Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Case No.: JAMES TEPPERWIEN, COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, vs. .. "a ENTERGY, INC., ENTERGY NUCLEAR NORTHEAST, INC., TEAMSTERS UNION- LOCAL 456, VITO MESSINA, BRIEANT .. "fr. Defendants The Plaintiff, James TEPPERWIEN, by and through his undersigned attorney, Kuntz, Spagnuolo, Scapoli Murphy, P.C., respectfully alleges as follows: NATURE OF THE CASE 1. James TEPPERWIEN, an armed security guard at Entergy Nuclear Northeast, Inc. and employed by it and/or Entergy, Inc. (hereinafter referred to jointly or in the alternative as was the victim of continued sexual harassment and a sexual assault by Defendant Vito MESSINA (MESSINA), another armed security guard and ?ring range supervisor at Entergy-NE. Messina accosted Mr. TEPPERWIEN in an unwelcome sexual and violent manner in November of 2004 and, in August of 2005, Messina again touched Mr. TEPPERWIEN in a sexually inappropriate and unwelcome manner While in a patrol vehicle on site at Indian Point during work. 2. Mr. TEPPERWIEN reported both incidents to Entergy?NE management. 3. Mr. TEPPERWIEN also requested that his Union, the International Brotherhood of Teamsters, Local 456 (UNION), represent his interests against the company for allowing and inviting the continued sexual harassment at the hands of Messina. The Union refused to represent Mr. TEPPERWIEN because ?both men were Complaint and Demand for Jury Trial 1 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 2 of 10 members of the Union? and maintained that such representation ?would present a con?ict of interests.? 4. Mr. counsel contacted Entergy-NE in November of 2005, and sought resolution of his complaint after Mr. TEPPERWIEN was informed that MESSINA would be returning to work with no measures in place to protect Mr. TEPPERWIEN. 5. After his complaint was lodged, ENTERGY-NE cited Mr. TEPPERWIEN for violation of company procedure and added a copy of that violation to his record. The infraction and subsequent investigation thereof were retaliatory and the handling of the infraction was conducted in a manner clearly contrary to the company?s own written policy. 6. Mr. TEPPERWIEN now brings this action under federal and state law for SEXUAL HARASSMENT, RETALIATION, CONSTRUCTIVE TERMINATION, FAILURE TO REPRESENT, INTENTIONAL INFLICTION OF MENTAL DISTRESS, AND SEXUAL ASSAULT AND BATTERY. JURISDICTION AND VENUE 7. Mr. TEPPERWIEN brings this employment discrimination and violation of his constitutional rights action against ENTERGY and ENTERGY-NE, the UNION, and MESSINA pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000c et seq. ("Title and the New York State Human Rights Law, New York Executive Law 290 et seq. He brings the supplemental actions against the DEFENDANTS under tort and contract law. 8. This Court has original subject matter jurisdiction over the Title VII claims under 28 U.S.C. 1331 and 1343, because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights. It has supplemental Complaint and Demand for Jury Trial - 2 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 3 of 10 subject matter jurisdiction over the claims, the intentional in?iction of mental distress, and the assault and battery claims under 28 U.S.C. 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy, United States Constitution, (pendant jurisdiction). 9. Venue is proper in this judicial district under 28 U.S.C. 1391 and 42 U.S.C. because Defendants are domiciled in this district or have of?ces, conduct business, and can be found in this district; and the causes of action arose and the acts and omissions complained of occurred therein. ADMINISTRATIVE PREREQUISITES 10. Mr. TEPPERWIEN has duly satis?ed all administrative prerequisites to commencing this action, as described herein. 11. In March 2006, Mr. TEPPERWIEN ?led a charge of employment discrimination with the Equal Employment Opportunity Commission alleging sex discrimination and retaliation against defendants ENTERGY AND ENTERGY-NE. 12. Mr. TEPPERWIEN received a letter from the EEOC dated October 24, 2006, granting the ?right to sue?. 13. Mr. TEPPERWIEN has commenced this action within ninety days of his receipt of the right to sue letter. THE PARTIES 14. Plaintiff is a resident of the State of New York. 15. Defendants ENTERGY AND ENTERGY-NE are publicly held corporations and maintain of?ces within this judicial district. Complaint and Demand for Jury Trial - 3 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 4 of 10 16. Upon information and belief, at all times pertinent hereto, ENTERGY AND ENTERGY-NE have met and currently meet the de?nition of "employer" under all applicable statutes. 17. On information and belief, defendant Vito Messina is a resident of the State of New York. Vito Messina is an "aider and abettor" under 18. On information and belief, defendant the UNION is operating a local and has substantial contacts in this judicial district. The UNION is also an "aider and abettor" under FACTUAL ALLEGATIONS FIRST CAUSE OF ACTION Violation of Plaintiff?s Rights under Title VII of the Civil Rights Act 19. The Plaintiff repeats and re-alleges paragraphs 1-18 as if fully set forth herein. 20. Subsequent to his employment at ENTERGY-NE, MESSINA, a guard with seniority over Mr. Tepperwien and a ?ring range instructor, made several sexual advances to Mr. Tepperwien, which advances Mr. Tepperwien clearly and repeatedly rejected. 21. On or about November 10, 2004, MESSINA, attacked Mr. TEPPERWIEN from behind while at the security command post, grabbing him and driving his ?ngernails into buttocks. MESSINA then ?ed through the security turnstile. 22. Mr. TEPPERWIEN reported this assault to the UNION and ENTERGY- NE. He was directed to make the report anonymously by the ENTERGY-NE personnel of?cer in contravention of company policy. 23. No action was taken to resolve complaint. Complaint and Demand for Jury Trial - 4 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 5 of 10 24. On or about August 29, 2005, after avoiding any contact with MESSINA for months, Mr. TEPPERWIEN was required to drive MESSINA to a remote location on the work site. MESSINA again attempted to engage Mr. TEPPERWIEN in sexually explicit conversation and then reached over and began stroking Mr. hair. 25. Mr. TEPPERWIEN told MESSINA not to touch him and MESSINA insisted that he would continue to pursue Mr. TEPPERWIEN. MES SINA added that he did not believe Mr. rejections and that he found them ?cute?. Mr. TEPPERWIEN again complained to ENTERGY-NE management. 26. On information and belief, MESSINA, when questioned by ENTERGY-NE personnel, admitted to the touching but suggested that he was just trying to get something out of Mr. hair. MES SINA was given paid leave pending a fitness examination. 27. Mr. TEPPERWIEN was informed in October of 2005 that the company was returning MESSINA to duty. He requested that the UNION intervene and his request was refused. 28. Mr. TEPPERWIEN engaged an attorney to attempt to negotiate with ENTERGY-NE and with the UNION. The sole concession from ENTERGY-NE was that MESSINA would be put on a different shift. 29. Mr. TEPPERWIEN asserted that a different shift by itself was insuf?cient to protect him, and would result in his loss of overtime and, further, raise the specter of confronting MESSINA while MESSINA was armed in the course of any emergency or overtime work. ENTERGY-NE refused to discuss it further. 30. On or about November 16, 2005, Mr. Terence Barry, the Security Manager for Entergy?NE, called Mr. TEPPERWIEN into a meeting and, after some preliminary Complaint and Demand for Jury Trial 5 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 6 of 10 conversation, informed Mr. TEPPERWIEN that he would View further objections to the proposed arrangements as a sign that Mr. TEPPERWIEN was over-emotional and, on that basis, he would consider removing Mr. TEPPERWIEN from duty. 31. Over the next few months, Mr. TEPPERWIEN was repeatedly warned by other workers that he was in danger and that the company was ?out to get him.? 32. On or about January 7, 2006, a respirator (mask) was found missing from a location on Mr. watch patrol. Mr. TEPPERWIEN was questioned extensively by ENTERGY-NE about his failure to inventory and report its absence, although it was clear that he could not have done so and still complied with required company procedure. Mr. TEPPERWIEN was ?counseled? on this incident and a record of such was added to his ?le. 33. On or about February 1, 2006, Mr. TEPPERWIEN was again called to Mr. Barry?s of?ce. He was told that his name had been randomly selected for an interview with a company attorney concerning a complaint to the Nuclear Regulatory Commission. The substance and nature of the questions revealed that Mr. TEPPERWIEN had not been randomly selected but, instead, that he had been singled out because of his earlier complaints, a fact con?rmed by a subsequent analysis in a memo from Employee Concerns, a company unit dealing with personnel. 34. In February of 2006, Mr. TEPPERWIEN ?led charges with the United States Equal Employment Opportunity Commission (EEOC), which charges were investigated, and the EEOC rendered a determination on September 25, 2006. The ensuing conciliation effort failed, and a letter granting the right to sue was issued on October 24, 2006. Complaint and Demand for Jury Trial 6 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 7 of 10 35. Due to the stress of the hostile work environment and the continuing potential for further harassment and assault ENTERGY-NE forced Mr. TEPPERWIEN to resign from his position at Entergy in October of 2006. 36. Defendants Entergy, Entergy?NE and Victor Messina illegally sexually harassed, retaliated, and constructively discharged Mr. TEPPERWIEN in violation of Title VII. SECOND CAUSE OF ACTION Violation of Equal Protection under 37. The Plaintiff repeats and re-alleges paragraphs 1-36 as if fully set forth herein. 38. Defendants illegally sexually harassed, retaliated against, and constructively discharged Mr. TEPPERWIEN in Violation of the THIRD CAUSE OF ACTION Aiding and Abetting Under 39. The Plaintiff repeats and re?alleges paragraphs 1-38 as if fully set forth herein. 40. By the acts alleged herein, Messina is liable to Mr. TEPPERWIEN for aiding and abetting the illegal acts of ENTERGY AND ENTERGY-NE under Complaint and Demand for Jury Trial 7 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 8 of 10 FOURTH CAUSE OF ACTION Failure to Represent 41. The Plaintiff repeats and re-alleges paragraphs 1-40 as if fully set forth herein. 42. The Union had a duty to represent Mr. TEPPERWIEN and evaded that duty under a thinly veiled pretext of equanimity, but, upon information and belief, the UNION had prior and speci?c notice of aberrant behavior and failed to represent Mr. TEPPERWIEN. 43. The failure to represent Mr. TEPPERWIEN resulted in Mr. Messina?s return to work Without suitable protections for Mr. TEPPERWIEN, making Mr. working environment untenable. 44. By the acts alleged herein, the UNION is liable to Mr. TEPPERWIEN for Failure to Represent. FIFTH CAUSE OF ACTION Assault and Battery 45. The Plaintiff repeats and re-alleges paragraphs 1-44 as if fully set forth herein. 46. By the acts alleged herein, MESSINA committed Assault and Battery against Mr. Tepperwien. SIXTH CAUSE OF ACTION Intentional In?iction of Mental Distress 47. The Plaintiff repeats and re-alleges paragraphs 1-46 as if fully set forth herein. Complaint and Demand for Jury Trial - 8 Case 7:07-cv-00433-CS Document 1 Filed 01/19/07 Page 9 of 10 48. The DEFENDANTS as individuals and in aggregate had a duty to Mr. TEPPERWIEN before and after his assault to protect him ?om attacks in his workplace. 49. The DEFENDANTS did knowingly violate that duty and, by doing so, subjected Mr. TEPPERWIEN to severe Mental Distress, which was in?icted on a daily basis at his workplace, put him in constant fear for his safety, which had deleterious effects on his health, his working environment, and his life outside of work. 50. The DEFENDANTS are liable to Mr. TEPPERWIEN for Intention In?iction of Mental Distress. WHEREFORE, plaintiff respectfully requests that upon tn'al this Court enter judgment: A. Declaring that the actions and practices of defendants violated Title VII and the and enjoining such violations; B. Directing ENTERGY, ENTERGY-NE, the UNION, and VITO MESSINA to make MR.TEPPERWIEN whole by providing him with back pay, front pay, and reimbursement for lost medical insurance, Social Security, pension, overtime, and other employment-related bene?ts; C. Directing ENTERGY, ENTERGY-NE, the UNION and VITO MESSINA to pay MR.TEPPERWIEN compensatory damages for the injuries caused to him by the their sexual harassment, intentional in?iction of mental distress, and retaliation; D. Directing defendants ENTERGY, ENTERGY-NE, the UNION, and VITO MESSINA to pay MR.TEPPERWIEN punitive Complaint and Demand for Jury Trial 9 Case 7:07-cv-00433-CS Document I Filed 01/19/07 Page 10 of 10 damages suf?cient to punish and deter continuation of their unlawful employment practices; E. Awarding Mr. TEPPERWIEN reasonable attorneys' fees, expert witness fees, and costs, as provided by Title VII, 42 U.S.C. 1988, and 18 U.S.C. 2707(b); and F. Granting such additional relief as this Court deems just and proper. JURY DEMAND Plaintiff demands a trial by jury on all claims properly triable by a jury. Dated: January 19: 2007 Bedford Village, New York Yours, etc. KUNTZ, SPAGNUOLO, SCAPOLI MURPHY, P.C. Attorneys for Plaintiff 444 Old Post Road Bedford Village, New Yo 10506 (916% 234- 6363 Raymond/G. Kung (5546) Complaint and Demand for Jury Trial - 10