Petition for Writ of Certiorari — Otis A. Daniel, Petitioner v. T&M Protection Resources, LLC
Supreme Court briefSep 18, 2019
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IN THE
SUPREME COURT OF THE UNITED STATES
Otis A. Daniel, Petitioner
Vs.
T&M Protection Resources, LLC., Respondent
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
JOINT APPENDIX
Otis A. Daniel
P.O. Box 1231
New York, NY 10150
(347) 262-6834
pro se plaintiff-petitioner
Mr. Leonard Weintraub
Paduano & Weintraub LLP
1251 Avenue of the Americas
9th floor
New York, NY 10020
(212) 785-9100
Attorney for defendant-respondent
TABLE OF CONTENTS
Page(s)
APPENDIX A - 2nd Circuit Court summary order affirming judgment,
07/02/2019 [18-2351 Dkt#65]___________________
01
APPENDIX B - 2nd Circuit Court order denying petition for rehearing,
08/15/2019 [18-2351 Dkt#68]____________________
05
APPENDIX C - 2nd Circuit Court summary order vacate & remand,
04/25/2017 [15-560-cv]______________________
06
APPENDIX D - 2nd Circuit Court order re-instating appeal, 08/16/2016
[15-560-cv]_____________________________________
10
APPENDIX E - 2nd Circuit Court order denied & dismissed appeal
04/30/2015 [15-560-cv]______________________
12
APPENDIX F - S.D.N.Y opinion & order granting judgment to T&M,
07/12/2018 [13 Civ. 4384 Dkt#175 & 185]________
13
APPENDIX G - S.D.N.Y order unseals motion for reconsideration,
08/15/2018 [13 Civ. 4384 Dkt#204]____________
60
APPENDIX H - S.D.N.Y opinion & order granting summary judgment to T&M,
02/19/2015 [13 Civ. 4384 Dkt#106]_______________________ 61
APPENDIX I - S.D.N.Y opinion & order denied motion for reconsideration
02/24/2015 [13 Civ. 4384 Dkt#114]____________________
105
APPENDIX J - S.D.N.Y opinion and order granting motion to dismiss,
01/15/2014 [13 Civ. 4384 Dkt#43]________________
112
APPENDIX
A
2NU Circuit Court of Appeals
summary order affirming judgment
07/02/2019
case No. 18-2351
Case 18-2351, Document 65-1, 07/02/2019, 2598889, Pagel of 4
18-2351-cv
Daniel v. T&M Prot. Res., LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1,2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
2nd day of July, two thousand nineteen.
Present:
ROSEMARY S. POOLER,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
OTIS A. DANIEL,
Plaintiff-Appellant,
v.
18-2351-cv
T&M PROTECTION RESOURCES, LLC,
Defendant-Appellee. i
Appearing for Appellant:
Otis A. Daniel, pro se, New York, N.Y.
Appearing for Appellee:
Meredith Cavallaro, Leonard Weintraub,
Paduano & Weintraub LLP, New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Engelmayer, J.).
The Clerk of the Court is directed to amend the caption as above.
Appeftt/X fir
I
Case 18-2351, Document 65-1, 07/02/2019, 2598889, Page2 of 4
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Appellant Otis Daniel, pro se, sued his former employer, T&M Protection Resources,
LLC (“T&M”), under Title VII for hostile work environment. He alleged that his supervisor,
John Melidones, harassed him based on his race (Black), national origin (St. Vincent and the
Grenadines), and sex/sexual orientation (male and gay). The district court initially granted
summary judgment to T&M, but we vacated the judgment. Daniel v. T&MProt. Res., LLC, 689
F. App’x 1 (2d Cir. 2017) (summary order). On remand, the district court held a bench trial and
found in favor of T&M. Daniel appeals. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
“In reviewing a judgment entered after a bench trial,” we review the district court’s
findings of fact for clear error and its “conclusions of law, and its application of the law to the
facts, de novo.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012). “Where there are
two permissible views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Id. (internal quotation marks omitted) (quoting Anderson v. Bessemer City, 470 U.S.
564, 574 (1985)). Further, we may not “second-guess the bench-trial court’s credibility
assessments.” Id.
The factual findings of the district court that Daniel challenges on appeal are not clearly
erroneous. First, the district court found that Daniel lacked credibility with respect to the most
serious incidents, i.e., that Melidones had called Daniel a racial slur and had rubbed his genitals
on Daniel’s buttocks while asking if Daniel was gay (in May 2012 and July 2011, respectively).
Daniel failed to mention these events in any of the numerous letters or complaints he wrote
before or after his termination. The court also found that Daniel’s testimony as to the racial slur
incident lacked credibility because it “betrayed a degree of paranoia and an easy willingness to
blame T&M and/or Melidones” for his life’s circumstances. Daniel v. T&MProt. Res. LLC, No.
13 Civ. 4384 (PAE), 2018 WL 3621810, at *15 (S.D.N.Y. July 19, 2018). Finally, Melidones’s
denial of using the slur was consistent with the testimony of other former T&M employees, who
credibly testified that Melidones had never used those words or exhibited racial bigotry. The
district court’s factual findings are thus amply supported by the record.
Nor do we find merit in Daniel’s remaining challenges to the district court’s factual
findings. Most of those findings were based on a credibility assessment, by which the district
court found Melidones’s denial of the events more credible than Daniel’s story. Because “there
are two permissible views of the evidence,” the district court’s decision to choose T&M’s view
“cannot be clearly erroneous.” Krist, 688 F.3d at 95.
Daniel further argues that the exhibits T&M submitted to the court were misleading and
knowingly incomplete. He does not point to anything more than the fact that T&M argued that
Daniel mostly relied on his personal recollection as evidence for his claims, rather than extrinsic
evidence, and that T&M objected to the introduction of a letter belatedly submitted for trial. He
relies on his motion for reconsideration as support for his argument that T&M’s trial exhibits
were incomplete. The reconsideration motion included a copy of a complaint Daniel filed with
the Equal Employment Opportunity Commission, but the complaint failed to mention that
A-bfiM 1>K yf ^
Case 18-2351, Document 65-1, 07/02/2019, 2598889, Page3 of 4
Melidones rubbed him with his genitals or that Melidones used a racial epithet. It also included a
copy of a document Daniel filed with the New York State Division of Human Rights that failed
to mention either incident; it merely stated that Melidones rubbed his shoulder on Daniel’s
shoulder, not his genitals on Daniel’s buttocks. Neither of these documents would render the
district court’s factual findings erroneous or show that T&M’s exhibits were incomplete or
misleading. The remaining exhibits, which included various emails and letters Daniel wrote
during the course of litigation, do not have any bearing on the completeness of T&M’s trial
exhibits.
As for Daniel’s challenges to the district court’s legal conclusions, those arguments are
meritless. “In order to establish a hostile work environment claim under Title VII, a plaintiff
must produce enough evidence to show that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Rivera v. Rochester
Genesee Reg’l Transp. Auth, 743 F.3d 11, 20 (2d Cir. 2014) (internal quotation marks omitted).
A “[pjlaintiff must show not only that she subjectively perceived the environment to be abusive,
but also that the environment was objectively hostile and abusive.” Demoret v. Zegarelli, 451
F.3d 140, 149 (2d Cir. 2006). “[A] mild, isolated incident does not make a work environment
hostile[.] [Instead,] the test is whether the harassment is of such quality or quantity that a
reasonable employee would find the conditions of her employment altered for the worse.” Terry
v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (emphasis omitted) (internal quotation marks
omitted).
Daniel alleges, and the district court found, that Melidones: (1) sang a calypso song in
Daniel’s presence; (2) occasionally mocked Daniel’s accent; (3) occasionally called another
guard “Manny the homo” in Daniel’s presence; (4) occasionally asked Daniel to define large
words; and (5) asked Daniel if he supported Barack Obama. These allegations, even if true,
established only mild or isolated instances of harassment, which are insufficient to create a
hostile work environment. See id.
Daniel next argues that the district court proceedings were unfair to him because (1) he
was pro se for most of the case, (2) his pro bono counsel at trial made bad strategic choices and
that he had “valid legal claims that were dropped or removed from the case,” Appellant’s Br. at
16, and (3) his counsel and T&M did not address certain documents submitted to the district
court prior to trial and he was never questioned about these issues. However, the district court
appointed Daniel counsel for both discovery and trial, minimizing any risk that his pro se status
would have affected the outcome of his case. To the extent Daniel argues that his trial counsel
was ineffective, there is generally no right to counsel (and therefore no right to effective counsel)
in civil cases. See Turner v. Rogers, 564 U.S. 431,441-42 (2011) (holding that “the Sixth
Amendment does not govern civil cases” and individuals will only have a right to counsel in civil
cases when facing the possibility of incarceration). Further, the other claims that Daniel asserted
in his amended complaint were dismissed, and his appeal of those dismissals was also dismissed
as frivolous. Finally, T&M had no obligation to assist Daniel in proving his case, and Daniel
should have discussed these documents with his attorney.
3
fitpfiedlxK A-
Case 18-2351, Document 65-1, 07/02/2019, 2598889, Page4 of 4
We have considered the remainder of Daniel’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its
own costs.
FOR THE COURT:
Catherine O’Hagan Wolfe, Cleric
tK ft
APPENDIX
B
2nd Circuit Court of Appeals
order denied petition for re-hearing
08/15/2019
case No. 18-2351
Case 18-2351, Document 72, 08/15/2019, 2633131, Pagel of 1
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of August, two thousand nineteen.
Otis A. Daniel,
ORDER
Docket No: 18-2351
Plaintiff - Appellant,
v.
T&M Protection Resources, LLC,
Defendant - Appellee.
Appellant, Otis A. Daniel, filed a petition for panel rehearing, or, in the alternative, for
rehearing en banc. The panel that determined the appeal has considered the request for panel
rehearing, and the active members of the Court have considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
WfkMuK B
APPENDIX
C
2nd Circuit Court of Appeals
summary order vacate & remand case
04/25/2017
case No. 15-560-cv
Case 15-560, Document 159, 04/25/2017, 2018662, Pagel of 4
15-560-cv
Daniel v. T&M Protection Resources, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of April, two thousand seventeen.
Present:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges.
OTIS A. DANIEL
Plaintiff-Appellant,
v.
15-560-cv
T&M PROTECTION RESOURCES, LLC,
Defendant-Appellee. l
Appearing for Appellant:
Otis A. Daniel, pro se, New York, NY.
Appearing for Appellee:
Leonard Weintraub, Paduano & Weintraub LLP, New York, NY.
Appearing for Amicus Curiae: Gail S. Coleman (P. David Lopez, General Counsel, Jennifer S.
Goldstein, Associate General Counsel, Lorraine C. Davis,
Assistant General Counsel, on the brief), U.S. Equal Employment
The Clerk of Court is respectfully directed to amend the caption as above.
CERTIFIED COPY ISSUED ON 04/25/2017
ArPPVAfb hC
Case 15-560, Document 159, 04/25/2017, 2018662, Page2 of 4
Opportunity Commission, Washington, D.C., amicus curiae in
support of Plaintiff-Appellant.
Appeal from the United States District Court for the Southern District of New York
(Engelmayer, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED.
Appellant Otis A. Daniel, proceeding pro se, appeals from the district court’s grant of
summary judgment in favor of T&M Protection Resources, LLC (“T&M”) on his hostile work
environment claim alleging a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5. Daniel asserts that his supervisor discriminated against him because of his race, sex,
and national origin. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We review orders granting summary judgment de novo after construing all evidence, and
drawing all reasonable inferences, in favor of the non-moving party, and focus on whether the
district court properly concluded that there was no genuine dispute as to any material fact and the
moving party was entitled to judgment as a matter of law. See Sotomayor v. City ofNew York,
713 F.3d 163, 164 (2d Cir. 2013). “Where summary judgment was granted for the employer, we
must take the facts alleged by the employee to be true.” Redd v. N. Y. Div. of Parole, 678 F.3d
166, 174 (2d Cir. 2012) (internal quotation marks, brackets, and ellipses omitted).
To establish a hostile work environment claim, a plaintiff must show “(1) that the
workplace was permeated with discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of his or her work environment, and (2) that a specific basis
exists for imputing the conduct that created the hostile environment to the employer.” Petrosino
v. BellAtl., 385 F.3d 210, 221 (2d Cir. 2004) (brackets omitted). “Isolated incidents usually will
not suffice to establish a hostile work environment, although [this Court has] often noted that
even a single episode of harassment can establish a hostile work environment if the incident is
sufficiently severe.” Redd, 678 F.3d at 175-76 (internal quotation marks omitted).
I. Supervisor’s Statement to Daniel, “You Fucking Nigger”
First, we review whether, as proposed by the Equal Employment Opportunity
Commission (“EEOC”), the one-time use of the slur “nigger” from a supervisor to a subordinate
can, by itself, support a hostile work environment claim. The district court held that it could not,
relying on Schwapp v. Town ofAvon, 118 F.3d 106, 110 (2d Cir. 1997).
We must disagree with the district court’s assessment of Schwapp. Schwapp states that,
“[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be
more than a few isolated incidents of racial enmity, meaning that[,] instead of sporadic racial
slurs, there must be a steady barrage of opprobrious racial comments.” Id. at 110 (internal
quotation marks, brackets, and citations omitted). “Thus, whether racial slurs constitute a hostile
2
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Case 15-560, Document 159, 04/25/2017, 2018662, Page3 of 4
work environment typically depends upon the quantity, frequency, and severity of those slurs,
considered cumulatively in order to obtain a realistic view of the work environment.” Id. at 11011 (emphasis added) (internal quotation marks and citations omitted). Schwapp, therefore, did
not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a
hostile work environment claim when evaluated in the cumulative reality of the work
environment. The district court’s reading of Schwapp is further at variance with this Court’s
more recent observation, in dicta, that “perhaps no single act can more quickly alter the
conditions of employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his
subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11,24 (2d Cir. 2014)
(emphasis added) (brackets omitted). Therefore, although we decline to confront the issue of
whether the one-time use of the slur “nigger” by a supervisor to a subordinate can, by itself,
support a claim for a hostile work environment, we conclude that the district court improperly
relied on our precedents when it rejected this possibility as a matter of law.
II. Sexual Harassment and Discrimination Due to “Perceived Sexual Orientation”
Next, the district court properly construed Daniel’s sex-related discrimination claims as
sexual harassment claims under Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80
(1998), which held that “male-on-male sexual harassment” is prohibited by Title VII when the
plaintiff demonstrates that he was harassed because of his sex. Additionally, although we have
held Title VII does not currently protect against discrimination based on sexual orientation, see
Zarda v. Altitude Express, No. 15-3775, slip op. at 7-8 (2d Cir. Apr. 18, 2017), it does offer
protection for discrimination because of the plaintiffs failure to conform to gender norms, see
Anonymous v. Omnicom Grp., Inc., No. 16-748, 2017 WL 1130183, at *3-*4 (2d Cir. Mar. 27,
2017).
Here, the district court properly construed as sexual harassment the alleged incident when
Daniel’s supervisor brushed his genitalia against Daniel’s buttocks. See Redd, 678 F.3d at 177
(“Direct contact with an intimate body part constitutes one of the most severe forms of sexual
harassment[.]”). Furthermore, Daniel’s claims that his supervisor frequently called him a “homo”
and told him to “Man up, be a man,” can be properly construed as harassment because of
Daniel’s failure to conform to gender stereotypes. See Omnicom Grp., Inc., 2017 WL 1130183,
at *3-*4. Thus, Daniel’s sex discrimination claims were properly considered by the district court.
III.Failure to Consider Facially Neutral Incidents in Evaluating Claims
The district court erred, however, by failing to include in its analysis some of the
complained-of facially neutral incidents of harassment. We have held that a plaintiff may rely
upon facially neutral conduct to bolster a harassment claim when “the same individual engaged
in multiple acts of harassment, some overtly [based on a protected characteristic] and some not.”
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010) (internal quotations marks and
citation omitted). First, with respect to Daniel’s racial harassment claim, Daniel’s supervisor’s
inquiry as to whether Daniel stole a computer—combined with the supervisor’s overtly racist
remarks—should not have been ignored by the district court. Because “some evidentiary basis”
existed for inferring that this “neutral” incident was animated by hostility because of Daniel’s
3
Case 15-560, Document 159, 04/25/2017, 2018662, Page4 of 4
race, it should have been considered as part of Daniel’s racial harassment claim. See id. at 54849. Second, with respect to Daniel’s sexual harassment claim, the district court failed to consider
Daniel’s testimony that his supervisor repeatedly watched him nap and change his clothes as
evidence of additional incidents of sexual discrimination and harassment. This evidence should
have been included in the district court’s analysis because of the overt sexual harassment Daniel
experienced from his supervisor. See id. Instead, the district court improperly credited T&M’s
argument that the supervisor had a neutral motive for watching Daniel, instead of drawing an
inference in Daniel’s favor as the district court must on a motion for summary judgment. See
Redd, 678 F.3d at 174.
IV. The District Court’s Failure to Properly Apply the Harris v. Forklift Factors
Finally, the district court erred by determining that, as a matter of law, Daniel failed to
allege incidents of harassment sufficient to support a hostile work environment claim. Harris v.
Forklift Sys., Inc., 510 U.S. 17 (1993), provides that courts may determine “whether an
environment is hostile or abusive ... only by looking at all the circumstances” of the work
environment, which include “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. at 23 (internal quotation
marks omitted).
Here, Daniel alleged approximately twenty discrete incidents of harassment during his
15-month employment, and at least two incidents strike this Court as severe (being called a
“nigger” by his supervisor, and his supervisor brushing his genitalia against Daniel’s buttocks).
In addition, the sexual harassment Daniel faced could be perceived as threatening. Finally,
although Daniel missed only one day of work because of the harassment he experienced, “no
single factor is required” in order for a hostile work environment claim to survive summary
judgment. Id.
In sum, Daniel presents a persistent pattern of harassment that began as soon as he was
hired by T&M and continued until his termination. See Redd, 678 F.3d at 174. The evidence that
Daniel was harassed on multiple fronts—because of his race, sex, and national origin—should
also be considered when evaluating Daniel’s work environment as a whole. See Cruz v. Coach
Stores, Inc., 202 F.3d 560, 572 (2d Cir. 2000) (recognizing racial harassment can exacerbate the
effect of sexual harassment and vice versa). Reviewed in the aggregate, the harassment Daniel
allegedly experienced could be found to “alter the conditions of [his] employment and create an
abusive work environment” in violation of Title VII. See Oncale, 523 U.S. at 78.
Accordingly, we VACATE the judgment of the district court and REMAND for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
A True Copy
Catherine O’Hagan
irk
United States Coui IpTAppears,Second Circuit
/ seWnd V
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APPENDIX
D
2nd Circuit Court of Appeals
order re-instate appeal
08/16/2016
case No. 15-560-cv
Case 15-560, Document 88, 08/16/2016, 1841688, Pagel of 1
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of August, two thousand and sixteen.
Otis A. Daniel,
ORDER
Plaintiff - Appellant,
Docket No. 15-560
v.
T&M Protection Resources, LLC,
Defendant - Appellee.
By order dated June 17, 2016, the Court granted Appellant’s motion for reconsideration
solely as to his hostile work environment claim. IT IS HEREBY ORDERED that the appeal is
reinstated and the parties shall submit merits briefs. Within 14 days of the date of this order,
Appellant must file a Local Rule 31.2 scheduling notification proposing a filing date for his
principal brief.
For the Court:
Catherine O’Hagan Wolfe,
Clerk of Court
Case 15-560, Document 80, 09/04/2015,1592301, Pagel of 2
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th
day of September, two thousand and fifteen,
Present:
Dennis Jacobs,
Rosemary S. Pooler,
Peter W. Hall,
Circuit Judges.
Otis A. Daniel,
ORDER
Docket No. 15-560
Plaintiff - Appellant,
v.
T&M Protection Resources, LLC,
Defendant - Appellee,
Edward J. Minskoff Equities, Inc, Universal Protection
Service,
Defendants.
Otis A. Daniel, filed a motion for reconsideration and the panel that determined the motion
has considered the request.
IT IS HEREBY ORDERED, that the motion is denied.
For The Court:
Catherine O'Hagan Wolfe,
Clerk of Court
*
firrPtd'PIK D
//
APPENDIX
E
2nd Circuit Court of Appeals
Order denied & dismissed appeal
04/30/2015
case No. 15-560-cv
Case 15-560, Document 34, 04/30/2015, 1498363, Pagel of 1
S.D.N.Y. -N.Y.C.
13-cv-4384
Engelmayer, J.
United States Court of Appeals
FOR THE
SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 30th day of April, two thousand fifteen.
Present:
Dennis Jacobs,
Rosemary S. Pooler,
Peter W. Hall,
Circuit Judges.
Otis A. Daniel
Plaintiff-Appellant,
v.
15-560
T&M Protection Resources, LLC,
Defendant-Appellee,
Edward J. Minskoff Equities, Inc, Universal Protection Service,
Defendants.
9
Appellant, pro se, moves for appointment of counsel. Upon due consideration, it is hereby
ORDERED that the motion is DENIED and the appeal is DISMISSED because it “lacks an
arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also 28
U.S.C. § 1915(e).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
APPENDIX
F
The United States District Court
for the Southern District of New York
opinion & order granting judgment
07/12/2018
case No. 13 Civ. 4384(PAE)(HBP)
Case l:13-cv-04384-PAE-HBP Document 175 Filed 07/12/18 Page 1 of 46
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-X
OTIS A. DANIEL,
Plaintiff,
13 Civ. 4384 (PAE)
-vOPINION & ORDER
T&M PROTECTION RESOURCES LLC,
Defendant.
X
PAUL A. ENGELMAYER, District Judge:
This decision sets out the Court’s findings of fact and conclusions of law pursuant to
Federal Rule of Civil Procedure 52 following a four-day bench trial on plaintiff Otis Daniel’s
claim that he was subjected to a hostile work environment by his employer, T&M Protection
)
Resources LLC (“T&M”), in violation of Title VII. Daniel claims that such an environment
arose as a result of harassment directed at him by his supervisor, John Melidones, on account of
Daniel’s race, sexual orientation, and national origin.
The Court heard live testimony from Daniel; Melidones, who supervised Daniel at his
worksite, 590 Madison Avenue; three of Daniel’s co-workers, Jonathan John, Roy Johnson, and
Ronald James; John Aleles, the vice president of administration for T&M; Joseph Greisch, the
property manager for 590 Madison and an employee of the building’s owner, Edward J.
Minskoff Equities; and Toni Scarito, T&M’s Human Resources manager. The Court also
received into evidence various plaintiffs exhibits (“PX”) and defendant’s exhibits (“DX”).
The findings of fact that follow are based on the Court’s review of the entire trial record.
Where based in whole or part on a witness’s testimony, the Court’s findings reflect credibility
determinations based on the Court’s assessment of, inter alia, the relevant witness or witnesses’
J
F-
7f (3>
Case l:13-cv-04384-PAE-HBP Document 175 Filed 07/12/18 Page 2 of 46
experience, knowledge, and demeanor and the believability of his or her testimony in light of the
.)
other evidence in the case.
I.
Factual Background
The Court first sets out the background facts to this dispute. Except as otherwise noted,
these facts are not in dispute.
A.
Daniel’s Hiring and Job Responsibilities
Daniel is a 37-year-old Black man from St. Vincent and the Grenadines, a small island
nation in the Caribbean. He moved to the United States in 1994 at age 13. Daniel identifies as
gay, although he did not disclose his sexual orientation to his supervisors or coworkers at T&M.
€)
Daniel has worked as a security guard since 2005.
In late 2010, Daniel responded to an online advertisement for a fire safety director
position with T&M, a global security and investigations firm based in New York City. Tom
Dolan, a T&M recruiter, interviewed Daniel and accepted his application. To obtain a site
assignment for Daniel, Dolan sent him to interview with various T&M clients, including the
managers of the UBS Building on Sixth Avenue and the IBM Building—590 Madison Avenue.
At 590 Madison, Daniel interviewed with Melidones, the security director, and Bill
Wood, the assistant property manager, About a week later, Dolan informed Daniel that he had
gotten the job. In February 2011, Daniel began working at 590 Madison as an at-will employee.
Melidones was his direct supervisor. Daniel initially worked the day shift, from 8 a.m. to 4 p.m.
Throughout Daniel’s employment, Melidones also worked during the day, from 7 a.m. to 3 p.m.
In September 2011, Daniel transferred to the night shift and began working from 4 p.m.
to 12 a.m. Because Melidones continued to work from 7 a.m. to 3 p.m., during the remainder of
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his employment, Daniel saw Melidones in person less frequently and, in general, for shorter
periods of time.
Throughout, Daniel’s post at 590 Madison remained constant: He was stationed at a
security guard podium in the rear lobby of the building, from which point he faced out into the
rear lobby and a semi-public atrium beyond. A few feet behind Daniel was a wall, and behind
that, the elevators.
B.
May 2012
A number of the most significant, and sharply contested, events at issue occurred during a
two-week period in May 2012 that culminated in Daniel’s termination.
On Friday, May 4, 2012, at around 5 p.m., Daniel, standing at his post, received a call
from Melidones, who instructed him that an important tenant, Bain Capital, would be terminating
an employee’s employment and would need a security guard present. Melidones instructed
Daniel to go to Bain’s offices on the 42nd floor to meet a particular Bain official.
Daniel, however, instead of going to the 42nd floor, called up to the Bain Capital offices
and spoke with a Bain employee other than the one whose name he had been given. Very soon
after, Daniel received another call from Melidones. Melidones had received a call from Greisch,
the 590 Madison building manager. Greisch was angry that Daniel’s seemingly simple task had
been mishandled. He reported that Daniel’s call had (according to Bain) alerted others at Bain to
the forthcoming termination, causing a situation at Bain and leading Bain to excoriate Greisch.
On this second call, Melidones was irate. As discussed below, the language Melidones used on
this call—in particular, whether Melidones called Daniel a “fucking nigger”—is a central area of
dispute.
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/
On May 7, 2012, the following Monday, Daniel texted Melidones to tell him that he was
sick and unable to work. See PX 9. Daniel did not work on May 7. Melidones covered his shift.
While covering for Daniel, Melidones was approached by a postal worker who asked Melidones
to accept, on Daniel’s behalf, a package for Daniel. The postal worker explained that Daniel’s
practice was to receive packages without those packages going to the mailroom. Melidones
refused to accept the package. Melidones then inquired among the 590 Madison staff as to
whether Daniel had previously received packages directly from the USPS. He learned that
Daniel had been receiving packages on a weekly basis. Of particular salience, Melidones learned
that, at an earlier date—which the evidence demonstrates was in March 2012—Daniel had
received a package at 590 Madison that contained a BB gun that looked like a real gun. Daniel
had then overtly displayed that BB gun to his colleagues in the rear lobby.
Daniel returned to work on Tuesday, May 8. While at work that day, Daniel learned
from his colleagues that Melidones was angry at him, had refused to accept a package for him,
and had inquired about his receipt of packages, including the BB gun. Early in the morning of
May 9—i.e., soon after the end of Daniel’s shift the night of May 8—Daniel texted Melidones.
Daniel wrote,
I’d like to claim my sick day for yesterday, 05/07/12. I understand you’ve a
personal vendetta against me for maybe what transpired on Friday, 05/04/12 with
Bain Capt. 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 to cause[] him or her to resign or be terminated is unwarranted
and unprofessional. I will be notifying T&M of your tactics.
See PX 9. Melidones did not respond.
When Daniel arrived for his shift on the afternoon of May 9, he was told by a colleague,
Jonathan John, that Melidones wanted to speak with him at the loading dock. Daniel used his
cellphone to surreptitiously record the audio of that meeting. See PX 4 (audio recording); PX 5
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(transcript).1 The recording reflects that the brief meeting was heated. Melidones was at points
enraged, faulting Daniel for his handling of the Bain incident, for his package deliveries to 590
Madison, and primarily for the early-hours text to Melidones, which Melidones cast as a threat.
Daniel’s attempts to parry were repeatedly interrupted by the angry Melidones. At the meeting,
Melidones presented to Daniel a disciplinary notice. See PX 13. That notice detailed Daniel’s
alleged infractions, including that he had had “several packages delivered to [the] worksite,” that
he had been “instructed to stop these deliveries,” and that one such delivery included “an
‘imitation pistol.’” Melidones directed Daniel to sign the form and leave it on Melidones’s desk.
He also instructed Daniel that Daniel could write a response to the allegations on the back of the
form.
That evening, Daniel wrote his “rebuttal” on the back of the form, made a copy, and
faxed a copy to Wood.
C.
Disciplinary Hearing
On Monday, May 14, 2012, Melidones texted Daniel instructing him not to come to work
and, instead, to contact Carl Capponi, vice president of operations at T&M. See PX 9.
On May 15, 2012, Daniel attended a disciplinary hearing at T&M’s corporate offices at
230 Park Avenue. At that meeting were Melidones; Scarito, T&M’s Human Resources manager;
Capponi, Aleles, T&M’s vice president of administration; and Steven Gutstein, T&M’s in-house
counsel. At that meeting Daniel attempted to defend himself against the charge that he had been
receiving packages at 590 Madison against T&M policy. Daniel also played for the T&M
executives the recording he had made from the May 9 confrontation in the loading dock. While
The Court admitted PX 4 as substantive evidence. The transcript at PX 5 was received solely
as an aid in understanding the sometimes elusive words used in the Daniel-Melidones meeting.
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the recording played, Daniel stepped out of the room. After it was over, he returned to the
conference room. As discussed more fully below, the parties dispute the extent, if any, to which
Daniel attempted at the meeting to voice complaints of Melidones’s harassment, and whether he
was prohibited from doing so.
On May 16, 2012, Daniel returned to T&M’s offices to deliver a copy of the recording of
the May 9 confrontation.
On May 18, 2012, T&M terminated Daniel’s employment.
D.
EEOC and DHR
On September 1,2012, Daniel filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), 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
were (then) cognizable under state but not federal law, the EEOC referred him to the New York
State Division of Human Rights (“DHR”).
On September 5, 2012, Daniel filed a complaint with the DHR. He asserted claims of
discrimination based on race, national origin, and sexual orientation as well as claims of
retaliation and sexual harassment. T&M responded that Daniel had been terminated due to his
unauthorized package deliveries and possession of a weapon, the BB gun. 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.” On
March 4, 2013, the agency therefore issued a determination of “no probable cause” for the
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allegations in Daniel’s complaint. The DHR’s order notified Daniel that he could appeal the
agency’s decision to the New York Supreme Court within 60 days.
On April 18, 2013, the EEOC adopted the DHR’s findings and closed its file on Daniel’s
complaint. It also issued a “Right to Sue” letter, notifying Daniel that he could file suit in federal
or state court within 90 days.
II.
Procedural History
A.
Daniel’s Complaints and the Initial Stages of This Litigation
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. Dkts.
24-26. On October 7, 2013, Daniel filed his second amended complaint (the “SAC”). Dkt. 31.
On October 28, 2013, Minskoff moved to dismiss the SAC. Dkts. 33-34. 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 & MProt. 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 allegedly 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
the negligence claim, while preserving Daniel’s federal and state employment discrimination
claims.
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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. Dkts. 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.
See Dkts. 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. Dkt. 61. On
May 12, 2014, the Court so-ordered the stipulation, leaving remaining Daniel’s claims against
T&M only. Dkt. 62.
Several months later, on November 13, 2014, Daniel sought to vacate the stipulation of
dismissal. Dkt. 100. Daniel argued that he had been “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 Minskoff had not behaved
improperly in procuring the settlement agreement. See Dkts. 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.
Dkts. 65-66. At Daniel’s request, the Court approved an expedited briefing schedule. Dkt. 78.
On August 4, 2014, Daniel submitted his opposition. Dkt. 75. On August 21,2014, T&M filed
its reply. Dkt. 80. On September 9, 2014, Daniel requested permission to file a sur-reply; the
Court granted his motion, Dkt. 91. On September 23, 2014, Daniel filed his sur-reply. Dkt. 93.
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On October 23, 2014, T&M filed its second reply in support of its motion for summary
judgment. Dkts. 97-98.
B.
The Court’s Summary Judgment Decision
On February 19, 2015, in a 44-page opinion, the Court granted summary judgment to
T&M on each of Daniel’s claims. Dkt. 106, reported at Daniel v. T & MProt. Res. LLC, 87 F.
Supp. 3d 621 (S.D.N.Y. 2015). First, the Court held that Daniel’s New York State and City
claims were procedurally barred by the election of remedies provisions in the NYSHRL and
NYCHRL. 87 F. Supp. 3d at 630-31. Second, the Court held that Daniel had not established a
claim for hostile work environment. The Court excluded from its analysis several of Daniel s
complaints that it found were unrelated to race, sexual orientation, or national origin, including
that Melidones had watched Daniel nap and change clothes in the locker room, asked Daniel
about a stolen laptop, and asked Daniel to define large words. See id. at 634—35, The Court
found that Daniel had provided no evidence suggesting those incidents—while “obnoxious”—
were linked to Daniel’s race, sexual orientation, or national origin. Id. at 635.
The Court assessed the remaining incidents “in the aggregate” through two lenses: (1)
under the four factors articulated by the Supreme Court in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), and (2) as compared with other cases in this Circuit in which courts have found
hostile work environments. Id. As to the first Harris factor, frequency, the Court held that the
incidents of harassment were too episodic. On the second factor, the severity of the harassment,
the Court held that the conduct was insufficiently egregious except for the one incident in which
Melidones had allegedly used a racial slur. “That single incident, although reprehensible” the
Court reasoned, drawing on Circuit authority, “cannot, by itself, sustain a hostile work
environment claim.” Id. at 636. As to the third factor, the threatening or humiliating nature of
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the harassment, the Court noted that Daniel did not contend that Melidones’s harassment was
threatening or humiliating. Id. Fourth, as to whether Melidones’s harassment interfered with
Daniel’s work performance, the Court held that the evidence provided “at best limited support
for such a finding.” Id.
The Court then compared Daniel’s work environment to others found to be actionably
hostile in this Circuit. See id. at 637—39. “[MJeasured against the standards set by the case law,
the Court held, “Daniel’s mistreatment does not rise to the level of ‘severe or pervasive’
harassment so as to create a ‘hostile or abusive’ work environment.” Id. at 639.
Next, the Court considered Daniel’s claim for discriminatory termination. The Court
held that Daniel’s claim failed because he had not made out aprima facie case of discrimination
under the McDonnell Douglas burden-shifting framework. Although Daniel had established that
he is a member of a protected class, that he was qualified for his position, and that he suffered an
adverse employment decision, he had not established that the termination decision occurred
under circumstances giving rise to an inference of discrimination. Id. at 643. See generally
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). That was because, significantly, the
decision to terminate Daniel was made unanimously by a five-member disciplinary committee
com prised of Melidones and four others—Gutstein, T&M’s general counsel; Aleles, the vice
president; Capponi, the director of operations; and Scarito, the human resources manager—and
was then approved by T&M’s CEO.” Id. at 643. “Accordingly, the evidence about Melidones s
behavior does not support an inference that Daniel’s termination was discriminatory. Further,
the key facts on which the disciplinary committee relied—Daniel’s having ordered and caused a
BB gun to an'ive at the workplace, and having displayed that gun to co-workers—are not
disputed.” Id.
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The Court next addressed Daniel’s claim under the Family and Medical Leave Act. The
Court held this claim infirm because Daniel’s request for medical leave occurred prior to the
date—January 2012—after which he became eligible for FMLA leave. Id. at 648. Nor was
there evidence that Daniel had actually requested such leave at all. Id.
Finally, the Court rejected Daniel’s negligence claim. As the Court explained, “Daniel’s
negligence claim [was] essentially that T&M failed to protect him from Melidones s
discriminatory harassment,” which was “no different from his employment discrimination claims
under Title VII, the NYSHRL, and the NYCHRL.” Id. at 649. “And ‘the alleged violations of
federal, state, and city anti-discrimination laws are not torts under New York law,
Id.
(quoting Baguer v. Spanish Broad. Sys., Inc., No. 04 Civ. 8393 (KMK), 2007 WL 2780390, at *4
(S.D.N.Y. Sept. 20, 2007)).
C.
The Second Circuit’s Decisions
Daniel appealed the summary judgment decision. The Second Circuit initially dismissed
Daniel’s appeal as lacking an arguable basis in law or fact. See Case No. 15-560, Dkt. 35.
Daniel moved for reconsideration of that decision, which the Circuit denied. See id., Dkt 80.
The EEOC, appearing as amicus curiae, then moved for clarification of the Circuit’s decision
denying reconsideration. See Dkt. 81. It principally argued that a single use of the word
“nigger” could support a hostile work environment claim, and urged the Circuit panel to reinstate
that claim. The Circuit panel did so: On June 17, 2016, in response to the EEOC’s motion, the
court reinstated Daniel’s appeal as to the hostile work environment claim only. Id., Dkts. 84, 88.
After full merits briefing and argument, the Circuit vacated this Court’s decision as to Daniel s
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hostile work environment claim and remanded. Daniel v. T & MProt. Res., LLC, 689 F. App’x
1,2 (2d Cir. 2017).
First, as to the claim of racial harassment, the Circuit disagreed that Schwapp v. Town of
Avon, 118 F.3d 106, 110 (2d Cir. 1997), on which this Court had relied, compelled the
conclusion that a single use of the N-word could not give rise to a hostile work environment.
Schwapp, the Circuit held, “did not foreclose the possibility that the one-time use of a severe
racial slur could, by itself, support a hostile work environment claim when evaluated in the
cumulative reality of the work environment.” 689 F. App’x at 2. The Circuit noted that it had
elsewhere stated, in dicta, that “perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use of an unambiguously racial
epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Id. (quoting Rivera
v. Rochester Genesee Reg'l Transp. Auth, 743 F.3d 11, 24 (2d Cir. 2014) (emphasis added)).
The Circuit “declinefd] to confront the issue of whether the one-time use of the slur ‘nigger’ by a
supervisor to a subordinate can, by itself, support a claim for a hostile work environment, but
nevertheless “concludefd] that the district court improperly relied on our precedents when it
rejected this possibility as a matter of law.” Id.
Next, the Circuit assessed Daniel’s sexual harassment and sexual-orientation harassment
claims. It found that this Court had properly considered Daniel’s claims as sexual harassment,
under Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), and as a form of sexualorientation harassment based on Daniel’s perceived failure to conform to gender stereotypes. Id.
at 2.2
2 As the Circuit noted, its precedent at the time held that “Title VII does not currently protect
against discrimination based on sexual orientation.” Id. (citing Zarda v. Altitude Express, No.
15-3775, 855 F.3d 76, 81-83, 2017 WL 1378932, *3-4 (2d Cir. Apr. 18, 2017)). Rather, under
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The Circuit went on to explain, however, that the summary judgment decision had erred
by “failing to include in its analysis some of the complained-of facially neutral incidents of
harassment” because “a plaintiff may rely upon facially neutral conduct to bolster a harassment
claim when ‘the same individual engaged in multiple acts of harassment, some overtly [based on
a protected characteristic] and some not.”’ Id. at 3 (quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 547-48 (2d Cir. 2010)). Those incidents included Melidones asking Daniel about a stolen
laptop and Melidones watching Daniel nap and change his clothes.
In sum, the Circuit held it was error to hold, as a matter of law, that Daniel’s harassment
as alleged was insufficiently severe to support a claim under Title VII. As the Circuit explained:
“Daniel alleged approximately twenty discrete incidents of harassment during his 15-month
employment, and at least two incidents strike this Court as severe (being called a ‘nigger’ by his
supervisor, and his supervisor brushing his genitalia against Daniel’s buttocks).” Id. The Court
then-binding precedent, Title VII only “offer[ed] protection for discrimination because of the
plaintiffs failure to conform to gender norms.” Id. The Circuit, sitting en banc, earlier this year
revisited this issue, and held that Title VII’s protections include discrimination based on sexual
orientation. Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018) (en banc). The
Court held:
As explained above, sexual orientation discrimination is a subset of sex
discrimination because sexual orientation is defined by one’s sex in relation to the
sex of those to whom one is attracted, making it impossible for an employer to
discriminate on the basis of sexual orientation without taking sex into account.
Sexual orientation discrimination is also based on assumptions or stereotypes about
how members of a particular gender should be, including to whom they should be
attracted. Finally, sexual orientation discrimination is associational discrimination
because an adverse employment action that is motivated by the employer s
opposition to association between members of particular sexes discriminates
against an employee on the basis of sex.
Id. In light of that intervening change of law in the midst of this case, the Court has considered
Daniel’s claim for sexual-orientation discrimination under the standard articulated by the en banc
court in Zarda, rather than under the earlier, more narrow conception of Title VII that permitted
claims only where discrimination was based on a failure to conform to gender norms.
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added that “the sexual harassment Daniel faced could be perceived as threatening.” Id. at 4.
And the Court emphasized that, because ‘“no single factor is required’ in order for a hostile work
environment claim to survive summary judgment,” the fact that Daniel missed only one day of
work did not bar his claim. Id. (quoting Harris, 510 U.S. at 23).
Finally, the Court directed this Court to consider the multiple forms of harassment
together. The Court explained that the harassment when “[rjeviewed in the aggregate” could be
found to have altered the conditions of Daniel’s employment; it instructed that the “evidence that
Daniel was harassed on multiple fronts—because of his race, sex, and national origin—should
also be considered when evaluating Daniel’s work environment as a whole.” Id. (citing Cruz v.
Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir. 2000)).
III.
Legal Standard on a Hostile Work Environment Claim
To establish a hostile work environment claim, a plaintiff must show (1) that the
workplace was permeated with discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of his or her work environment, and (2) that a specific basis
exists for imputing the conduct that created the hostile environment to the employer. Daniel,
689 F. App’x at 1-2 (internal citations and quotations omitted). “Isolated incidents usually will
not suffice to establish a hostile work environment, although [the Second Circuit has] often noted
that even a single episode of harassment can establish a hostile work environment if the incident
is sufficiently severe.” Id.
“The Supreme Court has held that a work environment’s hostility should be assessed
based on the ‘totality of the circumstances.’” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)
(quoting Harris, 510 U.S. at 23). “Factors that a court might consider in assessing the totality of
the circumstances include: (1) the frequency of the discriminatory conduct; (2) its severity; (3)
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whether it is threatening and humiliating, or a mere offensive utterance; and (4) ‘whether it
unreasonably interferes with an employee’s work performance.”’ Id. (quoting Harris, 510 U.S.
at 23).
IV.
Findings of Fact: Disputed Issues
A.
Overview
The Court’s task as fact finder in this case is centrally to resolve credibility disputes
between Daniel and Melidones. Daniel alleges that Melidones directed several episodes of
disquieting harassment towards him. Most of the alleged harassment was verbal, save one
instance in which Daniel alleges that Melidones brushed his private parts against Daniel.
Melidones denies these claims. For the most part, the incidents that Daniel alleges occurred
outside the presence or earshot of others; to the limited extent that other persons were possibly
percipient witnesses to these events, no witness at trial corroborated Daniel s claims. And
Daniel—despite claiming in a variety of fora about other slights and infractions by Melidones
and T&M once his termination loomed in early May 2012—did not report any of these episodes
until well after his employment at T&M ended. Further, as developed below, Daniel did not
report any of the most serious alleged episodes in his written complaint to DFIR. These include
the two that the Circuit panel judged as potentially severe—Melidones’s having called Daniel a
“fucking nigger” on May 4, 2012, and his having deliberately brushed his private parts against
Daniel while the two men were in the 590 Madison lobby—and a third which this Court regards
also as severe, Melidones’s having earlier called Daniel a “gorilla.”
An important question for the Court as finder of fact is therefore whether in the absence
of any corroborative evidence, real-time “outcry” witnesses, or reasonably contemporaneous
complaints by Daniel—Daniel’s claims in this lawsuit of such serious on-the-job misconduct can
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be credited, Were the episodes Daniel alleges of the kind that one would ordinarily expect an
employee victim to complain of in or close to real time, including after termination? What
weight is to be attached to Daniel’s silence on these points for many months thereafter, including
in fora such as the DHR complaint that provided a natural opportunity to complain? And, to the
extent that these considerations counsel hesitation before crediting a complainant’s claims, did
Daniel’s testimony about these events at trial inspire sufficient confidence to merit crediting his
present account?
In this section, the Court proceeds, first, by detailing Daniel’s present allegations; second,
by reviewing the complaints that Daniel made and the fora in which he did so; and, third, setting
forth the Court’s findings of fact. The Court ultimately finds that, as to the central episodes on
which Daniel’s claim of harassment turns, Daniel has not carried his burden of proof. The Court
cannot find, based on a preponderance of the evidence presented here, that the episodes that—if
credited—would most powerfully support a claim for a hostile work environment, occurred as
Daniel alleges. The Court does credit, however, Daniel’s allegations as to certain statements by
Melidones, which, although less egregious in nature, were reasonably viewed as upsetting by
Daniel.
B.
Daniel’s Allegations of Harassment
Daniel’s allegations span the duration of his tenure at 590 Madison. They relate to his
claims of three types of harassment: on the basis of race, national origin, and perceived sexual
orientation. The Court catalogues those allegations below.
1.
Racial Harassment
In March 2011, Daniel alleges, Melidones first told him that he was “not Black.”
Melidones said, “You’re not Black because you don’t [say] ‘What’s up?’ You don’t wear your
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pants down your waist. You don’t swagger.” Daniel alleges that Melidones continued to make
similar comments throughout the remainder of Daniel’s employment.
In July 2011, Daniel alleges, he was at his podium in the rear lobby when Melidones,
while walking past Daniel, looked at Daniel and said, “Smile. Why the angry face? Smile. You
look like a gorilla.” Daniel understood that comment as intended to offend, and Daniel was
offended.
In August 2011, Barby Woodard, the general manager of a cafe located in 590 Madison
and an acquaintance of Daniel, walked past Daniel and Melidones. Daniel alleges that
Melidones then said, “You know she likes you. She’s dating a Black man. She likes her meat
dark and big.”
In September 2011, Daniel was at his podium in the rear lobby when Melidones
approached him. Daniel alleges that Melidones then said to him: “Are you going to vote for
your man Obama?” Daniel alleges that he then felt the need to explain to Melidones that he was^
“not a Democrat” but rather “a registered Republican” and that he “would vote according to my
party.” To that, Melidones responded, “Oh, yeah? I guess you’re right after all.” This was the
first and only conversation about politics Daniel had with any of his colleagues at 590 Madison.
In December 2011, Daniel was approached by the office manager of a 590 Madison
tenant who informed him that a laptop computer had been stolen from the tenant s offices on the
18th floor. Daniel texted Melidones to tell him. The next day, when Daniel arrived for his
evening shift, Melidones was still at 590 Madison. Melidones confronted Daniel and allegedly
said, “I have a picture of a Black male with a bald head who’s said to be the culprit that stole the
computer. Did you steal the computer? Because after all, you’re a Black male with a bald
17
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head.” Daniel understood this question as an accusation: that Daniel was a “criminal” and that
the “likes of [him] are criminals.”
Finally, Daniel alleges, on May 4, 2012, the most serious incident of racial harassment
occurred. Daniel testified that, that day, he was at his post some time after 4 p.m. when Greisch
stopped by to tell him an employee at Bain Capital—a 590 Madison tenant—was going to be
terminated that evening. Greisch told Daniel to expect a call from Melidones with instructions.
Around 5 p.m. Melidones called Daniel at his podium. As Daniel recounts, Melidones instructed
Daniel to “go up to the Bain office on the 42nd floor of the building and speak to its office
manager, Ms. Lacy Chelis.”
Daniel did not go to the 42nd floor, however, because, Daniel testified, the executive vice
president of Minskoff, Jeffrey Sussman, was in the rear lobby and Daniel did not feel it would
have been appropriate to leave his post. Instead, Daniel called the Bain offices and asked to
speak with Chelis. Daniel told Chelis that he was calling about an employee who was to be
terminated. But Chelis was confused—“totally perplexed.” Chelis “had no idea what [Daniel]
was talking about.” Their conversation ended. Soon thereafter, Daniel received another call
from Melidones, who “was in a tirade.” He was “screaming and yelling, ‘Who told you to call?
Who told you to call? Shut the fuck up, you fucking idiot. Don’t say a fucking word. You
fucking idiot.’” In response, Daniel was silent. Daniel alleges that Melidones concluded his
“tirade” by saying, “You fucking—don’t say a fucking word, you fucking idiot, fucking nigger.”
2.
National Origin Harassment
Throughout the time Daniel worked the day shift—i.e., until September 2011—
Melidones would “frequently” come to Daniel’s podium and sing “what I can only liken to a
calypso that was sang maybe back in the 1930s or ’40s by Harry Belafonte, and it goes ‘Day-o,
18
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De-e-o.’” That singing, Daniel alleges, was “a mockery of my cultural heritage as a Rastafarian,
as a Caribbean person.”
Daniel alleges that Melidones further mocked his national origin by repeatedly speaking
to him “in an imitated derisive manner by mimicking in English what he thinks is an English
accent.” In March 2011, in an attempt to disabuse Melidones of the misconception that Daniel
was British, Daniel brought his birth certificate to work and showed it to Melidones. See PX 6.
That document is dated August 1991 and relates back to Daniel’s birth in 1980. On the
document is a stamp bearing the pictures of Prince Charles and Princess Diana. When
Melidones saw that stamp, Daniel alleges, “it was like confirmation to him that I was English.
*
Melidones then persisted in asking Daniel about British politics and culture and repeatedly told
him to “go back to England.” Although several of Daniel’s co-workers spoke with accents,
Daniel never heard Melidones mock their accents or speak to them in accented English.
3.
Sexual Orientation Harassment
Although Daniel is gay, he has treated his sexuality as an intensely private matter, and
never discussed his sexuality with any colleagues at 590 Madison.
In July 2011, Daniel alleges that Melidones approached him at his podium, came behind
him at the podium, whispered in his ear, “Are you gay?” and “brushed up against my buttocks
with what had to have been his penis.” Daniel responded, he alleges, by turning away and
saying, “What do you think you are doing?”
Over the next few months—July, August, and September 2011- Melidones repeatedly
harassed Daniel, he alleges, on the basis of his sexual orientation. “Almost every day,”
Melidones would stand next to Daniel’s podium, Daniel alleges, and mock the name of Daniel s
19
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co-worker, Manny Perdomo. Melidones would call Perdomo “Manny the homo.” Melidones
would also whisper the word “homo” to Daniel.
Daniel alleges that Melidones also repeatedly observed Daniel in the locker room at 590
Madison. During his lunch break, Daniel would often go to the locker room to lie down on a
bench. During these rests, Melidones would often come to the locker room to watch Daniel, he
alleges. Daniel also alleges that Melidones frequently observed Daniel changing his clothes.3
In March 2012, Daniel testified, he received a call at his podium at 590 Madison from
Melidones. Daniel recounts that the “sole reason” for Melidones’s call was to tell Daniel “that
he was at a Broadway show called Mary Poppins.” As Daniel recalls, Melidones then said,
“You’d make a good Mary Poppins. I can see you as Mary Poppins. You’ll make a good Mary
Poppins.”
On May 8, 2012, Daniel’s first day back at work following the May 4 incident,
Melidones passed by Daniel’s podium, he alleges, slapped Daniel on the shoulder, and said,
“Man up. Be a man.” Melidones had repeatedly told Daniel to “man up” or “be a man.” Those
*
comments, Daniel testified, made him “self-conscious of [his] level of masculinity.” “How was I
not manly enough? What is it about me that makes me less of a man? You know, again, not
only was he saying that to me because—maybe because as a Black man I don't portray that
hyper-masculine, you know, toughness that stereotypically one expects an African American or
3 Daniel described Melidones’s locker-room observations as the racially motivated surveillance
of a distrustful boss. The incident could also be viewed as supporting a claim of sexualorientation harassment. The Court was prepared to consider this incident, if factually
established, for both purposes, and as noted, below, the Court has also considered all established
incidents of alleged harassment in the aggregate. But the Court ultimately did not credit Daniel’s
testimony to the effect that Melidones specifically eyed him in the 590 Madison locker room,
20
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Black American male to behave, but he also—because of his perception of me being gay, I am
somehow less of a man.”
Pre-Litigation Complaints
C.
The Court finds that Daniel did not make any complaints in real time about the most
significant events of harassment underlying his claim. Most significant, in the aftermath of the
Bain Capital incident, after which Daniel alleges Melidones referred to him in a telephone call as
a “fucking nigger,” there is evidence that Daniel made other complaints about his employment in
multiple fora. These include by setting out his “rebuttal” in a handwritten appendage to T&M’s
disciplinary charge, by appearing before the disciplinary committee hearing, and by emailing
several T&M and Minskoff employees. Strikingly, in none of those instances did Daniel make
any mention of Melidones’s harassment, either explicitly or by implicit suggestion.
•
On May 8, Daniel’s first day back at work after the Bain incident, Daniel spoke to
Greisch and complained about Melidones’s May 4 tirade. Daniel does not recall
stating to Greisch that Melidones had used the word “nigger” in that tirade. Nor
does Greisch recall Daniel ever making such a claim. The Court finds that
Daniel’s complaints in that discussion instead related exclusively to Melidones’s
anger and what Daniel perceived as Melidones’s unfair response to Daniel s
workplace infractions (the receipt at work of the BB gun and other packages) that
had been uncovered.
•
On May 9,2012, Daniel responded to the Notice of Disciplinary Action issued to
him by Melidones. As Melidones had directed Daniel, he drafted his “rebuttal” to
Melidones’s description of Daniel’s infractions on the back of the form. In his
handwritten rebuttal, Daniel objected to the charges against him. See PX 13. He
21
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also wrote that he had “witnessed Mr. Melidones screamed [s/c]/cursing at guards
using profaneQ languages. Referring to many of the staffs as buffoons, idiots,
useless, and incompetents.” Id. Notably, Daniel did not there claim that
Melidones had screamed or cursed at him or referred to him as a buffoon or by
any other name.4
4 During the defense case at trial, Daniel sought leave to reopen his case to submit a document
that, he claimed, was a letter that he had written and delivered to Melidones’s desk on May 9 at
the same time that he wrote this rebuttal. See PX 20. In its discretion, the Court permitted this
letter to be received and for that limited purpose re-opened Daniel’s direct case and permitted
Daniel to be recalled to testify about the preparation and delivery of the letter. Dated May 9,
2012, the letter captures the core elements of Daniel’s harassment claim as formulated in this
Court: It references “months of enduring your insults,” and Melidones’s “calling me gay last
summer,” having “touched my ass,” “making racial remarks about my ethnicity,” “watching me
changef] into my uniform in the locker room,” “and yesterday you hitting me on the shoulder.
Daniel testified that he drafted this letter in the evening of May 9, after having left his post and
gone up to the T&M/Minskoff offices at 590 Madison. .There, Daniel testified, he took a piece of
paper from a copy machine and, using a pen he carried with him, quickly wrote the letter to
Melidones. Daniel testified that he then used the copy machine in the T&M/Minskoff offices to
make a copy of this letter as well as the two-sided disciplinary form and rebuttal. Daniel testified
that he left the original of the letter and disciplinary form/rebuttal on Melidones’s desk and took
with him the copies.
Were Daniel’s claim to have written this letter on the date that appears on it credited, PX 20
would be highly probative evidence, akin to a real-time complaint made by a victim to an outcry
witness, as it would situate Daniel’s claims of harassment (both in general and as to specifics) far
earlier in time, and indeed prior to Daniel’s termination. For a number of independent reasons,
however, the Court cannot credit this testimony. To begin, having observed Daniel attempt to
account for the relevant events as to PX 20 on the witness stand, including on cross-examination
and in response to questions from the Court, the Court found Daniel’s demeanor and shifting
answers highly inconsistent with truth-telling. He strongly appeared to the Court to be making
up details on the fly. Further, Daniel had never previously testified about this writing or the
portion of the events of May 9 relating to it, either in his deposition or earlier in the trial, when
Daniel had testified that he had faxed a copy of the rebuttal to Wood at T&M. On the contrary,
in response to questions from the Court about the timeline of the night of May 9, Daniel never
mentioned this letter or his alleged visit to the T&M/Minskoff offices. Daniel did not offer any
persuasive explanation for why the events surrounding the letter had been missing from his
earlier accounts. The letter also surfaced conveniently. Daniel filed it on the docket of this case
on October 7, 2013, four months after filing suit and six months after the DHR had made a
finding of no probable cause to support Daniel’s claims. See Dkt. 31. In contrast, the Court
found highly credible Melidones’s firm denial in testimony of having seen PX 20 before. The
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•
In the early morning hours of May 10, 2012, Daniel sent an email to Wood at
T&M, in which he noted that he had just faxed the disciplinary report to Wood.
See PX 11. That email recounted Daniel’s view that Melidones had disciplined
him “as a form of retaliation.” Id. Daniel requested to meet with Wood to discuss
Melidones’s “recent hostile verbal harassment and intimidations towards me.” Id.
The email did not detail that harassment or intimidation, but the statement in the
email is most naturally understood in light of the disciplinary rebuttal that it
attached, which addressed Melidones’s conduct relating to the disciplinary issues
only.
•
Later that day, Daniel emailed J. Henkin at T&M regarding his request for a sick
day on May 7. Daniel explained that he had asked Melidones for a sick day but
that Melidones had not responded because of “his personal vendetta against me.
Daniel did not elaborate or make any claims of statements or conduct relating to
race, sexual orientation, or national origin.
•
On May 15, 2012, T&M’s disciplinary committee-—Gutstein, Scarito, Aleles, and
Capponi—along with John Melidones, held a disciplinary hearing. At that
hearing, Daniel attempted to explain his receipt of packages. The Court, based on
the credible testimony of Aleles and Scarito, finds that Daniel was given an
opportunity to air his grievances more broadly, but that Daniel did not recount any
Court is constrained to conclude that Daniel likely created PX 20 shortly before October 7, 2013,
and backdated the letter to May 9, 2012, to supply evidence that he had complained of
harassment close to the events at issue. This finding is reinforced by the Court’s finding that a
physically similar document dated May 16, 2012 (PX 21) that also first surfaced on October 7,
2013, and which the Court also permitted Daniel to offer on his re-opened case, was similarly
created after the fact. See infra, at 24 n.5.
23
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of the acts of harassment by Melidones of which he complains. Daniel chose
instead to play for the committee the recording he made of the May 9
confrontation, a recording that captures rage and imperiousness on Melidones’s
part, but is devoid of slurs or other words of any discriminatory nature. Daniel
claimed at trial that Scarito told him that at the hearing he was not allowed to
speak about anything other than the packages, and that, when he attempted to do
so, he was shut down by Scarito, Gutstein, and Capponi. Scarito and Aleles
testified that that was untrue and that Daniel was not precluded from airing other
grievances before the committee. Although the Court did not credit as accurate
every single aspect of Scarito’s testimony—she notably denied that Daniel’s
audiotape was played for the disciplinary committee, whereas all other evidence
was to the contrary—the Court credits their testimony on this particular point
because of its consistency and persuasiveness and based on the witnesses’
demeanor.5
•
In the early morning of May 18, 2012, Daniel emailed Gutstein, Scarito, Aleles,
and Capponi to transmit further evidence in support of his contention that
Melidones had authorized him to receive packages at 590 Madison. See PX 13.
*
That email did not make any allegations of harassment.
5 Daniel also testified that, on May 16, 2012, when he returned to the T&M offices to deliver a
copy of the May 9 recording, he also delivered a handwritten letter to Scarito. See PX 21. The
letter, dated May 16, 2012, states that Scarito and others at the May 15 meeting had “basically
shut me down when I tried to bring up John’s harassment towards myself and other staff.” This
letter, too, first surfaced on October 7, 2013, when Daniel filed it on the docket of this case. For
reasons similar to those regarding PX 20, see supra, at 22 n.4, the Court declines to credit this
testimony, and similarly concludes that the letter was likely created and backdated shortly before
October 7, 2013. Notably, both Scarito and Alleles, whom Daniel testified both saw the letter in
real time, firmly denied having seen it before. The Court credits their testimony on this point.
24
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•
Later that day, soon after being informed that he had been terminated, Daniel
emailed Gutstein, Scarito, Aleles, and Capponi again. He wrote, “You decided to
terminate me based on the inappropriate actions of Security Dir. John Melidones.”
Id. Those actions, Daniel, explained, included “[h]im lying about when I had the
BB delivered and the manner it was displayed.” Daniel objected to Melidones
“maliciously” disciplining Daniel two months after the incident. Daniel did not
mention any instances of harassment.
•
On May 18, 2012, shortly after being terminated from T&M, Daniel emailed
T&M’s CEO, Robert Tucker. Id. In that email, Daniel explained that he had
“had a problem with my worksite security director John [Melidones] at 590
Madison Ave.” Id. Daniel explained further that he had appeared at the
disciplinary hearing with proof that “should have exonerate[d] Mr. Melidones[’s]
claims.” The email, however did not describe any claims Daniel might have had
against Melidones. On the contrary, it stated that during the one year and five
months he had worked for T&M, “Eve never had a problem.” Id.
•
On the afternoon of May 18, Daniel emailed Greisch, 590 Madison’s building
manager, again explaining his basis for objecting to being terminated. He again
did not make any claim of harassment. Id.
•
On May 20, 2018, Daniel emailed Robert DeBenedetto at T&M to request a letter
explaining his termination. Daniel explained that he intended to sue Amazon.com
(where he had found the BB gun for sale), Zephyr Sports (the merchant from
whom he had purchased it), and Melidones. And he represented that he had
“already consulted with my local councilman, precinct, district attorney’s office,
25
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Filed 07/12/18 Page 26 of 46
city hall, numerous attorneys and law enforcement personnel at 1 Police Plaza” to
t
ensure “that what happened with me never happens to anyone else.” That is, he
intended to prevent “innocent citizens who are not aware of one’s city or state
laws” from possessing “what turns out to be illegal to possess.” Id. Daniel’s
email again made no mention of harassment or of having complained (whether
within T&M or to any of the officials he listed) of harassment.
•
On May 23, 2018, Daniel sent a lengthy email to Minskoff executives. In that
email, Daniel recounted the events leading up to his termination. He explained
that Melidones had “berated” him following the Bain incident. Id. And he
explained his need to take the day off on Monday, May 7, 2012. Daniel also
recounted Melidones’s “humiliating” disciplining of Daniel. Id. He explained,
“Melidones could have handle[d] this matter differently than he did, but he
choose [sic] this dramatic method to humiliate, embarrass and cause[] me to either
quit or be terminated.” Id. Further, Daniel told the Minskoff executives that
Melidones had “a history of berating and insulting many guards at. . . 590
Madison by calling them buffoons, useless, idiots, incompetent and derogatory
terms.” Id. Daniel did not further elaborate, and despite his having recounted
these insulting terms, did not allege that any explicitly discriminatory terms had
been used.6
6 Daniel also did not avail himself of other internal opportunities to speak out about Melidones’s
alleged use of this racial slur on the May 4 call. Most notably, T&M had a confidential hotline,
of which Daniel acknowledged having been aware. Indeed, he testified at trial that he had left a
message on the hotline in August 2011, intending to raise other issues about Melidones, to which
he did not receive a response. But Daniel undisputedly did not call the hotline any other time,
including after the allegedly racially explicit May 4 call.
Case l:13-cv-04384-PAE-HBP Document 175 Filed 07/12/18
Page 27 of 46
These assembled communications overwhelmingly reflect that Daniel was indeed angry
at, and complaining persistently about, Melidones in May 2012. But, critically, they also reflect
that Daniel’s expressed grievances against Melidones then involved two intertwined subjects: the
7
prospect of disciplinary action leading potentially to Daniel’s termination; and Melidones s
harsh, humiliating—and as Daniel perceived it, unfair—treatment of him in connection with the
Bain Capital incident and the review of Daniel’s workplace violations {i.e., the receipt of the BB
gun and other packages at work). Notably, they do not reflect any expressed complaints about
race, sexual orientation, or national origin discrimination. Nor do they reflect the shocking
claimed incidents of bias by Melidones that Daniel testified about at trial, including the three
€
most serious ones flagged above.
To be sure, the absence of a reference to these incidents in any one of Daniel’s real-time
communications could easily be explained by the fact that Daniel’s clear focus after May 7 was
on saving—or reclaiming—his job. And some of these communications occurred in contexts
that were less natural fora than others to report a long-running pattern of harassment: Daniel s
<§
As to Daniel’s claim to have left a message on the hotline in August 2011, the Court finds the
evidence equivocal. Daniel testified that he had left such a message; the T&M executive
responsible for monitoring the hotline, Aleles, testified that he never retrieved any such message
from Daniel. Each witness’s testimony on this point is problematic. Daniel’s overall testimony
was sufficiently populated by improbable or contradicted assertions that a thoughtful factfinder
cannot simply assume an unsubstantiated claim to this effect to be true. And although Aleles
projected as attempting to testify accurately, a key aspect of his account beggared belief. Aleles
testified that since the hotline’s introduction in July 2011, he has checked the hotline voicemail
account virtually daily but has never retrieved a single call by an employee to the hotline during
those seven years. It is improbable, given T&M’s size (at its largest, 1,760 employees), that no
employee during this long period ever attempted to use the hotline or left a message on it. More
likely, in the Court’s assessment, is that occasional messages were received but either were
ignored in real time or are forgotten today. Because Daniel bears the burden of proof, the Court
cannot find that Daniel left such a message in August 2011. The Court’s verdict, however,
would be the same even if it had found the opposite.
27
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email to Henkin, for example, mentioned Melidones only glancingly, and was aimed at making
the simple request for a sick day.7 However, others of these communications are such that the
absence of a reference to a pattern of discriminatory abuse in general—or to Melidones’s having
uttered a profane and bigoted slur days earlier, or engaged in other serious conduct redolent of
bias—is striking. And Daniel then had strong reasons to notify T&M of such conduct, and
particularly so after his termination, as losing his job was no longer a risk. Further, taking as a
whole the assembled communications in May 2012 between Daniel and T&M officials, what
emerges is a picture of a man who, to his credit, had no difficulty sticking up for himself when
he felt wronged. In this context, the absence of any reference to these most serious incidents
J
strongly suggests that these did not occur, and that Daniel did not perceive himself at that time to
have been a victim of discriminatory harassment.
The Court next reviews Daniel’s writings in the ensuing period, beginning with his initial
filing of a claim with the DHR. In this period, too, although Daniel made generalized claims of
harassment and discrimination, his complaints still did not refer to the most serious incidents that
Daniel claims today. And, as in May 2012, Daniel’s predominant claims, as expressed,
continued to involve his termination from T&M.
•
In September 2012, four months after his firing, Daniel filed a complaint with the
New York State Division of Human Rights. See DX 19. Asked to identify the
ways in which he was discriminated against, Daniel checked the boxes for
National Origin, Race/Color or Ethnicity, and Sexual Orientation. Next to each
t>
box, he explained the forms of discrimination he experienced. As to national
7 Several other emails between Daniel and T&M officials similarly do not refer to Melidones.
See, e.g., PX 11 pp. 13-18.
28
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origin, Daniel wrote: “Mr. Melidones always spoke to me with an imitated
English accent.” As to racial discrimination, Daniel wrote: “I was told I’m not
Black. Other employees complained about racial remarks made by Mr.
Melidones.” And as to sexual-orientation discrimination, Daniel wrote, “[My]
supervisor asked me if I’m gay and most recently on 5/3/12 said to me to be a
man. I need to man up.” Daniel also indicated that he had been discriminated
against in retaliation for filing a complaint. He stated that when he told his
supervisor of his “intention to go to the company, he vindictively served me a
disciplinary write up.” In a section of the form labeled “Description of
Discrimination,” Daniel elaborated on his claim of discrimination. He wrote that:
Melidones had said to him that most property managers prefer white security
guards; Melidones had asked him if he was gay and had told him that his
(Melidones’s) son is gay; Melidones ignored Daniel’s complaint that other guards
ignored and undermined him because they believed he was gay; and Melidones
slapped him hard on the back and said, “Be a man, man up.”
•
On October 14, 2012, Daniel emailed Barby Woodard. Daniel told Woodard that
he “was being verbally and physically harassed by [his] former supervisor there at
590 Madison partly because of my ethnicity and suspected sexual orientation.”
PX 11. Daniel asked Woodard to photograph the lobby of 590 Madison to assist
him in bringing claims against Melidones and T&M, which Woodard refused to
do.
•
On December 16, 2012, Daniel emailed the T&M internal affairs complaint
hotline. See DX 18. The email describes at length Daniel’s account of the
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circumstances surrounding his termination, including Daniel’s receipt of the BB
gun at work. Daniel also recounted incidents of alleged harassment, including
that Melidones had slapped Daniel on the shoulder and told him to “man up,” that
Melidones had asked Daniel if he was gay, that Melidones had observed Daniel in
the 590 Madison locker room, and that Melidones had spoken to him using an
English accent. Daniel also complained that he had “witnessed Mr. Melidones
calling and referring to many of the staffs myself included as idiots, assholes,
buffoons, stupid and incompetent.” This email did not mention Melidones’s use
of the words “nigger” or “gorilla” or any inappropriate touching of Daniel.
7
•
Later that day, Daniel sent another email, containing substantially the same text,
to a large number of T&M executives as well as the executives of several other
security companies. See DX 17.
•
s
On December 18, 2012, Daniel sent another email, containing substantially the
same text, to several Minskoff executives. See DX 16.
The Court finds these later writings by Daniel revealing. Although these writings added
detail to his theretofore general claims of discriminatory harassment, Daniel, in articulating his
grievances, nowhere referenced the most explosive allegations he later came to make against
Melidones.
The omission of these allegations from the complaint Daniel filed with the DHR is
particularly consequential. Daniel there had every incentive and opportunity to explain his basis
O
for claiming harassment on the basis of race, sexual orientation, and national origin, and indeed
took the time to flesh out his claim. Daniel testified that he did not appreciate the significance of
this form and that he lacked the opportunity to fill it out in more detail. For various reasons, the
30
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Court does not find that excuse credible or persuasive as a reason for Daniel to have omitted his
most sensational allegations, were they true. Among other things, the DHR form itself states that
the complainant is free to add information on a separate page, and Daniel’s allegations on the
form did not even fill the space allotted. Further, even if Daniel had believed he was under time
or space constraints in completing the form—and the Court does not so find—Daniel’s omission
of his current most significant allegations is itself notable. Such searing statements and actions
would have been readily remembered and recounted.
D.
Findings
For the reasons that follow, the Court credits Daniel’s claims as to certain workplace
conduct by Melidones, but, critically, does not find established the claims as to the most serious
acts of misconduct. The Court begins by identifying allegations that it has not found established.
Racial epithet on May 4, 2012\ Most significant, the Court does not find that
Melidones’s telephonic tirade directed at Daniel on May 4, 2012, although likely enraged and
profane, included the word “nigger” (or any other discriminatory slur). There is no corroboration
)
of this inflammatory claim; Daniel did not make any such allegation until many months after the
fact; and he did not include this claim in any of his many written complaints, including within
T&M and to the DHR. Nor did Daniel otherwise memorialize this event in or anywhere close to
real time or recount it to any colleague, friend, or medical or mental health professional. Instead,
the claim first arose in this lawsuit, filed in June 2013, after Daniel’s claims of harassment had
been rejected by the DHR as lacking probable cause. These circumstances unavoidably raise
questions about the veracity of Daniel’s present claim to have been called a “fucking nigger on
May 4, 2012.
31
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The Court was open to crediting uncorroborated testimony along these lines. However,
the Court, on its considered review, had sufficient questions about Daniel’s overall testimony to
preclude it from doing so. Daniel’s account of his life and challenging personal circumstances
was. highly sympathetic. There is much to admire about Daniel’s resilience and perseverance in
the daunting challenges that life has dealt him, as ably developed at trial. He also impressed the
Court as a man of considerable dignity. And Daniel’s testimony was sure and credible as to
certain themes and particulars. However, the Court is constrained, regretfully, to find that
Daniel’s testimony also had numerous moments of inconsistencies, glibness, excuse-making, and
inattention to detail. At times, too, Daniel’s testimony betrayed a degree of paranoia and an easy
willingness to blame T&M and/or Melidones for dimensions of his life’s journey and present
circumstances for which it is not credible to assign them blame. The Court therefore does not
and cannot find that Daniel has carried his burden of proof as to this critical factual allegation.
Independently, as to this point, the Court found credible Melidones’s denial of using this
racial slur. That Melidones did not use that slur is also consistent with the uniform testimony of
the other witnesses from T&M, including several other lobby guards and fire safety personnel
(none of whom currently work for T&M and thus have little incentive to cover for the company).
These persons—several of whom self-described as African-American or Caribbean—credibly
attested that they had never heard Melidones use such words or, in any way, exhibit racial
bigotry.
Other racially explicit statements: For much the same reasons, the Court finds that
Daniel has not carried his burden to show that Melidones, earlier in Daniel’s employment, called
him a “gorilla.” Likewise, the Court finds that Daniel has not carried his burden to prove that
Melidones made the other alleged charged and racially overt comments in the workplace. These
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include comments to the effect that Barby Woodard, the cafe manager at 590 Madison, was
dating a Black man and “likes her meat dark and big”; or that Melidones repeatedly told Daniel
that, given his dress, comportment, and verbal inflections, he was “not Black.” Had they been
established, such statements would have been clear instances of racism. They would have lent
support to the claim of a racially hostile, noxious workplace environment. On the trial record,
however, although the Court cannot rule out that these incidents occurred, the Court cannot
affirmatively so find.8
Sexual contact with Daniel: The Court also finds that Daniel has not substantiated his
claim that Melidones rubbed against Daniel’s backside with his penis while Daniel was at his
post, while asking Daniel, “Are you gay?” There is no witness (or follow-on outcry witness) to
this episode or anything close to it; and this allegation is idiosyncratic, as the balance of Daniel s
charges against Melidones involve verbal, not physical, abuse. This allegation too, is tellingly
absent from Daniel’s various writings and complaints in the days surrounding and the weeks and
months that followed his termination. The absence of this claim from Daniel’s DHR complaint
8 The Court notes that one of these allegations—that Melidones told Daniel that he was “not
Black”—did appear in Daniel’s September 2012 DHR complaint. Among Daniel’s claims of
explicit racial utterances by Melidones, the Court found this one the most credible. That is both
because of Daniel’s pre-lawsuit claim to the same effect and because, as noted below, the Court
does find that Melidones did take note of—by imitating—Daniel’s erudite manner of speech.
Although Melidones’s imitation of Daniel’s manner of speech had no explicit racial dimension
and the Court cannot find that it was demonstrably racially motivated, the Court recognizes that,
in theory, such imitation could have been intended to contrast Daniel’s verbal erudition with a
crude racial stereotype, At the same time, as to the claim that Melidones termed Daniel not
Black,” there is no corroboration for Daniel’s claim that Melidones repeatedly said this in the
590 Madison lobby (the other lobby personnel who testified, and who identified as AfricanAmerican or Caribbean, uniformly denied hearing such comments). And Daniel did not make
this claim in any of his May 2012 writings. Therefore, although the claim that Melidones called
Daniel “not Black” presents a closer question, on balance, given the burden of proof and given
the hesitations noted above with respect to whether Daniel’s trial testimony was consistently
accurate, the Court does not find this statement established.
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is particularly striking. Had any such incident occurred, Daniel likely would have cited it—if not
led with it—in recounting his claim of harassment on the basis of sexual orientation. The Court
also credited Melidones’s emphatic denial of this claim.
“Mary PoppinsThe Court also does not credit Daniel’s allegation that Melidones told
him that he would make a good Mary Poppins. Although this quip is in keeping with
Melidones’s mockery of Daniel’s accent, the Court found credible Melidones’s testimony on this
point—both that he did not make any such statement to Daniel and that he had not seen and was
unaware of the Broadway production Mary Poppins to which Daniel inferred Melidones was
then referring. The Court also did not find it credible that, as Daniel alleged, Melidones, out of
the blue, would have telephoned Daniel for the sole purpose of making this quip.
“Man up": The Court does not credit Daniel’s allegation that Melidones told him at
times to “man up.” There was no other evidence—from Melidones or the other T&M
personnel—that Melidones used this phrase. Even if the Court had so found, it would not have
found that this common locution—which connotes the need for a person (generally a man) to
discharge his duties—to be denigrating, either in general, or in the contexts in which it was
allegedly used at 590 Madison in relation to Daniel.
Stolen laptop: The Court credits Daniel that he and Melidones had a discussion about a
laptop stolen within 590 Madison Avenue in which it was noted that the surveillance footage
reflected that the perpetrator was a balding African-American man. Although it is possible that
Melidones made some attempt at humor in this discussion that Daniel misinterpreted, the Court
does not credit that Melidones made any statement in that discussion tending to accuse Daniel of
this offense or implying that he, by dint of race, was a likely perpetrator.
The Court does, however, credit the following allegations:
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"Manny the homo
The Court finds it more likely than not that Melidones referred to
lobby employee Manny Perdomo as either “Manny the homo” or some other derivative using the
phrase “homo” and that Melidones did so in the presence of Daniel. Melidones admitted to
having a relationship with Perdomo that involved reciprocal teasing based on their respective last
names. Perdomo, Melidones testified, would call Melidones “John Melanoma.” But
Melidones’s testimony as to what he called Perdomo was not at all credible. Melidones claimed
that his reciprocal jibe to Perdomo was to say to Perdomo: “Manny go home.” The Court found
this testimony implausible to the point of being ridiculous. Further, even Melidones, trying at
trial to articulate the words that he claimed to have used, was unable to present that testimony
without slipping. At one point, the Court heard Melidones to say, “Manny go homo.” The Court
therefore rejects as unworthy of belief Melidones’s denial that he ever used the term homo in
referring to Perdomo. The Court finds that it is more likely than not that the actual phrase
Melidones used to make fun of Perdomo’s name included the derivative “homo” and was likely,
at least at times, “Manny the homo,” as Daniel testified. The Court also credits Daniel s
testimony that Melidones’s and Perdomo’s reciprocal name-calling, including the use of Manny
the homo,” occurred in Daniel’s earshot.9 The Court does not find, however, that these
statements were directed at Daniel or were intended to refer to Daniel’s sexual orientation,
whichj Daniel testified, he kept unknown to his co-workers. Nor does the Court find that
Melidones ever called Daniel a “homo.”
9 The Court acknowledges that the other security guards at 590 Madison testified that they did
not hear this byplay or the other remarks and conduct that the Court credits were made. While
the Court cannot conclusively explain this discrepancy, one explanation is that the guards were
stationed far apart from each other and had only sporadic occasions to overhear one other.
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Mimicry of Daniel's manner of speech: The Court finds it more likely than not that, at
times, Melidones, in interacting with Daniel, mimicked Daniel’s accent and distinctive manner
of speech. Daniel speaks with an inflection akin to a British accent, with a Caribbean lilt, and is
careful in his enunciation. Particularly probative, in reviewing the audio recording that Daniel
made of the May 9, 2012 confrontation, see PX 4, it was clear to the Court that at least as to
certain words—e.g., “Otis” and “ambiguity”—Melidones pronounced those words with an
accent far from his own manner of speech, and intended to mimic Daniel’s. Melidones was also
notably defensive about this subject during trial testimony.
Singing of calypso music; The Court finds it more likely than not that Melidones, at least
once, sang calypso music in the lobby of 590 Madison, in Daniel’s presence. Melidones denied
doing so. But, revealingly, when examined, he admitted being familiar with calypso music from
“the end of the movie ‘Beetlejuice’ where they sing calypso.” As Daniel’s counsel aptly pointed
out in her closing argument, the song featured in that movie is precisely the song that Daniel
identified as having been sung by Melidones: “a calypso that was sang maybe back in the 1930s
or ’40s by Harry Belafonte [that] goes ‘Deo, De-e-o.” Indeed, the song in “Beetlejuice” was
sung by Harry Belafonte.10
Big words-. The Court credits Daniel’s claim that Melidones asked him to define big
words. Notably, on the May 9, 2012 recording, Melidones does just that: he asked Daniel
whether Daniel knew what “ambiguity” means. The Court credits Daniel’s claim that such
statements recurred throughout his tenure at 590 Madison. It is not entirely clear to the Court,
however, whether such statements were intended to mock Daniel—as Daniel appeared to view
10 See https://pitchfork.com/thepitch/how-a-calypso-anthem-became-the-surreal-centerpiece-ofbeetlejuice/ (interviewing Harry Belafonte about David Geffen’s request to use Belafonte s
recording of “Day-0 (The Banana Boat Song)” in Beetlejuice).
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them at trial—or as a means of commenting, without judgment, on Daniel’s erudition and facility
with words.
2012 presidential election: The Court found credible Daniel’s testimony that Melidones
asked Daniel whether he would be voting for President Obama and that, when Daniel said he
was a Republican, Melidones, also a Republican told him he was “all right.” Daniel’s account of
this exchange had the ring of truth. That Melidones did not recall this brief exchange may reflect
the passage of time and that, to many, such an exchange would be taken as innocuous.
Locker room: Finally, as to Daniel’s allegation that Melidones observed him in the
locker room, the Court finds a portion of Daniel’s claim true. The Court finds it more likely than
not that Melidones did, at least occasionally, cross paths with Daniel in the locker room at 590
Madison, which was used for changing clothes. Such encounters most likely occurred during the
first half of Daniel’s employment, when he worked the day shift, which overlapped with
Melidones’s tour of duty. The Court, however, does not find credible Daniel’s claim that
Melidones particularly watched Daniel in the locker room, deliberately followed him to the
locker room, or encountered him in the locker room other than coincidentally. The Court thus
finds that while Daniel and Melidones crossed paths from time to time in the locker room, these
encounters were uneventful, coincidental, and insignificant in the context of this case.
V.
Conclusions of Law
On the facts as found above, the Court concludes that Daniel has not met his burden to
establish a hostile work environment that was sufficiently pervasive or severe to support a claim
under Title VII.
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A.
Aggregating
The Court begins with a threshold legal question: whether “a plaintiff may aggregate
evidence of racial and sexual harassment to support a hostile work environment claim where
neither charge could survive on its own.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 n.7 (2d
Cir. 2000).
That question is—explicitly—an open one in this Circuit. Id.11 It is, however, settled
law that “different forms of harassment may exacerbate each other,” Donahue v. Asia TV USA
Ltd., 208 F. Supp. 3d 505, 517 (S.D.N.Y. 2016) (citing Cruz, 202 F.3d at 570), “meaning that
‘abuse against various different groups—such as both [gender] and [race]— . . . exacerbates the
effect of harassment experienced [with respect to each characteristic] individually,’” Duarte, 265
F. Supp. 3d at 348^49 (quoting Boggs v. Die Fliedermaus, LLP, 286 F. Supp. 2d 291, 298
(S.D.N.Y. 2003)); see also Cruz, 202 F.3d at 572 (“Given the evidence of both race-based and
sex-based hostility, a jury could find that [defendant’s] racial harassment exacerbated the effects
of his sexually threatening behavior and vice versa.”). Some district courts in this Circuit have
held, however, that “aggregation is inappropriate where ... the claim sought to be buttressed is
patently inadequate.” Weiss, 2009 WL 2132444, at *8; see Duarte, 265 F. Supp. 3d at 349.
The Court need not decide here, however, whether, as a general matter, a plaintiff may
aggregate evidence of multiple forms of harassment to support a hostile work environment claim
where, viewed in isolation, each claim would fail, lhat is because, for the purposes of this case,
that question has effectively been answered by the Second Circuit’s decision remanding this case
11 See also Duarte v. St. Barnabas Hosp., 265 F. Supp. 3d 325, 348-49 (S.D.N.Y. 2017) (“The
Second Circuit has . . . expressly reserved decision on ‘whether a plaintiff may aggregate
evidence of [two types of] harassment to support a hostile work environment claim where neither
charge could survive on its own.’” (quoting Cruz, 202 F.3d at 572 n.7)); Weiss v. Hustedt
Chevrolet, No. CIV.A.05-4230, 2009 WL 2132444, at *8 (E.D.N.Y. July 13, 2009) (same).
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to this Court. The Circuit there instructed that the “evidence that Daniel was harassed on
multiple fronts—because of his race, sex, and national origin—should also be considered when
evaluating Daniel’s work environment as a whole.” Daniel, 689 F. App’x at 4 (citing Cruz, 202
F.3d at 572). The Circuit further noted that, when “[rjeviewed in the aggregate, the harassment
Daniel allegedly experienced could be found to ‘alter the conditions of [his] employment and
create an abusive work environment’ in violation of Title VII.” Id. (emphasis added) (quoting
Oncale, 523 U.S. at 78).
This Court, therefore, has considered below the various conduct to which Daniel was
subjected in the aggregate, without regard for whether any subset of claims—sorted by reference
to race, sexual orientation, or national origin—would suffice to support a claim for a hostile
work environment. For the reasons explained below, the Court holds that, even viewing the
conduct found holistically, the facts the Court has found established by a preponderance of the
evidence do not support a claim for a hostile work environment as measured by governing case
law.
B.
Hostile work environment
Title VII “prohibits the creation of a hostile work environment” based on race, color,
religion, sex, or national origin. Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). A
plaintiff must prove that the complained of conduct: (1) “is objectively severe or pervasive—that
is , . . creates an environment that a reasonable person would find hostile or abusive”; (2) creates
an .environment “that the plaintiff subjectively perceives as hostile or abusive”; and (3) “creates
such an environment because of the plaintiff s [protected class].” Patane, 508 F.3d at 113
(quoting Gregory v. Daly, 243 F.3d 687, 691—92 (2d Cir. 2001) (alterations in original)).
39
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“[A] work environment’s hostility should be assessed based on the ‘totality of the
circumstances.’” Id. (quoting Harris, 510 U.S. at 23). Factors that may be considered include:
“[1] the frequency of the discriminatory conduct; [2] its severity; [3] whether it is physically
threatening or humiliating, or a mere offensive utterance; and [4] whether it unreasonably
interferes with an employee’s work performance.” Gorzynski v. JetBlue Airways Corp., 596
F.3d 93, 102 (2d Cir. 2010) (quoting Harris, 510 U.S. at 23) (internal quotation marks omitted).
Based on the totality of the circumstances of Daniel’s employment as adduced at trial
through the testimony of Daniel, Melidones, and their co-workers, and based on the Court s
findings above as to which episodes are substantiated by a preponderance of the evidence, the
Court concludes that Daniel’s work environment at 590 Madison was not “hostile” for purposes
of Title VII. That conclusion is not, by any means, to be taken as condoning Melidones’s
behavior. As the Court has found, Melidones subjected Daniel to several denigrating forms of
behavior that related to protected characteristics of Daniel’s. As to national origin, Melidones
mimicked Daniel’s distinctive speech pattern, which included a Caribbean lilt, sang a calypso
tune in Daniel’s presence evocative of Daniel’s region of origin, and questioned Daniel about the
definition of words in a way that could be read to mock Daniel’s erudite manner of locution. As
to sexual orientation, although there is no direct evidence that Melidones was aware that Daniel
is gay, it is possible that Melidones assumed that Daniel was gay; regardless, Melidones’s joking
references in Daniel’s presence to a co-worker as “Manny the homo” were surely experienced by
Daniel as hurtful. As to race, while the Court has not found by a preponderance that Melidones
made any of the racially explicit remarks alleged, Daniel reasonably could have taken
Melidones’s inquiry about whether Daniel would vote to reelect President Obama as a coded
reference to Daniel’s race. Finally, although the Court finds this behavior to have been
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unconnected to any protected characteristic of his, Daniel reasonably could—and did—take
umbrage at aspects of Melidones’s treatment of him during the final days of his employment. As
the surreptitious audiotape that Daniel made revealed, Melidones was in turns brusque, haughty,
/
contemptuous, and enraged out of any justifiable proportion at his colleague, Daniel.
Notwithstanding his workplace lapses, Daniel, as a dignified and capable professional, deserved
better.
Title VII, however, requires more.
First, the Court considers the frequency of the discriminatory conduct. Daniel contends
that even if the most severe incidents of harassment are not credited—as the Court has found
the remaining conduct occurred sufficiently frequently to constitute a “pervasive” hostile work
environment. The Court disagrees. Critically, the evidence established that after Daniel s shift
change in September 2011, Daniel and Melidones rarely saw each other at work. As Melidones
testified, and as was corroborated by Roy Johnson, Melidones and Johnson drove together to and
'from Staten Island and the office every day. Only very rarely did Melidones stay late at work
after his shift ended at 3 p.m. such that he overlapped on site with Daniel.
Even during the period before September 2011, when the bulk of the established
incidents appear to have occurred, the evidence does not establish that Melidones s harassing
acts were frequent. Rather, some of the incidents that the Court has found were isolated, singular
events. These include, the Court finds, Melidones’s comment about voting for President Obama
and Melidones’s singing of calypso music in Daniel’s presence. As to the other conduct that the
Court has found, such conduct, the Court finds, occurred more than once: to wit, the mimicking
of Daniel’s accent, the references in his presence to “Manny the homo,” and the questioning of
Daniel as to the meaning of big words. However, while these acts occurred from time to time,
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the Court does not find that any were persistent. While the incidence of these acts is perforce
lost to history, the Court’s best assessment is that, during the first months of Daniel’s
employment at T&M, i.e., through September 2011, these incidents occurred sporadically and
occasionally, not frequently. And, the Court finds, after September 2011, given the relative
paucity of contact between Daniel and Melidones, such conduct was yet more limited.
Measured against reported cases, this pattern of behavior is insufficiently frequent to
support a claim for a hostile work environment. There is no solid evidentiary basis from which
the Court can conclude that Melidones made the remarks found any more than sporadically. See,
e.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004) (“[Isolated incidents of
offensive conduct (unless extremely serious) will not support a claim of discriminatory
harassment.”); Alfano v. Costello, 294 F.3d 365, 380 (2d Cir. 2002) (finding the alleged conduct
non-actionable when they were “too few, too separate in time, and too mild ... to create an
abusive working environment”); Augustin v. Yale Club ofN.Y.C., No. 03-CV-1924 (KMK), 2006
WL 2690289, at *22 (S.D.N.Y. Sept. 15, 2006) (holding “infrequent and sporadic” remarks
“over the course of five years, insufficient, as a matter of law, for Plaintiff to maintain a hostile
work environment claim”), aff’d, 274 F. App’x 76 (2d Cir. 2008); Trinidad v. N.Y.C. Dep t of
Corr., 423 F. Supp. 2d 151, 167-68 (S.D.N.Y. 2006) (finding isolated incidents of defendant
calling plaintiff a bitch and making sexual remarks over the course of her five and one-half years
of employment insufficient to support a claim of discriminatory harassment); Pagan v. N. Y. State
Div. of Parole, No. 98 Civ. 5840, 2003 WL 22723013, at *6 (S.D.N.Y. Nov. 18, 2003) (finding
four instances of racially derogatory remarks by supervisor in the span of several months did not
amount to a hostile work environment).
42
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Second, the Court considers the severity of Melidones’s harassing conduct. Significant
as to this point, the Court has not found any of the most serious acts alleged by Daniel, including
that Melidones used a racial slur in his May 4, 2012 tirade or racially explicit language at any
point, and that Melidones rubbed his penis against Daniel’s backside. Once these episodes are
removed from the equation, there is no factual basis from which to find that any harassment of
Daniel was severe. The remaining episodes, although by no means trifling, do not rise to the
level of severity necessary to support a hostile work environment claim. See, e.g., Augustin v.
The Yale Club of N.Y.C., 274 F. App’x 76, 77 (2d Cir. 2008) (“[EJpisodes of name-calling,
inappropriate behavior by a supervisor, and other perceived slights ... do not constitute a hostile
work environment.”); see also Fletcher v. ABM Bldg. Value, No. 14 CIV. 4712 (NRB), 2018 WL
1801310, at *23 (S.D.N.Y. Mar. 28, 2018) (collecting cases).
Third, the Court considers whether Melidones’s behavior was humiliating or threatening.
As to the former, the Court finds that several areas of conduct which the Court has found to have
occurred could have reasonably been experienced, and were by Daniel, as humiliating, to some
degree. Melidones’s repeated use of the phrase “Manny the homo,” while not directed at Daniel
personally, surely could have been taken to mock homosexuals. Melidones’s mimicry of
Daniel’s accent could reasonably have been viewed as denigrating Daniel’s native land.
Melidones’s attempts to have Daniel define large words could reasonably have been understood
as an attempt to make fun of Daniel for his verbal erudition, perhaps in contrast to Melidones’s
different expectations for a person of Daniel’s nationality and/or race. Finally, Melidones s
singing of calypso music could have been taken to make fun of Daniel’s Caribbean heritage
insofar as it reduced the culture of Daniel’s country of origin to a musical trope from a movie.
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The Court finds, however that the conduct established was not, at all, threatening. Of the
conduct alleged, several acts, if found, would have been justifiably perceived as threatening:
being watched while changing or napping could be threatening, as could being touched sexually
without consent. See Daniel, 689 F. App’x at 4 (noting that the “sexual harassment Daniel faced
could be perceived as threatening”). But, as reviewed above, the Court has not found that either
of these incidents occurred. In contrast, the conduct that the Court has found, such as
Melidones’s mimicry of Daniel’s accent, does not qualify as threatening.
Finally, the Court considers whether the acts found interfered with Daniel’s work
performance. See Harris, 510 U.S. at 23. The Court holds against Daniel on this point, there is
no evidence that Melidones’s harassment interfered with Daniel’s work performance up and until
the May 4, 2012 incident. On the contrary, Daniel, by all accounts, was until that day a wellregarded performer to whom Melidones, in fact, had assigned certain supervisory duties.1 There
is, in contrast, considerable evidence that Daniel’s performance was impacted by the events of
May 4. In particular, Daniel called out sick on Monday, May 7, and, although he returned to
work the following day, Daniel was demonstrably apprehensive at the workplace thereafter.
However, the Court finds, the events of May 4 and thereafter that gave rise to Daniel’s changed
affect did not trace to the established conduct that Daniel has claimed were part of a campaign of
harassment. The only conduct that the Court finds occurred on May 4 or thereafter within the
scope of Daniel’s claims was Melidones’s brief mimicking of Daniel’s accent during the May 9
audio-recorded encounter at the loading dock. That act of mimicry, the Court finds, played no
12 Daniel testified that other guards ignored Daniel’s supervisory directives and that he felt
“undermined ... by the staff.” The record did not supply any independent evidence of this and
the Court does not credit Daniel’s generalized claim on this point. In any event, even crediting
arguendo this general claim, Daniel does not allege that the other guards ignored him because of
Melidones’s harassing conduct.
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part in inspiring fear on Daniel’s part. Daniel’s fear instead clearly traced to the grave job peril
he suddenly found himself in beginning May 4. His supervisor Melidones had, on May 4, called
out Daniel for mishandling the Bain Capital assignment, and on May 7, having been alerted to
Daniel’s receipt of packages including a gun at the workplace, had commenced an investigation
into—and was soon well along the road to finding established—these infractions. These events,
and the obvious potential they had to lead to Daniel’s termination, reassignment, or other
sanction, were, the Court finds, the source of Daniel’s fear from May 4. The Court therefore
concludes that Melidones’s harassment of Daniel, to the extent found, did not materially interfere
with Daniel’s performance.
In sum, considering all of the Harris factors, and treating in the aggregate all established
incidents of harassment whether on the basis of race, sexual orientation, and national origin, the
Court finds that the harassment Daniel suffered does not rise to the level necessary to support a
claim for a hostile work environment under Title VII. See, e.g., Mendez-Nouel v. Gucci Am..,
Inc., 542 F. App’x 12, 13 (2d Cir. 2013) (two incidents of touching, plus sexual banter, did not
rise to level of hostile work environment); Liburd v. Bronx Lebanon Hosp. Ctr., 372 F. App’x
137, 139-40 (2d Cir. 2010) (several comments, including “black ass,” in combination with
additional “crude and contemptible” behavior, did not rise to level of hostile work environment);
Alfano, 294 F.3d at 376 (five sex-related incidents over four years, including repeated sexual
innuendo, combined with harassment not related to sex, insufficient to support a jury verdict for
hostile work environment). Most critically, for the reasons above, the incidents of harassment
that the Court credits occurred were insufficiently severe or frequent to have materially affected
Daniel’s employment.
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CONCLUSION
For the foregoing reasons, the Court hereby awards judgment to T&M. The Clerk of
Court is respectfully directed to close this case.13
SO ORDERED.
Paul A. Engelmayer
C
United States District Judge
Dated: July 12, 2018
New York, New York
13 The Court wishes to compliment counsel for both parties for their professionalism and
dedication. The quality of pretrial submissions and trial advocacy was quite high and greatly
assisted the Court. The Court particularly wishes to thank plaintiff s counsel, the law firm of
Debevoise & Plimpton, for taking on, pro bono, the representation of Mr. Daniel.
AfP* F
5?
\
Case lSia9B/W38i3P/Sia{WB1Sntca?(ft8mfe{DZ8, 23)aSEBB(3B^|fe3Jafcfte-l-of-l._____
USDC SDNY~
DOCUMENT
ELECTRONICALLY FILED
DOC it:______
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DATE FILED:
X
OTIS A. DANIEL,
Plaintiff,
13 CIVIL 4384 (PAE)
-v-
JUDGMENT
T&M PROTECTION RESOURCES LLC,
Defendant.
X
It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons
stated in the Court's Opinion & Order dated July 12, 2018, the Court hereby awards judgment to
T&M; accordingly, the case is closed.
Dated: New York, New York
July 12, 2018
RUBY J. KRAJICK
Clerk of Court
BY:
Deputy Clerk
I
AfPX F
ft ?1
APPENDIX
G
The United States District Court
for the Southern District of New York
order unseal motion for reconsideration
08/15/2018
case No. 13 Civ. 4384(PAE)(HBP)
Case l:13-cv-04384-PAE-HBP Document 204 Filed 08/15/18 Page 1 of 1
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:____________________
DATE FILED: %/lC/lS
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
■X
OTIS A. DANIEL,
Plaintiff,
13 Civ. 4384 (PAE)
-vORDER
T&M PROTECTION RESOURCES LLC,
Defendant.
X
PAUL A. ENGELMAYER, District Judge:
The Court hereby unseals the Motion for Reconsideration, Dkt. 193, sealed by this
Court’s July 27, 2018 Order, Dkt. 195. The Court has received Otis Daniel’s letter, Dkt. 196,
which provides redacted copies of certain pages of the Motion for Reconsideration and its
exhibits. With the Clerk of Court, the Court has replaced Dkt. 193 with those redacted versions.
Now, in redacted form, Dkt. 193 may be, and hereby is, unsealed.
This case remains unclosed.
SO ORDERED.
Paul A. Engelmayer
United States District Judge
Dated: August 15, 2018
New York, New York
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APPENDIX
H
The United States District Court
for the Southern District of New York
opinion & order granting
summary judgment toT&M
02/19/2015
case No. 13 Civ. 4384(PAE)(HBP)
Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 1 of 44
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
■X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:____________________
DATE FILED: 2/W/20I6_____
OTIS A. DANIEL,
Plaintiff,
13 Civ. 4384 (PAE)
-vOPINION & ORDER
T&M PROTECTION RESOURCES LLC,
Defendant.
•X
PAUL A. ENGELMAYER, District Judge:
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 YII 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.
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Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 2 of 44
I.
Background
A.
Daniel’s Employment at T&M
Daniel is a 34-year-old black man from St. Vincent and the Grenadines, a small 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 247M-8.
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 46^17, 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
This account of the facts is drawn from the parties’ submissions in support of and in opposition
to T&M’s motion for summary judgment, including Daniel’s Second Amended Complaint
(“SAC”) (Dkt. 31); the Affidavit of Steven I. Gutstein in Support of T&M’s Motion for
Summary Judgment (“Gutstein Aff.”) (Dkt. 67); the Affidavit of John Melidones in Support of
T&M’s Motion for Summary Judgment (“Melidones Aff.”) (Dkt. 68); the Affidavit of Clinton
Lisk in Support of T&M’s Motion for Summary Judgment (“Lisk Aff.”) (Dkt. 69); the Affidavit
of Carmen Negron in Support of T&M’s Motion for Summary Judgment (“Negron Aff.”) (Dkt.
70); T&M’s Rule 56.1 Statement (“T&M 56.1”) (Dkt. 71); the Declaration of Meredith
Cavallaro in Support of T&M’s Motion for Summary Judgment (“Cavallaro Deck”) (Dkt. 73),
and the attached transcript of Daniel’s deposition (“Daniel Dep.”); Daniel’s Affirmation in
Opposition to T&M’s Motion for Summary Judgment (“Daniel Aff.”) (Dkt. 75); Daniel’s SurReply in Further Support of his Opposition to T&M’s Motion for Summary Judgment (“Daniel
Sur-Reply”), which includes Daniel’s Rule 56.1 Statement (“Daniel 56.1”) (Dkt. 93); and the
Declaration of Leonard Weintraub in Support of T&M’s Motion for Summary Judgment
(“Weintraub Deck”) (Dkt. 98). Citations to a party’s 56.1 Statement incorporate by reference the
documents cited therein.
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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 Mary Poppins; you will make a good Mary Poppins.” Id. at
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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. f 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, profanitylaced 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. 120.
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
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Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 5 of 44
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
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. f 26.
On May 18, 2015, T&M’s human resources director Toni Scarito notified Daniel of his
termination via telephone. Gutstein Aff. T| 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
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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 “pretextuai 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.
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Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 7 of 44
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 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 & MProt.
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
Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 8 of 44
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
8
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motion, Dkt. 91. On September 23, 2014, Daniel filed his sur-reply. Dkt. 93 (“Daniel SurReply”). 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 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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 ofAm. 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., All U.S. 242, 248 (1986). In determining whether there are
genuine issues of material fact, the Court is “‘required to resolve all ambiguities and draw all
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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.l (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
10
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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). 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 Yorkv. Ass’n of the
Bar of City ofN. 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
state law claim also operates to divest a federal court of jurisdiction to decide the claim.”).
Here, Daniel’s complaint to the DHR expressly included claims of race discrimination,
national origin discrimination, sexual orientation discrimination, sexual harassment, and
retaliation—the same claims Daniel asserts in this lawsuit. See Daniel Sur-Reply, Ex. 22, at 17.
After reviewing evidence submitted by Daniel and by T&M, the DHR concluded that there was
“no probable cause” to believe that any unlawful conduct occurred. Id. at 3. “When the [DHR]
has issued a finding of no probable cause .. . plaintiffs claims ... are barred by the [NYSHRL
and NYCHRL] election of remedies provisions because [plaintiff] has already litigated the
claims before the [DHR].” Guardino v. Vill. of Scarsdale Police Dep’t, No. 09 Civ. 8599 (CM),
2011 WL 4000999, at *2 (S.D.N.Y. Sept. 6, 2011); see also, e.g., Desardouin v. City of
Rochester, 708 F.3d 102, 106 (2d Cir. 2013) (“The District Court properly ruled that [plaintiffs]
NYSHRL claim was barred on the basis of election of remedies,” which “precludes resort to
courts after claims have been filed with a local commission on human rights.”). Accordingly, the
Court must dismiss all of Daniel’s claims brought under the NYSHRL and NYCHRL.
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B.
Title VII Hostile Work Environment Claims
1.
Relevant Facts
Daniel alleges that throughout his employment at T&M, he was harassed based on his
race, perceived national origin, and perceived sexual orientation. SAC pp. 23-30. At his
deposition, Daniel testified that this pattern of harassment began during his first week on the job,
when Melidones told him that property managers in the “Plaza District,” the area around 590
Madison, “prefer to hire white security personnel” and that Melidones believed he was “paying
[Daniel] too much.” Daniel Dep. 81, 103. Between February and September 2011, when Daniel
and Melidones worked overlapping shifts, Melidones repeatedly told Daniel “you are not black
because you don’t wear your pants down your waist; you don’t swagger; or you don’t what up.”
Id. at 89-90. Similarly, in July 2011, Melidones told Daniel “smile; you look like a gorilla; why
the angry face, smile.” Id. at 90. And at some point in 2012, Melidones asked Daniel “are you
going to vote for your man, Obama?” Id. at 109.
In addition to these comments, Melidones repeatedly watched Daniel nap and change
clothes in the locker room. Id. at 105. Daniel believes that Melidones wanted to “keep track” of
him because he was a “black male in this building that houses millionaires.” Id. at 106. Also, in
December 2011, a laptop computer was stolen from a business that rented space at 590 Madison.
Id. at 106-07. The video footage showed a black male with a bald head taking the laptop, and
Melidones asked Daniel if it was him. Id. at 107.
According to Daniel, the final instance of race-based harassment occurred on 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. Id. at 112. Instead
of going upstairs, Daniel called Bain’s office manager on the telephone. Id. at 113. Seconds
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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. Daniel later learned that Bain had instructed T&M executives
to handle the termination discretely, so no one—including Daniel—should have been told about
it. Id. at 140. Daniel therefore inferred that he had been “set up.” Id. at 143.
Daniel also testified that Melidones harassed him based on his perceived national origin.
Although Daniel is from St. Vincent and the Grenadines, an island in the Caribbean, Melidones
believed, based on Daniel’s accent, that he is from England. Id. at 9-10, 91. Accordingly,
Melidones often spoke in an “imitated English accent,” asked Daniel if he knew “the meaning of
large words,” and told Daniel to “go back to England.” Id. at 91, 92, 109. When Daniel showed
Melidones his birth certificate in an effort to correct Melidones’s misperception and bring an end
to his harassing behavior, Melidones asked Daniel why he came to “this country” rather than
staying in his “own country.” Id. at 109. Later, Melidones sang calypso to Daniel at least once.
Id. at 132.
As to Daniel’s perceived sexual orientation, the first offensive comment was made by Joe
Greisch, the property manager of 590 Madison. Id. at 74. Soon after Daniel began working
there, Greisch “made a reference to the clothes [Daniel] was wearing.” Id. Daniel interpreted
this comment as related to Greisch’s “perception of [Daniel’s] sexual orientation.” Id. Daniel
therefore began entering the building through a back entrance to avoid encountering Greisch. Id.
In a similar vein, Melidones once came into the locker room while Daniel was changing and
said, “I didn’t hire you to be beautiful; I want a supervisor, not a God.” Id. at 234. Several
months later, in March 2012, Melidones simultaneously targeted Daniel’s perceived national
origin and sexual orientation: He called Daniel around 6 or 7 p.m., during Daniel’s shift, and
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told him “I am at the Broadway show Mary Poppins. ... 1 can see you as Mary Poppins; you
will make a good Mary Poppins.” Daniel Dep. 234.
Daniel also objects to a pattern of crude banter between Melidones and another T&M
employee, Manny Padermo. During a recorded conversation with Daniel, Padermo explained
that he “used to goof on [Melidones’s] name.” Daniel Sur-Reply, Ex. 10, at 4. Melidones would
respond by calling Padermo “Manny the homo,” mocking Padermo’s last name. Id.; see also
Daniel Dep. at 232. Daniel felt that Melidones was directing the slur at him. Daniel Sur-Reply,
Ex. 10, at 4. At some point, Melidones also “lean[ed] into [Daniel], into [his] right ear and
sa[id], ‘homo.’” Daniel Dep. 232.
On another occasion, Melidones “brushed up against [Daniel’s] buttocks” with “his
genitalia” and asked Daniel “are you gay?” Id. at 230. When Melidones “saw how upset
[Daniel] was, he tried to appease [Daniel] by saying his son, Anthony Melidones,” who later
began working at 590 Madison, “is gay.” Id. After that incident, Daniel interpreted Melidones’s
pattern of watching him nap and change clothes in the locker room as a form of sexual
harassment rather than racially motivated harassment. See id. at 231. Relatedly, when a “gay
hotel” opened in Times Square in March 2012, Anthony Melidones asked Daniel if he was going
to go. Id. at 249. The last instance of alleged anti-gay harassment occurred on May 8, 2012.
Reacting to the Bain Capital incident that had occurred the previous week, Melidones “slapped
[Daniel] physically hard on [his] ... right shoulder and said to [Daniel], ‘man up, be a man.’”
Id. at 133; see also id. at 149.
Melidones categorically denies making these statements. See Melidones Aff. ^ 9. Daniel
testified that no one witnessed Melidones’s harassing comments and behavior towards him, see
Daniel Dep. at 86, 243, and that none of the discriminatory statements were made in writing or
14
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during an audio recording, see id. at 115. Daniel also concedes that, aside from one anonymous
phone call in August 2011, he never complained about Melidones’s behavior during his tenure at
T&M. See id. at 119, 261. Accordingly, in an attempt to corroborate his testimony, Daniel
submitted certified transcripts of recorded phone conversations he had with former co-workers.
Their statements, however, provide limited support for Daniel’s account of Melidones’s conduct:
Even after being fired from his job at 590 Madison, former T&M security guard Mo Agbaje
emphatically stated that Melidones had never used racial or ethnic slurs against him. Daniel SurReply, Ex. 12, at 4.2 Another former T&M employee, Paul Sylvio, stated that Melidones made
racial remarks—specifically, jokes about Sylvio’s Haitian heritage—about “two times” during
his three or four years of employment. Id. Ex. 11, at 2-4. To be sure, Padermo stated that he
agreed with Daniel that Melidones used “racial slurs” and “ethnic jokes” to “belittle people.” Id.
Ex. 10, at 3-4. But Padermo’s statement is potentially impeachable, insofar as, in the recorded
conversation, Padermo insisted that Daniel “cannot use anything [from the conversation] without
[his] authorization.” Id. at 10. Whether Padermo would provide the same testimony if under
oath is unknown.
For the purpose of resolving T&M’s motion for summary judgment, however, the Court
assumes that a jury would credit Daniel’s testimony about each incident of harassment he
experienced and would reject all contrary evidence. The decisive question is whether, accepting
Daniel’s account of the facts, a reasonable jury could find in Daniel’s favor on his hostile work
environment claims. If so, Daniel has presented a genuine issue of material fact, and the Court
must deny T&M’s motion for summary judgment on these claims.
2 Daniel also produced an email from Barby Woodward, the manager of a restaurant in 590
Madison, which stated that “[i]f I had witnessed the inappropriate treatment I would definitely
testify as such as it would be the right thing to do but I did not.” Daniel Sur-Reply, Ex. 1, at 21.
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2.
Applicable Legal Standards
Title VII “prohibits the creation of a hostile work environment” based on race, color,
religion, sex, or national origin.3 Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). The
Second Circuit has described the elements of a hostile work environment as follows:
To state a claim for a hostile work environment. . ., a plaintiff must plead facts
that would tend to show that the complained of conduct: (1) “is objectively severe
or pervasive—that is, . . . creates an environment that a reasonable person would
find hostile or abusive”; (2) creates an environment “that the plaintiff subjectively
perceives as hostile or abusive”; and (3) “creates such an environment because of
the plaintiffs [protected class].”
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691—
92 (2d Cir. 2001)). Importantly, Title VII “does not set forth ‘a general civility code for the
American workplace.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Oncale, 523 U.S. at 80). Courts must “filter out complaints attacking ‘the ordinary
tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation
omitted). To be actionable, “conduct must be extreme to amount to a change in the terms and
conditions of employment.” Id.
“[A] work environment’s hostility should be assessed based on the ‘totality of the
circumstances.’” Patane, 508 F.3d at 113 (quoting Harris v. ForkliftSys., Inc., 510 U.S. 17, 23
(1993)). The Court considers Daniel’s allegations “cumulatively in order to obtain a realistic
view of the work environment.” Aulicino v. N. Y. City Dep’t of Homeless Servs., 580 F.3d 73, 83
3 The Court construes Daniel’s sexual orientation discrimination claims as sexual harassment
claims. Under Title VII, “workplace harassment that is sexual in content is always actionable,
regardless of the harasser’s sex, sexual orientation, or motivations.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (approvingly citing Doe v. Belleville, 119 F.3d 563
(7th Cir. 1997)). This includes “male-on-male sexual harassment.” Id.
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Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 17 of 44
(2d Cir. 2009) (citation omitted). Factors that may be considered include: “[1] the frequency of
the discriminatory conduct; [2] its severity; [3] whether it is physically threatening or
humiliating, or a mere offensive utterance; and [4] whether it unreasonably interferes with an
employee’s work performance.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010) (quoting Harris, 510 U.S. at 23) (internal quotation marks omitted).
3.
Discussion
As a threshold matter, some of the conduct Daniel complains of does not appear to be
related to his race, perceived national origin, or sex. Such incidents “must be removed from
consideration.” Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002). Even if “they can support
an inference that [Daniel] was mistreated, they do not support an inference that this was because
of’ his membership in a protected class. Id.', see also Vito v. Bausch & Lomb Inc., 403 F. App’x
593, 595 (2d Cir. 2010) (summary order) (“[I]t is axiomatic that in order to establish a . . . hostile
work environment... a plaintiff must demonstrate that the conduct occurred because of her
[membership in a protected class].” (alterations and omissions in original) (citation omitted)).
In particular, the Court discounts Daniel’s testimony that Melidones repeatedly watched
him nap and change clothes in the locker room. Daniel speculates that Melidones did so because
of his race, see Daniel Dep. 105-06, or as a form of sexual harassment, see id. at 231. However,
Daniel has provided no evidence (e.g., contemporaneous or even after-the-fact statements by
Melidones) to support the inference that Melidones’s watching him in this workspace, not an act
inherently indicative of hostility or bias, was driven by prohibited animus. And there is record
evidence of a neutral motive that could account for Melidones’s presence: ensuring that Daniel
who had issues with lateness, began his shift on time. See Daniel Sur-Reply, Ex. 2, at 34 (text
from Melidones to Daniel stating: “The lateness .. . must stop. I need consistency. I gave u the
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Case l:13-cv-04384-PAE-HBP Document 106 Filed 02/19/15 Page 18 of 44
4x12 so u could handle ur personal business during the day.”); id. at 53 (text from Melidones to
Daniel stating: “Please don’t be late.”). Likewise, Melidones had an obviously reasonable, nondiscriminatory basis for asking Daniel if he had stolen a laptop in December 2011: The footage
from the security camera showed that the thief was a bald black male; Daniel was in the building
at the time of the theft and fit that profile. See Daniel Dep. at 107. Other statements—for
instance, asking Daniel to define large words, id. at 92, or vaguely commenting on his clothing,
id. at 74—may well be viewed as obnoxious, but, on this record, they have no apparent link to
Daniel’s membership in a protected class. Daniel has not provided any evidence to support an
inference that these statements were made because of his race, national origin, or sex, or that
employees with different demographic characteristics were not subjected to similarly obnoxious
treatment. To the contrary, E^aniel testified that Melidones routinely called “many” T&M
employees names such as “buffoons, idiots, useless and incompetent.” Id. at 211.
As to the remaining incidents, the Court considers them in the aggregate. Two modes o
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