United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE
Hubert (“Plaintiff”) has sued Lieutenant Cicero
Callender (“Lt. Callender” or
“Defendant”) under 42 U.S.C. § 1983 for
allegedly creating a hostile work environment.
Callender has moved for summary judgment.
following reasons, Lt. Callender's motion for summary
judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
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. ¶
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.”).
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.
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.
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.
January 29, 2010 and December 1, 2010, Ms. Hubert was on
leave from the Connecticut Department of Correction. Def. SMF
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.
Hubert again was on leave from work from December 27, 2011
until March 23, 2012.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
June 12, 2014, upon his transfer to the Manson Youth
Institution, Lt. Callender allegedly never worked with Ms.
Hubert again. Def. SMF ¶¶ 15, 20.
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)
March 22, 2018, Plaintiffs filed an Amended Complaint against
all Defendants. First Amended Complaint, ECF No. 15 (Mar. ...