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BALLAD OF THE SAD CAFE OWNER

"I LOVE WOMEN." The afternoon sun enters Tommy Maggiore's empty restaurant on East Camelback Road. In a few minutes, evening diners will enter, too. Tomaso's isn't out-of-this-world upscale, but it's very nice. The prices are on the high end of reasonable, the service is good. Later, when wine is flowing and waiters begin to hustle plate after plate of aromatic pasta through the kitchen doors, it's easy to see how Maggiore built a mini-empire of similar restaurants around town during the 1980s. But Maggiore's empire has been threatened in recent years. He's spent a small fortune on legal fees fighting the United States government. He's filed for bankruptcy. Most of the restaurants he once operated have been closed or sold off. The reason for his misery? Women. The government says Maggiore did not hire enough of them to wait or bus tables in his restaurants, and the government, specifically the local office of the Equal Employment Opportunity Commission, has made him pay for his mistake. There have been times in the past few years when Maggiore has wanted to drive down to the EEOC's Central Avenue offices and drop off his keys. "Here," he wanted to say to the team of lawyers ruining his life. "You can have it." People who work around Maggiore say this would have been a typical gesture for him. He is, they say, impulsive, ruled by his emotions, quick-to-anger--a charismatic boss who has created an extremely successful business by sheer force of personality. Running a great restaurant--like running a baseball team--is a heart-and-soul calling. Physically and emotionally, Maggiore resembles baseball manager Tony LaRussa. Normally stoic and calculating, LaRussa is capable of great bursts of fury.

Maggiore is, too. On the day he signed his agreement with the EEOC and ended his years-long legal battle over sex discrimination, he flew into a fearsome rage in his Camelback Road restaurant. It is said that pans filled the kitchen air. Tommy Maggiore is calmer now. Weeks have gone by since that day. But as the sun streams through the windows onto his floor, as cooks and dishwashers wander in and out of his steaming kitchen, as another of his cigarettes gets stubbed out, he still doesn't seem to understand what he did wrong. "How can I discriminate against women?" he pleads. "I love women!"

He lights another cigarette. One of Maggiore's attorneys says she's never seen a client so emotionally wounded by a legal battle. "Where I come from you deal with the Mafia," Maggiore says, from the center of a smoke halo. "I could've got better treatment from the Mafia in Sicily." where maggiore comes from, Sicily, there is not a Civil Rights Act of 1964. Title VII of that act, governing hiring practices and on-the-job sex discrimination, is administered by the Equal Employment Opportunity Commission. The EEOC receives complaints from victims of discrimination, and has the power to launch investigations on its own. Maggiore's woes were not prompted by an official complaint to the EEOC from an aggrieved food server. His trouble started with a newspaper article.

In August 1985, Elin Jeffords, then restaurant reviewer at the Arizona Republic, wrote a long Sunday feature about the policy of many local restaurants to hire only male food servers. Tomaso's was the very first restaurant cited in the piece. These ominous words, quoted from an EEOC official, concluded the article: "All we need are a few good, well-publicized cases, and there will not be a restaurant in town that won't get the message."

Eventually almost all of the restaurants mentioned in Jeffords' story would come under EEOC investigation, including the Avanti restaurants, Allegro and Trader Vic's. The commission went to work on Tomaso's not long after the story ran. An EEOC investigator interviewed current and former employees of Tomaso's and combed through Maggiore's employment records. Out of 70 table-busing openings filled at Tomaso's from 1985 to 1990, zero were filled by women. And only two female food servers were hired by Tomaso's during that time--both after the EEOC officially filed suit in 1989. In that same period, 52 male food servers were hired by the restaurant.

In cases like this, the government must take a series of carefully scripted steps. Correspondence is exchanged between the accused and the accuser. Conciliation meetings are held in hopes of reaching a settlement. Sometimes the government can get jobs for the people who were discriminated against. The employer can be asked to give back pay to those workers. The government began its legal dialogue with Tommy Maggiore knowing it had, in the words of EEOC attorney Mary Jo O'Neill, a "dead-bang" case. maggiore admits he ignored the EEOC's first letter. "I didn't take it seriously," he says, making a tearing gesture with his hands. "I thought, 'It's got to be a mistake.'"

 

When the U.S. government had trouble reaching Maggiore via its mail system, a representative was sent over for a face-to-face.

It would be nice if a videotape existed of this meeting.
The investigator sent to deal with the fiery, letter-tossing, allegedly sex-discriminating, English-as-a-second-language-speaking restaurateur was hearing-impaired. She and he conducted their discussion through a sign-language interpreter. The meeting was hopeless from the beginning, Maggiore says, his suspicious nature seeing the assignment of a deaf woman as a government tactic to throw him off balance. The investigator, for her part, thought Maggiore was table-pounding rude. She requested that her supervisor sit in on the next meeting between the two. Most of the sex-discrimination cases brought by the EEOC are settled early on. The government simply explains the allegations, presents some evidence, describes the penalties should the discriminatory practices continue and prescribes its remedies. But from the earliest moments of this case, Maggiore and the EEOC seemed continents apart. All of the early meetings between Maggiore and the EEOC were, according to EEOC attorney O'Neill, "high-spirited, and a total failure."

When it finally became clear to Maggiore that the EEOC was serious, he turned to a friend for help. Joe Martori is a corporate-law specialist for Brown & Bain, one of Arizona's most prominent law firms. Martori, also Arizona's Italian consul, had done some investment work for Maggiore in the past and was more than happy to help his old pal Tommy. On the team of Brown & Bain attorneys assembled to work on the case was Amy Gittler, formerly of the Arizona Center for Law in the Public Interest. Prior to coming to the law firm, Gittler had made a national reputation as an antidiscrimination advocate, and had even won such a case in front of the U.S. Supreme Court.

Maggiore's attorneys believed the EEOC wanted to make an example of their client, and that the government's early attempts to settle the case were not heartfelt. "The government had a separate agenda," Martori says today. camilla ferry doesn't know from agendas. She does know from the restaurant business, in which she has worked for 38 of her 60-plus years, including food-service stints at upscale dinner houses like the El Chorro Lodge, the now-departed Joe Hunt's and Ernesto's Backstreet and, most recently, Voltaire's.

In some of those places, Ferry was the only woman on the floor. It was no picnic. "At first the other waiters look at you and think, 'Oh, boy. There goes the neighborhood,'" she says. "Until they realize you're not a 15-year-old from the Bob's Big Boy."

Ferry applied at Tomaso's in the mid-1980s, but never heard back from the manager. She was already working elsewhere, but wanted to pick up a couple of extra shifts in hopes of working her way into full-time employment as a dinnertime food server. "I had heard that it was a good house," she says with a shrug. She was disappointed--her qualifications for the job were, after all, impeccable--but not surprised at being passed over. "It also had a reputation as a waiter house." Madonna Stiles says she knew of Tomaso's male-chauvinist reputation long before she applied to work there a few years ago. She had worked as a cocktail waitress in a Tomaso's spin-off called Salute.

"It was well-known in the Italian-restaurant circles that most Italian men do not feel a woman is capable to wait tables, especially in a fine dining atmosphere," says Stiles. "They feel that a man pulls off a certain aura at the table."
Despite what she had heard about Maggiore's restaurants, Stiles applied anyway, first at one of the Tomaso's in California, where she was living at the time. A waiter friend was immediately hired to fill a position she was denied. Then she applied here at Chianti, an informal pasta house operating in a Camelback Road storefront. When she had no luck getting work there, either, Stiles grew discouraged. She has since left the restaurant business and now resides in Omaha.

"I had been in the business so long, and I had never had any trouble convincing people that I could be an asset to their company," she says. "This was the one roadblock I wasn't able to get past, something as silly as having long hair and breasts, you know what I mean?"

the government's most compelling evidence against Maggiore were the statistics on his female-hires-per-job-opening ratio. There, in hard numbers, was proof enough. The EEOC went so far as to compute the percent of qualified females in the job market at the time of Maggiore's discriminatory practices, figures that were far greater than the percentages hired at Tomaso's. Bolstering the government's case was the testimony of more than two dozen women like Camilla Ferry and Madonna Stiles, women who believed they had been discriminated against by the restaurateur. These were names taken from Tomaso's own paperwork, as well as food workers who responded to newspaper advertisements placed by the EEOC. Like Ferry and Stiles, most of the women appeared to be eminently qualified. In addition to this group, the commission also found a few equally qualified "deterred applicants" who could participate in the case. Deterred applicants are potential employees who don't apply for a certain job because of the employer's reputation for not hiring whatever it is they are. (The law--known around law offices as "Teamsters--was established in a case against a trucking firm that wouldn't hire blacks.) The EEOC found its deterred applicants in the Tomaso case by advertising in local newspapers. It seems like a shaky premise: Women who merely thought about working at Tomaso's, but who never actually drove over to apply, could be eligible to receive settlement money.

 

But when the EEOC screened the women who answered the ad, about a dozen qualified to receive settlement money from Maggiore.

"If everyone in the applicant pool knows it would be futile to apply. . .why should the employer benefit from that?" says the EEOC's O'Neill.

Says attorney Martori, "If you ran that ad in my old neighborhood in Brooklyn, you'd have 200,000 people apply. You'd need a football field to hold them." you'd need a football field to hold all the people interested in this case. Local foodies--meaning restaurant owners, chefs, food servers and big eaters in general--all spouted opinions on the government's action against Maggiore as it progressed toward trial. To many observers, the EEOC appeared to be picking unfairly on dispensers of Italian food. And it is true that the Tomaso's case came at the same time as almost identical EEOC cases were being brought against Avanti and Allegro. (Avanti settled a couple of weeks ago to the tune of $70,000 in compensation payments; the Allegro case settled much earlier, with no payouts.)

But it's also true that the EEOC was pounding non-Italian restaurants years before it got around to pounding Tomaso's, Avanti, et al. The Golden Eagle restaurant (now closed, it was an upscale dining room located near the top of the Valley Bank Center, popular primarily with promgoers and tourists) got hit with a sex-discrimination action in 1980 that looks from this distance very much like the case against Tomaso's. Traders Vic's (also now shuttered, but once known for its huge menu of pancultural eats) was another local target of the EEOC. Food aesthetes had another gripe: A fine restaurant in Sicily would likely have an all-male wait staff, this argument goes, and mandating the gender mix of the wait staff robs an American restaurateur of his or her shot at total authenticity. At what point does it become impossible for a guy to run a "theme" restaurant? Maggiore's "theme" comes not from EPCOT Center-style simulations; the man prints a dedication to his mom in each of his menus. Maggiore's "theme--and his customers believe they can sense this--is innate. Deny him his full vision, the foodie purists say, and you deny the artist a full palette of colors. Of course, cultural authenticity is not discussed in Title VII of the Civil Rights Act. The aesthetic concerns of the food-and-beverage industry are extralegal. The way the law sees it, qualified workers were denied employment by a business for the sole reason of not being male. End of discussion.

"That discriminating against women is open to debate is a bit shocking to me," says the EEOC's O'Neill. "Just replace 'woman' with 'African American' in that discussion."

maggiore's hard line against government intervention eventually led to some of the most contentious legal wrangling in local regulatory memory. The attorneys for the defendant deposed almost all of the female food servers listed by the EEOC as discrimination victims. Some of the depositions went on for hours. A few lasted days. Some of the women were asked if they used illegal drugs, had tax problems or were heavy drinkers.

The depositions were "very personal," says Richard R. Trujillo, regional manager of the EEOC's litigation unit in Phoenix. Considering that none of the women had instigated the action and instead had been drafted for the case by the EEOC, "They did things to the victims that were unconscionable in a legal sense," says Trujillo, adding that Maggiore's lawyers threatened the food servers and tried to intimidate them. "We're not talking about national-security jobs here."

"They took shots at every one of the women they could," says O'Neill, adding that the Tomaso's case was the "most acrimonious" action she'd seen in 13 years as an attorney. "Depositions aren't friendly chitchats," answers Amy Gittler, attorney for the defense. "They're an opportunity to discover information and facts. . .to test the stories of witnesses in preparation for a trial." The legal battle went on for years. At one point, Maggiore filed for bankruptcy, apparently to protect himself from liability. The government persisted. Throughout the case, Maggiore's basic defense remained consistent. Or, as his attorneys wrote again and again in a pretrial order, "[The defendant] hired the most qualified individual available at the time there was an opening without regard to his or her sex."
Says O'Neill: "We kept thinking, 'This is an obvious slam-dunk winner. Why are they fighting so hard?'" Maybe Maggiore fought so hard because it was the only way he knew. The full force of the government was used to prosecute him for a crime he didn't believe he had committed. To the government, the Tomaso's case was just another file number. To Maggiore it was personal. "He was holding on to the little faith he had left in justice," says his daughter, Melissa, who followed her dad's case from college in Texas. "He knew he was innocent. He couldn't believe that this could happen to an innocent man." Maggiore claims an EEOC attorney (he doesn't remember who) turned to him during a meeting and told him, "Frankly, this'd be a lot of fun to bring to court." Maggiore's reaction to such offhand banter explains a lot. "My life! My livelihood!" he says now. "And she's talking about fun!" about three months ago, the U.S. District Court judge controlling the case lost interest in its histrionics and set a court date. Despite the two-plus years of legal maneuvering, that gave both sides only a few weeks to make final preparations for a trial. The judge's action finally prompted Maggiore's side to settle. Maggiore agreed to pay $130,000 to 26 women. The money will be paid in installments, and includes back pay and interest. The average settlement payment will be about $5,000. More than half of the victims no longer work in the food-service business. Several no longer live in-state. Maggiore also agreed to make his next several dining-room hires from a list of women drawn up by the EEOC. The seven women on the list, who also get settlement money, have been preapproved for jobs by attorneys on both sides.

 

One of the women on the to-be-hired list lives in Illinois. Another has resettled in South Carolina. If either of the women accepts a job offer from Tomaso's, the job will be held open for 25 days so the women can relocate. The list's local women have a week to start once a mandatory job offer is made. Food server Camilla Ferry's is the first name on the list of government-mandated hires. Most of the women awarded settlement money in the case chose not to take jobs in a dining room one predicted would be "so cold you'll be able to hang meat in it."

But Ferry is hopeful. "It would be difficult for them to hire me and not have some feelings of resentment," she says. "But I didn't file the suit. I fell into it.

"I have mixed emotions about this. They almost ought to be able to hire whoever they want to hire. But if a person wants a job and needs a job and is qualified to do a job, they should get the job." Finally, the settlement requires that Maggiore and his staff undergo government-supervised reeducation on sexual harassment and discrimination. As directed by the court, Maggiore will pay for the seminars himself. tommy maggiore's term for what the EEOC has done is "legalized extortion."
The EEOC will continue to monitor his restaurants. Maggiore and his staffers are prohibited by law from any kind of retaliation against the women he must now hire, and Maggiore's hiring records will be regularly inspected for the next several years.

Though some of his local restaurants have come and gone over the past decade, trade at the Tomaso's flagship has been improving as the local economy improves, and his restaurants in Southern California are doing well. Maggiore expects to emerge from his bankruptcy any day. But Maggiore's costs in this case exceed the payouts to women food servers. He estimates he is out $200,000 in legal fees. His daughter says the case has affected her family's home life.

Meanwhile Maggiore's reeducators have their work cut out for them. "He never came to grips with the fact that he may have done something wrong," says EEOC boss Trujillo. "If he is still no different in his mindset, in his public positions, than he was before. . .then to some extent we failed."

NIGHT OF THE GRISLY STUFFED INSIDE THE ... v7-08-92

 


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