McPherson v. Kids N Play LLC
Filing
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OPINION AND ORDER that Magistrate Judge J. Clay Fuller's Final Report and Recommendation 22 is ADOPTED. IT IS FURTHER ORDERED that Plaintiff Kymnicka McPherson's Amended Motion for Default Judgment 11 is GRANTED. Plaintiff is awarded damages in the amount of $64,880. Signed by Judge William S. Duffey, Jr on 12/7/2015. (anc)
terminate her because she was pregnant. (First. Am. Compl. [2] ¶ 12). Defendant
provided Plaintiff with an “Employee Termination Form” signed by a supervisor
which indicated Plaintiff was “laid off,” and provided the explanation as “due to
pregnancy.” (Id. ¶ 13; see also id. at 12).
Within 180 days of her termination, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 9). On
November 10, 2014, the EEOC sent Plaintiff a “Notice of Right to Sue,” stating
that the “EEOC found reasonable cause to believe that violations of the statute(s)
occurred . . . but could not obtain a settlement with [Defendant].” (Id. at 9). The
notice indicated that the EEOC decided not to bring suit but informed Plaintiff of
her right to independently bring suit against Defendant within ninety (90) days.
(Id.).
On February 3, 2015, Plaintiff filed this action against Defendant, asserting a
claim of discrimination in violation of Title VII and the Pregnancy Discrimination
Act, along with a claim of intentional infliction of emotional distress. (Compl.
[1]). On February 4, 2015, Plaintiff filed her Amended Complaint, which included
exhibits and removed Plaintiff’s second count, leaving the discrimination claim as
her sole claim against Defendant. Plaintiff served Defendant through its registered
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agent on February 6, 2015. (See [4]). Defendant did not file a responsive pleading
by February 25, 2015, as required by the Federal Rules of Civil Procedure. On
February 26, 2015, Plaintiff filed a Motion for Clerk’s Entry of Default [5]. On
February 27, 2015, the Clerk’s Entry of Default was entered.
On August 25, 2015, Plaintiff field an Amended Motion for Default
Judgment [11],2 requesting the Court set a hearing to determine damages. On
August 26, 2015, the Court issued an order [12] directing Defendant to file a
response to Plaintiff’s motion for default judgment within fourteen (14) days,
showing cause as to why Plaintiff’s motion should not be granted. The Magistrate
Judge set an evidentiary hearing for September 16, 2015, and ordered both parties
to appear. The Court directed the clerk to mail a copy of that order to the address
listed for Defendant. On September 9, 2015, the order was returned as
undeliverable. ([15].
On September 16, 2015, the Court held an evidentiary hearing where
Plaintiff testified about her termination and damages and presented evidence to
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Plaintiff’s initial motion for default judgment requested a jury trial to
determine damages. The Court issued an Order to Show Cause [10], directing
Plaintiff to amend the motion to provide legal authority to support her request for a
jury trial. Plaintiff’s amended motion requests a hearing, rather than a jury trial, to
determine damages.
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support her testimony. ([16]; see also Hearing Tr. (“Tr.”) [20]). Plaintiff
submitted into evidence four exhibits: Exhibit A- Plaintiff’s Amended Complaint
with attachments [17.1]; Exhibit B- a copy of Plaintiff’s Wage and Income
Transcript from the Internal Revenue Service [17.2]; Exhibit C- a back pay
calculation indicating the amount Plaintiff would have earned if she had remained
employed with Defendant until January 13, 2014 [17.3]; and Exhibit E3- a
collection of Plaintiff’s email correspondence showing her attempts to secure
employment during this period [17.4]. On October 23, 2015, Plaintiff filed her
Motion for Attorneys’ Fees, seeking $34,416.50 in attorneys’ fees and $899 in
costs. ([21] at 4). Defendant has not been responsive at any point in this litigation.
On November 10, 2015, the Magistrate Judge issued his R&R. In it, he
determined that Plaintiff has proved that she was discriminated against in violation
of Title VII. (R&R at 4-6). The Magistrate found that Plaintiff provided the
evidence necessary to support her request for back pay in the amount of $14,880.
The Magistrate Judge recommended that Plaintiff’s request for $50,000 in
compensatory and punitive damages be granted. The Magistrate recommended
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No “Exhibit D” was presented.
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that Plaintiff be awarded attorneys’ fees in the amount of $10,000. No party has
filed objections to the R&R.
II.
LEGAL STANDARD
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). When, as here,
no party has filed any objections to the report and recommendation, the Court must
conduct a plain error review of the record. U.S. v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983).
III.
DISCUSSION
A.
Motion for Default Judgment
1.
Liability
When considering a motion for entry of default judgment, a court must
investigate the legal sufficiency of the allegations and ensure that the complaint
states a plausible claim for relief. Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d
1267, 1278 (11th Cir. 2005); Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 905,
906 (N.D. Ga. 1988). “While a defaulted defendant is deemed to ‘admit[ ] the
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plaintiff's well-pleaded allegations of fact,’ he ‘is not held to admit facts that are
not well-pleaded or to admit conclusions of law.’” Cotton, 402 F.3d at 1278
(quoting Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th
Cir. 1975)). “The entry of a default judgment is committed to the discretion of the
district court . . . .” Hamm v. DeKalb Cty., 774 F.2d 1567, 1576 (11th Cir. 1985),
cert. denied, 475 U.S. 1096 (1986).
The Court held a hearing at which Plaintiff testified about her termination.
Plaintiff claims she was discriminated against in violation of Title VII and the
Pregnancy Discrimination Act when her employment was terminated as a result of
her pregnancy. (See First Am. Compl. ¶¶ 15-18). Title VII provides that it is an
unlawful employment practice for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin . . . .” 42
U.S.C. § 2000e-2(a)(1). “In 1978, Congress enacted the Pregnancy Discrimination
Act, 92 Stat. 2076, which added new language to Title VII’s definitions subsection.
The first clause of the 1978 Act specifies that Title VII’s term ‘because of sex’
includes ‘because of or on the basis of pregnancy, childbirth, or related medical
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conditions.’” Young v. UPS, Inc., ––– U.S. –––, –––, 135 S.Ct. 1338, 1344-45
(2015) (internal quotation marks and ellipses omitted).
Plaintiff testified that Shirley McLean, Defendant’s General Manager,
informed her that the owner wanted to terminate her employment because “he
spoke with his insurance company and he said that they told him [Plaintiff] was a
liability because [she] was pregnant.” (Tr. 4). The Magistrate Judge determined
that this testimony, and the termination notice attached to Plaintiff’s Amended
Complaint stating she was laid off “due to pregnancy,” supports the allegations in
Plaintiff’s Amended Complaint. (First Am. Compl. ¶ 13, Ex. 2). The Magistrate
concluded that Plaintiff has shown she was terminated as a direct result of her
pregnancy, and has proved that she was discriminated against in violation of Title
VII. The Court finds no plain error in these findings. See Slay, 714 F.2d 1095.
2.
Damages
Plaintiff seeks $14,880 in back pay, representing 186 work days that
Plaintiff would have been paid at her hourly wage of $10.00 for eight hours each
day. “[A] Title VII plaintiff is entitled to recover for the economic loss due to his
or her wrongful termination.” Price v. Greenman Techs., No. 5:05-cv-471 (CAR),
2007 WL 2746661, at *3 (M.D. Ga. Sept. 18, 2007) (citing 42 U.S.C.
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§ 2000e-5(g)(1)). The Magistrate Judge determined that Plaintiff has provided the
necessary evidence to support her request for back pay, and recommended a back
pay award of $14,880. The Court finds no plain error in these findings and
recommendation, and Plaintiff’s request for back pay is granted. See Slay, 714
F.2d 1095.
Plaintiff has requested compensatory and punitive damages in the maximum
amount allowable, $50,000.4 See 42 U.S.C. § 1981a(b)(3)(A). Compensatory and
punitive damages are available in a Title VII discrimination case “if the
complaining party demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.” 42 U.S.C. §1983a(b)(1).
“Punitive damages will ordinarily not be assessed against employers with only
constructive knowledge of harassment,” and are available only if “the
discriminating employee was high up the corporate hierarchy or . . . higher
management countenanced or approved his behavior.” Ash v. Tyson Foods, Inc.,
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While Plaintiff’s Amended Complaint does not specify the amount of
punitive and compensatory damages she seeks, at the hearing for damages,
Plaintiff’s counsel requested $50,000 total. ([20] at 3). Plaintiff reiterated
counsel’s request of $50,000. (Id. at 18-19).
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664 F.3d 883, 900-901 (11th Cir. 2011) (internal quotation marks omitted). “[I]n
the punitive damages context, an employer may not be vicariously liable for the
discriminatory employment decision of managerial agents where these decisions
are contrary to the employer’s good faith efforts to comply with Title VII.”
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 528 (1999).
The Magistrate Judge determined that the direct evidence showing
Defendant intentionally fired Plaintiff solely because of her pregnancy reflects
“reckless indifference” to Plaintiff’s rights. (R&R at 7). The Court agrees. The
evidence shows Defendant’s General Manager informed Plaintiff that the owner
wanted to terminate her employment because “he spoke with his insurance
company and he said that they told him [Plaintiff] was a liability because [she] was
pregnant.” (Tr. 4). Defendant also provided Plaintiff with an “Employee
Termination Form” signed by a supervisor which indicated Plaintiff was “laid off”
and provided the explanation as “due to pregnancy.” (First Am. Compl. ¶ 13; see
also id. at 12). This is precisely the type of situation in which punitive damages
are appropriate. See Ash, 664 F.3d at 900-901 (punitive damages appropriate
where “higher management countenanced or approved [the] behavior”).
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Further, Plaintiff testified that her termination impacted her life, her
marriage, caused her to lose her vehicle, led to migraine headaches, and other
issues. (See Tr. 12-16). Plaintiff found herself jobless and about to have a child.
She was unable to find employment for over a year despite her documented
attempts to find a new job. (See [17.4]). “Considering the time Plaintiff went
without work, the impact on her life she testified to, the fact that this Defendant
blatantly discriminated against Plaintiff because she was pregnant, and that
Defendant has not bothered to participate in this litigation in any fashion,” the
Magistrate Judge recommended that Plaintiff’s request for $50,000 in
compensatory and punitive damages be granted. The Court finds no plain error in
these findings and recommendation, and Plaintiff’s request for $50,000 in
compensatory and punitive damages is granted. See Slay, 714 F.2d 1095.
B.
Motion for Attorneys’ Fees
Plaintiff seeks attorneys’ fees in the amount of $34,416.50, and $899 in
costs. ([21] at 2). In the Eleventh Circuit, “the starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. The product of these two figures
is the lodestar and there is a strong presumption that the lodestar is the reasonable
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sum the attorneys deserve.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th
Cir. 2008) (considering the recovery of reasonable attorneys’ fees pursuant to 42
U.S.C. § 1988) (internal quotation marks and citations omitted). The court may
adjust the lodestar amount based upon the results obtained. See Norman
v. Housing Auth., 836 F.2d 1292, 1302 (11th Cir. 1988). For example, attorneys’
fees may be adjusted if the result was partial or limited in success. Id. Put another
way,
[i]f fee applicants do not exercise billing judgment, courts are
obligated to do it for them. . . . . [I]t is as much the duty of courts to
see that excessive fees and expenses are not awarded as it is to see that
an adequate amount is awarded.
Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).
“A request for attorney’s fees should not result in a second major litigation.”
Norman, 836 F.2d at 1303 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)). It is “perfectly proper to award attorney’s fees based solely on affidavits
in the record.” Id. “The court, either trial or appellate, is itself an expert on the
question and may consider its own knowledge and experience concerning
reasonable and proper fees and may form an independent judgment with or without
the aid of witnesses . . . .” Id. (citations omitted). Evidentiary hearings are only
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necessary “where there [a]re disputes of fact, and where the written record [i]s not
sufficiently clear to allow the trial court to resolve the disputes of fact.” Id.
It is within the discretion of the Court to award reasonable attorneys’ fees
and costs to a prevailing party in a Title VII wrongful termination case. Price, 2007
WL 2746661 at *3 (citing 42 U.S.C. § 2000e-5(k)). Plaintiff is able to recover
attorneys’ fees for time spent working on the case while it was still at the
administrative level. See Mock v. S. Dakota Brd. of Regents, 296 F. Supp. 2d
1061, 1064-65 (D.S.D. 2003) (time spent on administrative process is recoverable
under §2000e-5(k) so long as the work product from the administrative
proceedings was both useful and of a type ordinarily necessary to advance the civil
rights litigation to the state it reached before settlement (quoting Bobbit
v. Paramount Cap Mfg. Co., 941 F.2d 512, 514 (8th Cir. 1991))).
The Magistrate Judge concluded that “Plaintiff’s claim would have been
barred had she not first exhausted her administrative remedies. Therefore, it is
appropriate for her to recover attorneys’ fees for the work completed during the
EEOC administrative stage.” (R&R at 9). The Court agrees. See New York
Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980) (allowing recovery of attorneys’
fees for proceedings on discrimination employment complaint at the administrative
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level).
The Court, however, must determine the reasonableness of both the number
of hours billed and the hourly rate requested. “The court is to use its own billing
judgment to exclude ‘excessive, redundant or otherwise unnecessary hours’
without regard to the skill, reputation or experience of counsel.” Kinnard v. Kelly,
1:08-cv-1824-JOF, 2010 WL 761230, at *6 (N.D. Ga. Mar. 2, 2010) (quoting
Norman, 836 F.2d at 1301). The Magistrate Judge determined that Plaintiff’s
counsel’s submission of 124.8 total hours is “clearly an unreasonable amount
compared to other default judgment cases, some of which required far more
litigation.” (R&R at 11-12 (citing cases)). The Magistrate pointed to specific time
record entries that he found unreasonable, including entries for the time it took to
draft a motion seeking an extension of time to file the motion for attorneys’ fees.
(Id. at 13). The Magistrate concluded it is “necessary to adjust the requested hours
and rates in order to bring the result here in line with comparable fee awards in
similar default judgment cases.” (Id.). He recommended Plaintiff be awarded
attorneys’ fees for forty (40) hours work at a rate of $250 per hour. The Court
finds no plain error in these findings and recommendation, and Plaintiff is awarded
attorneys’ fees in the amount of $10,000.
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Plaintiff also seeks $899 in costs. This amount includes $400 for a filing
fee; $89, $124, $124, and $77 for four charges accrued in attempts to serve
Defendant; and $85 for the transcript of the damages hearing. ([21.1 at 38, 39, 41,
42, 43, 46, 49). Where a federal statute does not provide otherwise, the prevailing
party may be reimbursed for litigation costs. See Fed. R. Civ. P. 54(d)(1); see also
Frazier v. Absolute Collection Serv., Inc., 767 F. Supp. 2d 1354, 1368 (N.D. Ga.
2011) (finding that “costs of the action” includes filing fee and process server fee).
The Magistrate found Plaintiff’s costs are recoverable, and recommended that
Plaintiff be awarded $899 in costs. The Court finds no plain error in these findings
or recommendation. See Slay, 714 F.2d 1095.
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation [22] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff Kymnicka McPherson’s
Amended Motion for Default Judgment [11] is GRANTED. Plaintiff is awarded
damages in the amount of $64,880.
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IT IS FURTHER ORDERED that Plaintiff ’s Motion for Attorneys Fees
[21] is GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded
attorneys’ fees in the amount of $10,000 and $899 in costs, for a total award,
together with damages, in the amount of $75,779. Damages in any additional
amount is denied.
SO ORDERED this 7th day of December, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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