Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------
DERRICK VIA,

Plaintiff, 17 CV 7049
v.

SHAKE SHACK INC., COMPLAINT

Defendant.
------------------------------------------------------------------------

Plaintiff Derrick Via, by his counsel, The Harman Firm, LLP, alleges for his Complaint

against Defendant Shake Shack Inc., as follows:

PRELIMINARY STATEMENT

1. Plaintiff Derrick Via seeks damages and costs against Defendant Shake Shack

Inc. (Shake Shack), for retaliating against him for his complaints about violations of laws,

rules, and regulations presenting dangers to the public health and safety by, among other things,

terminating his employment, in violation of the New York State Labor Law (NYLL), N.Y.

Lab. Law 740.

JURISDICTION AND VENUE

2. Pursuant to 28 U.S.C. 1332, this Court has jurisdiction over Plaintiffs claims,

as the matter in controversy exceeds $75,000 and is between citizens of different states:

a. Mr. Via is a citizen of the State of New Jersey, as he is domiciled in the State

of New Jersey.

b. Upon information and belief, Shake Shack is a citizen of the State of New

York, as it is a corporation organized under the laws of the State of New

York with its headquarters located in the State of New York.

1
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 2 of 9

3. Pursuant to 28 U.S.C. 1391(b), venue is proper in the United States District

Court for the Southern District of New York, as a substantial part of the events giving rise to

these claims occurred within this District.

PARTIES

4. Mr. Via, at all times relevant hereto, was and is a resident of Essex County in the

State of New Jersey.

5. Upon information and belief, at all times relevant hereto, Shake Shack was and is

a limited liability company organized under the laws of the State of New York with its principal

corporate offices located at 24 Union Square East, 5th Floor, New York, New York 10003 in

New York County.

STATEMENT OF FACTS

6. In and around March 2012, Mr. Via began working at Shake Shacks Madison

Square Park location as a line cook.

7. In 2012, Mr. Via received several raises, and performed his job duties well.

8. In and around November 2012, Mr. Via transferred to Shake Shacks Fulton

Street location in Brooklyn, New York, and worked there until February 2013.

9. In and around March 2013, Mr. Via worked at Creative Juices, a different

company operated by Shake Shacks then-parent company, Union Square Hospitality Group.

10. Because of limited work opportunity at Creative Juices, Mr. Via elected to return

to Shake Shack in and around May 2013, at which point he returned to the Madison Square Park

location.

11. Again, Mr. Via was in good standing with the company, which welcomed the

personnel moves described above.

2
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 3 of 9

12. From May 2013 to October 2013, Mr. Via received several raises and promotions

at the Madison Square Park location, first being promoted to Cross Trainer, then Team Leader.

13. As a Cross Trainer, Mr. Vias job responsibilities involved training lower-level

Shake Shack employees and serving as a liaison between those employees and Shake Shack

management.

14. In October 2013, Mr. Via helped train and open Shake Shacks Grand Central

Terminal location as a team leader.

15. In November 2013, Mr. Via helped train and open Shake Shacks Paramus, New

Jersey, location as a Cross Trainer.

16. From in and around November 2013 through May of 2015, Mr. Via worked as a

team leader at the Grand Central Terminal location as a team leader.

17. During that time, in and around October, 2014, Mr. Via helped open Shake

Shacks Midtown East location as a cross trainer.

18. In and around May 2015, Mr. Via helped train and open Shake Shacks renovated

Madison Square Park location, where he worked as a team leader until September, 2015.

19. In and around September, 2015, Mr. Via left Shake Shack to pursue an assistant

General Manager position with another restaurant; he put in the required notice and left in good

standing.

20. Mr. Via, unsatisfied with his new position, reached out to Shake Shack in 2016 to

discuss returning.

21. In and around May of 2016 to September 2016, Mr. Via worked as a Team

Leader at the Paramus location.

3
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 4 of 9

22. Mr. Via then began working as a Cross Trainer at the Fultion Transit Center

location (the Location); the Team Leader position no longer existed in New York Shake

Shacks.

23. Throughout his five-year employment at Shake Shack, Mr. Via was an

outstanding employee who consistently fulfilled his job responsibilities and received several

raises in recognition of his excellent job performance.

24. Mr. Via had extensive experience opening and operating Shake Shack locations,

and was well aware of the necessary health and safety policies.

25. Upon transferring to the Location, Mr. Via immediately began noticing problems,

both with the Location itself and his new General Manager, Jason Daniels.

26. During his employment at Shake Shack at the Location, Mr. Via noted a number

of serious and dangerous health and safety violations at the Location.

27. These health and safety violations include, but are not limited to:

a. Shake Shacks failure to provide employees at the Location with any training

on food allergies or preparing food for customers with allergies;

b. Shake Shacks ongoing policy of allowing visibly sick workers to remain on

the job, handling and preparing food for customers;

c. Shake Shacks improper cleaning of the Locations kitchen and equipment;

and

d. Shake Shacks failure to properly investigate and respond to an incident where

a Location employee was scalded by hot water and suffered serious burns.

4
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 5 of 9

28. Mr. Via repeatedly raised these health and safety concerns with his Store Manager

and other individuals in Shake Shack management, yet Mr. Vias managers were not receptive to

his complaints.

29. On or about October 16, 2016, Mr. Via complained to his managers, Jasmine

Andrews and Amanda Smith, about sick employees handling and preparing food.

30. Shake Shack took no steps to address this issue.

31. On or about November 9, 2016, Mr. Via made an anonymous complaint to Shake

Shack about an incident where a manager scalded another employee with hot water, then filed a

false report about it.

32. Again, the complaint went addressed, and Shake Shack did not resolve the

situation.

33. On or about November 21, 2016, Mr. Via complained about a broken grill at the

Location that was being improperly cleaned and posed a fire hazard.

34. Shake Shack took no action to address the situation until a fire from the grill

caused the Location to close for approximately one hour.

35. On or about December 7, 2016, Mr. Via complained to Shake Shack about staff

members at the Location who had inadequate training on customer allergies and again raised

concerns again about sick employees preparing food.

36. Shake Shack did not address these complaints, either.

37. On the contrary, rather than addressing the important issues Mr. Via had brought

to their attention, Shake Shacks management began to retaliate against Mr. Via for complaining.

38. Shake Shack assigned Mr. Via less desirable job duties and shifts and began

setting him up for termination by reprimanding him for minor, non-serious infractions.

5
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 6 of 9

39. Mr. Via sought to raise concerns of health and safety violations and retaliation

with Shake Shacks Human Resources (HR) department and reached out to arrange a meeting

with HR.

40. Mr. Via contacted Shake Shacks Area Director, Amanda Quintal, on or about

January 1, 2017, to schedule a time to discuss the various problems Mr. Via had reported at the

Location.

41. After Mr. Via began taking his complaints to higher-ups at Shake Shack,

however, the companys retaliation against him only intensified.

42. For example, Shake Shack issued Mr. Via a corrective warning for arriving to

work four minutes latean insignificant infraction for which Shake Shack employees are not

usually formally reprimanded.

43. On or about January 12, 2017, Mr. Via sent Ms. Quintal a request for a transfer,

well aware that his career was being threatened because of his reports of dangerous and unsafe

conditions at the Location.

44. Ultimately, just days after Mr. Via sent an email complaining about health and

safety violations, Shake Shack summarily terminated his employment before his scheduled

meeting with HR could take place.

45. Shake Shack purportedly terminated Mr. Vias employment for stealing another

employees phone.

46. In reality, Mr. Via had removed the employees phone from public view, pursuant

to Shake Shack policy, then returned it to the employee later that day.

47. Prior to Mr. Vias complaints, he had been climbing the ladder at Shake Shack

and had regularly received promotions and additional responsibilities during his employment.

6
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 7 of 9

48. Mr. Via was a long-tenured employee who had been trusted with the opening and

operation of some of Shake Shacks premiere locations.

49. Mr. Via had been scheduled to travel to Japan for training in order to receive

another promotion, this time to the Shift Manager position.

50. Mr. Via had excellent working relationships with both his superiors and

subordinates in the company.

51. Despite all this, Mr. Vias career at Shake Shack was undone when he began

registering complaints with management.

52. Mr. Vias complaints raise violations of several laws, rules, and regulations

designed to protect the health and safety of patrons and employees of food service

establishments, including, but not limited to, 10 NYCRR 14-1, which requires owners and

operators of food service establishments to operate their premises in such a way as to avoid

imminent health hazards. 10 NYCRR 14-1.1.

53. For example, Mr. Vias complaints about sick employees handling food raise a

violation of 10 NYCRR 14-1.10, which states that failing to take steps to properly prevent food

contamination by restricting persons with disease or infection which can be transmitted by food

or drink creates an imminent health hazard[] against the public interest which require[s] the

permit-issuing official or his designated representative to order the establishment closed and all

service of food stopped immediately.

54. As such, Mr. Vias complaints described violations of laws, rules, or regulations

which created a danger to the public health and safety, and Shake Shacks termination of Mr.

Vias employment is in violation of the whistleblower provisions of the NYLL.

7
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 8 of 9

CAUSES OF ACTION
FIRST CAUSE OF ACTION
Retaliation in Violation of NYLL 740

55. Plaintiff hereby realleges and incorporates each and every allegation contained in

paragraphs 1 through 54 with the same force as though separately alleged herein.

56. NYLL 740 prohibits an employer from retaliating against an employee who

complains to a supervisor about an activity that is a violation of a law, rule, or regulation and

which creates a danger to public safety or health.

57. Plaintiff repeatedly complained about unsafe conditions at his location.

58. The subject matter of Plaintiffs complaints amounted to violations of New York

state laws, rules, and regulations, including, but not limited to, 10 NYCRR 14.1-1 et seq.

59. Defendant retaliated against Plaintiff by assigning him undesirable tasks and

shifts, subjecting him to heightened scrutiny, baselessly reprimanding him for minor or

fabricated infractions, and, ultimately, terminating his employment.

60. As such, Defendant has violated NYLL 740.

61. As a direct and proximate consequence of Defendants conduct, Plaintiff has

suffered, and continues to suffer, substantial damages, including, but not limited to, emotional

distress and suffering, all in amounts to be determined at trial.

8
 Case 1:17-cv-07049-RWS Document 1 Filed 09/15/17 Page 9 of 9

REQUEST FOR RELIEF

WHEREFORE, Plaintiff respectfully requests the following relief:

A. For the first cause of action, $1,000,000, or damages to be determined at trial; and

B. For such other and further relief as the Court deems just and proper.

Dated: New York, New York

September 15, 2017

By:
Walker G. Harman, Jr. [WH-8044]
Owen H. Laird [OL-6994]
THE HARMAN FIRM, LLP
220 Fifth Avenue, Suite 900
New York, NY 10001
(212) 425-2600
wharman@theharmanfirm.com
olaird@theharmanfirm.com

Attorneys for Plaintiff