Law & Order

Lawsuit Filed Against Underbelly and The Pass & Provisions

Former server alleges tortious interference, defamation, and intentional infliction of emotional distress.

By Katharine Shilcutt November 26, 2013

A former server at Underbelly has filed an unusual double suit against both Underbelly and fellow Montrose restaurant The Pass & Provisions, alleging tortious interference, defamation, and intentional infliction of emotional distress, although that's far from all contained within the lengthy lawsuit.

In a petition filed with the Harris County District Court on November 13, Rachel Johnston—who worked for Underbelly owner/chef Chris Shepherd at his former restaurant, Catalan, before following Shepherd to Underbelly when it opened in February 2012—claims she was put on a two-week unpaid leave and later fired from Underbelly following an incident at The Pass & Provisions.

The incident in question: Johnston—on her night off—and a group of friends were dining at Provisions, the casual side of the high-profile restaurant, on November 29, 2012, when they were asked to leave their table before being able to order dessert. The lawsuit alleges that Provisions's manager explained "the restaurant was busy and needed to seat patrons in the table they had occupied." One of Johnston's friends was unhappy with being asked to move when other tables around them were allowed to remain seated, and caused a scene. The Pass and Provisions later learned that Johnston was also in the service industry, although that fact was not known at the time her table was asked to move.

Johnston claims in the petition she "apologized to the restaurant's operation manager" and later "followed up with an email to that effect." However, Johnston claims, "someone from The Pass and Provisions contacted [Chris] Shepherd, [her] boss at Underbelly, to complain," with the result—Johnston alleges—that she was put on a two-week unpaid leave from Underbelly during the most lucrative time of the restaurant's year.

Seth Siegel-Gardner, co-owner of The Pass and Provisions, refutes Johnston's account of the events on that night. When reached for comment today, Siegel-Gardner said: "We deny all the allegations directed towards The Pass and Provisions."

An alleged incident at The Pass and Provisions sparked an unusual lawsuit.

Although Johnston claims she was eventually allowed to return to work, it was after Shepherd and co-owner Kevin Floyd told her "they wanted to fire her for those events, but their lawyers said that they could not." Eventually, however, Johnston was terminated—but only after, she claims, her work environment became hostile following her return. Johnston claims she was "treated rudely and excluded by kitchen and [front of house] management."

According to the lawsuit, Johnston was terminated on December 21, 2012 after working a lunch shift, taking a break, and showing back up for dinner service. "The restaurant claimed that Plaintiff had been intoxicated during the earlier shift and had violated the alcohol policy," the petition reads, although Johnston claims she had not had anything to drink that day.

When contacted today, a representative from Underbelly who wished to remain anonymous said that it was true Johnston could not have been fired for her or her friend's actions at The Pass and Provisions. He also said, however, that he could not confirm she had been placed on a two-week suspension, either. The representative did confirm that Johnston had been terminated for being intoxicated at work, saying: "We regrettably terminated an employee with whom we had a longstanding and close relationship for behavior and misconduct inside the restaurant."

In an interesting twist, the lawsuit cites a well-known facet of Underbelly's kitchen service that revolves around drinking at work—namely, the kitchen staff's nightly ritual of shotgunning beers on the line. "Every service at Underbelly ends with the kitchen shotgunning beer," reads the cutline of a CultureMap photo showing Chris Shepherd, sous chef Lyle Bento, and other Underbelly staff shotgunning beers—puncturing a can of beer, popping it open, and drinking it from the punctured end as quickly as possible—on November 13, ironically the same day that Johnston filed her lawsuit against the restaurant. 

Chris Shepherd was the chef at Catalan before leaving to open Underbelly in February 2012.

It's unknown how this will affect the lawsuit against the two high-profile restaurants, but it's not the only twist in the long petition. According to a footnote, "Johnston has also filed a charge of discrimination" with the EEOC against Underbelly and Shepherd. "When Johnston receives her notice of right to sue, she may add the sex discrimination claims to this lawsuit."

In the petition, Johnston claims that the work environment at Underbelly was "rampant with disparaging comments about women and/or remarks laden with sexual innuendo." She claims Shepherd would ask "questions about her sex life and would offer to engage in sexual activities with her," "frequently used derogatory terms about women guests and employees," and "fostered an environment of perverse behavior, sexist remarks, and hostility to women."

According to the lawsuit, Johnston seeks an amount not less than $200,000 for her loss of employment, defamation, and emotional distress, but not more than $1,000,000. When reached today, Johnston had no comment on the pending litigation.

The representative from Underbelly, for his part, believes the case to be unfounded and hopes it will be dismissed once more information comes to light.

"Large restaurants are often targets for disgruntled former employees and it's one of those challenges we all face. We hope that people will save their opinions while this all plays out."


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