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Law360 (June 22, 2020, 3:56 PM EDT ) A bar and restaurant outside Pittsburgh has sued a former server for defamation in Pennsylvania state court, claiming she wrongly blasted the company on Facebook over a clerical error in her pandemic-related pay change that she mistook for fraud.
Monroeville, Pennsylvania-based Gateway Grill had responded to a drop in business related to the COVID-19 pandemic by changing its servers' wages from $2.83 per hour plus tips to $7.25 per hour plus a share of tips from the take-out service that was allowed to continue, the restaurant says in its suit filed Friday.
But due to an apparent error by its payroll processor, some staff, including defendant Brittney Davenport, were still getting paid the lower hourly rate through May 21, according to the suit. In response, she accused the company, owner Kevin McFadden and manager Michael Barrett of underpaying employees, misappropriating tips and refusing to issue paychecks, the suit says.
"For inexplicable reasons, Davenport seized upon the clerical error and commenced a widespread online campaign designed to defame and disparage the Gateway Grill, McFadden and Barrett, and maliciously destroy their business and professional reputation," the complaint said.
The restaurant accuses Davenport of defamation and interference with business relationships, and seeks punitive damages against her.
According to the complaint, Gateway Grill was among the businesses affected by Pennsylvania Gov. Tom Wolf's March 19 order closing non-life-sustaining businesses in order to slow the spread of the COVID-19 pandemic. The order only allowed restaurants to remain open for carryout, curbside pickup or delivery service.
Davenport, who had been a server at the restaurant for about six years, was among the staff whose wages were supposed to be changed from $2.83 per hour plus their tips to $7.25 an hour, while splitting the tips for carryout orders with the rest of the staff, the suit says.
Automatic Data Processing Inc., the restaurant's payroll processor, allegedly failed to carry out the pay raise for some servers, including Davenport, until it was brought to the processor's attention May 21, the complaint says. Gateway says it immediately corrected the error and issued new paychecks.
But Davenport was upset, posting on her personal Facebook page that she felt the tips were being misappropriated and that the female serving staff was bearing the burden by having the tips claimed and taxed on their paychecks, the suit says.
"Letting the people know. When they think they are leaving a tip for servers making $2.83 an hour/ Mike Barrett is taking that money and giving it to his cooks to pay part of their salaries," she wrote in a post May 27, according to an exhibit included with the complaint. She said Barrett refused to answer her question of who was supposed to claim the tips on their paychecks and have them taxed, and suggested it was the servers who were, the suit says.
Other posts showed pictures of complaints she'd written on the windows of her car claiming that Barrett was "extorting thousands of $$$ from his entire female staff" and "retaliating against female staff for uncovering fraud," according to the complaint.
The suit says Davenport was fired May 22. It also says that Davenport, her husband and a third party came to the restaurant in person May 26 to "physically threaten" McFadden and Barrett, resulting in the police being called. According to the posts in the exhibits, the business had refused to hand over Davenport's paycheck during that encounter.
Another of Davenport's posts on June 4 accused the restaurant and management of mishandling other parts of Gateway Grill's response to the pandemic, including allegedly failing to clean restrooms "since before corona" and refusing to give employees protective masks or put up barriers between customers and guests, according to the suit.
Davenport also allegedly posted her complaints to other pages, including a post to Gateway Grill's Facebook profile and a community group for the neighboring borough of Plum, the lawsuit says.
"Davenport's false, defamatory and disparaging statements have injured the Gateway Grill, McFadden and Barrett in their business and professional reputations so as to lower them in the estimation of customers and potential customers, and deterred third persons, including, without limitation, potential new employees, from dealing with them," the complaint said. "The false and defamatory words published by Davenport involve words directly accusing the Gateway Grill, McFadden and Barrett of business and professional misconduct."
Davenport denied to Law360 that she had defamed her former employer.
"It's not defamation, it's a defense," she said.
Counsel for the restaurant did not immediately respond to requests for comment Monday.
Gateway Grill, McFadden and Barrett are represented by Ryan James of Galanter Tomosovich LLC.
Counsel information for Davenport was not immediately available.
The case is Gateway Grill Inc. et al. v. Davenport, case number GD-20-006981, in the Court of Common Pleas of Allegheny County, Pennsylvania.
--Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
