Litter Mendotson, PC ne Internationa Place Sutte 2700, Boston, MA 02110 CChstophor 8. Kaczmarek 617.378.6017 direct, May 18, 2018 817.378.6000 main 517 507 8046 fox ckaczmarek@litler com VIA EMAIL AND FIRST CLASS MAIL Tania Taveras Administrative Assistant Massachusetts Commission Against Discrimination ‘One Ashburton Place Boston, MA 02108 Re: Mary Jayne Brackett-Kelly v. Wynn MA LLC MCAD Dy 8BEM00869; EEOC No. 11 Dear Ms. Taveras: This Is the position statement of respondent Wynn MA, LLC (“Encore Boston Harbor,” formerly. “Wynn Boston Harbor” or the “Company” in response to the above-referenced charge of discrimination filed by Mary Jayne Brackett-Kelly. In her charge of discrimination, Ms. Brackett- Kelly alleges that she was subjected to a hostile work environment based on her sex while employed by Encore Boston Harbor. As discussed herein, Ms. Brackett-Kelly’s claims are meritless, Accordingly, the Commission should dismiss her charge of discrimination. I. Discussion On September 16, 2014, the Massachusetts Gaming Commission awarded the sole gaming license for Boston to the Company. Although Wynn Resorts, Limited is a large, public company, in 2014 Encore Boston Harbor was comprised of a small, four-person team: Bob DeSalvo, President; Jacqui Krum, General Counsel; John Tocco, Director of Community Relations; and Jennie Peterson, a Manager of Development. In October 2015, Encore Boston Harbor hired Ms, Brackett-Kelly to serve as administrative assistant to Mr. DeSalvio, the Company's President, and to provide general office support to the other members of the fledgling team. In June of 2015, a few months prior to Ms. Brackett-Kelly’s hiring, Greg Dauenhauer joined as Vice President and Chief Information Officer (“CIO”). From an information technology perspective, opening a large hotel and casino is a very different exercise than simply managing a property once it has opened. For example, the opening phase includes the development of important long-term strategy. Accordingly, when Tom Dillon, the Senior Vice President and CIO who had opened the Wynn Palace in Macau, China became avallable, Matt Maddox, then- President of Wynn Resorts, Limited, called Mr. DeSalvio and asked him if he could use Mr. Dillon’s help in the opening of the Encore Boston Harbor property. Mr. DeSalvio accepted theTania Taveras May 18, 2018 Page 2 extra help. It was understood that Mr. Dillon would come on as CIO for the opening work and that, once the property was opened, Mr. Dauenhauer would stay on to run the property as CIO and Mr. Dillon would move on to open another property for Wynn Resorts, Limited. Mr. Dillon started working at Encore Boston Harbor temporary offices in Medford on November 1, 2016, A, Ms. Brackett-Kelly’s Initial Complaint On Friday, January 20, 2017, Ms. Brackett-Kelly was visibly upset at her desk. Michael Carazza, the Company's Director of Compliance and Investigations, was walking past and noticed her distress, He asked if she was okay and, when she shared that she had been deeply upset by an incident between her and Mr. Dillon, Mr. Carazza stated that they needed to inform Ms. Krum. (As General Counsel with no Human Resources employees on property, Ms. Krum helped manage employee issues.) On Tuesday, January 23, 3017, Mr. Carazza and Ms. Krum interviewed Ms. Brackett-Kelly. Ms. Brackett-Kelly stated that Mr. Dillon had made her feel uncomfartable since he had arrived in the office. Specifically, she stated as follows: ‘+ Ms, Brackett-Kelly stated that the first Incident occurred when she was taking Mr. Dillon‘s photograph for his Massachusetts Gaming License application. She asked him to stand against the wall for a white background and instead he faced the wall, “spread eagle,” and asked if she wanted to “frisk him." Ms, Brackett-Kelly replied that she just wanted to take the picture but “my husband is a cop and he would frisk you.” ‘* Ms, Brackett-Kelly went on to state that during Mr. Dillon's second or third week in the office, he asked her to meet him for breakfast outside the office. Ms. Brackett-Kelly demurred and went to ask Mr. DeSalvio if she was going to be acting as assistant to Mr, Dillon as well, or just Mr. DeSalvio, She did not share with Mr. DeSalvio that Mr. Dillon had invited her to breakfast or that she was uncomfortable about the request. Ms. Brackett-Kelly claimed that the following day, Mr. Dillon said "You never met me for breakfast, I'm not used to rejection” and that Mr. Dauenhauer overheard the conversation «Ms. Brackett-Kelly stated that some weeks later, Mr. Dillon called her office telephone and said that he had a problem, that he had “pooped his pants.” She stated that he further explained that he had sat on some chocolate and that he needed a new chair, She continued that he then came to her cubicle and said, "Can you look at my butt and see iF T have poop on my pants?” and stuck out his rear end. To this end, Ms. Brackett- Kelly further stated that Mr. Dillon was always telling her about his “bodily functions” ‘and asking for suggestions for doctors. For example, he complained of diatthea and upset stomachs and asked for recommendations for medications,Tania Taveras May 18, 2018 Page 3 + Ms, Brackett-Kelly further stated that a few weeks after this incident, Mr. Dillon asked her for recommendations on a good Italian restaurant, explaining that his wife was coming to visit and that he “was hoping to get laid.” Ms. Brackett-Kelly replied that perhaps someone else in the office could help him with a restaurant recommendation, + The action that prompted Ms. Brackett-Kelly’s complaint to management occurred on the morning of Friday, January 20, 2017, Ms. Brackett-Kelly claimed that Mr. Dillon “barged” in and told her that he needed to get to Las Vegas from February 5-8, 2017 (Ms, Brackett-Kelly booked travel for most Company employees). He asked Ms. Brackett-Kelly to look at Delta and JetBlue flights and, while she was looking, he came around the desk and started rubbing her shoulders. Ms, Brackett-Kelly claimed that she told him that she didn’t want him touching her and that he backed up, apologized and stated, “It's always been okay in Asia.” Ms, Brackett-Kelly replied that ‘We are not in Asia and I don't feel comfortable with you touching me.” She said that Mr. Dillon proceeded to tell her a story about his prior boss at Hilton and a woman who was really attractive and "stacked." Mr. Dillon purportedly told a long tale about how his manager leered at the woman. Mr. Dillon then proceeded to recall more anecdotes about his former boss, including one wherein he used a racial slur. Ms, Brackett-Kelly then stated that a few hours later, Mr. Dillon approached her again and apologized stating, “I really didn’t mean anything by that.” * Despite his apologies, Ms. Brackett-Kelly stated that she did not feel comfortable in Mr, Dillon’s section of the office and that she no longer wished to engage with him, B. The Company Investigates Ms. Brackett-Kelly's Allegations In response to Ms, Brackett-Kelly’s claims, Mr. Carazza and Ms, Krum undertook an investigation. ‘They spoke with Mr. Dauenhauer who stated that while Mr. Dillon was “weird” and “awkward,” he had never witnessed any inappropriate behavior between Mr. Dillon and anyone In the office, Ms. Krum wrote to the Macau office human resources group and asked if there had been any previous complaints or discipline with regard to Mr. Dillon during his tenure; and there had not been. On the afternoon of January 23, 2017, Mr. Carazza and Ms. Krum interviewed Mr. Dillon. Upon entering the room, Mr. Dillon immediately stated that he “knew what this was about.” He explained that while Ms, Brackett-Kelly was working on her computer to book the travel, he touched her shoulders to look over her at the screen. He said that Ms. Brackett-Kelly responded that it was inappropriate and that he apologized to her. He said that he apologized again on the Monday following the incident. When asked about his inviting Ms. Brackett-Kelly to breakfast, he stated that it was his gesture of friendship, and that he had always tried to “build work relationships on trust, ownership, and dedication.” He said that he thought they would be working together and it was intended as a “treat.” He does not recall stating that he felt rejected by her refusal to attend,