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December 13, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Plaintiff Anthony Nelson ("Nelson") drove trucks for DMP Contracting ("DMP"), a subcontractor for defendant Beechwood Organization ("Beechwood"). For two-and-a-half to three years, Nelson worked on DMP's projects for Beechwood. (Compl. at 10 (Letter from plaintiff to Les Lerner dated July 18, 2002 ("Lerner Letter"), 1).) After losing his job and allegedly suffering discrimination by Beechwood, Nelson filed a charge with the Equal Employment Opportunity Commission ("EEOC") on August 30, 2002 (Am. Compl. ¶ 10), and the EEOC issued Nelson a right to sue letter on September 24, 2002.*fn1 (Id. at 6.) Subsequently,*fn2 Nelson brought this employment discrimination action against Beechwood pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging racial discrimination, wrongful termination of employment, and unequal terms and conditions of employment.*fn3 (Am. Compl. ¶¶ 4, 7.) Now, pursuant to Rule 12(c), Beechwood moves for judgment on the pleadings, arguing that Title VII offers Nelson no relief as (1) Beechwood was never Nelson's employer; and (2) Nelson has not properly alleged racial discrimination. For the reasons that follow, the motion will be denied.


  The facts set forth below, drawn from Nelson's complaints, and the various documents attached to them, must be taken as true for Beechwood's motion for judgment on the pleadings, and all reasonable inferences must be drawn in Nelson's favor. Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003).*fn4 Nelson is an African-American man. (Am. Compl. at 5 (Letter from plaintiff to Chief Judge Mukasey, dated August 1, 2003 ("Mukasey Letter"), 1).) For twenty-three years, Nelson has been licensed to operate trucks. (Proposed Second Am. Compl. at 1.) During his over-three-year tenure at DMP, he performed substantial work for Beechwood: he "hir[ed] and dispatch[ed] all [truck] drivers" for DMP, and with those under his supervision, "removed thousands of yards of materials" for Beechwood. (Lerner Letter 1.) The precise nature of Beechwood and DMP's relationship is unclear (and at issue in this litigation), although Nelson states that DMP was Beechwood's "sub-contractor" (Lerner Letter 1); and that Beechwood "supervise[d], and coordinated all functions and all duties performed by DMP drivers and operating engineers." (P. Mem. 22.) According to Nelson, DMP "operators and drivers report[ed] and answer[ed] to Beechwood supers everyday . . . [and] [t]he supers, at the beginning of each day, t[old] the operators what dirt or rock they wanted removed, how deep, what grade to dig at . . . and where you dump[ed] your loads for the day." (Id.) DMP receives at least 90% of its work from Beechwood.*fn5 (Lerner Letter 2-3.)

  The incident that precipitated this action occurred on June 21, 2002, while Nelson was working on a dirt-hauling dump truck at one of Beechwood's Bronx sites. (Compl. ¶ 8.) On June 21, 2002, "Dean," an assistant supervisor for Beechwood, asked Nelson to remove scrap metal along with one of Beechwood's employees. (Lerner Letter 1.) Pressured to take the job or else lose work, Nelson accepted the assignment despite his reservations about the legality and safety of the work. (Proposed Second Am. Compl. at 1-2.) On the job, while waiting for another truck to be loaded, Nelson allowed a curious coworker to examine the inside of his truck's cab. (Lerner Letter 1.) When Nelson later noticed his cell phone missing, he suspected the phone was stolen. (Id.)

  Nelson reported the apparent theft to Dean, who responded with disbelief. (Id.) Nelson spoke to Dean for a second time on June 24, 2002, at which point Dean told Nelson that the same man had "walked off the site with the plumber's phone and hadn't been seen since — not even to get his paycheck." (Id. 1-2.) In accord with Dean's advice, on June 26, 2002, Nelson took his complaint to Jack Kennedy, the head supervisor. (Id.) Kennedy responded by being "rude, curt, short-tempered and curs[ed] [Nelson] about both laborers being in the truck." Kennedy ended the exchange by "wav[ing] [Nelson] away with his hand, dismissively, not interested in hearing that one of his workers stole [Nelson's] property." (Id. 2.) As he walked away, Nelson overheard Kennedy talking to Dean about Nelson, and Kennedy glared at Nelson. (Id.) Later, on his second attempt to talk to Kennedy, Kennedy was again rude. Consequently, Nelson told Kennedy that Beechwood employees could no longer ride or look in his truck. In addition, as he walked away from Kennedy, Nelson threw his coffee cup to the ground. In turn Kennedy yelled to Nelson "`don't come back to my motherf * * * king [sic] job no more!'" (Id.)

  Nelson reported the incident to Danny Peraglia, DMP's owner. When Peraglia spoke to Kennedy, Kennedy accused Nelson of smoking pot in his truck with the alleged thief. (Proposed Second Am. Compl. at 2-3.) Nelson wrote to Les Lerner, Beechwood's owner, and Reverend Floyd Flake, Lerner's associate, reporting the incident and requesting an investigation, but received no response. (Id. at 2-3; Compl. ¶ 8.) As a consequence of this episode, Nelson lost his job with DMP. Nelson's various submissions are somewhat ambiguous about whether DMP fired Nelson because DMP understood that Beechwood no longer wanted Nelson working at its sites (Lerner Letter 2-3), or due to Kennedy's allegations that Nelson smoked pot (Proposed Second Am. Compl. at 2-3), and about whether the firing was DMP's own decision or was directed by Beechwood.

  In addition to this central incident at the Bronx site, Nelson notes other factors contributing to a "negative work environment" at Beechwood's job sites, including "racial slurs being made about my Hispanic workers" (Lerner Letter 2); a refusal to translate instructions for Spanish-speaking drivers (Compl. at 8); comments that "emasculat[ed]" Nelson publicly (id.); "derogatory remarks and racial slurs," (Mukasey Letter 1); "[d]eflecting guilt on a Black man" (P. Mem. 24); and "unjust and intolerable harassment on a recurring basis" (Affidavit of Anthony B. Nelson, dated June 24, 2004 ("Nelson Aff."), ¶ 2.). Finally, Nelson suggests Beechwood disparately treated the same quality work by white, as opposed to, black or Hispanic, workers — that Beechwood "show[ed] an automatic preference for his own over us regardless of our superior work records and [our] squeaky clean backgrounds." (Id.)


  I. Standard on a Motion for Judgment on the Pleadings

  On a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), the Court must "accept? the allegations in the . . . complaint as true and draw? all reasonable inferences in favor of" the plaintiff, and may only dismiss the complaint if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Deravin, 335 F.3d at 200 (internal quotation marks and citations omitted). This standard deserves particular solicitude where, as here, a pro se litigant alleges a civil rights violation. Id.; see Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The Second Circuit has stated that "the pleading requirements in discrimination cases are very lenient, even de minimis." Deravin, 335 F.3d at 200 (internal quotation marks and citations omitted).

  II. The Employee-Employer Relationship Under Title VII

  Title VII protects employees from employers who "fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a). Beechwood argues that Nelson was never its "employee" as defined by Title VII, invoking a line of cases that attempt to distinguish employees from volunteers or independent contractors. (D. Mem. 3-5; D. Reply Mem. 1-4.) ...

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