Thomas v. Jin & Sang Corporation

Filing 24

ORDER Granting Plaintiff's 22 Renewed Motion for Default Judgment by Judge Richard A Jones. (CL)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MYUNG THOMAS,

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Plaintiff,
CASE NO. C13-1032 RAJ

v.

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JIN & SANG CORPORATION, et al.,

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Defendants.

ORDER GRANTING DEFAULT
JUDGMENT

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This matter comes before the court on Plaintiff’s renewed motion for default

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judgment against defendants Oston Tsevegmid, San Yun, and Jin & Sang Corporation.

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Dkt. # 22.

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The court’s role in considering a motion for default judgment is not ministerial.

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The court must accept all well-pleaded allegations of the complaint as established fact,

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except facts related to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826

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F.2d 915, 917-18 (9th Cir. 1987). Where those facts establish a defendant’s liability, the

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court has discretion, not an obligation, to enter a default judgment. Aldabe v. Aldabe, 616

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F.2d 1089, 1092 (9th Cir. 1980); Alan Neuman Productions, Inc. v. Albright, 862 F.2d

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1388, 1392 (9th Cir. 1988). The plaintiff must provide evidence to support a claim for a

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particular sum of damages. TeleVideo Sys., 826 F.2d at 917-18; see also Fed. R. Civ. P.

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55(b)(2)(B). Where the plaintiff cannot prove that the sum he seeks is “a liquidated sum

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ORDER GRANTING DEFAULT JUDGMENT – 1

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or capable of mathematical calculation,” the court must conduct a hearing or otherwise

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ensure that the damage award is appropriate. Davis v. Fendler, 650 F.2d 1154, 1161 (9th

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Cir. 1981).

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Plaintiff began working at Jin and Sang Corporation dba Tokyo Teriyaki Stop

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(“Tokyo”) as a waitress and cashier in April 2008. Dkt. # 22-2 (Thomas Decl.) ¶ 3.

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Plaintiff took a leave of absence to care for her sick husband who passed away in March

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2010. Id. ¶ 4. Upon her return to Tokyo in March 2012, and after disclosing that her

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husband had passed away, defendant Oston Tsevegmid began making unwanted sexual

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advances to her during work hours. Id. ¶¶ 6-7. Tsevegmid frequently approached her

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without invitation, and pressed his body against hers for several seconds, and he groped

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her breasts and bottom during work hours. Id. ¶¶ 8-9. Plaintiff repeatedly asked

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Tsevegmid to stop, but he continued to make unwanted sexual advances and continued

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touching and groping her. Id. ¶ 10. In May 2012, plaintiff reported Tsevegmid’s

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comments and conduct to the manager, defendant Sang Yun. Id. ¶ 11. Yun did not take

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corrective measures, and instead, urged her to accept Tsevegmid’s advances. Id. ¶ 12.

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Thereafter, Tsevegmid’s sexual advances, comments, and groping became more

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aggressive. Id. ¶ 13. In July 2012, plaintiff reported Tsevegmid’s conduct to defendant

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Jin Rang Chung, the owner of Tokyo, during Ms. Chung’s visit to the United States from

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Korea. Id. ¶ 14; Dkt. # 1 (Compl.) ¶ 1.3. Ms. Chung told plaintiff to “just deal with it”

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and failed to take any corrective measures. Dkt. # 22-2 (Thomas Decl.) ¶ 15.

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Due to the unchanged hostile working conditions, plaintiff was forced to resign

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from her position at Tokyo on or around October 1, 2012. Id. ¶ 17. Prior to plaintiff’s

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forced resignation, there were no complaints about her work performance or customer

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relations. Id. ¶¶ 18-20. While employed at Tokyo, plaintiff earned approximately

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$1,542.44 per month. Id. ¶ 21, Ex. A. Between October 2012 and April 2013, plaintiff

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attempted to obtain employment by filling out job applications for various positions

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ORDER GRANTING DEFAULT JUDGMENT – 2

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within her skill set. Id. ¶ 27. Plaintiff was unable to secure a new job until April 15,

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2013, resulting in a loss of approximately $10,797.08 in lost wages. Id. ¶ 22. Plaintiff

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obtained employment as a cashier and waitress at Happy Wok Teriyaki where she earns

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approximately $541.67 per month, which is approximately $1,000 per month less than

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what she earned at Tokyo. Id. ¶ 26. As a result of the sexual harassment she experienced

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while working at Tokyo, plaintiff has suffered from anxiety, depression and stress,

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including hair loss, lack of sleep, and bloody discharge. Id. ¶ 23. Plaintiff began

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suffering from these symptoms during her employment when she was being harassed. Id.

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Plaintiff has incurred $507.07 in medical fees and costs in treating her emotional and

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physical damages resulting from the sexual harassment she suffered at Tokyo. Id.
Plaintiff filed suit against defendants for sexual harassment and hostile work

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environment under Title VII and the RCW 49.60 et al. (against defendants Jin & Sang

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Corporation and Yun),1 retaliation and constructive discharge (against defendants Jin &

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Sang Corporation and Yun) assault and battery (against defendant Tsevegmid), negligent

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and intentional infliction of emotional distress (against all defendants), and negligent

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retention and supervision (against defendants Jin & Sang Corporation and Yun). Dkt. #

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1. In her complaint, plaintiff sought an award of damages against all defendants jointly

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and severally “in an amount proven at the time of trial[,]” an award of prejudgment

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interests and costs incurred, an award of reasonable attorney fees and litigation expenses

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under RCW 49.60.030(2), and for such other and further relief as the court deems

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equitable and proper. Id. at 11. Plaintiff alleges that she suffered economic losses,

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mental and emotional harm, anguish, and humiliation as a result of Tsevegmid’s

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harassment and Yun and Jin & Sang Corporation’s failure to take corrective measures.

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Id. ¶¶ 4.8; see also id. ¶¶ 4.24-25 (“severe emotional distress”), 4.31 (“emotional

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distress”). Plaintiff also seeks punitive damages under Title VII. Id. ¶ 4.9.

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Defendant Jin Rang Chung has been voluntarily dismissed from this action.

ORDER GRANTING DEFAULT JUDGMENT – 3

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Plaintiff served the summons and complaint on defendants Yun and Tsevegmid on

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August 2, 2013. Dkt. # 22-1 (Caley Decl.) ¶ 3. Plaintiff served the summons and

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complaint on defendant Jin & Sang Corporation dba Tokyo Stop Teriyaki on August 30,

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2013. Id. ¶ 4. Defendants have failed to appear, plead, or otherwise defend this lawsuit.

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Id. ¶ 5.

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Plaintiff has addressed the concerns raised by the court in its prior order denying

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default judgment. Dkt. # 17. The court finds that default judgment is appropriate here.

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Fed. R. Civ. Proc. 55(a). The court also finds that plaintiff is entitled to the following

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actual damages:

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1. Back pay ($10,797.08) and front pay ($7,000.00). Gotthardt v. Nat’l R.R.

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Passenger Corp., 191 F.3d 1148, 1158 (9th Cir. 1999) (damages determined by

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measuring the difference between actual earnings for the period and those which she

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would have earned absent discrimination); Martini v. Boeing Co., 137 Wash. 2d 357,

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364-372, 971 P.2d 45 (Wash. 1999) (WLAD permits recovery of front and back pay for

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successful discrimination claim when these damages are proximately caused by unlawful

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discrimination).

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2. Medical bills in the amount of $507.07.

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3. Emotional distress in the amount of $3,000.00. Negron v. Snoqualmie Valley

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Hospital, 86 Wash. App. 579, 588, 936 P.2d 55 (Wash. App. 1997) (discrimination

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plaintiff may seek monetary compensation for actual damages including distress and

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mental anguish caused by discrimination, and may prove such damages through non-

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expert testimony).

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The court also believes that a $45,000.00 award of punitive damages under Title

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VII is reasonable where defendants’ conduct was highly reprehensible, $45,000 is a

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reasonable ratio of punitive damages to actual damages, and there is a comparable civil

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penalty under Title VII. See Arizona v. Asarco LLC, 733 F.3d 882, 885-90 (9th Cir.

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ORDER GRANTING DEFAULT JUDGMENT – 4

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2013). First, defendants knew that plaintiff’s husband had passed away and that she was

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financially vulnerable. Tsevegmid frequently and repeatedly sexual harassed and

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assaulted her despite repeated requests to stop. Neither the manager nor the owner took

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any corrective measures after being informed of the harassment and assaults. Rather, the

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manager suggested that plaintiff give in to Tsevegmid’s sexual advances, and the owner

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told plaintiff to deal with it. Defendants’ conduct indicates intentional malice and

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indifference to plaintiff’s safety. The court finds that defendants’ conduct is highly

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reprehensible. See Asarco, 733 F.3d at 886 (quoting Supreme Court regarding factors to

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consider in determining reprehensibility of defendant’s conduct, including whether harm

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caused was physical, whether tortious conduct indicated indifference to or reckless

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disregard for health or safety of others, whether the target of the conduct had financial

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vulnerability, whether conduct involved repeated incidents, and whether the harm was

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result of intentional malice, trickery, deceit, or accident). Second, the punitive damages

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bear a reasonable relationship to the actual damages plaintiff sustained. Plaintiff has

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sustained actual damages in the amount of $21,304.15. An award of $45,000 in punitive

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damages is roughly 2 to 1 and within the single-digit ratio that satisfies due process. See

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Asarco, 733 F.3d at 888. Finally, a 2 to 1 ratio bears a reasonable relationship between

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punitive and compensatory damages in an employment discrimination case where the

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“civil penalty” cap under Title VII is $300,000, and courts have found reasonable

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significantly higher ratios in Title VII cases. Id. at 890-92.

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Plaintiff has also requested ten percent interest on front and back pay. The court

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agrees that interest on front and back pay is appropriate. RCW 49.60.030(2); 42 U.S.C.

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§ 2000e-5(g); Curtis v. Security Bank of Wash., 69 Wash. App. 12, 20, 847 P.2d 507

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(Wash. App. 1993). However, the court disagrees with the rate requested and will grant

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such interest pursuant to 28 U.S.C. § 1961 at a rate of 0.12 percent. Estate of Reynolds v.

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Martin, 985 F.2d 470, 472 (9th Cir. 1993); W. Pac. Fisheries, Inc. v. SS President Grant,

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ORDER GRANTING DEFAULT JUDGMENT – 5

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730 F.2d 1280, 1289 (9th Cir. 1984); see

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http://www.federalreserve.gov/releases/h15/data.htm (Treasury Constant Maturities, 1-

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year, weekly, Feb. 7, 2014) (last visited Feb. 27, 2014). Accordingly, interest on back

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and front pay at a rate of 0.12 percent yields $23.75 and $8.40, respectively.

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The court also finds that the attorney’s fee request is reasonable, and awards

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$1,114.11 in costs and $21,383.00 in fees to present counsel and $688.70 to former

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counsel. 42 U.S.C. § 2000e-5(k); RCW 49.60.030(2).
For all the foregoing reasons, the court GRANTS plaintiff’s motion for default

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judgment. The Clerk is directed to enter judgment in favor of plaintiff and against

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defendants Oston Tsevegmid, San Yun, and Jin & Sang Corporation consistent with this

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order.

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DATED this 28th day of February, 2014.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER GRANTING DEFAULT JUDGMENT – 6