Case 7:17-cv-05238-CS Document 1 Filed 07/11/17 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TED GORDON,
Plaintiff,

17 Civ. 5238 ( )

-againstCOMPLAINT
ENTERGY NUCLEAR OPERATIONS
INC.,
Defendant.
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Jury Trial Demanded

TED GORDON, 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 defendant’s 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 (“EEOC”) 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.

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PARTIES
3.

Plaintiff, TED GORDON, (“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.

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

Entergy and was acting within the scope of his position and in furtherance of the business of
Entergy. Entergy is liable for Gagnon’s acts and omissions under the theory of respondeat
superior.
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.

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 employment.
Entergy is liable for Messina’s acts and omissions under the theory of respondeat superior.
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”).

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12.

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

reactor (“Unit 2”) from Consolidated Edison (“ConEd”).
13.

Plaintiff began his employment with Entergy as a Nuclear Security Officer at the

Indian Point in and around October 2008.
History and Entergy’s Knowledge of Messina’s Sexual Harassment and Sexual Assaultive
Behavior Against Male Co-Workers at Indian Point

14.

Prior to Entergy’s purchase of the Unit 3 Nuclear Reactor from New York Power

Authority, Daniel Gagnon (“Gagnon”) and Vito Messina (“Messina’) were co-workers at NYPA.
15.

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

from 1989 to 2000, Messina was known throughout the Indian Point Security Department to
sexually harass other male co-workers, which created a hostile work environment until the time
that Messina ultimately retired in 2016.
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, or were witnesses thereto, and
Gagnon’s direct observations of Messina’s conduct toward other male employees.
18.

During his employment at Indian Point under NYPA, Gagnon observed Messina

sexually harass other male employees.

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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.
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 co-workers.
22.

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

alia, the Security Department in which Gagnon was employed, that Messina routinely
inappropriately subjected male co-workers to offensive and 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, 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.

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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 as

well as in the presence of other Security Department employees.
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, without Tepperwein’s consent, 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 Taggart of Entergy’s Employee Concerns

Program.

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37.

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

conduct, to be “Unfounded”.
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 Taggart 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.

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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.
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

of Indian Point 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.

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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
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.

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62.

Messina confidently informed the 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.
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 and retaliate against you.

Messina is Reassigned to a 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, Messina was reassigned to the gun
armory (the “armory position”).
66.

In the armory position, Messina’s duties and responsibilities were varied from

those of his predecessor.
67.

In the armory position, Messina was kept away from co-workers and prevented

from having regular contact with them.
68.

Messina’s duties in the armory position were curtailed because of his inability to

control his sexual and 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

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connection with Entergy’s mandatory and forced overtime of Security Force employees (rather
than spend the money to properly staff the Security Department). As a result, the armory
position was eliminated.
70.

Despite the fact that Messina’s duties and responsibilities in the armory position

removed him from direct contact with other male co-workers because of his history of being a
sexual predator, Gagnon reassigned Messina to shift work where he would again be in contact
with male co-workers.
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 made the decision to reintegrate Messina into the workforce by assigning

him to a shift position in the Security Department.

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

In and around Spring/Summer 2015, Union President Thomas Sanfratello

informed Entergy’s corporate internal investigators Nicholas Tranchina (“Tranchina”) and Brian
Rivera (“Rivera’) that Messina was continuing to engage in sexually offensive and sexually
harassing conduct.
74.

Specifically, Sanfratello informed Tranchina and Rivera that Messina, inter alia,

made sexually inappropriate gestures toward and near his genital area.
75.

Entergy failed to take any remedial or adverse action against Messina.

76.

Entergy failed to take any steps to ensure the safety of their employees from the

predatory acts of Messina.

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77.

In and around October 24, 2015, Plaintiff was inside of the Unit 2 bunker with

another co-worker when Messina bolted into the room and immediately began hugging on,
tickling and touching Plaintiff in a physically offensive and sexual manner.
78.

Plaintiff pushed Messina off, told him to stop, and walked away.

79.

Plaintiff sat down on a chair next to the refrigerator and leaned in to get his lunch.

80.

Messina forcefully grabbed Plaintiff’s head, pulled it into Messina’s crotch

causing Plaintiff’s face to become pushed up against Messina’s privates.
81.

Messina simultaneously stated, “I’m going to stick your head in the freezer and

fuck your ass until it hemorrhages.”
82.

Plaintiff again pushed Messina away.

83.

By reintegrating Messina into the Security Department, Gagnon created a hostile

and unsafe environment for the male Security Department employees, as borne out through the
attack on Thomas Sanfratello and Plaintiff.
84.

When Gagnon made the decision to reintegrate Messina into the Security

Department, he knew that Messina had been committing acts of sexual harassment and sexual
assault against male co-workers for decades.
85.

By placing Messina back into the Security Department knowing that Messina had

been committing acts of sexual harassment and sexual assault against male co-workers for
decades, Gagnon aided and abetted Messina’s continued victimization of male co-workers.
86.

At the time that Messina sexually harassed and sexually assaulted Plaintiff it was

feared that if an employee complained to Entergy Management about Messina, they would be
retaliated against by Gagnon and Entergy, as was Tepperwein.

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87.

The incident in October 2015 was not the first time that Messina had subjected

Plaintiff to unwanted sexually offensive touching and sexually offensive comments, which
created a hostile work environment for Plaintiff and other male co-workers.

Messina Sexually Assaults and Harasses Yet Another Male Co-Worker Months Later
88.

On February 16, 2016, Messina sexually assaulted and harassed yet another male

co-worker, Richard Gustin (“Gustin”), in the Security Department.
89.

Specifically, Messina forcibly pushed Gustin up against a locker, pushed

Messina’s body against Gustin’s body and tightly held Gustin while repeatedly humping and
rubbing his erect penis against Gustin’s leg with a forward thrusting movement.
90.

When Gustin reported Messina’s conduct to Security Manager Dan Gagnon,

Security Superintendent Mitch Wood and Gustin’s union representative Sal Manzo, Gagnon
chuckled and recounted how Messina had sexually molested him, stating, “The same thing
happened to me years ago” and “That’s just Vito.”
91.

Gustin 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”.
92.

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

Entergy’s internal investigators, including Nicholas Tranchina, the same internal corporate
investigator to whom Thomas Sanfratello had complained close to a year before that Messina
was continuing his sexual harassing, sexually assaultive and deviant behavior.

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93.

Gustin further recounted to Investigator Tranchina Messina’s history of sexual

harassment and sexual assault over the decades.
94.

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

adverse employment action.
95.

Entergy did not terminate Messina’s employment.

96.

Gagnon did not suspend Messina’s Unescorted Access Authorization.

97.

Gagnon did not terminate Messina.

98.

Gagnon did not recommend that Messina be terminated.

99.

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

suspension or termination of his Unescorted Access Authorization.
100.

Entergy did not subject Gagnon to any adverse action for knowingly facilitating

Messina’s continued sexual harassment and sexual assault.
101.

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

nature and conduct and their 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.
102.

Entergy and Gagnon’s 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.
103.

Entergy and Gagnon’s 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.

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104.

Entergy and Gagnon’s 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.
105.

Plaintiff was sexually harassed and sexually assaulted by Messina because

Entergy, Entergy’s corporate investigators, Gagnon, and Entergy’s Security Department
management and supervisors knew of Messina’s uncontrollable aberrant sexual proclivities and
they deliberately chose to ignore it.
106.

After failing to take any adverse action against Messina, Entergy engaged in

conduct that treated female employee victims of sexual harassment disparately from male
employee victims of sexual harassment.
107.

After Entergy failed to take any adverse or remedial action against Messina for

sexually harassing and sexually assaulting Plaintiff and other male co-workers, two (2) female
employees were sexually harassed by a male Security Department Lieutenant.
108.

Contrary to Entergy’s treatment of Messina’s male victims, Entergy terminated

the male Security Department Lieutenant who sexually harassed two (2) female employees.
109.

By terminating the individual who sexually harassed two (2) female employees

and failing to take adverse action against and/or terminate Messina for sexually harassing and
sexually assaulting multiple male employees, Entergy has treated male victims of sexual
harassment and sexual assault disparately than female victims of sexual harassment, based solely
on gender.
110.

Defendant’s 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

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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.

AS AND FOR A FIRST CAUSE OF ACTION
111.

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

“110” in their entirety.
112.

Entergy is liable to the plaintiff for gender discrimination under the theory of a

hostile work environment 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
113.

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

“112” in their entirety.
114.

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

under the theory of disparate treatment based on gender in violation of Title VII of the Civil
Rights Act of 1964, as amended 42 U.S.C. §2000e.
AS AND FOR A THIRD CAUSE OF ACTION
115.

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

“114” in their entirety.
116.

Entergy is liable to the plaintiff for gender discrimination under a theory of hostile

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

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AS AND FOR A FOURTH CAUSE OF ACTION
117.

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

“116” in their entirety.
118.

Entergy is liable to the plaintiff for gender discrimination under a theory of

disparate treatment in violation of the New York State Human Rights Law, Executive Law §296,
et seq.
AS AND FOR A FIFTH CAUSE OF ACTION
119.

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

“118” in their entirety.
120.

Under the theory that Entergy is liable to the plaintiff for negligent retention of

Messina.
AS AND FOR A SIXTH CAUSE OF ACTION
121.

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

“120” in their entirety.
122.

Under the theory that Entergy is liable to the plaintiff for negligent supervision of

Messina.
WHERFORE, a Judgment is respectfully requested as and against Entergy:
•

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;

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•

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

Dated: July 10, 2017
Scarsdale, New York

THE BELLANTONI LAW FIRM, PLLC
Attorneys for Plaintiff, Ted Gordon
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)