In re Mateo

• Decision Date: 16 April 2018
• Docket Number: Civ. No. 2:13-cv-7270-KM-MAH
• Parties: MILKO V. MATEO, Plaintiff, v. NESTLE WATERS NORTH AMERICA, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

MILKO V. MATEO, Plaintiff, v. NESTLE WATERS NORTH AMERICA, INC., Defendant.

Civ. No. 2:13-cv-7270-KM-MAH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

April 16, 2018

OPINION

KEVIN MCNULTY, U.S.D.J.:

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. BACKGROUND¹

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. Fenton 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 reportedthese 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. (ECF No. 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 ¶ 13).

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...