Opinion
20 Civ. 461 (CS)(PED)
01-10-2022
Tiffany Graham, Plaintiff, v. Prizm Associates, Inc., Tru-Dental, P.C., Craftsman Dental Lab, Inc., Progressive Health Management, Inc., Karina Intriago Gonzalez, David Gonzalez, All Access Dental, Prospect Dental, P.C., and Patrick Mascarenhas, Defendants.
TO THE HONORABLE CATHY SEIBEL, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
I. INTRODUCTION
Plaintiff commenced this action on January 17, 2020 against the above named Defendants, after which Plaintiff filed an Amended Complaint on May 7, 2020. Plaintiff alleges discrimination and wrongful termination on the basis of pregnancy and disability in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the New York State Human Rights Law. Plaintiff also alleges violations under the New York Labor Law, including failure to provide wage statements and statutory notices, as well as conversion, theft, and fraud. [Amended Complaint, Dkt. 37.] After several mediation conferences, on September 16, 2020 the mediator filed a final report indicating that an agreement had been reached between some, but not all, of the parties. [Dkt. 67.] On November 10, 2020, Your Honor signed a stipulation of dismissal with prejudice as to Defendants Tru-Dental, P.C., All Access Dental, Prospect Dental, P.C., and Patrick Mascarenhas. [Dkt. 69.]
The remaining Defendants, Prizm Associates Inc., Craftsman Dental Lab, Inc., Progressive Health Management, Inc., Karina Intriago Gonzalez, and David Gonzalez failed to answer and, on February 2, 2021, Your Honor signed default judgments against those Defendants. On the same day, Your Honor referred the matter to me for an inquest on damages, attorneys' fees and costs. [Dkt. 83.]
On February 5, 2021, I entered a scheduling order directing Plaintiff to file and serve proposed findings of fact and conclusions of law by March 5, 2021 and directing the remaining Defendants to submit any responsive materials by March 26, 2021. [Dkt. 84.] The scheduling order also stated the following:
The Court hereby notifies the parties that it may conduct this inquest based solely upon the written submissions of the parties. See Fustok v. ContiCommodity Servs, Inc., 873 F.2d 38, 40 (2d Cir. 1989). To the extent that any party seeks an evidentiary hearing on the issue of damages (or other monetary relief), such party must set forth in its submission the reason why the inquest should not be conducted based upon the written submissions alone, including a description of what witnesses would be called to testify at a hearing and the nature of the evidence that would be submitted.
[Dkt. 84, ¶ 4.] On March 2, 2021, Plaintiff filed proof of service of the scheduling order on each of the remaining Defendants, which had been properly served on February 5, 2021. [Dkt. 85-89.] On the same day, Plaintiff filed the statement of damages, affidavit in support of damages, and exhibits in support of Plaintiff's proposed findings of fact regarding damages. [Dkt. 90 and 90-1 to 90-9.] Plaintiff also filed proof of service of the same on the remaining Defendants. [Dkt. 9010.] On April 8, 2021, Plaintiff filed a letter indicating that Defendants David and Karina Gonzalez had jointly filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code on March 23, 2021 in their individual capacities. [Dkt. 94.]
To date, the remaining Defendants have not filed any opposition, nor have they contacted the Court in any way. Plaintiff has not requested an evidentiary hearing on the issue of damages.
Because Plaintiff's inquest submissions provide a basis for damages, no hearing was required. Fustock, 873 F.2d at 40. Plaintiff seeks a total damages award of $296,352.65. On the basis of Plaintiff's written submissions, and for the reasons that follow, I respectfully recommend that Your Honor enter judgment in favor of Plaintiff in the amount of $196,352.12.
II. BACKGROUND
During the relevant period, Plaintiff worked as a dental assistant and began working for Defendants sometime in 2016. [Dkt. 37, ¶¶ 68-74.] Plaintiff primarily worked in offices jointly maintained by Defendants in Beacon, New York and Hyde Park, New York, as well as in other locations in the state. [Dkt. 37, ¶ 74.]
Tru-Dental, P.C., Prospect Dental, All Access Dental, and Patrick Mascarenhas are coDefendants who jointly answered the Amended Complaint on June 29, 2020. [Dkt. 58.] Tru-Dental and Prospect Dental were both New York corporations maintaining a corporate office in Beacon, New York. [Dkt. 37, ¶¶ 14-15 and 62-63; Dkt. 58, ¶¶ 14-15 and 62-63.] Defendant Mascarenhas was the sole owner of Tru-Dental and Prospect Dental. [Dkt. 58, ¶¶ 49, 61.] All Access Dental was not an independent legal entity, and was instead a fictitious name under which Tru-Dental and Prospect Dental did business. [Dkt. 58, ¶¶ 17, 57, and 60.] Until around July 2018, Tru-Dental shared office space with the remaining corporate Defendants in Beacon, New York, and Prospect Dental operated out of a separate office space also located in Beacon, New York. [Dkt. 37, ¶¶ 27 and 63; Dkt. 58, ¶¶ 27 and 63.]
Prizm Associates, Inc., Craftsman Dental Lab, Inc., and Progressive Health Management, Inc. were related business entities operating from the same location in Beacon, New York. [Dkt. 37, ¶¶ 12, 20-21, and 28-29.] During the relevant period, Karina Gonzalez was the CEO of Prizm and Craftsman. [Dkt. 37, ¶¶ 51-52.] During that same period, David Gonzalez was the CEO of Progressive. [Dkt. 37, ¶ 54.] David and Karina Gonzalez were also married to each other. [Dkt. 37, ¶ 56.]
Plaintiff became pregnant in 2018. [Dkt. 37, ¶ 105.] In May of 2018, Plaintiff's doctor instructed her not to work more than six hours per shift due to her pregnancy, hypertension, and back pain. [Dkt. 37, ¶ 106.] On June 6, 2018, Plaintiff's doctor instructed her to begin medical leave due to health conditions including hypertension and gestational diabetes. [Dkt. 37, ¶ 107.] That day, Plaintiff advised Defendants of her doctor's instructions, and that she would require leave due to her pregnancy and other medical conditions. [Dkt. 37, ¶¶ 112-14.] Plaintiff made a request to Defendants for a copy of their maternity leave policy, which was not provided. [Dkt. 37, ¶¶ 119-20.] Plaintiff advised Defendants that she would return to work after she gave birth and received clearance from her doctor to return to work. [Dkt. 37, ¶ 118.]
Plaintiff gave birth in November 2018. [Dkt. 37, ¶ 123.] She contacted Defendants on or around December 2018 to arrange returning to work in January 2019, however Defendants did not allow Plaintiff to return to work and did not provide Plaintiff with a notice of termination. [Dkt. 37, ¶¶ 124-27, 129.] Prizm issued a Form W-2 for Plaintiff's 2018 wages and withheld state a federal tax from Plaintiff's wages, but Prizm did not file Plaintif's W-2 with state or federal government agencies, nor did it transmit those amounts to the appropriate agencies. [Dkt. 37, ¶¶ 130-37.] Defendants also did not provide Plaintiff with proper notice of her pay rate or a proper earnings statement with each paycheck throughout her employment. [Dkt. 37, ¶¶ 138-45.]
III. LEGAL STANDARD
A. Standard for Inquest on Damages
When a defendant defaults, the court must accept all well-pleaded factual allegations in the complaint as true, except those pertaining to the amount of damages. Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6, 84 (2d Cir. 2009); Fed.R.Civ.P. 8(b)(6). “Nonetheless, even after default has been entered, district courts retain the discretion to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.” U.S. ex rel. Nat. Dev. & Const. Corp. v. U.S. Env't Universal Servs., Inc., No. 11 Civ. 730, 2014 WL 4652712, at *2 (S.D.N.Y. Sept. 2, 2014)(quotation and citation omitted); see also Fed.R.Civ.P. 55(b)(2). In other words, because a defaulting defendant does not admit conclusions of law, Amer. Trans. Ins. Co. v. Bilyk, No. 19 Civ. 5171, 2021 WL 216673, at *4 (E.D.N.Y. Jan. 21, 2021), the court “is also required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law.” Finkel, 577 F.3d at 84. “A default, then, only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendant.” Taizhou Zhongneng Import and Export Co., LTD. v. Koutsobinas, 509 Fed.Appx. 54, 56 (2d Cir. 2013).
Similarly, a defendant's default does not constitute an admission of damages. Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015). On an inquest for damages, the plaintiff bears the burden of proof and must introduce admissible evidence to establish, with reasonable certainty, a basis for the amount of damages it seeks. House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010); Yunjian Lin v. Grand Sichuan 74 St Inc., No. 15 Civ. 2950, 2020 WL 3072290, at *2 (S.D.N.Y. June 10, 2020). The plaintiff is entitled to all reasonable inferences from the evidence it presents. House, 359 Fed.Appx. at 207.
B. Effect of Bankruptcy
The Bankruptcy Code contains provisions which, upon the filing of a bankruptcy petition, automatically stays certain efforts by creditors of the debtor's estate and protects debtors from contemporaneous judicial proceedings. See Manson v. Friedberg, Case No. 08 Civ. 3890 (RO)(LMS), 2013 WL 2896971, at *2 (S.D.N.Y. June 13, 2013). Section 362(a) provides an automatic stay for:
(1) the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; [and] (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate[.]11 U.S.C. §§ 362(a)(1), (3).
Accordingly, once a debtor files for bankruptcy, actions against that debtor are stayed by Section 362(a)(1), and actions to obtain possession of property owned by the estate are automatically stayed by section 362(a)(3). The purpose of automatic stays is to give the debtor “a breathing spell from creditors.” Manson, 2013 WL 2896971, at *3 (citing Teachers Ins. and Annuity Ass'n of America v. Butler, 803 F.2d 61, 64 (2d Cir.1986)). However, Section 362 of the Bankruptcy Code only applies to the property of the debtor and the bankruptcy estate, and as such “does not apply to stay proceedings against non-debtors.” Id (citing In re Cafpine Corp., 365 B.R. 401, 408 (S.D.N.Y. 2007)). Under Section 541(a)(1), the property of the bankruptcy estate consists of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1).
A corporation is a separate legal entity, which can own property, enter into contracts, and be sued. Manson, 2013 WL 2896971, at *3. Accordingly, whatever legal or equitable interest an individual has in a corporation is personal property within the meaning of the bankruptcy estate under § 541, but property of the corporation is not property of individual owners, and owners of a corporation have no interest in the property of the corporation. Id. (citing In re Rodio, 257 B.R. 699, 701 (Bankr. D.Conn. 2001)). Therefore, the automatic stay does not extend to property of the corporation in cases where the corporation has not filed for bankruptcy, even though the individual owners of the corporation have filed for bankruptcy. See, e.g., In re Sheu, 2009 WL 1794473 (Bankr. E.D.N.Y.2009) (refusing to extend the automatic stay in an individual debtor's bankruptcy case to cover a corporation wholly owned by the debtor). Furthermore, by the plain language of the Bankruptcy Code, the automatic stay only applies to a “proceeding against the debtor.” 11 U.S.C. § 362(a)(1). As such, the automatic stay does not apply to proceedings against non-bankrupt co-defendants. Manson, 2013 WL 2896971 at *4 (collecting cases).
Here, individual Defendants Karina Intriago and David Gonzalez own Prizm Associates, Inc., Craftsman Dental Lab, Inc., and Progressive Health Management, Inc., the corporate Defendants. The individual Defendants filed for bankruptcy, but the corporate defendants did not. In Manson, the court held that assets held by the corporate defendants were not protected simply by virtue of the fact that their owner had filed for bankruptcy. Manson, 2013 WL 2896971, at *4. In the same vein, the assets held by the corporate Defendants are not protected by the automatic stay simply by virtue of the fact that their owners filed for bankruptcy. Accordingly, this damages inquest may proceed against the corporate Defendants, even though the individuals Defendants filed for bankruptcy. Id. at *4.
Plaintiff may move the Bankruptcy Court for relief from the automatic stay to pursue actions against the individual Defendants, who are debtors before the Bankruptcy Court, to proceed with actions which would otherwise be prohibited due to the automatic stay, including an inquest on damages. See, e.g., Cocoletzi v. Fat Sal's Pizza II, Corp., Case No. 15 Civ. 2696 (CM)(DF), 2019 WL 92456 (S.D.N.Y. Jan. 3, 2019), report and recommendation adopted (Jan. 3, 2019), order clarified, 2019 WL 5727472 (S.D.N.Y. Jan. 7, 2019). In Cocoletzi, the plaintiff sought relief from the automatic stay before the bankruptcy court, which in turn allowed the plaintiff to proceed with a damages inquest against the debtor who had filed for bankruptcy. Id. at *3-4. Here, Plaintiff has not indicated that she sought relief from the automatic stay to proceed against the individual Defendants. Nevertheless, as in Mason, the instant inquest may proceed against the corporate Defendants, even though the individual Defendants are protected under the stay. Manson, 2013 WL 2896971, at *4.
IV. FINDINGS OF FACT AND LAW
Plaintiff seeks a total award of $296,352.65, consisting of economic damages, compensatory damages including pain and suffering, punitive damages, statutory damages, and attorneys' fees. Plaintiff disclosed that she obtained a settlement of $23,750.00, of which Plaintiff had received $15,914.00, and the remaining $7,836.00 had been paid for attorneys' fees and costs. [Dkt. 90 at 2, ¶ 7; Dkt. 90-1, ¶ 43.]
A. Back Pay
Plaintiff seeks back pay in the amount of $72,000.00, for a total of $56,086.00 after subtracting her prior settlement award of $15,914.00. [Dkt. 90, ¶¶ 33-39.] Absent special circumstances, courts generally award back pay in employment discrimination cases. Angulo v. 36th St. Hosp. LLC, Case No. 19 Civ. 5075 (GBD)(SLC), 2020 WL 4938188, at *10 (S.D.N.Y. July 31, 2020), report and recommendation adopted, 2020 WL 4936961 (S.D.N.Y. Aug. 24, 2020) (citing Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 580 (2d Cir. 1989) (“An award of backpay is the rule, not the exception.”)). Back pay may be appropriate under Title VII, the Americans with Disabilities Act, and the NYHRL. Kuper v. Empire Blue Cross & Blue Shield, Case No. 99 Civ. 1190, 2003 WL 359462, at *6 (S.D.N.Y. Feb. 18, 2003) (affirming award of back pay for claims under the ADA and NYHRL); Manson, 2013 WL 2896971, at *6 (awarding back pay under Title VII). A prevailing plaintiff in a discrimination action is entitled to back pay from the date of termination to the date of judgment. Manson, 2013 WL 2896971, at *6.
A plaintiff alleging employment discrimination is ordinarily required to mitigate her damages. Angulo, 2020 WL 4938188, at *10 (internal citations omitted). “This obligation is not an onerous one, and there is no requirement that a plaintiff be successful in obtaining comparable work, only that ... she make[ ] a good faith effort to do so.” Id. (citing Nanjin v. Dollar Mountain, Inc., Case No. 14 Civ. 5758 (WHP), 2015 WL 6125436, at *2 (S.D.N.Y. Sept. 25, 2015)). Defendants have the burden to show lack of mitigation. Id. (internal citations omitted). Even a plaintiff who fails to mitigate “is still entitled to an amount that would make [her] whole.” Angulo, 2020 WL 4938188, at *11 (internal citations omitted).
Plaintiff attempted to return to work in January 2019, and was therefore constructively terminated as of that date. The default judgment was entered on February 2, 2021, 25 months, or 108 weeks, after the date of Plaintiff's termination. According to Plaintiff's earning statements, Defendants paid her $20.00 per hour. [Dkt. 90-5 at 2.] Plaintiff calculates her total back pay based on a 35-hour workweek and seeks a total of $72,000.00 for this period. Based on these numbers, $20.00 per hour x 35 hours per week x 108 weeks = $75,600.00. Plaintiff presumably accounted for vacation and other time off in her calculation, and I defer to her approximation.
Plaintiff attempted to mitigate her damages by seeking other employment during the period. Plaintiff applied to at least two dental assistant positions, and Plaintiff states that she continued looking for employment from January 2019 through at least July 2019. [Dkt. 90-6, job search documents.] As of February 20, 2021, the date of Plaintiff's affidavit in support of her proposed findings of fact and law, she had not been able to find a new job. [Dkt. 90-1, ¶ 47.] Plaintiff has thus demonstrated that she attempted to mitigate her damages, even though she was unsuccessful. Defendants, by failing to respond to Plaintiff's damages submission, have not asserted any affirmative defenses to satisfy their burden that Plaintiff failed to mitigate damages. Plaintiff received a settlement from the prior Defendants, in the amount of $23,750.00, of which $15,914.00 was paid to Plaintiff. Subtracting that amount from Plaintiff's total back pay, the remainder comes to $56,086.00. Accordingly, I recommend that Your Honor award Plaintiff a total of $56,086.00 for back pay.
B. Interest on Back Pay
Plaintiff also seeks $10,516.65 as interest on her award for back pay. [Dkt. 90 at ¶¶ 66-71.] Failing to award pre-judgment interest on back pay is ordinarily an abuse of discretion. Kamiel v. Hai St. Kitchen & Co. LLC, Case No. 119 Civ. 5336 (PAE)(SDA), 2020 WL 1916534, at *5 (S.D.N.Y. Mar. 17, 2020), report and recommendation adopted (S.D.N.Y. Apr. 20, 2020). New York State law sets an interest rate on back pay of 9% per year. Id. (citing N.Y.C.P.L.R. §§ 5001, 5004). Accordingly, federal courts award interest at a rate of 9% on back pay awarded as part of compensatory damages where a plaintiff prevails under both state and federal law.
Angulo, 2020 WL 4936961, at *2. Interest is calculated per year as simple interest from the date of termination through the date of the judgment. Sanchez Gallego v. Adyar Ananda Bhavean Corp., Case No. 16 Civ. 4631 (AJN), 2019 WL 131957, at *3 (S.D.N.Y. Jan. 8, 2019).
Plaintiff was terminated in January 2019, and the default judgment was entered in February 2021, amounting to two years and one month, or 2 and 1/12 year. Applying the formula for simple interest: $56,086.00 x (rate x 2.0833333) = $10,516.12. Accordingly, I recommend that Your Honor award Plaintiff $10,516.12 for pre-judgment interest on back pay.
C. Front Pay
Plaintiff seeks a front pay award of $108,000.00 for three years from the date of the default judgment. [Dkt. 90, ¶¶ 40-48.] “Front pay involves calculating economic losses that will be experienced by a plaintiff in the future, as a result of the unlawful conduct of the defendant.” Angulo, 2020 WL 4938188, at *11 (internal citations omitted). “The decision to award front pay ‘is entirely within the court's discretion, and it is designed to make the plaintiff whole.'” Id. (internal citations omitted). “Under Title VII, front pay is unquestionably an equitable remedy to be decided by the Court.” Thomas v. iStar Fin., Inc., 508 F.Supp.2d 252, 258 (S.D.N.Y. 2007), aff'd, 629 F.3d 276 (2d Cir. 2010) (per curiam). “Factors to be considered in determining front pay include the age of the plaintiff and h[er] reasonable prospects of obtaining comparable employment, ” and “the ability of the plaintiff to mitigate damages in the future.” Thomas, 508 F.Supp.2d at 260-61. However, a front pay award cannot be “unduly speculative, ” and cannot constitute a “windfall” for a plaintiff. Chisholm v. Mem'l Sloan-Kettering Cancer Ctr., 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011).
Plaintiff is approximately 35 years old. She was terminated by Defendants through no fault of her own, and there is no evidence to suggest that Plaintiff's work performance was less than satisfactory. Plaintiff has continued to look for work, but has been unsuccessful to date. Plaintiff also states that finding work has been made more difficult after her wrongful termination, and that she must explain her termination to new employers. [Dkt. 90-1 at ¶ 58.] Accordingly, she seeks three years of front pay, which is reasonable and within the range of comparable cases in this district. Chisholm, 824 F.Supp.2d at 577 (awarding two years of front pay); Angulo, 2020 WL 4938188, at *12 (awarding four years of front pay, and collecting cases). Plaintiff seeks a total of $108,000.00, based on an annual salary of $36,000.00 at a pay rate of $20.00 per hour and a 35 hour work week. However, as above, Plaintiff rounds down: $20.00 per hour x 35 hours per week x 52 weeks per year = $36,400.00. In any event, $36,000.00 x 3 years = $108,000.00. Accordingly, I respectfully recommend that Your Honor award Plaintiff $108,000.00 in front pay damages.
D. Compensatory Damages
Plaintiff seeks compensatory damages for emotional pain and suffering in the amount of $35,000.00. [Dkt. 90, ¶¶ 49-51.] “A prevailing plaintiff in a Title VII action is entitled to be compensated for ‘emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary loss.” Manson, 2013 WL 2896971, at *7 (citing 42 U.S.C. § 1981a(b)(3)). Title VII imposes mandatory caps on compensatory damages based on the number of employees a defendant has. Id. (citing 42 U.S.C. § 1981a(b)(3)(A-D)). However, a plaintiff can recover under both Title VII and the NYHRL. Id. (citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459 (1975)). The NYHRL does not pose a monetary cap on compensatory damages. Id.
Under the NYHRL, an award of compensatory damages for emotional distress may be based solely on a plaintiff's testimony. Manson, 2013 WL 2896971, at *7 (citing New York City Transit Authority v. State Div. of Hum. Rights, 78 N.Y.2d 207, 214-16 (1991)). When calculating damages for emotional distress, courts should consider the duration, severity, consequences, and physical manifestations of mental anguish, and such damages should be reasonably related to the effects of the wrongdoing and consistent with damages awarded in comparable cases. Id. (internal citations omitted). For “garden variety” emotional distress claims, district courts have awarded damages ranging from $5,000 to $35,000, based on a plaintiff's vague or conclusory statements. Becerril v. East Bronx NAACP Child Development Ctr., Case No. 08 Civ. 10283 (PAC)(KNF), 2009 WL 2611950 at *6 (S.D.N .Y. Aug. 18, 2009) (internal citations omitted), report and recommendation adopted, Becerril v. East Bronx NAACP Child Development Ctr., 2009 WL 2872992 (S.D.N.Y. Sept. 17, 2009). More significant awards would require additional evidence and testimony, including medical testimony or documentation. Id.
Here, Plaintiff supports her request for $35,000 of emotional distress damages with a sworn affidavit, stating that she was upset and experienced humiliation, embarrassment, and stress. [Dkt. 90-1 at ¶¶ 56-58.] Plaintiff also states that having been terminated by the Defendants may unfairly prejudice her ability to find additional work. [Dkt. 90-1 at ¶ 58.] To the extent the Defendants' conduct would affect Plaintiff's ability to find additional work, those damages are more appropriate in a front pay award, which was addressed above.
The emotional distress Plaintiff experienced is consistent with “garden variety” cases where courts have awarded $10,000.00. See, e.g., Manson, 2013 WL 2896971, at * 8-9 (awarding $10,000 where the plaintiff stated she experienced low self-esteem and humiliation without psychiatric treatment); see also New York State Dept't of Correctional Services v. State Div. of Hum. Rights, 207 A.D.2d 585, 586 (N.Y. 3d Dep't 1994) (awarding $10,000 based on the plaintiff's testimony that she felt depressed and angry, lost sleep, and saw a psychiatrist six times); City of Fulton v. New York State Div. of Hum. Rights, 221 A.D.2d 971, 971 (1995) (awarding $10,000 based on testimony that the plaintiff felt upset and disappointed, and collecting cases). Accordingly, I respectfully recommend that Your Honor award Plaintiff $10,000.00 in compensatory damages for emotional distress.
E. Punitive Damages
Plaintiff seeks punitive damages in the amount of $70,000.00. [Dkt. 90, ¶¶ 52-59.] Punitive damages may be awarded under federal law if a plaintiff can show that the defendant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Manson, 2013 WL 2896971, at *7 (citing 42 U.S.C. § 1981a(b)(1)). For a claim of disability discrimination, a plaintiff must show that the defendant discriminated against her “in the face of a perceived risk that its actions [would] violate federal law.” Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d 157, 177 (E.D.N.Y. 2006), aff'd, 531 F.3d 127 (2d Cir. 2008) (internal citations omitted).
“When determining the amount of punitive damages, ‘courts should presume that the plaintiff has been made ‘whole' through their compensatory damages award.'” Angulo, 2020 WL 4938188, at *14 (internal citations omitted). Courts should also be mindful that “the purpose of punitive damages is to ‘punish the defendant and to deter him and others from similar conduct in the future.'” Id. (internal citations omitted). Punitive damages awards are “by nature speculative, arbitrary approximations, ” and there is no “objective standard” or “formula to determine the dollar amount needed to effectuate deterrence.” Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013). With these principles in mind, courts should consider several factors, including: (1) the degree of reprehensibility of the defendant's conduct; (2) the difference between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded and the civil penalties imposed in comparable cases. Id. (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)).
Factually similar cases in this district have declined to award punitive damages under these circumstances. In Clark v. Gotham Lasik, PLLC, Case No. 11 Civ. 01307 (LGS), 2013 WL 4437220 (S.D.N.Y. Aug. 20, 2013), the plaintiff alleged that her employer failed to provide reasonable accommodations and wrongfully terminated her due to her pregnancy. The court declined to award punitive damages, despite evidence that the plaintiff's employer yelled at and acted hostile towards the plaintiff, finding that the defendant's behavior was not sufficiently egregious to warrant punitive damages. Id. at *6. In Becerril v. Ease Bronx NAACP Child Development Center, Case No. 08 Civ. 10283 (PAC)(KNF), 2009 WL 2972992 (S.D.N.Y. Sept. 17, 2009), the plaintiff also alleged wrongful termination due to pregnancy. The court declined to award the plaintiff punitive damages, finding that the plaintiff “failed to produce evidence of either egregious discriminatory actions or reckless indifference to the law.” Id. at *3.
Here, Plaintiff seeks $70,000.00 in punitive damages, calculated as twice the value of her proposed compensatory damages. [Dkt. 90 at ¶¶ 55, 58-59.] In support, Plaintiff offers a conclusory statement that Defendants' conduct was “repugnant, ” but offers no other testimony or evidence that would support her entitlement to punitive damages, other than being informed by her attorney that $70,000 would be a reasonable dollar amount. [Dkt. 90 at ¶ 57; Dkt. 90-1 at ¶¶ 61-63.] Additionally, as above, Plaintiff would already be awarded compensatory damages for her pain and suffering, and other than conclusory statements, Plaintiff makes no showing that Defendants' conduct was either egregious or made with a reckless indifference to the law. Accordingly, I recommend that Your Honor decline to award Plaintiff punitive damages.
F. Attorney's Fees
Plaintiff's counsel makes an application for attorney's fees in the amount of $6,750.00, for 15 hours of work at $450.00 per hour. [Dkt. 90 at ¶¶ 60-65; Attorney Affirmation at Dkt. 907.] A prevailing party in a federal employment action is entitled to reasonable attorney's fees and costs. 42 U.S.C. § 2000e-5(k); see Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996) (awarding attorney's fees under Title VII); Indep. Project, Inc. v. Ventresca Bros. Constr. Co., 397 F.Supp.3d 482, 489 (S.D.N.Y. 2019) (awarding attorney's fees under the Americans with Disabilities Act).
Courts have wide discretion in determining whether to award attorney's fees and in determining the reasonableness of such an award. Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). “A reasonable fee is calculated by taking ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'” Manson, 2013 WL 2896971, at *9 (citing Hensley v. Eckerhart et al., 461 U.S. 424, 433 (1983)). Known as the “lodestar method, ” this method to calculate attorney's fees has “achieved dominance in the federal courts.” Gisbrecht v. Barnhart, 535 U.S. 789, 801 (2002). A “reasonable hourly rate” is a rate a “client would be willing to pay.” Arbor Hill, 522 F.3d at 190. Courts should also consider that a reasonable client would wish to “spend the minimum necessary to litigate the case effectively.” Id.
In determining if a requested hourly rate is reasonable, a court must determine whether the “requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Manson, 2013 WL 2896971, at *10 (citing Blum v. Stenson, 465 U.S. 886, 896, n. 11 (1984)). Courts may also consider the customary billing rate charged by the attorney and whether there was a rate specified in any retainer agreement. Id. (internal citations omitted). A court may also rely on “its own knowledge of comparable rates charged by lawyers in the district.” Id. (internal citations omitted). “The fee applicant bears the burden of establishing the reasonableness of the hourly rates requested.” Yea Kim v. 167 Nail Plaza, Inc., Case No. 05 Civ. 8560 (GBD)(GWG), 2009 WL 77876, at *7 (S.D.N.Y. Jan. 12, 2009).
Plaintiff's counsel seeks an hourly rate of $450.00. Counsel states that he has been practicing employment law since 1997 and is currently the principal of his own law practice where he exclusively litigates employment law cases. [Dkt. 90-7 at ¶ 7.] A survey of recent cases in this and neighboring districts for cases involving employment discrimination reveals a range of approximately $250 to $600 as a reasonable hourly rate. Manson, 2013 WL 2896971, at *10 (collecting cases). In Mason, the court awarded an hourly rate of $375 per hour. In Local 1180, Communications Workers of America, AFL-CIO v. City of New York, 392 F.Supp.3d 361 (S.D.N.Y. 2019), the court awarded an hourly rate of $600 for an attorney with 22 years of experiencing, including specialized civil rights experience, as well as $350 for an attorney with 19 years of experience who had recently become a partner at the time of that decision. Id. at 380. Based on this survey as well as counsel's experience, I find, and recommend that Your Honor find, that a rate of $450.00 per hour is reasonable.
Additionally, Plaintiff's counsel seeks payment for only 15 hours of attorney time, which constitutes time he spent obtaining the default judgments against the remaining Defendants, pursuing the motion for default judgments, and in the course of this damages inquest. [Dkt. 90-7 at ¶¶ 5, 8.] In other words, Plaintiff's counsel is not seeking additional payment for any of his work on this case concerning the settling Defendants, or for any work prior to seeking default judgments against the remaining Defendants. Plaintiff states that she obtained a settlement from the other Defendants, and that counsel received an award for attorney's fees for that time in the amount of $7,836.00 from the total settlement. [Dkt. 90 at ¶ 7.] Of that time, Plaintiff's counsel spent 10 hours on the motion for the default judgments, three hours on this damages inquest, and two hours in obtaining the Clerk's defaults. These times appear reasonable given the quality of counsel's work product and his ultimate success in this matter. Accordingly, I recommend that Your Honor grant Plaintiff's application for $6,750.00 for attorney's fees, based on 15 hours of work at an hourly rate of $450.00.
G. Statutory Damages
Plaintiff seeks $10,000.00 in statutory damages for violations of the New York Labor Law, §§ 195-1(a) and 195-1(d). [Dkt. 90 at ¶ 27-32.] Under Section 195-1(a) of the New York Labor Law, employers must give their employees, at the time of hiring, a written notice that includes their rate of pay and additional information. Ying Ying Dai v. ABNS NY Inc., 490 F.Supp.3d 645, 659 (E.D.N.Y. 2020) (citing N.Y. Lab. Law § 195-1(a)). If an employee is not given this notice “within ten business days of ... her first day of employment, ” she may recover “damages of fifty dollars for each work day that the violations occurred or continue to occur, but not to exceed a total of five thousand dollars, together with costs and reasonable attorney's fees.” Id. (citing N.Y. Lab. Law § 198(1-b)).
Plaintiff also requests $5,000.00 award in damages based on Defendant's failure to provide detailed pay stub information for each pay period. [Dkt. 1 at ¶¶ 151, 155, 163, and 171.] Indeed, Section 195-3 of the New York Labor Law requires employers to provide detailed pay stub information to each employee for each pay period and further entitles a plaintiff to damages up to $5,000.00. N.Y. Lab. Law § 195-3. However, Plaintiff's Complaint and Amended Complaint both cite § 195-1(d) of the New York Labor Law. [Dkt.1 at ¶¶ 151, 155, 163, and 171; Dkt. 37 at ¶¶ 191, 195, 203, and 211]. Section 195-1(d) states that an “employer shall not be penalized for errors or omissions in the non-English portions of any notice provided by the commissioner.” N.Y. Lab. Law § 195-1(d). Because a defendant in default only admits the allegations in a well-pleaded complaint, I recommend that Your Honor decline to award the statutory damages requested under Section 195-1(d).
Accordingly, I recommend that Your Honor award Plaintiff $5,000.00 in statutory damages under § 195-1(a) of the New York Labor Law.
H. Continuing Interest
Plaintiff seeks continuing, post-judgment interest on the entire award, computed until the time of payment. [Dkt. 90 at ¶¶ 72-73.] By statute, interest shall be allowed on any money judgment in a civil case recovered in a district court. 28 U.S.C. § 1961(a); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 55 (2d Cir. 1998). Accordingly, I recommend that Your Honor grant post-judgment interest on the entire award running from the date of the original judgment.
V. CONCLUSION
For the reasons set forth above, I conclude, and respectfully recommend that Your Honor conclude, that Plaintiff should be awarded damages of:
• $56,086.00 for back pay;
• $10,516.12 for pre-judgment interest on the back pay award;
• $108,000.00 for front pay;
• $10,000.00 for compensatory damages as a result of emotional distress;
• $6,750.00 for attorney's fees; and
• $5,000.00 for New York State statutory damages;
for a total of $196,352.12, with continuing post-judgment interest.
Plaintiff shall promptly serve a copy of this Report and Recommendation on each defaulting Defendant, and shall file a proof of service.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also FED. R. CIV. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Cathy Seibel, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Seibel.