Caesar v. AAA Ne.

IRWIN R. CAESAR, Plaintiff, v. AAA NORTHEAST, Defendant.

C.A. No. 17-cv-00130-S-PAS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

May 6, 2021

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, United States Magistrate Judge.

Plaintiff, Irvin R. Caesar, has sued his former employer, Defendant, AAA Northeast ("AAA"), alleging that he was fired in retaliation for his opposition to AAA's tolerance of a sexually harassing work environment affecting the employees who staffed its telephone call center during the nightshift.¹ His claim is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Rhode Island Fair Employment Practices Act ("FEPA"), R.I. Gen. Laws §§ 28-5-1, et seq., and the Rhode Island Civil Rights Act ("RICRA"), R.I. Gen. Laws §§ 42-112-1, et seq. ECF No. 1-1 at 4. The matter is before the Court on Defendant's motion for summary judgment. ECF No. 19.

I. Factual Background²

A. Background Regarding AAA

AAA is a member service organization that provides emergency roadside assistance to members who can call for help to a telephone call center that is staffed with trained AAA employees year-round, twenty-four hours a day, seven days a week. DSUF ¶¶ 1, 3. AAA's mission is to provide "Five Diamond service" to its members, to "do everything we can to help and serve [our members'] needs[, as] part of the exceptional member experience that they should expect." DSUF ¶¶ 7-8. Members contacting the AAA call center for roadside assistance are often in stressful or vulnerable situations and AAA requires that their issues be handled in a sensitive, skilled, and respectful manner. DSUF ¶¶ 5-6. To that end, AAA's employees are trained at new hire orientation that call center employees must tolerate some profanity from upset members. DSUF ¶¶ 9, 14. The pertinent training slide states: "[a]lways, at first, try to ignore the swearing[,]" but if it is repeated more than three times after the member has courteously been asked, "don't use those words," the employee should "[i]nvolve a supervisor immediately." ECF No. 20-1 at 117. This directive concludes with the statement: "[n]ever hang up on a member." DSUF ¶ 14. During the period in issue, Jeff Adams ("Adams") was the director of the call center at AAA's Providence, Rhode Island headquarters; Charlie Newton ("Newton") was its manager; Michael Galego ("Galego") was its assistant manager; and Stephanie Tomasso ("Tomasso") was its human resources ("HR") business partner. DSUF ¶¶ 2-4.

B. Caesar's Hiring and Early Expressions of Opposition to Sexually Harassing Conduct during Call Center Nightshift

In August 2015, AAA hired Caesar and assigned him to be the supervisor of the nightshift call center; he was the only supervisor working throughout the overnight hours. DSUF ¶¶ 10-11, 13. The parties dispute what Caesar was told during and after his new hire orientation about hanging up on callers who use profanity: AAA's Newton claims that AAA has "zero tolerance for . . . hanging up on members," and that "[i]t's a terminable offense," while Caesartestified to his understanding that it was "common knowledge" that AAA's employees could end a call if it was of a "sexual nature" with the "individual breathing or talking sexual on the phone," as well as that, if "[s]omebody is cursing out, calling you names, telling you that they are getting you fired, you don't stay on that call." PSUF ¶¶ 1-2; DSUF ¶¶ 9, 14-16.

On September 8, 2015, approximately one week after he started, Caesar forwarded an email³ to his direct supervisor, Newton, informing him of an array of issues with the work-place conduct of nightshift employees. This email includes the following:

From my observation, I've noticed that we have some great employees that come in and do their job well every night. . . .

There [also] have been employees watching questionable things on the companies [sic] desk top computer that could possibly turn into [a] liability issue for the company if another employee is offended by it. . . .

2. Use of phone and tablets - if an employee is watching an explicit video or listening to explicit lyrics on their phone or media device it could open the door for a complaint by another employee. (example: last night an employee[']s device went off and I could hear the words B****, B****, B****. . . .

8. Sexual Harassment and Discrimination: Ha[s] everyone on my team been trained on this subject. If there is a situation where an employee . . .

Please advise a good time for us to discuss[] these issues.

PSUF ¶¶ 3-4 (quoting ECF No. 22-1 at 2-3). Although Newton "up-channeled" the request for sexual harassment training to his supervisor, Adams, neither Newton nor Adams did anything to address Caesar's belief that nightshift employees were engaged in workplace conduct involving sexually offensive material serious enough to expose AAA to liability. PSUF ¶¶ 148-49, 154; ECF No. 22-3 at 5. Caesar was told nothing inresponse to his inquiry about sexual harassment training. PSUF ¶ 148. Despite Caesar's inquiry, at no relevant point did AAA provide sexual harassment training to the nightshift employees. PSUF¶ 154.

On October 5, 2015, Caesar emailed Newton and Tomasso, among others, about one of his supervisees who was rapping at his desk; this email raises the concern that "if he raps one wrong word and it's heard on the phone or by another employee, it could cost the company a lot of money and management hours." PSUF ¶ 18. This email also reiterates Caesar's concern from a month earlier that "[t]here have been employees watching questionable things on the companies [sic] desk top computer that could possibly turn into [a] liability issue for the company if another employee is offended by it." ECF No. 22-1 at 36. While AAA promised follow-up with the rapper, there was still no response to Caesar's now twice repeated request for help based on his belief that AAA faced risk of liability from nightshift employees being exposed to a sexually harassing workplace. Id.

On October 28, 2015, Caesar tried a third time, emailing Newton and Gallego with a request for assistance with his supervisees' "computer usage" - "what is and isn't appropriate in the workplace." PSUF ¶ 20; ECF No. 22-1 at 39-40. This email concludes: "the suggestive photos [below] can be seen and are enough to offend another employee in my opinion." ECF No. 22-1 at 39-40. Four screenshots are attached, all consistent with Caesar's characterization of them. During his deposition, Caesar amplified on this concern, testifying that, "while walking through . . . the call center[,]" "some of the things he saw [on employee computers] included seeing someone naked like Nicki Minaj or belly dancers with little clothes on." PSUF ¶ 147. It is disputed whetherCaesar told Newton that he saw "someone naked." Id. Newton and AAA never responded to Caesar's request for help. PSUF ¶¶ 67-68.

At some point during his first weeks on the job, Caesar became aware that one of his supervisees, a woman named Caitlyn Duclaw ("Duclaw"), was being investigated by AAA's HR department based on a co-worker complaint that she had called him a pedophile. PSUF ¶ 100; DSUF ¶ 48. In reliance on the limited information he knew, Caesar believed that the complaint that Duclaw had improperly used sexually harassing language was sustained⁴ (and the complaining employee's seat was moved) yet no adverse action was taken against Duclaw. PSUF ¶¶ 81, 93-95, 100-102. Instead, Newton told Caesar to "manage" the employee who complained about sexual harassment by Duclaw "out of AAA." PSUF ¶ 102. Caesar believed that AAA was protecting Duclaw despite her use of a sexually derogatory term directed at a co-worker. PSUF ¶ 95.

By early November, Caesar claims that he was alerting Newton to the use of loud and obscene language by nightshift employees. Specifically, on November 3, 2015, Caesar emailed Tomasso to advise her of an employee who "yell[ed] out an obscenity," which he had also brought to Newton's attention. PSUF ¶ 22; ECF No. 22-1 at 43. In mid-November, Caesar met with three employees about their concerns regarding the workplace conduct of coworkers. DSUF ¶ 17. Two of them complained that Duclaw and others on the nightshift were speaking loudly and inappropriately or provocatively. See ECF No. 20-1 at 276, 278. It is disputed whether at some unspecified time, the third employee told Caesar that Duclaw made "vulgar comments." PSUF ¶ 97-98. Caesar believed that these concerns were similar to those he had raised earlier. DSUF ¶ 17.Caesar also came to believe that this "conduct was an ongoing thing with . . . Duclaw harassing employees." PSUF ¶ 99. The parties dispute whether Caesar mentioned these complaints to Newton at the time he heard them. DSUF ¶ 17. It is undisputed that, at no time during November 2015 (or at any time since September 2015, when Caesar first raised the concern), did AAA do anything to address Caesar's repeatedly reported concerns that nightshift employees were being exposed to a sexually harassing work environment. See PSUF ¶ 154.

C. Thanksgiving Member Call

At 4:15 a.m. on Thanksgiving morning (November 26, 2015), a member contacted the call center asking for help with a dead car battery. DSUF ¶ 19.⁵ The responding employee provided an estimate of ninety minutes or less before help would arrive. Id. Unsatisfied, the member asked for a supervisor. Id. Caesar (the only supervisor available) took the call; the member was irate about the wait. Caesar repeatedly gave her the same estimated arrival time and told her that the only other option was for him to call the police if she was not in a safe location. DSUF ¶ 20. As the member became more upset, she said, "[O]kay, I'm in a safe fucking location. I need you to call the damn driver and expedite the call. Do you understand?" Id. ¶ 21. Caesar responded, "you're cursing; I'm going to end this call. The driver will be there in 90 minutes." Id. The member said, "You are not going to end...