Salen v. Blackburn Building Services, LLC

Filing 69

ORDER denying 61 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 1/6/2017.(Ghosh, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MATTHEW SALEN,
Plaintiff,

:
:
:
v.
:
:
BLACKBURN BUILDING SERVICES, LLC :
Defendant.
:

Case No. 3:14-cv-01361-VAB

RULING ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Matthew Salen, brought this action against his former employer, Defendant
Blackburn Building Services, LLC (“Blackburn”). Mr. Salen asserts two causes of action against
Blackburn. The first and second counts of his Complaint allege that Defendant subjected him to a
hostile work environment. Compl. ECF No. 1, at pp. 16-19. He claims that this harassment
constituted discrimination against him on the basis of his sex in violation of the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §46a-51 et seq. and Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e et seq. Id. In the third and fourth counts, he
claims that Blackburn retaliated against him when he complained about the harassment, in violation
of the same statutes. Id. at 19-22. He requests compensatory and punitive damages as well as other
relief. Id. at 23.
Defendant moves for summary judgment on all of Mr. Salen’s claims. For the reasons that
follow, the motion is DENIED.

Factual Allegations1

I.

Blackburn, a family owned business, provides professional janitorial services in and around
Waterford, Connecticut. Def.’s L. R. 56(a) Stmt. ¶ 1. Blackburn hired Matthew Salen as an
Assistant Supervisor in November 2011. Id. at ¶ 2. Several days after he started working at
Blackburn, the Company promoted Mr. Salen to Supervisor because the original Supervisor did not
appear for work. Id. at ¶ 4.
Irene and Steven Blackburn are owners and executives at Blackburn. Def.’s L. R. 56(a) Stmt.
¶¶ 7-8. The Blackburns are married, and three of their sons—Andre, Gabriel, and Manny—are
relevant to this dispute. Id. at ¶¶ 7-10. Andre Blackburn served as Human Resources manager for
Blackburn during the relevant time period. Id. at ¶ 10. Abigail Blackburn is Manny Blackburn’s
wife and worked as Marketing Manager for the Company. Id. at ¶ 9. Jorge Rodriguez, Maritza Soto,
Brad Piscatelli and Ray Erazo worked as Supervisors for the Company. Id. at ¶¶ 13-15. Gabriel
Blackburn assisted the company while Mr. Salen was employed there, but was not a Blackburn
employee and rather worked full-time for the State of Connecticut. Compl. ¶ 35.
Andre Blackburn was away from work in April and May of 2013. Compl. ¶ 11. During his
absence, a number of people shared human resources responsibilities, including Abigail Blackburn,
Irene Blackburn and Jorge Rodriguez. Def.’s L.R. 56(a) Stmt. ¶ 25. The parties dispute the
relationship between Mr. Salen and Mr. Rodriguez. Defendants assert that the two were equal in
authority, see id. at ¶ 66, while Mr. Salen claims that the two “were the same, or [Salen] was a little
bit below” in “terms of the order of authority at the company.” See Pl.’s L.R. 56(a) Stmt. ¶ 66, citing
Def.’s Mot., ECF No. 62-1, Appendix, Salen Dep. 83:5-8 (hereinafter “Salen Dep”).

1

The relevant facts are taken from defendants’ Local Rule 56(a)(1) Statement and Exhibits attached to the Local
Rule 56(a)1 Statement, ECF No. 62, and the plaintiff’s Local Rule 56(a)(2) Statement, ECF No. 65. See D. Conn. L.
Civ. R. 56(a).

2

a. The April 10, 2013 Incident
At around 5:00 p.m. on April 10, 2013, while Andre Blackburn and Mr. Salen were working
in Blackburn’s Waterford office, Andre Blackburn asked Mr. Salen to hang a poster on the wall of a
conference room. Def.’s L. R. 56(a) Stmt. ¶ 20. Mr. Salen stood on a chair to hang the poster. Id.
While Mr. Salen was doing so, Mr. Blackburn put his arms around Mr. Salen's waist for several
seconds. Id. at ¶ ¶ 21-44. During his deposition, Mr. Salen stated that Andre Blackburn put his
hands on Mr. Salen’s penis for two seconds while Mr. Salen was standing on the chair. Id. at ¶ 23. At
this point, Mr. Salen said, Mr. Blackburn was behind Mr. Salen, so that his face was touching Salen’s
“crack.” Id. Salen Dep. 137: 10-11. See also Compl. ¶ 24 (“Mr. Blackburn was behind the chair the
Plaintiff was standing on and Mr. Blackburn grabbed the Plaintiff from behind and wrapped his arms
around his lower waist near his genital region, and in the same motion Mr. Blackburn placed his face
in the Plaintiffs buttocks.”). At this point, Mr. Salen stated that he “jumped off the chair and damn
near ripped [Andre Blackburn’s] face off.” Salen Dep. 136:1-8.
In an e-mail response to an investigation about the incident, Andre Blackburn stated that he
“wanted to hold onto Matt’s waist just to make sure he was steady and would not fall” and that he
“first asked [Salen] if it was okay, to which he replied ‘yes.”’ Gabriel Blackburn Investigation
Report, 2, Pl.’s Opp. Mem, Ex. 10, ECF No. 65-23 (hereinafter “Gabriel Blackburn Investigation
Report”). No one directly witnessed the incident, but Martiza Soto, a Blackburn supervisor, “saw
Mr. Salen exit the office visibly upset” and Wilberto Santiago, night floor crew member, saw Mr.
Salen standing on the chair through the conference room window. Pl.’s Stmt. of Disp. Facts, ECF
No. 65-21, ¶ 3.
Mr. Salen occasionally worked with Andre Blackburn while employed at Blackburn. Def.’s
L. R. 56(a) Stmt. ¶ 6. Until April 2013, Mr. Salen testified that he had “no issues” with Andre
Blackburn. Id. See Salen Dep. 60:4-7. Mr. Blackburn is gay, and Mr. Salen admits to being
3

uncomfortable with gay people. Def.’s Stmt. ¶ 60; Def.’s Mot. for Summ. J., 5; Salen Dep. 13: 7-11
(“I have a problem when [homosexuals] try to touch me, when they try to play passes on me.”).
Shortly after the incident, Andre Blackburn took leave from the office for several months. Def.’s L.
R. 56(a) Stmt. ¶ 11. He did not return to work until July 2013, but communicated with Blackburn
employees, as well as Mr. Salen, by e-mail and text message.

b. Blackburn’s Response to the Incident
Mr. Salen felt uncomfortable after the incident and mentioned it to several Blackburn
officers. He first reported the incident to Jorge Rodriguez, his supervisor, on the evening of April
10th. Def.’s L. R. 56(a) Stmt. ¶ 24; Pl.’s L. R. 56(a) Stmt. Att. 1, ECF No. 65-1, Salen Aff., ¶ 3. He
reported the incident to Abigail Blackburn, who served as the Company’s interim Human Resources
Director, at some point one week later. Salen Aff. ¶ 7; Def.’s L.R. 56(a) Stmt. ¶ 26. On May 27,
2013, Abigail e-mailed the owners of the company, Irene and Steven Blackburn, to report Mr.
Salen’s complaints. See E-Mail Correspondence, 2, Pl.’s Opp. Mem., Ex. 12, ECF 65-11. In the email Abigail Blackburn summarized the story that Mr. Salen had told her.
She wrote that: “Andre asked Matt to hang something up for him. When Matt did this Andre
grabbed him around the waist and continued to hold on to him with his face near his rear. Andre
asked him ‘does this make you feel uncomfortable because if so I should not do it.’” Id. Her e-mail
also stated that Andre had called Mr. Salen and “stat[ed] to him that he was dying.” Id. She added
that Mr. Salen was “very uncomfortable and will continue to be … unless it is addressed.” Id. at 2-3.
Irene Blackburn responded to Abigail’s e-mail on June 13, proposing a disciplinary plan. Id. at 7.
Specifically, she suggested that Andre should “apologize to Matt” and that there would be a “note in
Andre’s file, as he never had an incident before or since, and anyone deserves a second chance.” Id.
In the e-mail correspondence, Abigail Blackburn called Irene Blackburn “Mom” and Irene called
Abigail Blackburn “Abby.” Id. at 2, 7.

4

Mr. Salen had also told Irene Blackburn about the incident at some point before June 2013.
Id. at 27-30. At this meeting, he told Irene Blackburn that he was “worried’ about Andre and
otherwise answered her questions about the encounter. Salen Dep. 225:21-227:7. He “complained
about physical touching to Abigail and Irene,” but did “not mention Andre touching his penis or
putting his face in Salen’s butt.” Id. at 29. At this meeting Irene Blackburn also asked Mr. Salen if
his job at Blackburn was “the best job [he’d] ever had.” Id. at 225: 15-18.
Irene Blackburn’s disciplinary proposal never came to fruition. The e-mail correspondence
in the record, as well as Plaintiff’s opposition brief, suggests that Abigail Blackburn prepared a report
for Andre Blackburn to sign and planned for him to “formally apologize” to Mr. Salen around June
18, 2013. See E-Mail Correspondence, Pl.’s Opp. Mem., Ex. 12; Pl.’s Opp. Mem., 5. On the day of
the interview, it was cancelled. Compl. ¶ 35.
Eventually, Gabriel Blackburn, who worked for the State of Connecticut and not for
Blackburn, conducted an investigation of the incident. Def.’s L.R. 56(a) Stmt. ¶ 30. At deposition,
Irene Blackburn stated that she asked Gabriel to conduct the investigation because “he owe[d her] big
time” and because he “ha[d] the skills,” since he is a Director of Human Resources. Id. at Appendix,
Irene Blackburn Dep. 66: 14-16. She clarified that Gabriel Blackburn did not owe her money, but
rather owed her a favor. Id. at 62: 6-8.
Gabriel Blackburn interviewed and took statements from several witnesses to the incident,
namely Mr. Salen, Wilberto Santiago, Jorge Rodriguez and Martiza Soto. Id. at ¶ ¶ 31-32. The
parties dispute whether Gabriel Blackburn interviewed every witness to the incident. Plaintiff
contends that Gabriel Blackburn did not interview Andre Blackburn, Irene Blackburn or Abigail
Blackburn. Pl.’s Stmt. of Disp. Facts, ECF No. 65-21, ¶ 6. Gabriel Blackburn’s report does contain
a statement that Andre Blackburn submitted by e-mail. See Gabriel Blackburn Investigation Report,
2.

5

As a component of his investigation, Gabriel Blackburn prepared a statement for Mr. Salen to
sign. See Def.’s L.R. 56(a) Stmt, Appendix, Gabriel Tr., at 27:6-20, see also Gabriel Blackburn
Investigation Report, 2. The signed statement given by the Plaintiff to the Defendant dated June 18,
2013 makes no mention of Andre Blackburn putting his face in the Mr. Salen’s buttocks or touching
Mr. Salen’s penis. See id. Rather, the statement says that the Plaintiff “was holding the sign and he
[Andre Blackburn] grabbed me by waist and the chair.” Id. Plaintiff admits that he signed the
statement but denies that his signature was given “by his own free will.” Pl.’s L.R. 56(a) Stmt. ¶ 33.
Mr. Salen admits that he did not tell Gabriel Blackburn during the interview that Andre Blackburn
had touched his penis or put his face in his “crack,” but said that he did not mention this because “it
was not asked.” Id. at ¶ 39, Salen Dep. 222: 17-22. Gabriel Blackburn’s investigation notes indicate
that Mr. Salen had said that he was “not filing any type of sexual harassment or anything but wanted
to report it because he felt uncomfortable and didn't want to lose his job over this incident.” See Pl.’s
Opp. Mem, Ex. 10, Blackburn Investigation Report, 2.
On July 23, 2013, Gabriel Blackburn issued a memorandum to Mr. Salen entitled “Closeout
notice and letter of expectation,” which concluded that: “There is no evidence to substantiate any
type of work rule or policy violation by Andre Blackburn. Matt [Salen] himself stated that he didn't
want to make a big deal about this and to report it. He acknowledges that he was not harassed.”
Gabriel Blackburn Investigation Report, 2; Def.’s L.R. 56(a) Stmt. ¶ 49. The letter thanked Mr.
Salen for bringing the matter to the attention of Jorge Rodriguez, which was “the proper channel to
communicate confidential issues related to coworkers.” Id. at ¶ 50.
Prior to filing the closeout notice, Gabriel Blackburn heard that Mr. Salen discussed the
incident with Maritza Soto and Wilberto Santiago, two of his co-workers. Def.’s L.R. 56(a) Stmt. ¶
53. Mr. Blackburn indicated in the July 23, 2013 letter that he had learned that Mr. Salen had shared
the information about his complaint with co-workers who had “no business being involved.” Id. at
6

Appendix, Ex. 5, Closeout Notice. He noted that the memorandum would serve as a “letter of
expectation” that the Plaintiff would not do this in future incidents. Id. The parties dispute whether
the letter was disciplinary in nature. Compare Pl.’s L. R. 56(a) Stmt. ¶ 57 and Def.’s L.R. 56(a)
Stmt. ¶ 57.
Mr. Salen had been “counseled or coached” on the need for confidentiality on three occasions
beforehand. Def.’s L.R. 56(a) Stmt. ¶ 54. See also Salen Dep. 110:6-19. On one of these occasions,
Mr. Salen suggested in a Facebook posting that he had seen a person steal a toothbrush. Pl.’s Opp.
Mem., 3, citing id. at Ex. 8, ECF No. 65-10, January 26, 2012 Memorandum. In the second instance,
Mr. Salen asked another supervisor about his recent drug test. Id.
Around the time of the “letter of expectation,” Mr. Salen received a raise from $14.25 per
hour to $14.50. Def.’s L.R. 56(a) Stmt. ¶ 59. The record does not establish conclusively why Mr.
Salen received a raise. Andre Blackburn testified that he didn’t “determine solely who hands out
money” and did not participate in the decision to give Mr. Salen a raise. Def.’s L.R. 56(a) Stmt.
Appendix, Andre Blackburn Dep. 124: 6-16 (hereinafter “Andre Blackburn Dep.”).

c. Blackburn’s Sexual Harassment Policy
Blackburn’s Employee Handbook includes a sexual harassment policy that states that it is
“against the policies of the Company for any employee of the company, for an employee of the
Company, male or female, to harass another employee sexually, that is, by making unwelcome
sexual advances, sexual favors or other uninvited verbal or physical conduct of a sexual nature.”
Salen Aff., Ex. 4, ECF 65-6, Employee Handbook, pp. 10-11. The Handbook also sets out a
complaint procedure. Id. at 11. Under the Handbook, an employee should “initiate a complaint with
the senior manager [designated to handle workplace harassment complaints] as soon as possible.” Id.
The Handbook explains that the Senior Manager will then:

7

promptly have a confidential preliminary investigation made into the matter. If, after
the completion of this preliminary investigation, it is determined that there is cause
for finding a violation of this policy, the Company will notify the complainant and
the charged of the finding, orally. The charged employee will be requested to
respond to the complaint. … After the response of the charged employee has been
made, and any further investigation that is warranted has been carried out, the
Company will make a final decision. If the Company finds that the allegations in the
complaint have been established by the investigation, the Company will initiate
discipline [that is] appropriate to the offense and the employees involved and may
include discharge.
Id. at 11. The record does not establish whether Blackburn had designated a specific
managerial employee to receive workplace harassment complaints during the time period
relevant to this lawsuit.

d. Other Harassment at Blackburn
After the incident, Mr. Salen felt that he “wasn’t being treated right by employees.” Def.’s L.
R. 56(a) Stmt. ¶ 69; Salen Dep. 235:6-7. Shortly after September 2013, several co-workers had stated
to the Plaintiff that Salen was “Andre's lover boy” and that when he would get a phone call they
would say, “Oh. is that Andre on the phone?” Def.’s L. R. 56(a) Stmt. ¶ 71; see also Compl. at ¶ 30.
Mr. Salen said that he “was the joke of Blackburn.” Salen Dep. 236: 24-25. The parties dispute
whether these are the only comments the Mr. Salen described his co-workers making to him in
connection with the April 10, 2013 incident. The comments began shortly after September 2013.
Salen Dep. 237: 22-23.
Mr. Salen testified during his deposition that he did not tell Abigail Blackburn about coworkers making fun of him regarding the incident during the meeting between him, Abigail
Blackburn and Jorge Rodriguez. Def.’s L. R. 56(a) Stmt. ¶ 70; Salen Dep. 209:16-212:15. Later, he
did mention his co-workers’ disturbing behavior to Abigail Blackburn and Jorge Rodriguez during a
conversation on the porch. Salen Dep. 234:20- 235: 7. He also did not complain about the treatment
to Andre, Gabriel, Irene or Steven Blackburn. Id. at ¶ 73.

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e. Mr. Salen’s Termination
On September 20, 2013, Mr. Salen submitted a resignation letter to Ray Erazo, stating: “[a]s
of today I am unfortunately putting in my two week notice to end my employment. Thanks for
everything.” Def.’s L. R. 56(a) Stmt. ¶ 83, id. at Appendix, Ex. 11, Resignation Letter. At his
deposition, Mr. Salen stated that he did not intend to work at Blackburn after the expiration of the
two week period, because he was “going to leave with respect.” Id. at ¶ 86; Salen Dep. 30:5-11.
After several meetings, supervisors at Blackburn decided that “it would be in the company's
best interest to accept the Plaintiff's resignation effective immediately.” Id. at ¶¶ 88-90. See also
Andre Blackburn Dep. 123: 8-17 (“when we received his resignation we decided to accept that, and
accept it effective immediately as opposed to waiting two more weeks for him to still work, be
exposed to clients, be exposed to other employees, and it didn’t seem good for morale.”). Several
Blackburn employees participated in these meetings, namely Reinaldo Erazo, Jorge Rodriguez, and
Steve, Abigail, Irene and Andre Blackburn.” Id. at 147: 4-19 (referencing a “huddle”).
Mr. Salen maintains that defendant terminated his employment because “he did not resign,
and the defendant did not accept [his] resignation.” Pl.’s Stmt. of Disp. Facts, ECF No. 65-21, ¶ 12.
He collected unemployment payments for one and a half to two years after his termination. Salen
Dep. 30: 12-19. On October 5, 2013, Mr. Salen’s Facebook page contained a post that said “I can
honestly say I’m glad I quit my job.” Id. at 42: 1-2. Mr. Salen maintained at his deposition that he
was fired, and “it doesn’t matter what [he said] on Facebook.” Id. at 43: 17-19.
On October 17, 2013, the Administrator of the Connecticut Department of Labor concluded
that Blackburn had discharged Mr. Salen. Department of Labor Decision, Pl.’s Opp. Mem., Ex. 6,
ECF No. 65-7. Blackburn appealed. Id. On November 25, 2013, the Department’s appeals referee
also concluded that Blackburn had “discharged” Mr. Salen. Id. The notice said “when an employee
has submitted notice of his intention to leave his job at a future date, is not allowed by the employer
9

to work out his notice, and is not paid for the remainder of the time specified in the notice, the intent
to leave voluntarily is never consummated.” Id.
On October 15, 2013, Mr. Salen applied for unemployment compensation benefits from the
Department of Labor. In his application, Mr. Salen said that “the reason [he] wanted to leave was
due to being harassed by Andre Blackburn, the owner’s son.” Id. at Ex. 15, ECF No. 65-12, Fact
Finding Report-Claimant Statement. He added his description of the events of April 10: “When I got
up on the chair Andre just put his face between my buttocks as he grabbed my waist, he asked me if I
was uncomfortable.” Id. He also said that he was “coerced” by Gabriel Blackburn into signing a
statement saying that Andre Blackburn did not harass him. Id.

f. Mr. Salen’s Administrative Complaints
On December 18 2013, Mr. Salen made a complaint to the Connecticut Commission on
Human Rights and Opportunities (“CHRO”). In his complaint, Mr. Salen stated that “[w]hile leaning
forward to hold the picture, Andre positioned himself between me and the wall, then intentionally
moved the chair so that I moved causing his face to come into contact,” which implies, as Defendant
points out, that Blackburn was on the other side of the chair, facing Salen’s front. Def.’s L. R. 56(a)
Stmt. ¶ 44; Id. at Appendix, Ex. 4, CHRO Complaint. He also stated that he “submitted his letter of
resignation with the intent of constructively discharging himself.” Id. at 4. Frank Malinconico, a
CHRO investigator, concluded that Mr. Salen had not experienced a violation of the CFEPA. Mr.
Malinconico states that Mr. Salen never “mentioned anything” about Andre Blackburn “touching his
penis” or “placing his face in Mr. Salen’s buttocks.” Def.’s L. R. 56(a) Stmt. Appendix, Malinconico
Aff.
Mr. Salen filed his Complaint on September 18, 2014, alleging violations of Title VII and
CFEPA. In his Complaint, he alleged that “Mr. Blackburn was behind the chair the Plaintiff was
standing on and Mr. Blackburn grabbed the Plaintiff from behind and wrapped his arms around his
10

lower waist near his genital region, and in the same motion Mr. Blackburn placed his face in the
Plaintiffs buttocks.” Compl. ¶ 24. He alleges violations of the prohibitions against sexual
harassment and retaliation included in both Title VII and CFEPA. Id. at pp. 16-22.2

II.

Standard of Review
In a motion for summary judgment, the burden is on the moving party to establish that no

genuine issues of material fact remain in dispute and that it is thus “entitled to judgment as a matter
of law.” Rule 56(a), Fed. R. Civ. P. A fact is “material” if it “might affect the outcome of the suit
under the governing law” and a factual issue is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In reviewing the record, this Court must “construe the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences in its favor.” Gary Friedrich Enters.,
L.L.C. v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citations omitted). If there is
any evidence in the record from which a reasonable factual inference could be drawn in favor of the
opposing party on the issue on which summary judgment is sought, summary judgment is
inappropriate. See Sec. Ins. Co. of v. Hartford Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d

2

Defendant encourages the Court to disregard Mr. Salen’s deposition testimony about Mr. Blackburn touching his
penis because it contradicts statements he made earlier about his harassment. Generally, it is the jury’s role to assess
the credibility of a plaintiff’s story. At the summary judgment stage, the court can only discredit a plaintiff’s
testimony in the “rare circumstances where the plaintiff relies almost exclusively on his own testimony, much of
which is contradictory and incomplete.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). While a
party may not “create an issue of fact precluding summary judgment” by offering a “sham affidavit” contradicting
his earlier sworn testimony, Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112-13 (2d Cir. 1998), as
amended by 169 F.3d 782 (2d Cir. 1998), if there is a “plausible explanation for discrepancies in a party’s testimony,
the court considering a summary judgment motion should not disregard the later testimony,” especially if “an earlier
account … was ambiguous, confusing, or simply incomplete.” Id. The Court cannot conclude that the discrepancies
between Mr. Salen’s initial representations are inherently inconsistent. Mr. Salen has proposed several “plausible
explanations” for these discrepancies—that he was never specifically asked about whether Andre Blackburn touched
his penis, that he felt coerced by Blackburn employees, and that it was Mr. Blackburn’s brother who was conducting
the investigation. As a result, the Court declines to adopt Jeffrey’s “narrow exception” to the general rule that
credibility determinations are not to be made on motions for summary judgment. See Jeffreys, 426 F.3d at 554.

11

Cir. 2004); Anderson, 477 U.S. at 250 (summary judgment is proper only when “there can be but one
reasonable conclusion as to the verdict”).
III.

Discussion

a. Exhaustion of Administrative Remedies
Title VII requires a claimant to file a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) within 180 days of the alleged unlawful employment action or,
if the claimant has already filed the charge with a state or local equal employment agency, within 300
days of the alleged discriminatory action. 42 U.S.C. § 2000e-5(e)(1). The record in this case does
not suggest that Mr. Salen filed a complaint with the EEOC at all.
The failure to exhaust administrative remedies is a “precondition to bringing a Title VII claim
in federal court, rather than a jurisdictional requirement.” Francis v. City of N.Y., 235 F.3d 763, 768
(2d Cir. 2000). In Francis, the Second Circuit acknowledged that the exhaustion requirement
through the EEOC was “an essential element of Title VII’s statutory scheme and one with which
defendants are entitled to insist that plaintiffs comply.” Id. However, the Francis court concluded
that the defendants had waived their right to object on exhaustion grounds because they had not
alleged any failure to exhaust administrative remedies in their Answer to the Complaint, and in fact
had not registered any objection until after the court’s judgment, even “after the district judge
explicitly raised doubts” about the issue. Id. (“under the circumstances, there can be no doubt that
the City waived any right to complain about deficiencies in the EEOC charge.”) Because Blackburn
did not allege that Mr. Salen failed to exhaust his administrative remedies in either its Answer or its
Motion for Summary Judgment, the Court concludes that Blackburn has waived its right to complain
on this ground.3

3

The Court notes that Mr. Salen’s complaint before the CHRO omitted crucial details regarding his allegations of
sexual harassment and constructive discharge. The Court declines to find that these omissions deprived the CHRO

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b. Sexual Harassment under Title VII and CFEPA
Title VII prohibits an employer from “discriminat[ing] against any individual with respect to
his compensation, terms, conditions or privileges of employment because of [among other grounds]
such individual’s [ ] sex.” 42 U.S.C. §2000e-2(a)(1). CFEPA analogously prohibits an employer
from discriminating against an employee with respect to compensation or “conditions or privileges of
employment” because of his sex, among other grounds. Conn. Gen. Stat. §46a-60(a)(1). The
standards governing CFEPA employment discrimination claims are the same as those governing
Title VII. See Martinez v. Conn., State Library, 817 F. Supp. 2d 28, 55 (D. Conn. 2011) (collecting
cases).
Sexual harassment is also “[o]ne form of gender discrimination prohibited by Title VII.”
Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (citing Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)). The EEOC Guidelines define “sexual
harassment” to include “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature.” Meritor Sav. Bank, FSB, 477 U.S. at 65 (quoting 29 CFR
§1604.11(a)). CFEPA expressly prohibits employers from engaging in sexual harassment. Conn.
Gen. Stat. §46a-60(a)(8). Like the EEOC, CFEPA defines “sexual harassment” as “any unwelcome

of the opportunity to investigate his charges. “[C]laims that were not asserted before the EEOC [or CHRO] may be
pursued in a subsequent federal court action if they are reasonably related to those that were filed with the agency.”
Javier v. Deringer-Ney, Inc., 578 F. Supp. 2d 368, 372 (D. Conn. 2008), citing Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (“A claim is considered reasonably related if the conduct
complained of would fall within the scope of the EEOC [or CHRO] investigation which can reasonably be expected
to grow out of the charge that was made.”). The Court finds that Mr. Salen’s checking of the box labeled “sexual
harassment” gave the agency sufficient information about the charges he is making here, because an investigation
into Mr. Blackburn’s conduct would be expected after this charge. When reviewing complaints before the EEOC or
related agencies, the Court must “read complaints broadly to ascertain whether the allegations in them are
“reasonably related” to those in a subsequent lawsuit. Alonzo v. Chase Manhattan Bank, N.A., 25 F.Sup.2d 455, 458
(S.D.N.Y. 1998) (“In determining whether a particular claim is reasonably related to the plaintiff's EEOC complaint,
[w]e look not merely to the four corners of the often inarticulately framed charge, but take into account the scope of
the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination”) (internal
quotation marks omitted).

13

sexual advances or requests for sexual favors or any conduct of a sexual nature.” Conn. Gen. Stat.
§46a-60(a)(8).
To survive summary judgment on a hostile work environment claim under Title VII and
CFEPA, Mr. Salen must show that (1) a hostile work environment existed because of his gender and
(2) “that a specific basis exists for imputing the conduct that created the hostile environment to the
employer.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998) (citation omitted); see
also Brittell v. Dep’t. of Corr., 247 Conn. 148, 166- 67 (1998) (applying the same standards to a
hostile work environment claim under CFEPA).
1.

Hostile Work Environment

Blackburn argues that the “fleeting moments of alleged harassment” that Salen describes are
insufficiently pervasive to justify his hostile work environment claim. Mr. Salen counters that a
single incident of harassment, when it is as severe as the one he alleges here, can create a material
fact about whether a hostile work environment existed. The Court agrees with Mr. Salen.
An employee alleging a hostile work environment must create a genuine issue of material
fact as to whether his workplace was “permeated with discriminatory intimidation, ridicule, and
insult that [was] sufficiently severe or pervasive to alter the conditions of [his] employment and
create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal citations omitted). The Court must find that the work environment was “both objectively
and subjectively offensive,” looking at the totality of the circumstances. Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998) (citation omitted) (under Title VII); accord Brittell, 247 Conn. at
167 (same under CFEPA) (citation omitted).
Generally, “isolated remarks or occasional episodes of harassment will not merit relief under
Title VII.” Tomka v. Seiler Corp., 66 F.3d 1295, 1304, n.5 (2d Cir. 1995) (citations omitted).

14

However, when an employer’s single act is “sufficiently severe,” it may “alter the plaintiff's
conditions of employment without repetition,” rising to the level of actionable harm. Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998); Tomka, 66 F.3d at 1305 (“Even a single
incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly
creates an abusive work environment for purposes of Title VII liability.”); Howley v. Town of
Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (“single incident of verbal harassment” was sufficient,
considering all the circumstances, because supervisor’s verbal harassment was obscene, loud, and
occurred in “a large group in which Howley was the only female and many of the men were her
subordinates.”). But see Carrero v. New York City Housing Auth., 890 F.2d 569, 577-78 (2d Cir.
1989) (to be actionable, the alleged incidents “must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive”); Quinn, 159 F.3d at 759 (affirming
district court’s grant of summary judgment when plaintiff alleged that her supervisor told her that she
had been “voted the ‘sleekest ass’ in the office” and on another occasion “deliberately touched [her]
breasts with some papers that he was holding in his hand”).
Even isolated incidents of unwanted contact with the “intimate parts of an unconsenting
employee’s body” can justify a claim of an objectively hostile work environment. Redd v. N.Y. State
Div. of Parole, 678 F.3d 166, 179-80 (2d Cir. 2012). In Redd, the court found that a plaintiff’s claim
of a hostile work environment could survive summary judgment when a co-worker had touched her
breasts “without any apparent legitimate need” after “contriv[ing] to be in close proximity” to her.
Id. See also Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) (“direct contact with an intimate body
part constitutes one of the most severe forms of sexual harassment.”); Flowers v. N. Middlesex
YMCA, No. 3:15-cv-705 (MPS), 2016 U.S. Dist. LEXIS 31469, at *13-14 (D. Conn. Mar. 11, 2016)
(“Physical abuse, such as unconsented touching and striking — particularly on sensitive areas of the

15

body such as buttocks or breasts — are more severe than other forms, such as vulgar banter. … In
this sense, Thortenson’s alleged ‘striking’ of Flowers buttocks was particularly severe”) (internal
citations omitted).
Here, a jury could conclude that Mr. Salen’s experience at Blackburn was “objectively
offensive.” Faragher, 524 U.S. at 787. Mr. Salen alleges that Andre Blackburn touched his penis,
albeit briefly, and then asked if he felt uncomfortable. He further alleges that his co-workers mocked
him for being “Andre’s lover boy.” A reasonable juror could conclude that Andre’s touching,
especially combined with teasing from Blackburn’s employees, was more than “ordinary socializing
in the workplace,” “male-on-male horseplay,” or “intersexual flirtation” and instead amounted to a
hostile work environment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
Especially given the significance that the Redd court placed on the unwanted touching of an intimate
body part, the Court must conclude that Mr. Salen’s allegations rise to the level of actionable sexual
harassment.
Hostile work environment claims present “‘mixed question[s] of law and fact’ that are
‘especially well-suited for jury determination.’” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,
605 (2d Cir. 2006) (“the line between boorish and inappropriate behavior and actionable sexual
harassment ... is admittedly indistinct, [and] its haziness counsels against summary judgment.”).
Here, a jury would be best positioned to determine whether to believe Salen’s conflicted testimony
about Andre Blackburn’s treatment and whether this testimony suggested that he was subjected to a
hostile work environment.
Mr. Salen has also provided sufficient, if limited, evidence that would enable a reasonable
juror to conclude that he subjectively found his work environment pervasively hostile. When a
plaintiff alleges that treatment caused depression, anxiety and other “psychological tolls,” the

16

plaintiff has made a sufficient claim for subjectively hostile treatment. Feingold v. New York, 366
F.3d 138, 151 (2d Cir. 2004) (finding that testimony by plaintiff that the defendant’s treatment of him
“took a psychological toll on him, causing him to become depressed, to dread going to work, to seek
a transfer, and to lose his desire to socialize with people in general” satisfied the subjective element
of a hostile work environment claim). Mr. Salen stated that he felt “uncomfortable” after the
incident. Def.’s L.R. 56(a) Stmt. ¶ 24.
Several of Mr. Salen’s coworkers agreed with that assessment. Indeed, Gabriel Blackburn
recounted that Salen “seemed a little upset and needed to talk to people in the office.” Accepting this
testimony as true, as the Court must at this stage of the case, the Court finds that Mr. Salen has, for
the purposes of summary judgment, sufficiently stated that he subjectively experienced a hostile
work environment at Blackburn. See Redd, 678 F.3d at 174 (at summary judgment stage, “all
permissible inferences and credibility questions resolved in favor of the party against whom
judgment is sought.”).
2.

Because of Gender

To make his workplace harassment claim, Mr. Salen must show that the mistreatment that he
alleges occurred “because of his gender.” Oncale, 523 U.S. at 79 (“Title VII aims to eradicate
discrimination on the basis of sex, not enact a general civility code on the American workplace.”)
(internal citations omitted). If the “harassing conduct [is] motivated by sexual desire,” the jury may
infer discrimination on the basis of sex, as it would in the male-female context. Id. at 80.
Furthermore, when a harassment alleged involves touching an intimate body part, “a jury [can] easily
infer [the] stated desire” to touch someone’s penis or breasts, regardless of the gender of the speaker,
were motivated by the employee’s gender. Redd, 678 F.3d at 181.

17

Mr. Salen alleges that Andre Blackburn touched his penis and the record indicates that Andre
Blackburn is sexually attracted to men. While the record reveals other potential motivating factors—
Andre Blackburn’s desire to help Mr. Salen keep his balance while hanging the poster, his emotional
instability—a jury could reasonably conclude that he touched Mr. Salen because of Mr. Salen’s
gender.
3.

Liability of Employer

Employers are not always liable under Title VII and CFEPA for hostile work environments
created by their employees. Beyond demonstrating a hostile work environment, a plaintiff must
“show a basis for imputing the objectionable conduct to the employer.” Gorzynski v. Jetblue Airways
Corp., 596 F.3d 93, 103 (2d Cir. 2010). When an employee’s supervisor engages in the harassing
conduct, it is “automatically imputed to the employer,” unless the employer proves an affirmative
defense by a preponderance of the evidence. Id., see also Faragher, 524 U.S. at 807 (“An employer
is subject to vicarious liability to a victimized employee for an actionable hostile work environment
created by a supervisor with immediate (or successively higher) authority over the employee.”). If
the harasser is the victim’s co-worker, the employer will be liable only if it is negligent, that is, if it
either “provided no reasonable avenue for complaint” or knew or should have known of the
harassment but did nothing about it. Howley, 217 F.3d at 154; Faragher, 118 S. Ct. at 2289 (noting
general agreement among circuits that negligence standard governs employer liability for co-worker
harassment).
a.

Mr. Salen’s Supervisors

Mr. Salen alleges that he was harassed by Andre Blackburn, who was Blackburn’s Human
Resources manager. Mr. Salen also alleges that Jorge Rodriguez, as well as “many co-workers,”
contributed to the hostile work environment by teasing him about his relationship with Andre. The

18

issue is whether Blackburn should be directly liable for the actions of these employees. At this stage
of the case, the answer is yes.
An employer may be vicariously liable for unlawful harassment by one of its employees only
when it has “empowered [that] employee to take tangible employment actions against the victim.”
Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013). In Vance, the Supreme Court explained that
a tangible employment action would be a “significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id.
Andre Blackburn was involved in decisions concerning Mr. Salen’s employment. The record
reveals Mr. Blackburn participated in the “huddle” that made the decision to terminate Mr. Salen
after his resignation. See Andre Blackburn Dep. 147: 14-19. As Human Resources manager, Andre
Blackburn also had some supervisory responsibilities, although the record does not make clear his
specific managerial duties. Although he may not have been empowered to make hiring and firing
decisions alone, it is clear that Andre Blackburn had some supervisory authority over Mr. Salen.
Moreover, as the child of the co-owners of an intimate family-owned company, Mr.
Blackburn may have been imbued with greater supervisory powers. See Dillon v. NED Mgmt., No.
13-cv-2622, 2014 U.S. Dist. LEXIS 17903, at *7-9 (E.D.N.Y. Feb. 11, 2014) (“The jury could
reasonably find that the marital relationship included a strong influence by the husband on his wife
and her son, the owner of the family company, equivalent to supervisory power. Based upon
subtleties of the relationship and the nature of the business, the natural concern for the success of a
family member can support that conclusion.”); Gillman v. Inner City Broad. Corp., 2011 U.S. Dist.
LEXIS 4759, at *7-8 (S.D.N.Y. Jan. 18, 2011) (finding that Ms. Sutton, an officer, shareholder and
former employee of defendant company, could be considered to have “decision-making authority”

19

because plaintiff “understood that ‘[s]he was a Sutton,’ the implication being that the family
members had the power to hire or fire, [and] a jury could find that Ms. Sutton held at least apparent
authority within ICBC because Gillman's impressions of her apparent authority were reasonable.”).
While the record is unclear about whether Andre Blackburn was able to “bring the official
power of the enterprise to bear” on Mr. Salen, see Vance, 133 S. Ct. at 2448, the fact remains that
Blackburn was a family-owned company that chose to have a family member in charge of important
matters, such as human resources, and a reasonable jury could conclude that Andre Blackburn had
the support of his parents in anything he did. Andre Blackburn may not have weighed in on Mr.
Salen’s salary increases, disciplined Mr. Salen, or directed Salen’s “day-to-day activities.” Id. at
2454. Nevertheless, a jury could nevertheless conclude that Andre Blackburn was Mr. Salen’s
supervisor, based on his family relationship.
Additionally, Mr. Salen alleges that other employees, including Mr. Rodriguez, contributed
to the hostile work environment he encountered at Blackburn. The record suggests that Mr.
Rodriguez was equal to or slightly above Mr. Salen in the Company’s managerial hierarchy. While
disputed facts remain regarding Mr. Rodriguez’s supervisory authority at Blackburn, a jury could
certainly conclude that Mr. Rodriguez was Mr. Salen’s supervisor. Both Mr. Rodriguez and Andre
Blackburn could be considered supervisors, and their potential harassment can be imputed to
Blackburn.
b.

Blackburn’s Affirmative Defense

Even if it is liable for the actions of Mr. Salen’s harassers, Blackburn may be entitled to an
affirmative defense if it can show, by the preponderance of the evidence, that (1) “the employer
exercised reasonable care to prevent and correct promptly any harassing behavior and (2) the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective opportunities

20

provided by the employer or to avoid harm otherwise.” Gorzinski, 596 F. 3d. at 103; Faragher, 524
U.S. at 807.4
Blackburn invokes the Ellerth/Farragher affirmative defense by arguing that Mr. Salen
failed to take advantage of the company’s corrective opportunities by failing to mention the fact that
Andre Blackburn touched his penis during the company’s investigative interviews, and that it
provided a reasonable investigative process for Mr. Salen’s complaints. The Court finds that
Blackburn cannot invoke the affirmative defense. Blackburn failed to provide a route for Mr.
Salen’s complaint that did not involve close family members of Andre Blackburn, the alleged
harasser. A reasonable jury could find that this failure demonstrated a lack of reasonable care on part
of the Company. Furthermore, a jury could conclude that it was not unreasonable for Mr. Salen to
withhold intimate and uncomfortable details during Blackburn’s investigation of his complaint, given
that the investigation was conducted by close family members of Andre Blackburn.
A.

Blackburn’s Reasonable Care

Mr. Salen argues that Blackburn failed to provide him with a reasonable avenue for
complaining about sexual harassment, pointing to deficiencies in the company’s handling of the
April 10, 2013 incident. Specifically, he argues that Blackburn inappropriately relied on Gabriel
Blackburn, a non-employee and Andre’s brother, to investigate Mr. Salen’s complaint. He also
emphasizes the fact that Irene and Abigail Blackburn did not reschedule a scheduled meeting
between Mr. Salen and Andre Blackburn, at which Andre Blackburn was supposed to apologize to
him. The Court agrees with Mr. Salen.

4

An employer may raise the Faragher/Ellerth defense only if either (1) the employee's supervisor took no “tangible
employment action,” which involves an official company act, against the employee; or (2) any tangible employment
action taken against the employee was not part of the supervisor's discriminatory harassment. See Faragher, 524
U.S. at 808; Ellerth, 524 U.S. at 765. Mr. Salen has alleged that he was constructively discharged. The Court need
not address whether Mr. Salen’s constructive discharge was “part of the supervisor's discriminatory harassment,”
because it finds that Blackburn’s defense fails. Id. See also Gorzynski, 596 F.3d at n.3.

21

In assessing whether an employer has taken “reasonable care” under the first prong of the
defense, a Court must assess not only whether the employer created and disseminated an effective
sexual harassment policy, but also whether the policy was “seriously enforced.” Willburn v. Fleet
Fin. Grp., Inc., 170 F. Supp. 2d 219, 229 (D. Conn. 2001). An employer cannot be insulated from
liability because it created a complaint procedure or conducted an investigation of the alleged
harassment. Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1180 (2d Cir. 1996) (“We know of no
authority, and none has been drawn to our attention, to support the defendant's suggestion of an
alternative per se rule that the availability of a complaint procedure and an investigation of the
complaint under that procedure, standing alone, requires us to reach the legal conclusion that the
misconduct of a co-worker cannot be imputed to the employer.”).
In this case, the parties do not dispute the sufficiency of Blackburn’s written harassment
policy. The record suggests that Blackburn’s workplace rules included a procedure for the
investigation of harassment complaints and that Blackburn disseminated these rules to Mr. Salen.
A reasonable jury, however, could find serious flaws in the investigation of Mr. Salen’s
complaint. Three Blackburn employees participated in the investigation of Mr. Salen’s complaint,
and all three were close relatives of Mr. Salen’s alleged harasser. First, Abigail and Irene
Blackburn—Andre Blackburn’s mother and sister-in-law—addressed the issue. After Abigail and
Irene Blackburn arranged for and then cancelled a meeting between Andre and Mr. Salen, Gabriel
Blackburn, Andre Blackburn’s brother, conducted a formal investigation of the event. Blackburn
argues that Gabriel Blackburn’s investigation was reasonably thorough. Mr. Salen responds that
Gabriel did not interview “key witnesses” to Mr. Salen’s alleged harassment, but the record reveals
that Gabriel did interview each of the co-workers who, by Mr. Salen’s own admission, witnessed the
actual event. He also spoke to Andre Blackburn, even if only by e-mail, and Mr. Salen.

22

The simple fact that Gabriel and Andre Blackburn were brothers, however, calls into question
the reasonableness of Defendant’s investigative practices. This family-owned company chose to
have its own family members investigate a complaint of sexual harassment made against another
member of its family. Just as importantly, the person under investigation was the family member in
charge of Human Resources for the company. See, e.g. Avila-Blum v. Casa de Cambio Delgado,
Inc., 519 F. Supp. 2d 423, 430 (S.D.N.Y. 2007) (holding that individual supervisor could be liable as
an alter-ego of company because plaintiff testified that a co-worker had told her that “my father [the
supervisor] makes all the decisions around here” and further established that the supervisor
“maintained complete control over the operation of the corporation,” making her attempts to rectify
her hostile work environment “futile”).
B.

Mr. Salen’s Use of Blackburn’s Complaint Procedure

Defendant argues that Mr. Salen unreasonably failed to take advantage of Blackburn’s sexual
harassment policy because he “never submitted any complaint to the employer of what amounts to a
criminal sexual assault.” Def.’s Mem., 33. Blackburn points to the fact that Mr. Salen did not tell
any Blackburn employee that Andre touched his penis and told Gabriel, Irene and Abigail Blackburn
that he was not alleging sexual harassment. The Court disagrees.
An employer is entitled to an affirmative defense against liability for an employee’s
harassment if the employee “acted unreasonably in failing to avail herself of the company's internal
complaint procedures.” Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001). The defendant
may assert its affirmative defense with evidence that the plaintiff failed to avail himself of the
defendant’s complaint procedure, and then by relying on the absence or inadequacy of the plaintiff's
justification for that failure. Id. An employee’s reluctance to report harassment is reasonable if it is
based on a “credible fear” that his or her complaint will “not be taken seriously or that she would

23

suffer some adverse employment action as a result of filing a complaint,” the employee’s reluctance
to report a complaint was reasonable. Id., citing Caridad v. Metro-North Commuter R.R., 191 F.3d
283, 295 (1999). Generally, the plaintiff must produce evidence that the employer ignored or
resisted similar complaints or took adverse action against employees in response to complaints. See
Leopold, 239 F. 3d at 246. However, the plaintiff can also present other evidence, such as evidence
about the relationship of the alleged harasser with company management, to substantiate his or her
credible fear of retaliation. See, e.g. Setelius v. Nat’l Grid Elec. Servs. LLC, No. 11-CV-5528, 2014
U.S. Dist. LEXIS 134789, at *90 (E.D.N.Y. Sep. 24, 2014) (applying the affirmative defense because
“plaintiff has not presented any evidence to substantiate her assertion that she had a credible fear of
retaliation, such as evidence about the relationship between [the harasser] and human resources that
caused her to fear retaliation”).
In this case, a jury could infer that it was reasonable for Mr. Salen to omit certain details from
his complaint to his employer. Mr. Salen quickly spoke to a Blackburn supervisor about the April 10
incident. He then reported to Abigail Blackburn that Andre Blackburn did something that made him
“uncomfortable.” Indeed, Abigail emphasized the fact that Mr. Salen felt uncomfortable in e-mails
to Irene and Steven Blackburn, who she calls “Mom” and “Dad.” While none of the Blackburns,
Abigail, Irene, and Steven, knew the extent of the harassment that Mr. Salen now alleges, they knew
that his allegations were somewhat serious, and that they involved sexual behaviors that could be
awkward for Mr. Salen to discuss. Even after learning of a serious—if vague—complaint against a
family member, Blackburn’s management did not provide an avenue for Mr. Salen’s complaint that
did not involve other family members. Indeed, after Abigail Blackburn organized but then cancelled
a conversation between Mr. Salen and Andre Blackburn, the company then delegated the
investigation to Gabriel Blackburn, an outside employee and Andre Blackburn’s brother.

24

A jury could infer that Mr. Salen was reasonable in his reluctance to describe Andre
Blackburn’s behavior to the supervisors who investigated his complaint, because these supervisors
were all close relatives of Andre Blackburn. In a family-owned company, a jury could find that a
complaint against the company is essentially a complaint against the family, making complaining
“futile.” Avila-Blum, 519 F. Supp. 2d at 430 (plaintiffs attempts to rectify her hostile work
environment were “futile” because she complained to the harasser’s daughter, who responded that
“my father makes all the decisions around here”). A jury also could conclude that Mr. Salen’s vague
complaints about being uncomfortable were, in fact, sufficient to put Blackburn on notice of the
harassment and rebut the Company’s affirmative defense. See Redd, 678 F.3d at 183 (holding that
summary judgment was inappropriate because “there appear[ed] to be a factual dispute to be resolved
as to the sufficiency of [the plaintiff’s] complaints about [the supervisor’s] conduct”). Given the
disputed evidence about Mr. Salen’s use of Blackburn’s complaint policy, the Court cannot grant
summary judgment to Blackburn based on the Ellerth/Farragher affirmative defense. Blackburn’s
motion for summary judgment on Counts One and Two therefore is DENIED.
c. Retaliation under Title VII and CFEPA
Title VII prohibits an employer from discriminating “against any of his employees ... because
[the employee] has opposed any practice made unlawful by [Title VII].” 42 U.S.C. §2000e-3(a).
“The objective of this section is obviously to forbid an employer from retaliating against an
employee because of the latter’s opposition to an unlawful employment practice.” Manoharan v.
Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Similarly,
CFEPA prohibits an employer from “expel[ling] or otherwise discriminat[ing] against any person
because such person has opposed any discriminatory employment practice.” Conn. Gen. Stat. §46a60(a)(4).

25

To make out a prima facie case of retaliation Mr. Salen must show that (1) he engaged in a
constitutionally protected activity; (2) the employer was aware of this activity; (3) the employer took
adverse action against him; and (4) a causal connection exists between the protected activity and the
adverse action. Reed, 95 F.3d at 1178 (2d Cir. 1996).
Mr. Salen claims that defendant retaliated against him for making an internal complaint about
his uncomfortable experience with Andre Blackburn on April 10, 2013. He points to two adverse
actions that the defendant took against him: first, that Blackburn “threatened” him in the July 23,
2013 “letter of expectation,” and second, that he was terminated from his employment after he
resigned. Blackburn argues that these two instances are not legally sufficient adverse employment
actions for the purposes of these statutes. The Court disagrees.
1. Mr. Salen’s Constitutionally Protected Activity
The Court assumes that Mr. Salen’s complaints constituted a constitutionally protected
activity and that Blackburn was aware of this activity. To show that he engaged in a constitutionally
protected activity, the plaintiff need not establish that the conduct he opposed was actually a
violation of Title VII, but only that he possessed a “good faith, reasonable belief that the underlying
employment practice was unlawful” under that statute. Galdieri-Ambrosini, 136 F.3d at 291. The
Court must assess the reasonableness of the plaintiff's belief in light of the totality of the
circumstances. Reed, 95 F.3d at 1178. While Mr. Salen’s repeated assertions that he was not
claiming sexual harassment during the complaint process call into question his belief that Andre
Blackburn’s behavior was unlawful, the Court recognizes that the reasonable person standard is a
flexible one.
To show that an employer was aware of its employee’s protected activity, a plaintiff
generally must show only that the employer was aware of his complaint. However, “implicit in the

26

requirement that the employer [was] aware of the protected activity is the requirement that the
[employer] understood, or could have reasonably understood,” that the plaintiff’s complaints,
constituting the protected activity, were based on conduct prohibited by Title VII. GaldieriAmbrosini, 136 F.3d at 292; see also Manoharan, 842 F.2d at 593. As discussed above, Mr. Salen
complained to various Blackburn supervisors that Andre Blackburn made him “uncomfortable.” The
record contains disputed facts about whether this complaint made defendants aware that Mr. Salen’s
complaints concerned conduct prohibited by Title VII, because he eliminated the most crucial fact
about the single incident of harassment from his complaint. In this case, Court assumes that
Blackburn’s awareness of Mr. Salen’s complaint constituted sufficient notice of his engagement in a
constitutionally protected activity.
2.

Blackburn’s Materially Adverse Employment Actions

Even assuming that Mr. Salen can make the initial prongs of the prima facie case for
retaliation, he still must provide sufficient evidence that he suffered an adverse employment action at
Blackburn’s hands. A “material adverse action” is an action that “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006). While this is an objective test, “context matters” and “even
trivial acts may take on greater significance when they are viewed as part of a larger course of
conduct.” Id. at 69. Generally, though, “petty slights or minor annoyances that often take place at
work and that all employees experience are not materially adverse.” Rivera v. Rochester Genesee
Reg’l Transp. Auth., 743 F.3d 11, 25 (2d Cir. 2012).

27

a. The July 23 Letter of Expectation

Mr. Salen argues that Blackburn’s July 23, 2013 letter of expectation represented a
materially adverse employment action designed to punish him for complaining about Andre
Blackburn’s behavior. A reasonable jury could agree.
Disciplinary citations or reprimands are not “materially adverse” when they reflect the
defendant’s “enforcement of its preexisting disciplinary policies in a reasonable manner,” but can be
materially adverse with additional evidence suggesting that they were designed to quell complaints.
Rivera, 743 F.3d at 26 (internal citations omitted). In Rivera, the Second Circuit held that
defendant’s discipline of plaintiff Talton was an adverse employment action because it occurred
immediately after Talton’s filing of an EEOC complaint, and included an admonishment for making
“false accusations.” Id. The court concluded that “a reasonable juror could infer that [the
defendant’s] swift response to the complaints by Talton’s co-workers was designed to, and did, send
a message that Talton’s employment at Lift Line was in serious jeopardy as a result of the EEOC
charges.” Id. at 27. While there is evidence on the record suggesting that Blackburn had admonished
Mr. Salen in the past for discussing personal matters of co-workers in public or on Facebook, a
reasonable jury could also find that the letter from Gabriel Blackburn constituted a threat to stay
silent about the April 10 incident.
Furthermore, a reasonable jury could conclude that the letter of expectation played into a
larger pattern of events that led to Mr. Salen’s constructive discharge. The record does not contain
evidence that Blackburn’s letter of expectation had materially adverse consequences on Mr. Salen’s
employment or resulted in his termination. See Trigg v. New York City Transit Auth., 91 FEP 66, 74
(E.D.N.Y. 2001), aff’d, 50 Fed. App’x. 458 (2d Cir. 2002) (“Negative evaluations alone, without any
accompanying adverse consequence, are not adverse employment actions.”). However, Mr. Salen

28

has alleged that he was constructively discharged from employment, as discussed below. While the
letter of expectation itself may not be a materially adverse employment action, the Court understands
the letter as a component of the work environment that may have led to Mr. Salen’s constructive
discharge.
b. Mr. Salen’s Termination
Mr. Salen also argues that Blackburn terminated his employment to punish him for
complaining about his alleged harassment. However, the record suggests that Mr. Salen sent a
resignation letter to supervisor Ray Erazo stating that he was “putting in [his] two-week notice” to
end [his] employment.” It was only after receiving this letter that Blackburn terminated Mr. Salen.
While a defendant’s termination of an employee would constitute an “adverse employment action,” a
defendant’s termination of an employee who has resigned does not. Davis v. Koffee Kup Bakery,
Inc., No. 2:15-cv-152, 2016 U.S. Dist. LEXIS 109664, at *17-18 (D. Vt. Aug. 18, 2016) (“The
Second Circuit defines an adverse employment action as a materially adverse change in the terms and
conditions of employment. Where an employee voluntarily quits, there is no adverse employment
action,” citing Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir. 1985) (internal
quotations omitted). Because Mr. Salen had resigned when Blackburn terminated him, the
termination only effected two weeks of his prospective employment and did not constitute a
materially adverse change in the conditions of his employment.
In some cases, though, courts have denied summary judgment to defendants whose
employees left voluntarily because the record contained questions about “whether Plaintiff
voluntarily resigned or was pressured to do so with the veiled threat of termination,” resulting in a
constructive discharge. Koffee Kup Bakery at *18-20; Fetcho v. Hearst Conn. Post, LLC, 103 F.
Supp. 3d 207, 211-12 (D. Conn. 2015) (denying summary judgment where the defendant claimed the

29

plaintiff “resigned voluntarily” but the “circumstances under which plaintiff's employment ended
[were] in dispute,” primarily because of evidence that plaintiff “refused to sign a resignation letter”);
Cadet v. Deutsche Bank Secs. Inc., No. 11-cv-7964, 2013 U.S. Dist. LEXIS 87328, at * 11 (S.D.N.Y.
June 18, 2013) (“A voluntary resignation does not constitute an adverse employment action unless
the plaintiff was constructively discharged—i.e., the resignation was in fact involuntary as a result of
coercion or duress.”). While he maintains that he was terminated, Mr. Salen also alleged in his
CHRO claim that he was constructively discharged.
“To find that an employee’s resignation amounted to a constructive discharge, the trier of fact
must be satisfied that ... a reasonable person in the employee’s shoes would have felt compelled to
resign.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000). More
specifically, the plaintiff must show that the employer “deliberately ma[de] an employee’s working
conditions so intolerable that the employee [wa]s forced into an involuntary resignation.” Pena v.
Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). “The [constructive discharge] standard is not
easily met.” Arroyo v. WestLB Admin., Inc., 54 F. Supp. 2d 224, 231-32 (S.D.N.Y. 1999). In Arroyo,
the plaintiff was subject to “approximately five or six” incidents of racially derogatory insults and
remarks, including being called a “f ---- g spic,” a “wetback," and an “asshole” on three separate
occasions, over twenty-five months. Id. at 230-31. The court found that this “sporadic” and “random”
harassment would not compel a reasonable person to resign. Id. See also Stetson v. NYNEX Serv.
Co., 995 F.2d 355, 360 (2d Cir. 1993) (finding no constructive discharge where a plaintiff alleged he
was “ridiculed by his supervisor, ... harangued by executives, ... and suffered high blood pressure as a
result of his supervisor's treatment”); Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir. 1985)
(finding no constructive discharge when plaintiff testified that her supervisor made “unfounded”
complaints about her attitude to co-workers, she had “received an informal, oral warning concerning

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complaints about her attitude from several customers and from co-workers,” and her supervisor
loudly mentioned that she had been polygraphed after money went missing at defendant bank).
Here, Mr. Salen alleges that his co-workers teased him on several occasions in September
2013—presumably before he resigned on September 20, 2013—on account of his harassment with
Andre Blackburn. He also alleges that he “was promised an apology that he never received.” Pl.’s
Opp. Mem., 15. Finally, he points to two incidents that suggest that Blackburn employees wanted
him to leave: (1) Irene Blackburn asking him if “this was the best job [he’d] ever had?” when he
initially complained about the harassment; and (2) Jorge Rodriguez, a supervisor, telling him that he
“needed to be sure where this could end up” before listening to Salen’s complaints about Andre
Blackburn.5 Id.
The Court will construe Mr. Salen’s claim as an allegation that he was constructively
discharged and will let a jury decide whether his retaliation claim stands. The several weeks of
teasing that he describes does not necessarily meet the heightened standard required to establish a
constructive discharge. Furthermore, the statements from Irene Blackburn and Jorge Rodriguez do
not by themselves suggest that Blackburn was threatening Mr. Salen with termination if he did not
resign. Ordinarily these factual allegations might fall short. The family dynamic existing at this
company, however, suggests that any such factual determinations should be made by a jury.
Although Blackburn points to evidence that it never intended to force Mr. Salen to leave, that
“argument goes to the weight of the evidence, not its sufficiency.” Fox v. City Univ. of N.Y., No. 944398, 1999 U.S. Dist. LEXIS 718, at *20 (S.D.N.Y. Jan. 25, 1999). Accordingly, the Court DENIES
summary judgment on Counts Three and Four of the Complaint, which allege retaliation under Title
VII and CFEPA.

5

Plaintiff does not provide a citation for this statement in his opposition brief and it is not included in the Statements
of Facts provided by the parties.

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IV.

Conclusion
Defendants’ Motion for Summary Judgment [Doc. No. 61] is DENIED.
SO ORDERED at Bridgeport, Connecticut this 6th day of January, 2017.
/s/ Victor A. Bolden _________
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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