United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE
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.
moves for summary judgment on all of Mr. Salen's claims.
For the reasons that follow, the motion is DENIED.
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.
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.
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”).
The April 10, 2013 Incident
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.
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.
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.
Blackburn's Response to the Incident
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”).
Blackburn's Sexual Harassment Policy
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.
Other Harassment at Blackburn
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:
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.
Mr. Salen's Termination
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.
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
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 ...