Hubert v. Callender

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Sharone Hubert (“Plaintiff”) has sued Lieutenant Cicero Callender (“Lt. Callender” or “Defendant”) under 42 U.S.C. § 1983 for allegedly creating a hostile work environment.

         Lt. Callender has moved for summary judgment.

         For the following reasons, Lt. Callender's motion for summary judgment is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         Since 1999, Sharone Hubert has worked for the Connecticut Department of Correction. Def. SMF ¶ 1-2. In her Complaint, Ms. Hubert has alleged having experienced sexual harassment, sexual assault, and race-and gender-based discrimination at the Department of Correction. Compl. ¶ 34.

         Her original lawsuit alleged claims against Lieutenant Cicero Callender, the Department of Correction, and three other correctional officers. Lt. Callender, a supervisor at Cheshire Correctional Institution from 2009 to 2014, is the only remaining defendant. Pl. Opp. to Mot. to Dismiss - App. E Callender Deposition, ECF No. 72-17 at 7:13-22 (May 20, 2019) (“Hubert Dep.”).

         Ms. Hubert alleges a series of actions by Lt. Callender over a period of years. First, Lt. Callender allegedly sent Ms. Hubert a text message calling her sexy and asking her when she was “going to make it happen” in 2011 or 2012. Id. at 69:6-24. Second, Lt. Callender allegedly asked Ms. Hubert for a hug four to five times between 2010 and 2014. Id. at 11:10-13. Third, Lt. Callender allegedly did not permit Ms. Hubert to change her soiled underwear in one instance in 2014. Id. at 13:24-18-21. Fourth, Lt. Callender also allegedly marked Ms. Hubert late to roll call on May 17, 2014, after she had told Lt. Callender that she was going to use the bathroom before roll call. Id. at 93:3-16. Finally, Ms. Hubert alleges that Lt. Callender sent another correctional officer and a provisional lieutenant to bang on the bathroom door at one point while Ms. Hubert was using the restroom to change her menstrual pads. Id. at 18:9-20.

         Lt. Callender denies sending officers to knock on the bathroom door while she was using it, Hubert Dep. at 25:10-19, and denies soliciting sex, asking for hugs, or asking when they were going to hook-up, id. at 17:14-18:14.

         While Ms. Hubert was assigned to work at Cheshire Correctional Institution, between 2009 and 2014, Lt. Callender was one of her supervisors. Id. at 8:3-6. While at Hartford Correctional Center, she was promoted to Lieutenant on September 11, 2009 and then demoted nine months later. Pl. SMF ¶ 6.

         Between January 29, 2010 and December 1, 2010, Ms. Hubert was on leave from the Connecticut Department of Correction. Def. SMF ¶ 6.

         Ms. Hubert resumed working at Cheshire Correctional Institution in December 2010. Def. SMF ¶ 7; Pl. SMF ¶ 7. Ms. Hubert and Lt. Callender worked the third shift at Cheshire Correctional Institution from December 2, 2010 to October 31, 2011. Def. SMF ¶ 16. On October 31, 2011, Ms. Hubert transferred from the third shift to the first shift, 6:45 a.m. to 3:00 p.m. Id. ¶ 18.

         Ms. Hubert again was on leave from work from December 27, 2011 until March 23, 2012.

         She returned to work at Cheshire Correctional Institution from March 23, 2012 to March 27, 2012. Def. SMF ¶ 8-9, but again went on leave from March 28, 2012 to January 21, 2013, Pl. SMF ¶ 10. After her return, she again worked the third shift with Lt. Callender for a period of time. Def. SMF ¶¶ 11, 19.

         In May 2013, Lt. Callender evaluated Ms. Hubert's work from September 11, 2010 to August 31, 2011. Def. SMF ¶ 21. He rated her work satisfactory. Id. This was the only formal job evaluation of Ms. Hubert that Lt. Callender completed. Id. ¶ 22.

         On January 3, 2014, Ms. Hubert allegedly was approximately forty-five minutes late for roll call at Cheshire Correctional Institution. Id. ¶ 24. Lt. Callender claims that Ms. Hubert did not challenge being marked late on this day, but Ms. Hubert claims she was late because of inclement weather and received a late slip, which the warden voided. Pl. SMF ¶ 25.

         On May 17, 2014, Ms. Hubert again was allegedly late for roll call. Def. SMF ¶ 26. That same day, Ms. Hubert allegedly received a formal counseling for her late attendance on May 17 and January 3. Def. SMF ¶ 27. Ms. Hubert denies this. Pl. SMF ¶ 27. Lt. Callender, however, submitted a copy of the May 17 formal counseling. Def. SMF ¶ 28; Mot. for Summ. J. - Ex. A, ECF No. 63-4 at 9 (Apr. 12, 2019).

         Ms. Hubert challenged the May 17 formal counseling. Def. SMF ¶ 29. Ms. Hubert allegedly arrived at work early and informed Lieutenant Stewart that she needed to use the bathroom. Pl. SMF ¶ 25. Lieutenant Stewart allegedly gave Ms. Hubert permission. Id. She allegedly asked Lt. Stewart to let Lt. Callender know that she was in the building. Id. ¶ 29. Ms. Hubert allegedly had previously told Lt. Callender that she has “a medical problem that cause[s] her to hemorrhage heavily during her menstrual cycle” which required changing her menstrual pads every three hours. Id. Ms. Hubert, however, does not state when she communicated this to Lt. Callender. Id.

         On May 19, 2014, Ms. Hubert allegedly informed a lieutenant that she needed to use the bathroom and would not be at roll call. Def. SMF ¶ 30.

         On May 23, 2014, Ms. Hubert allegedly gave the Human Resources department a medical note that stated she had a “gyn condition” that required her “to use the bathroom/restroom to properly change her feminine products up to every three (3) hours as needed.” Id. ¶ 31; Mot. for Summ. J. - Ex. B, ECF No. 63-4 at 10 (Apr. 12, 2019). Ms. Hubert previously submitted a doctor's note to the Department of Correction explaining the same condition. Pl. ¶ 31.

         Captain Bryan Viger completed an investigation of the May 2014 incidents. He reviewed the NICE Vision system at Cheshire Correctional Institution from May 16-19, 2014. Def. SMF ¶ 35. The report determined that Ms. Hubert was late on May 16, 2014, although she reported it as May 17, 2014). Def. SMF ¶ 37; Mot. for Summary Judgment - Exhibit D, ECF No. 63-4 at 14 (Apr. 12, 2019). She allegedly entered the facility after the lieutenants entered the roll call room. Id. In the video, Ms. Hubert allegedly does not stop at the bathroom or anywhere after entering the front lobby. Id. Ms. Hubert objects, finding the investigation inadequate and that “[a] proper and complete investigation would consist of following her from the moment she left home, until she pulled up into the front parking lot.” Pl. SMF ¶ 37. Ms. Hubert allegedly was not interviewed for the report. Id.

         On June 8, 2014, Ms. Hubert allegedly asked Lt. Callender to be relieved from her post to change her feminine hygiene pad in a bathroom located “off the lunchroom rather than the bathroom located at her post.” Def. SMF ¶ 40. Lt. Callender allegedly asked why she could not use the bathroom at her post because it was inconvenient to relieve her from her post just to use a different bathroom. Def. SMF ¶ 41. Ms. Hubert allegedly explained that the bathroom in question had no privacy because it “had very thin walls” and bathroom users could be heard in nearby rooms. Pl. SMF ¶ 40. She allegedly was uncomfortable using “a bathroom that could be open[ed] with any key, and where her coworkers could violate her privacy.” Id. Lt. Callender allegedly asked why she could not use the bathroom at her post because it was inconvenient to relieve her from her post just to use a different bathroom. Def. SMF ¶ 41.

         Lt. Callender nevertheless allegedly sent an officer to relieve Ms. Hubert of her post, enabling to use her preferred bathroom. Def. SMF ¶ 42. Ms. Hubert alleges that Lt. Callender was never accommodating to her requests and at one point called her an inconvenience. Pl. SMF ¶ 42.

         After June 12, 2014, upon his transfer to the Manson Youth Institution, Lt. Callender allegedly never worked with Ms. Hubert again. Def. SMF ¶¶ 15, 20.

         B. Procedural History

         On February 16, 2017, Sharone Hubert and Etienne Hubert (“Plaintiffs”) filed a Complaint alleging claims under 42 U.S.C. §§ 1981, 1983, 1988, as well as for negligent infliction of emotional distress, and for a loss of consortium. Complaint, ECF No. 1 (Feb. 16, 2017) (“Compl.”).

         On March 22, 2018, Plaintiffs filed an Amended Complaint against all Defendants. First Amended Complaint, ECF No. 15 (Mar. ...