Texas Chicken & Burgers has responded forcefully to a lawsuit accusing a Harlem outlet of the fast food chain of refusing to serve five transgender and gender non-conforming customers by including video stills in a court filing showing the five apparently being served and a credit card receipt that the chain says shows that one of the five paid for the food they charged they were never permitted to order.
“As more fully set forth herein and as confirmed by clear, unambiguous photographic and other documentary evidence, the Plaintiffs… paid for the food they ordered and were served the food they ordered,” the company wrote in response to the lawsuit that was filed in state court on August 5.
The plaintiffs — Daniele Marino, Deja Smith, Jahmila Adderley, Janovia Chase, and Valerie Spencer — and their attorneys held a press conference outside the Stonewall Inn on August 9 and linked the lawsuit and the restaurant’s actions to the LGBTQ community’s history and ongoing battle for equality under the law.
“These folks are demanding to be heard,” Gennaro Savastano, an associate in the appellate unit at Weitz & Luxenberg, a law firm, and president of the LGBT Bar Association of Greater New York, said at the press conference. “This sort of bravery is exactly what we need at this moment… New York has zero tolerance for transphobia and homophobia.”
Ben Crump, a civil rights attorney, is working on the lawsuit with Weitz & Luxenberg. He flew from his office in Florida to attend the August 9 press conference. Recalling past scenes of civil rights activists who have prompted action to promote or defend civil rights, Crump said at the press conference “We’re going to see if the transgender community can get justice when it’s on video.”
The allegation was that the five were refused service because they are transgender or gender non-conforming when they visited the chain’s outlet on Frederick Douglass Boulevard early in the morning on May 28.
The chain is not only denying that, but has countersued for defamation. In its court filing, the company included date and time-stamped video stills showing the five standing at the outlet’s counter apparently ordering food and then later being offered that food. It also included date and time-stamped order and credit card receipts. The date and time stamps on the stills and receipts show the ordering and transactions occurring at about the same time over roughly seven minutes.
While there is no name on the order and credit card receipts, Paul Pennock, an attorney with Weitz & Luxenberg, wrote in an October 22 response to the chain’s countersuit that the plaintiffs “Admit that Deja Smith gave her credit card to the cashier.” Pennock did not respond to an email seeking comment.
On May 28, Smith used her cellphone to record what occurred in the restaurant after the time when they say they were refused service so if that refusal occurred, there is no known record of it. Smith posted two videos of the encounter on her Instagram page. One received more than 15,500 views and the second more than 33,600 views.
“I am sharing this with all of my 12k+ social media followers,” Smith wrote on Instagram on May 28. “@texaschickenandburgers your Racist and/or Transphobic cashiers basically refused my group of #Trans and #GenderNonComforming friends service in the midst of serving white and cis patrons… I can’t believe this happened in 2018. I am outraged and emotionally shaken.”
The videos received widespread distribution on social media and the press conference was also covered by mainstream and LGBTQ media. Actress Laverne Cox posted one of the videos on her Instagram page where it has received nearly 330,000 views.
“It’s not about the chicken tenders,” Cox wrote on May 28. “It’s about being refused service and being treated like a second class citizen. I love my friends and I am so sad and disappointed and angry this happened to them but I know it happens to trans also gender nonconforming people everyday far too often especially when they are of color.”
As of October 23, those videos were still on Instagram. Cliff Schneider, who represents Texas Chicken & Burgers and is the managing partner at Cohen Schneider Law, declined to comment. The company is seeking an apology and damages.
“The allegations as set forth in the Plaintiffs’ Complaint were pled with intentional disregard for the truth, and the efforts undertaken by Plaintiffs on social and traditional media to paint TC&B as an organization that condones and engages in discrimination of any kind are wholly without merit and do nothing other than strengthen TC&B’s damages for defamation,” the company wrote. “Plaintiffs’ claims should be denied in their entirety, TC&B’s counterclaims should be sustained and damages awarded to TC&B accordingly and an apology should be issued by Plaintiffs to TC&B for the harm they have inflicted.”
The original allegation was that the five were first ignored when they attempted to order and were then told that there was no chicken in the restaurant, which was close to closing. The chain said that the five refused the food after it was prepared and they were given a cash refund. The company posted a statement on its Instagram account on May 29.
“While we regret that our customer did not receive the level of service we would expect from all employees… after a thorough and swift review of the situation, we are confident that the situation was caused by an honest mistake made by the employee when stating that particular food items were sold out, and not the product of any intentional discriminatory treatment as it is portrayed in the video,” the company said.