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
REPORT AND RECOMMENDATION
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
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
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
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.
III. CONCLUSIONS OF LAW
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.
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
"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
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
)(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.'"
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
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.
V. FILING OF OBJECTIONS TO THIS REPORT AND
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).