throbber
Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`TONY BIRITTIERI,
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`- against –
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`WHOLE FOODS MARKET GROUP, INC. and
`WHOLE FOODS MARKET,
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`Defendants.
`
`Plaintiff,
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`Index No.:
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`COMPLAINT AND DEMAND
`FOR JURY TRIAL
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`Plaintiff TONY BIRITTIERI (“Plaintiff” or “BIRITTIERI”), by and through his attorneys
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`SHEGERIAN & ASSOCIATES, as and for his Complaint against Defendant WHOLE FOODS
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`MARKET GROUP, INC. (“Defendant” or “WHOLE FOODS”) and WHOLE FOODS MARKET
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`(“Defendant” or “MARKET”), states and alleges on information and belief as follows:
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`PRELIMINARY STATEMENT
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`1.
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`This is an action by Plaintiff, BIRITTIERI, whose employment with WHOLE
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`FOODS and MARKET was wrongfully terminated by Defendants and against Defendants for
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`disability discrimination, age discrimination, and failure to provide reasonable accommodation
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`under: (a) Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and its
`
`Amendments (“Title VII”); (b) the Americans with Disabilities Act, 42 U.S.C.A. § 1201 et seq.
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`(“ADA”), and (c) the New York State Executive Law § 296 et seq. (“NYS Human Rights Law”).
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`2.
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`Plaintiff brings this action against Defendants for economic, non-economic,
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`compensatory, and punitive damages, pre-judgment interest, and costs and reasonable attorneys’
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`fees, and such other and further relief as this Court deems equitable and just.
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`JURISDICTION AND VENUE
`The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as this is
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`3.
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`an action seeking redress for the violation of Plaintiff’s rights under federal law.
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`4.
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`Plaintiff respectfully requests that this Court exercise supplemental jurisdiction,
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`pursuant to 28 U.S.C. § 1367, over any state court causes of action that arise from a common
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`nucleus of operative facts that give rise to the federally based causes of action pleaded herein, and
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`as against all parties that are so related to claims in this action within the original jurisdiction of
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`this court that are formed as part of the same case or controversy.
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`5.
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`Pursuant to New York State Executive Law § 298-a, the provisions of the NYS
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`Human Rights Law shall apply to acts committed outside of New York state against a resident of
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`New York state since such acts would constitute unlawful discriminatory practice if committed
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`within New York state.
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`6.
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`Venue herein is proper for the United States District Court for the Southern District
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`of New York pursuant to 28. U.S.C. § 1391, because Defendants reside in this judicial district and
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`is subject to this Honorable Court’s personal jurisdiction with respect to this civil action in
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`question.
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`ADMINISTRATIVE PROCEDURES
`Within the time prescribed by law, Plaintiff filed a Charge of Discrimination with
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`7.
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`the Equal Employment Opportunity Commission (“EEOC”) alleging violations of federal law
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`including, but not limited to, 42 U.S.C. §§ 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C.
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`§ 1981, Civil Rights Act of 1991, Fair Employment and Housing Act Government Code §§ 12900,
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`12940-12941, et seq, and the Americans with Disabilities Act, 42 U.S.C.A. § 1201 et seq.,
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`annexed hereto as Exhibit “A.”
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 3 of 24
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`8.
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`The EEOC subsequently issued Plaintiff a Notice of Right to Sue, received on or
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`around July 26, 2021, attached hereto as Exhibit “B.”
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`9.
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`On or around October 22, 2021, a copy of this Complaint was mailed to the New
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`York State Division of Human Rights, the New York State Department of Labor, and the Attorney
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`General Office thereby satisfying the notice requirements of the New York State Human Rights
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`Law and N.Y. Civ. Rights § 40-d.
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`JURY DEMAND
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`10.
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`Pursuant to the Seventh Amendment of the United States Constitution and
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`pursuant to Fed. R. Civ. P. 38(b), Plaintiff respectfully demands a trial by jury on all issues and
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`claims set forth in this Complaint.
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`PARTIES
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`11.
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`Plaintiff: Plaintiff BIRITTIERI is, and at all times mentioned in this Complaint
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`was, a resident of the State of New York.
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`12.
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`Defendant WHOLE FOODS was and still is a foreign corporation authorized to
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`do business in the States of New York and Connecticut and the United States government.
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`Defendant’s place of business where the following causes of action took place, was and is, in New
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`York State and the State of Connecticut.
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`13.
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`Defendant MARKET is authorized to do business in the States of New York and
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`Connecticut.
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`14.
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`The Defendants, and its agents, compelled, coerced, aided, and/or abetted the
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`discrimination, retaliation, and harassment alleged in this Complaint, which conduct is prohibited
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`under federal law including, but not limited to, (a) Title VII of the Civil Rights Act of 1964, 42
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`U.S.C.A. § 2000e et seq., and its Amendments (“Title VII”); (b) the Americans with Disabilities
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`Act, 42 U.S.C.A. § 1201 et seq., and (c) the New York State Executive Law § 296 et seq. (“NYS
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 4 of 24
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`Human Rights Law”).
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`15.
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`The Defendants, and its agents, were responsible for the events and damages
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`alleged herein, including on the following bases: (a) Defendants, and its agents, committed the
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`acts alleged; (b) at all relevant times, Defendants, and its agents, was the agent or employee,
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`and/or acted under the control or supervision, of Defendants, and its agents, and, in committing
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`the acts alleged, acted within the course and scope of such agency and employment and/or is or
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`are otherwise liable for Plaintiff’s damages; (c) at all relevant times, there existed a unity of
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`ownership and interest between or among Defendants, and its agent, such that any individuality
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`and separateness between or among those Defendants, and its agents, has ceased, and Defendants,
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`and its agents, are the alter egos of one another. Defendants, and its agents, exercised domination
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`and control over one another to such an extent that any individuality or separateness of
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`Defendants, and its agents, does not, and at all times herein mentioned did not, exist. Adherence
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`to the fiction of the separate existence of Defendants, and its agents, would permit abuse of the
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`corporate privilege and would sanction fraud and promote injustice. All actions of Defendants,
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`and its agents, were taken by employees, supervisors, executives, officers, and directors during
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`employment with Defendants, were taken on behalf of Defendants, and its agents, and were
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`engaged in, authorized, ratified, and approved of by Defendants.
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`16. WHOLE FOODS and MARKET, and its agents, both directly and indirectly
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`employed Plaintiff as defined by federal law including, but not limited to, (a) Title VII of the Civil
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`Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and its Amendments (“Title VII”); (b) the
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`Americans with Disabilities Act, 42 U.S.C.A. § 1201 et seq., and (c) the New York State Executive
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`Law § 296 et seq. (“NYS Human Rights Law”).
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`17.
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`In addition, WHOLE FOODS and MARKET, and its agents, compelled, coerced,
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`aided, and abetted the retaliation and discrimination, which is prohibited under federal law
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`including, but not limited to, (a) Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et
`
`seq., and its Amendments (“Title VII”); (b) the Americans with Disabilities Act, 42 U.S.C.A. §
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`1201 et seq., and (c) the New York State Executive Law § 296 et seq. (“NYS Human Rights Law”).
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`18.
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`Finally, at all relevant times mentioned herein, Defendants, and its agents, acted
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`as agents of each other in committing the acts alleged herein.
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`STATEMENT OF FACTS
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`19.
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`Plaintiff’s hiring: Plaintiff BIRITTIERI was a dedicated employee of WHOLE
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`FOODS and MARKET from March 15, 2019, until his termination on September 28, 2020.
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`Plaintiff was a full-time pizza maker at the time of his termination.
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`20.
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`Plaintiff’s job performance: Plaintiff BIRITTIERI was regarded a strong worker
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`at Whole Foods Market, located at 90 E Putnam Avenue, Greenwich, CT 06830, as Plaintiff
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`earned a full-time position after starting in a part-time role. Plaintiff was told by his supervisors
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`that he was doing a great job and had a future within the company.
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`21.
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`Shortly after being hired by WHOLE FOODS and MARKET, Bibany (last name
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`unknown), manager, gave Plaintiff a pat on the back and told him he was doing great. Ian (last
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`name unknown), supervisor, told Plaintiff that he can see Plaintiff moving forward at WHOLE
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`FOODS and MARKET.
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`22.
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`Plaintiff’s protected status and activity: Plaintiff was subjected to discrimination
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`based on, among other things, his disabilities and age.
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 6 of 24
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`23.
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` Defendants’ adverse employment actions and behavior: Shortly after hiring,
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`MARKET became understaffed and Plaintiff was left to handle the closing responsibilities that
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`were originally carried out by seven (7) employees.
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`24. While short staffed, Bibany notified Plaintiff that he could start cleaning 5 minutes
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`to 9:00pm, which is when he ended his shift. Plaintiff sometimes started earlier and would be
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`threatened by Bibany to receive a write-up.
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`25.
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`Plaintiff was advised that he was not allowed to clock out anytime after 10:30pm
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`because they did not want to pay Plaintiff overtime.
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`26.
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`To avoid getting written up, Plaintiff would punch out early and go back and finish
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`cleaning.
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`27.
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`Plaintiff did not receive any raises during his tenure with WHOLE FOODS and
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`MARKET, despite making several requests.
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`28.
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`In July 2019, Plaintiff put his coffee cup down to help getting the food out on time.
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`Bibany came up to the staff at the Market and asked, “who’s cup is that” and made a commotion
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`over it, even though she saw me put it down.
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`29.
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`Upon information and belief, Bibany was singling Plaintiff out because other co-
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`workers would always have stuff laying around.
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`30.
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`In October of 2019, Plaintiff was verbally reprimanded for using the organic
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`cutting machine on non-organic products.
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`31.
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`Upon information and belief, other employees would use the organic machine to
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`cut non-organic items during busy times at the market.
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`32.
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`Plaintiff dealt with chronic knee issues, high blood pressure, spinal stenosis, and a
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`workplace injury during his tenure with WHOLE FOODS and MARKET.
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 7 of 24
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`33.
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`Plaintiff advised his supervisor (Ian) and co-workers that he needed a double-knee
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`replacement and of his other disabilities.
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`34.
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`On multiple occasions, Plaintiff notified Ian that he was unable to work night shifts
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`because of complications with his knees.
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`35.
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`Ian repeatedly told Plaintiff that, due to the short staff, Plaintiff needed to come in
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`and work the night shifts.
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`36.
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`Plaintiff suffered from several disabilities (high blood pressure, knee issues, spinal
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`stenosis, and his workplace injury in 2020).
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`37.
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`Following Plaintiff’s request to provide a doctor’s note for nights off, Ian advised
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`Plaintiff that, “I wouldn’t do that if I were you.”
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`38.
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`In May 2020, Plaintiff’s wife passed away. Plaintiff requested to take time off to
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`attend the funeral mass and Plaintiff received a verbal approval from Ian to take the leave.
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`39.
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`On the day of the mass, Plaintiff was advised that he needed to log his day off in
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`the company portal, but Plaintiff was never shown how to do that. Plaintiff then paid a co-worker
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`to show him how to use the system.
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`40.
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`Following the death of Plaintiff’s wife, Plaintiff was asked by Bibany why he was
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`not wearing his boots. Plaintiff advised Bibany that his boots were wet, and the slip-ons did not
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`fit him.
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`41.
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`During this day, Plaintiff observed four other employees not wearing the proper
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`shoes.
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`42.
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`As Plaintiff was walking back to the charcuterie station, Bibany asked Plaintiff
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`why he was upset, and Plaintiff advised her that he was upset about his wife. Bibany responded,
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`“Well isn’t she dead?”
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 8 of 24
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`43.
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`Later in May 2020, Plaintiff took a personal call with his daughter who was
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`experiencing an anxiety attack related to her mother’s death.
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`44.
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`45.
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`Ian threatened Plaintiff with a write-up for taking the call.
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`In July 2020, Plaintiff accompanied his daughter to the emergency room for a cyst
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`located on her ovary.
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`46.
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`47.
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`48.
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`49.
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`Plaintiff was given permission from Ian to accompany his daughter to the hospital.
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`However, upon returning to work, Plaintiff was issued a warning for being late.
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`Plaintiff attempted to provide a doctor’s note, but it was not accepted by Ian.
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`In September 2020, Plaintiff injured his back while cleaning kitchen equipment.
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`Plaintiff was cleaning underneath the stove and hurt his back bending over to reach the floor.
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`50.
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`Plaintiff went to the doctor’s office and obtained a note advising Defendants that
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`Plaintiff should take a week off from work.
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`51.
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`The doctor’s note stated that Plaintiff should take a week off from work and then
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`return to work with restrictions on physical labor.
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`52.
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`Plaintiff was forced to return to work four days later with no accommodations or
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`adjustments to Plaintiff’s schedule.
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`53.
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`On several occasions, Plaintiff was a witness to unsanitary conditions at the
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`Market.
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`54.
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`Plaintiff witnessed molded and expired vegetables being served to customers and
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`molded food in the charcuterie area of the Market.
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`55.
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`56.
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`After attempting to remedy the situation, Plaintiff was told not to worry about it.
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`Plaintiff complained multiple times about employees not wearing safety gloves
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`because they could get injured.
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 9 of 24
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`57.
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`In September 2020, during an employee review session, Plaintiff was told that he
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`had to write positive reviews about his peers, or he would be let go.
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`58.
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`In fear of losing his job, Plaintiff gave everyone at MARKET positive peer
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`reviews.
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`59.
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`Prior to Plaintiff’s termination, Plaintiff noticed a trend in hiring younger and more
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`able employees.
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`60.
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`Upon information and belief, Plaintiff was replaced with a younger and more able
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`employee.
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`61.
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`Upon information and belief, during Plaintiff’s tenure, African American
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`employees were receiving preferential treatment by supervisor Collin (last name unknown), as
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`they would get scheduling preference over Plaintiff.
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`62.
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`Several times, Plaintiff told Collin and Ian that he needed Sundays off to go to
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`church. These requests were continuously denied throughout Plaintiff’s tenure.
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`63.
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`Termination of Plaintiff’s Employment: During the Plaintiff’s last week of work,
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`he was not supposed to be working because of the doctor’s note he received. On September 27,
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`2020, Ian called Plaintiff and told him he was supposed to be working. Plaintiff was not scheduled
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`to work. Plaintiff was told to call Collin.
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`64.
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`Plaintiff called multiple times asking to speak with the store manager. Finally,
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`Collin picked up and notified Plaintiff that he was terminated by Defendants. Plaintiff asked
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`Collin what he meant, and Collin told him that he was separated from Defendants and to not come
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`back to work. Collin hung up the phone.
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`65.
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`66.
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`There was no reason provided for Plaintiff’s termination.
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`Plaintiff received his final pay on September 30, 2020.
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 10 of 24
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`67.
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`Immediately following Plaintiff’s workplace injury, Plaintiff was terminated
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`without any accommodations and offered no cooperative dialog or engagement concerning his
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`disabilities.
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`68.
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`Economic damages: As a consequence of Defendants’ conduct, Plaintiff has
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`suffered and will suffer harm, including lost past and future income and employment benefits,
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`damage to his career, and lost wages, overtime, unpaid expenses, and penalties, as well as interest
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`on unpaid wages at the legal rate from and after each payday on which those wages should have
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`been paid, in a sum to be proven at trial.
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`69.
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`Non-economic damages: As a consequence of Defedants’ conduct, Plaintiff has
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`suffered and will suffer psychological and emotional distress, humiliation, and mental and
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`physical pain and anguish, in a sum to be proven at trial.
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`70.
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`Punitive damages: The conduct of Defendants’ was outrageous and malicious,
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`was intended to injure Plaintiff, and was done with reckless indifference to Plaintiff’s protected
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`civil rights, entitling Plaintiff to an award of punitive damages under Federal Law. In addition,
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`Defendant’s conduct constitutes malicious, willful, wanton and/or reckless indifference to
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`Plaintiff’s protected rights, entitling Plaintiff to punitive damages against Defendants under State
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`Law.
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`71.
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`Attorneys’ fees: Plaintiff has incurred and continues to incur legal expenses and
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`attorneys’ fees.
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`///
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`///
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`///
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 11 of 24
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`FIRST CAUSE OF ACTION
`Violation of the Americans with Disabilities Act (“ADA”) of 1990 and its Amendments, 42
`U.S.C. § 12101 et seq. for Discrimination Based on Plaintiff’s Disabilities; Failure to
`Provide Reasonable Accommodations – Against all Defendants
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`The allegations set forth in the foregoing paragraphs are re-alleged and
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`72.
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`incorporated herein by reference.
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`73.
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`At all times herein mentioned, the ADA and its amendments, were in full force
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`and effect and was binding on Defendants. This law, and corresponding regulations, prohibit
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`disability discrimination and requires Defendants to provide reasonable accommodations to
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`employees who they know are disabled.
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`74.
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`Plaintiff’s high blood pressure, knee issues, workplace injury, and spinal stenosis
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`constitute disabilities within the meaning of the ADA.
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`75.
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`Plaintiff, at all times relevant, was able to perform in a reasonable manner the
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`activities involved in his job upon the provision of reasonable accommodations. For example,
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`employees in the same position as Plaintiff, who did not have a disability, were granted preferential
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`treatment regarding the night shift. Requiring Plaintiff to work the night shift was thus a
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`reasonable accommodation available to Defendants that would not create an undue burden on
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`WHOLE FOODS and MARKET.
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`76.
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`Defendants wholly failed to attempt any reasonable accommodation of Plaintiff’s
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`known disabilities. Instead, Defendants terminated Plaintiff’s employment based on his
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`disabilities, request for disability leave, and retaliated against Plaintiff for seeking to exercise rights
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`guaranteed under the ADA and its amendments and/or opposing Defendants’ failure to provide
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`such rights, including rights of reasonable accommodation, leave rights, intermittent leave rights,
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`and/or the right to be free of discrimination, in violation of the ADA and its amendments.
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`77.
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`Under the ADA, after Plaintiff requested accommodation, Defendants were
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`obligated to engage in a good faith interactive process with Plaintiff in order to address and
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`accommodate his disabilities, including a duty to investigate a feasible accommodation for
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`Plaintiff’s disabilities.
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`78.
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`At all times relevant, Defendants knew of Plaintiff’s disabilities yet never initiated
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`the required interactive, individualized process. Instead, Defendants’ denied Plaintiff’s request for
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`reasonable accommodation and discriminated against Plaintiff for informing Defendants of his
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`disabilities and requesting accommodation from his employer. Plaintiff believes, and on that basis
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`alleges, that his disabilities, the need to accommodate those disabilities, and his request for
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`accommodations were substantial motivating factors in Defendants’ termination of his
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`employment.
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`79.
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`As a proximate result of Defendants’ discrimination against Plaintiff based on his
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`disabilities, Plaintiff has suffered and continues to suffer substantial losses, including the loss of
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`past and future earnings and employment benefits together with attorneys’ fees and expenses.
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`80.
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`As a further proximate result of Defendants’ actions, Plaintiff has suffered and
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`continues to suffer impairment and damage to Plaintiff’s good name and reputation by Defendants.
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`81.
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`As a further proximate result of Defendants’ actions, Plaintiff has suffered and
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`continues to suffer severe and lasting embarrassment, humiliation and anguish, and other
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`incidental and consequential damages and expenses.
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`82.
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`The conduct of Defendants was willful, outrageous, malicious, intended to injure
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`Plaintiff, and was done with reckless indifference to Plaintiff’s protected civil rights and the
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`requirements of federal law, entitling Plaintiff to an award of punitive damages.
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 13 of 24
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`SECOND CAUSE OF ACTION
`Violation of the Americans with Disabilities Act (“ADA”) of 1990 and its Amendments, 42
`U.S.C. § 12101 et seq. for Retaliation Against Plaintiff for Requesting Accommodation of
`His Disabilities – Against all Defendants
`
`The allegations set forth in the foregoing paragraphs are re-alleged and incorporated
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`83.
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`herein by reference.
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`84.
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`Plaintiff engaged in the protected activity of requesting accommodation for his
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`disabilities, specifically by 1) informing his supervisors at WHOLE FOODS and MARKET that
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`he could not work nights, 2) attempting to provide a doctor’s note to Defendants regarding his
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`disabilities, and 3) providing a doctor’s note following his workplace injury in September 2020.
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`85.
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`Defendants was alerted of Plaintiff’s requests for reasonable accommodation and
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`Plaintiff was terminated from his employment because Defendants retaliated against him.
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`86.
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`As a proximate result of Defendants’ retaliation against Plaintiff, Plaintiff has
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`suffered and continues to suffer substantial losses, including the loss of past and future earnings
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`and employment benefits together with attorneys’ fees and expenses.
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`87.
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`As a proximate result of Defendants’ willful, knowing, and intentional retaliation
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`against Plaintiff, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and
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`physical and mental pain and anguish, all to his damage in a sum according to proof.
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`88.
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`Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
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`Plaintiff is entitled to recover reasonable attorneys’ fees and costs (including expert costs) in an
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`amount according to proof.
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`89.
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`Defendants’ conduct constitutes malicious, willful, wanton, and/or reckless
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`indifference to Plaintiff’s protected rights, and this entitles Plaintiff to punitive damages against
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`Defendants.
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`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 14 of 24
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`THIRD CAUSE OF ACTION
`Violation of New York State Human Rights Law for Disability Discrimination – Against all
`Defendants
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`The allegations set forth in the foregoing paragraphs are re-alleged and incorporated
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`90.
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`herein by reference.
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`91.
`
`The New York Executive Law §296(1)(a) provides that: “It shall be an unlawful
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`discriminatory practice for an employer or licensed agency, because of the age, race, creed, color,
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`national origin, sexual orientation, military status, sex, disability, predisposing genetic
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`characteristics, marital status, or domestic violence victim status, to refuse or hire or employ or to
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`bar or to discharge from employment such individual in compensation or in terms, condition or
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`privileges of employment.”
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`92.
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`Defendants’ conduct, as alleged, violated the New York State Human Rights Law,
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`including but not limited to, N.Y. Exec. Law § 296. Defendants committed unlawful employment
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`practices, including but not limited to, the following bases for liability:
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`• Taking adverse employment actions against Plaintiff such as discharging, barring, refusing
`to transfer, retain, hire, select, and/or employ, and/or otherwise discriminating against
`Plaintiff, in whole or in part on the basis of Plaintiff’s disabilities and/or other good faith
`complaints in violation of the New York State Human Rights Law, including but not
`limited to, N.Y. Exec. Law § 296; Failing to engage plaintiff in a good faith interactive
`process regarding his request for accommodation in violation of the New York State
`Human Rights Law, including but not limited to, N.Y. Exec. Law § 296;
`
`• Harassing Plaintiff and/or creating a hostile work environment in whole or in part on the
`basis of Plaintiff’s disabilities and/or good faith complaints in violation of the New York
`State Human Rights Law, including but not limited to, N.Y. Exec. Law §296;
`
`• Failing to take all reasonable steps to prevent discrimination, harassment, and retaliation
`based on Plaintiff’s disabilities and/or other good faith complaints, and/or other protected
`characteristic or activity
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`• Plaintiff’s disabilities, and/or good faith complaints protected by the New York State
`Human Rights Law, including but not limited to, N.Y. Exec. Law § 296, were motivating
`factors in Defendants’ decision to terminate Plaintiff’s employment, not to retain, hire, or
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`

`

`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 15 of 24
`
`otherwise employ Plaintiff in any position, and/or to take other adverse job actions against
`Plaintiff.
`
`93.
`
`Defendants’ conduct, as alleged, violated the New York Civil Rights Law,
`
`
`
`including but not limited to, N.Y. Civ. Rights § 40-c by subjecting Plaintiff to discrimination in
`
`his civil rights and/or to harassment.
`
`94.
`
`As a proximate result of Defendants’ willful, knowing, and intentional
`
`discrimination against Plaintiff, Plaintiff has sustained and continues to sustain substantial losses
`
`of earnings and other employment benefits.
`
`95.
`
`As a proximate result of Defendants’ willful, knowing, and intentional
`
`discrimination against Plaintiff, Plaintiff has suffered and continues to suffer humiliation,
`
`emotional distress, and physical and mental pain and anguish, all to his damage in a sum according
`
`to proof.
`
`96.
`
`Defendants’ conduct constitutes malicious, willful, wanton and/or reckless
`
`indifference to Plaintiff’s protected rights, entitling Plaintiff to punitive damages against
`
`Defendants.
`
`FOURTH CAUSE OF ACTION
`Violation of New York State Human Rights Law for Failure to Provide Reasonable
`Accommodations to Known Disability – Against all Defendants
`
`The allegations set forth in the foregoing paragraphs are re-alleged and incorporated
`
`97.
`
`herein by reference.
`
`98.
`
`The New York Executive Law §296(3)(a) provides that: “It shall be an unlawful
`
`discriminatory practice for an employer . . . to refuse to provide reasonable accommodations to the
`
`known disabilities, or pregnancy-related conditions, of an employee, prospective employee or
`
`member in connection with a job or occupation sought or held or participation in a training
`
`program.”
`
`-15-
`
`

`

`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 16 of 24
`
`99.
`
`Plaintiff’s high blood pressure, knee issues, workplace injury, and spinal stenosis
`
`constitute disabilities within the meaning of the New York State Human Rights Law.
`
`100. Defendants had notice of the disabilities, both at the time of Plaintiff’s hiring, and
`
`through Plaintiff’s repeated requests for accommodation of his disabilities.
`
`101. Plaintiff could perform the essential functions of his position at WHOLE FOODS
`
`and MARKET with the requested accommodations.
`
`102. Defendants refused to make such accommodations.
`
`103. Defendants’ conduct, as alleged, violated the New York State Human Rights Law,
`
`including but not limited to, N.Y. Exec. Law § 296(3)(a).
`
`104. As a proximate result of Defendants’ willful, knowing, and intentional failure to
`
`provide reasonable accommodations, Plaintiff has sustained and continues to sustain substantial
`
`losses of earnings and other employment benefits.
`
`105. As a proximate result of Defendants’ willful, knowing, and intentional failure to
`
`provide reasonable accommodations, Plaintiff has suffered and continues to suffer humiliation,
`
`emotional distress, and physical and mental pain and anguish, all to his damage in a sum according
`
`to proof.
`
`106. Defendants’ conduct constitutes malicious, willful, wanton and/or reckless
`
`indifference to Plaintiff’s protected rights, entitling Plaintiff to punitive damages against
`
`Defendants.
`
`///
`///
`///
`///
`///
`
`
`
`-16-
`
`

`

`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 17 of 24
`
`FIFTH CAUSE OF ACTION
`Violation of New York State Human Rights Law for Retaliation for Requesting Reasonable
`Accommodation – Against all Defendants
`
`
`
`107. The allegations set forth in the foregoing paragraphs are re-alleged and incorporated
`
`herein by reference.
`
`108. Defendants’ conduct, as alleged, violated the New York State Human Rights Law,
`
`specifically N.Y. Exec. Law sections 296(1)(e) and 296(7), and Defendants committed unlawful
`
`employment practices, including by the following, separate bases for liability: retaliating against
`
`Plaintiff, including by reprimanding him for clocking out to avoid having to pay him overtime, to
`
`reprimand him for being late when he notified his supervisors, for writing up Plaintiff, for forcing
`
`Plaintiff to come back to work despite doctor’s order, and ultimately terminating his employment
`
`for seeking to exercise rights guaranteed under the New York State Human Rights Law and/or
`
`for opposing Defendants’ failure to provide such rights, including the right to be free from
`
`discrimination and harassment based on disabilities, and the right to engage in the interactive
`
`process, in violation of New York State Human Rights Law sections 296(1)(e) and 296(7).
`
`109. Plaintiff engaged in the protected activity under the NYSHRL of opposing
`
`WHOLE FOODS and MARKET’s failure to provide reasonable accommodation for his
`
`disabilities, specifically by repeatedly asking for reasonable accommodations and complaining to
`
`management.
`
`110. As a proximate result of Defendants’ willful, knowing, and intentional
`
`discrimination and retaliation against Plaintiff, Plaintiff has sustained and continues to sustain
`
`substantial losses of earnings and other employment benefits.
`
`111. As a proximate result of Defendants’ willful, knowing, and intentional
`
`discrimination and retaliation against Plaintiff, Plaintiff has suffered and continues to suffer
`
`-17-
`
`

`

`Case 7:21-cv-08703 Document 1 Filed 10/22/21 Page 18 of 24
`
`humiliation, emotional distress, and physical and mental pain and anguish, all to his damage in a sum
`
`according to proof.
`
`112. Defendants’ conduct constitutes malicious, willful, wanton and/or reckless
`
`indifference to Plaintiff protected rights, entitling plaintiff to compensatory damages against
`
`Defendants.
`
`
`SIXTH CAUSE OF ACTION
`Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and its
`Amendments for Age/Disability Discrimination – Against all Defendants
`
`113. The allegations set forth in the foregoing paragraphs are re-alleged and incorpo-
`
`rated herein by reference.
`
`114. Defendants’ conduct, as alleged, violated Title VII, U.S.C.A. § 2000e et seq and
`
`its Amendments. Defendants committed unlawful employment practices, including by the
`
`following bases for liability:
`
`• Taking adverse employment actions against Plaintiff, such as discharging, barring,
`refusing to transfer, retain, hire, select, and/or employ, and/or otherwise discriminating
`against Plaintiff, in whole or in part on the basis of Plaintiff’s age/disability in violation
`of Title VII, U.S.C.A. § 2000e et seq and its Amendments;
`
`• Plaintiff’s age/disability was a motivating factor in, among other things, Defendants’
`decision to ignore Plaintiff’s good faith complaints about discrimination, providing
`unjustified performance reviews, harassing Plaintiff, overworking Plaintiff, terminating
`Plaintiff, and/or otherwise discriminating against Plaintiff, in whole or in part based on
`Plaintiff’s age/disability.
`
`115. As a pro

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