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157425/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/09/2018
-against-
COMPLAINT
Defendant.
-----------------------------------------------------------------------X
COMPLAINT
(" Deja"
Plaintiffs Deja Smith ("Deja"), Jonovia Chase ("Jonovia"), Valerie Spencer ("Valerie"), Daniele
Marino ("Dee") and Jahmila Adderley ("Jahmila") bring this action against Defendant Texas
Chicken & Burgers, LLC to seek redress for violations of the New York State Human Rights
Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law,
Parties
1. Deja Smith, Jonovia Chase, Valerie Spencer, and Jahmila Adderley are each
2, Plaintiffs Deja Smith, Daniele Marino, Jonovia Chase, and Jahmila Adderley are
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Masters in Social Work and serves on an advisory council to the National Black Justice
Coalition.
company organized under New York law with its principal place of business in New York, New
York.
10. TCB owns and operates at least 31 restaurants in multiple jurisdictions including
11. This Court has jurisdiction over this action because it is a court of general
jurisdiction in law and equity of the State of New York and the amount in controversy exceeds
the jurisdictional limits of all other courts that would otherwise have jurisdiction.
12. Venue is proper pursuant to CPLR § 503 because the acts giving rise to this action
were committed within the State and County of New York, and venue is properly lodged in this
Court.
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Factual Allegations
13. Texas Chicken & Burgers maintains a place of public accommodation at 2144
14. On Sunday, May 27, 2018, Plaintiffs attempted to place a food order at Texas
15. Dee began to order nine chicken tenders with fries and a chocolate cake and
16. The cashier ignored Dee's request whilst staring at her with absolute disgust.
17. After Dee could not get the cashier's attention despite looking directly at
wings."
18. The employee finally replied to Plaintiffs inquiries, "No
19. Deja then asked the TCB employee for chicken tenders.
tenders."
20. The employee replied, "No
21. After Deja's attempt to order, Valerie inquired with the cashier about a fried fish
special advertised in TCB's window. Despite asking the employee multiple times for the fish
special, and despite total eye contact with the employee, the employee continued to ignore
Valerie's order.
22. Finally, Valerie responded to the employee's blatant and deliberate disregard for
me,"
her existence, by asking him "excuse me sir, are you blatantly ignoring me to disrespect
"yes."
and the employee looked directly at her and responded
Plaintiffs'
23. At no point did the employee take any of the orders. Instead, he
pretended Plaintiffs did not exist, regarded them with complete disgust, and then represented that
Texas Chicken & Burger was out of fish and their eponymous chicken. Finally, when asked if his
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affirmative.
24. Based on the employee's responses to the Plaintiff's attempt to order food for
herself and the other Plaintiffs, Plaintiffs reasonably believed that TCB did not have any chicken
wings or chicken tenders remaining to be sold. Deja stepped aside to allow other customers to
25. Shortly after stepping aside, a white, young male placed an order for nine chicken
tenders. The same TCB employee, who told the Plaintiffs that there were no wings, tenders, or
Plaintiffs'
26. At no point between the order and the young, white male's order did
the employee inform the Plaintiffs that more chicken tenders were available.
27. Upon viewing this interaction, Deja pulled out her cell phone and began to record
as she spoke with other customers. Deja asked one man if he was standing behind her while she
attempted to order food. The man replied that he did witness Deja's attempt to order food and the
employee's denial of this order. Deja asked the man if he successfully ordered chicken tenders
himself, and in video footage the man did leave TCB with his order of chicken tenders.
28. Based upon video footage, chicken tenders were clearly available for purchase
Plaintiffs'
immediately after attempted order, as other customers were served without issue.
29. The only distinguishing feature between the customers served without issue and
30. TCB chose to deny service to Deja and her friends solely because they are
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31. Based upon the documented discrimination, there is failure on behalf of TCB to
properly train management and servers to fulfill their duties in a non-discriminatory manner.
32. There is also failure to report incidents of discrimination and to investigate and
33. On May 29, 2018, TCB posted on its social media a letter admitting to the
shameful incident.
34. The letter stated that the organization believed the incident was the result of an
employee's mistaken belief that the food at issue was indeed sold out, as opposed to the result of
intentional discrimination.
35. The video footage showing the same employee serving the white, male customer
chicken tenders after denying the Plaintiffs the very same food items contradicts this statement.
36. TCB, through willful and wanton conduct, has caused the Plaintiffs serious harm,
including psychological pain and suffering from an indecent and humiliating experience in a
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COUNT I
(Discrimination Because of Sex)
'
(New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.) .
38. The New York State Human Rights Law provides: (a) It shall be an unlawful
discriminatory practice for any person, being the owner, lessee, proprietor, manager,
superintendent, agent or employee of any place of public accommodation.... because of the ... sex
... of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the
accommodations, advantages, facilities or privileges thereof ... to the effect that any of the
accommodations, advantages, facilities and privileges of any such place shall be refused,
withheld from or denied to any person on account of ... their sex ....NYS Executive Law § 296
(2)(a).
40. Defendant is in violation of the New York State Human Rights Law by denying
the Plaintiffs full and safe access to all of the benefits, accommodations and services of the
Subject Facility.
'sex'
41. Pursuant to 9 N.Y.C.R.R. § 466.13(c)(1), "[t]he term when used in the
transgender."
Human Rights Law includes gender identity and the status of being
identity"
42. Pursuant to 9 N.Y.C.R.R. § 466.13(b)(1), "gender means "having or
whether or not that gender identity, self-image, appearance, behavior or expression is different
birth."
from that traditionally associated with the sex assigned to that person at
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unjustified disparate treatment prohibited by the New York State Human Rights Law.
44. In doing so, Defendant acted maliciously and with reckless indifference to
Plaintiffs'
right to be free from discrimination based on their sex.
violation of the Executive Law, Plaintiffs have suffered, and continue to suffer emotional
distress, including, but not limited to humiliation, embarrassment, stress and anxiety.
46. NYS Executive Law § 297(4)(c)(vi) allows for civil fines and penalties up to
47. The Plaintiffs are granted a private right of action by "any person claiming to be
practice,"
aggrieved by an unlawful discriminatory per NYS Executive Law § 297(9).
that exceeds the jurisdiction of all lower courts that would otherwise have jurisdiction, together
attorneys'
with costs, interests and fees.
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COUNT II
(Discrimination Because of Sex)
(New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.) .
50. Pursuant to N.Y.C. Admin. Code § 8-102(23), gender is defined to "include actual
or perceived sex and shall also include a person's gender identity, self-image, appearance,
behavior or expression, whether or not that gender identity, self-image, appearance, behavior or
expression is different from that traditionally associated with the legal sex assigned to that person
birth."
at
52. TCB knew that its actions constituted unlawful discrimination and that it acted
Plaintiffs'
maliciously, showing willful and/or reckless indifference for statutorily protected
rights.
violation of the Executive Law, Plaintiffs have suffered, and continue to suffer emotional
distress, including, but not limited to humiliation, embarrassment, stress and anxiety.
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COUNT III
54. The Defendant denied food for purchase to Plaintiffs at a place of public
accommodation on Sunday, May 27, 2018. Shortly after, the Defendant willingly sold to a white,
cisgender male customer the very same food items denied to Plaintiffs. Video footage shows that
these food items were clearly available. The Defendant's actions were solely upon the basis of
Plaintiffs'
the gender identity and sex.
55. The Defendant's refusal to serve Plaintiffs was discriminatory and beyond the
bounds of human decency. The Defendant's willful humiliation of Plaintiffs in a place of public
56. The Defendant should have known that its discriminatory and humiliating
Plaintiffs'
behavior of denying service in a place of public accommodation would lead to severe
emotional distress.
violation of the Executive Law, Plaintiffs have suffered, and continue to suffer emotional
distress, including, but not limited to humiliation, embarrassment, stress and anxiety.
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WHEREFORE, Plaintiffs pray that the Court enter a judgment in their favor and against
Attorneys'
A. fees, costs, and disbursements of action;
B. Enjoining and permanently restraining Defendant from engaging in the acts, practices,
D. As the Defendant's conduct was willful, wanton, reckless, and/or in conscious disregard
Plaintiffs'
or so reckless as to amount to such disregard of rights, an award of punitive
damages to deter the Defendant, and others in comparable situations, from engaging in
similar conduct;
E. An award of any such other and further relief as the Court may deem just and proper.
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August 9, 2018
Respectfully submitted,
By:
Gennaro Savastano, Esq.
GSavastano@WeitzLux.com
Tallahassee, FL 32301
Tel: (850) 224-2020
courts@bencrump.com.
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Plaintiffs,
-against-
Defendant.
______________________----------------X
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(212) 558-5500
344-5461 - f x
(212)
Email: gsavastan @ eitzlu'.com
By:
Gennaro Savastano, Esq.
TO:
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