Why it matters

A New Jersey federal court found the plaintiff’s allegations of verbal abuse and touching—as well as his ultimate termination—sufficiently severe and pervasive to move his Title VII hostile work environment and retaliation action forward. Milko Mateo worked at a Nestle Waters distribution facility, where he alleged his supervisor and coworkers regularly made anti-gay remarks in his presence, with one coworker subjecting him to unwanted touching and threats of physical violence. Mateo said he complained to human resources but no investigation took place. He was later terminated after an altercation with a coworker and filed suit. Nestle moved for summary judgment, arguing that the plaintiff failed to provide evidence that he suffered severe and pervasive harassment. The court disagreed, denying the motion. A reasonable jury could find that the plaintiff was subjected to sustained verbal abuse and touching by his coworkers, the court said, and that the employer retained a heterosexual worker who engaged in the same altercation for which the plaintiff was terminated.

Detailed discussion

Milko Mateo began working at the Nestle Waters North America (NWNA) distribution center in Kearny, NJ, in May 2012. According to his federal court complaint, he was subjected to anti-gay remarks from his coworkers and supervisor from the beginning. One coworker in particular made repeated, sexually graphic comments while touching Mateo, he alleged, sometimes in front of their supervisor.

Mateo claimed that he documented this behavior to human resources in the summer of 2012, but no investigation took place and nothing happened to stop the harassment. Another coworker who made anti-gay comments in Mateo’s presence also threw knives at him in the lunchroom, Mateo said. In 2013, he was involved in an altercation over the placement of fans in the warehouse, with a coworker who repeatedly used a derogatory Jamaican term for a gay man. Both men received written warnings. After a subsequent incident involving a time clock, in which words were exchanged between Mateo and another employee, Nestle terminated him.

Mateo then filed an eight-count complaint alleging violations of Title VII and the New Jersey Law Against Discrimination with claims of discrimination, retaliation and a hostile work environment.

The employer moved for summary judgment, disputing when Mateo first made his complaints and arguing that the allegations were not severe or pervasive enough to constitute a hostile work environment.

While acknowledging that Title VII is not a “general civility code,” U.S. District Judge Kevin McNulty denied the employer’s motion. “NWNA has not met its burden of proving that Mr. Mateo could not convince a jury that he experienced ‘severe or pervasive’ harassment,” the court said.

The plaintiff testified to several serious incidents in the workplace that a jury could find “severe or pervasive,” including repeatedly being called a derogatory term for a gay man, the graphic sexual comments along with the touching that accompanied them, and the threats made with knives. These examples were sufficient to support his hostile work environment claim, the court found.

Disagreement over when Mateo first reported allegations of harassment and whether the employer took prompt and adequate remedial action also weighed in favor of denying the motion for summary judgment, the court said, as factual disputes remained in place.

Similarly, the court denied the summary judgment motion on the plaintiff’s sex discrimination and retaliation claims, finding more disputed material facts with regard to an inference of discrimination and pretext on the part of NWNA. In addition to the temporal proximity between Mateo’s complaints and his termination, he was the only person fired, while other (heterosexual) individuals involved in the alleged altercations were not, the court pointed out.

To read the opinion in Mateo v. Nestle Waters North America, Inc., click here.