Case: 1:15-cv-05221 Document #: 5 Filed: 06/15/15 Page 1 of 7 PageID #:10

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL MILLER,
Plaintiff,
v.
ROSEBUD RESTAURANTS, INC.,
an Illinois corporation,
Defendant.

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No.

PLAINTIFF'S COMPLAINT AT LAW

NOW COMES the Plaintiff, DANIEL MILLER, (MILLER) by and through his
attorneys, The Law Offices of Eugene K. Hollander, and for his Complaint at Law, states
as follows:
JURISDICTION
1.

This is a suit in equity authorized and instituted pursuant to the Civil Rights

Act of 1964, as amended, 42 U.S.C. 2000(e) 2, and pursuant to the Age

Discrimination in Employment Act, 29 U.S.C. 621 et seq. (ADEA). Jurisdiction of
this court is based upon a federal question, 28 U.S.C. 1331. The jurisdiction of this
court is invoked to secure protection of and to address deprivation of rights secured by 42
U.S.C. 2000(e) 2 and 29 U.S.C. 621, providing for declaratory, injunctive and other
relief against employment discrimination based upon national origin and age.
2.

Venue in this district is proper under 28 U.S.C. Sec.1391 (B). The Defendant

resides or resided in this district and the events giving rise to Plaintiffs claims occurred
here.

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PARTIES
3.

MILLER is a citizen of the United States and the State of Illinois. He

currently resides in Bensenville, Illinois.

4.

MILLER was a member of the protected class, age 71, when the unlawful

employment practices occurred.

5.

MILLER also claims his national origin as being Irish.

6.

Defendant Rosebud Restaurants, Inc. is an Illinois corporation and is engaged

in the business of restaurant and food services, (herein, ROSEBUD). ROSEBUD is

engaged in an industry affecting commerce and is currently doing business in the State of
Illinois. It is an employer as that term is defined under Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e(b) and the ADEA, 29 U.S.C. 630 (B)..
BACKGROUND FACTS
7.

MILLER was hired by ROSEBUD in or around 1990. Plaintiffs most recent

position was that of a General Manager.

8.

Throughout his employment with ROSEBUD, MILLER performed to the

companys legitimate expectations.

9.

On or about October 25, 2013, MILLERs employment by ROSEBUD was

terminated.
10.

ROSEBUD replaced MILLER with Nickie Lombardo, age 25, whom

MILLER trained.
COUNT I - AGE DISCRIMINATION IN EMPLOYMENT ACT
WRONGFUL TERMINATION

11.

ROSEBUD, in violation of the provisions of 29 U.S.C. 621, 623 et. seq.,

has denied and continues to deny MILLER an equal opportunity for employment because
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of his age. In particular, ROSEBUD has engaged in and is engaging in the following
unlawful practices with the purpose and effect of denying MILLER equal opportunity:
a. Prior to his termination, MILLER was employed as a General
Manager by ROSEBUD.
b. On or about October 25, 2013, MILLER was terminated, at the age of
71.
c. At all times pertinent hereto, MILLERS work performance satisfied
the legitimate expectations of ROSEBUD.
d. ROSEBUD replaced MILLER with a substantially younger individual
whom MILLER trained.
12.

When MILLER was terminated, he was subjected to age discrimination in that

there was a double standard set up between older employees and younger employees not
included within the protected class. ROSEBUD replaced MILLER with a substantially
younger counterpart.
13.

ROSEBUD knew that the termination of MILLER because of his age violated

the ADEA.
14.

The unlawful employment practices alleged herein were committed within the

State of Illinois.
15.

On April 18, 2014, MILLER filed Charge Number 440-2014-03150 with the

Equal Employment Opportunity Commission (EEOC) alleging age discrimination by

ROSEBUD. A copy of the Charge of Discrimination is attached hereto as Exhibit 1.
16.

On June 2, 2015, the EEOC issued to MILLER a Notice of Right to Sue in

regard to Charge Number 440-2014-03150. A copy of the Notice of Right to Sue is

attached hereto as Exhibit 2.
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17.

This is a proceeding for declaratory judgment as to Plaintiffs right of a

permanent injunction restraining ROSEBUD from maintaining a policy, practice, usage,

or custom of discriminating against MILLER because of his age with respect to the
following: compensation, terms, conditions, and privileges of employment and ways that
deprive MILLER of equal employment opportunities and otherwise adversely affect his
status as an employee, because of age. This complaint also seeks restitution to MILLER
for the denial of all of his rights, privileges, benefits, and income that would have been
received by him, but for ROSEBUDS unlawful and illegal discriminatory practices.
18.

MILLER has no plain, adequate, or complete remedy at law to address the

wrongs alleged, and this suit for injunctive relief is his only means of securing adequate
relief. MILLER is now suffering and will continue to suffer irreparable injury from
ROSEBUDS policy, practice, custom, and usage as set forth herein, until and unless
enjoined by the Court.
19.

Plaintiff demands a jury trial.

WHEREFORE, Plaintiff, DANIEL MILLER, respectfully prays that this

Honorable Court:
a.

Enter a declaratory judgment that the practices complained of herein are

unlawful and violation of the Age Discrimination in Employment Act, as amended;

b.

Permanently enjoin Defendant, their agents, successors, officers,

employees, attorneys, and those acting in concert with it or them from engaging in each
of the unlawful practices, policies, customs, and usages set forth herein, and from
continuing the unlawful practices, policies, customs, and usages set forth herein, and
from continuing any and all practices shown to be in violation of applicable law;

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c.

Order modification or elimination of the practices, policies, customs, and

usages set forth herein and all other such practices shown to be in violation of applicable
law so that they will not discriminate on the basis of age;
d.

Immediately assign MILLER to that job he would now be occupying but

for the discriminatory practices of ROSEBUD, and adjust the wage rates, salaries,
bonuses, and benefits for MILLER to those which he would be enjoying but for the
discriminatory practices of ROSEBUD, or, if this is impossible, award MILLER frontend pay and future pay;
e.

Compensate and make MILLER whole for all earnings, wages, including

prejudgment interest and other benefits that he would have received but for the
discriminatory practices of ROSEBUD;
f.

Award MILLER the costs and disbursements of this action, including

reasonable attorneys fees;

g.

Award MILLER liquidated damages for ROSEBUDS willful conduct,

and grant such relief as may be just and proper.

COUNT II NATIONAL ORIGIN
DISCRIMINATION WRONGFUL TERMINATION
20.

MILLER reincorporates and realleges Paragraphs 1 through 10 as though

more fully set forth herein.

21.

MILLER is a member of a protected class, Irish national origin.

22.

During the course of MILLERs employment by Defendant, he performed to

the Defendants legitimate expectations.

23.

MILLERs employment was terminated on or about October 25, 2013.

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24.

Similarly situated employees, not in MILLERs protected class, did not suffer

an adverse job action.

25.

By terminating MILLERs employment and by creating, condoning, and

perpetuating an environment by which the terms and conditions of employment differ for
members of a protected class, Defendant has intentionally discriminated against the
Plaintiff with malice or with reckless indifference to Plaintiff's federally protected rights
in violation of Title VII of the Civil Rights Act of 1964.
26.

As a result of the intentional acts complained of herein, Plaintiff MILLER has

suffered and will continue to suffer the loss of employment with Defendant and the loss
of salary, bonuses, benefits and other compensation which such employment entails, and
Plaintiff has also suffered pecuniary losses, emotional distress, pain, suffering,
inconvenience, loss of enjoyment of life, and other non-pecuniary losses.
27.

Plaintiff demands a trial by jury.

WHEREFORE, Plaintiff DANIEL MILLER, respectfully prays that this

Honorable Court:
1.

Enter a declaratory judgment that the practices complained of herein are

unlawful and violative of the Civil Rights Act of 1964, as amended by the Civil Rights
Act of 1991;
2.

Permanently enjoin Defendant, its agents, successors, officers, employees,

attorneys and those acting in concert with it or them from engaging in each of the
unlawful practices, policies, customs and usages set forth herein, and from continuing
any and all practices shown to be in violation of applicable law;

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3.

Order modification or elimination of the practices, policies, customs and

usages set forth herein and all other such practices shown to be in violation of applicable
law so that they will not discriminate on the basis of national origin;
4.

Immediately assign Plaintiff to that job he would now be occupying but

for the discriminatory practices of Defendant, and adjust the wage rates, salaries,
bonuses, and benefits for Plaintiff to those which he would be enjoying but for the
discriminatory practices of Defendant, or, if this is impossible, award Plaintiff front-end
pay;
5.

Compensate and make Plaintiff whole for all earnings, wages, including

prejudgment interest and other benefits that he would have received but for the retaliatory
practices of Defendant;
6.

Award Plaintiff the costs and disbursements of this action, including

reasonable attorney's fees;

7.
8.

Award Plaintiff punitive damages for Defendants willful conduct; and

Grant such other relief as may be just and proper.
Respectfully Submitted,
DANIEL MILLER

/s/ Eugene K. Hollander

One of His Attorneys
Eugene K. Hollander
Paul W. Ryan
Jonathan L. Hoeven
The Law Offices of Eugene K. Hollander
230 W. Monroe
Suite 1900
Chicago, IL 60606
(312) 425-9100
ehollander@ekhlaw.com
pryan@ekhlaw.com
jhoeven@ekhlaw.com
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