The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
Stephanie Jowers ("Jowers"), who is white, brought this action
against DME Interactive Holdings ("DME") and Darien Dash ("Dash")
to recover damages she suffered when the defendants failed to
negotiate an employment contract with her and, ultimately,
terminated her employment, because of her race, in violation of
42 U.S.C. § 1981, as well as state and municipal human rights
By order of the court dated September 22, 2004, the defendants'
counsel was relieved of the obligation of continuing to represent
the defendants. Since that time, the defendants have failed to
defend against this action. Therefore, on March 16, 2005, your
Honor ordered that a default judgment be entered against them.
Thereafter, 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 the plaintiff. The Court directed Jowers to serve and file proposed findings
of fact and conclusions of law, and an inquest memorandum setting
forth her proof of damages, costs of this action, and attorney's
fees. The Court also directed the defendants to serve and file
any opposing memoranda, affidavits and exhibits, as well as any
alternative findings of fact and conclusions of law it deemed
appropriate. The Court received the parties' respective
submissions and has considered them.
Based upon the submissions made by the parties, the complaint
filed in the instant action and the Court's review of the entire
court file in this action, the following findings of fact are
On May 5, 2000, Jowers was terminated from her position as a
senior manager in DME's Places of Color Division ("PCD"). At the
time, DME was a high-profile minority-managed Internet company,
led by Dash. Dash is a black man, who is the company's chief
executive officer and its principal shareholder. Jowers began her
tenure at DME as an independent contractor. It was agreed that
her annual salary would be $75,000, pending the execution of a
written employment contract. However, no such contract was ever
provided to Jowers.
Jowers was responsible for the day-to-day management of PCD's
staff, most of whom were persons of color. In the weeks preceding
Jowers's termination, PCD staff members were openly hostile
towards her. DME employees assigned to PCD refused to be managed
by Jowers because of her race, and voiced their discontent with
having to work under her supervision.
Jowers' direct supervisor, Wendy Dubit ("Dubit"), and DME
officers, including Dash, were aware of PCD's racially hostile
work environment. During staff meetings attended by Dash, PCD staff members announced that they refused to work for
Jowers because of her race. In addition, Dubit told Jowers that
DME's chief operating officer, Thomas O'Rourke ("O'Rourke"),
wanted a black person in the plaintiff's job because it would
improve the company.
Approximately one week before the plaintiff's employment was
terminated, O'Rourke restructured Jowers' position so that her
direct contact with PCD's staff would be reduced. On May 5, 2000,
O'Rourke informed Jowers that her employment was terminated.
O'Rourke explained that the decision to terminate Jowers'
employment was an economic one, since Jower had been an excellent
employee. Later that day, Dash told Jowers that her termination
was not the result of DME's financial condition, but rather, was
a consequence of Jowers not being a "good fit." Dash alluded to
the complaints made by PCD staff. Jowers maintains that her
employment by DME was terminated because of her race.
Jowers was not paid for the last 12 days she was employed by
DME. Moreover, Jowers was not reimbursed for the expenses she
incurred during that twelve-day period. Jowers' submissions aver
that she is entitled to recover: $3,461.54 for unpaid wages owed
to her for the last 12 days she was employed by the defendants,
plus 25 percent of that amount in liquidated damages; $358.51 for
employment-related expenses she incurred during the same
twelve-day period; $50,000 in back pay; $100,000 in compensatory
damages for emotional distress; prejudgment interest; and
$250,000 in punitive damages.
Dash maintains that he is not personally liable to the
plaintiff for any damages she seeks to recover. However,
notwithstanding Dash's assertion, the defendants contend that the
plaintiff is entitled to recover: $3,819.95 for unpaid salary and
expenses; $11,538.48 in back pay; nominal damages for pain and suffering; prejudgment interest; and, should
the Court determine that an award of punitive damages is
warranted, minimal punitive damages.
When a defendant defaults in an action, by failing to defend
against the allegations made in a complaint, the defendant is
deemed to have admitted every well-pleaded allegation in that
complaint 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).
In addition, the plaintiff is entitled to all reasonable
inferences from the evidence presented. See Au Bon Pain Corp.
v. Artect, Inc., et al., 653 F.2d 61, 65 (2d Cir. 1981). Damages
must be established by the plaintiff in a post-default inquest.
In conducting an inquest, the court need not hold a hearing "as
long as it [has] ensured that there [is] a basis for the damages
specified in the default judgment." Transatlantic Marine Claims
Agency, Inc. v. Ace Shipping ...