.”). Several Blackburn employees participated in these meetings, namely Reinaldo Erazo, Jorge Rodriguez, and Steve, Abigail, Irene and Andre Blackburn.” Id. at 147: 4-19 (referencing a “huddle”).

         Mr. Salen maintains that defendant terminated his employment because “he did not resign, and the defendant did not accept [his] resignation.” Pl.'s Stmt. of Disp. Facts, ECF No. 65-21, ¶ 12. He collected unemployment payments for one and a half to two years after his termination. Salen Dep. 30: 12-19. On October 5, 2013, Mr. Salen's Facebook page contained a post that said “I can honestly say I'm glad I quit my job.” Id. at 42: 1-2. Mr. Salen ...


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