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United States District Court, S.D. New York

April 30, 2004.

JENNY MOLINA, Plaintiff, -against- J.F.K. TAILOR CORP. and KOO KM, Defendants

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



In this action, plaintiff Jenny Molina ("Molina") alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII); 42 U.S.C. § 1981 ("Section 1981"); the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law. § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code. § 8-107, against defendants J. F. K. Tailor Corp. ("JFK") and Koo Kim ("Kim") (collectively "defendants"). Upon the defendants' failure to answer or otherwise respond to the Complaint, your Honor referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded to plaintiff against the defendants.

  The Court directed plaintiff to file and serve proposed findings of fact and conclusions of law and an inquest memorandum setting forth her proof of damages, costs of this action, and her attorney's fees. Each defendant was directed to file and serve opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law it or he deemed appropriate, and to state whether a hearing was requested for the purpose of examining witnesses.

  Plaintiff served and filed an inquest memorandum, including proposed findings of fact and conclusions of law. Plaintiff also submitted a declaration in support of her claim for damages. The defendants did not respond to the Court's order for submissions.

  Plaintiff's submissions aver that she is entitled to back pay, front pay, compensatory damages for emotional pain and mental anguish, punitive damages, and costs and attorney's fees, in an amount to be determined by the court.

  For the reasons stated below, I recommend that plaintiff be awarded back pay in the amount of $32,812.50, prejudgment interest on the back pay award at the rate referred to in 28 U.S.C. § 1961(a), calculated for the relevant time period and compounded annually, with the back pay award being divided evenly over that time period, front pay in the amount of $9,100, compensatory damages in the amount of $50,000, and punitive damages in the amount of $20,000.


  Based on submissions by the plaintiff, the Complaint filed in the instant action — the allegations of which, perforce of defendants' default, must be accepted as true, except those relating to damages, see Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E. L. U. L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) — and the Court's review of the entire court file maintained in this action, the following findings of fact are made: Molina is a Hispanic female, who resides at 53-03 Skillman Avenue, Apt. 1C, Woodside, New York. JFK is a garment manufacturing corporation, formed and existing under the laws of the state of New York. It has its principal place of business at 307 West 36th Street, 13th Floor, New York, New York. At all relevant times, defendant Kim was a principal shareholder of JFK, who managed its operations and had the authority to hire and fire its employees, including the plaintiff. At all relevant times, JFK was an employer for the purposes of Title VII, having more than 15 employees.

  Molina was hired as a seamstress in May 1995. During the period of her employment at JFK, Molina performed her duties as a seamstress in a satisfactory manner. Kim began to harass Molina sexually in 1997, at the time he became the principal shareholder of JFK. The harassment consisted initially of making comments of a sexual nature, touching Molina around the private and intimate parts of her body while she was at her work station on the sewing floor, and urging Molina to accompany Kim to his office for the purpose of having sexual relations with him. In or around September 1997, Molina submitted to Kim's demands. Molina avers that she did so because Kim threatened to fire her if she refused. In 1998, Molina was assigned to a different sewing machine at a table closer to Kirn's office. That work station had become vacant after the termination of another employee who complained about being sexually harassed by a supervisor at JFK. After Molina was relocated to her new work station, Kim's uninvited touching became a daily routine. Molina submitted to Kim's sexual demands, including engaging in sexual intercourse and other sexual contact, on a regular basis for almost three years.

  In December 1999, Molina told Kim that she did not want to continue having sexual relations with him and warned Kim that if his conduct did not change, she would report him to a governmental agency. Kim responded by telling Molina to look for another job.

  On August 3, 2000, Kim informed the plaintiff that he had quarreled with another manager at JFK and that this person had threatened to reveal Kim's sexual relations with Molina to Kim's wife. On August 11, 2000, Molina was summoned to Kim's office, where Kim and his wife were present. Kim's wife asked Molina whether she had been having sexual relations with Kim. Molina said no. Although Molina denied that she had engaged in sexual relations with Kim, she was discharged from her employment the same day.

  On September 30, 2000, Molina filed a timely charge of discrimination against Kim and JFK with the Equal Employment Opportunity Commission ("EEOC"). On February 12, 2001, the EEOC issued a "Dismissal and Notice of Rights" letter ("right-to-sue letter") to Molina. The instant action was commenced on May 11, 2001.

  The plaintiff claims that, as a result of the defendants' discriminatory conduct, she has suffered lost past and future wages, lost benefits, damage to her reputation, embarrassment and mental anguish. The plaintiff also claims that the defendants' conduct was intentional and malicious and, therefore, that she is entitled to punitive damages. Plaintiff also seeks costs and attorney's fees.

  In support of her application for damages, the plaintiff submitted, inter alia: (i) a copy of a check issued by her present employer, Rafael's Cleaners Corp., in the amount of $610, which is her current semi-monthly wage; (ii) a record of treatment the plaintiff received from the Psychiatric Emergency Department, Elmhurst Hospital Center, on January 3, 2001; (iii) a copy of a prescription prepared by the Elmhurst Hospital Center for the plaintiff on January 3, 2001, for anti-depressant medication; (iv) a diagnosis and evaluation from the Western Queens Consultation Center where the plaintiff received psychotherapy; and (v) three receipts from the Western Queens Consultation Center, indicating the expenses incurred by the plaintiff for her psychotherapeutic treatment.


  A default judgment in an action establishes liability, but is not a concession of damages. See Cappetta v. Lippman, 913 F. Supp. 302, 304 (S.D.N.Y. 1996)(citing Flaks v. Koegel, 504 F.2d 702, 707 [2d Cir. 1974]). Damages must be established by the plaintiff in a post-default inquest. See id. In conducting an inquest, the court need not hold a hearing "as long as it [has] ensured that there was a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997). The court may rely on affidavits or documentary evidence in evaluating the fairness of the sum requested. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993).

 Back Pay with Prejudgment Interest*fn1 Title VII makes it "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).*fn2 Claims of discrimination brought under Title VII are analyzed in accordance with the three-part evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under that framework, the plaintiff must present a prima facie case of discrimination. If the plaintiff meets this burden, a presumption of unlawful discrimination arises and the burden shifts to the defendant, who must adduce evidence that an adverse employment action was taken for a legitimate, non-discriminatory reason. This burden is merely one of production, not persuasion. If the defendant states a legitimate, non-discriminatory reason, the presumption of discrimination falls out of the case and the plaintiff must prove, by a preponderance of the evidence, that the reason offered by the defendant was merely a pretext for discrimination. To do so, the plaintiff must show that the stated reason was false and that discrimination was the real reason for the employer's action. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508-520, 113 S.Ct. 2742, 2747-54 (1993); Cagle v. Unisys Corp., 2003 WL 21939705, at *4-5.

  A review of the record in this case, including the plaintiff's complaint and declaration, indicates that plaintiff established a prima facie case of unlawful employment discrimination in violation of Title VII by showing that: (i) she was a member of a protected class; (ii) she qualified for the subject position; (iii) she suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466-67 (2d Cir. 2001). Furthermore, the defendants failed to submit any evidence of a legitimate non-discriminatory reason for Molina's termination. See Cagle, 2003 WL 21939705, at *4-5.

  A plaintiff who prevails in a Title VII suit is entitled to an award of back pay. See 42 U.S.C. § 2000e-5(g)(1). "Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." Id.

  "The purpose of back pay is to completely redress the economic injury the plaintiff has suffered as a result of discrimination." Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993)(citations omitted). Therefore, the award should consist of lost wages, including any anticipated raises or benefits. See id. In most cases, a Title VII plaintiff is entitled to an award of back pay from the date of wrongful termination until the date of judgment. See id. at 144-145. While she was employed at JFK, Molina worked approximately 60 hours per week at a rate of $8 per hour.*fn3 Thus, she earned a weekly wage of approximately $480. Molina's employment was terminated on August 11, 2000. Thereafter, for approximately two to three months, Molina was unemployed. During the period of her unemployment, Molina would have earned approximately $5,400, had she been compensated at her previous rate, that is, $480 per week, for two-and-a-half months, or 11.25 weeks.

  Beginning in October or November 2000, Molina was employed for one year at One Step Productions as a machine operator. One Step Productions is located on Eighth Avenue in Manhattan. In her declaration, Molina states that she earned $300 per week less at One Step Productions than she had been earning at JFK. Therefore, for the period that she was employed at One Step Productions, Molina is entitled to an award of $15,600, that is, $300 per week for 12 months, or 52 weeks. This represents the amount Molina would have earned had she continued her employment at JFK, less the amount she actually earned during this period.

  For several months after leaving One Step Productions, Molina was employed at a number of different locations. The record evidence does not indicate the names of the places at which Molina was employed, the reason for her termination from One Step Productions, or the amount of her earnings during this period. Therefore, the Court cannot determine the amount of back pay to which plaintiff is entitled for this period.

  In April 2002, Molina obtained a position at Rafael's Dry Cleaners as a machine operator and is currently employed at that establishment. Molina earns approximately $305 per week, or $175 less than she had been earning before she was wrongfully terminated. The date of default in this case was June 25, 2003. Therefore, for the period April 2002 to the date of judgment, Molina is entitled to back pay in the amount of $11,812.50, that is, $175 per week for 15 months, or 67.5 weeks. Accordingly, the total amount of back pay to which Molina is entitled is $32,812.50.

  Under Title VII, a district court has the discretion to grant prejudgment interest on an award of back pay. See Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998). In addition, courts have the discretion to determine the appropriate rate of prejudgment interest in a back pay award. See McIntosh v. Irving Trust Co., 873 F. Supp. 872, 882 (S.D.N.Y. 1995). Where a judgment is based on violations of both federal and state law, courts in this circuit have set the rate of prejudgment interest at the 52-week treasury bill rate referred to in 28 U.S.C. § 1961(a).*fn4 See Robinson v. Instructional Systems, Inc., 80 F. Supp.2d 203, 208 (S.D.N.Y. 2000) (calculating prejudgment interest under section 1961(a) for claims arising under Title VII and NYHRL); Walia v. Vivek Purmasir & Associates, Inc., 160 F. Supp.2d 380, 389 (E.D.N.Y. 2000)(same). Such a rate of prejudgment interest is, therefore, appropriately applied in this case.

  Courts calculating prejudgment interest in accord with 28 U.S.C. § 1961 (a) use the average annual rate of return on one-year treasury bills between the time the claim arises and the entry of judgment. See, e.g., EEOC v. Yellow Freight System, Inc., 2002 WL 31011859, at *33 (S.D.N.Y. Sept. 9, 2002); McIntosh, 873 F. Supp. at 883. Applying this method, plaintiff's prejudgment interest should be calculated at the average annual rate of return between the date of plaintiff's termination, on August 11, 2000, and the entry of judgment, on June 25, 2003. In addition, the Court recommends that the interest be calculated as though it had been compounded annually, see Saulpaugh, 4 F.3d at 145 ("Given that the purpose of back pay is to make the plaintiff whole, it can only be achieved if interest is compounded."), and that the back pay award be distributed evenly over the appropriate time period, see McIntosh, 873 F. Supp. at 884 (finding that the objective of fully compensating plaintiff was best achieved by dividing jury's back pay award evenly over relevant time period for purposes of calculating prejudgment interest).

 Front Pay

  Front pay is an equitable remedy available to a prevailing Title VII plaintiff. See Vernon v. Port Authority of New York and New Jersey, 220 F. Supp.2d 223, 236 (S.D.N.Y. 2002) (citing Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147, 160 [2d Cir. 2001]). Front pay is awarded in the sound discretion of the district court. See Shannon v. Fireman's Fund Insurance Co., 136 F. Supp.2d 225, 232 (S.D.N.Y. 2001). In evaluating a claim for an award of front pay, a court should consider whether: (i) reinstatement is possible or practicable, (ii) the plaintiff has a reasonable prospect of finding comparable alternative employment, and (iii) the calculation of front pay would involve undue speculation. See id. (citing Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 [2d Cir. 1984]). "A plaintiff has the duty to exercise reasonable diligence in mitigating damages by seeking alternative employment." Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1182 (2d Cir. 1996). In this case, reinstatement clearly is not possible. In addition, although the plaintiff has made a good faith effort to mitigate her damages, she has been unable to find comparable alternative employment. As noted above, plaintiff now earns approximately $175 per week less than she earned when she was employed at JFK. Therefore, the Court finds that Molina is entitled to an award of front pay to the extent that she has not been made whole under her current employment conditions. See Vernon, 220 F. Supp. at 236 ("Although a monetary determination is certain to be speculative in nature, the Second Circuit has repeatedly upheld awards of front pay, when reinstatement is not an option.").

  Under the circumstances, one year of front pay, in the amount of the difference between Molina's current salary and what she would have earned had she not been discharged from her position at JFK, is sufficient to make the plaintiff whole. Awarding Molina front pay for one year is appropriate in light of her inability, despite the exercise of reasonable diligence, to find comparable alternative employment in the three-year period between her termination and the date of default, and does not involve undue speculation. See id., (finding that an award of front pay to a Title VII plaintiff who was only a few years from the age of retirement was not "overly speculative"); EEOC v. Kallir Philips, Ross, Inc., 420 F. Supp. 919, 927 (S.D.N.Y. 1976)(awarding Title VII plaintiff front pay in the amount of one year's salary). Accordingly, Molina is entitled to an award of front pay in the amount of $9,100, that is, $175 per week for 52 weeks.

  An award of front pay ordinarily should be discounted to its present value. See, e.g., Epstein v. Kalvin-Miller Int'l, Inc., 139 F. Supp.2d 469, 485 (S.D.N.Y. 2001). "The Second Circuit has recommended the use of a 2% discount rate, which represents the fair rate of interest if the front pay award were invested today minus the projected rate of inflation as one that would normally be fair. . . ." Id. (quoting Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 40 [2d Cir. 1980])(internal quotation marks omitted). In this case, however, since it has been nearly one year since the date of judgment, it is not necessary to discount plaintiff's front pay award to present value.

 Compensatory and Punitive Damages

  A prevailing Title VII plaintiff is entitled to be compensated for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." 42 U.S.C. § 1981a(b)(3). In addition, a court may award a Title VII plaintiff punitive damages if the plaintiff demonstrates that the defendant "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Id. 1981a(b)(1).

  The maximum recovery allowed under Title VII for a combined amount of compensatory and punitive damages, from a defendant with more than 14 but fewer than 101 employees, is $50,000. See id. § 1981a(b)(3)(A); Anderson v. YARP Restaurant, Inc., No. 94 Civ. 7543, 1997 WL 27043, at *6 (S.D.N.Y. Jan. 23, 1997). However, although punitive damages are not available under the NYHRL, the NYCHRL does provide for punitive damages in discrimination cases. See Farias, 259 F.3d at 101. Furthermore, a plaintiff is entitled to recover for employment discrimination under both federal and state laws. See Anderson, 1997 WL 27043, at *6.

  In a case involving a "typical" or "garden variety" emotional distress claim, jury awards have ranged from $5,000 to $30,000. See Kuper v. Empire Blue Cross & Blue Shield, No. 99 Civ. 1190, 2003 WL 359462, at *12 (S.D.N.Y. Feb. 18, 2003); Epstein, 139 F. Supp.2d at 480. However, a "typical" or "garden variety" emotional distress claim is one that did not require medical treatment. See Kupen, 2003 WL 359462, at *12.

  In this case, Molina avers that, after her termination from JFK, her emotional state was so poor that she sought psychiatric help, visiting the Elmhurst Hospital Center emergency room on January 3, 2001, because she was "so anxious and depressed that [she] scared [herself]." In her declaration, Molina states that she was prescribed antidepressant medication at the hospital and then was referred to the Western Queens Consultation Center for treatment. According to Molina, she attended four therapy sessions at the center, but was unable to continue treatment because she could not afford even the reduced "sliding scale" fee of $40. Molina has not received medical treatment or counseling since she stopped going to the Western Queens Consultation Center in February 2001. Molina claims that she still suffers from humiliation and anxiety and frequently experiences "tension, jitteriness, tightness in the throat and sudden spells of crying." In support of her claims, Molina has submitted copies of her medical records, including a prescription for antidepressant medication and receipts indicating the expenses she incurred for her psychotherapeutic treatment. In light of Molina's testimony as provided in her declaration, and the evidence presented in support of her claim for damages, the Court finds that Molina is entitled to compensatory damages in the amount of $50,000. See Kupen, 2003 WL 359462, at *13 (approving jury award of $62,500 for emotional distress claim where plaintiff had sought medical treatment); Epstein, 139 F. Supp.2d at 481 (approving jury award of $54,000 for emotional distress claim where plaintiff sought medical treatment).

  In some cases, courts have awarded prejudgment interest on an award of compensatory damages. Although an award of prejudgment interest on damages for pain and suffering and emotional distress is within the court's discretion, such an award is not mandatory where the amount of compensatory damages awarded is sufficient to make the plaintiff whole. See Reiter v. Metropolitan Transp. Authority of New York, No. 01 Civ. 2762, 2003 WL 22271223, at *15 (S.D.N.Y. Sept. 30, 2003)(finding that prejudgment interest on an award for pain and suffering was unnecessary where the amount of the award was reasonable and made the plaintiff whole). Since the amount of compensatory damages awarded to the plaintiff in this case is sufficient to redress the emotional injury she has suffered as a result of the defendants' discriminatory conduct, the Court declines to award prejudgment interest on those damages.

  Although the maximum award allowed under Title VII for compensatory and punitive damages is $50,000, Molina is entitled to additional punitive damages under the NYCHRL.*fn5 Under the federal standard for imposing punitive damages, which also applies to claims under the NYCHRL, malice and reckless indifference refer to "the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Farias, 259 F.3d at 101 (quoting Kolstad v. American Dental Ass'n, 527 U.S. 526, 535, 119 S.Ct. 2118, 2124 [1999])(internal quotation marks omitted). Additionally, "[a]s an alternative to proving that the defendant knew it was acting in violation of federal law, egregious or outrageous actions may serve as evidence supporting an inference of the requisite `evil motive.'" Id.

  In this case, although plaintiff has not introduced evidence that the defendants acted with conscious knowledge that they were violating the law, she has presented evidence of "egregious" and "outrageous" conduct from which an inference of "malice or reckless indifference" could be drawn. Kim subjected Molina to sexual exploitation on a regular basis for a period of almost three years, and threatened to terminate Molina's employment if she refused to engage in sexual relations with him. Furthermore, Molina was actually discharged from her position at JFK once Kim realized he would no longer be able to exploit her sexually. Such conduct on the part of the defendants meets the standard for imposing punitive damages under both federal and state laws. Accordingly, the Court finds that additional punitive damages in the amount of $20,000 should be awarded to plaintiff against the defendants.

 Attorney's Fees

  A prevailing plaintiff in a Title VII action may recover reasonable attorney's fees. See 42 U.S.C. § 2000e-5(k). In this circuit, however, a party seeking an award of attorney's fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154.

  In this case, plaintiff has failed to provide any contemporaneous billing records setting forth the name(s) of the attorney(s) who worked on this matter, the hourly rate at which the attorney(s) was compensated, or the nature of the work done. Therefore, based on the record evidence, the Court finds that plaintiff is not entitled to recover the attorney's fees she claims to have incurred in connection with this action. IV. RECOMMENDATION

  For the reasons set forth above, I recommend the plaintiff be awarded back pay in the amount of $32,812.50, prejudgment interest on the back pay award, to be calculated by the Clerk of Court, at the rate referred to in 28 U.S.C. § 1961 (a) for the relevant time period, front pay in the amount of $9,100, compensatory damages in the amount of $50,000, and punitive damages in the amount of $20,000.

  * * *

  Plaintiff shall serve a copy of this Report and Recommendation upon the defendants and submit proof of service to the Clerk of Court.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Robert L. Carter, 500 Pearl Street, Room 2220, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Carter. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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