Bailey v. Nexstar Broad., Inc.

MICAH BAILEY Plaintiff v. NEXSTAR BROADCASTING, Inc. Defendant.

No. 3:19-cv-00671(VLB)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

MARCH 6, 2021

MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Micah Bailey alleges sex discrimination, retaliation, breach of contract, defamation, and negligent infliction of emotional distress against his former employer, Defendant Nexstar Broadcasting, Inc. ("Nexstar"), arising from his termination. Defendant terminated Plaintiff from his position as a news producer after it found that he violated its anti-discrimination and harassment policy.

Defendant previously moved to dismiss Plaintiff's workplace torts and breach of contract claims, which the Court granted in part and denied in part. [ECF No. 33 (Mem. of Decision on Def. Mot. to Dismiss)]. Now, after completing discovery, Defendant moves for summary judgment on the remaining claims. For reasons set forth herein, the Court GRANTS Defendant's motion for summary judgment on all claims.

Background

The following facts are taken from the Local Rule 56 statements of material facts and evidence cited by the parties. The facts are read in the light most favorable to the non-movant, Mr. Bailey. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This is prefaced with the materiality rule. "...[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of an issue of material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

Before considering the relevant background facts, the Court will briefly frame the issues because the factual disputes are narrower than suggested by Plaintiff's opposition brief. Although the parties disagree widely on the interpretation of the material facts and the details of the encounters that resulted in Plaintiff's co-workers' complaints, the parties agree that he was not terminated until his employer received a third sexual harassment complaint after he was given remedial sexual harassment training. [ECF No. 50-45 (Pl. Local Rule 56(a)(2) Statement ¶¶ 9, 24, 26, 38, 42, 48](undisputed).¹

Plaintiff adamantly denies that he sexually harassed his former co-workers and argues that he went on two separate consensual dates with his co-workers, off hours, and that his conduct did not violate Nexstar's anti-harassment policy. [ECF No. 50 (Pl. Mem in Opp'n) at 1]. He argues that Nexstar rushed to judgment and terminated him without investigating his side of the story or allowing him to ask questions about the accusations because he is male. [Id. at 1-2]. Plaintiff argues that he complained about gender discrimination to his union representative and then again to his supervisor after he was suspended, less than a day before his termination. [Id. at 3]. He claims he was defamed by the announcement to the news staff that he was terminated for sexual harassment, which then spread throughout the regional news market. [Id. at 3]. Additionally, Plaintiff claims he "was teased daily about his good looks, especially his hair, unwantedly touched and inappropriately sexualized by his coworkers and by his supervisor," including on their Facebook Live feeds [Id. at 1-2].

These issues do not present a genuine issue of material fact because a reasonable jury could not return a verdict for Plaintiff applying the relevant law. As to Plaintiff's discrimination and retaliation complaints, the issue is whether Nexstar acted with a discriminatory or retaliatory motive when it suspended and terminatedPlaintiff, not whether they correctly concluded that he engaged in the alleged misconduct that served as the basis for his termination. Henry v. Daytop Vill., Inc., 42 F.3d 89, 96 (2d Cir. 1994).

Facts

Plaintiff worked as a news producer at a local television station, acquired by Nexstar in 2017. [Def. Local Rule 56(a)(2) Statement ¶¶ 3, 6]. Plaintiff received a copy of Nexstar's anti-discrimination policy, which provides that:

Nexstar has a Zero Tolerance Policy prohibiting discrimination or harassment of any employee by a supervisor, employee, job applicant, customer, visitor of the representatives of other businesses with whom we interact as part of our jobs. Nexstar does not discriminate against any employee or applicant for employment because of race, color, religion, disability, age, sex, national origin, citizenship, veteran's status, sexual orientation, military status or any other protected personal characteristic. All employees must refrain from any conduct that could be considered harassing or discriminatory. Nexstar will take reasonable steps to ensure that all employees, contractors, vendors, and customers comply with this policy.

[ECF 39-6, Def. Ex. D (2017 Nexstar Employee Handbook) at 9] [Pl. Local Rule 56(a)(2) Statement ¶ 4](admitted).

Plaintiff was also a member of a bargaining unit represented by the NABET and subject to a collective bargaining agreement ("CBA") between the union and Nexstar. [Def. Local Rule 56(a)(2) Statement ¶ 6]; [ECF No. 39-7, Def. Ex. E (CBA)].

On Saturday, February 17, 2018, Amy Hudak, a reporter, and Plaintiff met for drinks and there was a kiss on the mouth at the conclusion of the evening. [Def. Local Rule 56(a)(2) Statement ¶¶ 12-13]. The following Tuesday, Ms. Hudak reported to Lisa Newell, the local human resources manager, that Plaintiff made two unwanted advances towards her. [Def. Local Rule 56(a)(2) Statement ¶ 9]. Ms.Hudak told Ms. Newell that, a month earlier, Plaintiff walked her to her car in the company's parking lot and then kissed her on the cheek. [Id. ¶ 10]; [ECF 39-4, Def. Ex. B. (Newell Depo.) at 36:20-36:08]. Ms. Hudak reported that on February 17^th, she went out for drinks with Mr. Bailey as co-workers and then Ms. Hudak toured his apartment. [Def. Ex. B. (Newell Depo.) 36:15-36:20; 41:01-41:25]. She reported to Ms. Newell that when they walked back to her car, Plaintiff kissed her on the mouth and she pushed him away, but he then kissed her a second time. [Def. Local Rule 56(a)(2) Statement ¶¶ 14-16]. Ms. Newell testified that she asked Ms. Hudak open ended questions about the occasion. [Def. Ex. B. (Newell Depo.) at 39:13-39:14]. Ms. Newell testified that "The information she provided was credible that this was an encounter that two coworkers had, not a date. That she did not welcome Mr. Bailey's kiss." [Id. at 39:17-39:18]. Ms. Newell testified that she found Ms. Hudak's account credible because "Ms. Hudak is normally very professional in her speech and the manner in which she had said that "He stuck his tongue down my throat" was so uncharacteristic, that it rang very true that this was something she was very uncomfortable with, and that she did not want to have happen." [Id. at 44:10-44:14].

Ms. Newell and the news director, Keith Connors, then met with Mr. Bailey and his union representative, Ricky Santiago, concerning Ms. Hudak's complaint. [Def. Local Rule 56(a)(2) Statement ¶ 17]. Without disclosing Ms. Hudak's identity, Mr. Bailey was asked broadly for his account of the events and he confirmed that two kisses occurred on Saturday night, but said or implied that it was mutual, after a date. [Def. Ex. B. (Newell Depo.) at 41:01-41:07; 42:10-16; 43:01-43:14; 44:15-44:21]; [Def. Ex. A (Bailey Depo.) at 139:08-140:06]. Plaintiff denied that the Januaryincident occurred. [ECF 50-3, Pl. Ex. 1 (Bailey EEOC Aff. ¶ 25)]; [ECF 50-4, Pl. Ex. 2 (Bailey Depo.) at 278:14-278:16]; [Def. Ex. B. (Newell Depo.) 42:07-42:09]. The parties dispute whether Plaintiff offered to show Ms. Newell copies of text messages he exchanged with Ms. Hudak to support his version that they went out on a date. [Def. Ex. B (Newell Depo) at 115:03-115:08]; [Pl. Ex. 2 (Bailey Depo.) at 363:08-363:15]. Plaintiff testified that Ms. Newell said to him, "it sounds like you took advantage of a friend in need." [Pl. Ex. 2 (Bailey Depo) at 146:04-146:05].

A day after the meetings, Mr. Connors issued a verbal warning to Plaintiff. [Def. Local Rule 56(a)(2) Statement ¶ 24]; [ECF Ex. F (Draft Employee Displ.)]. Plaintiff was required to undergo sexual harassment prevention training and "refrain from making unwanted advances towards co-workers," but the terms and conditions of his job were not changed. [Def. Local Rule 56(a)(2) Statement ¶¶ 26-27, 30].² Although not stated in the disciplinary action form, Plaintiff was made to apologize to Ms. Hudak and was then scolded by Ms. Newell. [Def. Ex. B. (Newell Depo.) at 55:01-56:06]. Additionally, Plaintiff was counseled by his immediate supervisor, Chuck Carter, the assistant news director with whom he had a good relationship, to avoid situations with co-workers that could be misconstrued as sexual in nature. [Def. Ex. A. (Bailey Depo.) at 141:01-143:07].

Two months later, Alexandra Conroy, a video editor, reported to Ms. Newell that after an evening of drinks with their co-workers, Plaintiff kissed her on the mouth and groped her, which she reported as unwelcome. [Def. Local Rule 56(a)(2) Statement ¶¶ 31-33]; see also [Pl. Local Rule 56(a)(2) Statement of Addl. Facts ¶ 76]. Ms. Conroy testified that she told Ms. Newell that "[Mr. Bailey] got in my car and started forcefully making out with me and making me touch him and he was touching me in an unwanted way." [ECF. 39-10, Def. Ex. H (Conroy Depo.) at 66:24-67:03]; [Def. Ex. B (Newell Depo.) at 63:24-64:21].

Ms. Newell interviewed Plaintiff on the same day and he confirmed that they went out for drinks with co-workers, that they returned to Nexstar's parking lot, that he texted Ms. Newell to come into her car to say goodnight, that there was kissing, and he confirmed that there was touching above the clothes. [Def....