Case 1:10-cv-23304-JLK Document 1 Entered on FLSD Docket 09/14/2010 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO. _________________________

MICHAEL MOAK :
:
Plaintiff, :
:
v. :
:
JOE ALLEN MIAMI BEACH LLC :
d/b/a JOE ALLEN RESTAURANT :
:
Defendant. : DATE: SEPT. 14, 2010
____________________________________ :

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, MICHAEL MOAK, files this Complaint against Defendant JOE ALLEN

RESTAURANT and in support thereof states the following:

PARTIES, JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction over the Plaintiff’s claims, because this action

arises, in part, under Title VII of the Civil Rights Act, 42 U.S.C.A §2000e, et. seq., as

amended by the Civil Rights Act (“Title VII”).

2. This Court has supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28

U.S.C. §1367 because the additional claims are related as to form part of the same case or

controversy as the claim that has an independent basis of jurisdiction.

3. Venue is appropriate here in the Miami Division of the Southern District of Florida

pursuant to 28 U.S.C. 1391(b) because actions complained of herein took place in Miami,

specifically at one of the Defendant’s places of business located at 1787 Purdy Ave,

Miami Beach, Florida 33139.

4. Plaintiff, MICHAEL MOAK, is a resident of Miami, Miami-Dade County, Florida.

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5. Defendant, Joe Allen Miami Beach, LLC, d/b/a Joe Allen Restaurant, is a Delaware

foreign limited liability company with its principal place of business at 1787 Purdy Ave,

Miami Beach, Florida 33139. Mario Rubeo is the Defendant’s managing member. Its

registered agent is United Corporate Services, Inc. with an address of 9200 South

Dadeland Blvd., Suite 508, Miami, Florida 33156.

6. All conditions precedent to the filing of this action have been performed.

FACTUAL ALLEGATIONS

7. Plaintiff is a former employee of the Defendant, and was employed as a sever from July,

2009, through November, 2009.

8. Throughout Plaintiff’s employment with Joe Allen Restaurant Mr. Moak was threatened,

ridiculed humiliated and retaliated against.

9. Defendant, through its agents, primarily, Jose Sandoval, intimidated, created a hostile

work environment and retaliated against plaintiff so severely that it unreasonably affected

Mr. Moak’s work performance.

10. Plaintiff was subjected to frequent, unwelcome sexual harassment in the form of

verbal and physical conduct of a sexual nature.

11. The unwanted sexual harassment inflicted upon Mr. Moak was both verbal and physical

and was witnessed by Joe Allen staff and management on a regular basis.

12. Joe Allen staff adopted a theme that the sexual harassment inflicted upon Mr. Moak was

“Just Jose being Jose.”

13. Incidents of sexual harassment towards Mr. Moak include but are not limited to:

a) Jose Sandoval making lude and vulgar comments to Mr. Moak,

such as “move whore”, “I will c*m* into your behind, on your
back and on your face” and “Gays should not have kids because
they take it in the a**.”

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b) Jose Sandoval requesting sexual favors and participating in sexual

advances.
c) The Joe Allen staff witnessing the sexual harassment inflicted onto
Mr. Moak and participating in mockery.
d) Jose Sandoval conducting inappropriate gestures and touching Mr.
Moak in his genital area without his consent.
e) Retaliating against Mr. Moak for his complaints to management
and the EEOC of sexual harassment.

14. The sexual harassment inflicted upon Mr. Moak by Defendant created an intimidating,

hostile work environment that was not only offensive but also severe, physically

threatening, and humiliating.

15. Plaintiff was subjected to unwelcome sexual harassment in the form of sexual advances,

requests for sexual favors, and other verbal and physical conduct of a sexual nature.

16. Pursuant to Title VII of the Civil Rights Act, 42 U.S.C. 2000e-2(a)(1), it is an unlawful

employment practice for an employer to discriminate against an employee on the basis

“sex” and to create, condone, permit or fail and refuse to remedy a work environment that

is hostile to an employee's sex or is a “hostile work environment.”

17. Defendant has created, tolerated, and condoned a work environment that is pervasively

hostile to Plaintiff on account of his sex (male) and sexual orientation (homosexual), has

failed and refused to remedy this hostile work environment, and has permitted Plaintiff to

be harassed because of his sex and sexual orientation. Defendant has engaged in a course

of sexual harassment.

18. It is well settled through judicial decisions and the Equal Employment Opportunities

Commission guidelines that Title VII prohibits sexual harassment based on

discrimination of one’s sex. 29 CFR §1604.11(a)

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19. Plaintiff is informed, believes and thereon alleges that, at all times herein relevant, each

individual discussed herein was the agent, servant, and employee of Defendant Joe Allen

Restaurant, and in doing the things hereinafter alleged, was acting within the course and

scope of said agency, employment, and service with the advance knowledge, consent, and

ratification of Joe Allen Restaurant.

20. Plaintiff has suffered physically, financially, and emotionally as a direct result of the

severe and pervasive discrimination and retaliation.

21. Mr. Moak has engaged the services of the undersigned legal counsel, and is obligated to

pay counsel their fees incurred in the prosecution of this action.

22. All conditions precedent to the filing of this action have been performed, have occurred,

or have been waived.

COMPLIANCE WITH PROCEDURAL REQUIREMENTS

23. Mr. Moak timely filed a charge with the Equal Employment Opportunity

Commission on November 13, 2009 (Charge No. 510-2010-00763) for discrimination based on

retaliation and sex and/or sexual orientation.

24. This action is filed within ninety (90) days of Mr. Moak’s receipt of a Notice of

Rights’ letter from the EEOC dated June 16, 2010; a true and correct copy of said letter is

attached and marked as Exhibit A.

25. Mr. Moak has satisfied any and all administrative conditions precedent to filing of

given that he filed the above-referenced charges (510-2010-0453 and 510-2010-00763) with the

EEOC.

COUNT I
DISCRIMINATION BASED ON SEX
TITLE VII OF THE CIVIL RIGHTS ACT, 42 U.S.C. 2000e, et. seq.

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26. Plaintiff readopts and realleges paragraphs one (1) through twenty-five (25) as if

fully set forth herein verbatim.

27. Defendant acted willfully and intentionally after complaints by Mr. Moak

regarding the sexual harassment inflicted upon him by his co-worker.

28. Defendant acted willfully, intentionally, and with malice to deprive Plaintiff of his

civil rights, discriminating against him because of his sex (as described in detail in the preceding

adopted paragraphs and more generally by retaliating against him), as result, Defendant has

violated Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et. seq.

29. As outlined in the preceding paragraphs, Plaintiff was subjected to a pattern and

practice of unwelcome sexual advances, requests for sexual favors, and verbal and physical

conduct of a sexual nature. This conduct was based on the individual’s sex. This sexual

harassment had the effect of unreasonably interfering with Plaintiff’s work performance by

creating an intimidating, hostile, and offensive working environment that seriously affected

Plaintiff’s psychological well being.

30. Plaintiff alerted Defendant, regarding the sexual harassment inflicted upon him.

Therefore, the Defendant knew or should have known that its actions were illegal under the

above-mentioned laws.

31. As a direct, proximate and foreseeable result of Defendant’s and its agents’

discriminatory actions, Mr. Moak has suffered past and future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of dignity, emotional

distress, the potential loss of future employment and other non-pecuniary losses and intangible

injuries. As a result of such discrimination and consequent harm, Plaintiff has suffered such

damages in an amount according to proof. Accordingly, there is a basis for employer liability.

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32. Plaintiff is also requesting punitive damages because the Defendant willfully and

intentionally terminated Plaintiff in retaliation for his complaints regarding the sexual

harassment. Defendant - knowing the sexual harassment occurred – allowed its agents to

continuously discriminate, hassle and humiliate Plaintiff based upon his sex. Therefore, the

Defendant’s continual lack of care in addressing these issues, if left unpunished, will deprive

other valid objectors their Constitutional rights, which is why punitive damages are requested.

COUNT II
RETALIATION IN VIOLATION OF TITLE VII 42 U.S.C. §2000e-3.

33. Plaintiff adopts and realleges Paragraphs one (1) twenty-five (25) as if fully set

forth herein.

34. Plaintiff’s actions as discussed in detail above constitute protected opposition to

discrimination to which he filed an additional EEOC charge to (charge no. 510-2010-0453).

Such actions include, but are not limited to, him continuously complaining to management about

the sexual harassment and threatening to and in fact participating in an EEOC proceeding.

35. On November 7, 2009, Mr. Moak wrote a formal notice to the EEOC which states

in relevant part “I Michael A. Moak am requesting protection and equal opportunity from Joe

Allen Restaurant… for discrimination and sexual harassment” (emphasis added).

36. An adverse action to the Plaintiff by the Defendant-Employer resulted from the

Plaintiff-Employee’s protected activities.

37. Plaintiff became ostracized by other co-workers and Plaintiff’s work schedule was

altered to less desirable shifts where he would make less profit, be unable to support himself and

ultimately be forced to resign. In other words, his status within the company was demoted.

38. The retaliation towards Plaintiff became so severe that it cause a constructive

termination and/or forced resignation November 13, 2009.

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39. There is more than a casual connection between the protective activity that the

Plaintiff engaged in and the employer’s action. In fact, the reason why the Plaintiff was forced

to resign and/or constructively terminated was that he participated in a protected activity by

objecting to and complaining of sexual harassment and retaliation and filing a charge with the

EEOC.

40. Plaintiff was constructively terminated and/or forced to resign and otherwise

retaliated against because he opposed an unlawful employment practice and/or participated in a

proceeding under one of the discrimination statutes.

41. As result of the Defendant’s aforementioned actions, it has violated Title VII of

the Civil Rights Act, 42 U.S.C. §2000e-3.

42. A retaliation plaintiff does not need to prove that the underlying employment

practice by the employer was, in fact, unlawful; instead, employees are protected

from retaliation if they oppose an employment practice that they reasonably and in good faith

believe to be unlawful. See Clark County School District v. Breeden, 532 U.S. 268 (2001).

43. As a direct, proximate and foreseeable result of Defendant’s and its agents’

discriminatory actions, Mr. Moak has suffered past and future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of dignity, emotional

distress, the potential loss of future employment, and other non-pecuniary losses and intangible

injuries. As a result of such discrimination and consequent harm, Plaintiff has suffered such

damages in an amount according to proof.

44. Plaintiff is also requesting punitive damages because after Plaintiff reported the

sexual harassment he was constructively terminated and/or forced to resign. Therefore, the

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Defendant’s continual lack of care in addressing these issues, if left unpunished, will deprive

other valid objectors their Constitutional rights, which is why punitive damages are requested.

45. The actions of Defendant and its agents make reinstatement ineffective as a make-

whole remedy, entitling Mr. Moak to front pay in lieu of reinstatement.

COUNT III
NEGLIGENT SUPERVISION AND RETENTION

46. Plaintiff readopts and realleges paragraphs one (1) twenty-five (25) as if fully set

forth herein verbatim.

47. Throughout the course of his employment Mr. Moak was continually sexually

harassed and intimidated by Defendant, through its’ agents, primarily Jose Sandoval.

48. Plaintiff regularly reported this sexual assault to the management team at Joe

Allen Restaurant, and the harassment was witnessed on a daily basis by Joe Allen Staff to which

they responded it was “Just Jose being Jose.”

49. When no corrective action was taken by Joe Allen Restaurant, Plaintiff objected

to their allowing of the illegal conduct, and informed them that he would be making a formal

complaint to the EEOC.

50. After Plaintiff had made formal complaints regarding the sexual harassment,

Defendant retaliated against him by cutting his shifts down so significantly as to ensure that he

was not making enough income to support himself and would ultimately be forced to resign.

51. The Defendant has a responsibility to establish, maintain, and enforce policies and

procedures for the avoidance of sexual harassment.

52. The Defendant acted negligently by not supervising or overseeing its employees

so as to insure compliance with the alleged aforementioned statutes.

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53. That as a direct and proximate cause of the Defendant’s negligent failure to

supervise, the Plaintiff was damaged according to proof at the time at trial.

COUNT IV
BREACH OF IMPLIED IN FACT CONTRACT

54. Plaintiff readopts and realleges paragraphs one (1) twenty-five (25) as if fully set

forth herein verbatim.

55. During the entire course of Plaintiff’s employment with Defendant, an implied in fact

employment agreement existed between Plaintiff and Defendant which included, but

was not limited to the following terms and conditions:

a. Plaintiff would not be denied fair treatment or be compelled to resign for reasons

relating to being subjected to sexual harassment or discrimination based on sex.

Such provision was implied and constituted a part of his oral agreement with

Defendant.

b. Defendant would not discriminate against Plaintiff on the basis of sex or allow

him to be sexually harassed or retaliated against.

56. Plaintiff relied on the above terms of their implied in fact contract.

57. The Defendant breached the agreement as described in detail in the aforementioned

paragraphs.

58. As a result of the foregoing, the Defendant breached the agreement.

59. The Plaintiff has suffered damages.

DEMAND FOR RELIEF

WHEREFORE, Plaintiff, MICHAEL MOAK, respectfully demands judgment against

Defendant, JOE ALLEN RESTAURANT, for the following:

a) Front pay in lieu of reinstatement;

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b) Back pay;

c) Compensatory damages;

d) Punitive damages (because as discussed above in detail, defendant’s conduct was

despicable and the acts herein alleged were malicious, fraudulent and oppressive, and

were committed with an improper and evil motive to injure plaintiff, amounting to

malice and in conscious disregard of plaintiff’s rights);

e) Prejudgment interest;

f) Attorneys’ fees pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k), and Fla. Stat. §

448.104 and other applicable statutes whether state or federal;

g) Costs of this action;

h) Issue a declaratory judgment that the acts, policies, practices, and procedures of

Defendant complained of herein violated Plaintiff’s rights under Title VII of the Civil

Rights Act (42 U.S.C. §2000e);

i) For actual damages in the amount to be determined according to proof;

j) For consequential damages in an amount to be determined according to proof;

k) For general damages in an amount to be determined according to proof;

l) For special damages in an amount to be determined according to proof;

m) For exemplary damages;

n) For nominal damages; and

o) For such other relief as this Court deems just and proper.

JURY DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial

by jury on all questions of fact raised by this Complaint and on all other issues so triable.

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Dated this 14th day of September, 2010

Respectfully Filed by:

______________________________
Dale J. Morgado, Esquire
Feldman, Fox & Morgado, P.A.
Attorney for Plaintiff
100 N. Biscayne Blvd., Suite 2902
Miami, Florida 33132
305-222-7853 Telephone
305-384-4676 Facsimile
FBN: 0064015
Email: dmorgado@ffmlawgroup.com

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