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Maher v. Alliance Mortgage Banking Corp.

August 9, 2009


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


Plaintiff Jessica Maher ("Maher") brought this action against defendants Alliance Mortgage Banking Corp. ("Alliance") and Raymond Agoglia ("Agoglia") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3 et. seq., the New York State Human Rights Law ("NYHRL"), N.Y. EXEC. LAW § 296, and New York common law. On July 2, 2008, District Judge Hurley granted Maher's motion for an entry of default judgment against Alliance and referred the matter to the undersigned for a report and recommendation as to damages and attorney's fees. On March 13, 2009, Judge Hurley adopted the undersigned's Report and Recommendation that the inquest against Alliance be deferred until final adjudication of Maher's claims against Agoglia. Maher's claims against Agoglia were resolved by a Stipulation of Dismissal that was so ordered by Judge Hurley, who then referred the foregoing Alliance inquest to the undersigned. Maher was subsequently directed to serve and file papers in support of her damages claim against Alliance, and she has done so. Based on those submissions and as set forth below, the undersigned respectfully recommends that judgment be entered against Alliance in the amount of $208,582.18, comprising $170,000 in compensatory damages, $36,591.50 in attorney's fees, and $1,990.68 in costs and disbursements.


In July 2004 after graduating from high school, Jessica Maher became a full-time employee of Alliance at its corporate headquarters in Levittown. (Compl. ¶ 8.) Raymond Agoglia, a Senior Vice President of Alliance, reporting directly to Alliance's President, also worked at that office. (Maher Aff. ¶ 5.) Agoglia also supervised Maher's father, who was a salesperson at Alliance. (Id. ¶ 4)

During just over one year of employment at Alliance, Maher experienced repeated sexual harassment and forcible touching by Agoglia. In October 2004, while Maher was dressed as a punk schoolgirl for a work-sponsored Halloween party, Agoglia approached her to ask if the fishnet stockings she was wearing were thigh-highs, and if so, to see them. (Id. ¶ 9--11.) In February 2005, Agoglia approached Maher while she was hanging office decorations and smacked her on the buttocks three times. (Compl. ¶ 10.) At that time Maher asked him to stop harassing her, but in April 2005, while Maher was covering the reception desk, Agoglia approached her from behind to rub her shoulders and neck, forcing Maher to squirm out of his grip. (Id. ¶ 11.) Less than one month later, Agoglia again approached Maher at work and touched her on the buttocks while taunting her about pressing charges against him for his behavior. (Id. ¶ 12.)

In July 2005, Maher reported the incidents to her supervisor, Michelle Bello, who promised to investigate the situation, but Agoglia's conduct continued. (Id. ¶¶ 20--22.) While Maher tried to avoid Agoglia in the office, during the next few months he gestured towards Maher's breasts, touched her buttocks, blew in her ear, and grazed Maher's breast while he tried to place a cigar down the front of her shirt. (Id. ¶¶ 13--16.)

In September 2005, Maher wrote a letter to Bello asking what measures Alliance would take regarding her complaints. (Maher Aff. ¶¶ 28--29.) Agoglia was informed of the allegations against him and directed to apologize to Maher, but Alliance took no further action. (Id. ¶¶ 29--31.) In November 2005, Maher had Agoglia arrested for his behavior, and she resigned from her employment with Alliance, unable to remain in a hostile work environment. (Id. ¶¶ 32--33.)

Maher subsequently filed suit against Agoglia and Alliance. As Maher has reached a settlement with defendant Agoglia, and a default judgment has be entered against defendant Alliance, Maher now seeks to recover damages from Alliance for the emotional distress she suffered during her employment.


A default constitutes an admission by the defendant of all well-pleaded factual allegations in the complaint, except those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993). In order to determine the damages award, a court may conduct an inquest by affidavit as long as the affidavits provide the court with a basis for the damages awarded. Fustok v. Conti Commodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). The undersigned has received and considered the affidavits submitted by Maher, which provide the basis for the recommendations below.

I. Compensatory Damages

Maher seeks $2,000,000 in compensatory damages for her Title VII and NYHRL claims against Alliance. Prevailing plaintiffs in Title VII actions may recover compensatory damages. See 42 U.S.C. § 1981a(a)(1). Recoverable compensatory damages include damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses." See 42 U.S.C. § 1981a(b)(3). While the statute provides for recovery of these types of damages, it also sets limits for the amount recoverable by a plaintiff based upon the size of the defendant employer. See 42 U.S.C. § 1981a(b)(3)(A)--(D). Where an employer has more than 200 and fewer than 501 employees, as Alliance did (see Spaventa Dep. 7-9), the aggregate total of compensatory and punitive damages may not exceed $200,000. See 42 U.S.C. § 1981a(b)(3)(C).*fn1

In the Second Circuit, where a plaintiff has succeeded on Title VII and NYHRL claims for emotional distress, courts have upheld a range of awards for compensatory damages, basing their decisions on whether emotional distress claim presented by plaintiff can be categorized as "garden-variety," "significant," or "egregious." See Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46--47 (E.D.N.Y. 2009). In garden-variety claims, the evidence of emotional harm is limited to the plaintiff's testimony, which describes his or her injuries in vague or conclusory terms, and fails to relate the severity or consequences of the injury. See id. These claims typically lack extraordinary circumstances and are not supported by medical testimony. See Id. at 46. Significant emotional distress claims are based on more substantial harm or offensive conduct and may be supported by medical testimony, evidence of treatment by a healthcare professional, and testimony from other witnesses. See id. at 46--47. Egregious emotional distress claims yield the highest awards and are warranted only where the employer's conduct was outrageous and shocking or affected the physical health of the plaintiff. See id. at 47.

Here, Maher was humiliated by Agoglia's repeated inappropriate touching, described above, as well as Alliance's failure to address her complaints. (Maher Aff. ¶ 26.) She was only eighteen years old at the time and extremely upset by the harassment she endured at work. (Id. ¶ 33.) She dreaded going to work, and had difficulty sleeping. (Id.) She reported that Alliance's conduct aggravated her irritable bowel syndrome and temporomandibular joint disorder, requiring her to seek medical attention. (Id. ¶ 34; Maher Aff., Ex. E, 5/15/06 Psychologist's Report, at 10.) Maher alleged that she also sought psychological counseling. A report based on her two psychologist visits in January and February of 2006 notes that at the time of her visits, she was suffering from clinical depression and anxiety. (Maher Aff., Ex. E, 5/15/06 Psychologist's Report, at 10--11.) The report concludes that "[t]here is little doubt that the months of sexual harassment suffered by this young woman have had a significant, adverse impact on her mental health." (Id. at 11.) The report suggested that Maher continue sessions with a psychologist to address her problems and symptoms. (Id. at 12.) Maher did not continue to receive psychological treatment, nor is there evidence that her emotional distress was ongoing. Further, in spite of her emotional distress, Maher was able to secure other employment, although the ...

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