OTIS A. DANIEL, Plaintiff,
T&M PROTECTION RESOURCES, INC., EDWARD J. MINSKOFF EQUITIES, Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
Otis Daniel, a former Fire Safety Director at 590 Madison Avenue, New York, NY ("590 Madison"), brings this lawsuit pro se against the company that directly employed him there, T&M Protection Resources ("T&M"), and the property manager of the building, Edward J. Minskoff Equities ("Minskoff"), alleging that they harassed and fired him because of his race, national origin, and sexual orientation, violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq, and committed common law negligence by subjecting him to the discriminatory conduct of their agent, the building's security director, John Melidones. Minskoff now moves to dismiss on the grounds that: (1) the Title VII claim against it is not cognizable because Daniel's charge from the New York State Department of Human Rights did not mention Minskoff; (2) the Complaint in any event does not state a claim for employment discrimination or under the FMLA because it fails and also because Minskoff was not his employer; and (3) the Complaint does not state a claim for common law negligence. Minskoff also argues that if the federal claims against it are dismissed, this Court should decline to exercise supplemental jurisdiction over Daniel's claims brought under state law. For the reasons that follow, the motion to dismiss is denied as to the Title VII, FMLA, NYSHRL, and NYCRL claims against it, and granted as to the negligence claim.
A. The Parties
Minskoff is the property manager and a co-owner of 590 Madison, also known as the IBM Building, a 42-story commercial office building in midtown Manhattan. SAC ¶¶ 2-4. T&M has a contract with Minskoff to provide security services at 590 Madison. Id. ¶¶ 9, 14, 17. Daniel worked as a Fire Safety/Emergency Action Plan (EAP) director at 590 Madison between February 1, 2011 and May 18, 2012. Id. ¶¶ 35, 52. Daniel avers that he was an exceptional employee who did his work with little to no need for supervision. SAC Claim 1 ¶ 7.
B. Daniel's Employment at 590 Madison
On December 28, 2010, Daniel was interviewed and hired by a security personnel recruiter at T&M, Tom Dolan. SAC ¶ 32. In December 2010 and January 2011, Dolan sent Daniel to interview for Fire Safety and/or EAP positions with a number of T&M clients. Id. ¶ 33. In late January, Dolan sent Daniel to 590 Madison to be interviewed by William Woods, Minskoff's assistant property manager, and John Melidones, the building's security director. Id. ¶ 34.
On February 1, 2011, Daniel started work at 590 Madison as a Fire Safety/EAP director. Id. ¶¶ 35-36. Melidones delegated supervisory duties to Daniel and another fire safety/EAP director. Id. ¶ 35. Daniel's duties were to: (1) monitor and respond to the fire command station in the rear lobby of 590 Madison; (2) make announcements over the public address system regarding potential fire emergencies, including their affected areas and routes of escape; (3) act as a liaison between first responders and tenants; (4) assist with or conduct fire drills; and (5) inspect equipment such as fire extinguishers and alarms. Id. ¶ 36. Daniel was stationed at a work podium in the rear lobby.
Melidones told Daniel that he would receive a pay raise if he passed an on-site test mandated by the Fire Department, City of New York (FDNY). Id. ¶ 35. On August 11, 2011, an FDNY Inspector came to 590 Madison and administered to Daniel an oral, written, and visual on-site fire safety director examination. Id. ¶ 37. In September 2011, Daniel learned he had passed the exam. Id. The FDNY then issued him a license bearing his photograph, certifying him as a fire safety director at 590 Madison. Id.
On December 1, 2011, Joseph Greisch, Minskoff's building manager, wrote to the FDNY to schedule a second examination for Daniel, this time as an EAP director. Id. ¶ 38; id. Ex. A, p. 5. The fire safety director license is a prerequisite for the EAP director license. Id. ¶ 38. Greisch's letter referred to Daniel as "an employee of T&M Protection in good standing." Id. Ex. A, p. 5. Daniel appears to have obtained his EAP license. Id. ¶ 38; id. Ex. A, p. 6.
C. The Alleged Denial of Leave for Family and Medical Reasons
The SAC alleges that, during the course of Daniel's employment, Melidones frequently denied Daniel's requests for leave to enable him to deal with his own illnesses or his father's diabetes and renal failure and ensuing hospitalizations. SAC Claim 7 ¶ 1. The SAC states that Greisch, after seeing or hearing how sick Daniel was, instructed Melidones to grant Daniel days off on numerous occasions. Id. ¶ 2. The SAC alleges that the denials and delayed approvals of Daniel's leave requests by Melidones "and or" Griesch caused his medical condition to worsen and caused him extreme emotional and mental anguish as a result of worrying about his father's health condition. Id. ¶ 3.
On February 7, 2011, during Daniel's second week on the job, he found himself in excruciating pain, unable to walk or stand for long periods. Id. Melidones and Greisch saw that Daniel was in pain. Id. ¶ 2. After work, Daniel went to the emergency room at St. Luke's-Roosevelt Hospital, where he was told that an abscess in his thigh was causing an infection to spread throughout his body and affect his kidneys. Id. He was placed on antibiotics and kept in the hospital for three days. Id. During that time, Melidones threatened, by both phone and text message, to fire Daniel if his illness had been fabricated, and demanded a doctor's note before Daniel could return to work. Id. Although the doctor told Daniel that he would be ready to return to work on Monday, February 14, 2011, Daniel appears to have returned to work earlier, on Thursday, February 10, 2011, because he felt that he otherwise risked losing his job. Id. Some time in February 2011, perhaps during his hospitalization, Melidones told Daniel, contrary to company policy, that if Daniel needed to take off work, he would need to find his own replacement. Id. ¶¶ 4-5. In August 2011, Melidones repeated this directive to Daniel. Id. ¶ 4. This forced Daniel to rely on a single replacement, who was available only on certain days of the week. Id. ¶ 5.
Between June 2011 and December 2011, there was a foul odor in the lobbies of 590 Madison. Id. ¶ 2. The odor emanated from the ceiling vents, below which Daniel and other security personnel directly stood. Id. In December 2011, building engineers discovered that the odor was caused by a badly corroded and ruptured sewer pipe. Id. Daniel alleges that the odor caused him to be sick. Id.
In December 2011, Daniel was suffering from excruciating pain in his teeth and gums. SAC Claim 8 ¶ 16. Because he was unable to take off work, he had to see a dentist "on an emergency basis." Id.
D. The Alleged Harassment Based on Sexual Orientation
Daniel, a gay man of African descent from St. Vincent and the Grenadines, in the West Indies, alleges that Melidones repeatedly harassed him on the basis of his race, sexual orientation, and nationality. SAC ¶ 39. Daniel also alleges that Melidones harassed other workers and that all such workers who attempted to complain to T&M or Minskoff management about the harassment were fired. Id.
Daniel alleges that almost every day between June and September 2011, Melidones watched Daniel change his clothes or nap in the male locker room. SAC Claim 3 ¶ 2. One day in July 2011, at around 2 p.m., Melidones came to Daniel's work podium, brushed his genitals against Daniel's buttocks, and asked Daniel if he was gay. Id. ¶¶ 3-4. When Daniel did not respond, Melidones told him that his son was gay. Id. ¶ 3.
Between July 2011 and September 2011, almost every day after Daniel returned from work, Melidones came up behind him at his podium and said, apparently in reference to nearby co-worker Manual Perdomo, "Manny the Homo, Manny the Homo, Homo." Id. ¶ 5. In September 2011, Daniel changed work shifts to the 4 p.m. to midnight shift, primarily to avoid working with Melidones. Id. ¶ 7.
Between September 2011 and May 2012, Melidones repeatedly told Daniel "be a man, man up." SAC Claim 5 ¶ 1. Daniel believes that Melidones said this to him in reference to his sexual orientation. Id. These comments made Daniel "feel emasculated, not masculine or manly enough." Id.
In March 2012, Melidones called Daniel at his workstation to inform Daniel that he, Melidones, was at a Broadway show, Mary Poppins, and remarked "I can see you as Mary Poppins, you'll make a good Mary Poppins." Id. ¶ 6.
Daniel alleges that T&M and Minskoff management knew about this harassment but did nothing. Id. ¶ 8; SAC Claim 3 ¶ 14.
E. The Alleged Harassment Based on National Origin
During Daniel's employment, Melidones frequently spoke to him in an imitated English accent, told him he was not black, asked him about British affairs, and told him to go back to his country of England. SAC Claim 6 ¶¶ 1-3. Daniel believed that Melidones relentlessly questioned him about British affairs because Daniel speaks with an accent and Melidones believed he was English. Id. ¶ 2. Greisch and Lisa Migliore, Minskoff's office manager, also repeatedly spoke to Daniel in an imitated English accent. Id. Melidones also randomly asked Daniel the meaning of large words. Id. ¶ 4. Daniel believed that Melidones did this to belittle him. Id.
In March 2011, Daniel, a naturalized citizen, SAC Claim 4 ¶ 14, showed Melidones a copy of his birth certificate, stating that he was born in St. Vincent and the Grenadines. Melidones responded by asking him why he came to the United ...