WARNING: AT LEAST ONE DOCUMENT COULD NOT BE INCLUDED! You were not billed for these documents. Please see below. Document Number Document Description Pages Document Error Document 1 Attachment 3 DOCUMENT COULD NOT BE RETRIEVED! attachment However, it may still be viewable individually. Case 7:17-cv-09587j-KMK- Document-1 Filed 12/06/17 Page 1. of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARK CAPALBO, Pumas, . 17 CIV 9587 - against - COMPLAINT E. TETZ SONS, INC., - JURY TRIAL DEMANDED TETZ ASPHALT, LLC, . . - - FRANK CIANO, Individually, and SHAUN HORNBECK, Individually Defendants. Plaintiff, MARK CAPALBO, by and through his attorneys, Burke, Miele, Golden Naughton, LLP, respectfully allege as follows: NATURE OF THE CASE - 4 1. Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (?Title and New York?s Executive Law 290 et seq. 7 (?New York Human Rights Law? or against Defendants and seeks damages to redress the injuries Plaintiff suffered as a result of being exposed to a hostile work environment though sexual harassment and retaliation through wrongful discharge. 7 JURISDICTION AND VENUE 2. The jurisdiction of this Court is "invoked pursuant 42 2000c etseqi, 28', U.S.C. 1331 and 28 U.S.C. ??1343.- 3. The Court has supplemental jurisdiction over the claims of the Plaintiff s. State law claims pursuant to 28 U.S.C. 1367,. 4. Venue is proper in this District based upon Defendants? residency and place of business within Orange County, State of New York, within the Southern District of New York. A Case Documentl Filed 12/06/17 Page 20f 10 substantial portion of the events giving rise to the claim also occurred within the District. 28 U.S-.C. 1391(b). PROCEDURAL PREREQUISITES 5. The conduct complained of took place beginning in or about August 26, 2014 and. ended in or about September 3, 2014 with Plaintiff?s termination. 6. Plaintiff ?led Charges of . discrimination, hostile Work environment through sexual - harassment and retaliation upon Which this Complaint is based with the Equal Employment I Opportunity Commission on February 13, 2015. . 7. Plaintiff received a Notice of Right to Sue from the EEOC, dated September 275, 2017 with respect to the herein charges. A copy of the Notice is annexed hereto as Exhibit 7 8. This Action is being commenced withinninety (90) days of receipt of said-Notice of Right to Sue. PARTIES 9. Plaintiff MARK CAPALBO 1s" a heterosexual male that resides 1n the State of New York and the County of Orange. . . 10. Defendant TETZ SONS, INC. is a domestic corporation, duly existing, I pursuant to, and by virtue of the laws of the State of New York, with its principal place of business at 130 Crotty Road, Middletown New York 10941. I 11. Defendant TETZ ASPHALT, LLC IS a domestic limited liability company, duly existing pursuant to, and by virtite of the laws of the State of New York, with its principal place of business at 130 Crotty Road, Middletown New York 10941. 12. Defendant E. TETZ SONS, INC. and Defendant TETZ ASPHALT, LLC-,4are collectively-hereinafter referred to as ?Tetz Defendants?. Case Document 1 Filed 12/06/17 Page 3 of 10 13. Upon information and belief, the Tetz Defendants employ over 100 persons.- - 14. The Tetz Defendants are construction material suppliers to the HudsOn Valley with a crew of mechanics that self-maintain their fleet of heavy trucks. 1 15. At all times relevant hereto, Plaintiff was an employee of the Tetz Defendants, as a by - I mechanic during the 4 pm. to 12 am. shift until his retaliatory discharge in or about'September 3, 2014. 16. At all relevant times hereto, Defendant Francis ?Frank? Ciano (?Ciano?) was an. employee of the Tetz Defendants as shift supervisor of the garage. 17. At all relevant times hereto, Ciano was Plaintiffs shift supervisorand eXerci?sed supervisory authority. over the Plaintiff; 'Ciano had the authority to terminate and/or affect the I terms and conditions of Plaintiff?s employment. 1 18. At all relevant times hereto, Defendant Shaun Hornbeck (?Hornbeck?) was an 1' employee of the Tetz Defendants as shop manager for the entire garage. 19. At all relevant times hereto, Hornbeck exercised superViSOIy authority over the 1 Plaintiff. Hornbeck had the authority to hire, terminate and/or affect the terms and conditions of 1' Plain?uff?s employment. I 20. Defendants E. TETZ SONS, INC. ASPHALT, LLC, FRANCIS CIANO I and SHAUN HORNBECK are collectively hereinafter referred to as ?Defendants?. FACTS 21. Plaintiff was hired by the Tetz Defendants and Hornbeck in or about Junie-30, 2014? as a mechanic. 22. At the time Plaintiff was hired Defendant .Hornb?eck knew the Plaintiff had experience as a car mechanic rather than with heavy trucks such as thoSe utilized by the Tetz Case Document 1' Filed 12/06/17 Page 4 of 10 Defendants. Nonetheless, DefendantHornbeck assured the Plaintiff that he would succeed with. the company if he was willing to learn. 23. Plaintiff was an exemplary employee for the Tetz Defendants as he would arrive to i. work early, complete his work and never subject to disciplinary actions. Plaintiff was-learning and excelling at his newjob, eager to do well and Support his growing-family. 24. In or about August 25, 2014 the positive dynamic and environment abruptly changed. The existing shift supervisor was replaced with Defendant Ciano. 25. 7 In or about August 26, 2014 Defendant Ciano began making. unwanted Sexual advances toward Plaintiff. 26. Over the next approximately two-week period, Plaintiff was subjected to a number I of unwanted sexual advances, comments and inappropriate touching by Ciano. In this time period, Ciano Committed the folloWing acts: a. Grabbing of Plaintiff by the shoulders from behind and making various inappropriate comments multiple times a shift; b. Telling Plaintiff that he looked Sexy in his work uniform, - - . c. Telling Plaintiff that he gave Ciano an erection by seeing Plaintiff 1n his work uniform; (1. While Plaintiff was in the parts room bending over to pick up a brake chamber, Ciano grabbed the Plaintiff by his waist from behind and rubbed his genitals upon the Plaintiff?s buttocks;- 6. While Pla1nt1ff was signing out mud. ?aps Ciano again grabbed P1a1nt1ff by his waist . . '7 from behind and rubbed his genitals upon Plaintiff? buttocks; . f. Ciano told Plaintiff that if Plaintiff Were ever tired after shift that he could park his vehicle down the street, where no one would see, and ride with Ciano to his home. . Where the Plaintiff could sleep with Ciano 1n his warm bed. 27. Upon information and belief, another employee, 1n the bay adjacent to the one in .I which Plaintiff worked, heard the unwanted sexual advanced made by Ciano upon the Plaintiff] 28. Ciano committed similar unwanted sexual advances and improper physical Contact upon at least two other employees of the Tetz' Defendants. Case Document 1' Filed 12/06/17 Page 5 of 10 29. Plaintiff attempted to curb the unwanted sexual advances and inappropriate physical contact from Ciano by, inter alia pushing Ciano away, telling him to get off, responding with looks of disgust and, shock and rejecting the offer to stay at Cia?no?s house. Plaintiff made it; abundantly clear to Ciano that his sexual advances were unwelcomed and inappropriate. 30. After it became clear to Ciano that Plaintiff would not succumb to' Ci'ano?s unwanted sexual advances nor tolerate his inappropriate physical contact Ciano became angry and began to punish Plaintiff in thefollowing Ways: i a. Yelling at and demeaning Plaintiff to make his shift intolerable; b. Threatening to force Plaintiff to attend diesel mechanic school, despite Such not be a condition of his employment when hired;- c. Threatened to Send Plaintiff home early from his shift thereby losing hours; d. Threatened to have Plaintiff fired; . e. Telling Plaintiff ?if you try fuckng me, I will fuck you harder.? 31. Plaintiff became fearful 0f the threats made by Defendant Ciano and begun i i I dreading coming into work every day,' a job he had loved. 32. Plaintiff realized that he eculd not stop Ciano?s 'unWan'ted sexual advances and; inappropriate physical contact on his own and'd'ecided to repOrt the conduct to the shOp manager, - . - Defendant Hornbeck. 33. In or about SeptemberB, 2014,_ after telephone conversation with Defendant Hornbeck, Plaintiff reported to work early as instructed to repOrt the conduct of Ciano to Hornbeck. Plaintiff told Hornbeck everything Ciano had done,- the inappropriate touching and. comments. . Plaintiff requested to'Hornbeck that hei'be able to put a complaint in writing?against Ciano but: Hornbeck would not allow, telling the Plaintiff that he would talk with Ciano. Plaintiff also 1 1 requested to speak with Joe Tetz to make his complaint. Hornbeck told Plaintiff to speak with him and it was not necessary to speak with Joe Tetz. Hornbeck then instructed Plaintiff to come back" I . later that afternoon before his shift starts once Hornbeck had an opportunity to speak with Ciano. - Case Document 1 Filed 12/06/17 - Page 6 of 10 34. A few hours after making his report to Defendant Hornbeck Plaintiff returned to work and found Defendants Ciano and Hornbeck with former night shift supervisor James Crampton in Hornbeck?s office. Hornbeck told Plaintiff that he disCussed the reported activity with I Ciano and that Plaintiff was being ?red because he was a ?ffucki?ng liar.? 35. Rather than cOnduct an investigation by interviewing other employees who witnessed and/or were subject to the same harassment, as was reported, Hornbeck simply asked Ciano for his version of the events and took ?such as the end all be all and did not conduct a true and fruitful investigation. 36. Hornbeck and the Tetz Defendants did not follow their own employee handbook which requires all complaints of harassment by a supervisor to be brought to senior management. When Plaintiff requested to bring his 00mplaint' before Joe Tetz, who is senior management, it was denied by Hornbeck. Relevant portions of the employee handbook are'attached hereto as Exhibit I 37. On September 3, 2014, after Plaintiff reported sexual harassment by his shift . supervisor, and meeting with the shop supervisor, Hornbeck, and the harasser Ciano, his . employment was terminated that same afternoon before his shift for the day even begun. 38. Upon information and belief, Defendant Ciano?s employment was terminated in or about November, 2014. I 39. In a determination letter, dated July 7, 20l7, the EEOC put forth that "the investigation conducted of the Plaintiff?s report of sexual harassment was not done so in a reasonable manner. The EEOC also determined there is reasonable cause to believe that Plaintiff was discriminated against. Case Document 1' Filed 12/06/17 Page 7 of 10 AS A FIRST CAUSE OF ACTION Discrimination Under Title Hostile. Work Environment 40. Plaintiff inCorporates the allegations of paragraphs 1 thrOugh 39 as thOugh set forth in full in this paragraph 40. 41. Title the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000c ez? 5?qu 7 speci?cally 42 U.S.C. makesit an unlanul employment practice to discriminate 0n I I the basis of an employee?s sex. 42. Defendant Ciano, on a daily basis,- both verbally and physically sexually harassed . the Plaintiff at the workplace causing Plaintiff to dread going to work. 43. Realizing that Plaintiff would not succumb to his unwanted advances, Defendant 9' I . Ciano made threats to terminate Plaintiff?s employment, force Plaintiff to leave work early and to force Plaintiff to attend outside training school. I A 44. A reasonable person:- would believe that the actions of Defendant Ciano altered. the conditions of employment. I I I 45. The Tetz Defendants unlanully- diScriminated against the Plaintiff on the basis of his sex, by subjecting him to sexual harassment that caused a hostile work environment. i I AS A OF ACTION Discrimination under Title VII- Retaliation. 46. Plaintiff incorporates the allegations of paragraphs 1 through 45 as though set forth in full in this paragraph 46. I I I 47-. Title VII of the Civil Rights Act of 1964 as amended, speCi?cally 42 UI. S. C. I 2000e-3(a) makes it an unlawful employment praCtice to discriminate against an employee because he opposed an unlawful employment practice for because he. participated inany manner under this subchapter. I Case Decument 1 File'd'12/O6/I17I Page 8 of 10 48. In or about September 3 2014, the Plaintiff made a report 0f being sexually I.- harassed by a supervisor at the work place. i I 49. Plaintiff was not allowed tomake a written report of makethe report to rseniOr management. 50. The supervisor that took the report failed to conduct a proper investigation into the mater by failing to interview other IemplIOyees who were witnesses and/or additional Victims Of the sexual harassment, both verbal and physical. 51.- 011 the same day Plaintiff made. his report he was terminated from the. work place as a result. . i I I 52. The Tetz- Defendants acted with malicious intent" and violated Title VII by I unlawfully discriminating against Plaintiff by retaliating against his participation in the protected- - . activity, making a sexual harassment complaint under Title VII, by termination of his employment.? AS A THIRD CAUSE OF. Discrimination Under New Yerk State LawI? Hostile Work Environment 53. Plaintiff incorporates the allegatiOns' of paragraphs 1 through 52 as thOugh set forth I I- . -. in full in this paragraph 53. i 54. New York State Executive Law 296(1 makes it unlawful to discriminate upon the basis of sex. i i 55. As stated above, Plaintiff - was 3? the subject of unwantedlve?rbal and physical sexual-- harassment at the hands of his superVisor, Defendant Ciano. I 56. The Tetz Defendants and Defendant Cilano' engaged in-an unlawful discriminatory practice against the Plaintiff though sexual harassment and hostile work environment. Case Document 1? Filed 12/06/17 Page 9 of 10 AS A FOURTH CAUSE OF ACTION Discrimination Under New York State Law- Retaliation . 57. Plaintiff 1ncorporates the allegations of paragraphs 1 through 56 as though Set forth I in full in this paragraph 57.? 58. New York State Executive Law 2? 296(7) makes an unlawful for an employer to ?3 - discriminate or retaliate against any employee because he has participated the protected activity. 59. Plaintiff participated in a protected activity as a result of making a report ofrbein-g . sexually harassed by a supervisor in the work place on or about September 2014. I I I 60. Plaintiff was terminated? later the same day he reported the work place sexual harassment I I 61. The Tetz Defendants, Defendant Hornbeck engaged in. an unlaW?ful' discriminatory practice by retaliating against Plaintiff through histermination as a result ?or his I .V sexual harassment report. AS A FIFTH CAUSE or ACTION . Discrimination Under New Yerk State Law . 62. Plaintiff incorporates the allegations of paragraphs 1 through 61 as though set forth in full in this paragraph 62. I . I 63. New York State Executive Law 296(6) provides that it shall be an unlawful discriminatory practice: ?For any person to aid abet, incite, compel or coerce the doing of any acts forbidden under this article, or attempt to do so.? 64. Defendant Hornbeck aided and abetted Defendant Ciano by failing to properly'_ conduct a fruitful investigation into the reperted harassment. and rather than takeproper remedial - I. measure decided to terminate the Plaintiff. Case Documentl Filed 12/06/17 Page 10'of1_10. 65. Defendant Hornbeck engaged in an unlawful discriminatory practice in Violation of New York Executive Law 296(6) by aiding and abetting unlawful employment practices. . 66. 67. JURY DEMAND Plaintiff hereby demands a trial by Jury, PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that this Court. . Award Plaintiff for all lost Wages and bene?ts resulting from Defendants? unlanul I 1 sexual harassment hostile Work environment, retaliation and to otherwise make him whole for any losses suffered as a result of Such unlawful employment practices - and other compensatory damages; . Award Plaintiff punitive damages; . AWard Plaintiff costs including reasonable attorneys? fees, expert fees "and? expenSes; . Award Plaintiff such other and funher relief, as? the Court may deem equitable, just. and proper. Dated: December 5, 2017 Goshen, New York . hael K. Burke Es? (MB 7554) . - rke, Miele, GOlden-&Naught0n, LLP 7 I. Attorneys for Plaintiff 40 Matthews Street, Suite 209 Post Of?ce Box 216 . Goshen, New York 10924 (845) 294-4080 . 10 upon reaching the age of 591/2. You Will pay income tax on any distribution you receive. FAIR TREATMENT EQUAL ENIPLOYMENT OPPORTUNITY . E. Tetz Sons, Inc. Tetz Asphalt, LLC are Equal Opportunity Employers with the meaning of the Civil Rights Act of 1964. The company will provide equal opportunities for all emplOyees and job applicants without regard to sex, age, race, color, religion, natiOnal origin, citizenship status, physical or mental disability or past, present or future service in the armed forces of the United States. POLICY Company policy does not permit, condone or tolerate discrimination in any form, including but not limited to: - Sex or gender - Sexual orientation . Racial, ethnic or national origin - Skin color . - Age . . g, - Marital status Religious af?liation or belief - Political af?liation or belief - Physical or mental disability or functional limitation - Military service or lack of military service - Citizenship status a. This non-discrimination policy includes: - Recruitment and employment - Advancement and promotion - Salary and wage consideratiOn - Bonuses - Layoff and termination - Employee bene?ts 16 expected to carry out any tasks or duties requested of them to the best of .their ability. The duties of any employee may be changed as needed. The igcompany cannot guarantee that all duties and functions of any given :position will always stay the same. Employees are expected to show a co-operative team spirit at all times. ANTI-HARASSMENT POLICY Workplace harassment and abuse are strictly prohibited on company premises. Harassment is against the law and the company could be legally liable in certain cases. Disciplinary actionwill be taken in all cases where harassment within the intent of this policy is established. Harassment that has sexual grounds, connotations or origin is considered especially 0 serious. All complaints of this kind will be investigated and appropriate 8 action taken. If a supervisor is implicated, the matter should be brought ?0 directly to senior management. An employee making a harassment complaint-must be prepared to show credible evidence. EMPLOYER EMPLOYEE RESPONSIBILITI ASSIGNMENT OF DUTIES 7:17- Supervisors at E. Tetz Sons, Inc. Tetz Asphalt, LLC have the responsibility and authority to assign each employee?s work duties. Tasl? and functions are assigned on the basis of the employee?s skills and abilities, experience and the needs of the situation. All employees are DOC ATTITUDE CONDUCT nt 1-2 Filedg 12/ friendly, courteous and civil manner is required. Abusive or threatening conduct and foul, profane or sexually explicit language will not be tolerated. Harassment will not be tolerated in any form or under any circumstances. All employees are expected to: - Help advance the company?s interests in any way they can 0 Help improve the quality of the company?s products and/or services Co?operate with management in attaining company obj ectives. - . Accept direction and supervision - Carry-out all assigned duties to the best of their ability 06/17 Page 1 of 1 - Show company loyalty on and off the job 17