UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HUGH M. ROSENTHAL,

an individual, Case No.:

Plaintiff, Hon:

Magistrate:

 vs

NATIONAL BEVERAGE CORP.,

a foreign profit corporation, and

FAYGO BEVERAGES, INC.,

a domestic profit corporation,

Defendants.

__________________________________________________________________

BURGESS & SHARP, PLLC

Attorneys for Plaintiff

By: Syeda F. Davidson, P72801

Joseph A. Golden, P14105

43260 Garfield, Suite 280

Clinton Township, MI 48038

586-226-2627

syeda@burgess-sharp.com

joseph@burgess-sharp.com

__________________________________________________________________/

COMPLAINT AND DEMAND FOR JURY TRIAL

Hugh M. Rosenthal (“PLAINTIFF”), through his attorneys at Burgess &

Sharp, PLLC, states the following for his Complaint against National Beverage 

Corp. and Faygo Beverages, Inc. (“DEFENDANTS”):

1. Plaintiff is a resident of the City of Farmington Hills, County of 

Oakland, State of Michigan.

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2. National Beverage Corp. is a Foreign Profit Corporation, which 

conducts substantial business throughout the State of Michigan.

3. Faygo Beverages, Inc. (“FAYGO”) is a Domestic Profit 

Corporation which is incorporated in and conducts substantial 

business throughout the State of Michigan.

4. Faygo is a wholly-owned subsidiary of National Beverage 

Corp.

5. This court has jurisdiction under the Age Discrimination in 

Employment Act, 29 USC et seq., and has pendant jurisdiction 

over state law claims under 28 USC 1367(a).

GENERAL ALLEGATIONS

6. Plaintiff incorporates the preceding paragraphs by reference.

7. Plaintiff was hired as the Director of Marketing at Faygo in 

October of 1992. 

8. Plaintiff’s date of birth is September 15, 1943.

9. Pursuant to an agreement made upon Plaintiff’s hire, he 

incorporated “Rosenthal and Company” to receive payment 

from Defendant on October 5, 1992. 

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10.The reason for the incorporation of Rosenthal and Company 

was so that Plaintiff could obtain advertising agency discounts 

for Defendant’s benefit. 

11.Faygo then entered into an agreement with Rosenthal and 

Company on October 6, 1992, thereby creating a vehicle for 

Faygo to treat Plaintiff as an independent contractor instead of 

an employee. 

12.Plaintiff was an employee of Defendants. 

13.Defendants maintained the ability to control the manner and 

means by which Plaintiff’s duties were accomplished, 

including, but not limited to the following: providing Plaintiff 

with business cards and a name badge identifying him as 

“Faygo Director of Marketing;” paying Plaintiff a regular salary 

plus a bonus; requiring Plaintiff to attend weekly management 

meetings; prohibiting Plaintiff or Rosenthal and Company from 

working for any other companies; providing Plaintiff with an 

office, computer, and company e-mail; setting Plaintiff’s hours 

and working conditions; subjecting him to employment policies 

and training; and directing members of its management to 

supervise Plaintiff. 

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14.Plaintiff worked diligently for Defendants and received 

substantial bonuses throughout the twenty years that he was 

employed by them.

15.Throughout the last few years of Plaintiff’s employment with 

Defendants, members of Faygo’s senior management team 

often asked Plaintiff when he would retire, or why he had not 

yet retired.

16.On November 21, 2011, Plaintiff discovered a posting on 

Careerbuilder.com for a Brand Manager, which listed duties 

identical to that of Plaintiff’s position as the Director of 

Marketing.

17.Plaintiff immediately asked Faygo’s Human Resources Director 

if the posting was for his position. 

18.Plaintiff was informed that he was going to train his 

replacement and then be terminated. 

19.Plaintiff was sixty-eight years old at the time that the Brand 

Manager position was posted.

20.Plaintiff was terminated on July 24, 2012. 

21.Plaintiff was replaced by a younger employee. 

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22.On July 24, 2012, Plaintiff filed timely Charges of 

Discrimination with the Equal Employment Opportunity 

Commission (“EEOC”) and the Michigan Department of Civil 

Rights (“MDCR”). 

23.Plaintiff received a Notice of Right to Sue from the EEOC

dated April 1, 2014.

COUNT I

VIOLATION OF THE AGE DISCRIMINATION IN EMPLOYMENT

ACT OF 1967, AS AMENDED, 29 USC 621 ET SEQ.

24.Plaintiff incorporates the preceding paragraphs by reference.

25.At all material times, Plaintiff was an employee, and 

Defendants were his employers, covered by and within the 

meaning of the Age Discrimination in Employment Act of 

1967, as Amended, 29 USC 621 et seq. 

26.At all relevant times, Plaintiff was qualified for his position as 

Director of Marketing.

27.Plaintiff was sixty-eight years old at the time that Defendants 

terminated him.

28.Plaintiff’s age was the sole factor in the decision to terminate 

him.

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29.Plaintiff was replaced by a younger male when he was 

terminated.

30.Defendants’ actions were intentional, in disregard for Plaintiff’s 

rights and sensibilities.

31.The reasons given for Plaintiff’s termination by Defendants 

were inaccurate, untrue, or otherwise in violation of Plaintiff’s 

statutory rights. They were manufactured as a pretext to cover 

up Defendants’ intent to discriminate against Plaintiff because

of his age.

32.As a result of Defendants’ illegal discrimination due to 

Plaintiff’s age, Plaintiff suffered lost wages, lost benefits, loss 

of future wages, emotional distress, and loss of employment 

advancement opportunities.

Plaintiff respectfully requests that this Honorable Court grant whatever legal 

or equitable relief it finds necessary to compensate Plaintiff for his lost wages, 

lost benefits, loss of future wages, compensatory damages, punitive damages, 

loss of employment and advancement opportunities, and emotional distress 

resulting from Defendants’ violation of the Age Discrimination in Employment 

Act of 1967, as Amended, as well as attorney fees and costs.

COUNT II

VIOLATION OF THE ELLIOT-LARESEN CIVIL RIGHTS ACT,

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MCL 37.2201 ET SEQ.

33.Plaintiff incorporates the preceding paragraphs by reference.

34.At all material times, Plaintiff was an employee, and 

Defendants were his employers, covered by and within the 

meaning of the Michigan Elliot-Larsen Civil Rights Act, 

MCLA 37.2101 et seq.

35.Plaintiff was sixty-eight years old at the time of his termination.

36.At all relevant times, Plaintiff was qualified for the position of 

Director of Marketing.

37.Plaintiff’s age was a factor in the decision to terminate him.

38.Had Plaintiff been a younger person, he would not have been 

terminated.

39.Other similarly situated employees who were younger than 

Plaintiff were not terminated.

40.Plaintiff was replaced by a younger male when he was 

terminated.

41.Defendants’ actions were intentional, in disregard for Plaintiff’s 

rights and sensibilities. 

42.The reasons given for Plaintiff’s termination by Defendants 

were inaccurate, untrue, or otherwise in violation of Plaintiff’s 

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statutory rights. They were manufactured as a pretext to cover 

up Defendants’ intent to discriminate against Plaintiff because 

of his age. 

43.As a direct result of Defendants’ illegal discrimination because 

of Plaintiff’s age, Plaintiff suffered lost wages, lost benefits, 

loss of future wages, emotional distress, and loss of 

employment advancement opportunities. 

Plaintiff respectfully requests that this Honorable Court grant whatever legal 

or equitable relief it finds appropriate to compensate Plaintiff for his lost wages, 

lost, benefits, loss of future wages, compensatory damages, exemplary 

damages, loss of employment and advancement opportunities, and emotional 

distress resulting from Defendants’ violation of the Elliot-Larsen Civil Rights 

Act, as well as attorney fees and costs. 

Dated: June 18, 2014

BURGESS & SHARP, PLLC

/s/ Syeda F. Davidson_______

43260 Garfield, Suite 280

Clinton Township, MI 48038

(586) 226-2627

e-mail: syeda@burgess-sharp.com

P72801

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DEMAND FOR JURY TRIAL

NOW COMES Plaintiff, HUGH ROSENTHAL, by and through his 

attorneys, BURGESS & SHARP, PLLC, and hereby makes a demand for a trial by 

jury in the above-entitled matter.

BURGESS & SHARP, PLLC

/s/ Syeda F. Davidson_______

43260 Garfield, Suite 280

Clinton Township, MI 48038

(586) 226-2627

e-mail: syeda@burgess-sharp.com

P72801

Dated: June 18, 2014

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