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N-word rant at North Fort Myers restaurant could be difficult to take to court

Posted at 10:23 PM, Mar 10, 2018
and last updated 2018-03-10 22:23:30-05

NORTH FORT MYERS, Fla., -- Orlando Ortega was victim of a racial rant made towards him from his former co-worker at Cactus Jack, a restaurant in North Fort Myers. Ortega says he plans on filing a discriminatory lawsuit against the restaurant, but circumstances in the case could make it difficult to win. 

"I’m not just going to let it go," said Ortega. "Anything that goes on with like legal matters will be towards the restaurant.” 

Ortega was called the "N-word" repeatedly in a viral Facebook video he posted on social media on February 25. However, Ortega and the woman in the video, Eileen Marcinkowski, were off the clock when the incident happened. Which according to private attorney, Stuart Pepper, who is not associated with the case, could be the reason the restaurant might not take fault in court. 

“On the job, definitely. But if it’s off the clock, it’s something that’s allowed," explained Pepper. "The first amendment allows people to say what they want." 

Cactus Jack owners say Ortega punched Marcinkowski before the video was filmed. It is a claim Ortega denies. 

"I didn't touch her," he said. 

Pepper says the claim makes it even more difficult to bring a discriminatory lawsuit against her or the restaurant. 

“What she said could have been a result of her being hit or her assaulted," said Pepper. "Society allows people to say obnoxious things and not be sued for it.” 

Fox 4 reached out to Marcinkowski for comment. She says there was a police report filed for assault the night of the incident. Fox 4 will have that police report on Monday.