Document

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
1 of 17
FILED: KINGS COUNTY CLERK 05/17/2017 11:11 AM INDEX NO. 509793/2017
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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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
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)

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit discrimination
based on sexual orientation in employment.
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.
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.
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AS AND FOR A THIRD CAUSE OF ACTION

(Racial Harassment and Hostile Workplace Against All Defendants)

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit racial harassment
in employment.
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.
the corporate defendants policy, plan and practice of racial harassment against Plaintiff and
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AS AND FOR A FOURTH CAUSE OF ACTION

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

seq., and Title 8 of the New York City Administrative Code, 8-107, prohibit racial
discrimination in employment.
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.
the corporate defendants policy, plan and practice of racial discrimination against Plaintiff and
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)

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.
the corporate defendants policy, plan and practice of sexual harassment against Plaintiff and
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
10
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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.
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
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this Honorable Court deems just, equitable and proper;
F. On the Fourth Cause of Action enter judgment against the named defendants and
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
Fourth Floor
New York, NY 10003
(212) 353-8700
13
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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
14
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Index No.: Year: 2017

COUNTY OF KINGS
ISAAC FRANCO NAVA,
Plaintiff,
-V. -
BABBO LLC, ADAM ONADY, KEVIN HERBERT,

and PASTA RESOURCES INC.,
Defendants.
SUMMONS AND VERIFIED COMPLAINT
EISENBERG & BAUM, LLP
Attorneys for
PLAINTIFF
Office and Post Address

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

SUPREME COURT OF THE STATE OF NEW YORK

Plaintiff, : Plaintifff designates Kings County as

To the above-named Defendants:

Practice Law and Rules.

Dated: New York, NY

EISENBJ BAUM, LLP

B & B HOSPITALITY GROUP LLC

PASTA RESOURCES INC.

SUPREME COURT OF THE STATE OF NEW YORK

Venue is based on Plaintiffs,

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

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

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

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.

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

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

JURISDICTION AND VENUE

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

Batali and Batianich, in the same capacity.

homosexual and Hispanic (Mexican).

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

13. The abuse was open and notorious.

while Onady and Herbert attacked him for being Hispanic.

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

homophobic comments and remarks regarding Plaintiffs sexual orientation continued on a

regular basis and they were open and notorious.

against the perpetrators.

of the pork chop incident incident.

companys repeated failure to take appropriate corrective action.

during the relevant period of time.

during the relevant period of time.

AS AND FOR A FIRST CAUSE OF ACTION

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

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

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

AS AND FOR A SECOND CAUSE OF ACTION

based on sexual orientation in employment.

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

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

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

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

AS AND FOR A THIRD CAUSE OF ACTION

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

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

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

AS AND FOR A FOURTH CAUSE OF ACTION

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

terminated his employment without any non-discriminatory basis therefor.

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

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 FIFTH CAUSE OF ACTION

sexual harassment, sexual orientation discrimination, racial harassment and racial

punishing him for attempting to assert his rights.

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

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