Case 7:17-cv-01213-CS Document 1 Filed 02/16/17 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RICHARD GUSTIN,
Plaintiff,

17 Civ. 1213 ( )

-againstCOMPLAINT
ENTERGY NUCLEAR OPERATIONS
INC., DANIEL GAGNON, and
VITO MESSINA,
Defendants.
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Jury Trial Demanded

RICHARD GUSTIN, by and through his attorneys The Bellantoni Law Firm, PLLC, as
and for his complaint states:
NATURE OF THE ACTION
1.

This is an action for, inter alia, economic, compensatory and punitive damages

and attorney’s fees, proximately resulting from defendants’ unlawful discrimination against the
plaintiff based on his gender.

JURISDICTION
2.

The Court’s jurisdiction over the plaintiff’s federal claims is invoked pursuant to

28 U.S.C. §1331, 28 U.S.C. §1343 and supplemental jurisdiction over the plaintiff’s state law
claims pursuant to 28 USC § 1367. Plaintiff filed a complaint with the United States Equal
Employment Opportunity Commission premised on gender discrimination in violation of, inter
alia, Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e, et seq. The United
States Department of Justice, Civil Rights Division duly issued to the plaintiff a notice of the
right to institute a lawsuit dated December 12, 2016.

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PARTIES
3.

Plaintiff, RICHARD GUSTIN, (“Plaintiff”), is a citizen of the United States, a

domiciliary of the State of New York and a resident of the Northern Counties.
4.

Plaintiff is a male.

5.

Defendant, ENTERGY NUCLEAR OPERATIONS, INC., (“Entergy”) is a foreign

business corporation that regularly engages in business in Westchester County, New York and the
licensed operator of the nuclear power generating units located at Indian Point.
6.

Entergy has annual revenues of more than $10 billion and employees approximately

14,500 individuals.
7.

Defendant, DANIEL GAGNON, (“Gagnon”), was at all relevant times employed

by Defendant Entergy.
8.

At all times relevant to Plaintiff’s causes of action herein, Gagnon was the

Security Manager of the Indian Point Nuclear Facility’s Security Department.
9.

Defendant, VITO MESSINA, (“Messina”), at all times relevant herein, was

employed by Entergy at the Indian Point Nuclear Facility and was acting within the scope of his
assigned position.
MATERIAL FACTS
10.

The Indian Point Nuclear Facility (“Indian Point”) is a privately owned nuclear

power plant owned and operated by Entergy.
11.

In November 2000, Entergy purchased the Indian Point 3 Unit nuclear reactor

(“Unit 3”) from the New York Power Authority (“NYPA”).
12.

In and around the Fall of 2001, Entergy purchased the Indian Point 2 Unit nuclear

reactor (“Unit 2”) from Consolidated Edison (“ConEd”).

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13.

Plaintiff began his employment with NYPA as a nuclear safety officer at the

Indian Point Unit 3 nuclear facility in 1989.
14.

Also employed with Plaintiff as nuclear safety officers with NYPA at Unit 3 were

defendants Daniel Gagnon (“Gagnon”) and Vito Messina (“Messina’).
15.

During the time in which Plaintiff was employed by NYPA with Gagnon and

Messina, and from 1989 to 2000, Messina was known throughout the Indian Point Security
Department to sexually harass other male co-workers.
16.

Since at least 1989, Gagnon has been aware of Messina’s perverted and

unwelcomed proclivity to sexually harass and sexually assault male co-workers – both verbally
and physically.
17.

Gagnon’s knowledge of Messina’s chronic and habitual sexual harassment and

sexual assault of male co-workers is based on Gagnon’s own personal experience having been
victimized by Messina, his general knowledge from other Security Department personnel who
were sexually harassed and/or sexually assaulted by Messina and Gagnon’s direct observations
of Messina’s conduct toward other male employees.
18.

During his employment with NYPA at Indian Point under NYPA, Gagnon

observed Messina sexually harass other male employees.
19.

During his employment with NYPA at Indian Point, Gagnon was physically

sexually harassed by Messina.
20.

During his employment with NYPA at Indian Point, Gagnon was verbally

sexually harassed by Messina.

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21.

Under NYPA’s management of Indian Point, it was well-known throughout, inter

alia, the Security Department, that Messina commonly sexually harassed and sexually assaulted
male employees.
22.

Under NYPA’s management of Indian Point, it was well-known throughout, inter

alia, the Security Department, that Messina routinely inappropriately subjected male co-workers
to offensive inappropriate touching and fondling without their consent.
23.

Under NYPA’s management of Indian Point, it was well-known throughout, inter

alia, the Security Department, that Messina routinely made inappropriate sexual comments to
male co-workers.
24.

Indian Point employees have observed Messina also physically sexually harass

male subcontractors performing assignments at Indian Point.
25.

After Entergy purchased Unit 3, Plaintiff, Messina, and Gagnon, (among many

other NYPA security department employees) remained employed in the capacity of Security
Force Officers at the Indian Point facility.
26.

In and around 2003, James Tepperwein (“Tepperwein”) was employed by

Entergy as a Security Officer at Indian Point.
27.

Tepperwein is a married heterosexual male who, at no time, consented to be

touched by Messina.
28.

Beginning in the Summer of 2003, Tepperwein was subjected to unwanted verbal

and physical sexual harassment by Messina.
29.

Messina’s verbal and sexual harassment occurred when Tepperwein was alone

and in the presence of other Security Department employees.

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30.

Entergy and Security Department Management knew that, prior to Messina’s

sexual harassment and sexual assault of Tepperwein, Messina had sexually harassed and
assaulted, inter alia, Chief Shop Steward Patrick O’Hara (“O’Hara”).
31.

Entergy and Security Department Management knew that 10 years prior to

Messina’s sexual harassment and sexual assaults of Tepperwein and O’Hara, Messina had
subjected, inter alia, O’Hara’s father (who is a former Indian Point employee), to verbal and /or
physical sexual harassment.
32.

Messina subjected Tepperwein to verbal sexual harassment on more than one

occasion.
33.

Messina’s verbal sexual harassment of Tepperwein included comments such as,

“Do you think you would ever have sex with a man?”, “Don’t I excite you?”, “Don’t you get
excited about me?”
34.

Messina also commented to other Security personnel in Tepperwein’s presence,

“Jim Tepperwein is turning me on.”
35.

In November 2004, Messina impulsively and unexpectedly shoved himself up

against Tepperwein’s body, and grabbed Tepperwein’s buttocks while simultaneously digging
his nails into Tepperwein’s buttocks.
36.

Tepperwein complained to Barbara Taggert of Entergy’s Employee Concerns

Program.
37.

Entergy deemed Tepperwein’s complaint of Messina’s sexual harassment and

conduct, to be “Unfounded”.

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38.

A few weeks after Tepperwein reported that Messina pushed himself up against

his body and dug his nails into his buttocks, Tepperwein was subjected to a retaliatory factfinding and issued a letter of discipline for using his sick time.
39.

In August 2005, Messina told Tepperwein that he liked Tepperwein’s hair and

began to fondle his hair and neck before Tepperwein told him to stop touching him.
40.

Emboldened by Entergy’s deliberate indifference to his sexually harassing

conduct, Messina told Tepperwein, “I’m going to touch you as much as I want.”
41.

Tepperwein reported this incident to Barbara Taggert as well.

42.

Messina admitted that that he had stroked Tepperwein’s hair.

43.

Instead of taking disciplinary action against Messina, however, Entergy placed

him on paid leave for 10 weeks – essentially rewarding Messina with a paid vacation.
44.

After continued sexual harassment of Tepperwein, and in November 2005,

Messina was issued a “Letter of Discipline” informing him to refrain from any type of
inappropriate behavior; “failure to comply with the terms of this reprimand will result in your
termination…”
45.

Entergy continued to assign Messina to work on the same shift with Tepperwein

in spite of Tepperwein’s complaints that Messina was continuing to sexually harass and assault
him.
46.

Entergy continued to subject Tepperwein to fact-findings and disciplinary action,

but not Messina.
47.

Then-Security Manager Terrence Barry (“Barry”) wanted to fire Messina, but was

pressured by, inter alia, other Security Department employees and Entergy administration and
management not to fire Messina.

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48.

In March 2006, Tepperwein left his position at Entergy and filed an EEOC

complaint of discrimination and, ultimately, a federal lawsuit against Entergy.

Post-Tepperwein
Messina Continues His Predacious and Sick Victimization of His Male Co-Workers
49.

Though Entergy temporarily removed Messina from his position as a range

instructor during Tepperwein’s lawsuit, once the Tepperwein case was over, Entergy returned
Messina to his former position as a range instructor.
50.

Messina continued to verbally and physically sexually harass and molest his male

co-workers.
51.

In 2007, Gagnon was promoted to the position of Acting Security Manager of the

Security Department at Indian Point.
52.

In 2008, Gagnon was permanently promoted to the position of Security Manager

and continues to hold that position to date.
53.

Entergy and the Security Management, including Security Manager Dan Gagnon

and then-Security Supervisor Tim Redfearn, continued to tacitly condone Messina’s twisted and
criminal conduct through their deliberate indifference to his offensive and sexually harassing
conduct.
54.

Messina’s victimization of numerous Entergy employees by sexual harassment

and sexual assault was deliberately and willfully disregarded by Entergy, Gagnon and Entergy
management.
55.

After Messina was returned to his position as a range instructor, complaints about

Messina’s continued sexual harassment and sexual assaults of his male co-workers continued to

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be made to, inter alia, Security Department management employees, Entergy management and
administration, the Employee Concerns Program, Barbara Taggart, Dan Gagnon, Tim Redfearn,
the Entergy Ethics Hotline, Security Lieutenants and/or Shift Security Supervisors.
56.

Past the point in time when Messina was returned to his position as a range

instructor, it was well-known at Indian Point that Messina was continuing his decade(s) long
predatory conduct of sexual harassment and sexual assault on male co-workers.
57.

For example, while working as a Range Officer and after the Tepperwein lawsuit,

Messina came up behind another male Security Officer and thrust his hand down into the back of
the officer’s pants, touching his bottom.
58.

It was also well-known at Indian Point that Messina was “untouchable” and

would not be fired or disciplined for his conduct.
59.

Messina’s nickname at Indian Point was “the child molester”.

60.

In another example, Messina pressed another co-worker up against the wall of the

elevator, would at various times put his arm around the co-worker and try to whisper in his ear,
and/or grab the male co-workers’ leg – despite being told numerous times to leave him alone.
61.

This co-worker witnessed Messina sexually harass and subject other co-workers

to unwanted and sexually offensive touching and comments as well.
62.

Messina told that co-worker, “Go ahead and tell. They aren’t going to fire me.

They’ll fire you before they’ll fire me.”
63.

Yet another Indian Point employee observed Messina open a female sergeant’s

sandwich and place his penis inside of it before returning the sandwich to the table during
lunchtime.

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64.

It was a well-known fact within the Indian Point Security Department that if you

complained about Messina’s sexual harassment and/or sexually assaultive conduct, management
would adversely target you.

Messina is Reassigned/Confined to a Specially-Made Position in the Armory
65.

As a result of Messina’s continued sexual harassment and sexual assault of male

co-workers at Indian Point after the Tepperwein lawsuit, a position in the gun armory was
created for Messina (the “armory position”).
66.

The armory position was created by and/or at the direction of, inter alia,

Defendant Gagnon.
67.

The armory position was specifically created for Messina to keep him away from

his male co-workers and prevent Messina from having regular contact with them.
68.

Messina was transferred to the armory position because of his inability to control

his sexual predatory compulsions toward male co-workers.

Gagnon Turns Messina Loose on Male Co-Workers Once Again
69.

In and around 2015, the Indian Point Security Department was experiencing low

levels of staffing and numerous issues with regard to violations of the federal fatigue rule in
connection with Entergy’s mandatory and forced overtime of Security Force employees (rather
than spend the money to properly staff the Security Department).
70.

Despite the fact that Messina was specifically removed from shift and contact

with other male employees and assigned to a specially created position in the armory because of
his history of being a sexual predator, Gagnon reassigned Messina back to shift work.

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71.

Despite knowing that placing Messina in contact with male co-workers was

absolutely guaranteed to lead to additional incidents of sexual harassment and sexual assault
against male co-workers, Gagnon nevertheless returned Messina to shift work.
72.

Gagnon, along with Union President Thomas SanFratello, made the decision to

reassign Messina to a permanent shift position in the Security Department.

Messina Commits Additional Acts of Sexual Assault and Harassment of Male Co-Workers
73.

In and around October 2015, in front of several witnesses and in the Unit 2

bunker, Messina grabbed a male security officer who was reaching into the refrigerator to get his
lunch.
74,

Messina spontaneously grabbed his male co-worker from behind and around the

waist and made several pumping, thrusting and grinding motions with his crotch into the coworker’s buttocks area threatening, “I’m going to stick your head in the freezer and fuck your ass
until it hemorrhages.”
75.

The victim pushed Messina away and sat down on the couch when Messina

impulsively grabbed him by the head and forcefully pulled his face toward and into his crotch
area.
76.

One of the witnesses to the incident in the Unit 2 bunker was Union President

Thomas SanFratello.
77.

The October 15, 2015 Unit 2 bunker incident was promptly reported to Security

Department management and supervisors.
78.

Gagnon was informed of the October 15, 2015 Unit 2 bunker incident.

79.

Gagnon took no corrective against Messina for the Unit 2 bunker incident.

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80.

Entergy took no corrective action against Messina for the Unit 2 bunker incident.

Messina Sexually Assaults and Harasses Plaintiff
81.

On February 16, 2016, Messina sexually assaulted and harassed Plaintiff at work.

82.

On that date, Messina forcibly pushed Plaintiff up against a locker, pushed his

body against Plaintiff’s and tightly held him against himself while he repeatedly humped and
rubbed his erect penis against Plaintiff’s leg with a forward thrusting movement.
83.

Plaintiff immediately recounted the events to another co-worker on site.

84.

Plaintiff promptly met with Gagnon, Security Superintendent Mitch Wood and

Plaintiff’s union representative Sal Manzo to report the incident.
85.

Plaintiff reported the incident of Messina’s sexual assault and harassment to

Gagnon, Wood and Manzo.
86.

Gagnon chuckled when Plaintiff recounted what Messina had done.

87.

After laughing at what Messina had done to Plaintiff, Gagnon stated, “The same

thing happened to me years ago.”
88.

Gagnon continued, “That’s just Vito.”

89.

Plaintiff also informed Gagnon, Wood and Manzo that he personally observed

Messina grab the ponytail of a newly hired subcontractor working on site (who Messina did not
know) and told the subcontractor, “I’d like to see you in a coconut bra…feed you…and pump
you in the ass”.
90.

Plaintiff recounted the events of February 16, 2016 during a meeting with

Entergy’s internal investigators.

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91.

Plaintiff further recounted to Entergy investigators Messina’s history of sexual

harassment and sexual assault over the decades.
92.

After conducting its investigation, Entergy failed to subject Messina to any

adverse employment action.
93.

Entergy did not terminate Messina’s employment.

94.

Gagnon did not suspend Messina’s Unescorted Access Authorization.

95.

Gagnon did not terminate Messina.

96.

Gagnon did not recommend that Messina be terminated.

97.

Gagnon did not report Messina’s conduct to the Access Department for

suspension or termination of his Unescorted Access Authorization.
98.

Entergy and Gagnon’s decades-long knowledge of Messina’s sexually deviant

nature and conduct and Defendants’ willful decision to maintain his employment at Indian Point
and deliberate indifference to Messina’s conduct, created a hostile work environment for
Plaintiff and all other male employees in the Indian Point Security Department.
99.

Defendants’ deliberate indifference and malicious, reckless, implicit and explicit

condonation of Messina’s conduct for many, many years has directly caused the sexual
harassment and sexual assault of Plaintiff and other male co-workers at Indian Point.
100.

Defendants’ deliberate indifference and malicious, reckless and explicit

condonation of Messina’s conduct created a hostile work environment for Plaintiff and the other
male co-workers at Indian Point.
101.

Defendants’ deliberate indifference and malicious, reckless, implicit and explicit

condonation of Messina’s conduct created a hostile work environment for every male Security
Department employee at Indian Point.

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102.

As a direct result of Defendants’ deliberate indifference, reckless, implicit and

explicit condonation of Messina’s outrageous sexually harassing and criminal conduct, Plaintiff
suffers from and was diagnosed with Post-traumatic Stress Disorder.
103.

Plaintiff was sexually harassed and sexually assaulted by Messina because

Entergy, Gagnon, and Entergy Security Department management and supervisors knew of
Messina’s uncontrollable aberrant sexual proclivities and they deliberately chose to ignore it.
104.

As a direct result of Messina’s sexual harassment and sexual assaultive behavior

and Defendants’ choosing to ignore such behavior, Plaintiff suffers from, and was diagnosed
with, Post-traumatic Stress Disorder.
105.

Messina intentionally placed Plaintiff in fear of imminent harmful and/or

offensive contact.
106.

Messina intentionally subjected Plaintiff to offensive and harmful physical

contact without Plaintiff’s consent.
107.

Defendants’ conduct has caused Plaintiff to suffer, inter alia, stress, unwanted

physical touching, mental and emotional anguish, fear, embarrassment, nightmares, economic
loss, weight loss, stomach aches, headaches, depression, loss of and/or diminished interaction
with family and friends, diminished social interaction, loss of the enjoyment of life and his
normal activities, anxiety, sleeplessness, and the physical manifestations of the same.

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AS AND FOR A FIRST CAUSE OF ACTION
108.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
109.

Under the theory that Entergy is liable to the plaintiff for gender discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e.

AS AND FOR A SECOND CAUSE OF ACTION
110.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
111.

Under the theory that Daniel Gagnon is liable to the plaintiff for gender

discrimination in violation of New York Executive Law §296, et seq.

AS AND FOR A THIRD CAUSE OF ACTION
112.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
113.

Under the theory that Entergy is liable to the plaintiff for gender discrimination in

violation of the New York State Human Rights Law, Executive Law §296, et seq.

AS AND FOR A FOURTH CAUSE OF ACTION
114.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
115.

Under the theory that Vito Messina is liable to the plaintiff for common law

battery.

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AS AND FOR A FIFTH CAUSE OF ACTION
116.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
117.

Under the theory that Vito Messina is liable to the plaintiff for common law

assault.

AS AND FOR A SIXTH CAUSE OF ACTION
118.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
119.

Under the theory that Entergy is vicariously liable to the plaintiff for common law

battery.

AS AND FOR A SEVENTH CAUSE OF ACTION
120.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
121.

Under the theory that Entergy is vicariously liable to the plaintiff for common law

assault.
AS AND FOR AN EIGHTH CAUSE OF ACTION
122.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
123.

Under the theory that Gagnon is liable to the plaintiff for aiding and abetting

Messina’s commission of common law battery.

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AS AND FOR A NINTH CAUSE OF ACTION
124.

Plaintiff reiterates and repeats paragraphs numbered “1” through and including

“107” in their entirety.
125.

Under the theory that Gagnon is liable to the plaintiff for aiding and abetting

Messina’s commission of common law assault.

WHERFORE, a Judgment is respectfully requested as and against each and every defendant:


Awarding compensatory damages in an amount to be determined by a jury;



Awarding economic damages in an amount to be determined by a jury;



Awarding punitive damages in an amount to be determined by a jury;



Awarding costs, disbursements and reasonable attorney’s fees;



Granting such other and further relief as the Court deems just and fair.

Dated: February 16, 2017
Scarsdale, New York

THE BELLANTONI LAW FIRM, PLLC
Attorneys for Plaintiff, Richard Gustin
By:

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_____________/s_____________________
Amy L. Bellantoni (AB3061)
2 Overhill Road, Suite 400
Scarsdale, New York 10583
(914) 367-0090
(914) 367-0095 (facsimile)