Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
PAOLA MARTINEZ, and K.M., * a minor child, * * CIVIL ACTION FILE Plaintiffs, * * No. -vs- * * WAFFLE HOUSE, INC., * * JURY TRIAL DEMANDED Defendant. *
COMPLAINT
NATURE OF THE CASE
1.
This civil rights action concerns race discrimination arising out of the purchase of food at a Waffle House restaurant in Doraville, Georgia. The plaintiffs, who are of Mexican decent, were berated with racial epithets by the white manager-cook as they ordered food from their table, ultimately choosing to have their meals prepared “to go” rather than staying in the toxic environment. Once at home, the plaintiffs discovered that the manager intentionally messed up the orders by, among other vile acts, covering their meals with trash.
PARTIES
2.
Plaintiff Paola Martinez (“Paola”) is a woman of Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 2 of 14
Mexican descent, a United States citizen, and a resident and citizen of the State of Georgia.
3.
Plaintiff K.M. is the minor child of Paola and was five years old when these events occurred. Paola is the parent, guardian and next friend of K.M. (“K.M.”).
4.
Defendant Waffle House, Inc. (“Waffle House”) is a domestic corporation with its principal office address at
5986 Financial Drive, Norcross Georgia 30071.
VENUE
5.
All acts or omissions alleged in this complaint occurred, and all parties are situated, in the Northern
District of Georgia and therefore venue is properly within this district under 28 U.S.C. § 1391(b)(2).
JURISDICTION
6.
Jurisdiction for this suit is conferred in part by 42
U.S.C. § 1981.
7.
Under 28 U.S.C. §§ 1331 and 1343(a)(3)&(4), the Court can entertain an action to redress a deprivation of rights guaranteed by the United States Constitution, and the Court Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 3 of 14
has jurisdiction under 28 U.S.C. § 1367 to hear an action to redress a deprivation of rights guaranteed by the laws and
Constitution of the State of Georgia.
FACTS
8.
On February 5, 2017, at around 9:00 p.m., the plaintiffs and Oscar Herrera (“Oscar”) entered a Waffle
House restaurant (Store #500) located at 5467 Buford
Highway, Doraville, Georgia. (At the time, Paola and Oscar were wife and husband.)
9.
Paola, Oscar and K.M. were seated in a booth adjoining the cooking area.
10.
A young female server approached the booth and began taking the plaintiffs’ order. As the server was speaking with the plaintiffs, the manager (who was also serving as the cook)(“the Manager”) was listening. The Manager is a white male in his 30s or 40s.
11.
The Manager listened as Paola ordered a chicken sandwich with no onions, Oscar ordered a steak with hash browns and eggs, and K.M. ordered a waffle with chocolate chips. Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 4 of 14
12.
Paola asked the server to ensure that no onions were on the food, as both Paola and K.M. are allergic to onions, and
K.M. sometimes eats from Paola’s and Oscar’s plates.
13.
Before the server left the table to submit the order, the Manager yelled, “I don’t wanna serve f**king beaners” and referred to the family as “dirty beaners.” This prompted Paola to immediately say to the Manager, “Excuse me. What did you say?” To which the Manager responded, “No hablo ingles.”
14.
K.M. turned to the Manager and said, “We speak
English.” K.M. had a slight speech impediment (her tongue was surgically clipped as an infant).
15.
In response the Manager mocked K.M. by repeating the phrase “we speak English” as if he were a child with speech or developmental issues.
16.
The female server was noticeably embarrassed and mouthed the words “I’m sorry” to the plaintiffs and Oscar; the Manager continued muttering epithets under his breath about “beaners” coming to the United States. Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 5 of 14
17.
Under his breath, the Manager was muttering things like, “Why don’t they deport you to Mexico?” Clearly upset,
K.M. asked Paola, “Mommy, why did he call us dirty
Mexicans?”
18.
A white man who was dining in the adjacent booth heard everything and told K.M. not to listen to the Manager. The
Manager did not treat him poorly.
19.
Around that time, Paola asked that their order be changed to a “to go” order. After the server dropped off the check, Paola got a $100 bill from Oscar and went to the cash register to pay. When Paola presented the $100 bill, the Manager said, “I bet this is drug money, so why don’t you take it to Taco Bell?”
20.
The Manager followed this statement by saying “she should have been deported,” referring to Paola. By this time, Oscar had taken K.M. outside of the restaurant.
21.
Paola paid the check, and the family left the restaurant with their food in “to go” containers inside tied bags. Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 6 of 14
22.
After they arrived home, Paola and Oscar opened the bags and food containers to find that there were onions covering everything; even the waffle had onions cooked into it, but no chocolate chips.
23.
In addition to the onions, there was hair and open condiment packets strewn over the food, the toast was burnt, and Oscar’s steak was raw.
24.
K.M. told her mother that she wanted to take a shower because she was “a dirty Mexican.” Even though it was late and a school night, K.M. took a shower.
25.
Paola immediately called the Waffle House store that they had just left. A man answered and Paola asked to speak to the manager. The man replied that he was the manager, saying, “I know who you are. I was giving you a taste of home sweet home.”
26.
Distressed, Paola hung up the phone. Later that night,
Paola went online and made complaints using Waffle House’s corporate website in both her name and in Oscar’s. Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 7 of 14
27.
The next day, Monday, a male executive with Waffle
House called Paola to apologize and state that the incident would be investigated. Also on that day, a female executive with Waffle House called Paola to discuss the incident. In these conversations, Paola learned that there was video of the incident. The female manager asked Paola to sign a waiver. Paola declined.
28.
A couple of days later, on February 8, Waffle House’s
Vice President, Pat Warner, wrote a letter to Paola asking her to “accept our apologies for disappointing you on a recent visit to Waffle House 500,” and he enclosed a $15 gift certificate “valid at participating Waffle House restaurants” for dine-in only.
29.
The next day, February 9, Waffle House’s Customer
Service Supervisor, Mitch Skandalakis, wrote to Oscar acknowledging the “recent complaint of discrimination.”
Skandalakis stated the complaint would be “investigated by
Terri Snoke, Case Manager, who will review information related to your complaint, interview available witnesses and recommend resolution based on her findings....” Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 8 of 14
30.
Meanwhile, back on Monday (February 6), K.M. was at her public pre-k school and was shying away from her classmates.
K.M.’s behavior was unusual enough that her teacher spoke to her about it. K.M. explained that she was “a dirty
Mexican,” and that she did not want to “get her friends dirty.” Later that day, both K.M.’s teacher and a school administrator called Paola to explain the situation.
31.
The school suggested that Paola take K.M. to professional counseling with a licensed psychologist in
Atlanta. Over the next few months, K.M. attended a number of clinical sessions.
32.
Notwithstanding Mr. Shandalakis’s letter of February 9 letter (see ¶ 29), neither Ms. Snoke nor any other person affiliated with Waffle House contacted the plaintiffs.
33.
Upon information and belief, the Manager was still employed by Waffle House and working at the same location weeks after the incident.
34.
As a direct and proximate cause of the actions of the
Waffle House, the plaintiffs have experienced humiliation, Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 9 of 14
depression, extreme anxiety, and emotional distress.
COUNT 1
(42 U.S.C. § 1981:
Discrimination in Contractual Relations)
35.
The plaintiffs reallege each fact set forth in paragraphs 1 through 34 of this complaint and incorporate them here by reference.
36.
The plaintiffs are members of a protected class based on race.
37.
Waffle House intended to and did discriminate based on the plaintiffs’ race.
38.
Waffle House discriminated against the plaintiffs based on their race and interfered with the plaintiffs’ ability to make, perform, modify, or terminate contracts, or the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship with Waffle House.
Specifically, the plaintiffs were treated dissimilarly based on their race and were refused proper service.
39.
Waffle House’s denial of the plaintiffs’ rights Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 10 of 14
constitutes discrimination under 42 U.S.C. § 1981.
COUNT 2
(Intentional Infliction of Emotional Distress)
40.
The plaintiffs reallege each fact set forth in paragraphs 1 through 34 of this complaint and incorporate them here by reference.
41.
Waffle House’s refusal to properly serve the plaintiffs, and the public comments humiliating the plaintiffs, were intentional or reckless, extreme and outrageous, and caused severe emotional distress.
42.
Waffle House committed the tort of intentional emotional distress.
COUNT 3
(Tortious Misconduct)
43.
The plaintiffs reallege each fact set forth in paragraphs 1 through 34 of this complaint and incorporate them here by reference.
44.
Waffle House owed a duty to the plaintiffs, who were customers lawfully in the establishment by implied Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 11 of 14
invitation for the purpose of transacting business, to protect them against the use of any discriminatory requirements tending to humiliate, mollify, and wound the feelings of the plaintiffs.
45.
Waffle House breached that duty by refusing to properly serve the plaintiffs and publically humiliating them causing the plaintiffs to suffer great damages.
COUNT 4
(Negligence)
46.
The plaintiffs reallege each fact set forth in paragraphs 1 through 34 of this complaint and incorporate them here by reference.
47.
Waffle House owed a duty to properly serve the plaintiffs food in a safe and a reasonable manner.
48.
Waffle House breached its duty when it placed onions, hair, and trash on the plaintiffs’ meals and publically humiliated them with racial epithets.
49.
Waffle House’s acts were a direct and proximate cause of harm to the plaintiffs. Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 12 of 14
50.
Waffle House has caused the plaintiffs significant damage for which the plaintiffs are entitled to relief.
COUNT 5
(O.C.G.A. § 51-12-5.1: Punitive Damages)
51.
The plaintiffs reallege each fact set forth in paragraphs 1 through 34 of this complaint and incorporate them here by reference.
52.
Waffle House’s actions described in this complaint were willful and intentional misconduct, malice, wantonness, oppression or, at the very least, displayed a want of care showing a conscious indifference to consequences as contemplated under O.C.G.A. § 51-12-5.1.
COUNT 6
(O.C.G.A. § 13-6-11: Attorney’s Fees)
53.
The plaintiffs reallege each fact set forth in paragraphs 1 through 34 of this complaint and incorporate them here by reference.
54.
By their acts and omissions specified above, as well as other conduct, Waffle House has acted in bad faith, and has Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 13 of 14
caused the plaintiffs unnecessary trouble and expense.
55.
As a result of Waffle House’s actions, the plaintiffs are entitled to recover their actual expenses of litigation, including attorney’s fees, from the defendant.
WHEREFORE, the plaintiffs pray:
(a) that as to Counts 1 through 5, the Court award the
plaintiffs compensatory and punitive damages (see
Count 5) against Waffle House for the wrongful
acts and omissions of its employee/servant/agent
(the Manager), in an amount to be determined by
the enlightened conscience of an impartial jury;
(b) that as to Count 6, the Court award the plaintiffs
reasonable costs and attorney’s fees in bringing
this action in an amount to be determined at
trial;
(c) that the plaintiffs be granted a trial by jury on
all issues so triable; and
(d) that the plaintiffs be granted such other and
further relief as this Court deems just and
proper. Case 1:19-cv-00593-JPB Document 1 Filed 02/04/19 Page 14 of 14
Respectfully submitted,
BY: /s/ Cary S. Wiggins Cary S. Wiggins Ga. Bar No. 757657
Wiggins Law Group, LLC Suite 401 260 Peachtree Street, NW Atlanta, GA 30303 Telephone: (404) 659-2880 www.wigginslawgroup.com
BY: /s/ Gloria Allred Gloria Allred Ca. Bar No. 065033 Pro Hac Vice pending
Allred, Maroko & Goldberg 6300 Wilshire Blvd., Suite 1500 Los Angeles, CA 90048 Telephone: (323) 653-6530 www.amglaw.com