Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—N.D.N.Y.: Nonbinary employee who voluntarily resigned unable to show adverse employment action, (Sep 19, 2025)

By Ronald Miller, J.D.

The court determined that the employee’s generic allegations were not sufficiently pervasive to create a hostile work environment, and there was no evidence that any actions were taken on the basis of his sex.

An employer was granted a motion for summary judgment against the claims of a pizza delivery driver alleging retaliation in violation of the ADA, and sexual harassment and retaliation in violation of Title VII, against a Domino’s Pizza franchisee, ruled a federal district court in New York. Because the employee voluntarily resigned from his employment with an open invitation from a supervisor to return, he was unable to establish that he was constructively discharged, or that he suffered an adverse action, such that there was no support for a retaliation claim (Brown v. Fat Dough Incorp. dba Domino’s Pizza, No. 5:22-cv-761 (ECC/ML) (N.D.N.Y. Sept. 17, 2025)).

Pizza delivery. The employee, who is Norwegian and identifies as nonbinary, was born with thrombocytopenia with absent radius, also known as “TAR Syndrome.” From October 8, 2021, through October 28, 2021, he worked for the employer, a Domino’s Pizza franchisee, as a delivery driver. His duties included delivering pizzas, washing dishes, and helping with the front counter.

According to the employee, on his first day of work, a manager showed him where he would be delivering pizza. During this tour, the manager allegedly told the employee that if he delivered pizzas to a certain part of the Fort Drum military base, then he risked having soldiers “require [Plaintiff] to give them oral sex.”

It was disputed whether a delivery driver who “shadowed” the employee for one or two days asked a question about his national origin and then stole money that he had to replace.

Shift change. The employee worked from 2 p.m. to 11 p.m. until he told the general manager that he has “difficulty seeing at night,” and the general manager gave him earlier shifts. In addition, within three days of when he started working, the employee asked that he not deliver pizzas because he did not feel safe at Fort Drum after someone told him that he could not enter any buildings on Fort Drum when he tried to deliver a pizza to a barracks.

According to the employee, on October 27th another employee threw dirty water and mushrooms at him while he was washing dishes. He also claimed that on someone broke into his car and drew a “smiley face” on the inside of his windshield with pizza grease. The employee reported the break-in to both his supervisor, and the Fort Drum Police.

The employee also reported to both his supervisor and the police that he overheard other employees discuss slashing his tires. A supervisor was unable to substantiate this allegation.

On approximately October 25, 2021, the employee gave a supervisor his two weeks’ notice. The supervisor responded that he “would be welcome back” and that “they would allow [Plaintiff] to come back for more shifts if [Plaintiff] needed to.” According to the employer the resignation was “voluntary,” but the employee claimed that he was “coerced by ongoing harassment and discriminatory practices.”

Subsequently, the employee brought this action alleging employment discrimination in violation of federal law against the employer. Currently, the remaining claims in the dispute include: (1) retaliation in violation of the ADA; (2) sexual harassment in violation of Title VII; and (3) retaliation in violation of Title VII. Presently before the court are the employee’s motions for summary judgment and sanctions. The employer had filed a cross-motion for summary judgment.

The court denied the employee’s motions for sanctions and summary judgment and granted the employer’s motion for summary judgment.

Sanctions. As an initial matter, the court considered the employee’s motion for sanctions against the employer for allegedly harassing him with counterclaims and “retaliatory conduct.” The court observed that the motion was mostly conclusory language without any factual assertions that could support his request. In addition, contrary to the employee’s assertions, the employer did not file any counterclaims against him. Finally, the employee failed to describe any specific “retaliatory conduct.” Accordingly, the employee’s renewed motion for sanctions was denied.

However, the court observed that the employee could be sanctioned because he included at least one fictitious legal citation in his submissions. That citation was for an unrelated habeas corpus case. The employee testified that he used ChatGPT to draft legal papers. The court observed that it is well established that artificial intelligence regularly “hallucinates” and includes false statements. Here, the court decided not to impose sanctions at this time, but cautioned the employee that he faces a substantial risk of sanctions if he continues to use artificial intelligence without carefully verifying all citations.

Wrongful termination. Next, the court considered the employee’s motion for summary judgment on his “wrong termination and retaliation” claims. Here, the court concluded that his legal argument regarding the basis for summary judgment consisted only of conclusory statements untethered to any of his three specific claims.

The employee’s statement of material facts did not set out, in particularity, with citations to the record, the factual basis for summary judgment, and it contained contradictory assertions of fact. Because the court could not determine which facts could support a summary judgment, it denied the employee’s motion for summary judgment.

ADA retaliation. With respect to the employee’s ADA retaliation claim, the employer argued that he voluntarily resigned and “therefore did not suffer an adverse employment action” as required by the ADA. For the employee’s part, he asserted that he was constructively discharged.

Adverse employment action. Here, the court determined that the employee could not establish an adverse employment action. The employee admitted that the employer did not reduce his salary or change his job title. After he resigned from his employment, a supervisor told him that his position remained open and that he was welcome to return.

As to the employee’s constructive discharge argument, there was insufficient evidence to support constructive discharge. The employee admitted that his supervisor was disappointed that he was leaving and told him that his position would remain open if he wished to return. Even assuming that a coworker threw dirty water and mushrooms at him, someone drew a “smiley face” with pizza grease on his windshield, and employees talked about slashing his tires, those conditions are not objectively intolerable and, even if they were, there is no evidence that his supervisors deliberately caused those issues.

Sexual harassment. Moreover, the court determined that the employee’s generic allegations were not sufficiently pervasive to create a hostile work environment, and there was no evidence that any actions were taken on the basis of his sex.

During the employee’s approximately 20-day employment, a supervisor told him that soldiers may request oral sex from him, an employee threw dirty water and mushrooms at him once, an employee drew a “smiley face” on his windshield with pizza grease, and employees allegedly discussed slashing his tires. Although inappropriate behavior, this conduct was not sufficient for the employee to establish the severe and pervasive environment required for a hostile work environment claim.

The case is No. 5:22-cv-761 (ECC/ML).

Judge: Coombe, E.

Attorneys: Jeramiah Brown, pro se. Christopher Maugans (Goldberg Segalla) for Fat Dough Incorp. dba Domino’s Pizza.

Companies: Fat Dough Incorp.; Domino’s Pizza

Cases: Discrimination DisabilityDiscrimination SexualHarassment Retaliation Procedure AINews NewYorkNews