By Harold S. Berman J.D.
A gay employee who was subjected to sustained verbal abuse and touching from coworkers and his supervisor, and was then terminated over an altercation with a coworker, can proceed with his Title VII hostile work environment, discrimination, and retaliation claims, a federal district court in New Jersey ruled. Denying Nestle’s summary judgment motion, the court found that a reasonable jury could conclude the employee suffered severe and pervasive harassment based on his coworkers’ and supervisor’s conduct. Nestle also retained two heterosexual employees who engaged in the same altercations for which it fired the employee shortly after he complained of harassment (Mateo v. Nestle Waters North America, Inc., April 16, 2018, McNulty, K.).
Objectionable behavior. The employee, who worked at a Nestle Waters distribution facility, described himself as gay or bisexual. Shortly after he began, his supervisor and coworkers made anti-gay remarks in his presence. One coworker allegedly touched his nipples, and over several months, made particularly offensive remarks, referring to him as “my woman,” telling him to engage in sexual relations with him and touching his private parts, threatening physical violence, and calling him offensive names associated with his sexual orientation. The employee alleged the coworker made some of the remarks in front of his supervisor and another worker, and that yet another coworker threatened him with knives around February 2013. His supervisor witnessed the knife incident.
Harassment reported. The employee reported the alleged harassment to HR in July 2013, which Nestle claimed was his first complaint, although he produced documentation that he complained in the summer of 2012. The employee asked HR to keep his accusations confidential. There was conflicting evidence of Nestle’s response to the employee’s allegations, but Nestle apparently did not investigate. Nestle claimed the employee never heard another anti-gay remark after it conducted its annual anti-harassment training in July 2013. The employee, however, claimed he continued to receive physical threats and derogatory remarks from his coworkers.
Fan incident. Six days after the anti-harassment training, the employee and a coworker got into an argument over the placement of fans in the warehouse. Nestle claimed they both made inappropriate remarks and had to be physically separated, and that the employee instigated the incident. The employee claimed the coworker instigated the incident, and threatened him with physical harm. Nestle documented that the coworker used anti-gay language.
Both the employee and the coworker received final written warnings. The employee appealed, and he and Nestle disagreed over whether that was the first time the employee complained of inappropriate conduct due to his sexual orientation. Nestle claimed he had never before told anyone at Nestle he was gay, and the employee cited several previous instances either of him complaining of the conduct against him, or his supervisor witnessing some of the conduct. Nestle denied his appeal.
Time clock incident. The employee and a coworker had another altercation in August, this time concerning the use of the time clock. Nestle claimed the employee started the incident by using offensive language, while the employee claimed the opposite. Nestle then terminated the employee because of the final written warning. The coworker, however, was only issued a write-up. Nestle claimed this was consistent with its discipline policy, and that the employee had several other disciplinary issues around that time.
Nestle also contended that after it terminated the employee, it learned he had omitted or misrepresented on his employment application that he had been let go by several previous employers for performance or conduct issues.
The employee sued under Title VII and the New Jersey Law Against Discrimination, asserting claims for sexual orientation discrimination, sexual harassment and hostile work environment, and retaliation. Nestle moved for summary judgment.
Hostile work environment. The court denied summary judgment on the employee’s hostile work environment claim, concluding that a reasonable jury could find he suffered severe and pervasive harassment. Nestle’s claim that the employee did not report the harassment until July 2013 was not relevant to whether the conduct was severe and pervasive.
The employee also testified about several workplace incidents that could be considered severe and pervasive, such as coworkers’ repeated use of derogatory anti-gay terms, invitations to have sexual relations, and touching his nipples. Additionally, whether the employee instigated the fan and time clock incidents as Nestle claimed, or whether his coworkers did, as the employee claimed, was a credibility dispute that could not be resolved on summary judgment.
Nor could the court find on summary judgment whether Nestle was vicariously liable for the harassment. Nestle and the employee disputed material facts concerning vicarious liability, including when the employee first reported the harassment, and whether Nestle took prompt and adequate action. The employee alleged his supervisor both participated in and witnessed harassment, and so if the supervisor qualified as a management level employee, then Nestle could be deemed to know of the hostile work environment well before it claimed it first became aware of it in July 2013.
The court also could not find as a matter of law whether Nestle took prompt and adequate remedial action. Nestle offered several contradictory reasons why it did not investigate the employee’s initial complaints, including that he requested confidentiality, he didn’t raise specific allegations, and he didn’t report the allegations until later. It was unclear whether Nestle’s anti-harassment training was reasonably calculated to end the harassment, given that an incident occurred just six days after the training.
Additionally, Nestle did not satisfy the “Ellerth/Faragher” affirmative defense. The defense is available only when a supervisor creates a hostile work environment, and there was evidence that several coworkers participated. Nor is the defense available in the case of a tangible employment action, such as a termination.
Sex discrimination. The court rejected Nestle’s argument that the employee could not show discrimination because he was terminated for an altercation with a coworker. It was disputed whether the employee instigated both the fan and the time clock incidents, and he was terminated while there was an investigation ongoing concerning his final notice, which involved discrimination allegations. The employee also could show that Nestle’s proffered reason for firing him because of the altercation was pretextual, as there was evidence that other employees, who were not gay, were not fired for similar behavior. That another gay employee did not complain of harassment did not immunize Nestle from the employee’s specific harassment claims.
Retaliation. The court also rejected Nestle’s claim that the employee could show no causal connection between his complaint of harassment and his termination. In addition to the close temporal proximity between the employee’s harassment complaint in July and termination in September, the employee could point to the heterosexual employees who were not fired for similar behavior.
After-acquired evidence. There were substantial disagreements concerning whether the employee misrepresented his previous employment. Even if Nestle could establish resume fraud, the employee could still claim a Title VII backpay award, as well as damages for non-economic loss.
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