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
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
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.) ...