The Empathy Punishment
A woman hurled a burrito bowl at a Chipotle employee. Then a judge made her walk in the victim’s shoes.
It was a simple order: white rice, chicken, sour cream, and cheese. No pinto beans or veggies, no salsa or guac. Just a pile of basic burrito-bowl ingredients in varying shades of white. There should have been no room for drama.
The order came into the Chipotle in Parma, a working-class suburb of Cleveland, on a Tuesday night last September. The dinner rush was on, and like pretty much every restaurant coming out of the COVID era, this Chipotle was short-staffed. The line wrapped around the dining area all the way to the door and was moving so slowly that one customer, Rosemary Hayne, decided to try pulling a modern trick: She opened the Chipotle app on her phone, placed her order, and stepped out of line.
But as Hayne waited — five minutes, then 15 — she watched the flow of orders get backed up. The restaurant ran out of steak. A crowd of DoorDashers started to grow near the cash register. Eventually, Hayne noticed that a person who got in line after her had gotten their order before she did. Her attempt to game the system had failed.
What Hayne saw as an infuriating delay was, for Emily Russell, the restaurant’s 25-year-old assistant manager, a daily gauntlet. Russell was the only supervisor on duty that night, as she often was, and found herself bouncing from station to station. When the steak ran out, she fired up the grill. When the online orders backed up, she hopped over to help a teenage employee trying to keep pace. It was at this point in the night that Russell heard a commotion. A woman in a black T-shirt, pink shorts, and flip-flops, Rosemary Hayne, was complaining that her burrito bowl — the monochromatic one — had not only taken forever to make, but that it had come out looking “disgusting.”
Russell apologized, explaining that the restaurant was understaffed. She didn’t see anything especially wrong with the order — the bowl wasn’t stuffed full, but Hayne had only ordered four ingredients. Russell remade it anyway to keep the line moving, filling the bowl beyond the standard portions mandated by Chipotle’s corporate office. But Hayne said the new bowl still “looked like shit.” The line was growing and Russell said there wasn’t anything more she could do. “I’m gonna give you this food because there’s nothing wrong with it,” Russell said.
Hayne left in a huff, and the line got moving again — until she returned a few minutes later. Hayne had gone to her car to show the bowl to her daughter, who agreed with her mother’s assessment. “Would you eat this?” Hayne said to other customers still waiting in line. “Would you eat this?” She slammed the burrito bowl down on the counter, demanding that someone other than Russell remake it yet again. Russell refused. She couldn’t give Hayne a refund — an online order could only be refunded online — but gave her a card with her manager’s number to sort that out if she wanted.
As the line of customers looked on, Hayne seemed to pause for a moment and think about leaving the restaurant and moving on, bringing a close to the kind of contentious customer-service dispute that seemed to be playing out with increasing frequency across the country, at Chipotles, rental-car desks, airport-boarding gates. Instead, something in Hayne cracked. She reared back and threw the bowl in Russell’s face.
Hayne turned and made for the exit. An older woman jumped out of line to try to stop her, while other people pulled out their phones to film the incident. One customer had been recording when Hayne threw the bowl and uploaded her video to the r/PublicFreakout channel on Reddit that night. It went viral. But not as viral as what happened next.
In late November, two months after the incident, Judge Timothy Gilligan played the video in Parma Municipal Court. “You didn’t get your burrito bowl the way you like it, and this is how you respond?” Gilligan said. “This is not Real Housewives of Parma.” He suggested to Hayne that she must have gone to the restaurant looking for a fight.
“I did not, Your Honor,” Hayne said. “If I showed you how my food looked … It was disgusting.”
“I would be disgusted by that food?” Gilligan said. “I’ll bet you’re not gonna be happy with the food you’re about to get in jail.”
Gilligan wasn’t sure what to do with Hayne. The maximum sentence for her crime — one count of assault — was 180 days in prison. She didn’t seem especially contrite, but Russell wasn’t badly hurt, and Hayne didn’t have a history of criminal behavior. Gilligan had sent countless offenders to prison for minor crimes like this only to see them come back before him on more serious charges. He figured that Hayne had simply snapped, and he wanted to find a way to make her see the situation from Russell’s point of view.
Gilligan decided to offer Hayne an unusual deal. He was sentencing her to 90 days in prison, but with a chance to shave off 60 days if she spent two months working in a fast-food restaurant for at least 20 hours a week — an experiment in forced empathy. “Do you want to walk in her shoes for two months, and learn how people should treat people?” Gilligan asked. “Or do you want to do your jail time?”
Hayne agreed to give empathy a try. “I’d like to walk in her shoes,” she said.
Emily Russell was pleasantly surprised when she heard the sentence. “I just didn’t want her to get away with a slap on the wrist,” Russell said. She had worried that the judge might let Hayne off with a fine, and liked the idea of Hayne getting a taste of her life, even if she wouldn’t get the full experience. “I was working 70 hours a week, so she was lucky just to be working her 20,” Russell said. She knew that “jail wasn’t easy,” but believed that working a job like hers was even harder. Anywhere Hayne worked was likely to be just as understaffed and chaotic as her Chipotle. A few months after the burrito-bowl incident, two Chipotle customers in North Carolina beat up an employee who told them that she would have to charge them for extra chicken.
Russell lives in Brunswick, the last southwestern exurb before greater Cleveland gives way to farmland. She had been working in fast food since she was 17, first at a Burger King for four years, and then at Chipotle for four more. She switched to burritos for the reasons most people change jobs: better pay, better benefits, and a promise of better opportunity. All in all, she liked the work. “I don’t know why, but I loved wrapping burritos!” Russell said. “Oh, we need a triple-wrapped burrito? Okay, I got you.” She started at a Chipotle in Brunswick for $13.50 an hour before several promotions and a transfer to Parma. She had to commute 30 minutes rather than five, but the switch put her on the managerial track. “I saw a future there,” Russell said. When she became an assistant manager, she loved the feeling of having crew members who looked up to her.
Hayne wasn’t Russell’s first unruly customer. “At Burger King, I always got stuff thrown at me,” Russell said, though the projectile was usually a drink or a ketchup packet rather than an entire meal. The drive-through could be a particular hazard; the extra distance seemed to make it easier for customers to treat the employee on the other side of the window like something other than a fellow human before speeding off without waiting for a response. (On the plus side, the window was a barrier: “They usually hit the window before they hit me.”) Russell’s impulse in every testy situation was to accommodate. “If someone comes in and they want extra, we usually give them more,” she said. “But we get customers that no matter what we do, they’re not happy.”
By the time Hayne showed up at Russell’s Chipotle, the late-COVID period had become filled with incidents of public misbehavior as Americans started to interact with each other again. The murder rate had spiked, but so had what criminologists called anti-social behavior. Airplanes became combat zones. Road-rage incidents were up. Someone got slapped onstage at the Oscars. While people claimed that all they wanted was to get out and see their fellow man again, one study found the happiest employees were those who didn’t have to interact with customers at all. In 2021, a restaurant in Massachusetts shut down for a “Day of Kindness” after a series of disorderly customers culminated with a man yelling at an employee who said he could not take his breakfast order because, in fact, the restaurant wasn’t open yet.
Even as the pandemic waned, stress levels remained elevated, people were drinking more, and most of us were interacting with fewer people than we once did: fewer friends, fewer co-workers, fewer enemies with whom we had to figure out how to co-exist without coming to blows. Studies have found that we emerged from the pandemic with less empathy than we had before.
But even before the pandemic, there were signs that we were pulling apart. A “frictionless economy” was emerging with promises to make our lives easier in part by removing the biggest friction in our lives: other people. All those apps that allow you to order a burrito or a Big Mac or a Sweetgreen salad were an innovation meant to leave little chance of human complication. For Emily Russell and other restaurant employees, trying to synchronize the digital orders while moving through the line of hungry customers had become a quagmire. More than a third of all Chipotle orders are now placed online, twice the rate as before the pandemic. One of Russell’s favorite parts of her job at Chipotle was seeing her regular customers. Increasingly, she had regulars whom she never saw at all.
Hayne’s burrito-bowl toss wasn’t the most violent attack — she threw a pile of rice and chicken, not a punch. But Russell said it had caused her considerable distress. She had previously seen a doctor for a skin condition that flared up whenever she came in contact with something hot — she sometimes had trouble taking a warm shower — and when the chicken and rice hit her in the face, her skin started to feel like it was burning. She wanted to go to the hospital, but her district manager was unsympathetic. “They were just like, ‘Stick it out, you’re almost through,’” Russell said. It was eight o’clock and the restaurant was open until 11. Russell finished her shift with cheese on her uniform and sour cream in her long pink hair, and had to stick around afterward to close up the kitchen. “They told me over the phone, ‘Whatever you leave behind is gonna come back on you the next morning,’” Russell said.
After the incident, Russell took four days off, during which she barely left her house. The video clip was all over the internet, which was a bizarre experience, and she didn’t hear much from her bosses. “They just said, ‘When are you coming back?’” Russell said. She eventually returned to work, but says Chipotle made a number of promises they never fulfilled: that security would man the store for two days after the incident (no guards showed up), and that she would be getting an email from corporate about a therapist she could see (the email never came). (Chipotle did not respond to a request for comment.) Customers were recognizing her from the video and asking for selfies. Russell started crying on the way to work, stressed by all the attention and worried that Hayne might come back to the restaurant. “She could have come back with anything — with a gun, with a knife,” Russell said. At one point, Russell thought she saw Hayne while driving down the street, but figured she was just being paranoid.
In fact, Hayne had been coming back to Russell’s Chipotle. “I went there a week later,” Hayne told me when we spoke a few months after the incident. She usually sent her daughter inside to pick up the food. Hayne wasn’t looking to get recognized for what she had done, either.
Hayne says that everyone in her life was surprised by the video, from the guys at her corner gas station to a friend at church. Hayne insisted she had never thrown food at anyone before — that she had never thrown anything at anyone before. “She pulled the Italian Gemini out of me,” Hayne said. “I’m 40 years old and nobody’s ever done that, not even my husband.” Everyone she knew who saw the video had the same question: What on Earth made you do that? She insisted that the only way to understand was to get into her shoes.
The day of the incident had been a long one. Hayne had been doing yard work for hours and cleaning out the above-ground swimming pool at the home she and her family of five rented, at which point she decided she wouldn’t be cooking that night. She left her husband in the pool to go pick up dinner for everyone, which was an operation in itself. Before Chipotle, which one of her daughters had requested, Hayne stopped at Starbucks to pick up an order for another daughter, and then McDonald’s for herself; after the fight at Chipotle, she went to Wingstop for her husband. “That’s the type of mom I am,” Hayne said.
It wasn’t hard for the cops to find her: Hayne’s name and number was on the Chipotle order, and another customer had taken down her license-plate number. “When the police came to my house, I swear to God, the first thing they said to me was, ‘You know you fucked up by going to that Chipotle—that Chipotle is shit!’” Hayne recalled. She says the cops told her she should have known she would get better service at one of the Chipotles in the next town over.
This reaction from the cops didn’t exactly diminish Hayne’s feeling that while her outburst had been dumb, it had also been righteous. She insisted that a full video of the encounter, rather than the one-minute clip that circulated online, would tell a different story. “You will see me waiting for 35 minutes. You’ll see me say something to Emily that’s not rude or anything. You’ll see her talk rude to me,” Hayne said. “I wish I could post that.”
Her lawyer, who was on the phone, jumped in. “I want to just interject there that none of that is a defense,” he said.
Hayne agreed — “I was absolutely wrong” — before returning to her defense, in minute detail, down to an insistence that Russell was lying about the food being hot when it hit her face. (“The only thing that was warm on that food was the rice and chicken, and it had extra sour cream and extra-cold cheese on top of it.”) After the incident, Hayne went looking for Russell’s Facebook page — “I wanted to be snoopy” — and saw a photo of her at a concert two days later. “She’s like, ‘The food burned my face!’ But she doesn’t have bruises or marks on her face, or burns or anything,” Hayne said. She insisted that if I saw the food for myself, I would understand. So she sent me a photo of the inciting burrito bowl.
I had to admit, the bowl didn’t look especially appetizing. But it also looked like what Hayne had ordered: white rice, chicken, sour cream, and cheese — no more, no less. The bowl wasn’t full, but there was only so much of four ingredients you could pile on. It certainly didn’t seem worth getting in a fight over, and every time I tried to understand what about the bowl had driven her to such anger, Hayne didn’t offer much beyond her insistence that the whole experience — the delay, the lackluster bowl, and the treatment she got from Russell — had been maddening. “I wanted to punch her,” Hayne said, suggesting that the counter between her and Russell was the only thing that kept the altercation from becoming even more confrontational. “As soon as it happened, in my head, I said, I’ve got to get the fuck out of here. I’m about to fight everybody in Chipotle.” Whatever made her snap, Hayne wasn’t eager to examine it.
When Rosemary Hayne came into Judge Gilligan’s courtroom, he had served on the bench in Parma for 30 years. Maybe he was just getting old, but it sure felt like he was seeing more people coming in for inexplicable behavior. In 2020, Gilligan had adjudicated a case in which a 24-year-old woman climbed through the drive-through window of a McDonald’s and attacked three employees because there was no cookie in her meal. He really did blame the Real Housewives, which he had cited at Hayne’s sentencing. “That kind of probably phony reality show makes people think this is really how people behave,” he said.
Gilligan told me the deal he gave Hayne was an unusual departure for him from traditional sentencing guidelines. “I wish I could give you an esoteric or intelligent answer, but I don’t have it,” Gilligan said. “The idea just dawned on me: She needs to learn how to treat people.” The only similar punishment he could recall giving out went to a local slumlord who was leaving basic maintenance undone. Gilligan sentenced him to live in one of his derelict units for six months, with an ankle bracelet to confirm he was sleeping there. “All those things got fixed before he got out,” Gilligan said. In Hayne’s case, Gilligan didn’t think jail time was good for her, or the public, who would have to pay to keep her locked up. “I viewed this as, ‘She completely lost her mind during this episode,’” Gilligan said. “What is she going to learn sitting in a jail cell for 90 days?”
It’s a tantalizing idea: If an angry passenger had to work a bumpy regional flight from Birmingham to Knoxville, would they stop being so mean to their flight attendants? Rehabilitation and accountability have long been goals of criminal-justice reformers seeking alternatives to incarceration, and American judges have a considerable amount of sentencing discretion, especially in misdemeanor cases like Hayne’s. The Cleveland metropolitan area, as it happens, has been a locus of creative sentencing. Judge Michael Cicconetti, who served as a judge for 25 years in a different Cleveland suburb, became known for his unusual sentences: making a woman who abandoned a litter of cats in two local parks spend a night in the woods herself, or, in another fast-food case, making a customer who used pepper spray on a Burger King employee submit to being pepper-sprayed herself. The primary limitation on a judge’s ability to get creative is the Eighth Amendment to the Constitution, which prohibits “cruel and unusual punishments.” (To stay Eighth Amendment compliant, Cicconetti replaced the pepper spray with saline solution.)
Gilligan didn’t see imposing fast-food work as cruel, even if he knew how difficult it could be: He had worked at McDonald’s and Arthur Treacher’s Fish & Chips in high school. And Gilligan insisted that he wasn’t trying to equate fast-food service with incarceration, as some of the reaction to his sentence accused him of doing. (From “Weekend Update” on SNL: “Fast food … where your job is other people’s jail.”) “This wasn’t about punishment,” Gilligan said. “This was about gaining empathy.”
But if there was a flaw in Gilligan’s experiment, it was the fact that Rosemary Hayne wasn’t a wealthy Real Housewife blind to how difficult a fast-food worker’s life could be. In fact, she knew it well. Roughly 3.6 million people in the U.S. currently work in fast food; according to McDonald’s, one in eight Americans have worked in one of its restaurants at one point or another. Hayne was already one of them, having worked at a McDonald’s as well as a Burger King in the 2000s. She knew how unpleasant the work could be. “You don’t get paid shit, and people are so rude,” Hayne said. “Being around food, my clothes smelling like food, being greasy — I swore to God I would never work in fast food again. I did my time.”
Hayne’s life had been marked by challenges. Her mother died when she was 20, at which point Hayne was already pregnant with her second child. “I was pregnant at 17 years old, so my whole life has been taking care of my kids,” she said. “I don’t bar hop. I don’t kick it in clubs. I live a lame mom life.” She had been with her husband for 20 years, and they had three daughters. In the middle of telling me the story of her arrest at Chipotle, an alarm went off on her phone to remind her to change the laundry. Hayne moved from Brooklyn, Ohio, another Cleveland suburb, to Parma 12 years ago because she said the city had highly rated schools. But Parma had fallen on tougher times. In the Reddit comments on the video of Hayne at Chipotle, several locals linked to “Parma State of Mind,” a local spoof of the Jay-Z song that aired on a popular Cleveland morning-radio show:
In Parma, see what G.E.D. dreams are made of/
We need something to do/
Stuck here in Parma/
These streets are rotting with potholes/
No one takes birth control/
Let’s hear it for Parma, Parma, Parma
After her time in fast food, Hayne went on to work at a dollar store and a CVS, and more recently as a third-party delivery driver for a company she asked me not to name. She liked that job better: She didn’t have to deal with a boss, or anyone else, given that the customers ordered their items online just like she had with her burrito. Hayne and her husband worked together — he drove, she delivered the packages — showing up to a distribution center at 3:30 or four in the morning to pick up a route that was estimated to take five hours. Working together, they could finish more quickly, and fast enough to get home and drive their youngest daughter to school and their middle child to work. “My normal life is waking up at three in the fucking morning to run a marathon,” Hayne told me.
Hayne objected to the notion that she needed to learn how to be empathetic, but she was grateful for Gilligan’s sentence. “To get that rather than have to sit in jail — amen, thank you,” Hayne told me. “Let me go to Burger King and be their bitch, for real.” Her first task was to find a job. She thought about not mentioning the incident in interviews, but didn’t want to deal with her boss finding out midway through. “I was completely honest with people,” she said. “And I did get shut down probably seven times.” Hayne says she was turned away by a Subway, a Chick-fil-A, and four different McDonald’s. (She didn’t try Chipotle.) A Burger King manager told her the store was fully staffed. “Come on, I’m not stupid — Burger King will take any-fucking-body that applies,” Hayne said.
In January, Hayne finally landed a job at a different Burger King. She promised to try to make the best of it. “I don’t go to work with a shitty attitude,” Hayne told me, after she started working at the restaurant. “I jump in and help out when I need to. I go there and count my steps and put my headphones in.” She often worked her Burger King shift after making her morning delivery run. The Chipotle incident came up only once at her new job, when one of her colleagues mentioned the video. Hayne decided to own her transgression. “I cut her off, like, ‘Girl, you’re not going to believe it — that’s me,’” Hayne said.
Hayne had dealt with only one notably rowdy customer at the Burger King. One day, in the drive-through, a woman got a four-piece order of mozzarella sticks and asked for eight packets of marinara sauce to go with it. One of Hayne’s colleagues told the woman she would have to charge her for the extra marinara. “And the lady’s like, ‘What the fuck?’” Hayne said. Eventually, a manager stepped in and made the woman pay for the extra sauce. Everyone went on with their day, but Hayne had a different view of the situation. “If I was on the drive-through: ‘Here’s your eight fucking sauces, have a nice day,’” she told me. “I know that the customer is always right — whether they’re wrong or not, give ‘em what they want. That burger ain’t costing you shit. It ain’t costing that company shit.”
For Russell, the encounter with Hayne had affected her life in unforeseen ways. Going viral for having a burrito bowl thrown in your face was a confusing, humiliating experience, and she still thought about the incident pretty much every day. The manager of her Chipotle quit a few weeks after the burrito-bowl attack, and Russell was asked to take on the manager’s responsibilities, albeit without a new title or a raise. When she asked for one, the company offered to bump her hourly rate by ten cents. “I was making $19.49,” Russell told me. “So I went up to $19.59.” Russell quit a few weeks later. The indignity, on top of all the stress she had endured going back to work, had spoiled a job she loved where the customers showed no signs of becoming more agreeable. Earlier this year, Chipotle workers were up in arms over a “stressful and dehumanizing” TikTok meme that encouraged people to make sure employees didn’t skimp on their burritos by filming them with their phones along the buffet line, rather than simply asking nicely for an extra scoop of carnitas.
Russell quickly found another job at a Raising Cane’s one town over. But she lasted just four months. “I couldn’t do it anymore,” Russell told me. “I couldn’t deal with the customers.” (It didn’t help that she had to take a pay cut, to $16.50 an hour.) She was having panic attacks on the way to work, worried another angry customer would send a box of chicken fingers her way. And all the attention wore on her. “Even to this day, people recognize me. ‘Are you that girl from the Chipotle video?’” Russell said.
There were bright spots. When the video went viral, people found Russell on Facebook and shared their own stories of encounters with angry customers, from places as far flung as Mexico and Ireland and Dubai. The same customer who posted the video to Reddit set up a GoFundMe for Russell that eventually topped $10,000 after Gilligan’s sentencing made the news. Most of it went to paying off Russell’s debt, and giving her enough runway to get out of fast food entirely. In April, Russell started working at a nursing home. The job wasn’t easy: 7 a.m. to 7 p.m. bathing and feeding people who couldn’t do so themselves. Even though she was now taking care of peoples’ grandparents, the pay ($15 an hour) was somehow even worse than at Raising Cane’s. But Russell liked taking care of people, just as she had liked seeing her regulars at Chipotle. “I’m just hoping that everything falls into place,” she said. This summer, Hayne passed a state test to become a nurse aide and found a job at a different nursing home, where she was back up to the $19 an hour she made at Chipotle.
When Hayne and I first spoke, she had just finished her two months at Burger King, which had gone well enough that the restaurant asked her to stay on. She could make better money delivering packages, but decided to stick with Burger King to impress Judge Gilligan, who still had to decide whether she would spend the final 30 days of her sentence in jail.
Gilligan told me that he believed the experiment had worked. “I got a letter from the general manager of the Burger King saying, ‘We like her, we’re gonna keep her,’” Gilligan said. He felt obliged to give Hayne a taste of what more severe punishment could be like, but let her go free after just two nights in jail. After she got out, Hayne told me that two nights was enough to make her disagree with Russell’s assessment that working fast food was worse than doing time. “Jail sucks,” she said.
Hayne insisted that she had grown from the entire experience. But it wasn’t immediately clear that two months of slinging burgers had done much to dampen the righteousness she still felt. Each time Hayne told me she had been wrong to throw the bowl, she followed it with a quick “but” and an insistence that the service had been bad enough to warrant a response. Once Gilligan let her out of jail, she quit the job at Burger King “as soon as I could.” She didn’t want to dwell on what happened, or think much about why she had done what she did. She was trying to focus on the future, even if the future was hazy. “I’d love to move on in the world, and own my own shit, and be rich,” Hayne told me. “But dreams don’t always come true like that.”
The jury remains out on creative sentences and how effective they can be. In 2017, Cleveland Magazine surveyed 46 cases in which Judge Cicconetti had given out unusual punishments. In half of those cases, the offender ended up back in court. (The overall recidivism rate in Ohio was 27 percent.) The magazine also spoke to one man who received a creative sentence from Cicconetti and said that the subsequent virality of his judgment, which made the news, had been more punishing than the sentence itself. He had even considered changing his name. Hayne could empathize with that. “I just don’t want to be somebody in a bad way, you know what I’m saying?” she told me. For the crime of throwing a burrito bowl, a permanent stain on your Google results was probably punishment enough.
The experiment had also done little to inspire either woman to pursue any kind of reconciliation. Russell told me she didn’t think there was anything Hayne could do to earn her forgiveness, while Hayne presumed the worst possible reaction from Russell. “I would probably expect her to talk shit,” Hayne said. The good news, if you want to call it that, is that the problem of dealing with the friction of other humans is becoming increasingly moot.
Last fall, a month after the incident in Parma, Chipotle announced that it was testing out a new robot that could work alongside others that can make tortilla chips (the robot’s name was Chippy) and cut, core, and peel avocados for guacamole. (It goes by Autocado.) The newest Chipotle robot was even more advanced. It can’t quite handle a tortilla — yet — but it can take over the human job of filling up a burrito bowl precisely calibrated to deliver Chipotle’s standard portion sizes without any conversation or coaxing or arguing. There would be no need to learn how to empathize with the burrito bowl robot: If you throw your bowl back in disgust, there won’t be anyone to hurt.
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