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Daniel v. T&M Prot. Res. LLC

United States District Court, S.D. New York

February 19, 2015

OTIS A. DANIEL, Plaintiff,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Otis A. Daniel, Plaintiff, Pro se, New York, NY.

For T & M Protection Resources LLC, Edward J. Minskoff Equities, Defendants: Meredith Rosen Cavallaro, LEAD ATTORNEY, Paduano & Weintraub, L.L.P., New York, NY; Alicia Valenti, Paduano & Weintraub, New York, NY.

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Paul A. Engelmayer, United States District Jugde.

Pro se plaintiff Otis Daniel, a former fire safety director at 590 Madison Avenue in Manhattan (" 590 Madison" ) brings claims of discrimination against the company that directly employed him there, T& M Protection Resources (" T& M" ). Daniel alleges that he was subjected to a hostile work environment throughout his employment and ultimately terminated because of his race, perceived national origin, and/or perceived sexual orientation, and/or in retaliation for his complaints about the discriminatory treatment he experienced, in violation of Title VII of the Civil Rights Act of 1964 (*Title VII" ), 42 U.S.C. § 2000e et seq., and New York State and New York City anti-discrimination statutes. Daniel also alleges that T& M violated the Family and Medical Leave Act (" FMLA" ),29 U.S.C. $2601 et seq., by denying him medical leave, and committed common law negligence by subjecting him to the discriminatory conduct of the building's security director.

Pending now is T& M's motion for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. For the following reasons, T& M's motion is granted.

I. Background[1]

A. Daniel's Employment at T& M

Daniel is a 34-year-old black man from St. Vincent and the Grenadines, a small

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island in the Caribbean. Daniel Dep. 9-10. He moved to the United States at age 13. Id. at 10. Daniel identifies as gay, although he did not disclose his sexual orientation to his supervisors or co-workers at T& M. Id. at 247-48.

Daniel has worked as a security guard since 2005. Id. at 13. In late 2010, Daniel responded to an online advertisement for a fire safety director position with T& M, id. at 46-47, a global security and investigations firm based in New York City, T& M 56.1 ¶ 1. Tom Dolan, a T& M recruiter, interviewed Daniel and accepted his application. Daniel Dep. 46-47. To obtain a site assignment for Daniel, Dolan sent him to interview with various T& M clients including the managers of the UBS building and 590 Madison. Id. at 47-48.

At 590 Madison, Daniel interviewed with John Melidones, the security director, and Bill Wood, the assistant property manager. Id. at 48-51. About a week later, Dolan informed Daniel that he had gotten the job. Id. at 49. Daniel replaced a white Caucasian male who had been fired for being rude to tenants. Id. at 81. In February 2011, Daniel began working at 590 Madison as an at-will employee. Id. at 52; SAC p. 13. Melidones was his direct supervisor. Id. at 166. Daniel initially worked the day shift, from 8 a.m. to 4 p.m. Daniel Dep. 51. Throughout Daniel's employment, Melidones also worked during the day, from 7 a.m. to 3 p.m. Id. at 55.

Daniel testified that he experienced significant harassment based on his race, perceived national origin, and perceived sexual orientation. During Daniel's first week on the job, for example, Melidones told him that property managers near 590 Madison generally " prefer to hire white security personnel" and that he was " paying [Daniel] too much." Id. at 81, 103. Another incident occurred in July 2011, when Melidones told Daniel " smile; you look like a gorilla; why the angry face, smile." Id. at 90. Daniel also testified that, in addition to various other racially motivated comments and behaviors, Melidones made statements related to his (incorrect) belief that Daniel is from England: He imitated Daniel's accent, asked Daniel to define large words, and told Daniel to " go back to England." Id. at 91, 92, 109. According to Daniel, Melidones also harassed Daniel based on his perception that Daniel is gay: In June or July 2011, for example, Melidones brushed up against Daniel's buttocks, asked about Daniel's sexual orientation, and informed Daniel that his son is gay. Id. at 230.

In September 2011, Daniel transferred to the night shift and began working from 4 p.m. to 12 a.m. Id. at 57-58. Because Melidones continued to work from 7 a.m. to 3 p.m., Daniel saw Melidones in person less frequently and for shorter periods of time. See id. at 67-68, 71, 150. However, Daniel testified that Melidones's harassment continued. In March 2012, for example, Melidones called Daniel around 6 or 7 p.m. and told him " I am at the Broadway show Mary Poppins. . . . I can see you as

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Mary Poppins; you will make a good Mary Poppins." Id. at 234. Similarly, on one occasion in May 2012, Melidones slapped Daniel on the back and said " man up, be a man." Id. at 149. Melidones categorically denies using any discriminatory language or otherwise harassing Daniel. Melidones Aff. ¶ 9.

Tensions between Daniel and Melidones came to a head on Friday, May 4, 2012. On that date, Melidones instructed Daniel to go upstairs to Bain Capital and speak with Bain's office manager about an employee who was going to be terminated. Daniel Dep. 112. Instead of going upstairs to the Bain office, Daniel called the office manager on the telephone. Id. at 113. Seconds later, Melidones called Daniel and launched into a " screaming, belligerent, profanity-laced tirade." Id. at 114. In the course of berating Daniel, Melidones called him a " fucking idiot" and " fucking nigger." Id. at 114-15.

On Monday, May 7, 2012, Daniel remained extremely upset about Melidones's conduct and felt physically unable to go to work. See id. at 117. Accordingly, he sent Melidones a text message claiming that he was sick. Id. No other fire safety directors were available that day, so Melidones worked Daniel's shift himself. Melidones Aff. ¶ 18. During the shift, a mail delivery person attempted to deliver a package for Daniel. Id. Because T& M forbids security guards from receiving mail or packages at their worksites, Melidones rejected the delivery and commenced an investigation. Id. ¶ ¶ 18-20. From speaking with other security guards, Melidones learned that Daniel had received multiple packages at the worksite, including a BB gun that had been delivered in March 2012. Id. ¶ 20.

On May 8, 2012, Daniel returned to work and learned about Melidones's investigation. Daniel Dep. 122, 205. Late that night, he sent Melidones a text message that said:

I'd like to claim my sick day for yesterday 5/7/12. I understand you've a personal vendetta against me for maybe what transpired on Friday 5/4/12 with Bain Capital and me taking off yesterday due to illness. If this is the case John, please address it with T& M. The use of intimidation, threats, manipulation and lying about an employee causing him/her to resign or be terminated is unwarranted and unprofessional. I will be notifying T& M of your tactics.

Id. at 150-51; Daniel Sur-Reply, Ex. 2, at 58-60. The next day, May 9, 2012, Melidones served Daniel with a disciplinary write-up accusing him of having packages delivered to the worksite, including a package containing an imitation pistol. Daniel Dep. 207-08.

Daniel acknowledges that he had personal packages delivered to 590 Madison. See, e.g., id. at 197 (discussing 17 packages Daniel had delivered to 590 Madison); SAC p. 16 (" I did not and will not dispute having personal packages delivered to the worksite." ). He also concedes that the items delivered to his worksite included a Smith & Wesson BB gun that looked like a real gun, Daniel Dep. 177, 201, and that his possession of the BB gun may have run afoul of T& M's firearms policy, id. at 168-69, 174-75. In his defense, Daniel argues that he was not aware of T& M's unwritten policy prohibiting employees from receiving personal packages at work. Id. at 172. In fact, he testified, Melidones had affirmatively authorized his receipt of personal packages at 590 Madison. Id. at 183-85. Daniel also testified that he ordered a " toy gun" and had no idea that it would look so realistic or would qualify as a firearm. Id. at 177.

On May 15, 2012, Daniel appeared before a disciplinary committee composed of

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Melidones and four other T& M executives. Id. at 215. Daniel attempted to prove that Melidones had known about his personal package deliveries all along and was simply looking for an excuse to terminate him. Id. at 215-16. The committee was unreceptive to his arguments and recommended that Daniel be terminated. Id. at 216-17, 230; Gutstein Aff. ¶ 26.

On May 18, 2015, T& M's human resources director Toni Scarito notified Daniel of his termination via telephone. Gutstein Aff. ¶ 27. A " separation of service" form completed by Melidones states that Daniel " was having his personal pkgs and mail delivered to the lobby of his worksite" and " accepted delivery of an extremely realistic looking Smith and Wesson BB Gun." Daniel Sur-Reply, Ex. 22, at 192.

B. The DHR and EEOC Actions

On September 1, 2012, Daniel filed a complaint with the Equal Employment Opportunity Commission (" EEOC" ). Id. at 125-28. He asserted claims of discrimination based on race, national origin, sex, and sexual orientation as well as a claim of retaliation. Id. Because his sexual orientation claims are cognizable under state but not federal law, the EEOC referred him to the New York State Division of Human Rights (" DHR" ). SAC p. 21.

On September 5, 2012, Daniel filed a complaint with the DHR. Daniel Sur-Reply, Ex. 22, at 16-20. He asserted claims of discrimination based on race, national origin, and sexual orientation as well as claims of retaliation and sexual harassment. Id. T& M responded that Daniel had been terminated due to his unauthorized package deliveries and possession of a weapon. Id. at 131-35. Based on documentary submissions from Daniel and T& M, DHR concluded that Melidones's statements " may rise to a certain level of insensitivity but not to an actionable degree under discrimination law" and found that T& M had articulated " legitimate and nondiscriminatory business reasons" for Daniel's termination that were neither " pretextual nor otherwise unworthy of credence." Id. at 3-5. On March 4, 2013, the agency therefore issued a determination of " no probable cause" for the allegations in Daniel's complaint. Id. at 3. The DHR's order notified Daniel that he could appeal the agency's decision to the New York Supreme Court within 60 days. Id. at 4-5.

On April 18, 2013, the EEOC adopted the DHR's findings and closed its file on Daniel's complaint. SAC p. 44. It also issued a " Right to Sue" letter, notifying Daniel that he could file suit in federal or state court within 90 days. Id.

C. Procedural History of this Action

On June 24, 2013, Daniel filed the original complaint in this action. Dkt. 2. He named both T& M and Edward J. Minskoff Equities (" Minskoff" ), the company that manages the 590 Madison property, as defendants. Id. On August 19, 2013, Daniel filed an Amended Complaint. Dkt. 11. On September 25, 2013, Minskoff moved to dismiss the Amended Complaint. Dkt. 24-26. On October 7, 2013, Daniel filed the SAC. Dkt. 31.

On October 28, 2013, Minskoff moved to dismiss the SAC. Dkt. 33-34. Minskoff argued, among other things, that: (1) this Court lacks jurisdiction to hear Daniel's Title VII claim against Minskoff because Daniel filed his DHR and EEOC claims against only T& M, not Minskoff; (2) the federal and state statutory claims should be dismissed because Minskoff was not Daniel's employer and because the SAC failed to adequately allege wrongdoing by Minskoff; and (3) the common law negligence claim should be dismissed because Minskoff did not have a duty to protect Daniel, the SAC alleges no negligent conduct

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by Minskoff, and the SAC alleges only emotional harm.

On January 15, 2014, after briefing, the Court granted Minskoff's motion as to Daniel's negligence claim but denied it as to all other claims. Dkt. 43, reported at Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302 (S.D.N.Y. 2014). The Court held, inter alia, that the SAC contained sufficient factual allegations to support a plausible inference that Minskoff and T& M jointly employed Daniel and that Melidones was an agent of both companies, such that Minskoff could be held liable for Melidones's discriminatory conduct. Id. at 19, 21. As to Daniel's negligence claim, however, the Court noted that " allegations of employment discrimination cannot be transmuted into tort claims sounding in negligence." Id. at 22. The Court therefore dismissed Daniel's negligence claim, while preserving his federal and state employment discrimination claims.

On January 29, 2014, the Court granted Daniel's application for pro bono counsel and directed the Office of Pro Se Litigation to seek limited discovery counsel for him. Dkt. 44. On February 11 and March 10, 2014, two attorneys filed notices of appearance indicating that they would serve as pro bono counsel for Daniel. Dkt. 45, 50. In late April 2014, however, Daniel directed his counsel to withdraw and informed the Court that he had decided to proceed pro se. Dkt. 53-54, 56. On May 2, 2014, the Court authorized pro bono counsel's withdrawal. Dkt. 57.

On May 9, 2014, Daniel and Minskoff submitted a stipulation of dismissal for the Court's approval. Dkt. 61. On May 12, 2014, the Court so-ordered the stipulation. Dkt. 62.

Several months later, on November 13, 2014, Daniel sought to vacate the stipulation of dismissal. Dkt. 100. Daniel argued that he was " misled into believing that [Minskoff] as a matter of law could not be held fully liable for any of [his] claims alleged because [Minskoff] was not [his] or [his supervisor's] direct employer" and that he " did not understand the meaning of dismissal with 'prejudice'" Id. at 1. In response, counsel for Minskoff produced their email correspondence with Daniel, which unambiguously demonstrated that they had not behaved improperly in procuring the settlement agreement. See Dkt. 102-03. The Court therefore denied Daniel's motion to vacate the stipulation of dismissal with Minskoff. Dkt. 105.

On July 31, 2014, T& M--the sole remaining defendant--moved for summary judgment. Dkt. 65, 66 (" T& M Br." ). At Daniel's request, the Court approved an expedited briefing schedule. Dkt. 78. On August 4, 2014, Daniel submitted his opposition. Dkt. 75 (" Daniel Aff." ). On August 21, 2014, T& M filed its reply. Dkt. 80 (" T& M First Reply" ). On September 9, 2014, Daniel requested permission to file a sur-reply, Dkt. 90, and the Court granted his motion, Dkt. 91. On September 23, 2014, Daniel filed his sur-reply. Dkt. 93 (" Daniel Sur-Reply" ). And on October 23, 2014, T& M filed its second reply in support of its motion for summary judgment. Dkt. 97-98 (" T& M Second Reply" ).

II. Applicable Legal Standards

To prevail on a motion for summary judgment, the movant must " show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts " in the light most favorable" to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008); see also

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Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by " citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Those materials " 'must be admissible themselves or must contain evidence that will be presented in admissible form at trial.'" Delaney v. Bank of Am. Corp., 766 F.3d 163, 169-70 (2d Cir. 2014) (quoting Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001)). " [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," because " conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (citation omitted). Only disputes over " facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is " 'required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.'" Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).

In considering T& M's motion, the Court is mindful that Daniel is a pro se litigant whose submissions must be construed to " raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (citation and emphasis omitted). However, this forgiving standard " does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (citation omitted). " [B]ald assertion[s]" by a pro se litigant, " 'completely unsupported by evidence, [are] not sufficient to overcome a motion for summary judgment.'" Geldzahler v. N.Y. Med. Coll., 746 F.Supp.2d 618, 620 n.1 (S.D.N.Y. 2010) (quoting Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995)).

III. Discussion

Daniel asserts numerous claims under federal and state law. The Court first addresses Daniel's state and city statutory claims, which the Court finds procedurally barred. The Court then addresses, in turn, Daniel's Title VII claims, his FMLA claim, and his common law negligence claim.

A. State Statutory Claims

Daniel asserts claims under New York State Human Rights Law (" NYSHRL" ) and New York City Human Rights Law (" NYCHRL" ) for race, national origin, and sex discrimination as well as retaliation. See SAC p. 1-3. T& M argues that these claims are procedurally barred by the " election of remedies" provisions in the NYSHRL and NYCHRL. T& M Br. 5. Those statutes provide that a person who files a complaint with either the DHR or the New York City Commission on Human Rights (" Commission" ) thereby waives his right to sue in court. See N.Y. Exec. Law § 297(9) (" Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights." (emphasis added)); N.Y. City Admin. Code § 8-502(a) (similar).

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Accordingly, courts are required to dismiss suits if the plaintiff previously lodged a complaint with the DHR or the Commission. See id. This bar applies in federal as well as state court. See York v. Ass'n of the Bar of City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002); see also McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 74 n.3 (2d Cir. 2010) (" [A] state law depriving its courts of jurisdiction over a ...

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