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Hubert v. State

United States District Court, D. Connecticut

March 30, 2018

SHARONE HUBERT, Plaintiff,
v.
STATE OF CONNECTICUT DEPARTMENT OF CORRECTION, et al., Defendants.

          RULING AND ORDER ON PENDING MOTIONS.

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Sharone Hubert (“Plaintiff”) has sued the State of Connecticut Department of Correction (“Defendant” or “DOC”) and various individual DOC employees. See generally Am. Compl., ECF No. 10. Specifically, she has sued Captain Kyle Godding (“Godding”), Deputy Warden Michael Davis (“Davis”), Correction Officer Kevin Curry (“Curry”), Lieutenant Derrick Austin (“Austin”), and Lieutenant Cicero Callender (“Callender”) (collectively, the “Individual Defendants”), each in his official capacity (collectively “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1985, 1986, and 1988.

         Defendants now move for summary judgment. ECF No. 121. Defendants also move to dismiss this action under Federal Rules of Civil Procedure 37(b) or 41(b). ECF No. 126. Ms. Hubert has moved for reconsideration. ECF No. 134. Ms. Hubert has also moved to consolidate. ECF No. 141.

         For the following reasons, the motion for summary judgment is GRANTED. The motion to dismiss is DENIED as moot, the motion for reconsideration is DENIED as moot, and the motion for consolidation is DENIED as moot.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]A. FACTUAL ALLEGATIONS

         Ms. Hubert, an African American woman, has been employed by the DOC since February 1998. Am. Compl. ¶ 4. The DOC is a cabinet-level, para-military, state agency responsible for confining and supervising accused and sentenced criminal defendants in correctional institutions, centers, and units, and it administers medical, mental health, rehabilitative, and community-based service programs across the state. Id. ¶ 12; Miller Aff. ¶ 4, Defs.' SMF, Ex. 5, ECF No. 121-8. The DOC employs more than five hundred officers and civilian employees state-wide, and it has confirmed compliance with federal and state antidiscrimination laws and regulations. Am. Compl. ¶ 13.

         1. Hartford Correctional Center

         From February 13, 1998, through September 10, 2009, Ms. Hubert was assigned to the Hartford Correctional Center (“Hartford CC”). Defs.' SMF ¶ 3; Hubert Aff. ¶ 6, Pl.'s SMF, Ex. 17, ECF No. 130-34. During this time, Michael Davis was the Captain at Hartford CC. Defs.' SMF ¶ 32.

         While stationed at Hartford CI, Ms. Hubert worked with Lieutenant Derek Austin. Hubert Dep. at 19:1-12. Ms. Hubert testified that, beginning in 1999, Mr. Austin would come to her post and expose himself to Ms. Hubert and make lewd comments to Ms. Hubert in front of other officers. Id. at 66:1-8. Mr. Austin was, according to Ms. Hubert, told to stay away from Ms. Hubert, and eventually transferred to a different DOC facility on November 29, 2001. Id. at 65:24-25, 55:9-14. The last contact Ms. Hubert had with Mr. Austin was in 2002. Id. at 19:11- 14.

         Ms. Hubert testified that she filed reports about Mr. Austin and, according to Ms. Hubert, these reports went unanswered. Id. at 63:14-21. She explained that the DOC's Affirmative Action Unit was a “joke.” Id. at 63:15.

         It was also at Hartford CC where Ms. Hubert worked with Officer Kyle Godding. Hubert Dep. at 305:13-17. Ms. Hubert testified that Mr. Godding would come to Ms. Hubert's post in main control and asked if Ms. Hubert would give Mr. Godding a pair of her underwear to smell and told her she was beautiful and that he had a crush on her. Hubert Aff. ¶ 61. At one point, Mr. Godding allegedly stated that he knew Ms. Hubert was being considered for a promotion and said he would put in a good word for Ms. Hubert and then asked for a hug and a kiss. Id.

         After 2005, Ms. Hubert no longer worked with Mr. Godding, but they stayed in touch with one another. Hubert Dep. at 305:15-20.

         a. Administrative Directive 2.2, Sexual Harassment, Effective September 15, 2008

         On September 15, 2008, the DOC issued Administrative Directive 2.2.[2] See generally Sept. 15, 2008, Miller Aff., Ex. C, ECF No. 121-11 (superseding Administrative Directive 2.2, dated May 1, 2007).

         b. The Gym Room Incident

         In spring 2009, Mr. Davis, Ms. Hubert's supervisor, allegedly asked her to leave her post and accompany him to “the gym room.” Hubert Dep. at 44:9-17. Mr. Davis allegedly told Ms. Hubert that there was missing equipment, and he needed her assistance in finding it. Id. at 44:23- 25. Ms. Hubert testified that she was looking for the missing equipment when Mr. Davis tried to kiss her. Id. at 45:6-8. With her back against a wall, Mr. Davis allegedly put his hand inside Ms. Hubert's underwear and asked if he could put the tip of his penis inside her. Id. at 45:10-46:9. Mr. Davis allegedly unzipped his pants and asked Ms. Hubert to perform a sexual act for him. Id. at 46:11-16. At this point, someone walked by, and Ms. Hubert tried to walk away, but Mr. Davis allegedly restrained her. Id. at 46:21-22.

         Other than to her husband, Ms. Hubert did not report the incident, Defs.' SMF ¶ 33, because she feared retribution. Hubert Aff. at ¶ 35. Also, Mr. Davis's wife worked in the 5. By filing a complaint with the Equal Employment Opportunity (EEOC) or the Connecticut Commission on Human Rights and Opportunities (CHRO) . . . .C. A complaint of violation of this Directive may be made directly to any of the following in any of the Affirmative Action Office “and would have been privy to the substance of [Ms. Hubert's] complaint.” Id.

         Mr. Davis was transferred to Cheshire CI. Hubert Dep. at 50:16-17.

         c. Administrative Directive 2.17, Employee Conduct, Effective January 31, 2009

         Administrative Directive 2.1, Employee Conduct, became effective on January 31, 2009.[3] See generally Jan. 31, 2009, Admin. Directive 2.1, Miller Aff., Ex. A., ECF No. 121-9.

         2. York Correctional Institute

         From September 11, 2009, through December 8, 2009, Ms. Hubert was assigned to York Correctional Institute (“York CI”), Defs.' SMF ¶ 3, and promoted to Correctional Lieutenant. Hubert Aff. ¶ 62.

         3. Gates Correctional Institute

         From December 9, 2009, through January 28, 2010, Ms. Hubert was assigned to Gates Correctional Institute (“Gates CI”). Defs.' SMF ¶ 3. Though Mr. Godding was not stationed at Gates CI, Mr. Godding would call Ms. Hubert from his facility and send her emails. Hubert Aff. ¶ 63.

         a. December 29, 2009 Letter to Hamden Police Department

         Officer Rosalyn Williams accused Ms. Hubert of placing a woman who was allegedly having an affair with Ms. Hubert's husband in the trunk of Ms. Hubert's car and holding the woman hostage. Defs.' SMF ¶¶ 29-30.

         On December 29, 2009, the police came to Ms. Hubert's home, searched her vehicle, and found no body in the trunk of the car. CHRO Compl. ¶ 16. That day, Ms. Hubert wrote a letter to the Hamden Police Department on DOC letterhead. Dec. 29, 2009, Hamden Ltr. at 1, Hubert Dep., Ex. 16, ECF No. 121-4 at 154. In the letter, Ms. Hubert stated that, earlier that day, a police officer from the Hamden Police Department arrived at Ms. Hubert's home and asked Ms. Hubert questions about Ms. Williams. Id. Ms. Hubert explained that Ms. Williams had a child with Ms. Hubert's husband before Ms. Hubert married him. Id. According to Ms. Hubert, Ms. Williams had called the police and reported that Ms. Hubert threatened Ms. Williams at Ms. Williams's house. Id. Ms. Hubert stated that Ms. Williams had threatened Ms. Hubert's family and made false reports due to Ms. Williams's infatuation with Ms. Hubert's husband. Id. at 2.

         b. January 27, 2010 Letter from Warden Kevin Gause

         Ms. Hubert testified that, upon the recommendation of Ms. McLaurin, on January 27, 2010, Warden Kevin Gause issued to Ms. Hubert a letter informing Ms. Hubert that she failed a promotional working test period and was “demoted” to correctional officer. July 16, 2010, CHRO Compl. ¶ 13. Ms. McLaurin, Ms. Hubert alleges, falsely accused of Ms. Hubert of failing to comply with a direct order on November 30, 2009, and subsequently Ms. Hubert received an unsatisfactory rating. Id. ¶ 13.

         Mr. Gause's letter stated: “This letter is to inform you that you failed your promotional working test period in the position of Correctional Lieutenant and you will be reverted to your former classification of Correction Officer.” Jan. 27, 2010, Gause Ltr. at 1, Hubert Dep., Ex. 32, ECF No. 121-4 at 163. Mr. Gause notes that, during the rating period, Ms. Hubert refused to fully comply with a direct order in violation of Directive 2.17, resulting in an unsatisfactory rating. Id. Ms. Hubert refused to sign the letter. Id.

         Jeffrey Miller, the DOC Director of Human Resources, testified that, under the collective bargaining contract between the state of Connecticut and the Connecticut State Employees Association, SEIU Local 2001-which represents correctional supervisors including lieutenants-Ms. Hubert was subject to a six-month working test period. Miller Aff. ¶ 9. Mr. Miller further testified that an internal investigation substantiated that, on November 30, 2009, Ms. Hubert failed to fully comply with a direct order from her supervisor. Id. ¶ 11. Having failed the promotion working test, Ms. Hubert “reverted” to her former position of correction officer, effective January 29, 2010. Id. ¶¶ 10, 14.

         4. Hartford Correctional Center

         From January 29, 2010, through December 1, 2010, Ms. Hubert was assigned to Hartford CC, Miller Aff. ¶ 6, but during this time, Ms. Hubert was out of work due to a work-related injury. Hubert Aff. ¶ 6.

         a. Administrative Directive 2.7, Employee Conduct, Effective April 15, 2010

         On April 15, 2010, the DOC promulgated a revised Administrative Directive 2.1, Employee Conduct. See generally Apr. 15, 2010, Admin. Directive 2.1, Miller Aff., Ex. B, ECF No. 121-9. All relevant provisions are identical to the January 31, 2009, Administrative Directive 21. Additionally the Directive prohibits possessing “any personal electronic wireless communication device (to include, but not limited to, a cellphone, pager, blackberry device, [or] personal digital assistant (PDA)).” Id. § 5(B)(34)(a).

         b. July 16, 2010 Commission on Human Rights and Opportunities Complaint

         On July 16, 2010, Ms. Hubert submitted a complaint with the Connecticut Commission on Human Rights and Opportunities (“CHRO”). See generally July 16, 2010, CHRO Complaint (No. 111014), Defs.' SMF, Ex. 2, ECF No. 121-5. In it, Ms. Hubert alleged that, on September 11, 2009, Warden Kevin Gause promoted her to Correctional Lieutenant. Id. ¶ 4. The promotion increased her salary by $25, 000. Id. Upon promotion, Captain Sharon McLaurin became Ms. Hubert's immediate supervisor. Id. Referring to an affirmative action complaint she filed on December 10, 2009, Ms. Hubert stated:

In my [December 10, 2009] complaint, . . . I allege, in part, that Captain McLaurin “disrespected me as a female and professional”, relating to me as being “Ghetto, ” deny me the opportunity for advancement by not allowing me to “learn the desk duties” and not giving me the recommendation letter I ask for. I also alleged in my complaint that I was “placed in a hostile work environment” with staff by Captain McLaurin telling my peers (i.e. Lieutenant Wayne Crews, Lieutenant Craig Burnett, Lieutenant Terrance O'Hanion, and Lieutenant Mr. Begun) negative things about me “causing them to dissociate themselves from me.” I also say in my complaint that I was told by Captain McLaurin that “if I don't leave York CI (Correctional Institute) I would be a Lieutenant for the rest of my career.”

Id. ¶ 7. Ms. Hubert asserted that she had been subject to harassment and unequal treatment based on her sex. Id. ¶ 8. The Affirmative Action Unit determined that Ms. Hubert's December 10, 2009, complaint was unsubstantiated. Id. ¶ 9.

         In the CHRO complaint, Ms. Hubert stated that, after Ms. Hubert filed the complaint with the Affirmative Action Unit, Ms. McLaurin's harassment increased. Id. ¶ 10. Specifically, Ms. Hubert alleged that Ms. McLaurin issued a poor evaluation in December 2009, recommended Ms. Hubert be transferred to another facility, [4] and falsely accused Ms. Hubert of doctoring an obituary to get time off for a funeral, id.; see also Request for Funeral Leave at 1, Hubert Dep., Ex. 33, ECF No. 121-4 at 163 (showing that Ms. Hubert's request does not include a supervisor's signature and whether the request had been approved or denied); Nov. 30, 2009, Attendance Warning at 1, Hubert Dep., Ex. 21, ECF No. 121-4 at 162 (stating that Ms. Hubert's had insufficient accrued sick leave and/or sick family leave and noting that Ms. Hubert refused to sign the warning and that a second attendance warning would result in docked pay and a written reprimand), and that Ms. McLaurin continued to deny Ms. Hubert desk training or coaching, July 16, 2010, CHRO Complaint (No. 111014) ¶¶ 10-11. Ms. McLaurin gave Ms. Hubert a direct order to sign the warning, and Ms. Hubert refused. Nov. 30, 2009, Attendance Warning at 1.

         On September 2, 2010, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a notice indicating receipt of Ms. Hubert's CHRO complaint (No. 1110014) for dual filing purposes (EEOC Charge No. 16A-2010-01267). Defs.' SMF ¶ 5. The charge stated that the EEOC “may suspend its investigation and await issuance of the Agency's final finding and orders.” EEOC Charge No. 16A-2010-01267 at 1, Defs.' SMF, Ex 3, ECF No.121-6. The charge also advised that complainants are “encouraged to cooperate fully with the Agency.” Id.

         On August 28, 2013, the CHRO issued a finding of no cause. Aug. 28, 2013, CHRO No. 111014, Cause Finding, ECF No. 43-1. The findings pertained solely to the fact that Ms. Hubert failed her promotional test period, causing her to revert back to an officer from lieutenant. Id. at 3. On January 10, 2014, the EEOC adopted the CHRO findings. Defs.' SMF ¶ 7.

         5. Cheshire Correctional Institute

         From December 5, 2010, through the time of this filing, Ms. Hubert has been assigned to Cheshire Correctional Institute (“Cheshire CI”). Hubert Aff. ¶ 6. Ms. Hubert maintains: “It was my belief that by the time I got to Cheshire CI, I was already ready to be black balled.” Hubert Dep. at 38:1-2. Ms. Hubert believed that, at Cheshire CI, “everyone knew everything about [her].” Id. at 38:14-15. According to Ms. Hubert, her CHRO complaint was the topic of rumors at Cheshire CI. Id. at 38:18-19. Ms. Hubert could not specifically recall, but believes it was Lieutenant Carolyn Hickman that informed Ms. Hubert that supervisors had been talking about Ms. Hubert. Id. at 38:22-25. Ms. Hickman, Ms. Hubert testified, told Ms. Hubert that everyone at Cheshire CI hated Ms. Hubert and that Ms. Hubert “should transfer out.” Id. at 39:4-5.

         a. Text Messages from Mr. Callender

         Beginning in 2010, while touring the facility, Lieutenant Callender allegedly would request hugs from Ms. Hubert. Hubert Dep. at 10:16-18. He allegedly asked her for hugs on four-to-five separate occasions. Id. at 10:22. In 2010, Ms. Hubert allegedly verbally reported this conduct to Ms. Hickman, but does not recall Ms. Hickman's response. Id. at 11:16-12:1. Ms. Hubert again reported Mr. Callender's conduct to Ms. Hickman in 2011 or 2012, but Ms. Hickman did not take the report seriously. Id. at 12:4-9.

         When Mr. Davis transferred to Cheshire CI, Ms. Hubert reported Mr. Callender to Mr. Davis. Id. at 11:1. It was her impression that Mr. Davis did not take the report seriously. Id. at 12:12-19.[5] Ms. Hubert testified at her deposition: “There was nothing preventing [her] from going to Affirmative Action. [Officers] have choices, whether [officers] to go Affirmative Action, whether [officers] get a lawyer, whether [officers] file it with CHRO. [Officers] don't have to directly go to Affirmative Action.” Id. at 76:22-77:1; see also Sept. 15, 2008, Directive 2.2 § 9(B)(5) (permitting that a complaint may be made by filing a complaint with the EEOC or CHRO). She further explained: “Sometimes you just have to suck it up and say, you know what I gotta get this. No one's gonna help me, so I gotta-whether I'm acting like it didn't happen with [Mr. Davis]. I gotta basically hold my faith and stay strong for my family, because if I break down, then I can't work and I can't feed my kids; I can't pay my son's tuition.” Hubert Dep. at 81:11-17. She told Mr. Davis about Mr. Callender because Mr. Davis was her supervisor and because she felt other people to whom she had reported Mr. Callender failed to act. Id. at 83:3- 84:22.

         Because Ms. Hubert allegedly feared retaliation, she never reported Mr. Callender to the Affirmative Action Unit. 13:4-7. She also explained: “[E]very report that goes to Affirmative Action always come[s] back unsubstantiated.” Id. at 13:12-13.

         In 2011, Mr. Callender allegedly sent Ms. Hubert a text message calling her sexy, and asking when she was “going to make it happen, ” to which she did not respond. Hubert Dep. at 69:8-15. Ms. Hubert allegedly received other similar text messages from Mr. Callender. Id. at 69:24. Ms. Hubert shared the texts with her sister and perhaps Ms. Hickman. Id. at 70:7-8.

         Ms. Hubert testified in her deposition that she complained about Mr. Callender's “inappropriate harassment” to Director James Dzurenda by writing him a letter. Id. at 75:22-25, 77:12.

         After Ms. Hubert complained, Mr. Callender allegedly began to treat her differently than before. Id. 69:15-16.

         b. The April 29, 2011 Letter

         On April 29, 2011, the DOC sent Ms. Hubert a letter. Apr. 29, 2011 Ltr. at 1, Hubert Dep., Ex. 17, ECF No. 121-4 at 156. The letter informed Ms. Hubert that DOC was suspending Ms. Hubert for one day for violating Administrative Directive 2.17 (Employee Conduct) and 6.6 (reporting of incidents). Id. A DOC investigation substantiated that, on December 29, 2009, Ms. Hubert had misused state property-a computer, DOC Stationary, and her DOC position-for personal gain. Id. The letter also stated: “[T]he investigation substantiated that you failed to report that a co-worker was harassing and threatening you when off duty.” Id.

         On January 12, 2012, by written agreement, the DOC reduced the suspension to a written violation. See generally Stipulated Agreement, Hubert. Dep, Ex. 18, ECF No. 121-4 at 157.

         c. October 31, 2011 Incident

         On October 31, 2011, Ms. Hubert testified that she was drafted for first shift, when she had previously advised her supervisor that she had two medical appointments later that day. Apr. 23, 2012, CHRO Compl. ¶¶ 11-14. Ms. Hubert has a medical condition that causes exceedingly heavy menstruation. Hubert Dep. at 31:18-20. Having no choice, Ms. Hubert informed a supervisor, then Lieutenant Brett Mollin, that she had to attend a medical appointment. Apr. 23, 2012, CHRO Compl. ¶ 16. By that time, menses had “drenched” her uniform pants, causing her embarrassment and humiliation. Id. Finally, Mr. Mollin released Ms. Hubert and completed an incident report. Oct. 31, 2011, Incident Report at 1, Hubert Dep., Ex. 3, ECF No. 121-4 at 110. As a condition of going home sick, Mr. Mullins required Ms. Hubert to complete an incident report. Id.

         In the Incident Report 2011-10-071, Mr. Mollin stated that, while posted as the Desk Lieutenant, Ms. Hubert was ordered for First Shift. Id. Officer Hubert claimed to have a Worker's Comp. appointment at 10:00 a.m. and requested to be relieved. Id. Mr. Mollin consulted Ms. Hubert's paperwork, in which there was a note that her doctor's appointment scheduled for October 28, 2011, had been rescheduled for November 1, 2011. Id. Soon thereafter, Mr. Mollin received a facsimile from Yale Medical Group stating that Ms. Hubert had an appointment scheduled for later that day. Id. Mr. Mollin noted the letter did not include a time for the appointment. Id.; see October 31, 2012, Fax at 1, Hubert Dep., Ex. 3, ECF No. 121-4 at 116 (noting Ms. Hubert's October 31, 2011, appointment but not indicating the time).

         Mr. Mollin informed Captain Thomas Veno of the situation, and, while doing so, Ms. Hubert called Mr. Mollin to say she was going home sick. Oct. 31, 2011 Incident Report at 1. Mr. Mollin, the report notes, requested an incident report and asked if Ms. Hubert needed a ride home, which she declined. Id. Ms. Hubert informed Mr. Mollin that she had blood on her pants but did not need a new pair of paints. Id. at 3. According to Mr. Mollin, Ms. Hubert never informed him that she was experiencing heavy bleeding. Id. Mr. Mollin further noted that Ms. Hubert was the fifth out of fifteen officers who had been held over. Mollin Aff. ¶ 4. He further explained that he did not ask Ms. Hubert to prepare an incident report because she had engaged in protected activity. Id. ¶ 4. He asked Ms. Hubert to prepare an incident report after Ms. Hubert indicated that she was going home sick. Id.

         For her part, Ms. Hubert completed a medical incident report later that day. Oct. 31, 2011, Medical Incident Report at 1, Hubert Dep., Ex. 3, ECF No. 121-4 at 113. In it, she noted that she was experiencing “abdominal cramping, bleeding, has MD note for F/U appt with GYN.” Id. She also completed a supplemental incident report. Oct. 31, 2011, Supp. Report, Hubert Dep., Ex. 3, ECF 121-4 at 124. She explained that someone had informed her that another female who reported she was sick was allowed to go home without issue. Id. at 4.

         Ms. Hubert has offered a memorandum dated July 14, 2008, regarding “Sick Leave Regulations and Proper Protocol.” July 14, 2008, Memo at 1, Pl.'s SMF, Ex. 16, ECF No. 16, ECF No. 130-24. The memorandum provides: “Regarding medical appointments, Sec. 5-247-4(a)(1) states that an eligible employee shall be granted sick leave for ‘medical, dental or eye examination or treatment for which arrangements cannot be made outside of working hours.'” Id. The memorandum also provides that verification of medical appointments are required when a more than a half workday is used for such purposes. Id.

         Ms. Hubert is unsure whether Mr. Mollin knew of Ms. Hubert's earlier CHRO case, but she knew that other supervisors knew of it. Hubert Aff. ¶ 26. Ms. Hubert believes she had suffered “[r]etaliation because of who [she is] and just retaliation.” Hubert Dep. at 31:8-10.

         That day, October 31, 2011, Ms. Hubert sent Warden Jon Brighthaupt a letter about the incident. Defs.' SMF ¶ 27; see generally Oct. 31, 2011, Brighthaupt Ltr., Hubert Dep., Ex. 3, ECF No. 121-4 at 120. In the letter, Ms. Hubert recounted the incident from earlier that day, ant noted that she felt humiliated, embarrassed, and harassed due to her race and gender. Oct. 31, 2011, Brighthaupt Ltr. at 2. She alleges that, instead of allowing Ms. Hubert to attend to a medical emergency, Mr. Mollin fabricated a reason not to release her. Id. Ms. Hubert also asserts that she would have had twenty-four hours to complete the incident report; instead, Mr. Mollin made her complete the report while covered in blood in front of male workers. Id. Ms. Hubert also felt she was being retaliated against. Id. at 3.

         On January 10, 2012, Mr. Brighthaupt forwarded a letter to DOC's Affirmative Action Unit to determine if the incident involved sexual harassment, retaliation, or violated other DOC regulations. Id. ¶ 28.

         d. The December 23, 2011 Incident

         On December 23, 2011, Ms. Hubert was placed on paid administrative leave because of the December 29, 2009, incident involving Ms. Williams. Am. Compl. ¶ 29. Before returning to work, Ms. Hubert was required to undergo a “Fit for Duty Exam, ” id. ¶ 31, after which she was cleared to work. Hubert Dep. at 125:16.

         e. Leave

         Between December 27, 2011, and March 23, 2012, Ms. Hubert was continuously out of work on various leave statuses. Lester Aff. ¶ 5, Defs.' SMF, Ex. 7, ECF No. 121-14.

         f. April 23, 2012 Commission on Human Rights and Opportunities Complaint

         On April 23, 2012, Ms. Hubert filed a complaint with the CHRO (No. 1110014), alleging retaliation since filing an August 2010 CHRO complaint.[6] Apr. 23, 2012, CHRO Compl. ¶ 11. ECF No. 43-1 at 25. In it, she recounted the October 31, 2011, incident. Id. ¶¶ 11-21. Ms. Hubert raised her denial of medical attention and not being allowed to seek medical treatment. Id. ¶ 22. Ms. Hubert explained: “Lieutenant Mollins [sic] purposely humiliated, embarrassed and harassed me, and subject[ed] me to a work environment that would be considered hostile to any female employee. I believe that Lt. Mullins [sic] was retaliating against me because I filed a CHRO complainant [sic].” Id. ¶ 16.

         She also described the December 23, 2011 incident in further detail. Id. ¶ 33. Specifically, Ms. Hubert alleged that various other officers, all white men who had committed violations-e.g., engagement in a physical altercation with another office or being arrested for violating a protective order-were not placed on Administrative Leave. Id.

         She also described difficulties receiving workers' compensation payment for work-related injuries. Id. ¶¶ 43-47.

         g. Leave

         Between April 2012 and January 2013, Ms. Hubert was out of work on various leave statuses, working only March 23-27, 2012. Defs.' SMF ¶ 89; Lester Aff. ¶¶ 6-7.

         h. June 11, 2012 Amendment of the April 23, 2012 CHRO Complaint

         On June 11, 2012, Ms. Hubert amended the April 23, 2012 CHRO complaint. See generally June 11, 2012, CHRO Amend't. ECF No. 43-1 at 12. While incorporating allegations from the April 23, 2012, CHRO complaint, Ms. Hubert outlined further difficulties with her workers' compensation claim and FMLA leave. Id. ¶¶ 8-25, 28-29.

         Ms. Hubert also recounted the May 17, 2012 incident, where Captain Bryan Viger allegedly called Ms. Hubert at home to inform her that she was to attend a Loudermill hearing for an employee conduct violation. Id. ¶ 26. She explained:

This hearing [was] based on the false allegation[] that I reported via text message that “I was in a new place no signal I'm need you to bond me out of jail.” I reported that the text was on my son's phone and that the text was not truthful. Allegations that I was hindering an investigation because I didn't have the text message in my phone when the police came to my home are misleading and false. At the time of the incident I was off duty, at home, minding my own business. . . . This case was being investigated by Captain Kelly from security division.

         Id.

         According to Ms. Hubert, on May 18, 2017, the Deputy Commissioner's secretary called to inform Ms. Hubert that her meeting with the Deputy Commissioner has been canceled because of Ms. Hubert's pending CHRO complaint. Id. ¶ 27.

         i. Kyle Godding's August 16, 2012 Text Message

         Ms. Hubert testified that she was friends with Mr. Godding until he sent Ms. Hubert photographs of his penis. Hubert Aff. ¶¶ 67-68. Other than telling her husband, Ms. Hubert allegedly did not report the text message to anyone at DOC because, at the time, she was on leave. Hubert Aff. ¶ 71. Ms. Hubert testified that, consistent with DOC Administrative Directive (“Directive”), she “reached out to” the Permanent Commission on the Status of Women, Directive 2.2 § 9(C)(5), Ex. C, ECF No. 121-11 (“The independent consultant appointed by the Permanent Commission on the Status of Women (PCSW) . . . .”), and to her therapist, pastor, ...


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