Benitez v. Simmi Hospitality Management, Inc. et al

Filing 30

MEMORANDUM AND ORDER granting 23 Motion for Default Judgment; granting 29 Motion for Attorney Fees. Signed by Chief District Judge Julie A Robinson on 8/10/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
CELIA BENITEZ,

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Plaintiff,
v.
SIMMI HOSPITALITY MANAGEMENT
INC., ET AL.,
Defendants.

Case No. 2:16-cv-02622-JAR-KGG

MEMORANDUM AND ORDER
Plaintiff Celia Benitez brought this action alleging the following two claims against
Defendants Simmi Hospitality Management Inc. and Payal Hotels, LLC (collectively
“Defendants”)1: sexual harassment and discrimination in violation of 42 U.S.C. § 2000e et seq.
and retaliation in violation of 42 U.S.C. § 2000e et seq. On June 1, 2017, the Clerk entered
default against Defendants.2 This matter comes before the Court on Plaintiff’s Motion for
Default Judgment (Doc. 23) and Motion for Attorney Fees (Doc. 29). The Court held a hearing
on July 11, 2017, at which time it heard argument from Plaintiff on her motion and heard
evidence regarding Plaintiff’s request for damages. Defendants did not appear. Having
considered Plaintiff’s motion and her arguments and evidence presented at the July 11, 2017
hearing, the Court is prepared to rule. For the reasons stated in detail below, the Court grants
Plaintiff’s motions for default judgment and for attorney fees.
I.

Background
Plaintiff filed her Complaint on September 9, 2016, against her former employers,

Defendants Simmi Hospitality Management Inc. and Payal Hotels, LLC, and filed her First
1
2

Plaintiff dismissed a third defendant, KC NBSS Hotel, LLC, on January 12, 2017. See Doc. 14.
Doc. 24

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Amended Complaint on October 5, 2016. Plaintiff’s Complaint and First Amended Complaint
alleged two claims against Defendants, one for sexual harassment and discrimination in violation
of of 42 U.S.C. § 2000e et seq. and the second for retaliation in violation of 42 U.S.C. § 2000e et
seq. Plaintiff alleged that Defendants’ general manager, D.C. Parad, subjected Plaintiff to a
sexually hostile work environment by making comments of a sexual nature to her; by staring at
Plaintiff inappropriately, and by touching Plaintiff inappropriately. Plaintiff alleged that she
asked Mr. Parad to stop, but he would not. She further alleged that she reported Mr. Parad’s
behavior to Defendants’ area manager, Eunice Ruiz. Plaintiff alleged that Ms. Ruiz’s response
was to assign Plaintiff to another hotel, but Plaintiff believed that to be unfair, as it was farther
away from her home. Plaintiff also alleged that following her complaints of discrimination, her
hours were reduced and that by mid-September 2015, she was no longer scheduled to work any
hours. Plaintiff alleged that she continued to inquire as to why she was not being scheduled for
any hours, but never received a response.
II.

Discussion
Following entry of default, Rule 55(b)(2) allows the Court to enter default judgment.

Once default is entered, the defendant is not entitled to defend itself on the merits.3 But an entry
of default only establishes liability; it does not establish the amount of damages. 4 The factual
allegations in the Complaint are taken as true, except for those relating to the amount of
damages.5 “Damages may be awarded only if the record adequately reflects the basis for award

3

Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 & n. 11 (10th Cir. 2003).
Hermeris, Inc. v. McBrien, No. 10-2483-JAR, 2012 WL 1091581, at *1 (D. Kan. Mar. 30, 2012) (citing
DeMarsh v. Tornado Innovations, LP, No. 08–2588-JWL, 2009 WL 3720180, at *2 (D. Kan. Nov. 4, 2009);
Beginner Music v. Tallgrass Broad., LLC, No. 09–4050–SAC, 2009 WL 3720180, at *1 (D. Kan. Aug. 12, 2009)).
5
Id. (citing Beck v. Atl. Contracting Co., 157 F.R.D. 61, 64 (D. Kan. 1994)).
4

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via a hearing or a demonstration by detailed affidavits establishing the necessary facts.” 6 Default
judgment may only be entered against defendants whom the Court determines are not minors or
incompetent persons.7 Defendants are not minors or incompetent persons (Defendant Simmi
Hospitality is a corporation and Defendant Payal Hotels is a limited liability company).
Additionally, Defendants have not responded to Plaintiff’s motion for default judgment, and did
not appear at the July 11, 2017 hearing on Plaintiff’s motion, despite the Court having sent notice
of the hearing to Defendants at their registered addresses.8 Thus, the Court may enter default
against Defendants.
Having established Defendants’ liability for each of Plaintiff’s two claims, the Court now
turns to the issue of damages and other relief. Plaintiff requests compensatory damages for lost
wages and emotional distress, punitive damages, reasonable attorney’s fees, and costs.9
a. Sexual Harassment & Discrimination
Plaintiff testified that Defendants’ general manager, Mr. Parad, subjected Plaintiff to a
sexually hostile work environment by making comments to Plaintiff about her breasts and her
appearance and asking her to have sex with him; by staring at Plaintiff in a manner that made her
feel uncomfortable, particularly because he would look her body up and down; and by pressing
himself up against Plaintiff while she was at work, including one such occasion where he did so
in the presence of customers. Plaintiff testified that Mr. Parad’s behavior commenced on the
same day on which he became Plaintiff’s general manager and occurred on a daily basis
thereafter. Plaintiff testified that she asked Mr. Parad to stop his behavior, but he did not.
6

Demarsh, 2009 WL 3720180, at *2 (quoting Adolph Coors Co. v. Movement Against Racism & the Klan,
777 F.2d 1538, 1544 (11th Cir. 1985)).
7
Fed. R. Civ. P. 55(b).
8
Docket Text for June 5, 2017; see Docs. 26 & 27 (mail to Simmi Hospitality Management Inc. and Pinal C. Patel
was returned to sender, unable to forward).
9
Costs are determined by Local Rule 54.2 and are not taken up in this Order.

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Plaintiff also testified that she informed the area manager, Ms. Ruiz, about Mr. Parad’s behavior,
but Ms. Ruiz’s response was to suggest that Plaintiff could work at an empty hotel farther away
from her home. Plaintiff testified that she did not believe this was an appropriate response to her
request.
b. Retaliation
Plaintiff testified that following her complaints to the area manager Ms. Ruiz, she was
instructed to go and watch a hotel for Defendants at a location farther from her home. Plaintiff
testified that she did go to the hotel a few times, but it was empty, and was thereafter returned to
the Defendants’ hotel where she originally worked. Plaintiff testified that after she complained of
the harassment, she began receiving fewer hours on the schedule, and was ultimately taken off
the schedule. Plaintiff testified that she believed because she was no longer scheduled for any
shifts despite her inquiries as to why, that she was effectively terminated from her employment.
c. Damages
Plaintiff’s First Amended Complaint sought compensatory damages for emotional
distress and lost wages, punitive damages, attorney’s fees and costs. A party asserting claims
pursuant to 42 U.S.C. 2000e may recover compensatory and punitive damages. See 42 U.S.C. §
1981a(a)(1). When an employer has more than 14 and fewer than 100 employees, the limitation
for compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other nonpecuniary losses, as well as the amount
of punitive damages, cannot exceed $50,000. See § 1981a(b)(3)(A). The limitation on damages
outlined in section 1981a(b)(3)(A) does not apply to backpay or interest on backpay. See §
1981a(b)(2).

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Plaintiff testified that Defendants employed approximately twenty employees who
worked at the Days Inn hotel where Plaintiff worked. Plaintiff also testified that Defendants had
other hotels, but that she was unsure how many employees worked at those hotels. Therefore, the
Court finds that Plaintiff’s compensatory damages for emotional distress and punitive damages
are limited to $50,000.
Plaintiff testified that she was humiliated and embarrassed as a result of the sexual
harassment and discrimination and that she suffered emotional distress as result of her
termination. Plaintiff testified that further adding to her humiliation and embarrassment was the
fact that Mr. Parad would press himself against her in front of customers, so that Plaintiff could
not call out his inappropriate behavior. Plaintiff also testified that as a result of Mr. Parad’s
behavior, she no longer feels comfortable working around men. Plaintiff seeks $10,000 in
compensatory damages for her emotional distress and $40,000 in punitive damages based on
Defendants’ conduct that a management-level employee perpetuated the harassment on Plaintiff
and Plaintiff reported the conduct to another management-level employee, but was thereafter
given reduced hours and ultimately effectively terminated when Plaintiff was taken off the
schedule. The Court finds that the testimony presented at the evidentiary hearing sufficiently
establishes Defendants’ liability to Plaintiff in the amount of $10,000 for compensatory damages
for emotional distress and $40,000 in punitive damages.
Plaintiff also seeks backpay (lost wages) following termination of her employment with
Defendants. Plaintiff testified that she applied to approximately 200 positions for employment
following her termination in mid-September 2015 through July 2016 when she found new
employment. Plaintiff testified that she earned $9.00 per hour working for Defendants, and on
average worked 40 hours per week plus 7 hours of overtime at the overtime rate of $13.50 per
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hour, equating to $454.50 gross income per week. Plaintiff testified that she was unemployed for
a period of 40 weeks, resulting in $18,180.00 in lost wages. The Court finds that Plaintiff
provided sufficient testimony that she attempted to mitigate her damages and that she sustained
lost wages in the amount of $18,180.00.
Thus, Plaintiff is awarded $50,000.00 in compensatory and punitive damages and
$18,180.00 in backpay.
d. Attorney’s Fees
Plaintiff seeks her reasonable attorneys’ fees, pursuant to 42 U.S.C. 2000e-5(k), in the
amount of $11,452.50. Plaintiff submitted a Motion for Attorney’s Fees on August 1, 2017, with
affidavits from Ashley S. Grace and Kenneth D. Kinney in support of the work they did on the
case, as well as the affidavit of Richard H. Ralston who reviewed the attorneys’ fees request and
stated he believed the requests were reasonable. Plaintiff seeks fees for attorney Ashley S. Grace
for 35.70 hours at the rate of $275.00 per hour and attorney Kenneth D. Kinney for 5.45 hours at
the rate of $300.00 per hour. The Court finds the time spent on the cases and the hourly rate of
the attorneys are reasonable, based on the nature of this case, the relative experience and
expertise of the attorneys, prevailing local market rates for attorneys practicing employment
litigation, and rates typically approved by this Court and other courts.10 Accordingly, the Court
grants Plaintiff’s motion for attorneys’ fees in the amount of $11,452.50.
III.

Conclusion
The Court grants Plaintiff’s unopposed motion for default judgment. The Court finds that

the record supports an award of damages in the amount of $68,180.00 and attorneys’ fees in the
amount of $11,452.50 on Count I and II of Plaintiff’s First Amended Complaint.
10

See, e.g. Riordan v. ASAP Expert Counseling, LLC, No. 16-CV-2011-JAR-TJJ, 2017 WL 2225223, at *2 (May
19, 2017) (approving rates of $450.00, $325.00, and $275.00 per hour).

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IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Celia Benitez’s
Motion for Default Judgment (Doc. 23) and Motion for Attorney’s Fees (Doc. 29) are granted.
Defendants Simmi Hospitality Management, Inc. and Payal Hotels, LLC, shall pay to Plaintiff
the following amount: $68,180.00 in damages on Counts I and II and $11,452.50 in attorneys’
fees on Counts I and II.

IT IS SO ORDERED.
Dated: 8/10/17

__s/ Julie A. Robinson________________
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

Prepared by:
HOLMAN SCHIAVONE, LLC
By:

/s/ Ashley S. Grace
Kirk D. Holman, KS Bar 19558
Ashley S. Grace, KS Bar 26888
4600 Madison Avenue, Suite 810
Kansas City, Missouri 64112
Telephone: [phone]
Facsimile: 816.283.8739
Email: [e-mail]
Email: [e-mail]
ATTORNEYS FOR PLAINTIFF

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