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FILED: KINGS COUNTY CLERK 05/17/2017 11:11 AM INDEX NO.

509793/2017
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/17/2017

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF KINGS
X Index No.:
ISAAC FRANCO NAVA, : Date filed:

Plaintiff, : Plaintifff designates Kings County as


the place of trial. The basis of the Venue
is Plaintiffs residence.
-v. -

SUMMONS
BABBO LLC, ADAM ONADY, KEVIN HERBERT,
JUAN FLORES, B & B HOSPITALITY GROUP LLC,
And PASTA RESOURCES INC., : Plaintiff resides in Kings County.

Defendants.
x

To the above-named Defendants:

YOU ARE HEREBY SUMMONED to answer the attached Verified Complaint of Plaintiff,

ISAAC FRANCO NAVA, dated May 13, 2017, a true and accurate copy of which is served upon you

herewith. You must serve your Verified Answer upon the undersigned attorneys either (1) within twenty

days after service of this Summons and the attached Verified Complaint, exclusive of the day you

received it, if you were served personally in the State of New York, or (2) within thirty days after service,

exclusive of the day you received it, if you were not served personally in New York State.

PLEASE TAKE NOTICE that should you fail to serve your Verified Answer within the time

prescribed under applicable law, Plaintiff, ISAAC FRANCO NAVA, will take judgment against you by

default for the relief demanded in the Verified Complaint pursuant to section 3215 of the New York Civil

Practice Law and Rules.

Dated: New York, NY


May 16, 2017

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Yours, etc.

EISENBJ BAUM, LLP

Baum, Esq.
Attorneys for Plaintiff
24 Union Square East
Fourth Floor
New York, NY 10003
(212) 353-8700

To:

BABBO LLC

ADAM ONADY

KEVIN HERBERT

JUAN FLORES

B & B HOSPITALITY GROUP LLC

PASTA RESOURCES INC.

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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF KINGS
x
ISAAC FRANCO NAVA,
Index No.
Plaintiff,
VERIFIED COMPLAINT
-v. -

Venue is based on Plaintiffs,


BABBO LLC, ADAM ONADY, KEVIN HERBERT, : residence in Kings County
JUAN FLORES, B & B HOSPITALITY GROUP LLC,
And PASTA RESOURCES INC.,

Defendants.
x
Plaintiff ISAAC FRANCO NAVA, by his attorneys, EISENBERG & BAUM, LLP, as

and for his Verified Complaint against Defendants, states as follows:

THE PARTIES

1. Plaintiff ISAAC FRANCO NAVA is an individual residing in Kings County,

New York.

2. Defendant BABBO LLC (Babbo) is a domestic limited liability company,

owned and operated by Mario Batali and Joseph Bastianich, organized pursuant to the laws of

the State of New York and duly registered to do business, and doing business actively, in the

State of New York and having its principle place of business at 110 Waverly Place, New York,

10011.

3. Defendant ADAM ONADY is an individual residing, upon information and

belief, in New York State.

4. Defendant KEVIN HERBERT is an individual residing, upon information and

belief, in New York State.

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5. Defendant JUAN FLORES is an individual residing, upon information and belief,

in New York State.

6. Defendant PASTA RESOURCES INC. (Pasta Resources) is a domestic

business corporation organized pursuant to the laws of the State of New York and duly registered

to do business, and doing business actively, in the State of New York and having its principle

place of business at 42 East 20th Street, 3~ Floor, New York, NY 10003.

7. Defendant B & B HOSPITALiTY GROUP LLC (B&BHG) is a domestic

limited liability company organized pursuant to the laws of the State of New York and duly

registered to do business, and doing business actively, in the State of New York and having its

principle place of business at 42 East 20th Street, 3rd Floor, New York, NY 10003.

JURISDICTION AND VENUE

8. This Court has personal jurisdiction over the defendants pursuant to C.P.L.R.

~301 and 302, because the Defendants are located in New York, reside in New York, are

licensed to do business in New York and are transacting business in New York.

9. Venue is proper pursuant to C.P.L.R. 503 based on Plaintiffs residence.

BACKGROUND

10. Plaintiff Franco began his employment with Babbo, which is owned and operated

by Mario Batali and Joseph Bastianich, as a pastry cook in November 2015. Prior to working at

Babbo, Plaintiff Franco had been employed at Otto, another restaurant owned and operated by

Batali and Batianich, in the same capacity.

11. During the entire first four months that Plaintiff Franco was employed at Babbo,

he was subjected to regular and frequent discrimination based upon sexual orientation and race

by his coworkers. This conduct included, but was not limited to, the following: being called a

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stupid Mexican; being called and referred to as a faggot; being called pjaro (a word

translates literally from Spanish to English as parrot but which is used in a derogatory fashion

to mean faggot); and being called girly because of his sexual orientation. Plaintiff Franco is

homosexual and Hispanic (Mexican).

12. Plaintiff Franco experienced this campaign of abuse on multiple occasions.

13. The abuse was open and notorious.

14. The abuse was hostile, aggressive, threatening, demeaning and embarrassing.

15. The main perpetrators inflicting such discrimination and harassment upon

Plaintiff Franco were Caucasian manager Adam Onady, Caucasian co-worker Kevin Herbert and

Juan Flores, a Hispanic co-worker. All three attacked Plaintiff Franco for being homosexual,

while Onady and Herbert attacked him for being Hispanic.

16. After enduring the discrimination and harassment for four months, Plaintiff

Franco complained in writing to his direct supervisor, Rebecca D Angelis, tI~ie Pastry Chef.

Subsequently, Rajan (last name unknown) from the corporate human resources office of

Babbo and/or B&B Hospitality Group LLC spoke to Plaintiff Franco about his complaints. Rajan

advised Plaintiff Franco that Defendant Herbert and Defendant Flores were each given minor

discipline as a result of their harassing and discriminatory conduct. Plaintiff Franco was not

informed that the company was taking any other steps such as retraining Herbert and/or Flores,

imposing any discipline on Onady, placing any of the three on a final warning or performance

improvement plan or providing any training or instruction to any other employees or managers at

Babbo, and was not aware of any such additional measures being taken. No further supervision

or oversight was provided by Human Resources or upper level management.

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17. Between June and August 2016, after the suspensions had been served, Defendant

Onady, Defendant Herbert, Defendant Flores, Defendant Babbo, Defendant Pasta Resources, and

Defendant B&BHG resumed the campaign of harassment and discrimination against Plaintiff

Franco in retaliation for his complaining to management about the conduct. The racist and

homophobic comments and remarks regarding Plaintiffs sexual orientation continued on a

regular basis and they were open and notorious.

18. Between August and October 2016, Plaintiff Franco complained to DAngelis

about the discrimination, harassment and retaliation, but DAngelis failed and refused to take any

action.

19. On April 11, 2017, Plaintiff Franco again complained to DAngelis about the

harassment, discrimination and retaliation. This time, DAngelis advised Plaintiff Franco that she

would speak to Chef de Cuisine Frank Langello about the conduct. Plaintiff Franco understood

that Chef Langello would then discuss the matter with Batali and Bastianich who, he believed,

were already aware of the issue, and that the company would then take disciplinary action

against the perpetrators.

20. DAngelis lied to Plaintiff Franco. No action was taken by her or Batali or

Bastianich and/or their management team to protect Plaintiff Franco s civil rights. Instead, she

conspired with Defendants to assert false disciplinary charges against Plaintiff Franco and then

fire him. Upon information and belief, Batali and Bastianich knew or should have known about

this plan.

21. On April 17, 2017, due to work assignments from his supervisors relating to

preparing for the upcoming service, Plaintiff Franco did not have a chance to eat during the

family meal (i.e., food served by the restaurant to employees during their work shift). A line

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cook named Tim (last name unknown) informed Plaintiff Franco that he could take one raw

pork chop home to cook and eat since he did not get a chance to eat during the family meal.

Tim had the apparent authority to make this offer, which was typical in situations where an

employee missed out on the family meal. Plaintiff Franco accepted the offer and took one pork

chop.

22. Later that evening, Defendant Onady, a manager, approached Plaintiff Franco and

asked him what was in the bag that Plaintiff Franco had. Plaintiff Franco advised that it was one

pork chop, which Tim had given him in lieu of the family meal, and that if there was an issue

with Tims instructions then he could pay for it or return it. Defendant Onady acquiesced.

23. On April 18, 2017, Defendant Onady, along with Solomon (last name

unknown), a manager at Babbo, and DAngelis, called Plaintiff Franco into the management

office after he had prepped his station for service. Defendant Onady accused Plaintiff Franco of

stealing the pork chop and forced him to sign a document stating that he stole the pork chop,

which he did not do. Defendant Onady then advised Plaintiff Franco that he was fired as a result

of the pork chop incident incident.

24. Had Plaintiff Franco been heterosexual and not complained about homosexual

harassment, he would not have been fired. The firing was unjustified and was pretext for

retaliation for Plaintiff Franco having complained about Defendant Onady s harassing,

discriminatory and retaliatory conduct, as well as that of his two co-defendants, as well as the

companys repeated failure to take appropriate corrective action.

25. Upon information and belief, Batali and Bastianich frequented the restaurant

regularly, and therefore knew or should have known about the harassing, discriminatory and

retaliatory conduct, which was open and notorious, as well as about Plaintiff Francos repeated

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escalated complaints about the mistreatment, but they refused to take action to stop it. They

failed to take any action to correct it, ratifying an environment that was hostile to homosexuals.

26. Upon information and belief, Batali managed, operated and controlled Babbo

during the relevant period of time.

27. Upon information and belief, Bastianich managed, operated and controlled Babbo

during the relevant period of time.

AS AND FOR A FIRST CAUSE OF ACTION


(Sexual Harassment and Hostile Workplace Against All Defendants)

28. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in

paragraphs numbered 1 through 27 as if set forth more fully and at length herein.

29. Section 296.1(a) of the New York Human Rights Law, N.Y. Exec. Law 290 et

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit sexual harassment

in employment.

30. Plaintiff deserved to retain his employment with Defendant Babbo and did not do

anything to merit discharge or discipline and/or to be subject to this discriminatory conduct.

Nevertheless, Defendants denied Plaintiff the benefit of employment, including all favorable

conditions and emoluments thereof and created and allowed to exist a hostile, intolerable

workplace imposed upon him by the conduct of its employees and managers by means of sexual

harassment, of which it was well aware and without any non-discriminatory basis therefor.

31. Defendants actions were taken under circumstances giving rise to an inference of

discrimination. The actions of the individual defendants were taken in an effort to aid and abet

the corporate defendants policy, plan and practice of sexual harassment against Plaintiff and

other persons similarly situated. In harassing Plaintiff, the individual defendants were carrying

out and acting consistent with the policies, plans and practices of their employer.

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32. As a direct and proximate result of Defendants discriminatory conduct, Plaintiff

suffered adverse employment consequences. Plaintiff was caused to suffer lost past and future

wages, professional opportunities, other valuable benefits and emoluments of employment as

well as to endure severe emotional pain and trauma, all to his detriment.

AS AND FOR A SECOND CAUSE OF ACTION


(Discrimination based on Sexual Orientation Against All Defendants)

33. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in

paragraphs numbered 1 through 32 as if set forth more fully and at length herein.

34. Section 296.1(a) of the New York Human Rights Law, N.Y. Exec. Law 290 et

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit discrimination

based on sexual orientation in employment.

35. Plaintiff deserved to retain his employment with Defendant Babbo and did not do

anything to merit discharge or discipline and/or to be subject to this discriminatory conduct.

Nevertheless, Defendants denied Plaintiff the benefit of employment, including all favorable

conditions and emoluments thereof and terminated his employment without any non

discriminatory basis therefor, because of his sexual orientation, homosexual.

36. Defendants actions were taken under circumstances giving rise to an inference of

discrimination. The actions of the individual defendants were taken in an effort to aid and abet

the corporate defendants policy, plan and practice of sexual orientation discrimination against

Plaintiff and other persons similarly situated. In harassing Plaintiff, the individual defendants

were carrying out and acting consistent with the policies, plans and practices of their employer.

37. As a direct and proximate result of Defendants discriminatory conduct, Plaintiff

suffered adverse employment consequences. Plaintiff was caused to suffer lost past and future

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wages, professional opportunities, other valuable benefits and emoluments of employment as

well as to endure severe emotional pain and trauma, all to his detriment.

AS AND FOR A THIRD CAUSE OF ACTION


(Racial Harassment and Hostile Workplace Against All Defendants)

38. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in

paragraphs numbered 1 through 37 as if set forth more fully and at length herein.

39. Section 296.1(a) of the New York Human Rights Law, N.Y. Exec. Law 290 et

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit racial harassment

in employment.

40. Plaintiff deserved to retain his employment with Defendant Babbo and did not do

anything to merit discharge or discipline and/or to be subject to this discriminatory conduct.

Nevertheless, because of his race andlor national origin, Hispanic, Defendants denied Plaintiff

the benefit of employment, including all favorable conditions and emoluments thereof and

created and allowed to exist a hostile, intolerable workplace imposed upon him by the conduct

of its employees and managers, of which it was well aware and without any non-discriminatory

basis therefor.

41. Defendants actions were taken under circumstances giving rise to an inference of

discrimination. The actions of the individual defendants were taken in an effort to aid and abet

the corporate defendants policy, plan and practice of racial harassment against Plaintiff and

other persons similarly situated. In harassing Plaintiff, the individual defendants were carrying

out and acting consistent with the policies, plans and practices of their employer.

42. As a direct and proximate result of Defendants discriminatory conduct, Plaintiff

suffered adverse employment consequences. Plaintiff was caused to suffer lost past and future

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wages, professional opportunities, other valuable benefits and emoluments of employment as

well as to endure severe emotional pain and trauma, all to his detriment.

AS AND FOR A FOURTH CAUSE OF ACTION


(Racial and/or National Origin Discrimination Against All Defendants)

43. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in

paragraphs numbered 1 through 42 as if set forth more fully and at length herein.

44. Section 296.1(a) of the New York Human Rights Law, N.Y. Exec. Law 290 et

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit racial

discrimination in employment.

45. Plaintiff deserved to retain his employment with Defendant Babbo and did not do

anything to merit discharge or discipline and/or to be subject to this discriminatory conduct.

Nevertheless, because of his race and/or national origin, Hispanic, Defendants denied Plaintiff

the benefits of employment, including all favorable conditions and emoluments thereof and

terminated his employment without any non-discriminatory basis therefor.

46. Defendants actions were taken under circumstances giving rise to an inference of

discrimination. The actions of the individual defendants were taken in an effort to aid and abet

the corporate defendants policy, plan and practice of racial discrimination against Plaintiff and

other persons similarly situated. In harassing Plaintiff, the individual defendants were carrying

out and acting consistent with the policies, plans and practices of their employer.

As a direct and proximate result of Defendants discriminatory conduct, Plaintiff suffered

adverse employment consequences. Plaintiff was caused to suffer lost past and future wages,

professional opportunities, other valuable benefits and emoluments of employment as well as to

endure severe emotional pain and trauma, all to his detriment.

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AS AND FOR A FIFTH CAUSE OF ACTION


(Retaliation Against All Defendants)

47. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in

paragraphs numbered 1 through 46 as if set forth more fully and at length herein.

48. Section 296.1(a) of the New York Human Rights Law, N.Y. Exec. Law 290 et

seq. and Title 8 of the New York City Administrative Code, 8-107 prohibit retaliation against

an employee who seeks to assert rights under the Human Rights Law.

49. Plaintiff made written complaints to Defendants about the mistreatment based on

sexual harassment, sexual orientation discrimination, racial harassment and racial

discrimination inflicted upon him by employees and managers of Defendant Babbo, including

each and every one of the named individual defendants herein. In response, Defendant Babbo

and Bastianich andlor their management team did not address his complaints, but rather ratified

and endorsed them, and Plaintiff was subjected to mistreatment until his working conditions

became unbearable, all with the knowledge and approval of Defendants for the purpose of

punishing him for attempting to assert his rights.

50. Defendants actions were taken under circumstances giving rise to an inference of

discrimination. The actions of the individual defendants were taken in an effort to aid and abet

the corporate defendants policy, plan and practice of sexual harassment against Plaintiff and

other persons similarly situated. In harassing Plaintiff, the individual defendants were carrying

out and acting consistent with the policies, plans and practices of their employer. Each of the

individual Defendants specifically refused to speak to or cooperate with Plaintiff as he

attempted to carry out his job duties, making it impossible for him to do so and forcing him to

leave his employment. They carried out their employers and their own desire to retaliate

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against Plaintiff for complaining about illegal sexual harassment and gender discrimination, and

so doing violated the statutes set forth above which prohibit such retaliation.

51. As a direct and proximate result of Defendants discriminatory conduct, Plaintiff

suffered adverse employment consequences. Plaintiff was caused to suffer lost past and future

wages, professional opportunities, other valuable benefits and emoluments of employment as

well as to endure severe emotional pain and trauma, all to his detriment.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court grant the following relief

against the Defendants:

A. Enter a declaratory judgment, stating that Defendants practices, policies and

procedures subjected Plaintiff to discrimination based upon sexual orientation and racial

discrimination, harassment and retaliation in violation of Section 296.1(a) of the New York

Human Rights Law, N.Y. Exec. Law 290 et seq. and Title 8 of the New York City

Administrative Code, 8-107.

B. Issue an injunction to enjoin Defendants from implementing or enforcing any

policy, procedure, or practice that denies employees of any sexual orientation or race the full and

equal enjoyment of Defendants benefits, pay increases, promotional opportunities and

advancement within the company, and specifically enjoin them:

i. to develop, implement, promulgate, and comply with a policy providing for

the training of each and every employee and manager in the civil rights of

employees in the workplace, including but not limited to sexual orientation

and race harassment, discrimination and retaliation;

ii. to develop, implement, promulgate, and comply with a policy providing for

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reporting and investigation of complaints regarding civil rights abuses,

including but not limited to sexual orientation and race discrimination,

harassment and retaliation; and

iii. to develop, implement, promulgate, and comply with a policy providing for

disciplinary measures to be imposed upon any person found responsible for

civil rights abuses, including but not limited to sexual orientation and race

discrimination, harassment and retaliation;

C. On the First Cause of Action, enter judgment against the named defendants and an

award of compensatory damages including, but not limited to damages for back pay, front pay,

past and future employment benefits, emotional distress, punitive and/or exemplary damages,

attorneys fees, pre and post-judgment interest, in an amount, in excess of the jurisdictional

limits of any other court, to be determined at trial by the jury, and further relief as this Honorable

Court deems just, equitable and proper;

D. On the Second Cause of Action enter judgment against the named defendants and

an award of compensatory damages including, but not limited to damages for back pay, front

pay, past and future employment benefits, emotional distress, punitive and/or exemplary

damages, attorneys fees, pre and post-judgment interest, in an amount, in excess of the

jurisdictional limits of any other court, to be determined at trial by the jury, and further relief as

this Honorable Court deems just, equitable and proper;

E. On the Third Cause of Action enter judgment against the named defendants and

an award of compensatory damages including, but not limited to damages for back pay, front

pay, past and future employment benefits, emotional distress, punitive and/or exemplary

damages, attorneys fees, pre and post-judgment interest, in an amount, in excess of the

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jurisdictional limits of any other court, to be determined at trial by the jury, and further relief as

this Honorable Court deems just, equitable and proper;

F. On the Fourth Cause of Action enter judgment against the named defendants and

an award of compensatory damages including, but not limited to damages for back pay, front

pay, past and future employment benefits, emotional distress, punitive and/or exemplary

damages, attorneys fees, pre and post-judgment interest, in an amount, in excess of the

jurisdictional limits of any other court, to be determined at trial by the jury, and further relief as

this Honorable Court deems just, equitable and proper.

G. On the Fifth Cause of Action enter judgment against the named defendants and an

award of compensatory damages, including but not limited to damages for emotional distress,

punitive and/or exemplary damages, attorneys fees, pre and post-judgment interest, in an

amount, in excess of the jurisdictional limits of any other court, in an amount to be determined at

trial by the jury, and further relief as this Honorable Court deems just, equitable and proper.

Dated: New York, New York


May 13, 2017
EISENBERG~ BAUM, LLP

By:
Eric M. Baum, Esq.
Attorneys for Plaintiff
24 Union Square East
Fourth Floor
New York, NY 10003
(212) 353-8700

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VERIFICATION

STATE OF NEW YORK )


) ss.:
COUNTY OF NEW YORK )

The undersigned, ISAAC FRANCO NAVA, shows:

Deponent is ISAAC FRANCO NAVA, Plaintiff in the above-entitled action.

Deponent has read the foregoing Complaint dated May 13, 2017, and states that, to deponents

knowledge, the same is true except as to matters herein stated to be alleged upon information and

belief; as to those matters, deponent believes them to be true.

The undersigned affirms that the foregoing statements are true, under the penalties

of perjury.

Dated: May?S_,2017

FRANCO NAVA

Sworn to Before Me This


,~ day of May, 2017
SAGAR SHAH
Notary Public . State of New York
No. 02SH6330449
Qualified in New York County
My Comm. Expires Sep. 14, 2019
F S~~Y PUBLIC

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Index No.: Year: 2017

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF KINGS

ISAAC FRANCO NAVA,

Plaintiff,

-V. -

BABBO LLC, ADAM ONADY, KEVIN HERBERT,


JUAN FLORES, B & B HOSPITALITY GROUP LLC,
and PASTA RESOURCES INC.,

Defendants.

SUMMONS AND VERIFIED COMPLAINT

EISENBERG & BAUM, LLP

Attorneys for
PLAINTIFF

Office and Post Address


24 Union Square East
Fourth Floor
New York, NY 10003
Tel: (212) 353-8700
Fax: (212) 353-1708

Signature ~I~1e 130-1.la)

Eric M. Baum, Esq.

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