Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 1 of 10

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David M. Poore, SBN 192541

Scott A. Brown, SBN 177099
BROWN | POORE LLP
1350 Treat Blvd., Suite 420
Walnut Creek, California 94597
Telephone:
(925) 943-1166
dpoore@bplegalgroup.com
James Mills, SBN 203783
LAW OFFICES OF JAMES MILLS
1300 Clay Street, Suite 600
Oakland, California 94612
Telephone:
(510) 521-8748
james@jamesmillslaw.com
Attorneys for Plaintiff
BOB SARLATTE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BOB SARLATTE,

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Plaintiff,

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v.

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SAN FRANCISCO 49ERS, LTD; E2K; and

DOES 1 through 10, inclusive,

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Defendants.

Case No.
COMPLAINT FOR DAMAGES,
EQUITABLE AND/OR INJUNCTIVE
RELIEF
VIOLATIONS OF THE AGE
DISCRIMINATION IN EMPLOYMENT
ACT, 29 U.S.C. 621 ET. SEQ.;
VIOLATIONS OF THE FAIR
EMPLOYMENT AND HOUSING ACT,
GOVERNMENT CODE 12940, ET. SEQ.;
WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY
JURY TRIAL DEMANDED

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-1COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 2 of 10

Plaintiff BOB SARLATTE complains and alleges as follows:

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PARTIES AND JURISDICTION

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Plaintiff BOB SARLATTE is, and at all relevant times hereto, has been a resident

of the State of California.

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2.

Plaintiff is informed and believes and thereby alleges that Defendant SAN

FRANCISCO 49ERS, LTD, a limited partnership (49ers or Defendant) is a professional

football team with the National Football League (NFL), which maintains its principal offices
and/or principal place of business in this judicial district in the State of California.

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3.

At all relevant times, Defendant 49ers was an employer in the State of California,

and, as such, was prohibited from discriminating in the terms and conditions of employment on
the basis of any protected category, including the fact that an employee is over the age of 40
years. Defendant 49ers employed more than 20 full-time employees, and, as such, was an
employer within the meaning of the California Fair Employment and Housing Act (FEHA), and
the Age Discrimination in Employment Act (ADEA).

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4.

Plaintiff is informed and believes and thereby alleges that Defendant E2K is a

business that conducts operations in the State of California. Defendant E2Ks business form is
presently unknown.

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5.

At all relevant times, Defendant E2K was an employer in the State of California,

and, as such, was prohibited from discriminating in the terms and conditions of employment on
the basis of any protected category, including the fact that an employee is over the age of 40
years. Defendant 49ers employed more than 20 full-time employees, and, as such, it was an
employer within the meaning of the California Fair Employment and Housing Act (FEHA), and
the Age Discrimination in Employment Act (ADEA).
-2COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF
SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 3 of 10

6.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

Sections 1331 and 1367, in that Plaintiff is asserting federal claims, including violations of the

ADEA, and the Court has supplemental jurisdiction over Plaintiffs state law claims, in that they

arise from the same common nucleus of operative facts.

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7.

Venue is proper in the Northern District of California, in that Plaintiff was

employed by Defendant 49ers in this judicial district.

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8.

Plaintiff is unaware of the true identity, nature and capacity of each of the

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Defendants designated herein as a DOE, whether individual, corporate, associate or otherwise,

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who therefore sues such Defendants by fictitious names pursuant to California Code of Civil

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Procedure 474.

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Defendants designated herein as a DOE is in some manner responsible for the damages and

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injuries as are alleged in this Complaint. Upon learning the true identity, nature and capacity of

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the DOE Defendants, Plaintiff will amend this Complaint to allege their true names and

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capacities.

Plaintiff is informed and believes and thereby alleges that each of the

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9.

Plaintiff has exhausted all administrative remedies with the Department of Fair

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Employment and Housing (DFEH) and the United States Equal Employment Opportunity

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Commission (EEOC) and Plaintiff has received the appropriate and timely right-to-sue letters.

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The EEOC issued Plaintiff a right-to-sue letter within the past 90 days. Moreover, at least 60

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days has passed since Plaintiff filed his administrative charges with the EEOC, alleging violations

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of the ADEA.

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10.

Unless otherwise indicated as acting in individual capacity, Plaintiff is informed

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and believes, and thereby alleges that each of the Defendants herein were at all times relevant

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hereto, the agents, representatives, servants and employees of the remaining Defendants, and

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-3COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 4 of 10

were acting at least in part within the course and scope of such relationship, and that the wrongful

acts alleged herein were committed by such Defendants, and each of them.

Defendants 49ers and E2K engaged Plaintiff in the employment relationship as joint employers.

Moreover,

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FACTUAL BACKGROUND

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Plaintiff Bob Sarlatte is a former employee of Defendant 49ers. Defendant 49ers

hired Plaintiff in or about 1984, and Plaintiff has been a member of the Forty Niners

Entertainment Staff since approximately September 10, 1984. Plaintiff had an outstanding

employment record, and he performed his duties and responsibilities as a 49ers employee in an

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excellent manner for approximately 30 years. Plaintiff was known throughout the decades as the

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San Francisco 49ers Game Announcer.

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Throughout his employment with Defendant 49ers, Plaintiff was hired through

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several third party intermediaries, including Defendant E2K, but Defendant 49ers controlled all

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aspects of the employment relationship for approximately 30 years. Defendants engaged in a

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joint employment relationship, but the 49ers made all pertinent employment decisions.

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Defendant 49ers controlled the means and manner in which Plaintiff conducted his announcing

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duties, including providing detailed scripts and other necessary terms and conditions of

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employment; Defendant 49ers continued to employ Plaintiff as an announcer for approximately

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30 years notwithstanding which shell company or intermediary that facilitated the employment

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relationship on any given year; Defendant 49ers exercised complete discretion over when and

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how Plaintiff worked and conducted his job duties and responsibilities; Defendant 49ers

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controlled the means and methods of payment; Defendant 49ers had discretion to make all

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employment actions and decisions; Defendant 49ers assigned additional duties, as required,

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including such events as Alumni Day; and Defendant 49ers communicated the termination

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decision to Plaintiff, not E2K, as part of Defendant 49ers effort to reduce Defendants older

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employees.

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-4COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 5 of 10

13.

During this period of time, Plaintiff is informed and believes that Defendant San

Francisco 49ers engaged in a pattern and practice of eliminating its older workers, while

attempting to rebrand the team as a younger, technology driven organization.

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14.

In 2010, Jed York, the CEO of the 49ers, was actively looking for additional

revenue streams for the 49ers, including making attempts to move the San Francisco 49ers to a

new stadium in Silicon Valley, so that the 49ers could be rebranded as a team within the NFL that

was technology driven. As part of that strategy, York hired Gideon Yu, a former executive at

Facebook, YouTube, and Yahoo. Mr. York hired Mr. Yu as the 49ers Chief Strategy Officer,

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and, in April 2011, York informed the employees that Mr. Yu would be working closely with him

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to re-brand the 49ers as a technology startup within the NFL, so that they could achieve their

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objective of moving the 49ers to a new stadium in Silicon Valley. When Mr. Yu arrived for work

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at the 49ers, he openly referred to the older workers as legacy employees, a discriminatory term

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used to describe older employees in Silicon Valley.

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As part of that technology strategy, in December 2012, Mr. York openly admitted

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that he wanted to hire the predominantly younger technology workers from the neighboring

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Silicon Valley technology companies. When asked why the 49ers wanted to hire these young

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technology workers, York said, Because they made a lot of money, they did a lot of cool things

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before they turned 40 years old, and they dont want to go play golf six days a week. As a

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result, York and his staff engaged in an active strategy to quietly recruit younger technology

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workers to join the management and senior leadership ranks of the 49ers.

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In order to make room for the younger technology workers, York engaged in a

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campaign to terminate the older, senior employees within the 49ers organization. For example,

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York and his senior management staff made disparaging remarks about older workers, made

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active attempts to eliminate his older management staff, including repeated violations of the

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-5COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 6 of 10

Older Workers Benefit Protection Act, and actively recruited younger employees to replace what

he perceived to be an aging staff.

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17.

During this period of time, when Defendant 49ers terminated these older

employees, it simply told them that they were going in a different direction, without any further

explanation.

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18.

In 2014, after completing the final events of the 49ers football season, Defendant

49ers Manager not E2K contacted Plaintiff on the telephone, and Defendant informed

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Plaintiff that it was terminating his employment as the San Francisco 49ers Announcer, after

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approximately 30 years of successful service to the organization.

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When Plaintiff asked for a reason for the termination, Defendant 49ers Manager

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told Plaintiff that the team was going in a different direction. When Plaintiff pressed for a

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legitimate explanation surrounding his termination, the 49ers Manager kept repeating himself,

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saying the team was going in a different direction. After continued pressing, the Manager became

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obviously evasive, and told Plaintiff that they were eliminating the Announcer position. Plaintiff

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later learned that this explanation was false, and not worthy of any credence, as Defendant 49ers

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immediately hired a substantially younger Announcer to take Plaintiffs job position for the next

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season.

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Plaintiff Bob Sarlatte was 66 years old at the time of his termination.

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FIRST CAUSE OF ACTION

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(Violations of the ADEA Defendants San Francisco 49ers, E2K and DOES 1 to 10)

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21.

Plaintiff realleges and incorporates by reference Paragraphs 1 through 20 of this

Complaint as though fully set forth herein.

-6COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF
SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 7 of 10

22.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621, et. seq.,

prohibits an employer from discriminating in the terms and conditions of employment based upon

the fact that an employee is over the age of 40 years old.

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23.

Defendants violated the ADEA with regard to Plaintiff when it discriminated

against Plaintiff on the basis of age, and terminated Plaintiffs employment because of the fact

that Plaintiff is over the age of 40 years old.

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24.

Defendants conduct toward Plaintiff as alleged above, constitutes an unlawful

employment practice in violation of the ADEA.

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25.

As a direct and proximate result of Defendants conduct, Plaintiff has suffered

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damages in an amount to be proven at trial.

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reinstatement to his former position.

Plaintiff also seeks the equitable remedy of

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26.

Defendants conduct is properly characterized as willful under the ADEA, and,

as a result, Defendants are liable for liquidated damages.

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SECOND CAUSE OF ACTION

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(Violations of FEHA Defendants San Francisco 49ers, E2K, and DOES 1 to 10)

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Plaintiff incorporates herein by reference all of the allegations contained in

paragraphs 1 through 26 of this Complaint as fully set forth herein.

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28.

California Government Code 12940 prohibits an employer from discriminating

against workers over the age of 40 years old, in the terms and conditions of employment.

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-7COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 8 of 10

29.

Defendants violated California Government Code 12940 when they engaged in

discriminatory practices, as alleged above, based upon the fact that Plaintiff was an older worker

over the age of 40 years.

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30.

As a direct and proximate result of Defendants discriminatory acts, Plaintiff has

suffered loss of employment opportunities, loss of dignity, great humiliation, and emotional

injuries manifesting in physical illness and emotional distress.

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31.

Defendants actions have caused and continue to cause Plaintiff substantial losses

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in earnings, significant reputation and professional injury, loss of promotional opportunities and

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other employment benefits, lost wages, attorneys fees, future earnings and benefits, costs of suit,

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embarrassment and anguish, in an amount according to proof.

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32.

The acts of the Defendants as alleged herein, were intentional, outrageous,

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despicable, oppressive, fraudulent, and done with ill will and intent to injure Plaintiff and to cause

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mental anguish, anxiety, and emotional distress.

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committed by managing agents, officers, and/or directors of the Defendants, or ratified by the

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Defendants.

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emotional harm to Plaintiff and with the intent to injure Plaintiff, constituting oppression, fraud,

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malice under California Civil Code 3294, entitling Plaintiff to punitive damages.

The acts of the Defendants were further

The Defendants acts were done in conscious disregard of the risk of severe

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THIRD CAUSE OF ACTION

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(Wrongful Termination in Violation of Public Policy Defendant San Francisco 49ers, E2K,

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and DOES 1 to 10)

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33.

Plaintiff incorporates herein by reference all of the allegations contained in

paragraphs 1 through 32 of this Complaint as fully set forth herein.

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-8COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 9 of 10

34.

It is the fundamental public policy of the State of California that employers, like

the 49ers and E2K, shall not discriminate against employees on the basis of age, including the

fact that Plaintiff is over the age of 40 years. These fundamental public policies are embodied in

the California Fair Employment and Housing Act, Government Code 12940, et. seq., and the

ADEA and OWBPA. These public policies of the State of California were substantial,

fundamental, and well established at the time the Plaintiff was terminated.

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35.

In acting as alleged herein, Defendants wrongfully terminated Plaintiff in violation

of these public policies.

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36.

As a direct and proximate result of Defendants conduct, Plaintiff has suffered loss

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of employment, indignity, great humiliation and emotional distress manifesting in physical

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symptoms.

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37.

Defendants actions have caused and continue to cause Plaintiff substantial losses

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in earnings, significant reputation and professional injury, loss of promotional opportunities and

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other employment benefits, lost wages, attorneys fees, future earnings and benefits, cost of suit,

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humiliation, embarrassment and anguish, in an amount according to proof.

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38.

The acts of the Defendants as alleged herein, were intentional, outrageous,

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despicable, oppressive, fraudulent, and done with ill will and intent to injure Plaintiff and to cause

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mental anguish, anxiety, and emotional distress.

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committed by managing agents, officers, and/or directors of the Defendants, or ratified by the

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Defendants.

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emotional harm to Plaintiff and with the intent to injure Plaintiff, constituting oppression, fraud,

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malice under California Civil Code 3294, entitling Plaintiff to punitive damages.

The acts of the Defendants were further

The Defendants acts were done in conscious disregard of the risk of severe

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-9COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS

Case 5:16-cv-02661-NC Document 1 Filed 05/17/16 Page 10 of 10

PRAYER FOR RELIEF

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Wherefore, Plaintiff prays for judgment against Defendants, and each of them as follows:

1. For general damages in an amount according to proof;

2. For special damages in an amount according to proof;

3. For prejudgment interest in an amount according to proof;

4. For punitive damages in an amount according to proof;

5. For equitable and/or injunctive relief;

6. For statutory penalties, including liquidated damages;

7. For reasonable attorneys fees and cost of suit therein;

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8. For such other and further relief as the court may deem proper.

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9. Plaintiff demands a trial by jury.

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Dated: May 17, 2016

BROWN | POORE LLP

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By:

//s// David M. Poore

David M. Poore
Attorneys for Plaintiff

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-10COMPLAINT FOR DAMAGES, EQUITABLE, AND/OR INJUNCTIVE RELIEF

SARLATTE V. SAN FRANCISCO FORTY-NINERS