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Mateo v. Nestle Waters North America, Inc.

United States District Court, D. New Jersey

April 16, 2018

MILKO V. MATEO, Plaintiff,



         Plaintiff 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.

         I. BACKGROUND[1]

         A. Factual History

         Plaintiff 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).

         i. Mr. Mateo Starts Working at NWNA's Distribution Center

         Mr. 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 ¶ 4).

         NWNA 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).

         ii. Mr. Mateo Alleges Initial Harassment

         Mr. 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 ¶¶ 5-6).

         According 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).

         Mr. 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).

         Mr. 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).

         Mr. 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 Dep. 25:19-24).

         iii. February 2013 Knife incident with Mr. Martinez

         Mr. 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).

         Mr. 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).

         NWNA 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, 10).

         iv. Alleged Harassment From Mr. Garcia

         Mr. 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).

         v. Mr. Salvador Leaves NWNA

         According 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.

         vi. Mr. Mateo Reports Alleged Harassment

         Mr. 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).

         Mr. 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).

         Mr. 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).

         Setting 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).

         Mr. 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 ¶I3).

         NWNA 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).

         NWNA 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.

         Second, 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 ¶ 49a).

         vii. Annual Harassment Training

         Ms. 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).

         According 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 ¶ 27).

         viii. July 2013 Fan Incident with Mr. Garcia

         On July 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).

         According 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 ¶ 34).

         According 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).

         Mr. 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).

         Mr. 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 ¶¶ 23, 29).

         Mr. 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).

         Ms. 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.

         (PSF ¶ 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).

         ix. Mr. Mateo Appeals the July 2013 Final Written Warning

         Mr. 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).

         According 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).

         Mr. 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, 30:24-31:3).

         NWNA denied Mr. Mateo's appeal of the July 22, 2013 final written warning. (DSF ¶ 35; PRDSF ¶ 35).

         x. Mr. Mateo Alleges Meeting with Ms. Fenton and Mr. Palin

         According 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).

         xi. August 2013 ...

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