- The Washington Times - Monday, September 25, 2000

Some of the many people who lose lawsuits charging that Denny's restaurants violated their civil rights by delaying or denying service now are being sued back without any of that delay they complained about.
In some cases, as they turn the tables, the restaurants also have customers' pictures ready in the form of unexpected videotapes that contradict legal claims, including one man's complaint he was served a racial slur under his French toast.
In the latest countersuit, filed in state court last week in Miami, the chain's parent company said Denny's security videotapes gave the lie to a civil rights claim by Ronald Flagler and Janet Jones. After U.S. District Judge Michael Moore dismissed the lawsuit July 28, the company decided to sue back in hopes of recovering what it cost to defend the case.
The black couple's lawsuit charged racial discrimination Oct. 27 at a South Dade County restaurant, telling of being shunted rudely to the rear and ignored for 45 to 50 minutes while whites were seated and served. However, a security videotape shows them being greeted courteously and quickly seated, then leaving less than 10 minutes later.
"This was … a disturbing example of two unscrupulous plaintiffs and their attorneys trying to take advantage of our court system through lies and deception," said Jim Adamson, chairman and CEO of Advantica, the Spartanburg, S.C., holding company that owns 822 of the 1,778 Denny's restaurants and franchises the rest.
Courts found that many, but not all, civil rights claims since the mid-1990s sought to exploit the chain's much-publicized track record. That includes paying $54 million on class action lawsuits covering claims from 1987 through May 24, 1994, including the famed Secret Service case in Annapolis.
Denny's said that put top managers on notice to change or else.
Videotapes and countersuits became tools that allow the chain to go further than ever before in backing up policies to banish employees who discriminate but still not tolerate unwarranted lawsuits by customers.
"Now if you file a frivolous lawsuit, we will litigate. If you discriminate, we're going to fire you," Mr. Adamson said.
Those defending recent cases against the company are bitter that the press still headlines a Denny's lawsuit but ignores dismissals.
"I think Denny's is trying to send a message, and I don't blame them at all. I think it might be good for the litigious population of the United States that people who file a frivolous lawsuit can be subject to countermeasures," Miami lawyer Ellis Rubin said in an interview.
Mr. Rubin is the lawyer who filed the Flagler-Jones lawsuit.
But he quit the case Feb. 25, before his clients knew the videotape existed, saying he was dissatisfied at their deposition testimony.
"Most lawyers would stick it out and try to bluff a settlement, but I did not choose to do that," said Mr. Rubin, a flamboyant lawyer with nationwide reputation of being willing to take unusual cases.
Such resignations happen more often than one might expect, said Washington lawyer Minh H. Vu of Latham & Watkins, which represents the restaurant chain in this area.
She also used a videotape to squelch a Maryland case. Without disclosing the existence of the video, Miss Vu quizzed the plaintiffs about their actions.
"They answered the questions all wrong, completely contradicting the videotape, which was beautiful," she said in an interview, declining to identify the case involved. "We offered a private showing to their lawyer, who immediately quit the case, which was then dismissed."
She said that in battling a half-dozen such public-accommodations claims she never saw one with merit including the $20 million demand by Delores and Samuel Wright of Baltimore that was dismissed in 1998, seven months after it was filed.
A disproportionate number of the complaints involve large groups eight to 36 or more persons who see racial prejudice in what others call chronically slow service at a chain that emphasizes price and stays open 24 hours.
The company won about $20,000 in legal fees and an endorsement of their strategy when an Oakland, Calif., case was thrown out.
Federal Magistrate Phyllis J. Hamilton threw out the case of John S. Harrison Sr., whose lawyer son John Jr. filed suit charging that a white couple who arrived after him was served first.
Mr. Harrison conceded he had been a customer for 20 years and ate at that Denny's counter twice a day for 10 to 12 years with no problems in a store whose clientele was 50 percent black. He said he enjoyed his fried chicken dinner and left a tip.
"While plaintiff's service might have been slow," Judge Hamilton wrote in dismissing the case, "slow service does not rise to a level of violating one's civil rights."
A case involving blacks, Asians and Hispanics who said their civil rights were violated by slow service at Bullhead, Ariz. which Denny's blamed on a novice waitress and broken dishwasher was thrown out and the company awarded $2,821.45 for expenses to take depositions.
"I wouldn't go so far as to say the service at Denny's is terrible, but they're not four-star restaurants and there are a lot of times that things happen in 24-hour restaurants serving tour buses that might cause some people to think it was because of their protected status," Miss Vu said.
The 1964 public-accommodations law protects non-white racial minorities and whites discriminated against because they associate with non-whites.
A nationwide survey of federal court records by The Washington Times shows that Denny's restaurants were accused of federal civil rights violations in 439 lawsuits since Jan. 1, 1990. Of those, 63 were lodged as public-accommodations cases accusing restaurants of denying service to a protected class of patron. Most others were employment cases.
The lawsuits have accused the company of being anti-black, anti-Asian, anti-Hispanic, even anti-fat people, an issue that arose in Oregon after Gary Sellick got wedged in a Denny's booth after a big meal.
The restaurant bought an armless chair to accommodate Mr. Sellick's "disability," but he never returned after U.S. District Judge Robert E. Jones Jr. threw the case out.
When management changed after the class actions and Advantica succeeded the old Flagstar Corp. the firm linked up with ethnic interest groups and tracked minority ownership, which in 1993 totaled exactly one black owner. Now members of racial minorities own 297 of the franchised units, including 56 owned by blacks, company spokeswoman Karen Randall said.
Denny's began "partnerships" with the National Association for the Advancement of Colored People, the Asian Buying Consortium and the Hispanic Association on Corporate Responsibility to provide "fair shares" in hiring (47 percent of 45,000 Advantica employees are minorities) and bought $110 million in supplies from minority firms.

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