Sbarro restaurant. Photo: Credit: M Outdoors/Shutterstock.com

The owner and operator of Sbarro pizzeria locations across Florida have been accused of wrongfully firing an employee after she had complained about being racially discriminated against.

A federal lawsuit filed with the Southern District of Florida on Tuesday named Boca Raton businessman Francisco Javier Gavilan and his company Vivaria Group as defendants in a job discrimination claim. The plaintiff, Martha Ugalde, worked as Gavilan's assistant for 12 years before her termination in February.

As recounted in the complaint, the dispute began when Ugalde refused to give Vivaria co-worker Gisele Balbo unauthorized access to the company's computer server account. Balbo, who is married to Gavilan, allegedly referred to the plaintiff as a “fucking Mexican” during the argument.

“Shockingly, rather than protect a loyal employee who had just been the subject of a disgusting, racist verbal attack, Mr. Gavilan decided to punish Ms. Ugalde for mustering the courage to challenge racism and discrimination in the workplace perpetrated by his wife,” the suit said. “Over the course of the next few days, Mr. Gavilan unlawfully retaliated against Ms. Ugalde by suspending her work email account, telling her to not report to work, changing the locks on the office door, clearing out her desk, suspending her from work indefinitely, telling other employees that she was no longer an employee of Vivaria Group, and refusing to inform her when or if she could return to work.”

The lawsuit also alleges Gavilan's brother Juan attempted to intimidate Ugalde and pressure her into dropping her claims.

“On April 2, 2019, Juan Gavilan called Ms. Ugalde on the phone, unsolicited, and told her that his brother, Defendant Gavilan, wanted to meet with her and make a deal 'between [them]' without counsel,” the complaint said. The defendant's brother purportedly told Ugalde that their family had always been good to her, and legal action “would be 'bad for everybody.'”

Read the federal lawsuit: 

Ugalde's two-count complaint charges Gavilan and Vivaria with unlawful retaliatory conduct as well as failing to pay the plaintiff overtime wages in accordance with the Fair Labor Standards Act. Gavilan allegedly classified his former assistant as an overtime exempt employee, “resulting in Defendants' failure to pay her thousands of dollars in overtime wages throughout her tenure.”

The plaintiff has retained the services of Wigdor senior associates Bryan Arbeit and Tanvir Rahman to represent her in the case. Arbeit told the Daily Business Review anyone who finds themselves in his client's circumstances “is smart to reach out to counsel.”

“Before [Ugalde's] complaint … there wasn't anything that would indicate there was an issue at her job,” the New York-based attorney said. “Obviously our client has a right to complain about discrimination and is legally protected for doing so.”

He added, “We're going to litigate this aggressively and make sure that the company and Mr. Gavilan are held accountable.”

The defendants had not entered any filings with the court by press time. Neither Gavilan's legal counsel — Constangy, Brooks, Smith & Prophete partner Angelique Lyons — nor Vivaria replied to requests for comment by deadline.

According to the lawsuit, Vivaria's Sbarro franchises include locations at Miami Beach and Wellington Mall.

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