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Prestige Exhibit M, First Amended Complaint
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Plaintiff designates
ROBERT HARRIS, New York County as the
Place of Trial
Plaintiff, Basis of Venue is
Location of Relevant Events
Index No. 650175/2017
vs.
Date Purchased 1/10/2017
INTIMO, INC., NATHAN NATHAN
individually, TOMMY NATHAN, individually, FIRST AMENDED
MORIS ZILKHA, individually, PRESTIGE COMPLAINT
EMPLOYEE ADMINISTRATORS, INC.
a/k/a PRESTIGE EMPLOYEE
ADMINISTRATORS, PRESTIGE EMPLOYEE
ADMINISTRATORS II,INC. a/k/a PRESTIGE
EMPLOYEE ADMINISTRATORS and JOHN
DOES 1-10, and ABC CORPS. 1-8,
fictitious names for persons or entities whose
present roles and identities are unknown,
Defendants.
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Plaintiff above named, by his attorneys, Meyers Fried-Grodin, LLP, complaining
of the Defendants herein, respectfully show to this Court and allege as follows:
STATEMENT OF THE CASE
1. This is an action, by an aggrieved individual against his former employer, alleging
violations of state and city law, for: (i) age discrimination; (ii)retaliation; and (iii) failure
to pay several hundred thousands of dollars of compensation owed to Plaintiff.
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THE PARTIES
A. Plaintiff Robert Harris
("Plaintiff"
2. Plaintiff Robert Harris or "Mr. Harris") is an individual who resides in
the State of New Jersey.
B. Defendant Intimo, Inc.
3. Between in or about 2010 and February 24, 2016, Mr. Harris was employed by
Intimo, Inc. ("Intimo") where he worked as Vice President of Sales (and was eventually
promoted to Senior Vice President of Sales and Licensing).
4. Upon information and belief, Intimo is (and at all relevant times, has been) a
domestic business entity in the State of New York.
5. Upon information and belief, Intimo maintains a principal place of business at
29th 5th
143 West Street, Floor, New York, NY 10001, in the County of New York.
6. Intimo is in the business of fashion and apparel manufacturing.
C. Defendant Nathan Nathan
7. Upon information and belief, Defendant Nathan Nathan is the founder and owner
Intimo.
8. Upon information and belief, at allrelevant times, Mr. Nathan has and does reside
in the State of New York.
9. According to his Linkedin profile, Mr. Nathan has been the President & C.E.O. of
Intimo since 1990. See Exhibit A, attached. That is the position that he held at all
relevant times.
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10. At all relevant times, Mr. Nathan exercised close control over the managerial
operations of Intimo, including policies and practices concerning employees, determining
whether employees were exempt from overtime laws, wages, compensation, and payroll.
11. At allrelevant times, Mr. Nathan had complete discretion and authority to make
hiring and firing decisions.
12. Upon information and belief, Mr. Nathan is one of the ten largest shareholders of
Intimo.
13. Accordingly, pursuant to, inter alia, New York Business Corporation Law
("BCL") § 630, Mr. Nathan is individually liable for the wage and hour violations alleged
in this Complaint.
14. Upon information and belief, at all relevant times, Mr. Nathan controlled the
terms and conditions of employment, supervised employees, made decisions as to hiring
and firing, and as to determining the rate and method of the payment of wages with
respect to Plaintiffs.
15. Upon information and belief, at all relevant times, Nathan Nathan and Intimo
were alter egos of one another.
16. At all relevant times, Defendant Nathan Nathan acted as the employer of Plaintiff
within the meaning of the New York Labor Law ("NYLL").
D. Defendant Tommy Nathan
17. Upon information and belief, Defendant Tommy Nathan is the brother of
Company founder Nathan Nathan.
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18. Upon information and belief, at all relevant times, Tommy Nathan has and does
reside in the State of New York.
19. According to his Linkedin profile, Tommy Nathan is the Vice President of Intimo.
See Exhibit B, attached. That is the position that he held at all relevant times.
20. Upon information and belief, Tommy Nathan is one of the ten largest
shareholders of Intimo.
21. Accordingly, pursuant to, inter alia, BCL § 630, Tommy Nathan is individually
liable for the wage and hour violations alleged in this Complaint.
22. At all relevant times, Tommy Nathan exercised close control over the managerial
operations of Intimo, including policies and practices concerning employees, determining
whether employees were exempt from overtime laws, wages, compensation, and payroll.
23. At all relevant times, Tommy Nathan had complete discretion and authority to
make hiring and firing decisions.
24. Upon information and belief, at all relevant times, Tommy Nathan controlled the
terms and conditions of employment, supervised employees, made decisions as to hiring
and firing, and as to determining the rate and method of the payment of wages with
respect to Plaintiffs.
25. Upon information and belief, at all relevant times, Tommy Nathan and Intimo
were alter egos of one another.
26. At all relevant times, Defendant Tommy Nathan acted as the employer of Plaintiff
within the meaning of the NYLL.
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E. Defendant Moris Zilkha
27. Defendant Moris Zilkha is the father-in-law of Company founder Nathan Nathan.
28. Upon information and belief, at allrelevant times, Mr. Zilkha has and does reside
in the State of New York.
29. Mr. Zilkha is General Manager of Intimo and previously was in the role of Chief
Financial Officer.
30. Additionally, Mr. Zilkha has been, and upon information and belief, still is a
corporate officer of Intimo, holding the office of Treasurer. See Intimo's 2011 Business
Corporation Biennial Statement, filed with the New York Department of State, attached
hereto as Exhibit C.
31. Upon information and belief, Mr. Zilkha is one of the ten largest shareholders of
Intimo.
32. Accordingly, pursuant to, inter alia, BCL § 630, Mr. Zilkha is individually liable
for the wage and hour violations alleged in this Complaint.
33. At all relevant times, Mr. Zilkha exercised close control over the managerial
operations of Intimo, including policies and practices concerning employees, determining
whether employees were exempt from overtime laws, wages, compensation, and payroll.
34. At all relevant times, Mr. Zilkha had complete discretion and authority to make
hiring and firing decisions.
35. Upon information and belief, at all relevant times, Mr. Zilkha controlled the terms
and conditions of employment, supervised employees, made decisions as to hiring and
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firing, and as to determining the rate and method of the payment of wages with respect to
Plaintiffs.
36. Upon information and belief, at all relevant times, Mr. Zilkha and Intimo were
alter egos of one another.
37. At all relevant times, Defendant Moris Zilkha acted as the employer of Plaintiff
within the meaning of the NYLL.
F. Defendant Prestige Employee Administrators, Inc.
38. Defendant Prestige Employee Administrators, Inc. a/k/a Prestige Employee
Administrators ("Prestige I") is a professional employer organization.
39. Upon information and belief, Prestige I is a domestic business entity in the State
of New York.
40. Upon information and belief, Prestige I maintains a principal place of business at
538 Broadhollow Road, Suite 311, Mellville, NY 11747.
41. Prestige I is in the business of assuming human resources tasks, including
assuming payroll duties, for a number of business.
42. Prestige I entered into a contract with Intimo, effective at all relevant times, to be
an employer of Plaintiff and to execute payroll operations.
43. At all relevant times, Prestige I was a joint employer of Plaintiff and acted as the
employer of Plaintiff within the meaning of the NYLL.
G. Defendant Prestige Employee Administrators II, Inc.
44. Defendant Prestige Employee Administrators II, Inc. a/k/a Prestige Employee
Administrators ("Prestige II") is a professional employer organization.
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45. Upon information and belief, Prestige II is a domestic business entity in the State
of New York.
46. Upon information and belief, Prestige II maintains a principal place of business at
538 Broadhollow Road, Suite 311, Mellville, NY 11747.
47. Prestige II is in the business of assuming human resources tasks, including
assuming payroll duties, for a number of business.
48. Prestige II entered into a contract with Intimo, effective at all relevant times, to be
an employer of Plaintiff and to execute payroll operations.
49. At all relevant times, Prestige II was a joint employer of Plaintiff and acted as the
employer of Plaintiff within the meaning of the NYLL.
50. Upon information and belief, at all relevant times, Prestige II shared the same
offices, geographic location, officers, owners, employees and finances as Prestige I.
51. Accordingly Prestige I and Prestige II are alter egos of one another.
PROCEDURAL HISTORY
52. With respect to Plaintiff's age discrimination claim, in April 2016, he filed a
Charge of Discrimination with the United States Equal Employment Opportunity
Commission ("EEOC") dated April 25, 2016.
53. On September 21, 2016, the EEOC issued a Right to Sue Letter to Mr. Harris.
54. Then, on September 30, 2016, Plaintiff filed a Complaint regarding his claims
with the United States District Court for the Southern District of New York, Case No.
1:16-cv-07672, (which contained largely the same allegations as those set forth herein).
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55. The only substantive difference between the federal court Complaint and the
instant Complaint is that the federal court Complaint included a federal claim of age
discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et.
seq. ("ADEA"). The instant Complaint does not contain an ADEA claim.
56. All parties appeared in the aforementioned federal lawsuit.
57. After filing the federal lawsuit, and before an Answer was filed, Defendants
provided information to Plaintiff reflecting that Intimo, Inc. had less than 20 employees.
Therefore, the ADEA claim could not be sustained, and there was no basis for federal
jurisdiction.
58. On January 10, 2017, Plaintiff filed a Notice of Voluntary Dismissal, without
prejudice, pursuant to F.R.C.P. 41(a)(1)(A)(i) with the United States District Court for
the Southern District of New York.
59. Subsequently, on January 10, 2017, Plaintiff filed the instant Complaint, which
contains no federal claims.
STATEMENT OF FACTS
60. Plaintiff re-alleges and incorporates the allegations set forth in the paragraphs
above.
A. Mr. Harris Was an Exceptional Performer
61. Mr. Harris came to the Company with stellar credentials and years of valuable
experience.
62. He was a remarkable performer, having achieved, inter alia, the following: (i)
consistently beating his annual sales goals; (ii) started a children's division for the
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Company; (iii) brought in valuable entertainment licensing (which had previously been
non-existent); (iv) salvaged Walmart private label business, which had been failing; and
(v) grew the Jockey business to become one of the most profitable parts Intimo's
business.
63. Clearly, Mr. Harris was qualified for the position he held.
64. By all objective measures, Mr. Harris was the kind of employee that Intimo would
have been expected to seek to retain - a hidden unlawful motive.
barring
B. Mr. Harris Was Denied Promised Compensation
i. Unpaid Commissions
65. When Mr. Harris was terminated in February 2016, he was not paid commissions
that were due and owing to him over the course of several years.
66. The NYLL requires employers to codify commission plans in writing, signed by
both the employer and employee, and requires employers to actually pay out the
commissions to employees within five business days after the commissions are earned.
N.Y. Lab. Law §§ 191(c), 191-B and 191-C.
67. The Company, through Mr. Nathan, directly communicated written promises of
commissions on or about December 30, 2009. See the e-mails between the parties
attached hereto as Exhibits D and E, attached.
68. However, the Company did not fulfill its obligation to pay those commissions to
Mr. Harris.
69. The total amount of commissions owed to Mr. Harris, at the time of his
termination, was approximately $267,380.00.
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70. More specifically, for calendar year 2010, Mr. Harris should have received
$12,694.00 in commissions. However, he received $0.00 in commissions for 2010.
71. For calendar year 2011, Mr. Harris should have received $216,617.00 in
commissions. However, he received $0.00 in commissions for 2011.
72. For calendar year 2012, Mr. Harris should have received $38,069.00 in
commissions. However, he received $0.00 in commissions for 2011.
73. Additionally, an as-yet uncalculated commission is owed to Mr. Harris for 2016.
74. The excuses given by Mr. Nathan, for failing to pay the commissions, included
saying he could not afford it, or by claiming that the written commission plan was not
what he intended.
75. None of these excuses relieve the Company's obligation to pay, nor do they
provide a legitimate defense under the NYLL.
ii. Shorted Salary
76. Furthermore, between the years 2010 and 2015, the Company failed to pay
Plaintiff's full promised salary.
77. Ultimately, the amount that Plaintiff was shorted was approximately $88,863.00.
78. More specifically, for calendar year 2010, Mr. Harris should have received
$100,000. However, he only received $92,502.00 for 2010.
79. For calendar year 2011, Mr. Harris should have received $125,000.00. However,
he only received $110,790.00 for 2011.
80. For calendar year 2012, Mr. Harris should have received $150,000.00. However,
he only received $119,952.00 for 2012.
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81. For calendar year 2013, Mr. Harris should have received $150,000.00. However,
he only received $143,487 for 2013.
82. For calendar year 2014, Mr. Harris should have received $150,000.00. However,
he only received $136,007.00 for 2014.
83. For calendar year 2015, Mr. Harris should have received $150,000.00. However,
he only received $133,399.00 for 2015.
84. Mr. Nathan promised a to Mr. Harris - and then after Mr. Harris
Incredibly, salary
performed the work - justified the shortfall to reduce Mr.
by claiming retroactively
Harris'
salary!
85. Beyond that, Mr. Nathan even demanded that Mr. Harris return some of his
already-earned salary.
86. At first,Mr. Nathan demanded that Plaintiff return $5,000.00 of salary that had
already been paid. After Plaintiff protested this, Company management ultimately only
took back approximately $2,200.00.
C. Plaintiff Was Fired Because of His Age and Due to Unlawful Retaliation -
Consequently, Management Was Unable to Articulate a Legitimate
Reason for Terminating Plaintiff
Harris'
87. Mr. date of birth is 1950. He was 65 years old at the time of his
termination.
Harris'
88. Near to the end of Mr. employment ( i.e.,
beginning around Autumn 2015),
itbecame apparent that the Company's management began to set him up for termination
and replacement with two younger persons.
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Harris'
89. At around that time, management began taking away Mr. responsibilities
and giving them to Sarah Daitzman (who is approximately 25 years younger than Mr.
Harris).
90. Nathan Nathan even reassigned accounts from Mr. Harris to Ms. Daitzman,
including the very valuable Target account.
91. Moreover, Mr. Harris was being excluded from important meetings and
discussions and management directed others to surreptitiously do work that Mr. Harris
used to do. Mr. Harris was even excluded from the interviewing of a new salesperson
named Shannon (yet Ms. Daitzman was included in this process).
Harris'
92. Also, communications that were ordinarily part of Mr. duties were now
being channeled to Ms. Daitzman.
Harris'
93. All of this appeared to be deliberately calculated to diminish Mr. job
responsibilities to the point wherein the Company could be prepared to terminate him
while avoiding a rough transition of his work to the younger replacement.
94. Mr. Harris complained, in or about November 2015 and December 2015, about
the mistreatment that the Company was directing toward him.
95. However, Mr. Nathan's only response was to be evasive, dismissive and appear
irritated. Mr. Harris told Mr. Nathan, among other things, that itwas wrong for Mr.
Harris'
wages to be reduced retroactively.
96. Mr. Nathan responded by becoming red-faced, angry and snorting that he did not
want to talk about itanymore.
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Preview
FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 Prestige Exhibit M, First Amended Complaint SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------X Plaintiff designates ROBERT HARRIS, New York County as the Place of Trial Plaintiff, Basis of Venue is Location of Relevant Events Index No. 650175/2017 vs. Date Purchased 1/10/2017 INTIMO, INC., NATHAN NATHAN individually, TOMMY NATHAN, individually, FIRST AMENDED MORIS ZILKHA, individually, PRESTIGE COMPLAINT EMPLOYEE ADMINISTRATORS, INC. a/k/a PRESTIGE EMPLOYEE ADMINISTRATORS, PRESTIGE EMPLOYEE ADMINISTRATORS II,INC. a/k/a PRESTIGE EMPLOYEE ADMINISTRATORS and JOHN DOES 1-10, and ABC CORPS. 1-8, fictitious names for persons or entities whose present roles and identities are unknown, Defendants. --------------------------------------------------------------------------X Plaintiff above named, by his attorneys, Meyers Fried-Grodin, LLP, complaining of the Defendants herein, respectfully show to this Court and allege as follows: STATEMENT OF THE CASE 1. This is an action, by an aggrieved individual against his former employer, alleging violations of state and city law, for: (i) age discrimination; (ii)retaliation; and (iii) failure to pay several hundred thousands of dollars of compensation owed to Plaintiff. 3 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 THE PARTIES A. Plaintiff Robert Harris ("Plaintiff" 2. Plaintiff Robert Harris or "Mr. Harris") is an individual who resides in the State of New Jersey. B. Defendant Intimo, Inc. 3. Between in or about 2010 and February 24, 2016, Mr. Harris was employed by Intimo, Inc. ("Intimo") where he worked as Vice President of Sales (and was eventually promoted to Senior Vice President of Sales and Licensing). 4. Upon information and belief, Intimo is (and at all relevant times, has been) a domestic business entity in the State of New York. 5. Upon information and belief, Intimo maintains a principal place of business at 29th 5th 143 West Street, Floor, New York, NY 10001, in the County of New York. 6. Intimo is in the business of fashion and apparel manufacturing. C. Defendant Nathan Nathan 7. Upon information and belief, Defendant Nathan Nathan is the founder and owner Intimo. 8. Upon information and belief, at allrelevant times, Mr. Nathan has and does reside in the State of New York. 9. According to his Linkedin profile, Mr. Nathan has been the President & C.E.O. of Intimo since 1990. See Exhibit A, attached. That is the position that he held at all relevant times. 4 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 10. At all relevant times, Mr. Nathan exercised close control over the managerial operations of Intimo, including policies and practices concerning employees, determining whether employees were exempt from overtime laws, wages, compensation, and payroll. 11. At allrelevant times, Mr. Nathan had complete discretion and authority to make hiring and firing decisions. 12. Upon information and belief, Mr. Nathan is one of the ten largest shareholders of Intimo. 13. Accordingly, pursuant to, inter alia, New York Business Corporation Law ("BCL") § 630, Mr. Nathan is individually liable for the wage and hour violations alleged in this Complaint. 14. Upon information and belief, at all relevant times, Mr. Nathan controlled the terms and conditions of employment, supervised employees, made decisions as to hiring and firing, and as to determining the rate and method of the payment of wages with respect to Plaintiffs. 15. Upon information and belief, at all relevant times, Nathan Nathan and Intimo were alter egos of one another. 16. At all relevant times, Defendant Nathan Nathan acted as the employer of Plaintiff within the meaning of the New York Labor Law ("NYLL"). D. Defendant Tommy Nathan 17. Upon information and belief, Defendant Tommy Nathan is the brother of Company founder Nathan Nathan. 5 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 18. Upon information and belief, at all relevant times, Tommy Nathan has and does reside in the State of New York. 19. According to his Linkedin profile, Tommy Nathan is the Vice President of Intimo. See Exhibit B, attached. That is the position that he held at all relevant times. 20. Upon information and belief, Tommy Nathan is one of the ten largest shareholders of Intimo. 21. Accordingly, pursuant to, inter alia, BCL § 630, Tommy Nathan is individually liable for the wage and hour violations alleged in this Complaint. 22. At all relevant times, Tommy Nathan exercised close control over the managerial operations of Intimo, including policies and practices concerning employees, determining whether employees were exempt from overtime laws, wages, compensation, and payroll. 23. At all relevant times, Tommy Nathan had complete discretion and authority to make hiring and firing decisions. 24. Upon information and belief, at all relevant times, Tommy Nathan controlled the terms and conditions of employment, supervised employees, made decisions as to hiring and firing, and as to determining the rate and method of the payment of wages with respect to Plaintiffs. 25. Upon information and belief, at all relevant times, Tommy Nathan and Intimo were alter egos of one another. 26. At all relevant times, Defendant Tommy Nathan acted as the employer of Plaintiff within the meaning of the NYLL. 6 of 22 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 E. Defendant Moris Zilkha 27. Defendant Moris Zilkha is the father-in-law of Company founder Nathan Nathan. 28. Upon information and belief, at allrelevant times, Mr. Zilkha has and does reside in the State of New York. 29. Mr. Zilkha is General Manager of Intimo and previously was in the role of Chief Financial Officer. 30. Additionally, Mr. Zilkha has been, and upon information and belief, still is a corporate officer of Intimo, holding the office of Treasurer. See Intimo's 2011 Business Corporation Biennial Statement, filed with the New York Department of State, attached hereto as Exhibit C. 31. Upon information and belief, Mr. Zilkha is one of the ten largest shareholders of Intimo. 32. Accordingly, pursuant to, inter alia, BCL § 630, Mr. Zilkha is individually liable for the wage and hour violations alleged in this Complaint. 33. At all relevant times, Mr. Zilkha exercised close control over the managerial operations of Intimo, including policies and practices concerning employees, determining whether employees were exempt from overtime laws, wages, compensation, and payroll. 34. At all relevant times, Mr. Zilkha had complete discretion and authority to make hiring and firing decisions. 35. Upon information and belief, at all relevant times, Mr. Zilkha controlled the terms and conditions of employment, supervised employees, made decisions as to hiring and 7 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 firing, and as to determining the rate and method of the payment of wages with respect to Plaintiffs. 36. Upon information and belief, at all relevant times, Mr. Zilkha and Intimo were alter egos of one another. 37. At all relevant times, Defendant Moris Zilkha acted as the employer of Plaintiff within the meaning of the NYLL. F. Defendant Prestige Employee Administrators, Inc. 38. Defendant Prestige Employee Administrators, Inc. a/k/a Prestige Employee Administrators ("Prestige I") is a professional employer organization. 39. Upon information and belief, Prestige I is a domestic business entity in the State of New York. 40. Upon information and belief, Prestige I maintains a principal place of business at 538 Broadhollow Road, Suite 311, Mellville, NY 11747. 41. Prestige I is in the business of assuming human resources tasks, including assuming payroll duties, for a number of business. 42. Prestige I entered into a contract with Intimo, effective at all relevant times, to be an employer of Plaintiff and to execute payroll operations. 43. At all relevant times, Prestige I was a joint employer of Plaintiff and acted as the employer of Plaintiff within the meaning of the NYLL. G. Defendant Prestige Employee Administrators II, Inc. 44. Defendant Prestige Employee Administrators II, Inc. a/k/a Prestige Employee Administrators ("Prestige II") is a professional employer organization. 8 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 45. Upon information and belief, Prestige II is a domestic business entity in the State of New York. 46. Upon information and belief, Prestige II maintains a principal place of business at 538 Broadhollow Road, Suite 311, Mellville, NY 11747. 47. Prestige II is in the business of assuming human resources tasks, including assuming payroll duties, for a number of business. 48. Prestige II entered into a contract with Intimo, effective at all relevant times, to be an employer of Plaintiff and to execute payroll operations. 49. At all relevant times, Prestige II was a joint employer of Plaintiff and acted as the employer of Plaintiff within the meaning of the NYLL. 50. Upon information and belief, at all relevant times, Prestige II shared the same offices, geographic location, officers, owners, employees and finances as Prestige I. 51. Accordingly Prestige I and Prestige II are alter egos of one another. PROCEDURAL HISTORY 52. With respect to Plaintiff's age discrimination claim, in April 2016, he filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") dated April 25, 2016. 53. On September 21, 2016, the EEOC issued a Right to Sue Letter to Mr. Harris. 54. Then, on September 30, 2016, Plaintiff filed a Complaint regarding his claims with the United States District Court for the Southern District of New York, Case No. 1:16-cv-07672, (which contained largely the same allegations as those set forth herein). 9 of 22 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 55. The only substantive difference between the federal court Complaint and the instant Complaint is that the federal court Complaint included a federal claim of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et. seq. ("ADEA"). The instant Complaint does not contain an ADEA claim. 56. All parties appeared in the aforementioned federal lawsuit. 57. After filing the federal lawsuit, and before an Answer was filed, Defendants provided information to Plaintiff reflecting that Intimo, Inc. had less than 20 employees. Therefore, the ADEA claim could not be sustained, and there was no basis for federal jurisdiction. 58. On January 10, 2017, Plaintiff filed a Notice of Voluntary Dismissal, without prejudice, pursuant to F.R.C.P. 41(a)(1)(A)(i) with the United States District Court for the Southern District of New York. 59. Subsequently, on January 10, 2017, Plaintiff filed the instant Complaint, which contains no federal claims. STATEMENT OF FACTS 60. Plaintiff re-alleges and incorporates the allegations set forth in the paragraphs above. A. Mr. Harris Was an Exceptional Performer 61. Mr. Harris came to the Company with stellar credentials and years of valuable experience. 62. He was a remarkable performer, having achieved, inter alia, the following: (i) consistently beating his annual sales goals; (ii) started a children's division for the 10 of 22 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 Company; (iii) brought in valuable entertainment licensing (which had previously been non-existent); (iv) salvaged Walmart private label business, which had been failing; and (v) grew the Jockey business to become one of the most profitable parts Intimo's business. 63. Clearly, Mr. Harris was qualified for the position he held. 64. By all objective measures, Mr. Harris was the kind of employee that Intimo would have been expected to seek to retain - a hidden unlawful motive. barring B. Mr. Harris Was Denied Promised Compensation i. Unpaid Commissions 65. When Mr. Harris was terminated in February 2016, he was not paid commissions that were due and owing to him over the course of several years. 66. The NYLL requires employers to codify commission plans in writing, signed by both the employer and employee, and requires employers to actually pay out the commissions to employees within five business days after the commissions are earned. N.Y. Lab. Law §§ 191(c), 191-B and 191-C. 67. The Company, through Mr. Nathan, directly communicated written promises of commissions on or about December 30, 2009. See the e-mails between the parties attached hereto as Exhibits D and E, attached. 68. However, the Company did not fulfill its obligation to pay those commissions to Mr. Harris. 69. The total amount of commissions owed to Mr. Harris, at the time of his termination, was approximately $267,380.00. 11 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 70. More specifically, for calendar year 2010, Mr. Harris should have received $12,694.00 in commissions. However, he received $0.00 in commissions for 2010. 71. For calendar year 2011, Mr. Harris should have received $216,617.00 in commissions. However, he received $0.00 in commissions for 2011. 72. For calendar year 2012, Mr. Harris should have received $38,069.00 in commissions. However, he received $0.00 in commissions for 2011. 73. Additionally, an as-yet uncalculated commission is owed to Mr. Harris for 2016. 74. The excuses given by Mr. Nathan, for failing to pay the commissions, included saying he could not afford it, or by claiming that the written commission plan was not what he intended. 75. None of these excuses relieve the Company's obligation to pay, nor do they provide a legitimate defense under the NYLL. ii. Shorted Salary 76. Furthermore, between the years 2010 and 2015, the Company failed to pay Plaintiff's full promised salary. 77. Ultimately, the amount that Plaintiff was shorted was approximately $88,863.00. 78. More specifically, for calendar year 2010, Mr. Harris should have received $100,000. However, he only received $92,502.00 for 2010. 79. For calendar year 2011, Mr. Harris should have received $125,000.00. However, he only received $110,790.00 for 2011. 80. For calendar year 2012, Mr. Harris should have received $150,000.00. However, he only received $119,952.00 for 2012. 12 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 81. For calendar year 2013, Mr. Harris should have received $150,000.00. However, he only received $143,487 for 2013. 82. For calendar year 2014, Mr. Harris should have received $150,000.00. However, he only received $136,007.00 for 2014. 83. For calendar year 2015, Mr. Harris should have received $150,000.00. However, he only received $133,399.00 for 2015. 84. Mr. Nathan promised a to Mr. Harris - and then after Mr. Harris Incredibly, salary performed the work - justified the shortfall to reduce Mr. by claiming retroactively Harris' salary! 85. Beyond that, Mr. Nathan even demanded that Mr. Harris return some of his already-earned salary. 86. At first,Mr. Nathan demanded that Plaintiff return $5,000.00 of salary that had already been paid. After Plaintiff protested this, Company management ultimately only took back approximately $2,200.00. C. Plaintiff Was Fired Because of His Age and Due to Unlawful Retaliation - Consequently, Management Was Unable to Articulate a Legitimate Reason for Terminating Plaintiff Harris' 87. Mr. date of birth is 1950. He was 65 years old at the time of his termination. Harris' 88. Near to the end of Mr. employment ( i.e., beginning around Autumn 2015), itbecame apparent that the Company's management began to set him up for termination and replacement with two younger persons. 13 of 22 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01 03 : 07 PM INDEX INDEX NO. NO. 650175/2017 650175/2017 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 186 37 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/17/2020 05/31/2019 Harris' 89. At around that time, management began taking away Mr. responsibilities and giving them to Sarah Daitzman (who is approximately 25 years younger than Mr. Harris). 90. Nathan Nathan even reassigned accounts from Mr. Harris to Ms. Daitzman, including the very valuable Target account. 91. Moreover, Mr. Harris was being excluded from important meetings and discussions and management directed others to surreptitiously do work that Mr. Harris used to do. Mr. Harris was even excluded from the interviewing of a new salesperson named Shannon (yet Ms. Daitzman was included in this process). Harris' 92. Also, communications that were ordinarily part of Mr. duties were now being channeled to Ms. Daitzman. Harris' 93. All of this appeared to be deliberately calculated to diminish Mr. job responsibilities to the point wherein the Company could be prepared to terminate him while avoiding a rough transition of his work to the younger replacement. 94. Mr. Harris complained, in or about November 2015 and December 2015, about the mistreatment that the Company was directing toward him. 95. However, Mr. Nathan's only response was to be evasive, dismissive and appear irritated. Mr. Harris told Mr. Nathan, among other things, that itwas wrong for Mr. Harris' wages to be reduced retroactively. 96. Mr. Nathan responded by becoming red-faced, angry and snorting that he did not want to talk about itanymore. 14 of 22 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/17/2020 05/31/2019 03:01