FILED: NEW YORK COUNTY CLERK 08/09/2018 10:45 AM INDEX NO.

157425/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/09/2018

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
___________________________________________________________------------X
DEJA SMITH; DANIELE MARINO;
JAHMILA ADDERLEY; JONOVIA CHASE;
VALERIE SPENCER,

Plaintiffs, Index No. /2018:

-against-

COMPLAINT

JURY TRIAL DEMANDED

TEXAS CHICKEN & BURGERS, LLC.

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,

N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL") and alleges as follows:

Parties

1. Deja Smith, Jonovia Chase, Valerie Spencer, and Jahmila Adderley are each

African-American transgender women.

2, Plaintiffs Deja Smith, Daniele Marino, Jonovia Chase, and Jahmila Adderley are

citizens of New York County, State of New York.

3. Plaintiff Valer.ie Spencer is a citizen of Los Angeles County, State of California.

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4. Daniele Marino, who is gender nonconforming, is an Italian-born, German-raised

immigrant with a green card.

5. Deja Smith is a co-founder of Double-D-Production, along with Daniele Marino

who is also a cofounder and serves as the company's CEO.

6. Jonovia Chase is an employee of FX Network.

7. Jahmila Adderley is an independent artist and CEO of TheJamFam.

8. Valerie Spencer is a nationally-renowned speaker and advocate, who has a

Masters in Social Work and serves on an advisory council to the National Black Justice

Coalition.

9. Defendant TEXAS CHICKEN & BURGERS, LLC ("TCB") is a limited liability

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

New York, Pennsylvania, and Washington, D.C.

Jurisdiction and Venue

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

Frederick Douglass Blvd. in New York, New York.

14. On Sunday, May 27, 2018, Plaintiffs attempted to place a food order at Texas

Chicken & Burgers located at 2144 Frederick Douglass Blvd.

15. Dee began to order nine chicken tenders with fries and a chocolate cake and

represented to the cashier that Plaintiffs would be paying together.

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

Plaintiffs, Deja asked the TCB employee for chicken wings.

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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actions were motivated by animus towards Plaintiffs, he responded unequivocally in the

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

place orders and decide what to order.

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

fish, promptly filled the young man's order.

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

the Plaintiffs is that Plaintiffs are transgender and gender nonconforming.

30. TCB chose to deny service to Deja and her friends solely because they are

transgender and gender nonconforming.

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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

take disciplinary action based on these complaints.

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

place of public accommodation.

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COUNT I
(Discrimination Because of Sex)
'
(New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.) .

37. Plaintiffs incorporate by reference the allegations contained in the previous

paragraphs of the Complaint as if fully rewritten herein.

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).

39. Defendant's Property is a place of public accommodation as defined in the New

York State Human Rights Law.

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

being perceived as having a gender identity, self-image, appearance, behavior or expression

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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43. The foregoing conduct constitutes illegal, intentional discrimination, and

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.

45. As a direct and proximate result of Defendant's unlawful discrimination, in

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

$100,000 for unlawful discriminatory acts found to be willful, wanton, or malicious.

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).

48. By reason of the foregoing, Plaintiffs respectfully request a judgment in a sum

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.) .

49. Plaintiffs incorporate by reference the allegations contained in the previous

paragraphs of the Complaint as if fully rewritten herein.

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

51. The foregoing conduct constitutes illegal, intentional discrimination, and

unjustified disparate treatment prohibited by the NYCHRL.

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.

53. As a direct and proximate result of Defendant's unlawful discrimination, in

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

(Intentional Infliction of Emotional Distress)

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

accommodation was intolerable. Based on the documented discrimination, Defendant's conduct

was extreme and outrageous.

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.

57. As a direct and proximate result of Defendant's unlawful discrimination, in

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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Claims for Relief

WHEREFORE, Plaintiffs pray that the Court enter a judgment in their favor and against

Defendant containing the following relief:

Attorneys'
A. fees, costs, and disbursements of action;

B. Enjoining and permanently restraining Defendant from engaging in the acts, practices,

and omissions complained of herein;

C. Pre-judgment interest and post-judgment interest as provided by law;

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.

10

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Dated: New York, New York

August 9, 2018

Respectfully submitted,

WEITz & LUXENBERG, P.C.

Attorneys for Plaintiffs
700 Broadway
New York, New York 10003
Tel.: (212) 558-5500
Fax: (212) 344-5461

By:
Gennaro Savastano, Esq.
GSavastano@WeitzLux.com

Arthur Luxenberg, Esq.

WEITz & LUXENBERG, P.C.
Attorneys for Plaintiffs
700 Broadway
New York, New York 10003
Tel.: (212) 558-5500
Fax: (212) 344-5461

Ben Crump, Esq.

Ben Crump Law, PLLC
Attorneys for Plaintiffs
122 S. Calhoun St

Tallahassee, FL 32301
Tel: (850) 224-2020
courts@bencrump.com.

11

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------X â€

DEJA SMITH; DANIELE MARINO;

JAHMILA ADDERLEY;JONOVIA CHASE;
VALERIE SPENCER,

Plaintiffs,

-against-

TEXAS CHICKEN & BURGERS, LLC,

Defendant.
______________________----------------X

NOTICE OF COMMENCEMENT OF ACTION

SUBJECT TO MANDATORY ELECTRONIC FILING

PLEASE TAKE NOTICE that the matter captioned above, which

has been commenced by filing of the accompanying documents with
the County Clerk, is subject to mandatory electronic filing
pursuant to Section 202.5-bbof the Uniform Rules for the Trial
Courts. This notice is being served as required by Subdivision
(b) (3) of that Section.

The New York State Courts Electronic Filing System

("NYSCEF") is designed for the electronic filing of documents
with the County Clerk and the court and for the electronic
service of those documents, court documents, and court notices
upon counsel and self-represented parties. Counsel and/or parties
who do not notify the court of a claimed exemption (see below) as
required by Section 202.5-bb(e) must immediately record their
representation within the e-filed matter on the Consent page in
NYSCEF. Failure to do so may result in an inability to receive
electronic notice of document filings.

Exemptions from mandatory e-filing are limited to: 1)

attorneys who certify in good faith that they lack the computer
equipment and (along with all employees) the requisite knowledge
to comply; and 2) self-represented parties who choose not to
participate in e-filing. For additional information about
electronic filing, including access to Section 202.5-bb, consult
the NYSCEF website at www.nycourts.gov/efile or contact Lhe
NYSCEF Resource Center at 646-386-3033/efilewcourts.state.ny.us. .

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Dated: New York, New York

August 9, 2018

WEITZ & LUXENBERG, P.C.

Attorneys for Plaintiffs
700 Broadway
New York, NY 10003

(212) 558-5500
344-5461 - f x
(212)
Email: gsavastan @ eitzlu'.com

By:
Gennaro Savastano, Esq.

TO:

TEXAS CHICKEN & BURGERS, LLC

275 Madison Avenue
Suite 1905
New York, New York 10016

Page-2- -2-

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