U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. SCOTT MEDICAL HEALTH CENTER, P.C.
FINDINGS OF FACT AND CONCLUSIONS OF LAW. See filing attached at this docket entry. Signed by Judge Cathy Bissoon on 11/16/17. (rdl)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
U.S. EQUAL EMPLOYMENT
SCOTT MEDICAL HEALTH CENTER, P.C., )
Civil Action No. 16-225
Judge Cathy Bissoon
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based on the evidence presented at the Hearing on Damages held on October 30, 2017,
the Court hereby makes the following findings, which are supported by a preponderance of the
I. FINDINGS OF FACT
Dale Massaro was employed by Defendant Scott Medical Health Center, P.C. as a
telemarketer from July 24, 2013 to August 16, 2013. (Doc. 77, Tr. at 8:5-6, 20:15-21:7). At the
time of his employment, Massaro was known by his unmarried name, Dale Baxley. (Tr. at 4:185:21).
Massaro moved to the Pittsburgh area in July 2013. (Tr. at 5:22-6:8).
Massaro was excited to move to the Pittsburgh area, because he believed it was an
area that would be more accepting of his sexual orientation than the community where he
previously resided, and he had started a new relationship with Anthony Massaro, who lived in
the Pittsburgh area. (Tr. at 6:18-7:6, 16:1-5, 23:2-7).1
Massaro’s employment with Defendant was his first job after moving to the
Pittsburgh area. (Tr. at 7:17-21).
Massaro was paid $11.00 per hour, and was scheduled to work 38 hours per week.
(Tr. at 8:12-16; Doc. 75, Employee Details; Doc. 79-2, Exhibit A – Back Pay Calculation).2
Prior to working for Defendant, Massaro was consistently outgoing and active.
He enjoyed spending time with friends. (Tr. at 15:9-18, 15:22-25, 24:9-12, 25:2-5).
Prior to working for Defendant, Massaro had lost a significant amount of weight
following lap-band surgery and weighed about 180 pounds when he started his telemarketing
job. (Tr. at 15:9-14, 28:16-21).
Almost immediately after starting work with Defendant, Massaro was subjected
to sex-based harassment in the form of anti-gay slurs and comments directed at him by his
supervisor, Robert McClendon, including being repeatedly referred to as “faggot” and having to
endure offensive questioning about his sex life and relationships. (Tr. at 8:7-9, 8:22-9:15).
Massaro reported the harassment to Gary T. Hieronimus, Defendant’s owner and
chief executive officer, but Hieronimus refused to take action to stop the harassment, instead
stating that McClendon “was just doing his job.” (Tr. at 9:25-10:2, 11:23-12:11, 35:22-36:1).
After his report to Hieronimus, the harassment continued, and consequently
Massaro decided to quit his job. (Tr. at 12:19-13:12).
Unless otherwise indicated, Dale Massaro is referred to herein as “Massaro” and Anthony
Massaro is referred to herein by his full name, “Anthony Massaro.”
The payroll records show that Dale Massaro took half-hour unpaid breaks when he worked
Monday through Thursday.
As a consequence of the harassment he endured while employed by Defendant,
Massaro became frustrated and distraught about the harassment, to the point of often crying. (Tr.
at 25:22-26:1, 33:13-21).
As a consequence of the harassment he endured while employed by Defendant,
Massaro became irritable, lashing out at his then-boyfriend, Anthony Massaro. Massaro also
stopped socializing with friends. (Tr. at 17:11-18, 26:11-19, 30:5-10, 30:17-24).
As a consequence of the harassment he endured while employed by Defendant,
Massaro began overeating, gaining as much as fifteen (15) pounds in a few weeks. (Tr. at 27:22,
As a consequence of the harassment he endured and being forced to resign his
employment, Massaro felt depressed. (Tr. at 16:6-9). After Massaro resigned his position, he
isolated himself from family and friends, and experienced changes to his sleeping habits. (Tr. at
16:16-25, 27:1-6, 29:20-30:4, 34:17-24). He felt like he was not himself anymore, felt abused
and unfairly treated, and hated himself. (Tr. at 16:11-15).
Massaro’s feelings of depression and other emotional distress resulting from the
harassment and loss of employment also manifested themselves as adverse changes in his
appearance and personal habits, such as his manner of dress and personal hygiene. (Tr. at 24:717; 26:11-25, 28:22-29:6, 29:10-16). Additionally, in the six months after his resignation,
Massaro also experienced a substantial weight gain resulting from overeating caused by his
emotional distress. (Tr. at 17:1-10, 27:7-28:15, 34:17-24).
Massaro’s depression and irritability caused by the harassment and job loss also
negatively affected his relationship with his future spouse, Anthony Massaro, to the point that
they briefly ended their relationship between December 2013 and January 2014. (Tr. at 17:1118, 30:17-24).
In late 2013, Massaro started receiving counseling for his depression through an
employee assistance program (EAP). He spoke with an EAP counselor by phone once or twice a
week for a couple of months. (Tr. at 17:19-18:2, 18:10-20).
Massaro also received medical treatment for his emotional distress from his
family physician, Dr. Berge, which included a prescription for Lexapro, an anti-depressant, and
Ativan, a medication for sleep issues.3 (Tr. at 18:21-19:3). Massaro recalls receiving those
prescriptions in early 2014. (Tr. at 19:19-20:2). He had never been prescribed such medications
before, nor had he been treated for depression or anxiety before. (Tr. at 19:19-20:14 34:10-16).
Other than the harassment he suffered while working at Defendant, there was
nothing else occurring in Massaro’s life to explain his depression and other emotional distress.
(Tr. at 19:4-9; 34:25-35:3).
After leaving Defendant’s employ on August 16, 2013, Massaro was unemployed
until he started a job working with people with intellectual disabilities with PA Mentor on
September 15, 2013, where he earned $10.25 per hour. He remained employed with PA Mentor
through January 2016. (Tr. at 13:13-14:8).
Massaro began working for Mainstay Life Services on December 1, 2015, again
working with people with intellectual disabilities, earning $11.50 per hour. (Tr. at 14:12-20).
Defendant, through its owner and chief executive officer Gary T. Hieronimus,
was at all relevant times aware that sex-based harassment was unlawful. (Tr. at 39:7-18).
The transcript misspells the physician’s name as “Berkey.”
Indeed, Defendant’s anti-harassment policies in effect at the time of Massaro’s
employment stated that harassment because of sexual orientation was unlawful. (Tr. at 37:1739:6, 39:20-42:3).
Although Defendant had an anti-harassment policy, Massaro was never trained on
the policy, and was not permitted to read or have a copy of the policy. (Tr. at 10:11-11:11; Ex.
Robert McClendon, as the manager of the telemarketing department, was
responsible for hiring and training employees in his department. (Tr. at 42:4-10, 43:1-16).
Hieronimus did not train Robert McClendon on Defendant’s anti-harassment
policy and could not identify anyone who would have provided such training. (Tr. at 42:16-24).
Defendant did not assert a “good faith” defense pursuant to Kolstad v. Am. Dental
Ass’n, 527 U.S. 526 (1999). (Doc. 50, Defendant’s Answer).
At all relevant times, Defendant has employed less than 101 employees.
(Defendant’s Answer at ¶4 (admitting that it employed at least 15 employees); Tr. at 36:1937:15).
The Court entered a default judgment on liability against Defendant and in favor
of Plaintiff, the U.S. Equal Employment Opportunity Commission (“EEOC”), on September 25,
2017. (Doc. 72).
II. CONCLUSIONS OF LAW
Back Pay and Prejudgment Interest
Title VII authorizes back pay relief to victims of discrimination. 42 U.S.C.
§2000e-5(g) (establishing entitlement to back pay less “[i]nterim earnings or amounts earnable
with reasonable diligence by the person or person discriminated against”). In determining a back
pay award, a district court has wide latitude to “locate ‘a just result’” for the purpose of
effectuating the “make whole remedy of Title VII in light of the circumstances of a particular
case.” Taxman v. Board of Educ., 91 F.3d 1547, 1565 (3d Cir. 1996) (quoting Albermarle).
There is a strong presumption in favor of back pay awards where discrimination has been found.
Albermarle, 422 U.S. at 421 n.12. As such, back pay should be denied “only for reasons which,
if applied generally, would not frustrate the central statutory purposes of eradicating
discrimination throughout the economy and making persons whole for injuries suffered through
past discrimination.” Id.
Prejudgment interest on back pay awards is appropriate to ensure that victims of
discrimination are made whole. West Virginia v. United States, 479 U.S. 305, 311 n.2 (1987)
(“Prejudgment interest serves to compensate for the loss of use of money due as damages from
the time the claim accrues until judgment is entered, thereby achieving full compensation for the
injury those damages are intended to redress.”). Prejudgment interest “serves to compensate a
plaintiff for the loss of the use of money that the plaintiff otherwise would have earned had he
not been unjustly discharged.” Booker v. Taylor Milk Co., 64 F.3d 860, 868 (3d Cir. 1995); see
also Arco Pipeline Co. v. SS Trade Star, 693 F.2d 280, 281 (3d Cir. 1982) (“The purpose of
prejudgment interest is to reimburse the claimant for the loss of the use of its investment or its
funds from the time of the loss until judgment is entered.”). The Third Circuit has acknowledged
that “[a]s with the back pay award, prejudgment interest helps to make victims of discrimination
whole.” Booker, 64 F.3d at 868. Use of the adjusted prime rate, pursuant to 26 U.S.C. §6621, is
appropriate in calculating prejudgment interest on back pay awards. Taxman, 91 F.3d at 1566.
The Court finds that EEOC, has proven by preponderance of the evidence that
Dale Massaro is entitled to a back pay award. The Court adopts EEOC’s back pay calculation,
submitted at trial, which includes prejudgment interest using the adjusted prime rate. The Court
therefore awards Massaro back pay in the amount of $5,500.43.
Compensatory damages are recoverable from a covered entity that has committed
intentional discrimination in violation of Title VII, such as sex harassment and constructive
discharge. 42 U.S.C. §1981a(a)(2). The compensatory damages available include recovery for
“future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3). A discrimination
victim’s testimony may be sufficient, standing alone, to justify an award of compensatory
damages. See Shesko v. Coatesville, 324 F. Supp. 2d 643, 652 (E.D. Pa. 2004) (denying motion
for remittitur of a compensatory damages award, holding that plaintiff’s own testimony about her
sadness and depression, and the difficulty of seeing another person promoted to the position she
wanted, was sufficient to support the award).
By operation of 42 U.S.C. §1981a(b)(3), non-pecuniary compensatory and/or
punitive damages available for violations of Title VII are subject to a maximum limit on awards,
depending on the number of employees. Defendant at all relevant times had fewer than 101
employees, therefore the applicable statutory limit on compensatory and/or punitive damages is
$50,000.00. 42 U.S.C. §1981a(b)(3)(A).
The Court finds that EEOC has proven by a preponderance of the evidence that
Massaro is entitled to an award of non-pecuniary compensatory damages. The witness testimony
in this matter demonstrates that Massaro sustained significant emotional distress caused by
McClendon’s severe harassment of Massaro and his resulting loss of employment (constructive
discharge), including depression, anxiety, social isolation, changes to his sleeping patterns, and
significant weight gain.
Based on the aforementioned facts, the Court finds that EEOC has proven that
Massaro sustained compensatory damages in excess of the $50,000.00 statutory damages limit
set forth at 42 U.S.C. §1981a(b)(3)(A). Although an award above $50,000.00 would be
consistent with other cases where comparable emotional distress was found, see, e.g., Ridley v.
Costco Wholesale Corp., 217 F. App’x 130, 137 (3d Cir. 2007) (upholding $200,000 emotional
distress award in Title VII retaliation case, where plaintiff and his wife testified about his
emotional distress, including difficulty sleeping, weight loss, and social isolation); Gagliardo v.
Connaught Labs., 311 F.3d 565, 573-74 (3d Cir. 2002) (in disability discrimination case brought
under both federal and state law, upholding $2 million compensatory damages award for plaintiff
with multiple sclerosis who presented testimony that her discharge transformed her from a happy
and confident person to one who was withdrawn and indecisive); Tureaud v. Grambling State
Univ., 294 Fed. App’x 909, 916, 2008 WL 4411438, at *7 (5th Cir. 2008) (holding $140,000
compensatory award in Title VII discharge case not excessive; plaintiff testified to weight gain
and feeling depressed and humiliated); Hall v. Pa. Dep’t of Corrections, No. 3V-02-1255, 2006
WL 2772551, at *20-23 (M.D. Pa. Sep. 25, 2006) ($75,000 compensatory award, reduced from
$300,000, where sole damages evidence was plaintiff’s testimony that she felt “embarrassed” by
verbal harassment, but continued working; no evidence of need for counseling or other treatment
or that plaintiff’s relationships had been affected by hostile work environment); see also Bolden
v. SEPTA, 21 F.3d 29, 33-34 (3d Cir. 1994) (affirming award of $250,000 for compensatory
damages in a Section 1983 claim, where the plaintiff, his wife and daughter testified about how
he had changed after being discharged following an unconstitutional drug test), in conformity
with the maximum award authorized by statute, the Court cannot award more than $50,000.00 in
Punitive damages may be awarded upon a showing that the covered entity has
“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.
§1981a(b)(1). “The employer’s conduct need not be independently ‘egregious’ to satisfy
§1981a’s requirements for a punitive damages award, although evidence of egregious
misconduct may be used to meet the plaintiff’s burden of proof.” Kolstad v. Am. Dental Ass’n,
527 U.S. 526, 546 (1999). An employer may be vicariously liable for the discrimination of its
employee if the employee was serving in a “managerial capacity” and committed the wrong
while “acting in the scope of his employment.” Id. at 542-44, 45.
The Court finds that EEOC has proven by a preponderance of the evidence that
Massaro is entitled to an award of punitive damages. The uncontroverted evidence shows that
Defendant was aware that federal law prohibited sex-based harassment. McClendon was the
telemarketing manager, responsible for hiring as well as training the employees in his
department. The uncontroverted evidence also shows that Defendant ignored Massaro’s report
of harassment, and instead, through its chief executive officer, stated that the harasser was “just
doing his job.” In other words, Defendant, acting through an alter ego or proxy of the
corporation, tolerated and ratified the Title VII violation in this case, affirmatively allowing a
manager to create and perpetuate a sexually hostile working environment in the face of its
obligation to prevent and correct such an environment.
An employer may establish an affirmative defense to punitive damages by
proving that a managerial employee’s discriminatory conduct was contrary to the employer’s
good faith efforts to comply with Title VII’s prohibitions. See Romano v. U-Haul Int’l, 233 F.3d
655, 670 (1st Cir. 2000) (“The defendant . . . is responsible for showing good faith efforts to
comply with the requirements of Title VII”); Zimmermann v. Assocs. First Capital Corp., 251
F.3d 376, 385 (2d Cir. 2001) (referring to the defense as an affirmative defense that “requires an
employer to establish both that it had an antidiscrimination policy and made good faith effort to
enforce it”). However, in its Answer, Defendant failed to plead the “good faith efforts”
affirmative defense to punitive damages, see Defendant’s Answer (Doc. 50), and that defense
was therefore waived, e.g., Fed. R. Civ. P. 8(c)(1). Defendant has not presented any evidence to
support such a defense.
Furthermore, the uncontested evidence presented by EEOC, which this Court
credits, demonstrates that Defendant did not, in fact, make good faith efforts to comply with Title
VII. To the contrary, EEOC’s evidence shows that Defendant, acting through its owner and
CEO Hieronimus, not only failed to take corrective action in response to Massaro’s complaint of
a sexually hostile work environment, but actually ratified the harasser’s conduct and
intentionally permitted the harassment to persist, resulting in Massaro’s constructive discharge.
The good faith efforts defense to punitive damages is unavailable for discriminatory acts
committed by company officials who are of sufficient authority within the organization that they
are deemed alter egos or proxies of the organization under agency principles, such as owners or
corporate officers. Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493,
516 (9th Cir. 2000) (employees with positions sufficiently high up in the company are
considered proxies and thus prevent the company from asserting a vicarious liability defense to
punitive damages); see also Hightower v. Roman, Inc., 190 F. Supp. 2d 740, 753-54 (D.N.J.
2002) (denying summary judgment where issue of fact remained about alleged harasser’s role in
the company and whether he was sufficiently senior to be a proxy). Additionally, Massaro
testified that he was not informed of the contents of Defendant’s anti-harassment policy, never
received a copy, and was never trained about harassment in the workplace. Hieronimus placed
McClendon, the telemarketing manager, in charge of informing employees in his department of
the company’s policies, yet was unaware of whether McClendon had received training on those
policies, and did not train McClendon himself.
The Court therefore finds that EEOC has proven by a preponderance of the
evidence entitlement to an award of punitive damages. Some relevant factors to consider in
determining the amount of punitive damages that should be awarded include: 1) whether the
defendant employer should be punished for the conduct; 2) whether punitive damages are
necessary to deter future similar wrongful conduct by the defendant; 3) whether an award of
punitive damages will deter others from engaging in similar wrongful conduct; 4) the degree to
which a defendant should be punished, or the degree to which a punitive damages award will act
as a deterrent; and 5) the financial resources of the defendant. See, e.g., Third Circuit Model
Jury Instructions For Employment Discrimination Claims Under Title VII, Instruction 5.4.2 –
Punitive Damages (last updated March 2017).
Applying the aforementioned factors, the Court finds that punitive damages in the
amount of $75,000.00 would be warranted by the evidence. The discrimination for which
Defendant has been found liable was intentional and egregious and warrants punishment.
Furthermore, to the best of this Court’s knowledge, Defendant’s business operations are ongoing,
and its discriminatory conduct proven by EEOC must be deterred in the future for the protection
of Defendant’s current and future workforce. Defendant’s discriminatory conduct that was
established by EEOC included not only the sex harassment committed by McClendon but also
Hieronimus’s ratification of that harassing conduct, actions that reflect a substantial deviation
from the requirements of Title VII. Given that Hieronimus remains the owner and CEO of
Defendant, there also remains a significant risk of future violations of Title VII that must be
deterred. A punitive damages award in the amount identified is likely to serve as a substantial
deterrent to Defendant and other employers from engaging in similar violations of Title VII in
the future. While the EEOC has not presented evidence of the financial resources of Defendant,
the Court is aware that Defendant has filed a Chapter 11 bankruptcy petition, a factor that the
Court has considered; however, the fact of potential insolvency or limited resources does not, by
itself, immunize an employer from punitive damages, particularly in view of the important Title
VII objective of general deterrence of other employers from engaging in similar violations of
Notwithstanding the view of the Court that $75,000 would be an appropriate
punitive damages award in this case, by operation of the statutory damages cap the aggregate
amount awarded for compensatory damages for emotional distress and punitive damages
combined cannot exceed $50,000.00. 42 U.S.C. § 1981a(b)(3).
The standard for awarding injunctive relief is set out clearly in Title VII:
If the court finds that the respondent has intentionally engaged in or is
intentionally engaging in an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstatement or hiring of employees,
with or without back pay (payable by the employer, employment agency, or labor
organization, as the case may be, responsible for the unlawful employment
practice), or any other equitable relief as the court deems appropriate.
42 U.S.C. § 2000e-5(g)(1). In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the
Supreme Court held that Section 706(g)(1) not only permits the issuance of injunctions, but in
fact imposes upon district courts a “duty to render a decree which will so far as possible
eliminate the discriminatory effects of the past as well as bar like discrimination in the future.”
Id. at 418 (emphasis added).4 The Court of Appeals for the Third Circuit has recognized this
duty to issue appropriate injunctive relief in order to advance the twin goals of Title VII,
remediation and prevention. See Mardell v. Harleysville Life Insurance Co., 31 F.3d 1221,
1238-39 (3d Cir. 1994), amended on other grounds, 65 F.3d 1072 (3d Cir. 1995).
It is not necessary for a plaintiff to prove ongoing discrimination, or a pattern or
practice of discrimination, to justify injunctive relief. See EEOC v. Frank’s Nursery & Crafts,
Inc., 177 F.3d 448, 468 (6th Cir. 1999) (“It is clear that the EEOC may obtain relief that protects
a class of persons from unlawful employment discrimination without citing numerous instances
of such discrimination. While the right to such relief is not absolute, and the power to order it
rests in the hands of the lower courts, the EEOC may seek it upon proof even of just one instance
of discrimination that violates Title VII. In exercising its discretion to determine the extent of
injunctive relief warranted the district court must be guided by the purposes of Title VII, a
primary purpose being prophylaxis, i.e., deterrence of future violations of law. See, e.g., North
Hudson Regional Fire & Rescue, 665 F.3d at 86; Evans v. Harnett Cty. Bd. of Educ., 684 F.2d
In eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), the Supreme Court articulated a
familiar four-factor test to determine permanent injunctive relief, which in that case involved
injunctive relief for violations of the Patent Act: (1) that [the plaintiff] has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of hardships between the plaintiff
and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction. Id. at 291. These factors inform the Court’s discretion,
though as the Supreme Court earlier instructed in Albemarle Paper, they are to be applied with
due regard to the affirmative duty of the district court to enter a decree that eradicates present
effects of past discrimination and prevents future violations of Title VII.
304, 306 (4th Cir. 1982) (citing Albemarle Paper, holding district court erred by not enjoining
unlawful practices, and stating, “[Plaintiff] and other black applicants are entitled to be
considered for future appointments free of the taint of the invidious discrimination that the
district court found”); EEOC v. Conn-X, LLC, Civil Case No. L-09-2881, 2012 WL 456870, at
*1-2 (D. Md., Feb. 9, 2012) (citing preventive purpose of Title VII and the public interest in
preventing future discrimination, enjoining defendant from any further religious harassment or
discrimination though victims no longer employed).
To avoid injunctive relief after a finding of a Title VII violation, the burden is on
the employer to demonstrate that the type of violation at issue is unlikely to recur under the
circumstances. See, e.g., EEOC v. Service Temps, Inc., 679 F.3d 323, 338 (5th Cir. 2012)
(holding injunction presumptively appropriate upon finding Title VII violation and disregarding
defendant’s argument that EEOC failed to adduce evidence showing need for injunction); EEOC
v. Goodyear Aerospace Corporation, 813 F.2d 1539, 1544-1545 (9th Cir. 1987) (“If the EEOC
proves its case, and [the defendant] fails to prove the violation will likely not recur, the EEOC
will be entitled to an injunction); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d
1244, 1253-54 (11th Cir. 1997) (reversing district court denial of injunction as abuse of
discretion and remanding case to enable court to grant such relief unless it “finds persuasive
reasons to deny particular items of relief”).
Upon a finding that an injunction is warranted, the terms of that injunction should
be formulated so as to be no broader or more burdensome than are necessary to achieve its
objectives and secure complete relief. See, e.g., Milliken v. Bradley, 433 U.S. 267, 279-80
The Court finds that EEOC has proven that an injunction against Defendant is
warranted in this case. The likelihood of future violations may be inferred from past unlawful
conduct, see, e.g., United States v. Rx Depot, Inc., 290 F. Supp.2d 1238, 1247 (N.D. Okla. 2003)
(citing authorities). Defendant committed an intentional violation of Title VII by subjecting
Massaro to a hostile work environment because of his sex and constructively discharging him as
a result of its refusal to take action to stop the harassment and correct its work environment.
Furthermore, an injunction is warranted where individuals who were involved in
the discrimination (whether through direct participation in the unlawful conduct or by condoning
or tolerating the conduct) remain employed by the defendant and in positions of authority. See,
e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1996) (affirming injunction
where decision-makers regarding unlawful denial of religious accommodation remained primary
decision-makers regarding accommodations); Bundy v. Jackson, 641 F.2d 934, 946 n.13 (D.C.
Cir. 1981) (reversing denial of injunctive relief in a sexual harassment case in part on the
grounds that the individuals who perpetrated the violations remained employed); EEOC v. Red
River Beverage Co., No. Civ. A. 3:99-CV-1685, 2003 WL 21317861, at *1 (N.D. Tex., Mar. 7,
2003) (noting manager who terminated aggrieved person remained employed and was promoted
by defendant; ordering three-year injunction); Sherman v. Kasotakis, 314 F. Supp. 2d 843, 879
(N.D. Iowa 2004) (issuing permanent injunction in Title II public accommodations case, where
plaintiffs were subjected to racist statements by restaurant server, server was known to make
such statements in the past, supervisor took no action, and defendant took unyielding position at
trial that its actions were reasonable, all evidence to the contrary); Sanchez v. Miami Beach, 720
F. Supp. 974, 982 (S.D. Fla. 1989) (issuing permanent injunction in favor of plaintiff female
police officer in sexual harassment case, where current police officers testified at trial that they
believed objectively offensive pictures and posters were just “jokes,” and defendant city
implicitly condoned the conduct by taking no disciplinary action against the perpetrators). See
also EEOC v. KarenKim, Inc., 698 F.3d 92, 100-01 (2d Cir. 2012) (holding district court abused
discretion by not issuing injunction barring defendant from reemploying terminated harasser and
barring defendant from allowing him on premises; noting continuing ability of harasser to have
access to store). In this case, the testimony demonstrates that Gary Hieronimus, Defendant’s
owner and chief executive officer, not only tolerated but in fact ratified the violations of Title
VII in this case, and Hieronimus remains the owner and chief executive of Defendant, thus
presenting a significant risk of recurring violations of the type at issue in this case.
Finally, there is no evidence that Defendant has subsequently undertaken any
training, policies or programs geared specifically to preventing the violations that occurred in
this case from recurring. An injunction is warranted in such circumstances. See, e.g., Bundy v.
Jackson, 641 F.2d 934, 946, n.13 (D.C. Cir. 1981) (reversing denial of injunctive relief in a
sexual harassment case on the grounds the evidence showed that the employer had demonstrated
no action taken to prevent recurrence of the Title VII violations).
Based on the foregoing, the Court finds that Plaintiff has demonstrated its entitlement to back
pay, compensatory and punitive damages on behalf of Mr. Massaro, as well as to injunctive
relief. An appropriate Judgment Order will follow.
November 16, 2017
cc (via ECF email notification):
All counsel of record
United States District Judge
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