Down at the Boardwalk
On the first anniversary of his father's death, David Foreman wanted to visit his mother. As general manager of the three-story Landry's Seafood Inn on the Kemah Boardwalk, David knew that the Fourth of July weekend in 1997 would be a bad time for him to be gone. But his boss was sympathetic -- in his own sort of way -- about the request. "Sure," he quoted regional manager Barry Terrell, "as long as I get to fuck your wife while you're gone."
David began as a busboy on the waterfront in 1987 and ten years later had worked his way up through the company. He had hired Paula Murphy as a waitress who later became his wife and the human resources manager who interviewed, hired and trained new staffers.
The Foremans say they loved their jobs, and thrived on 14-hour days and the family feel among the restaurant staff. And like with most families, there was said to be a dirty old man that everyone tried their best to ignore. The Foremans never thought of complaining or calling what they say were Terrell's constant crude comments "sexual harassment." They say it was something they came to expect from him.
In early December 1997, director of waterfront operations George Van Etten asked Paula if she knew anything about a manager who was sexually harassing employees. Scared of retaliation, Paula repeatedly denied any knowledge. Van Etten said he already had three formal complaints lodged against Terrell and was conducting an informal investigation. Assured that her identity would be kept confidential, Paula reluctantly told Van Etten the allegations: that Terrell often asked waitresses for lap dances and made bets with the waiters about who would get the first blow job on the boardwalk. She said he also locked the door to her office one day, took his shirt off and ran his fingers through his chest hair, telling her that's what a real man looks like.
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During the next year, the Foremans say, they were retaliated against and forced out of their jobs. They're now suing Landry's, the second-largest casual-dining seafood operation in the country.
"This guy acted not just inappropriately, but used the crudest, foulest, sexually explicit language," says the Foremans' attorney, John Zavitsanos. "They wrote him up for engaging in unprofessional behavior. They never cited him for sexual harassment." Zavitsanos won the state's first same-sex sexual harassment lawsuit, representing a professor who was fired after complaining about his boss's unwanted advances (see "Groping in the Dark," by Wendy Grossman, November 18, 1999).
The Foremans have demanded a jury trial and want past and future wages for sexual harassment, retaliation and emotional distress. Landry's countersued, saying the Foremans breached their contract by breaking their confidentiality agreement with the company. The Foremans amended their suit last week, alleging that Landry's employed Mafioso-type tactics against them for reporting sexual harassment. Landry's lawyers countered with an emergency motion to strike or seal the revised suit, saying it "contains scurrilous, disparaging and incendiary accusations against Landry's."
"This isn't a situation where trade secrets are being divulged or national security is an issue or someone is imminently going to be harmed," Zavitsanos says. "They simply don't want this getting out."
Steve Scheinthal, Landry's general counsel and vice president of administration, says the company was forced to ask a judge to seal the suit because attorneys for the Foremans attempted blackmail, threatening to go to the media if Landry's didn't settle the suit for a sizable sum. The Foremans' attorneys say Landry's just wants to hide a transcript of a conversation David Foreman taped between himself and CEO Tilman Fertitta.
"It was ugly," David says. "It just chaps him to no end that I've got that on tape."
The Foremans say that only a month after Paula made her "confidential remarks," Terrell told her in January 1998 that he knew she had filed a complaint against him, and to keep quiet "or else." Within weeks, Terrell threatened David with a cut in his bonus and allegedly vowed to drive David and Paula out of the company.
David responded by demanding that Landry's officials investigate Terrell. The lawsuit says Landry's officials played down Terrell's threats to David, telling him they needed eyewitnesses.
The Foremans quickly filed a charge of discrimination with the Equal Employment Opportunity Commission. According to their lawsuit, Landry's attorney Scheinthal soon suggested to Paula that she think about looking for another job. When she refused, she was demoted to administrative assistant for training, a job that even eliminated her perk of free food at the restaurant.
In July 1998 David tape-recorded his conversation with Fertitta (Landry's attorneys challenge the accuracy of the tape, saying it has been altered). According to a transcript, Fertitta told David he didn't like husbands and wives working together. "I wish your wife would go work somewhere else, you're the guy with the opportunity," Fertitta said. "There's no way to win." David said they would keep working until they both got fired.
"I'm not gonna fire you," Fertitta said.
David didn't believe the CEO, and filed his own EEOC complaint. Landry's officials, saying they were downsizing, laid off his wife just after Christmas. David says he told Fertitta, "You win." He wrote the EEOC that he was rescinding his complaint, and his next paycheck showed a salary increase of $15,000.
Three months later the EEOC told David that it was rejecting his letter and pursuing the claim. "They thought it was coerced," Zavitsanos says. "Which it was." Certain he was about to be fired, David resigned in March 1999.
An EEOC report concluded that Paula's termination could plausibly be retaliation and the work environment at the Kemah Boardwalk restaurant was offensive "such that a reasonable person would have found Mr. Terrell's sexual comments and his actions hostile and abusive."
Landry's responded to the EEOC complaint by saying there were valid grounds to have fired Paula, but it went to "great lengths" to avoid that. Company officials say they had complaints about her recordkeeping and that she sent better recruits to the restaurant managed by her husband, so they removed her from that conflict of interest.
"Based solely on the status of the personnel files, claimant should have been terminated, however, was not due to her existing sexual harassment claim and concern by the company that she would claim retaliation," the report says.
"We're too smart to fire somebody who has a lawsuit against us," Fertitta says. "You don't do that."
As for David, Fertitta says he was a great general manager. "He can have his job back tomorrow," the CEO says. "David left on very good terms."
He reads aloud David's letter of resignation. It says David got an offer with another company, is leaving with mostly pleasant memories and is grateful to Fertitta and Landry's -- that the experience is like a master's degree in restaurant management. "Does that sound like a guy that was fired?" Fertitta asks. "This is a 100 percent bogus deal. His lawyer is a lawyer trying to extort us."
Landry's, he says, is a regular target of such cases. "We get sued all across the country with frivolous lawsuits, and every now and then it's not frivolous and one of our managers did do something; and I don't know if Barry Terrell did what he did or didn't All I know is David's wife wasn't terminated because of that."
On October 19, Demetrios Anaipakos, an attorney for the Foremans, sent Landry's lawyers the revised lawsuit and a letter that said in part, "We are confident that this dispute will attract substantial public scrutiny and disapproval of Landry's." It set a deadline of October 22 for Landry's to agree to mediation.
"The lawyer said, 'Y'all either mediate and give us money or we will turn this whole thing over to the press and I don't care what we say, if it's true or not,' " Fertitta accuses Anaipakos of saying in a phone call. "It's a typical bribery lawsuit."
"I was pissed. It's highly inappropriate," Scheinthal says.
Zavitsanos says the correspondence was meant as a professional courtesy, not a threat. "We were not saying we were going to try the case in the papers," Zavitsanos says. "We want a trial." And Anaipakos denies having ever called Landry's and offers to find his call log. Anaipakos says he's never talked with Scheinthal.
U.S. District Judge Kenneth Hoyt last week sealed the first amended lawsuit but refused Landry's request for a gag order.
"They've tried so hard to keep this out of the papers, they don't realize that by doing this it just draws more interest," Zavitsanos said. "Everybody tells dirty jokes, everybody makes an inappropriate comment every now and then. But to have a constant barrage, that's sexual harassment."
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