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In April 2023, The Law Office of David H. Rosenberg, P.C., 445 Broad Hollow Road, Suite 25, Melville, New York, 11747, filed a verified complaint of sex discrimination and retaliation with the New York State Division of Human Rights (“NYSDHR”) against Respondents Red Volpe Pizza Inc. d/b/a Red Volpe Pizzeria Ristorante (“Red Volpe”) located at 363 Broadway, Bethpage, New York 11714 (“Premises”), owner Salvatore Pesce (“Pesce”), and co-worker Andrew Denton (“Denton” and all together as “Respondents”) on behalf of a female employee (“Complainant”).
As alleged in the Verified Complaint, on September 18, 2022, Pesce hired Complainant to work for Red Volpe at the Premises and Complainant reported to work that day. Throughout her employment, Complainant typically waited on tables, bartended, worked the cash register, and yet was not paid on the books at the legally mandated minimum rate of pay. Instead, Pesce only paid Complainant $10.00 in cash per hour off the books; wrongfully withheld her tips in violation of the New York State Labor Law; and subjected her to a hostile work environment on account of sex and in retaliation of her opposition to it.
On January 20, 2023, male Red Volpe employee Marco (“Marco”, last name unknown) approached Complainant at the Premises, removed his cell phone from his person, showed Complainant a picture of himself holding his fully erect penis in his hand while sitting naked on a bed with the sheets pulled down, and asked, “Yes, or no?” Horrified, Complainant said “no” and to “stop.”
Complainant then immediately left Marco and headed in the opposite direction. Marco followed behind closely and demanded, “Mami, yes or no, come on.” Complainant took her phone out and pretended to be on a phone call with the hopes that Marco would stop. Marco approached Complainant from behind, forcefully manipulated his right finger across her vagina through her clothing and then underneath her right breast. Complainant pushed Marco away and yelled, “Stop, don’t do that, stop.” Again, Marco followed Complainant, approached her from behind, and forcefully manipulated his right finger across her vagina through her clothing and then underneath her right breast. This time, Complainant was able to push him away and break free (“January 20, 2023, Sexual Assault and Harassment”).
Complainant immediately reported the January 20, 2023, Sexual Assault and Harassment to Pesce that day. Complainant said generally, “Marco crossed the boundary here. He showed me a picture of his penis and touched the front side of my vagina and my right breast.” Pesce replied, “That’s not okay, I will speak to him. It will never happen again don’t worry.” Complainant asked Pesce to not tell Marco it was she who reported him out of fear of retaliation, to which Pesce responded, “[Complainant], you have my word it will never happen again.” Notably, Pesce refused to fire, suspend, or discipline Marco in any way.
On January 21, 2023, Pesce held a staff meeting to address the January 20, 2023, Sexual Assault and Harassment and warned the male employees “not to flirt or touch any of the females in the restaurant.” Again, Pesce refused to fire, suspend, or discipline Marco in any way.
On January 22, 2023, Pesce promised Complainant, “I took care of everything with Marco. It will never happen again. I told the whole kitchen staff that they are not to flirt or touch any of the females in the restaurant. If they do, there is going to be a serious problem and that it doesn’t matter the age, young ladies, or the older woman.” In short, Pesce refused to fire, suspend, or discipline Marco in any way and he remains employed as of the date of this Verified Complaint.
On January 24, 2023, female co-worker Alicia asked Complainant, “Do you know anything about someone reporting Marco?” Complainant responded, “No, I’m out of the loop, why?” Alicia replied, “Marco came up to me and asked if he ever said or did anything inappropriate to me.” Other male employees and those who did not oppose discriminatory practices were not treated this way.
On February 8, 2023, a new male employee, Andrew Denton (“Denton”), approached Complainant and female co-worker Vanessa Vetrone (“Vetrone”) at the Premises and said, “Hi, I’m a new employee here, never got to introduce myself. I see you’re here two days a week. Do you have another job?” Complainant indicated that she did have another job to which Denton replied, “I just got out of jail, I served 10 years in Attica.” Complainant said, “Oh my” and tried to change the topic of conversation. Denton continued with words to the effect of, “Remember the guys who threw bricks off the Meadowbrook Parkway? Well, I’m that guy, but not everything you heard is true. I was framed. I only served 6 years, and it taught me not to let people with people mess with me.” Denton then lifted his shirt to expose his bare abdomen and brandished a small caliber silver handgun tucked in the front side of his pants. This caused Complainant to fear for her physical safety. Other male employees and those who did not oppose discriminatory practices were not treated this way (“February 8, 2023, Denton Incident”).
On February 9, 2023, Complainant reported the February 8, 2023 Denton Incident to Pesce who brushed it off and said, “I know he has a gun, and I’ll find out if it legal, he shouldn’t be showing it off like that.” Complainant provided the time of the incident and requested that Pesce view and preserve Red Volpe’s restaurant camera footage of the February 8, 2023, Denton Incident. Complainant responded, “I appreciate you telling me it will be handled.” However, no disciplinary action was given, no corrective action was taken, and nothing was “handled.” On the contrary, Pesce rewarded Denton with continued employment. Other male employees and those who did not oppose discriminatory practices were not treated this way.
On February 10, 2023, Pesce told Complainant, “I want to let you know I spoke to Andrew [Denton] and I was close to firing him based on his reaction. I also told him he put you ladies in a bad position and I watched it all on camera.” Complainant said, “Sal, you should have fired him, he is going to kill somebody, you can’t let a kid with a loaded gun make deliveries for you and be around your employees like this.” Pesce responded, “It was handled don’t worry about it.” However, no disciplinary action was given, no corrective action was taken, and nothing was “handled.” On the contrary, Pesce rewarded Denton with continued employment. Other male employees and those who did not oppose discriminatory practices were not treated this way.
On February 11, 2023, Marco approached Complainant at the Premises from behind, grabbed her hips with his hands, and kissed the back of her bare neck. Complainant immediately told Marco, “No” and to “stop” and “I have a boyfriend.” Marco replied, “I know, that’s why I kissed you on your back and not your front” and Complainant ran out of the Premises (“February 11, 2023, Sexual Assault and Harassment”).
That day, Complainant reported the February 11, 2023, Sexual Assault and Harassment to Pesce, who retaliated and texted Complainant in response:
Ok well [sic] [Complainant] at this point [sic] if I need to say something there is no other way around it that I would have to say something that you told me. I don’t have another way to make it as clear as it needs to be. I will take care of it i [sic] you need me to. You let me know what you’d like me to do. I’ll [sic] wait for your decision.
On February 12, 2023, Pesce sent a group chat to Complainant and Vetrone with a video that mocks sexual harassment, and the reporting of it, at work. The following are stills from that video:
Complainant then was constructively terminated. In an effort to conceal the discrimination and in retaliation, Pesce texted:
Hey good morning. I was extremelv [sic] swamped and couldn’t give you the proper attention yesterday and went back and forth thru [sic] text which it shouldn’t have. Throughout the craziness of the day, I have rectified many issues and concerns, and hope to never cross the bridge with future employees again. If you had 5-10 minutes to chat today in person [sic] we could meet at Dunkin Donuts or some place you prefer. Just wanted to have a face to face [sic] conversation as this isn’t a texting or phone call manor. Let me know if today works in the afternoon or by evening.
On February 13, 2023, Complainant agreed to meet with Pesce at Dunkin Donuts, where Pesce warned Complainant generally:
I would like to say my peace without getting interrupted. I wanted to meet with you to give you your paycheck and apologize for how everything was handled. I wanted to let you know the chef was upset and yelled a Marco. All the guys in back confirmed they saw this happen to you and tried to have a conversation with you. You left me hanging on two holiday shifts and missed out on a lot of money. More money than you have made in the past couple of weeks. I want you to know that you’re always welcome in my restaurant and everyone at the restaurant is on your side. They are upset and back you. Marco told me if I had to fire him to get you back, he would understand, but I can’t fire him, [Complainant]. It’s very hard to find people right now and would affect my business. He told me he would like to apologize to you if you’re open to it. I will be there if he does, but I will leave that up to you. You could go through with things and sue, but you were paid in cash, so that could be a big problem for you. Again, I truly am sorry for what has happened, and it will never happen in my restaurant again.
Complainant was constructively terminated on February 12, 2023, on account of sex and in retaliation of her opposition to discriminatory practices. Complainant suffered, and continues to suffer, emotional and economic damages as a result of the discriminatory and retaliatory treatment described herein.
