The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Anthony B. Nelson ("Nelson"), an African-American man, brings this employment discrimination action alleging that he was subjected to a hostile work environment, and subsequently terminated, on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"). Defendant Beechwood Organization ("Beechwood") moves for summary judgment pursuant to Fed. R. Civ. P. 56, contending that (1) there is no evidence that Nelson was discriminated against on the basis of race; and (2) Beechwood was not Nelson's employer. For the following reasons, Beechwood's motion will be granted, and the case will be dismissed.
Beechwood is a construction company that develops housing projects. Nelson drove tucks for DMP Contracting ("DMP"), a Beechwood subcontractor, and for two-and-a-half to three years he worked almost exclusively on projects for Beechwood, reporting directly to Beechwood personnel. Nelson v. Beechwood Org., No. 03 Civ. 4441, 2004 WL 2978278, at *1 (S.D.N.Y. Dec. 21, 2004). DMP receives at least 90% of its work from Beechwood. (De Santis Aff. Ex. E, Nelson Dep., at 56-57). During Nelson's time at DMP he became their "number one driver," took on substantial managerial-type duties such as hiring and dispatching drivers, and received job site instructions directly from Beechwood supervisors. (De Santis Aff. Ex. F.)
Taking the evidence in the light most favorable to Nelson, the events leading up to Nelson's dismissal are as follows. On June 21, 2002, Dean Hennedy, an assistant supervisor for Beechwood, asked Nelson to remove scrap metal from one of Beechwood's Bronx sites along with a co-worker. Although leery about the legality of the work and the potential for damage to his truck, Nelson eventually accepted and completed this task. (Nelson Dep. 87-96.) Back at the site, while awaiting another load, Nelson allowed a curious co-worker to examine the inside of his truck's cab, in which Nelson left his cellular phone.*fn1 A short time later Nelson noticed that his cell phone was missing from the cab, and he suspected it had been stolen by that co-worker. Nelson, 2004 WL 2978278, at *1; (Nelson Dep. 99-102).
Nelson reported the incident to Hennedy, who initially was skeptical that the co-worker had taken the phone. (Lerner Letter 1.) But when Nelson approached him days later, Hennedy told Nelson that the co-worker, who had since disappeared and had not returned to the job site, was also suspected of stealing a supervisor's phone, and that Nelson should speak to Jack Kennedy, Beechwood's head supervisor, about the situation (Nelson Dep. 102-03), which Nelson did on June 26, 2002. Kennedy responded "as usual" by being "dismissive" (Lerner Letter 2), "rude and abrasive" (id.; Nelson Dep. 103), and, after an initial confrontation, staring at Nelson "challengingly" (Lerner Letter 2). After Nelson told Kennedy that he suspected the co-worker of taking his phone when the co-worker was inside Nelson's truck, the following heated exchange ensued:
Kennedy: What the fuck is anybody doing up in your truck?*fn2
Nelson: You know, Jack, for three years you have had a chip on your shoulder. You have been screaming and been very abusive. My phone was stolen and I'm just trying to ask some questions here.
Kennedy: Don't come back to my motherfucking job sites anymore.
Nelson: Listen snapper head, don't come back to my neighborhood anymore either.
(Nelson Dep. 104-08; Lerner Letter 2.) As Nelson walked away he threw his cup of coffee to the ground in disgust. (Id.)
Kennedy, in his affidavit, claims that after he raised the fact that Nelson should not have allowed other workers in his truck, Nelson "accosted me with raised voice and menacing behavior," upon which Kennedy asked Nelson to leave the site. He also claims that Nelson threw down the coffee cup in his direction "and continued to exhibit menacing behavior." (Kennedy Aff. ¶ 9.) Nelson left the jobsite, and apparently was not permitted by Kennedy to return to any Beechwood site.
Nelson reported this incident to Danny Pirraglia, DMP's owner, as well as Les Lerner, Beechwood's owner. After approximately one week, during which time Nelson worked at the DMP yard and did not return to any Beechwood site, Pirraglia fired Nelson. (Nelson Dep. 80-84.) Nelson believes that although Pirraglia wanted to retain Nelson as an employee, he could not do so because DMP worked primarily, if not exclusively, for Beechwood, and Kennedy would not allow Nelson back at any Beechwood sites. (Lerner Letter 2-3; Nelson Dep. 76-77.) Nelson alleges that Pirraglia went to speak to Kennedy about taking Nelson back, but that Kennedy refused, telling Pirraglia that Nelson had been smoking marijuana with the co-worker who allegedly stole Nelson's phone, which Nelson vehemently denies.*fn3 (Nelson Dep. 79-80, 83.)
In addition to the June 26, 2002, incident, Nelson recounts numerous instances of mistreatment by Beechwood ...