United States District Court, D. New Jersey
MILKO V. MATEO, Plaintiff,
NESTLE WATERS NORTH AMERICA, INC., Defendant.
MCNULTY, UNITED STATES DISTRICT JUDGE.
Milko Mateo sues defendant Nestle Waters North America under
Title VII and the New Jersey Law Against Discrimination based
on allegations of discrimination, a hostile work environment,
and retaliation. The defendant's motion for summary
judgment (ECF no. 78) is now before the court.
Milko Mateo ("Mr. Mateo") is a thirty-six-year-old
man originally from the Dominican Republic. (PSF ¶ 1;
DRPSF ¶ 1). Mr. Mateo worked at a Nestle Waters North
America Inc. ("NWNA") distribution center in
Kearny, New Jersey from around May 2012 until he was
terminated on September 3, 2013. (DSF ¶¶ 1-3, 40;
PRDSF ¶¶ 1-3, 40). Mr. Mateo describes himself as
gay or bisexual. (PSF ¶ 3). Mr. Mateo alleges that he
was discriminated against on the basis of sex, gender
stereotypes, and sexual orientation, experienced a hostile
work environment, and was terminated by NWNA in retaliation
for raising allegations of harassment. (ECF No. 25).
Mr. Mateo Starts Working at NWNA's Distribution
Mateo started working at the NWNA distribution center in
Kearny, New Jersey around May 2012. (DSF ¶¶ 1-3;
PRDSF ¶¶ 1-3). He was initially assigned by a
staffing Firm, On Target, to work as a forklift operator.
(DSF ¶ 3); PRDSF ¶ 3). NWNA directly hired Mr.
Mateo as a part-time forklift operator around October 2012;
they later hired him full-time. (DSF ¶ 4; PRDSF ¶
provided Mr. Mateo with a copy of NWNA's harassment and
retention policy at the start of his employment. (DSF ¶
5; PRDSF ¶ 5; ECF No. 78-7, ex. A). NWNA's policy
prohibits harassment and retaliation in the workplace on the
basis of sex and sexual orientation. (DSF ¶ 5; PRDSF
¶ 5; ECF No. 78-7, ex. A). Mr. Mateo also attended
harassment training with Christie Fenton, NWNA's Area
Human Resource Manager. (DSF ¶ 5; PRDSF ¶ 5). The
training communicated that Mr. Mateo was "supposed to
speak to [his] manager of human resources" if he had any
complaints. (DSF ¶ 6; PRDSF ¶ 6). NWNA states it
conducts annual harassment training for all its workers. (DSF
¶ 7; PRDSF ¶ 7). This training includes a
PowerPoint presentation, a video, a review of the
anti-harassment policy and a quiz. (DSF ¶ 7; PRDSF
¶ 7). It lasts approximately thirty to thirty-five
minutes. (Fenton Dep. 17:13-22).
Mr. Mateo Alleges Initial Harassment
Mateo reports that, at first, he had a good working
relationship with his supervisor and coworkers. (PSF ¶
7). However, Mr. Mateo states that "all of the guys,
" including his supervisor, Pedro Rodriguez, made
anti-gay remarks in his presence. (PSF ¶¶ 4-6). The
employees who allegedly made anti-gay remarks include Wascar
Benton Garcia, Luis Martinez, Steven Salvador, Troy DeBerry,
Willie Grant, Michael Bocofobia, and Angel Hernandez. (PSF
to Mr. Mateo, Mr. Salvador made anti-gay comments and
physically touched him on several occasions. Mr. Mateo claims
that Mr. Salvador would, on a regular basis, refer to Mr.
Mateo as "my woman" or "that's one of
mine." (Mateo Dep. 24:4-16). Mr. Salvador allegedly
would touch Mr. Mateo's nipples and say, "you want
to suck my dick." (Mateo Dep. 24:16-18). Mr. Salvador
allegedly told Mr. Mateo, "I really like the way those
shorts look on you, " "spread [your] legs, "
and, "it doesn't matter who's giving up the ass,
as long as they were fucking." (Mateo Dep. 24:19-20; ECF
No. 83-1, ex. I). Mr. Salvador allegedly asked Mr. Mateo to
help him "relieve his frustration in an empty
truck" and also called Mr. Mateo a
"cocksucker." (ECF No. 83-1, ex. I). According to
Mr. Mateo, Mr. Salvador made these comments for several
months. (Mateo Dep. 24:12-25:2).
Mateo alleges that Mr. Salvador made these comments in front
of Mr. Rodriguez, his supervisor, and Mr. Martinez. (Mateo
Dep. 25:3-16). Mr. Salvador allegedly started yelling at Mr.
Mateo, "you are mine" and "I will slap
you" in Spanish, in front of Mr. Rodriguez and Mr.
Martinez. (Mateo Dep. 25:3-16).
Mateo produced a document, allegedly from the summer of 2012,
which details these allegations about Mr. Garcia. (ECF No.
83-1, ex. I). It is unclear whether this document was
provided to Ms. Fenton or NWNA at the time. Mr. Mateo alleges
that he submitted written reports to NWNA. (PRDSF ¶ 29;
ECF No. 87-3, exs. I, J).
Mateo also claims that Mr. Martinez, on a regular basis,
would intentionally drive the forklift near him and step on
the gas so he would be exposed to fumes. (PSF ¶ 9; Mateo
February 2013 Knife incident with Mr. Martinez
Mateo alleges that Mr. Martinez threatened him with knives
around February 2013. (PSF ¶ 10). Mr. Mateo allegedly
walked into the lunchroom and saw Mr. Martinez standing five
or ten feet away with two large knives. (PSF ¶ 10). Mr.
Martinez allegedly said, "let's kill each
other" and threw a knife at him; Mr. Mateo did not have
a knife on him. (PSF ¶ 10). According to Mr. Mateo, his
supervisor, Mr. Rodriguez, walked into the lunchroom; Mr.
Martinez threw a knife in Mr. Rodriguez's hand and said,
"let's kill each other." (PSF ¶ 10). Mr.
Martinez then allegedly said, "I can't find anyone
that wants to kill themselves with me." (PSF ¶ 10).
Mateo says he did not report the February 2013 knife incident
to anyone at that time. (PSF ¶ 10). Nonetheless, Mr.
Mateo's supervisor, Mr. Rodriguez, allegedly witnessed
part of the incident. (PSF ¶ 10).
claims that Mr. Martinez "never said anything to [Mr.
Mateo] of a sexual nature" during the knife incident and
Mr. Mateo "did not document ... a single instance of Mr.
Martinez telling an anti-gay joke." (DRPSF ¶ 10).
Mr. Mateo, however, states that Mr. Martinez regularly made
anti-gay comments in his presence. (PSF ¶¶ 5-6,
Alleged Harassment From Mr. Garcia
Mateo alleges that Wascar Garcia, a coworker, made repeated
harassing comments about his sexual orientation. (PSF ¶
11). According to Mr. Mateo, Mr. Garcia came "right in
front of my face" and said, "you're gay."
(PSF ¶ 11). Mr. Garcia also allegedly called Mr. Mateo
"batty boy, " said to be a Jamaican derogatory term
for a gay man. (PSF ¶ 11; DSF ¶ 27). According to
Mr. Mateo, Mr. Garcia would frequently sing songs about
"batty boys" when Mr. Mateo walked into the
lunchroom; Mr. Garcia allegedly looked directly at Mr. Mateo
when he was singing the songs. (PSF ¶ 11; Mateo Dep.
28:18-29:15, 30:2-6). Mr. Mateo claims he had to stop sitting
with his coworkers in the lunchroom because of this behavior.
(PSF ¶ 12b).
Mr. Salvador Leaves NWNA
to NWNA, Mr. Salvador's employment with NWNA ended on
March 15, 2013. (DSF ¶ 32). NWNA does not state why Mr.
Salvador no longer works for the company. Mr. Mateo recalls,
"I was told it was medical reasons, but I really
don't know why." (Mateo Dep. 26:6 11). Ms. Fen ton
stated, "I believe it had something to do with, like,
him not returning after calling out of work a couple days of
sick." (Fenton Dep. 69:9 17). I will assume, at least
for the purpose of this motion, that Mr. Salvador's
conduct toward Mr. Mateo does not relate to Mr.
Salvador's leaving NWNA.
Mr. Mateo Reports Alleged Harassment
Mateo reported anti-gay harassment to Ms. Fenton, NWNA's
Area Human Resources Manager, around early July 2013. (DSF
¶¶ 5, 14; PRDSF ¶ 14; Mateo Dep. 29:16-30:9,
30:24-31:3). Ms. Fenton testified that Mr. Mateo asked,
"What do I need to do to file a complaint?" (PSF
¶ 33; DRPSF ¶ 33).
Mateo told Ms. Fenton that he was being harassed because of
his sexual orientation. (PSF ¶ 34c). Ms. Fenton recalls
that Mr. Mateo mentioned that "he felt uncomfortable
based on jokes and looks that he had been given" and
reported the February 2013 knife incident with Mr. Martinez.
(PSF ¶ 34b). Ms. Fenton testified that "did not
mention anything about that [specific incident] having to do
with his sexual orientation whatsoever that I recall."
(PSF ¶ 34c). According to Mr. Mateo, Ms. Fenton asked,
"How did Wascar [Garcia] find out [about your sexual
orientation]?" (Mateo Dep. 30:7-12). Mr. Mateo claims
that Ms. Fenton said "don't tell me" about the
knife incident "because now I have to open an
investigation." (PSF ¶ 18a).
Mateo claims reported Mr. Salvador's comments and actions
toward him at this time, including the requests for sexual
favors. (PSF ¶ 34c). The parties dispute the issue of
when Mr. Mateo reported the comments about Mr. Salvador to
Ms. Fenton: NWNA and Ms. Fenton claim Mr. Mateo first
reported these comments in July 2013; Mr. Mateo claims that
he reported these comments earlier. (Mateo Dep. 30:24-31:3).
Mr. Mateo presents documents purporting to be written
allegations of harassment in the summer of 2012. (ECFNo.
87-1, exs. I, J).
aside the issue of the date, Ms. Fenton testified that Mr.
Salvador's alleged comments did not relate to Mr.
Mateo's sexual orientation as such. Ms. Fenton testified
that Stephen Salvador "asked [Mr. Mateo] for sexual
favors, something along those lines, not to do with Milko[
Mateo]'s sexual orientation, but that gentleman had
approached him regarding sexual favors." (PSF ¶
34c; DRPSF ¶ 34c).
Mateo asked Ms. Fenton to keep the conversation confidential;
Ms. Fenton agreed. (DSF ¶¶ 16-17; PRSF ¶¶
16-17). Mr. Mateo said he wanted to keep the conversation
confidential because he was afraid of losing his job. (PSF
and Ms. Fenton provide unclear and conflicting explanations
of the company's response to Mr. Mateo's allegations.
First, NWNA states that it did not investigate Mr.
Mateo's allegations of harassment because he requested
confidentiality. NWNA alleges that, without a request for
confidentiality, the typical response to a harassment
complaint is an immediate investigation followed by
appropriate discipline. (DSF ¶ 18).
cites, as an example, a separate incident when it allegedly
issued a final written warning to a male customer service
representative for, in part, indicating that a male coworker
"looked like a homosexual, with his long hair and nose
ring." (DSF ¶ 18). NWNA cites a Report of
Performance Problem Resolution ("RPPR") (ECF No.
78-7, ex. G) in support of this claim. This RPPR, however,
makes no mention of sexual orientation or specific derogatory
language. It merely states that the employee had
"[s]everal instances of inappropriate conduct in
violation of NWNA's harassment policy" and that
"[d]eragatory language/comments and distracting
behavior" were displayed. (ECF No. 78-7, ex. G). While
it refers to harassing language and behavior, there is no
indication that these were motivated by sexual orientation.
Ms. Fenton claims that NWNA did not investigate Mr.
Mateo's complaints because Mr. Mateo "failed to
raise any specific allegations." (DRPSF ¶ 49a). Ms.
Fenton states that NWNA cannot accommodate requests for
confidentiality; NWNA's policy is to investigate all
complaints of harassment. (PSF ¶ 49b; DRPSF ¶ 49b).
Ms. Fenton testified that Mr. Mateo "refused" to
provide her specifics or share witness's names. (DRPSF
Annual Harassment Training
Fenton conducted NWNA's annual harassment awareness
training on July 11, 2013. (DSF ¶ 20; PRDSF ¶ 20).
NWNA claims that the training was done in response to Mr.
Mateo's allegations, but also states that it was
"NWNA's annual harassment awareness training."
(DSF ¶ 20; PRDSF ¶ 20; Fenton Dep. 15:20-16:9). Mr.
Mateo did not attend the session because he was sick and
absent from work. (DSF ¶ 20; PRDSF ¶ 20). Mr.
Garcia was in attendance. (DSF ¶ 20; PRDSF ¶ 20).
to NWNA, Mr. Mateo never heard another anti-gay remark or
joke in the workplace after the annual training. (DSF ¶
21; PRDSF ¶ 21). Mr. Mateo alleges, however, that he
continued to receive threats of physical harm from Mr. Garcia
and Mr. Martinez. (PRDSF ¶ 21). Moreover, as noted
below, NWNA admits that Mr. Garcia used a derogatory term for
gay males in the workplace six days after the training. (DSF
July 2013 Fan Incident with Mr. Garcia
17, 2013, six days of the annual harassment awareness
training, Mr. Mateo and Mr. Garcia engaged in an argument
over the placement of fans in the warehouse. (DSF ¶ 22;
PRDSF ¶ 22).
to NWNA, Mr. Mateo and Mr. Garcia made inappropriate remarks
to each other, used profanity, and had to be separated by
another employee. (DSF ¶ 25). NWNA claims that Mr. Mateo
instigated the incident. NWNA reports an eyewitness stating
that Mr. Mateo called Mr. Garcia a "pussy." (DSF
to Mr. Mateo, Mr. Garcia instigated the incident. (PSF ¶
15). Mr. Garcia allegedly started yelling, "I don't
like you, I can't stand you, I need the fan in the back
.... I don't want to have to f- you up .... [W]ait until
we get out of the warehouse, I'm going to f- you
up." (PSF ¶ 15). Mr. Mateo admits telling Mr.
Garcia "let's go outside" to fight. (DSF ¶
22; PRDSF ¶ 22). Mr. Mateo denies calling Mr. Garcia a
"pussy." (Mateo Dep. 40:19-20).
Garcia admitted to singing a song containing the term
"batty boy, " a Jamaican derogatory phrase for a
gay male, during this incident. (DSF ¶ 27). He allegedly
called Mr. Mateo "batty boy" on several occasions.
(Mateo Dep. 28:18-29:15, 30:2-6). The RPPR form for the July
2013 fan incident states: "Wascar [Garcia] admits to
singing a song that contains an inappropriate terms which was
considered offensive by another team member as it relates to
gender orientation. This type of behavior is a violation of
our ... harassment policy." (ECF No. 78-7, ex. H).
Mateo allegedly reported the incident to his supervisor, Mr.
Rodriguez. (PRDSF ¶ 22). NWNA claims that Mr. Mario
Valenti, an HR generalist with NWNA, investigated the
incident and interviewed eyewitnesses. (DSF ¶¶
23-25). Mr. Valenti testified that he thought Mr.
Garcia's use of the term "batty boy" was
"not appropriate, " but "didn't feel that
[Mr. Garcia] was doing it intentionally toward Milko
[Mateo]." (PSF ¶¶ 23, 29; DRPSF ¶¶
Valenti recommended that Mr. Mateo and Mr. Garcia receive
final written warnings. (DSF ¶ 26; PRDSF ¶ 26). Mr.
Mateo and Mr. Garcia received these written warnings, dated
July 22, 2013. (DSF ¶ 26; PRDSF ¶ 26; ECF No. 78-7,
ex. H). Mr. Mateo alleges that he was "pressured"
to sign the final written warning by Mr. Valenti and Mr. Alex
Auld, even though Mr. Mateo disputed the description of the
incident. (Mateo Dep. 44:5-24).
Fenton was asked whether she was concerned that "only
six days later [after the training] there was an incident
between [Mr. Garcia] and [Mr. Mateo] again?" (PSF ¶
52c; DRPSF ¶ 52c). Ms. Fenton stated:
I certainly can't control actions people take after
training that I've obviously rolled out. What people
choose to do is their own prerogative. So I can't
necessarily say the two are related. If somebody doesn't
take the training for how I roll it out, you know, obviously
there's consequences for that.
¶ 52c; DRPSF ¶ 52c). Regarding the period after the
time clock incident, Ms. Fenton said, "I don't see
him asking us to investigate any specific incident ...
there's nothing here specifically for me to have
investigated." (PSF ¶ 57b; DRPSF ¶ 57b).
Mr. Mateo Appeals the July 2013 Final Written
Mateo appealed the July 22, 2013 final written warning. (DSF
¶ 28; PRDSF ¶ 28). The parties disagree about
whether this was the first time Mr. Mateo mentioned that he
was subject to inappropriate conduct as a result of his
sexual orientation. (DSF ¶ 29; PRDSF ¶ 29).
to NWNA, Mr. Mateo first alleged that he was harassed because
of his sexual orientation during the appeal of the July 2013
final written warning. (DSF ¶ 29). NWNA alleges that Mr.
Mateo "never advised anyone at NWNA that he was
gay" until about July 27, 2013. (DSF ¶ 31). NWNA
states that Mr. Mateo's appeal of the July 2013 warning
was the first time he reported Mr. Salvador's request for
sexual favors, that Mr. Martinez had threatened him with
knives, and that Mr. Martinez would step on the gas of the
forklift so Mr. Mateo would breathe in fumes. (DSF ¶ 29;
PRDSF ¶ 29).
Mateo responds that, regardless of whether he "had
issued a 'statement' that he was gay, " "he
was openly treated as gay by fellow workers." (PRDSF
¶ 31). According to Mr. Mateo, the anti-gay harassment
was not presented for the first time on the appeal. Mr. Mateo
had allegedly submitted various written statements to NWNA,
and Mr, Rodriguez allegedly was present during part of the
February 2013 knife incident with Mr. Martinez. (PRDSF ¶
29). Mr. Mateo also states that he reported anti-gay
harassment to Ms. Fenton in early July 2013 before the fan
incident. (DSF ¶ 5, 14; Mateo Dep. 29:15-30:19,
denied Mr. Mateo's appeal of the July 22, 2013 final
written warning. (DSF ¶ 35; PRDSF ¶ 35).
Mr. Mateo Alleges Meeting with Ms. Fenton and Mr.
to Mr. Mateo, Ms. Fenton and Jeff Palin, an NWNA employee,
spoke to Mr. Mateo on August 19, 2013 about the actions of
Mr. Garcia and Mr. Martinez's actions. Ms. Fenton and Mr.
Palin allegedly said they "can't have this
continue." (PSF ¶ 21).
August 2013 ...