SUPREME COURT OF THE STATE OF NEW VORK COUNTY OF' NEW VORK

---------------------------------------------------------~----------)(

JESSICA CUBA,

Plaintiff,

- against-

CERBERUS CAPII AL MANAGEMENT, L.P., NATALIE LEONE, Individually, and

JA YNE BINZER, Individually

Defendants.

---------------------------------------------------------------------)(

Index No.

._---_ ... _ ........ -----------------

SUMMONS AND COMPLAINT

DEREK T. SMITH LAW GROUP, PC Attorneys for Plaintiff

30 Broad Street, 35th Floor

New York, NY 10004

(212) 587-0760

17

------ -------

". --__...'~

< '

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

--------------------------------------------------------------------)(

JESSICA CUBA,

.1> Index No.

11103175

Plaintiff,

Plaintiff designates:

NEW YORK COUNTY As the Place of trial

- against-

CERBERUS CAPITAL MANAGEMENT, L.P., NATALIE LEONE, Individually, and

JA YNE BINZER, Individually,

SUMMONS

Defendants.

The basis of the venue is Plaintiff's Residence Located in New York, New York

---------------------------------------------------------------------)(

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiffs attorney within 20 days after the service of this swnmons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the inconvenience relief demanded in the complaint.

Dated: New York, New York March 9,2011

flLEO

DEREK T. SMITH LAW GROUP, PC

~AR 15 7011 ~~~ Off~ ~-=rfC--~~~~

tr'~'" \Il~ CtE~~ . Williwn K. Phillips, Esq.

\I..>~"'" . 30 Broad Street, 35th Floor

New York, New York 10004 (212) 587-0760

2

Defendants' Addresses:

CERBERUS CAPITAL MANAGEMENT, L.P. Via Secretary of State

NATALIE LEONE

Via place of employment located at:

CERBERUS CAPITAL MANAGEMENT, L.P. 299 PARK A VENUE, 22ND FL.

NEW YORK, NEW YORK 10171

JAYNE BINZER

Via place of employment located at:

CERBERUS CAPITAL MANAGEMENT, L.P. 299 P ARK AVENUE, 22ND FL.

NEW YORK, NEW YORK 10171

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

-----------._-------------------------------------------------------)(

JESSICA CUBA,

Index No.

Plaintiff,

- against-

~QMPLAINT PLAINTIFF DEMANDS A JURY TRIAL

CERBERUS CAPITAL MANAGEMENT, L.P., NATALIE LEONE, Individually, and

JAYNE BINZER, Individually,

Defendants.

---------------------------------------------------------------------){

Plaintiff, by her attorneys, DEREK T. SMITH LAW GROUP, P.C., complains of Defendants,

upon information and belief, as follows:

1. Plaintiff complains pursuant to the laws of the State of New York, the Administrative Code

of the City of New York, Title 8, §8-107 et. St'!g., seeking damages to redress the injuries

Plaintiff bas suffered as a result of discrimination the basis of her Race, Color and

National Qrigin by CERBERUS CAPITAL MANAGEMENT. L.P. and their

management.

2. That at all times relevant hereto, Plaintiff, JESSICA CUBA, is a resident of the State of New

York and the County of New York.

3. CERBERUS CAPITAL MANAGEMENT, L.P. ("CERBERUS CAPITAL"), the defendant

herein, at all times hereinafter mentioned, was a foreign corporation duly organized and

existing under and by virtue of the laws of the State of New York.

3

4. That at all times relevant hereto, Defendant CERBERUS CAPITAL was and is duly engaged in business in the State of New York, with offices located within the city of New York at 299 PARK AVENUE 22ND FL. NEW YORK, NEW YORK, 10171.

5. That at all times relevant hereto, Plaintiff CUBA was an employee of Defendant CERBERUS CAPITAL.

6. That at all times relevant hereto, Defendant NATALIE LEONE was an employee of Defendant CERBERUS CAPITAL.

7. That at all times relevant hereto, Defendant LEONE held the position of Human Resource Representative for Defendant CERBERUS CAPITAL.

8. That at all times relevant hereto, Defendant LEONE was superior to Plaintiff CUBA.

9. That at all times relevant hereto, Defendant JAYNE BINZER was an employee of Defendant CERBERUS CAPITAL.

10. That at all times relevant hereto, Defendant BINZER held the position of Human Resource Director for Defendant CERBERUS CAPITAL.

11. That at all times relevant hereto, Defendant BINZER was superior to Plaintiff CUBA.

12. Defendant CERBERUS CAPITAL, Defendant LEONE, and Defendant BINZER are collectively referred to herein as "Defendants."

13. In or about June 2010, Plaintiff CUBA began working for Defendant CERBERUS CAPITAL as an "Administrative Assistant."

14. Plaintiff CUBA earned approximately $60,00.00 per year.

15. Plaintiff CUBA was originally the Administrative Assistant for a group of three supervisors, Defendant LEONE, Ron Kolka (CFO, Cerberus Operations Advisory Company), and Peter Kirchof (SVP, Cerberus Operations Advisory Company).

4

16. At all times relevant hereto, the Plaintiff CUBA was an exemplary employee.

17. However, almost immediately, Plaintiff CUBA noticed that Defendant LEONE was treating her differently than she treated other similarly situated employees, in her department, all Qfwhom were Ca.llcasian.

18. In or about June 2010, without providing any explanation, Defendant LEONE told Plaintiff CUBA that she needed to show "professional maturity." Plaintiff CUBA was rather puzzled by this remark, as she had done nothing wrong.

19. In or about July 2010, impressed with Plaintiff CUBA's work performance, David Willetts (Senior Vice-President) requested that Plaintiff CUBA begin assisting him.

20. Although Defendant LEONE arbitrarily tried to prevent Plaintiff CUBA from directly reporting to Mr. Willetts, the request was ultimately approved, and Plaintiff CUBA became the Administrative Assistant for Mr. Kolka, Mr. Kirchof, and Mr. Willetts ("Direct Supervisors").

21. Plaintiff worked overtime and on weekends whenever her Direct Supervisors needed.

22. Throughout her tenure with Defendant CERBERUS CAPITAL, Plaintiff CUBA always received compliments from her Direct Supervisors regarding her work performance, was never disciplined, and got along well with her co-workers.

23. However, beginning in or about June 2010, and throughout the remainder of Plaintiff CUBA's employment with Defendant CERBERUS CAPITAL, she was consistently and continuously discriminated against by Defendant LEONE and Defendant BINZER solely because of Plaintiff CUBA's Race, Color and National Origin.

24. Plaintiff CUBA is a female of SalvadorianIPeruvian descent.

25. Plaintiff CUBA is the only "ethnic" emu1oyee, in her department at Defendant

5

6

CERBERUS CAPITAL.

26. Defendant CERBERUS CAPITAL's other employees are all Caucasian.

27. Defendants LEONE and BINlER used their power as Human Resource Representatives to perpetrate a discriminatory policy in which they would automatically deny any request made by Plaintiff CUBA, regardless of the nature of the specific request.

28. In or about 2010, Defendants LEONE and BINlER denied Plaintiff CUBA's request for computer speakers, while Defendants granted all Caucasian employees' requests for computer speakers.

29. In or about 2010, although other similarly situated Caucasian employees had double computer screens, Defendants LEONE and BINlER denied Plaintiff CUBA's request for a double computer screen.

30. In or about 2010, Plaintiff CUBA requested that Defendants LEONE and BINZER provide her with a headset, which request was, not surprisingly, flatly denied.

31. In or about 2010, Plaintiff CUBA's Direct Supervisor, Mr. Kirchof, started requiring her assistance outside of the office, and as such, began to constantly send Plaintiff CUBA text messages on her personal cell phone.

32. Although Plaintiff CUBA's Direct Supervisor, Mr. Kirchof, recommended that she get a Blackberry and even offered to purchase it for her, Defendants LEONE and BINZER denied her request, and refused to purchase a Blackberry for Plaintiff CUBA.

33. In fact, Defendant LEONE even tried to intimidate Plaintiff CUBA by directly telling her, "Do not escalate your requests." Plaintiff CUBA found this comment to be disturbing and offensive because she knew it was only due to her being of SalvadorianIPeruvian descent.

34. Plaintiff CUBA was consistently working approximately fifty (50) hours per week, and was always receiving compliments for her hard work ethic and excellent performance.

35. However, in or about the end of 2010, Defendants LEONE and BINZER told Plaintiff CUBA that she was no longer permitted to work overtime and would need their express approval if that were to change. Upon information and belief, Defendants LEONE and BINZER only imposed this rule upon Plaintiff CUBA. Plaintiff CUBA's Direct Supervisor, Mr. Kirchof had to make a special request to the CEO of Operations Advisory Company at CERBERUS, who approved Plaintiff's overtime.

36. Defendants LEONE and BINZER not only denied Plaintiff CUBA's request for remote access to her computer, but then also lied to Plaintiff CUBA's Direct Supervisor, Mr. Kirchof, when they said that no employees were allowed remote access. At the time Defendants made this statement, Defendants were aware that Brooke (last name unknown), Sindy Salazar, and Cindy Rubin each had remote access to their computers.

37. Moreover, while Plaintiff CUBA's Direct Supervisors never discussed, nor had any issues with, Plaintiff CUBA's arrival time into the office, Defendants LEONE and BINZER began to track Plaintiff CUBA's arrival time each day.

38. Defendants LEONE and BINZER did not do this for any other employee, although Plaintiff CUBA's co-workers, Ms. Salazar, Brooke, and Grace Adago, were late on a daily basis. All three of these individuals were Caucasian.

39. As a result of her excellent work performance, in or about October 2010, Plaintiff CUBA received an excellent performance evaluation from her Direct Supervisors, who told her that it was the best review they had ever seen.

40. In fact, her Direct Supervisors indicated in their review that they wanted to give Plaintiff

7

CUBA a pay raise and promote her to Project Manager for the 2011 private equity deals.

41. However, Defendant BINlER sat in on Plaintiff CUBA's review attempted to convinced Plaintiff CUBA's Direct Supervisors to include a reprimand regarding her tardiness, based on false pretenses. When Plaintiff CUBA's Direct Supervisors would not include a reprimand, Defendant BINZER took it upon herself to include the regarding tardiness.

42. Defendant BINZER forced Plaintiff CUBA to sign a written warning that indicated that she was previously spoken to about her tardiness, (when in fact Plaintiff was never previously spoken to about tardiness). Plaintiff was told that, because her reviews were "so glowing" that it was not a big deal".

43. Defendants LEONE and BINZER nonetheless continued their harassment, constantly questioning Plaintiff CUBA's action in emaiJs to Plaintiff CUBA's Direct Supervisor, Mr. Mr. Kirchof.

44. In or about the end of 2010, as per the instructions of her Direct Supervisor, Mr. Kirchof, Plaintiff CUBA asked Defendants LEONE and BlNlER for a client contact list. For no valid reason, Defendants LEONE and BINlER denied Plaintiff CUBA's request, forcing Plaintiff CUBA to compile the list manually.

45. On or about December 28, 2010, again for absolutely no valid reason, Defendant BINlER asked Plaintiff CUBA's Direct Supervisor, Mr. Kirchof, to issue her a "final warning." Mr. Kirchof refused to do so.

46. Confused, insulted, and distraught, Plaintiff CUBA decided to cross check the time chart that Defendants LEONE and BINlER were sending to her Direct Supervisors regarding her arrival time and noticed that Defendants LEONE and BINZER had manipulated the chart and had marked Plaintiff CUBA as late on days when the office was closed or when it would

8

have been otherwise impossible for Plaintiff CUBA to be late.

47. By way of example, one of the days that Defendants LEONE and BINZER indicated that Plaintiff CUBA was late was a Saturday, and another day was a "snow day."

48. In another instance, Defendants LEONE and BINZER alleged that Plaintiff CUBA was late on days she had been given permission to go to doctor's appointments.

49. Defendants LEONE and BINZER also indicated that Plaintiff CUBA was late on days she was out on a scheduled vacation.

50. Furthermore, for another day that Defendants LEONE and BINZER claimed Plaintiff was late, Plaintiff CUBA's office Outlook sent mail folder actually showed that Plaintiff CUBA sent emails from the office prior to the time Defendants indicated the Plaintiff had arrived. As Plaintiff CUBA had neither remote access nor a Blackberry, it is clear that Defendants LEONE and BINZER had wholly fabricated these records to set up Plaintiff CUBA.

51. As such, on or about January 17,2011, Plaintiff CUBA contacted her Direct Supervisor, Mr.

Kirchof, and complained about the blatant and obvious discrimination.

52. On or about January 21. 2011, Plaintiff CUBA notified her Dire£t Supervisors that due to the ongoing and discriminatory hostile work environment to which §he was J?s;ing subjected, she felt she had no choice but to resign from her position.

53. Plaintiff CUBA's Direct Supervisor, Mr. Kolka, did not want Plaintiff CUBA to leave, assured her that he would speak with Defendants LEONE and BINZER, and told her, "let me see what I can do."

54. In response to Plaintiff CUBA's notice of resignation, Defendant LEONE stated that Plaintiff CUBA's Direct Supervisors should just "let her move on," as they would find someone with a "much better attitude."

9

10

55. After giving her resignation, Plaintiff CUBA was told by Scott Rodin and David Willetts that Defendants treated her differently than the other emvloyees because of what she "looks like" (dark-skinned).

56. Plaintiff CUBA was humiliated by the actions of the Defendants.

57. Plaintiff CUBA began to suffer severe anxiety and depression as a result of Defendant CERBERUS CAPITAL's discriminating and harassing work environment.

58. Plaintiff CUBA even began seeing a psychiatrist, Dr. David Woo, MD, due to the anxiety and depression she suffered as a result of the constant and consistent discrimination of the Defendants.

59. Plaintiff CUBA was so upset that she could not work under the discrimination of Defendants and resigned on January 21, 2011.

60. Plaintiff CUBA felt that any ordinary person in her shoes would have felt compelled to resign from her employment.

61. As a result of the patently and brazenly illegal behavior described herein. Plaintiff CUBA was thus constructively discharged from her emvloyment effective January 21. 2011.

62. Plaintiff CUBA has been unlawfully discriminated against, was hwniliated, retaliated against, has been degraded and belittled; and as a result suffers loss of rights, emotional distress, loss of income, earnings.

63. Plaintiff CUBA's performance was, upon information and belief, above average during the course of employment with the Defendants.

64. The above are just some of the acts of harassment and discrimination that Plaintiff CUBA experienced on a regular and continual basis while employed by Defendant CERBERUS

11

CAPITAL.

65. Plaintiff CUBA was treated different and harassed by Defendants solely besause she

was of SalvadorianlPeruvian descent.

66. Plaintiff CUBA was regularly exposed to a hostile work environment by Defendants.

67. Defendants' actions and conduct were intentional and intended to harm PlaintifICUBA.

68. Defendant CERBERUS CAPITAL bad knowledge and/or acquiesced in the discrimination and harassment by Defendants LEONE and BINZER.

69. As a result of Defendants' actions, Plaintiff CUBA felt and still feels extremely humiliated, degraded, victimized, embarrassed, and emotionally distressed.

70. Defendants' hostile actions created an unlawfully hostile working environment that no reasonable person would tolerate.

71. As a result of Defendants' discriminatory and intolerable treatment of Plaintiff CUBA, she suffered, and is still suffering, severe emotional distress and physical ailments.

72. As a result of the acts and conduct complained of herein, Plaintiff CUBA has suffered a loss of income, tbe loss of a salary, benefits. and other compensation which such employment entails, and Plaintiff has also suffered future pecuniary losses, emotional pain, suffering, inconvenience, loss of enjoyment of life, and other non-pecuniary losses. Plaintiff CUBA has further experienced severe emotional and physical distress.

73. As a result of the above, Plaintiff CUBA has been damaged in an amount which exceeds the jurisdiction limits of all lower Courts.

74. Defendants' conduct has been malicious, willful, outrageous, and conducted with full knowledge of the law. As such, Plaintiff CUBA demands Punitive Damages as against all the Defendants, jointly and severally.

12

AS A FIRST CAUSE OF ACTION FOR DISCRIMINATION UNDER THE NEW YQRK CITY ADMINISTRATIVE CODE

73. Plaintiff repeats, reiterates and realleges each and every allegation made in the above

paragraphs of this Complaint as if more fully set forth herein at length.

74. The Administrative Code of City of NY § 8-107 [1] provides that "It ShAll be an unlawful

discriminatory practi£e: (a) For an employer or an employee or agent thereof. because

of the actual or perceived age, race, creed. color. national origin, gender, disability,

marital status, sexual orientation or alienage or citizenship status of any person, to refuse to

hire or employ or to bar or to discharge from employment such person or to discriminate

against such person in compensation or in terms, conditions or privileges of employment."

75. Defendants engaged in an unlawful discriminatory practice in violation of New York City

Administrative Code Title 8, §8-107(1)(a) by creating and maintaining discriminatory

working conditions, and otherwise discriminating against Plaintiff CUBA because of her

race, color and national origin.

AS A SECOND CAUSE OF ACTION FOR DISCRIMINATION UNDER THE NEW YORK CITY ADMINISTRATIVE CODE

76. Plaintiff repeats, reiterates and realleges each and every allegation made in the above

paragraphs of this Complaint as if more fully set forth herein at length.

77. The New York City Administrative Code Title 8, §8-107(6) provides that it shall be unlawful

discriminatory practice: "For any person to aid, abet, incite, compel; or coerce the doing of

any of the acts forbidden under this chapter, or attempt to do so."

78. Defendants engaged in an unlawful discriminatory practice in violation of New York City

13

Administrative Code Title 8, §8·107(6) by aiding, abetting, inciting, compelling and coercing

the above discriminatory, unlawful and retaliatory conduct.

AS A TIDRD CAUSE OF ACTION FOR DISCRIMINATION UNDER THE NEW YORK CITY ADMINISTRATIVE CODE

79. Plaintiff repeats, reiterates and realleges each and every allegation made in the above

paragraphs of this Complaint as if more fully set forth herein at length.

80. New York City Administrative Code Title 8~107(13) Employer liability for discriminatory

conduct by employee, agent or independent contractor.

a. An employer shall be liable for an unlawful discriminatory practice based upon

the conduct of an employee or agent which is in violation of any provision of this

section other than subdivisions one and two of this section.

b. An employer shall be liable for an unlawful discriminatory practice based upon

the conduct of an employee or agent which is in violation of subdivision one or

two of this section only where:

1. the employee or agent exercised managerial or supervisory

responsibility; or

2. the employer knew of the employee's or agent's discriminatory

conduct, and acquiesced in such conduct or failed to take immediate

and appropriate corrective action; an employer shall be deemed to

have knowledge of an employee's or agent's discriminatory conduct

where that conduct was known by another employee or agent who

exercised managerial or supervisory responsibility; or

3. the employer should have known of the employee's or agent's

14

discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.

c. An employer shall be liable for an unlawful discriminatory practice committed by a person employed as an independent contractor, other than an agent of such employer, to carry out work in furtherance of the employer's business enterprise only where such discriminatory conduct was committed in the course of such employment and the employer had actual knowledge of and acquiesced in such conduct.

81. Defendants violated the section cited herein as set forth.

JURY DEMAND 82. Plaintiff requests a jury trial on all issues to be tried.

---- ------------------------------

15

WHEREFORE, Plaintiff respectfully requests ajudgment against the Defendants:

A. Declaring that the Defendants engaged in unlawful employment practice prohibited by The New York City Administrative Code Title 8, §8-107 et. Seq. and that the Defendants harassed and discriminated against Plaintiff on the basis of her Race, Color and Nati9nal OriJPn.

B. Declaring that the Defendants intentionally caused Plaintiff to become emotionally distressed.

C. Awarding damages to the Plaintiff, retroactive to the date of discharge, for all lost wages and benefits, past and future, back pay and front pay, resulting from Defendants' unlawful constructive discharge of employment and to otherwise make Plaintiff whole for any losses suffered as a result of such unlawful employment practice;

D. Awarding Plaintiff compensatory damages for mental, emotional and physical injury. distress, pain and suffering and injury to reputation in a amount in excess of the jurisdiction of all lower courts;

E. Awarding Plaintiff punitive damages;

F. Awarding Plaintiff attorney's fees, costs, and expenses incurred in the prosecution of the action;

G. Awarding Plaintiff such other and further relief as the Court may deem equitable, just and

proper to remedy the Defendants' unlawful employment practices.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally in an

amount to be determined at the time of trial plus interest, punitive damages, attorneys' fees,

costs, and disbursements of action; and for such other relief as the Court deems just and proper.

Dated: New York, New York March 9, 2011

Respectfully Submitted,

~~

Of Counsel

DEREK T. SMITH LAW GROUP, PC 30 Broad Street, 35th Floor

New York, NY, 10004

212-587-0760

16