Evans v. Larchmont Infant Care Center et al
Filing
77
OPINION AND FINAL ORDER - Denied finding as moot 70 Motion ; Denied finding as moot 71 Motion ; Denying 72 Motion for Default Judgment. For these reasons, the Court ORDERS the following: 1. The Plaintiffs claim of retaliation under Title VII as alleged in the Amended Complaint is DISMISSED WITH PREJUDICE. 2. The Plaintiffs Motion for Default Judgment, ECF No. 72, as to her claim of retaliation under the ADA is GRANTED IN PART, and the Clerk is DIRECTED to enter judgment in t he amount of $721.25 for the Plaintiff only against the Defendant, Larchmont Baptist Church Infant Care Center, Inc. Although the Plaintiff has also moved for default judgment against Laura Reed and Kim Carmi, that part of the Motion, ECF No. 72, is DENIED because Reed and Carmi were both dismissed with prejudice as defendants in this case, see ECF No. 35. 3. Kim Carmi's Motions, ECF Nos. 70-71, are DENIED as MOOT. It is so ORDERED. Signed by Magistrate Judge Lawrence R. Leonard and filed on 7/8/13. Copies distributed to the parties and Kim Carmi 7/9/13. (ldab, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
NICOLE D. EVANS,
Plaintiff,
CaseNo.:2:ll-cv-306
LARCHMONT BAPTIST CHURCH
INFANT CARE CENTER, INC.,
Defendant.
OPINION AND FINAL ORDER
This case has been referred to the undersigned U.S. Magistrate Judge on the parties'
consent pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Before the Court
is the pro se Plaintiffs, Nicole D. Evans ("Evans"), Motion for Default Judgment, ECF No. 72,
and Kim Carmi's ("Carmi") "Request[s] to Cancel the Request of Default Judgment," ECF Nos.
70-71, which, although docketed as Motions, the Court construes, collectively, as a brief in
opposition to Evans's Motion. For the following reasons, the Court GRANTS, with exceptions,
Evans's Motion for Default Judgment and DENIES as MOOT Carmi's Motions.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Defendant, Larchmont Baptist Church Infant Care Center, Inc. ("Larchmont"), was a
day care center where Evans was employed as a full-time Lead Teacher in the Infant Room
beginning September 2006. On July 8, 2009, Larchmont terminated one of Evans's co-workers,
who subsequently filed an age and disability discrimination charge with the U.S. Equal
Employment Opportunity Commission ("EEOC") on July 16, 2009. The terminated co-worker
also filed a claim for benefits with the Virginia Employment Commission. On July 24 and 29,
2009, in connection with these filings, Carmi, Larchmont's Director, purportedly asked Evans for
a written statement confirming she had witnessed the terminated co-worker sleeping on the job.
Evans refused. Carmi made the same request to two other co-workers, who complied.
On July 31, 2009, Carmi distributed a survey to the staff concerning Larchmont's policy
against sleeping on the job. Evans did not complete the survey and on August 3, 2009, wrote a
letter to the EEOC stating her co-worker had been wrongfully terminated, that Carmi
"forced/requested [] staff [] to complete a survey ... and submit statements that [her co-worker]
was sleeping on the job," and that there had been no formal discussions at Larchmont regarding
sleeping on the job. ECF No. 33, attach. 4. On August 7, 2009, Carmi reassigned Evans to the
Toddler II Room as an Assistant Teacher,1 and a memorandum reflecting this reassignment was
posted in the workplace on August 12, 2009. Although Evans's wages were not reduced, her
weekly work hours decreased from forty to approximately thirty-two hours per week, thereby
reducing her weekly pay.
She also began receiving written reprimands, which she had not
received prior to her reassignment.
Evans filed her first retaliation charge with the EEOC on August 17, 2009, after which she
was reassigned as the Lead Teacher in the Transition Room.2 Nine-and-one-half months later, on
June 3, 2010, Larchmont terminated Evans. She alleges her termination was Larchmont's final
retaliatory act related to her conduct surrounding her co-worker's termination in 2009. See id. at 4
("For thirteen (13) months Plaintiff was subject to deliberate and malic[ious] retaliation for failure
1Evans and her co-worker viewed this reassignment asa demotion. ECF No. 33at 3, attachs. 7, 12.
2There isevidence that on September 28,2009, after learning ofEvans's EEOC charge, Carmi offered to reassign her
to the Toddler I Room as Lead Teacher, where she would have three assistants. Id., attach. 11. Evans reportedly
declined the offer. Id.
2
to write a false statement."). Evans filed her second charge with the EEOC on July 15, 2010,
claiming she had been subjected to a hostile work environment and discharged in retaliation for
participating in protected activity under the Americans with Disabilities Act ("ADA").
The EEOC issued its Determination as to the first charge on August 26, 2010, finding
Larchmont to be an employer within the meaning of the ADA and that
[t]he evidence reveal[ed] there [was] sufficient cause to believe the Respondent
retaliated against the Charging Party by initially demoting her from Lead Teacher
in Infants to Assistant in Toddlers and then reassigning her to the Transition Room.
The evidence also reveal[ed] that the Charging Party was further retaliated against
in being issued a Record of Discussion which had not been issued to anyone
previously. This action [was] in violation of the American with Disabilities Act of
1990, as amended, Section 503.
ECF No. 41, attach. 4. Attached to the EEOC's Determination was a proposed Conciliation
Agreement, which proved unsuccessful. The EEOC then issued Evans a Notice of Right to Sue
letter on March 18,2011, on her first, not second, retaliation charge.
Evans timely filed a one-page Complaint on June 9, 2011, against Larchmont, Carmi, and
Laura Reed ("Reed"), Chairwoman of Larchmont's Board of Directors, alleging retaliation under
the ADA, 42 U.S.C. § 12203, as amended, and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3, as amended. On January 17, 2012, Larchmont and Reed moved to dismiss the
Complaint for lack of subject-matter jurisdiction and failing to state a claim. Carmi followed suit
on January 19,2012, by filing the same motion on the same grounds.
On February 23, 2012, the Court, sua sponte, directed Evans to show cause why the
Complaint should not be dismissed with prejudice as to Carmi and Reed.
March 2, 2012.
She responded on
Before then, on February 29, 2012, the Court granted Larchmont's motion to
dismiss the Complaint for failing to state a claim but also granted Evans leave to file an amended
3This distinction is important forthepurpose of theCourt's discussion of the merits.
3
complaint.4 Evans filed an Amended Complaint with exhibits on March 19, 2012. Two days
later, on March 21, 2012, the Court ordered that Carmi and Reed be dismissed from the matter
with prejudice because Evans failed to demonstrate that they were proper defendants under the
ADA or Title VII. This leaves Larchmont as the sole Defendant. On May 1, 2012, Larchmont
moved for summary judgment, which the Court denied on September 11, 2012. A day later, on
September 12,2012, defense counsel moved to withdraw from representation.
On September 28, 2012, the Court granted defense counsel's motion to withdraw after it
was made known that Larchmont's corporate existence was terminated by the Virginia State
Corporation Commission on June 30, 2012, for failure to maintain a registered agent. It was clear
at that time that counsel's continued representation of Larchmont, a defunct corporation with no
assets and no personnel, would result in an unreasonable financial burden on counsel, and that the
representation had been rendered unreasonably difficult by the client's dissolution. The Court
then ordered Evans, on October 11, 2012, to move for default judgment against Larchmont if it did
not retain counsel by November 12, 2012. Larchmont failed to retain counsel, the Clerk entered
default against it on November 16, 2012, and Evans moved for default judgment on December 5,
2012.
II. JURISDICTION AND VENUE
"Under [28 U.S.C] § 626(c), a magistrate judge may conduct any or all proceedings in a
civil matter and order the entry ofjudgment in the case when, one, the parties have consented and
two, the district court has specially designated the magistrate judge to exercise such jurisdiction."
4Larchmont's motion to dismiss for lack of subject-matter jurisdiction was predicated on the fact that it was not an
employer within the definition of the ADA or Title VII because it never employed fifteen or more employees during
the times relevant to this case. On February 29, 2012, the Court explained in its Order that the Acts' employer
numerosity requirement was an element of Evans's claim rather than a jurisdictional prerequisite. See Arbaugh v. Y&
HCorp., 546 U.S. 500, 515 (2006). Accordingly, the Court denied Larchmont's motion to dismiss for lack of subjectmatter jurisdiction.
4
Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995). "When a magistrate judge enters judgment
pursuant to this statute, absence of the appropriate consent and reference or special designation
order results in a lack of jurisdiction (or at least fundamental error ...)." Id. (citation omitted).
Here, the parties have consented to proceed before the undersigned U.S. Magistrate Judge, and the
U.S. District Judge assigned to this case referred it to the undersigned in accordance with 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
Although Federal Rule of Civil Procedure 55(a) authorizes entry of default judgment
against a party when that party "has failed to plead or otherwise defend," the Court must first be
able to exercise subject-matter and personal jurisdiction over the defaulting party and establish
that venue is proper before it may enter default judgment. In this action, the Court has subjectmatter jurisdiction on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1331
because this case arises under federal law, specifically alleged violations of the ADA. The Court
also has general personal jurisdiction over Larchmont because it is a Virginia, but now defunct,
corporation, and venue is proper under 28 U.S.C. § 1391(b). Accordingly, it is appropriate for the
Court to exercise jurisdiction in this case.
III. ANALYSIS
A. Propriety of Default Judgment
On September 28, 2012, the Court permitted Larchmont's counsel to withdraw from
representation, thereby leaving Larchmont, a corporation, without legal counsel.
As "[a]
corporation is required to have legal representation," Forth's Foods, Inc. v. Allied Ben. Adm 'r,
Inc., No. 3:07-0670, 2008 WL 88610, at *2 (W.D. Va. Jan. 7, 2008), Larchmont may not
participate in any of the activities attendant with defending a lawsuit without counsel. However,
Larchmont's ability to retain representation is rendered all the more difficult, perhaps impossible,
5
by the termination of its corporate existence and its lack of assets and personnel. See ECF No. 66
at 3. Rather than allow the case to continue indefinitely because of Larchmont's inability to
defend this lawsuit, the Court, on October 11, 2012, ordered Larchmont to retain legal counsel by
November 12, 2012. In the event it did not do this, the Court also directed Evans to move for
default judgment against Larchmont. Evans has done so, and the Clerk entered default judgment
against Larchmont on November 16,2012.
Federal Rule of Civil Procedure 55(a) authorizes entry of default judgment against a party
when that party "has failed to plead or otherwise defend." Although Larchmont answered the
Amended Complaint such that it has not "failed to plead" under Rule 55(a), because Larchmont
has not and cannot retain legal counsel, it cannot "otherwise defend" this case. It is accordingly
appropriate for the Court to enter default judgment against Larchmont pursuant to Rule 55. Music
City Music v. Alfa Foods, Ltd., 616 F. Supp. 1001,1002 (E.D. Va. 1985) (citation omitted).
The defendant, by his default, admits the plaintiffs well-pleaded allegations of fact,
is concluded on those facts by the judgment, and is barred from contesting on
appeal the facts thus established.... As the Supreme Court stated in the "venerable
but still definitive case" of Thomson v. Wooster: a default judgment may be
lawfully entered only "according to what is proper to be decreed upon the
statements of the bill, assumed to be true," and not "as of course according to the
prayer of the bill." The defendant is not held ... to admit conclusions of law. In
short, despite occasional statements to the contrary, a default is not treated as an
absolute confession by the defendant of his liability and of the plaintiffs right to
recover.
Nishimatsu Constr. Co., Ltd. v. Houston Nat'I Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (quoting
Thomson v. Wooster, 114 U.S. 104, 113 (1885)) (internal quotations and other citations omitted).
Therefore, by its default, Larchmont has admitted the well-pleaded factual allegations contained in
the Amended Complaint, and the Court may proceed to the merits.
B. Exhaustion of Administrative Remedies
Before addressing the merits of Evans's retaliation claim under the ADA, though, the
Court is obligated to determine whether it has subject-matter jurisdiction to adjudicate her race-
based retaliation claim under Title VII. A plaintiff may sue under Title VII only after exhausting
her administrative remedies by filing a sworn charge of discrimination with the EEOC. See 42
U.S.C. § 2000e-5(f)(l); see also Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002). The
charge must be "'sufficiently precise to identify the parties, and to describe generally the action or
practices complained of.'" Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (quoting
29 C.F.R. § 1601.12(b)). After doing so, the aggrieved party may initiate a civil action based on
the claims contained in her EEOC charge only upon receipt of a right-to-sue letter. Puryear v.
County of Roanoke, 214 F.3d 514, 518 (4th Cir. 2000) (citing 42 U.S.C. § 2000e-5(f)(l)). A
plaintiffs failure to exhaust her administrative remedies divests the federal court of subject-matter
jurisdiction over the claim. Davis v. N.C. Dep't ofCorr., 48 F.3d 134,138-40 (4th Cir. 1995).
"The scope of the plaintiffs right to file a federal lawsuit is determined by the ... contents"
of the charge submitted to the EEOC. Jones v. Calvert Grp, Ltd., 551 F.3d 297, 300 (4th Cir.
2009).
Specifically, "[o]nly those discrimination claims stated in the initial charge, those
reasonably related to the original complaint, and those developed by reasonable investigation of
the original complaint may be maintained in a subsequent Title VII lawsuit." Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). This requirement ensures that the
claimant's "employer is put on notice of the alleged violations so that the matter can be resolved
out of court if possible." Miles v. Dell Inc., 429 F.3d 480, 491 (4th Cir. 2005). Consistent with
the foregoing, "a claim in formal litigation will generally be barred if the EEOC charge alleges
discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on
a separate basis, such as sex." Jones, 551 F.3d at 300.
Here, the EEOC Charge refers to retaliation based on disability. See ECF No. 33 at 13 ("I
believe I have been retaliated against for refusing to provide a false statement against an individual
who filed with the EEOC [a charge of age and disability discrimination] in violation of the
Americans with Disabilities of 1990, as amended, Section 503."). However, nowhere does this or
any other document, particularly the right-to-sue letter, mention a race-based retaliation claim,
with the exception of certain allegations contained in the Amended Complaint. See id. at 2 ("The
Plaintiff, Evans (African American) was employed by Larchmont Baptist Church Infant Care
Center, Inc., September 2006 as a full-time Lead Teacher, in the Infant Room. On July 8,2009, a
co-worker was terminated by Defendant Carmi, (White) who was employed by Defendant
(Larchmont) as Director, for allegedly sleeping on the job."), 3 ("Two staff members (white)
complied and wrote statements against terminated co-worker (African American)."), 4 ("The
Plaintiff believes she has established a prima facie case of retaliation under the Employment
Discrimination Statu[t]e Civil Right[s] Act of 1964 (Title VII) Anti-retaliation provision.").
Moreover, the race-based retaliation claim is neither reasonably related to the disability-based
retaliation claim, nor would a reasonable investigation into the latter claim put Larchmont on
notice of Evans's former claim. See Jones, 551 F.3d at 300; Evans, 80 F.3d at 963.
On April 4, 2013, the Court ordered Evans to show cause why it should not construe the
Amended Complaint as asserting only a claim for retaliation under the ADA.
Evans timely
responded and moved to dismiss with prejudice her race-based retaliation claim. ECF No. 76 at 3
("The Plaintiff hereby respectfully requests] the Court to construe the Plaintiffs Amended
Complaint as asserting only a claim for retaliation under the ADA and to proceed solely on the
8
disability-based retaliation claim in disposing of the Plaintiffs Motion for Default Judgment. The
Plaintiff also respectfully requestfs] that the race-based retaliation claim be dismissed with
prejudice.").
Accordingly, the Court finds that Evans failed to exhaust her administrative
remedies with respect to her race-based retaliation claim under Title VII, and this claim as alleged
in the Amended Complaint is DISMISSED WITH PREJUDICE. The Court proceeds solely on
the retaliation claim under the ADA in disposing of Evans's Motion for Default Judgment.
C. Merits
Section 503 of the ADA prohibits retaliation against an employee "because [that]
individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing [thereunder]."
42 U.S.C. § 12203(a).
"By its plain language, this
provision of the ADA does not require as a predicate that the person invoking it be a qualified
individual with a disability." Parkinson v. Anne Arundel Med. Ctr., Inc., 214 F. Supp. 2d 511, 517
(D. Md. 2002) (citing Rhoads v. F.D.I.C, 257 F.3d 373, 391 (4th Cir. 2001)). In assessing a
retaliation claim under the ADA, the Court generally follows a three-part, burden-shifting
analysis. See id.; McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, as this
case is proceeding on a motion for default judgment, Evans need only make out a primafacie case
of retaliation because any burden that would shift to Larchmont could not be overcome. To
establish a retaliation claim under the ADA, Evans must allege "(1) that she has engaged in
conduct protected by the ADA; (2) that she suffered an adverse action subsequent to engaging in
protected conduct; and (3) that there was a causal link between the protected activity and the
adverse action." Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002)
(citation omitted).
As an initial matter, Evans is not invoking the ADA as a qualified individual with a
disability; rather, she is asserting a claim of retaliation under the ADA after she assisted a former
co-worker, who was terminated, in that co-worker's disability discrimination charge. This action
is a protected activity under the ADA. See Mansfield v. Holder, No. 09-cv-5718, 2012 WL
406432, at *19 (E.D. Pa. Feb. 9, 2012) ("Protected activity includes ... making a charge,
testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing
pursuant to the Act.") (citations omitted) (emphasis added); Carroll v. N.C. Dep't of Health &
Human Servs., No. 4:00-CV-159-H(4), 2001 WL 34013436, at *4 (E.D.N.C. July 17,2001) ("it is
clear that the plaintiff engaged in protected activity by filing EEOC charges"). Evans alleges that
she informed the EEOC on August 3, 2009, that her co-worker had been wrongfully terminated,
that Carmi "forced/requested [] staff [] to complete a survey ... and submit statements that [her co
worker] was sleeping on the job," and that there had been no formal discussions at Larchmont
regarding sleeping on the job. ECF No. 33, attach. 4. As a result of this activity, approximately
four days later, on August 7, 2009, Evans suffered adverse employment action by being demoted,
having her weekly work hours reduced, and receiving written reprimands, which she had not
previously received.
See Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999) (finding that
allegations of "discharge, demotion, decrease in pay or benefits, loss of job title or supervisory
responsibility, or reduced opportunities for promotion [are] the typical requirements for a showing
of an 'adverse employment action'").
In light of the close temporal proximity of four days
between when Evans engaged in protected activity and when Larchmont retaliated against her for
this activity, the causal connection between these two actions has been established. See Carter v.
Ball, 33 F.3d 450,460 (4th Cir. 1994) ("The court found a causal connection between a plaintiffs
protected activity and her discharge where the employer, with knowledge of a pending
10
discrimination complaint, fired plaintiff approximately four months after the complaint was
filed.") (citation omitted); Griffith v. Wal-Mart Stores East, L.P., No. 6:12-CV-00011, 2012 WL
5465501, at *10 (W.D. Va. Aug. 24, 2012) (finding causal connection between filing EEOC
charge and termination ten days later); Koger v. Woody, No. 3:09cv90, 2010 WL 331759, at *15
(E.D. Va. Jan. 26, 2010) (finding causal connection between filing EEOC charge and termination
three days later). Accordingly, Evans has stated a valid claim of retaliation under Section 503 of
the ADA against Larchmont.
D. Damages
Upon a plaintiffs motion for default judgment, a court may not award damages that
exceed the amount sought in the pleadings.
Fed. R. Civ. P. 54(c).
Also, "[u]nlike factual
allegations as to liability, the Court does not accept factual allegations regarding damages as true,
but rather must make an independent determination regarding such allegations."
Mink v.
Baltimore Behavioral Health Inc., No. WDQ-11-1937, 2012 WL 6043796, at *2 (D. Md. Dec. 4,
2012) (citation omitted). Although the Court may conduct an evidentiary hearing pursuant to
Federal Rule of Civil Procedure 55(b)(2)(B), it has not done so here. Instead, on December 14,
2012, the Court informed Evans that it would make a determination of damages based on "an
adequate evidentiary basis in the record for the award," ECF No. 74 at 1-2 (quoting Mink, 2012
WL 6043796, at *2), notified her that the record in this case was inadequate as to damages, and
ordered her to file detailed affidavits or documentary evidence supporting her $80,000.00 claim
for lost wages, see Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D. D.C. 2001). On this point, Evans
submitted a brief in support of her damages claim and attached thereto her 2008, 2009, and 2010
11
W-2 Wage and Tax Statements and eleven pay stubs from July 1 to November 17, 2009,5
representing her earnings during her employ with Larchmont.6 ECF No. 74. She specifically
claims $80,000.00 in damages, representing $9,892.00 in "[l]os[t] earnings from Virginia
Employment Commission," an unspecified amount in "[decreased wages in 2009 after filing
Charges," $11,725.00 in "[l]os[t] earnings from the year 2010," $43,000.00 in "[fjuture earnings,"
and $16,000.00 in "punitive damages due to mental distress and financial hardship."7 Id. at 3.
The Court will take each claim in turn and determine whether there is an adequate evidentiary
basis in the record for an $80,000.00 award.
i. Back Pay
First, Evans requests an unspecified amount in lost wages or back pay from 2009. "In
cases brought pursuant to [the ADA], lost wages in the form of 'back pay' are generally available
to a prevailing employee, which includes those wages that would have accrued to the time when
the court might reinstate the employee."8 Coles v. Deltaville Boatyard, LLC, No. 3:10cv491DWD, 2011 WL 4804871, at *8 (E.D. Va. Oct. 11, 2011) (citation omitted). "Such 'back pay' is
'a make-whole remedy that resembles compensatory damages in some respects.'" Id. (citation
omitted). The Court uses August 7, 2009, the date Evans was reassigned to the Toddler II Room
as an Assistant Teacher, as the starting point in calculating these damages because it was after this
date that Larchmont began to retaliate against Evans by reducing her weekly work hours below
5The following pay stubs are missing and will not be included in the Court's damages calculation: August 5 to 18,
August 26 to September 1, September 16 to 22, September 30 to October 13, and October 21 to November 10,2009.
6 The Court notes that many of the documents Evans has submitted for filing in this case contain her personal
identifiers in violation of Federal Rule of Civil Procedure 5.2(a) and Local Civil Rule 7(C). However, she has waived
the protection of Rule 5.2(a) as to her own information by filing it without redaction and not under seal. See FED. R.
Civ. P. 5.2(h). Simply put, it is the parties' obligation, not the Court's, to ensure that filings comply with these Rules.
7 The Court acknowledges that these figures when added together exceed the $80,000.00 request for damages by
$617.00, but this fact is not important given Evans's actual damages award.
8"The ADA borrows remedies from Title VII for retaliation claims in the employment context. See 42 U.S.C. §§
12203, 12117, 2000e-5. The Court's discussion of back pay[, front pay, and punitive damages] in Title VII actions
.... then, is directly applicable to this case." Rhoads v. F.D.I.C, 286 F. Supp. 2d 532, 537 n.2 (D. Md. 2003).
12
forty hours per week. For this reason, Evans's pay stubs from July 1 to August 4, 2009, are not
included in the Court's damages calculation because they concern dates before the retaliation
began. After reviewing the remaining pay stubs, the Court awards Evans $721.25.9 See ECF No.
39, attach. 1 at 38-39. Although Evans also submitted her 2009 W-2 Wage and Tax Statement,
ECF No. 74, attach. 7, the Court declines to use this document as the basis for an award of back
pay because it does not set forth how many hours she worked each week before and after the
retaliation began.
This document, moreover, shows Evans earned a greater wage in 2009
($21,571.37), when she was retaliated against, than in 2008 ($20,541.98), when there were no
claims of retaliation. Id., attach. 1. Without additional evidence to support Evans's claim that she
worked less than forty hours each week after August 7, 2009, the Court's award of lost wages or
back pay from 2009 is restricted to $721.25, an amount calculated from those pay stubs that Evans
submitted and Exhibit A to Larchmont's brief in support of its motion for summary judgment.
ii. Front Pay
Evans also requests future lost earnings from 2010 in the amount of $11,725.00,
representing what she should have earned that year had she not been terminated on June 3, 2010,
and future lost earnings in the amount of $43,000.00. "The equitable remedy of front pay is
generally available when an employer has terminated an employee unlawfully and the employee's
reinstatement is not possible," as in this case because Larchmont is a defunct corporation.
9 The Court arrived at this figure after making the following calculations: $42.56 for August 19 to 25, 2009 (40
hours/week - 35.52 hours worked x $9.50/hour), $75.62 for September 2 to 8, 2009 (40 hours/week - 32.04 hours
worked x $9.50/hour), $111.91 for September 9 to 15, 2009 (40 hours/week - 28.22 hours worked x $9.50/hour),
$75.34 for September 23 to 29, 2009 (40 hours/week - 32.07 hours worked x $9.50/hour rounded up to the nearest
penny), $121.79 for October 14 to 20, 2009 (40 hours/week - 27.18 hours worked x $9.50/hour), $151.53 for
November 11 to 17,2009 (40 hours/week - 24.05 hours worked x $9.50/hour rounded up to the nearest penny), $28.50
for the December 8, 2009 pay period (40 hours/week - 37 hours worked x $9.50/hour), $28.50 for the December 15,
2009 pay period (40 hours/week - 37 hours worked x $9.50/hour), $28.50 for the December 22, 2009 pay period (40
hours/week - 37 hours worked x $9.50/hour), and $57.00 for the December 29, 2009 pay period (40 hours/week - 34
hours worked x $9.50/hour).
13
Loveless v. John's Ford, Inc., 232 F. App'x 229, 238 (4th Cir. 2007) (unpublished per curiam
decision) (citation omitted). "Front pay is designed to place a plaintiff in the financial position
[s]he would have been in had [s]he been reinstated," id. (citation omitted), but such an award
should "be granted sparingly" because it could "result in an unfair windfall," Ford v. Rigidply
Rafters, Inc., 984 F. Supp. 386, 392 (D. Md. 1997) (citation omitted). "[T]he Court may exercise
its discretion to award 'front pay,' which includes those future earnings lost as a result of the
statutory violation." Coles, 2011 WL 4804871, at *8 (citation omitted). Although "[t]he Fourth
Circuit has not specifically enumerated a list of factors to consider in deciding to award front
pay[,] [o]ther courts have considered the plaintiffs prospect of obtaining comparable employment;
the time period of the award; whether the plaintiff intended to work; and whether liquidated
damages have been awarded." Ford, 984 F. Supp. at 392 (citing Downes v. Volkswagen ofAm.,
Inc., 41 F.3d 1132, 1141 (7th Cir. 1994)). "Because front pay necessarily involves speculation as
to future events, the Court must judiciously scrutinize the record to determine whether future
events are sufficiently predictable to justify such an award." Id.
As an initial matter, the Court declines to award both $11,725.00 and $43,000.00 in
damages as they concern Evans's lost future earnings and to award both would permit double
recovery amounting in a windfall. See Shiroma v. Gov 7 of Guam, No. 05-00020, 2005 WL
3484180, at *2 n.3 (D. Guam Dec. 9, 2005) ("However, the Court also recognizes that Title VII
prohibits the plaintiff from receiving double recovery.") (citation omitted).
In reviewing the
record, however, the Court finds there is no argument or evidence as to the prospect of Evans
obtaining comparable employment, whether other work opportunities are reasonably available, or
whether she has been actively and diligently looking for employment, which would suggest a
desire or intent to return to work. Moreover, no liquidated damages have been awarded. The only
14
argument Evans asserts to support her claim for front pay is the bare statement that since her
termination in June 2010 she has been unemployed.
ECF No. 74 at 2 ("Plaintiff has been
unemployed from June, 2010 until the present time which has ... impacted on the Plaintiffs future
earnings.").
A finding by this Court as to the reasonable expected time for Evans to obtain
comparable employment, that other work opportunities are reasonably available, or that she has
been actively and diligently look for employment would be unduly speculative and inappropriate.
Even Evans's $43,000.00 claim in lost future earnings is equally speculative because she does not
reveal the source of this figure. To award Evans front pay based on the record in this case would
require this Court to assume certain unknowns. Bruso v. UnitedAirlines, Inc., 239 F.3d 848, 862
(7th Cir. 2001) (stating that a district court does not abuse its discretion in denying a request for
front pay if the plaintiff fails to provide "the essential data necessary to calculate a reasonably
certain front pay award") (internal quotation omitted). This cannot and should not be done in light
of the Court's duty to award only those damages with an adequate evidentiary basis.
See
Mclnerney v. United Air Lines, Inc., 463 F. App'x 709, 725-26 (10th Cir. 2011) (unpublished
decision) ("We conclude that the district court did not abuse its discretion in denying front pay
because Mclnerney's attempt to calculate front pay at the hearing was inadequate. The record
contains no reference to any attempt on her part to address life expectancy, continued term of
employed with United, or a viable discount rate that would have supported a calculable front pay
amount.") (citation omitted). Accordingly, the Court does not award Evans front pay or lost future
earnings.
Hi. Compensatory and Punitive Damages
Evans also requests $16,000.00 in punitive damages for "mental distress and financial
hardship." ECF No. 74 at 3. By alleging emotional distress and financial hardship, however,
15
Evans is, in reality, requesting compensatory, not punitive, damages.10 To the extent she is
claiming compensatory damages for financial hardship, this claim is similar to, but stated in
different terms than, her economic loss claim for front and back pay, which the Court disposed of
supra. Therefore, the Court will not awardEvanscompensatory damages for financial hardship.
Notwithstanding, courts have grappled with the question of whether compensatory and
punitive damages may even be awarded for retaliation-based claims under the ADA. Rhoads v.
F.D.I.C., 94 F. App'x 187, 188 (4th Cir. 2004) ("Rhoads' claim that she was entitled to recover
compensatory and punitive damages in her trial for violation of the ADA's anti-retaliation
provision fails because such relief is unavailable.") (citing Kramer v. Banc ofAm. Sec, LLC, 455
F.3d 961, 965 (7th Cir. 2004)) (unpublished per curiam decision); Beasley v. Consolidation Coal
Co., No. 1:11CV00055, 2012 WL 2798805, at *9 (W.D. Va. June 13, 2012) ("In his ADA claim,
Beasley alleges that Consol's retaliation caused him to suffer personal and emotional damages,
loss, and other compensatory damages, as well as lost wages and benefits. He also alleges that
Consol's violations warrant an award of punitive damages. However, compensatory and punitive
damages are not allowable for ADA retaliation claims.") (citation omitted).
But see Lucas v.
Henrico County Sch. Bd, 822 F. Supp. 2d 589, 613 n.20 (E.D. Va. Sept. 30, 2011) ("Defendants
also argue that compensatory and punitive damages, as well as a jury trial, are unavailable for
Lucas's ADA retaliation claim in Count 1. While Defendants cite to an unpublished Fourth
Circuit opinion to support this proposition, Defendants fail to address published district court
cases in this circuit and other circuit court opinions which hold otherwise.") (citation omitted).
10 The Court notes that Evans onlyrequests damages for lost wages in the Amended Complaint. The first time she
raises a compensatory damage claim for emotional distress and punitive damages is in a supplemental filing with the
Court. See ECF No. 74. "For the sake of completeness, and because [Evans] is proceeding pro se, however, the
undersigned ... has considered the information related to damages provided in [Evan's] Motion for Default Judgment
and the accompanying Memorandum in Support." Cumberlander v. KCL Site Servs., LLC, No. 08-994, 2009 WL
4927144, at *10 (E.D. Va. Dec. 17, 2009).
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Although this question is disputed in this Circuit, see U.S. E.E.O.C. v. Rite Aid Corp., 750 F.
Supp. 2d 564, 571 n.5 (D. Md. 2010) ("The defendant also contends that compensatory and
punitive damages are not available for anti-retaliation claims under the ADA. This is a disputed
question that does not need to be addressed prior to trial.") (citation omitted), even if such
damages are available for this type of claim, the Court finds that they are unwarranted here.
As to Evans's claim of compensatory damages for emotional distress,
a plaintiffs testimony, standing alone, can support an award of compensatory
damages for emotional distress. Price v. City ofCharlotte, 93 F.3d 1241,1251 (4th
Cir. 1996). Such testimony must "establish that the plaintiff suffered demonstrable
emotional distress, which must be sufficiently articulated." Id. The testimony
cannot rely on "conclusory statements that the plaintiff suffered emotional distress"
or the mere fact that the plaintiff was wronged. Id. Rather, it must indicate with
specificity "how [the plaintiffs] alleged distress manifested itself." Id. The
plaintiff must also "show a causal connection between the violation and her
emotional distress." Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 653
(4th Cir. 2002).
Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 546-57 (4th Cir. 2003). The only arguments
Evans asserts to support her claim of emotional distress are two conclusory statements that a
memorandum was posted in the workplace on August 12, 2009, "reflecting [her] demotion and
reassignment ..., which caused [her] emotional stress," ECF No. 33 at 3, and that she "has been
unemployed from June, 2010 until the present time which has caused mental distress," ECF No.
74 at 2. These statements, standing alone, cannot support an award of compensatory damages for
emotional distress. Specifically, they do not sufficiently articulate the demonstrable emotional
distress Evans suffered, specify how this distress manifested itself, and establish a causal
connection between Larchmont's ADA violation and this distress. See Jones v. Billy Excavation
& Equip. Corp., No. 1:09CV0048, 2010 WL 988480, at *4 (W.D. Va. Mar. 15, 2010) (awarding
$5,000.00 for mental anguish and emotional distress where plaintiff produced evidence that
17
defendant's employee's abuse caused him to feel belittled and humiliated; plaintiff was diagnosed
with and treated for post-traumatic stress disorder as a result of abuse). Therefore, the Court will
not award Evans compensatory damages for emotional distress.
To the extent Evans is claiming punitive damages, she must '"demonstrate[] that the
respondent engaged in a discriminatory practice or discriminatory practices with malice or with
reckless indifference to the federal protected rights of an aggrieved individual." Keeshan v. Eau
Claire Coop. Health Ctrs., Inc., 394 F. App'x 987, 994 (4th Cir. 2010) (unpublished/>er curiam
decision) (citation omitted). "This standard requires the plaintiff to show that the employer
*discriminate[d] in the face of a perceived risk that its actions will violate federal law.'" Id.
(quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999)). The only arguments Evans
asserts to support her claim for punitive damages are two conclusory statements that Larchmont
subjected her "to deliberate and malic[ious] retaliation for failure to write a false statement," ECF
No. 33 at 4, and that she "was intentionally and with malice retaliated against," id. at 5. These
conclusory statements, standing alone, cannot support an award of punitive damages because they
do not allege sufficient factual matter to permit the reasonable inference that Larchmont engaged
in intentional retaliation with malice or reckless indifference to Evans's federally protected rights.
See Cumberlander v. KCL Site Servs., LLC, No. 08-994,2009 WL 4927144, at *10 (E.D. Va. Dec.
17,2009) ("At most, plaintiff conclusively states that defendant willfully conspired against him by
covering up the wages on the wage scale, but does not support this conclusion with any factual
allegations tending to show that he is entitled to punitive damages because defendant acted with
malice or reckless indifference."). Therefore, the Court will not award Evans punitive damages.
Even absent the above analysis, because Evans failed to make a specific request for
punitive damages and compensatory damages for emotional distress in the Amended Complaint—
18
she only sought "damages for los[t] wages," ECF No. 33 at 5—she is not entitled to such relief.
See Cumberlander, 2009 WL 4927144, at *10 ("'When the judgment entered is a default
judgment, the pleadings control the relief that may be awarded, both as to the kind of relief and its
scope.' The rationale being, 'if relief were granted without proper notice to the defendant,
substantial questions of due process would be raised.'") (citation omitted).
iv. Workers' Compensation
Finally, Evans requests lost earnings from the denial of her claim for state unemployment
benefits with the Virginia Employment Commission. Such a claim, however, is barred by the
Rooker-Feldman doctrine, which "bars 'cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.'" Washington v. Wilmore, 407
F.3d 274, 279 (4th Cir. 2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S.
280, 284 (2005)); see Patterson v. Goudelock, No. 3:10-3019-MBS, 2011 WL 2672566, at *2 (D.
S.C. June 30, 2011) ("The gravamen of Plaintiffs complaint is that she wrongfully was denied
workers' compensation benefits. The court concludes that Plaintiffs allegations 'invit[e the]
district court [to] review and reject[]' the decisions made at the workers' compensation
proceedings. The court thus lacks subject matter over Plaintiffs ... claims."). Regardless if
Evans sought state administrative and judicial review of the Virginia Employment Commission's
decision, "[allowing [her state] claim [for unemployment benefits] to proceed against
[Larchmont] would permit her to use the federal courts to [effectively] appeal a State [decision]
and, thus, run afoul of the Rooker-Feldman doctrine." Lorah v. Home Helper's Inc. Del. Respite,
813 F. Supp. 2d 620, 626 (D. Del. 2011) (citations omitted). This she may not do, and the Court
does not award Evans damages based on a denial of her state unemployment benefits claim.
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IV. CONCLUSION
For these reasons, the Court ORDERS the following:
1. The Plaintiffs claim of retaliation under Title VII as alleged in the Amended Complaint is
DISMISSED WITH PREJUDICE.
2. The Plaintiffs Motion for Default Judgment, ECF No. 72, as to her claim of retaliation
under the ADA is GRANTED IN PART, and the Clerk is DIRECTED to enter judgment
in the amount of $721.25 for the Plaintiff only against the Defendant, Larchmont Baptist
Church Infant Care Center, Inc.
Although the Plaintiff has also moved for default
judgment against Laura Reed and Kim Carmi, that part of the Motion, ECF No. 72, is
DENIED because Reed and Carmi were both dismissed with prejudice as defendants in
this case, see ECF No. 35.
3. Kim Carmi's Motions, ECF Nos. 70-71, are DENIED as MOOT.
The Clerk is further DIRECTED to forward a copy of this Opinion and Final Order to the
parties and Kim Carmi.
It is so ORDERED.
.awrence R. Leonard
United States Magistrate Judge
Norfolk, Virginia
July 8,2013
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