Opinion
21-CV-4112 (PAE) (JLC)
08-19-2022
SHATOYA WILLIAMS, Plaintiff, v. FIREQUENCH, INC., individually and d/b/a FIRETRONICS, Defendant.
To the Honorable Paul A. Engelmayer, United States District Judge:
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
In this employment discrimination case, a certificate of default was entered against Firequench, Inc., individually and doing business as Firetronics (“Firequench”) on June 24, 2021. Shatoya Williams then moved for a default judgment, which was granted on December 16, 2021. The case has now been referred to me to conduct an inquest into damages. For the reasons stated below, I recommend that Williams be awarded damages (inclusive of back pay, emotional distress damages, attorneys' fees, and costs) in the amount of $142,421.45 plus applicable pre- and post-judgment interest.
I. BACKGROUND
A. Procedural History
On May 7, 2021, Williams filed a complaint alleging employment discrimination by Firequench. Complaint (“Compl.”), Dkt. No. 1. Firequench was served on May 19, 2021. Dkt. No. 5. Firequench did not respond to the complaint and has not appeared in this action. Accordingly, a certificate of default was entered against it on June 24, 2021. Dkt. No. 9.
On October 8, 2021, Williams moved for a default judgment against Firequench. Affidavit of Gregory W. Kirschenbaum, Esq. dated October 8, 2021 in Support of Plaintiff's Motion for Default (“Kirschenbaum Aff.”), Dkt. No. 10.Williams attached to the Kirschenbaum Affidavit Exhibits A through J, and a proposed default judgment. Kirschenbaum Aff., Dkt. Nos. 10-1-10-11. On October 12, 2021, Firequench was ordered to respond to Williams' motion by November 2, 2021, which it failed to do. Dkt. No. 11. On December 16, 2021, a default judgment was entered for Williams against Firequench and the case was referred to me for an inquest into damages. Dkt. Nos. 16, 17.
Williams moved for default judgment in the form of the Kirschenbaum Affidavit.
On December 17, 2021, I ordered Williams to serve Firequench and file Proposed Findings of Fact and Conclusions of Law. Dkt. No. 18. On January 14, 2022, Williams filed Proposed Findings of Fact and Conclusions of Law, attaching Exhibits A through G. Proposed Findings of Fact and Conclusions of Law (“Pl. Mem.”), Dkt No. 22. She also attached the Affidavit of Shatoya Williams, dated January 13, 2022 (“Williams Aff.”). Dkt. No. 22-8. On January 19, 2022, counsel for Williams filed a letter confirming that Firequench had been served, and attached the Affidavit of Service. Dkt. No. 23.
B. Factual Background
The following facts, drawn from the Court's review of Williams' complaint and supported by her submissions related to this inquest, are deemed established for the purpose of determining the damages to which Williams is entitled. See, e.g., Sills Cummis & Gross P.C. v. Dusange-Hayer, No. 19-CV-7463 (PGG) (SDA), 2020 WL 6561650, at *1, n.1 (S.D.N.Y. Aug. 14, 2020) (citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)), adopted by 2020 WL 5253516 (Sept. 3, 2020).
Williams is a female resident of the State of Virginia. Compl. ¶9. Firequench is a domestic business corporation incorporated under the laws of the State of New York. Id. ¶10.
On or about May 15, 2019, Williams applied for the position of “Fire Alarm Technician” with Firequench through a posting on the website Indeed.com. Id. ¶14. On or about May 17, 2019, Williams received a telephone call from an unidentified woman, who allegedly worked for Firequench. Id. ¶15. The woman told Williams that Firequench had received her job application and asked Williams if she was a woman. Id. Williams responded, “Yes, I am a woman,” after which the woman on the phone said, “I apologize but we don't hire females for this position .... [t]he job requires you work in skyscrapers and tall buildings and our insurance company won't allow us to hire females for that position.” Id. Williams then hung up the phone. Id. Following that phone call, Williams called Firequench and told the woman who answered the phone that she had just been told by a Firequench employee that she could not be hired for the Fire Alarm Technician position because she was a woman. Id. ¶16. The woman responded, “[y]ou must have spoken with Karen or Mary.” Id. On or about May 20, 2019, Williams called Firequench again. Id. ¶17. A woman answered the phone and Williams asked her: “I just want to confirm that even if I am qualified for the position that I applied for, because I am a female, I can't [get the job].” Id. The woman responded, “[w]e can't really converse . . . but the answer to your question is yes, that is what you were told.” Id. Williams did not hear from Firequench following that phone call. Id. ¶18.
Williams alleges that Firequench “failed to hire, or ceased to consider” her for the Fire Alarm Technician position because of her sex or gender. Id. ¶19. Williams alleges that as a result of Firequench's action, she “continues to feel extremely humiliated, degraded, victimized, embarrassed, and emotionally distressed.” Id. ¶22. She also alleges that as a result of Firequench's action, she “has suffered and will continue to suffer the loss of income, the loss of salary, bonuses, benefits, and other compensation.” Id. ¶24.
Williams now seeks a default judgment in the amount of $939,668.81, to include back pay, front pay, emotional distress damages, punitive damages, prejudgment interest, and attorneys' fees and costs. Pl. Mem. ¶58. In addition, Williams seeks statutory post-judgment interest. Id.
II. DISCUSSION
A. Legal Standards
1. Liability
Where a defendant has defaulted, a court is still “required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law.” Related Companies, L.P. v. Ruthling, No. 17-CV-4175 (JSR) (DF), 2019 WL 10947100, at *3 (S.D.N.Y. July 23, 2019) (quoting Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)); see also Cont'l Indus. Grp. v. Altunkilic, 788 Fed.Appx. 37, 40 (2d Cir. 2019) (“A district court is empowered to evaluate the sufficiency of allegations before awarding damages in a default judgment.”). Because a liability finding was not made as part of the entry of the default judgment, the Court will first analyze if Williams has a viable claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et. seq. (“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York (“NYCHRL”), the statutory bases alleged for the claims in the complaint.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 given the Title VII claim, and supplemental jurisdiction over the NYSHRL and NYCHRL claims. Compl. ¶2. It also has jurisdiction pursuant to 28 U.S.C. § 1332, because there is complete diversity of citizenship and the matter in controversy exceeds the sum of $75,000.00. Id. ¶4. Although Williams currently resides in Virginia, venue is proper under 28 U.S.C. § 1391(b) because the events and omissions giving rise to the claim occurred within the Southern District of New York. Id. ¶5; Pl. Mem. Exh. B.
As a threshold matter, before filing a Title VII action in federal court, a plaintiff must file charges of employment discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the alleged discrimination. See 42 U.S.C. § 2000e-5(e)(1); Perez v. Harbor Freight Tools, 698 Fed.Appx. 627, 628 (2d Cir. 2017). Once this threshold requirement is satisfied, to successfully plead a Title VII claim, a plaintiff must demonstrate the following: “(1) she is a member of a protected class; (2) that she was qualified for employment in the position; (3) that she suffered an adverse employment action; and in addition, has (4) some minimal evidence suggesting an inference that the employer acted with discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). “The NYSHRL applies the same standard.” Areu v. Fox News Network, LLC, No. 20-CV-8678 (RA), 2021 WL 4124226, at *11 (S.D.N.Y. Sept. 9, 2021) (citations omitted). Under NYCHRL, a plaintiff “must plead facts sufficient to support an inference that she has been treated less well at least in part because of a protected trait.” Id. (cleaned up).
2. Damages
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999), adopted by 2016 WL 4532201 (Aug. 29, 2016)). A plaintiff “bears the burden of establishing its entitlement to recovery and thus must substantiate its claim with evidence to prove the extent of its damages.” Id. at *2 (cleaned up). “To establish damages upon default, a plaintiff must demonstrate that the ‘compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.'” Id. at *3 (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992)). “[A] plaintiff must submit sufficient evidence, in the form of detailed affidavits and other documentary materials . . . to enable the district court to ‘establish damages with reasonable certainty.'” Nat'l, Photo Grp., LLC v. Bigstar Entm't, Inc., No. 13-CV-5467 (VSB) (JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (quoting Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)), adopted by 2014 WL 5051275 (Oct. 8, 2014); see also Fed.R.Civ.P. 55(b)(2).
“Title VII, NYSHRL, and NYCHRL entitle a plaintiff to compensatory damages for pecuniary loss as well as pain and suffering. Although Title VII limits the amount of damages that may be awarded, the NYSHRL and NYCHRL do not.” Gutierrez v. Taxi Club Management, Inc., No. 19-CV-532 (AMD) (VMS), 2018 WL 3432786, at *6 (E.D.N.Y. June 25, 2018), adopted by, 2018 WL 3429903 (July 16, 2018) (citation omitted).
B. Analysis
1. Liability
Williams has pleaded allegations of a plausible Title VII claim, and thereby plausible claims under NYSHRL and NYCHRL as well. To begin with, she has met the threshold requirement: the alleged discrimination occurred on May 17, 2019 and she filed a complaint with the EEOC on July 10, 2019, within the 300-day requirement, and received a Notice of Right to Sue letter on or about April 6, 2021. Compl. ¶¶6,7,15. Williams is a woman and so she is a member of a protected class. Id. ¶9; see, e.g. Ellis v. Century 21 Dep't Stores, 975 F.Supp.2d 244, 266 (E.D.N.Y. 2013) (female is member of protected class based on gender). She allegedly applied for a job for which the employer was seeking applicants. Compl. ¶14; Pl. Mem., Exh. B. Next, Williams has alleged that, despite being rejected, she is qualified for the position for which Firequench was hiring. Compl. ¶¶12-13, 17. Finally, Williams has presented evidence demonstrating “an inference that the employer acted with discriminatory motivation,” see Littlejohn, 795 F.3d at 307, by alleging that a Firequench employee explicitly told her that it does not “hire females for [the] position.” Compl. ¶15.
Having made a prima facie case of discrimination under Title VII, Williams has also successfully made a case under NYSHRL and NYCHRL. See, e.g., Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (“claims of discrimination under the [NYSHRL and NYCHRL] are evaluated using the same analytic framework used in Title VII actions.”). Thus, Williams has established liability as a matter of law.
2. Damages
a. Back Pay
“Victims of employment discrimination are entitled to reasonable damages that would make the plaintiff whole for injuries suffered on account of unlawful employment discrimination.” Gutierrez, 2018 WL 3432786, at *6 (cleaned up). The award should consist of “lost salary, including anticipated raises, and fringe benefits.” Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993). However, a plaintiff should make a “reasonable” attempt to mitigate and look for comparable employment. Dailey v. Societe Generale, 108 F.3d 451, 455 (2d Cir. 1997). Generally, the back pay award should cover the time period from the date of discrimination through the date of judgment. See, e.g., Dunlap-McCuller v. Riese Org., 980 F.2d 153, 159 (2d Cir. 1992) (“back pay runs from the date of termination until the date of judgment”) (citing Thorne v. City of El Segundo, 802 F.2d 1131, 1136 (9th Cir. 1986) (“the court should compute the backpay award from the date of the discriminatory act until the date of final judgment”).
While the Second Circuit has made clear that a plaintiff is entitled to back pay until the “date of judgment,” it appears the Court of Appeals (in citing to Thorne) may have meant “final judgment.” Here, “final” judgment has not been entered, only a “default” judgment. This Court has calculated back pay damages through the date of the entry of the default judgment. Another reading of Dunlap-McCuller and its progeny would allow Williams to have back pay awarded through the date the Court enters a “final” judgment. If the reviewing court determines that is the proper reading, then the calculations in this Report would need to be changed to cover this additional period. Notably, however, other courts have calculated back pay from the date of discrimination only until the date of the inquest. See, e.g., Gutierrez, 2018 WL 3432786, at *7.
Williams alleges that she is entitled to back pay due to her lost wages as a result of Firequench's failure to hire her based on her gender in the amount of $157,454.69. Pl. Mem. ¶34. This amount covers the period starting with the date of discrimination (when she first spoke with Firequench), through the date she filed her proposed findings of fact and conclusions of law. Id. ¶¶26-34. Williams has divided this time period into different segments, and calculated her back pay for each segment, based on the income she was receiving or not receiving through her mitigation efforts. Id. Each of these time periods will be discussed in turn below.
i. May 20, 2019 Through June 12, 2019
Williams alleges that for the period through June 12, 2019, the period in which she was unemployed but seeking other employment, she is entitled to $5,357.14 in back pay. Id. ¶26. In support of this calculation, Williams points the Court to the Firequench job posting, which listed a salary of $50,000 to $75,000. Pl. Mem., Exh. B. Williams “reasonably believes” that she would have been paid $75,000. Pl. Mem. ¶26. However, Williams provides no explanation or support as to why she believes she would have been paid $75,000, nor has she specified the date she considers the date of discrimination on which she starts counting her back pay.
Accordingly, because certain elements of Williams' calculation are not clear, the Court will proceed as follows. See, e.g. Mack v. No Parking, Today, Inc., No. 16-CV-3986 (ARR) (CLP), 2019 WL 490137, at *16, n.14 (E.D.N.Y. Jan. 9, 2019) (court makes assumptions when “the numbers are a bit unclear”) adopted in part, rejected in part, 2019 WL 337096 (Jan. 28, 2019). The Court will account for back pay starting on May 20, 2019. Williams first spoke with Firequench on May 15, 2019 (a Wednesday), so assuming she would have been hired but for the discrimination, it is reasonable to believe she would have started working for Firequench no sooner than the following Monday, which is May 20, 2019. See, e.g., Chisolm v. Liberty Lines Transit Inc., No. 08-CV-7894 (GAY) 2013 WL 452408, at *5 (S.D.N.Y. Feb. 6, 2013) (court starts counting back pay on date plaintiff would have started working, not date of discriminatory event). In addition, because Williams has not provided support for her contention that she would have been paid $75,000, the Court reasonably believes that Williams would have been paid $50,000 annually. Williams applied for the job the same month she graduated from Apex Technical School, in May 2019. Pl. Mem., Exh. D. While Williams has pleaded sufficient facts for the Court to find that she was qualified for the position of Fire Alarm Technician, she was not an experienced Fire Alarm Technician, having just graduated from school. The Court thus finds it is more likely that Williams would have been paid a starting salary of $50,000. Accordingly, multiplying Williams' base annual compensation by the length of time covered, Williams is entitled to $3,461.58 in damages for this period.
Williams has provided no information about a potential start date for the job with Firequench that she was seeking.
This calculation is based on a count of 18 days (the number of work days between May 20, 2019 and June 12, 2019), and a salary per day of $192.31 ($50,000 annually comes out to $192.31 per day ($50,000 ÷ (52 weeks x 5 days = 260) = $192.31), assuming a five-day work week). 18 days times $192.31 per day is $3461.58. Even if Williams had provided support for the contention that she would have been paid $75,000 per year, she has not provided an explanation for how she arrived at $5,357.14. $75,000 per day based on a five-day work week is $288.46 per day, which comes out to $5,769.23 for a 20-day period (the number of days Williams appears to have used in her calculations).
ii. June 13, 2019 Through September 11, 2019
On June 13, 2019, Williams was hired by AKAM Associates (“AKAM”) as a Handyman and was paid $18.00 per hour through September 11, 2019. Williams Aff. ¶8. Williams contends that although she was able to find a job and thus mitigated her damages, $18.00 per hour is less than what she would have made working for Firequench and so she is entitled to back pay during this period to cover the difference, which she calculates to be $9,390.00. Id., Pl. Mem. ¶27.
Under the Court's assumption that Williams would have been paid $50,000 annually, it follows that if Williams worked 40 hours per week, as she contends, she would have been paid $24.04 per hour ($192.31 per day 8 hours). Therefore, the amount to make Williams whole during this period is the difference between she was actually paid and what she would have been paid had she not been discriminated against, which in this case is $3,140.80. Accordingly, Williams is entitled to $3,140.80 in back pay for this period.
This calculation is based on a count of 65 days (the number of work days between June 13, 2019 and September 11, 2019), which, assuming a 40 hour work week, is a total of 520 hours. Thus, for this period, Williams would have made $12,500.80 (520 hours x 24.03 per hour) had she worked at Firequench. Instead, she made $9,360 working for AKAM. The difference is thus $3,140.80.
iii. September 12, 2019 Through March 16, 2020
On September 12, 2019, Williams was given a raise of $27.00 per hour. Williams Aff. ¶9. Under the assumption that she would have been paid $75,000 annually at Firequench, Williams contends that although AKAM gave her a raise, she was still earning less than what she would have made at Firequench per hour, and so she is entitled to $8,670.52. Pl. Mem. ¶28.
As noted above, the Court assumes that Williams would have earned $50,000 annually at Firequench, not $75,000. Accordingly, during this period at AKAM, Williams was actually earning more than she would have at Firequench, under the Court's assumption that $50,000 annually is $24.04 hourly. Thus, Williams is not entitled to any back pay damages for this period.
iv. March 17, 2020 Through December 6, 2020
Williams resigned from AKAM on March 16, 2020, because she felt unsafe due to AKAM's lack of COVID-19 safety procedures. Id. ¶10. Although she “voluntarily resigned from comparable employment,” Williams' allegation that AKAM failed to provide her with Personal Protective Equipment even when interacting with COVID-19 positive individuals constitutes “unreasonable working conditions,” from which Williams was justified in leaving. Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 696 (2d Cir. 1998) (plaintiff “who voluntarily resigned from comparable employment for personal reasons would not have adequately mitigated damages, but a voluntary quit does not toll the back pay period when it is motivated by unreasonable working conditions or an earnest search for better employment”) (citation omitted). From March 17, 2020 through December 6, 2020, Williams contends that she was searching for new employment but was unsuccessful. Williams Aff. ¶11, Pl. Mem. ¶30. The evidence submitted by Williams, consisting of communications with potential employers, demonstrates that she attempted to mitigate her damages while unemployed. Pl. Mem., Exh. E; see, e.g. Becerril v. E. Bronx NAACP Child Dev. Ctr., No. 08-CV-10283 (PAC) (KNF), 2009 WL 2611950, at *3 (S.D.N.Y. Aug. 18, 2009) (“The plaintiff's duty is not onerous, and does not require [her] to be successful in mitigation.”) (citation omitted), adopted sub nom. Becerril v. Ease Bronx NAACP Child Development Ctr., 2009 WL 2972992 (Sept. 17, 2009). Accordingly, Williams is entitled to $36,538.90 in back pay damages during this period.
Williams states in her affidavit that once she resigned from AKAM she began to receive unemployment insurance. Williams Aff. ¶11. These payments should “not be deducted from [Williams'] back pay award.” Dailey v. Societe Generale, 889 F.Supp. 108, 113 (S.D.N.Y. 1995), aff'd, 108 F.3d 451 (2d Cir. 1997).
This calculation is based on a count of 190 days (the number of work days between March 17, 2020 and December 6, 2020, assuming a five-day work week) (190 x $192.31 = $36,538.90).
v. December 7, 2020 Through September 24, 2021
On December 7, 2020, allegedly because she was unable to find work, Williams enrolled in the Asher Institute of Hampton to obtain a degree as a barber, and she graduated on September 24, 2021. Williams Aff. ¶¶12-13. Williams alleges that because she could not find gainful employment, her enrollment in school satisfies her burden to mitigate, and so her back pay continued to accrue while she was in school. Pl. Mem. ¶31. Courts have concluded that attending school satisfies the duty to mitigate when a plaintiff has made “diligent” efforts to find employment, but is “ultimately fruitless.” Overman v. City of E. Baton Rouge, 656 Fed.Appx. 664, 672 (5th Cir. 2016) (citing to Dailey, 108 F.3d at 457). Specifically, courts have found that where a plaintiff decides to attend school not to obtain greater future earnings, but to obtain income after an unsuccessful job search, the plaintiff's duty to mitigate is satisfied. See, e.g., Dailey, 108 F.3d at 457 (citing Hanna v. American Motors Corp., 724 F.2d 1300, 1308 (7th Cir. 1984)) (plaintiff who decided to attend school “after a diligent, but unsuccessful, job search” adequately mitigated). Accordingly, because Williams has credibly alleged that she tried to find gainful employment but was unable to do so (which is especially plausible given the pandemic), her decision to attend school to obtain a degree as a barber satisfied her duty to mitigate. For this period, Williams is entitled to $40,192.79 in back pay damages.
This calculation is based on a count of 209 days (the number of work days between December 7, 2020 and September 24, 2021, assuming a five-day work week) (209 x $192.31 = $40,192.79).
vi. October 2021 Through December 14, 2021
After graduating, Williams began working part-time as a delivery person for Amazon Flex in October 2021. Williams Aff. ¶14. From the date she started through December 14, 2021, Williams earned $2,245. Id. Accordingly, she contends she is entitled to back pay for the difference between what she earned working for Amazon Flex and what she would have earned at working full-time at Firequench. Pl. Mem. ¶33. For this period, Williams is entitled to $7,562.81 in back pay.
Although Williams' Proposed Findings of Fact and Conclusions of Law state that she started working at Amazon Flex “after graduation,” Pl. Mem. ¶33, her affidavit states that she started in October 2021.
This calculation is based on a count of 51 days (the number of work days between October 1, 2021 and December 14, 2021, assuming a five-day work week). Thus, for this period, Williams would have made $9,807.81 (51 days x $192.31) had she worked at Firequench. Instead, she made $2,245 working for Amazon Flex. The difference is thus $7,562.81.
vii. December 15, 2021 Through December 16, 2021
On December 15, 2021, Williams began working as a Warehouse Operator for Target. Williams Aff. ¶15. In this job, she earned $19.80 per hour and worked a 40 hour week. Id. Williams requests back pay for this period to cover the difference between what she earned at Target and what she would have earned at Firequench, through the date she filed her inquest papers. Pl. Mem. ¶34. However, an award of back pay should only cover the period between the date of termination or discrimination “until the date of judgment.” Dunlap-McCuller, 980 F.2d at 159. Here, a default judgment was entered on December 16, 2021, so back pay will be awarded only through that date. Accordingly, to make Williams whole through the date of judgment, Williams is entitled to $33.91 in back pay for this period.
This calculation is based on a count of 1 day (the number of work days between December 15, 2021 and December 16, 2021). Williams would have made $192.31 had she worked at Firequench. Instead, she made $158.40 working at Target. The difference is thus $33.91.
viii. Pre-judgment Interest
Title VII generally allows for interest on back pay. See, e.g., Gutierrez, 2018 WL 3432786, at *12 (quotations and citations omitted). Interest on Williams' back pay should be awarded to compensate her for “loss of the use of money wrongfully withheld.” Id. (quoting Thomas v. iStar Financial, Inc., 508 F.Supp.2d 252, 264 (S.D.N.Y. 2007)). Because Williams' claims are based on violations of both federal and state law, the Court applies “a federal interest rate, most commonly based on the average rate of return on one-year Treasury bills . . . for the relevant time period.” Villalta, 2021 WL 2458699, at *13 (citations omitted). This award should be calculated as follows:
First, the award [is] divided pro rata over the appropriate time period. Second, once the award is divided, the average annual United States treasury bill rate of interest referred to in 28 U.S.C. § 1961 will be applied. Third and finally, in order to guarantee complete compensation to the plaintiff, the interest will be compounded annually.Manswell v. Heavenly Miracle Acad. Servs., Inc., No. 14-CV-7114 (MKB) (SMG), 2017 WL 9487194, at *16 (E.D.N.Y. Aug. 23, 2017) (citing Thomas 508 F.Supp.2d at 264), adopted by, 2017 WL 4075180 (Sept. 14, 2017). Accordingly, Williams should be awarded back pay in the amount of $90,930.79, plus pre-judgment interest at the federal interest rate, calculated using the method described above.
b. Front Pay
Williams alleges that she is entitled to front pay in the amount of $67,632.00. Pl. Mem. ¶37. An award of front pay is warranted in cases where “the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment.” Bergerson v. New York State Off. of Mental Health, Cent. New York Psychiatric Ctr., 652 F.3d 277, 286 (2d Cir. 2011) (citation omitted). When determining whether an award of front pay is warranted, the following factors should be considered: the plaintiff's age; her “reasonable prospects of obtaining comparable employment;” and “the ability of plaintiff to mitigate damages in the future.” Gutierrez, 2018 WL 3432786, at *8 (citations omitted).
Here, Williams has not pleaded sufficient allegations to allow the Court to find that she is entitled to front pay. First, Williams has not provided her age, so the Court cannot take that into consideration. Second, Williams has not provided any information regarding her reasonable prospects of obtaining comparable employment. Third, while Williams has stated that she was able to “partially” mitigate her damages, she has not alleged anything about her ability to mitigate damages in the future. Accordingly, Williams has not provided sufficient information such that the Court “can reasonably predict that [Williams] has no reasonable prospect of obtaining comparable alternative employment.” Bergerson, 652 F.3d at 286. Therefore, on the record before the Court, Williams is not entitled to front pay.
c. Emotional Distress Damages
Williams alleges that “at minimum” she is entitled to garden variety emotional distress damages of $125,000. Pl. Mem. ¶40. Title VII, NYSHRL, and NYCHRL all allow for recovery of emotional distress damages. See, e.g., Setty v. Synergy Fitness, No. 17-CV-6504 (NGG) (SMG), 2019 WL 1292431, at *7 (E.D.N.Y. Mar. 21, 2019). The Second Circuit categorizes emotional distress damages as one of the following: garden variety, significant, or egregious. See, e.g., Yunganaula v. Garcia, No. 19-CV-6247 (EK) (SJB), 2021 WL 5993622, at *17 (E.D.N.Y. Aug. 11, 2021) (citing Sooroojballie v. Port Auth. of N.Y. & N.J., 816 Fed.Appx. 536, 546 (2d Cir. 2020)), adopted as modified, 2021 WL 5984851 (Dec. 17, 2021). “In gardenvariety 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. These claims typically lack extraordinary circumstances and are not supported by medical testimony.” Sooroojballie, 816 Fed.Appx. at 546 (citations omitted).
Here, without medical evidence or corroboration, Williams contends that after Firequench refused to hire her, she suffered from depression, anxiousness, and sleeping issues. Williams Aff. ¶7. She also “questioned whether [she] should continue to work in the electrical and technical fields in which [she] had studied. [She] feared similar things happening again in male dominated industries.” Id. These allegations are sufficient to claim garden variety emotional distress damages. See, e.g., Yunganaula, 2021 WL 5993622, at *18 (garden variety damages appropriate where plaintiff “felt sad, anxious, and ashamed,” without presenting medical evidence or corroboration in support).
Williams supports her claim for $125,000 in emotional distress damages by citing to cases that “describe [garden variety] claims as generally meriting $30,000 to $125,000 awards.” Pl. Mem. ¶39 (citing Villalta v. JS Barkats, P.L.L.C., No. 16-CV-2772 (RA) (RWL), 2021 WL 2458699, at *14 (S.D.N.Y. Apr. 16, 2021) (cleaned up), adopted by, 2021 WL 2458023 (June 16, 2021). Specifically, she cites to cases awarding garden variety emotional distress damages to plaintiffs with similar conditions between $100,000 and $150,000. Pl. Mem. ¶39. However, most of those cases are distinguishable because the discrimination alleged therein was more intentional, physically harmful, and/or lasted for a longer period of time. Id. More analogous are cases in which the damages are found to be at the bottom of the range: see, e.g., Yunganaula, 2021 WL 5993622, at *18 ($30,000 where plaintiff, who was “sad, anxious, and ashamed” after experiencing discrimination due to his termination, offered no medical support or corroboration), Quintero v. Angels of the World, Inc., No. 19-CV-6126 (DG), 2021 WL 4464123, at *15 (E.D.N.Y. Sept. 10, 2021) ($30,000 awarded to plaintiff who alleged “intense stress and anxiety,” as well as “significant physical manifestations” as result of racial and sexual discrimination) adopted by 2021 WL 4463488 (Sept. 29, 2021); Setty, 2018 WL 8415414, at *18 ($25,000 awarded to plaintiffs who alleged “stress and anxiety,” humiliation and sleep issues as a result of sex discrimination); Santiago v. Crown Heights Center for Nursing and Rehab, No. 15-CV-4381 (DLI) (CLP), 2017 WL 9482107, at *23 (E.D.N.Y. Feb. 24, 2017) ($30,000 for plaintiff who experienced “anxiety, stress, shame and embarrassment, and loss of self-worth” due to employment discrimination on the basis of race, national origin).
For example, in Duarte v. St. Barnabas Hosp., 341 F.Supp.3d 306, 324 (S.D.N.Y. 2018) and DeCurtis v. Upward Bound Int'l, Inc., No. 09-CV-5378 (RJS), 2011 WL 4549412, at *5 (S.D.N.Y. Sept. 27, 2011), two of the cases Williams cites, the plaintiffs experienced Title VII violations over a three-year period. Williams also cites to Bouveng v. Nyg Capital LLC, 175 F.Supp.3d 280 (S.D.N.Y. 2016), in which plaintiff was sexually harassed over the course of several months.
Following these cases, $30,000 in emotional distress damages is an appropriate award here.
d. Punitive Damages
Williams contends that she is entitled to punitive damages under Title VII and NYCHRL. Pl. Mem. ¶41. Under Title VII, a plaintiff is entitled to 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.” Equal Emp. Opportunity Common v. United Health Programs of Am., Inc., No. 14-CV-3673 (KAM) (JO), 2020 WL 1083771, at *22 (E.D.N.Y. Mar. 6, 2020) (citing to 42 U.S.C. § 1981a(b)(1)). The use of “[t]he terms ‘malice' or ‘reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Id. (quoting Kolstad v. ADA, 527 U.S. 526, 535 (1999)). Williams contends that Firequench “acted with malice or reckless indifference” towards her; however, that is the full extent of her contention. Pl. Mem. ¶42. She does not allege that Firequench had any knowledge that it was acting in violation of federal law. Accordingly, Williams does not meet the standard for punitive damages under Title VII. See, e.g., Lamberson v. Six W. Retail Acquisition, Inc., No. 98-CV-8053 (DC), 2002 WL 59424, at *5 (S.D.N.Y. Jan. 16, 2002) (no requisite state of mind if employer is “unaware of the relevant federal prohibition”).
The NYSHRL does not allow for punitive damages. See, e.g., Chauca v. Abraham, 841 F.3d 86, 95 (2d Cir. 2016).
In the alternative, Williams argues that if she does not meet the standard for punitive damages under Title VII, she is entitled to punitive damages under the NYCHRL, Pl. Mem. ¶43, which has a lower standard-“whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard for the rights of others or conduct so reckless as to amount to such disregard.” Garcia v. Comprehensive Ctr., LLC, No. 17-CV-8970 (JPO) (BCM), 2019 WL 8274296, at *9 (S.D.N.Y. Nov. 21, 2019) (cleaned up), adopted by 2020 WL 1435002 (Mar. 24, 2020). This standard “requires neither a showing of malice nor awareness of the violation of a protected right.” Id. (internal quotations and citations omitted).
Although the NYCHRL standard for punitive damages is lower, Williams still does not meet it. Williams has not alleged that Firequench acted with willful or wanton negligence in its interactions with her. All Williams has alleged is that Firequench explicitly told her that she would not be hired because the company does not hire women for the Fire Alarm Technician position. Williams Aff. ¶¶3-5. Williams has not alleged that Firequench recklessly disregarded her rights. At most, Williams has demonstrated that Firequench was negligent in making the hiring decision, but there is nothing to demonstrate that the negligence was willful or wanton. For example, in Ravina v. Columbia University, the Court found the defendant liable for punitive damages under the NYCHRL where evidence proved that defendant was aware of, but disregarded, plaintiff's right to be free from retaliation. No. 16-CV-2137 (RA), 2019 WL 1450449, at *8 (S.D.N.Y. Mar. 31, 2019). In contrast, Williams has not demonstrated in either her sworn affidavit or her pleadings that Firequench was aware of any wrongdoing. See, e.g., Suris v. Collive Corporation, No. 20-CV-6096 (AMD) (JRC), 2022 WL 542987, at *6 (E.D.N.Y. Jan. 10, 2022) (denying punitive damages where plaintiff's allegations did not meet NYCHRL standard even though defendants found liable on default judgment under NYCHRL), adopted by 2022 WL 541765 (Feb. 23, 2022).
e. Attorneys' Fees and Costs
As the prevailing party in this case, Williams seeks $21,610.00 in attorneys' fees and $590.66 in costs. Pl. Mem. ¶58. She has provided time records in support of this amount that demonstrate the hours her counsel worked on the case. Pl. Mem., Exh. F. “Under Title VII and NYCHRL, a plaintiff may seek, and the court may award, reasonable attorneys' fees and costs.” Gutierrez, 2018 WL 3432786, at *12 (citing 42 U.S.C. § 2000e-5(k); N.Y.C. Admin. Code § 8-502(f)). A request for attorneys' fees must be supported with specificity, “documented by time records which specify the date, time expended, hourly rate and description of the work done by each attorney.” Id. Courts have the discretion to determine the reasonableness of the fee sought, and should consider “case-specific variables” including factors such as “the novelty and difficult of the questions, the level of skill required to perform the legal service properly, the attorney's customary hourly rate, the amount involved in the case and the results obtained, and the experience, reputation, and ability of the attorneys.” Id. at *13. Finally, courts should also consider the “prevailing rates [for attorneys] in the district in which it sits” and exclude “excessive, redundant or otherwise unnecessary hours.” Id. (citations omitted).
Williams' counsel should have submitted sworn statements as to the fees and costs in this case, rather than include them in an unsworn set of proposed findings of fact and conclusions of law, as it is well-settled that “[a]n attorney's unsworn statements in a brief are not evidence.” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009).
The billing records submitted by Williams' attorneys reflect a total of 87.25 hours at hourly rates of: $350 for a senior associate; $200 for other associates; and $100 for office staff. Pl. Mem. ¶¶50-53; Pl. Mem., Exh. F. The billing rates for the associates and office staff comport with hourly rates approved in this district and in the neighboring Eastern District of New York. See, e.g., Gutierrez, 2018 WL 3432786, at *13 (recommending $200 for associates); Villalta, 2021 WL 2458699, at *21 ($100 for paralegal). However, the billing rate for the senior associate, Mr. Kirschenbaum, appears to be higher than what is normally awarded in this District and his rate should be reduced to $300. See, e.g., Villalta, 2021 WL 2458699, at *21 ($295 for a senior associate) (collecting cases). The Court finds $300 to be a more reasonable rate for an attorney with Mr. Kirschenbaum's level of experience (nine years), working on briefing in which the defendant defaulted and thus the issues were not challenged. See, e.g., Siracuse v. Program for the Development of Human Potential, No. 07-CV-2205 (CLP), 2012 WL 1624291, at *28 (E.D.N.Y. April 30, 2012) (lower rates warranted in default judgment matters, given plaintiffs' claims are unchallenged); Becerril, 2009 WL 2611950, at *8-9 (lack of unusual factual or legal issues and unopposed discrimination claim warranted some reduction in rates).
Williams states that she is seeking an award of $21,610.00 and specifically, $13,300.00 for her counsel, Mr. Kirschenbaum. Pl. Mem. ¶¶53, 58. However, multiplying the total hours in Exhibit F worked by Mr. Kirschenbaum (42.5) by Mr. Kirschenbaum's rate ($350.00 per hour) equals a total of $14,875.00, thus yielding a total award of $23,185.00. Williams has provided no explanation as to why she only seeks $13,300.00 for the work of Mr. Kirschenbaum. Accordingly, the Court assumes a mistake was made in the calculations in Williams' papers and calculates the attorneys' fees on the basis of the numbers provided in Exhibit F.
The hours billed by the attorneys appear to be reasonable with the exception of 1.6 hours of Mr. Kirschenbaum's time, which appear to be administrative or capable of being handled by a more junior associate. Pl. Mem., Exh. F. “The law is clear that in reviewing a fee application, the court should exclude excessive, redundant or otherwise unnecessary hours.” Clark v. Gotham Lasik, PLLC, No. 11-CV-1307 (LGS), 2013 WL 4437220, at *8 (S.D.N.Y. Aug. 20, 2013) (cleaned up) (deducting hours for seemingly clerical tasks). Accordingly, the Court will use the more junior associate rate for these 1.6 hours. In sum, the Court recommends awarding Williams $20,900.00 in attorneys' fees, broken down as follows:
The hours in question are as follows: (1) 5/7/2021, 0.6 for “Filed case”; (2) 9/15/2021, 0.3 for “Update affidavits”; (3) 10/7/2021, 0.5 for “Scan docs, edits;” and (4) 12/20/2021, 0.2 for “Saved Order.”
The Court adds 1.6 hours to Ms. Rogers' total.
Rates Awarded
Hours Awarded
Total Fees
Ramirez
$100.00
6.40
$640.00
Bracero
$200.00
7.25
$1,450.00
Rogers
$200.00
32.70
$6,540.00
Kirschenbaum
$300.00
40.90
$12,270.00
TOTAL
Williams' request for costs of $590.66 is reasonable and they should be awarded in full. These costs consist primarily of court filing fees and fees to process servers. Pl. Mem., Exh. G. “Court filing fees, process servers, printing and photocopying, messenger services, postage, telephone costs, transcripts, travel, transportation, meals and other out of pocket litigation costs are generally recoverable if they are necessary for the representation of the client.” Hui Lan Weng v. Fancy Lee Sushi Bar & Grill, Inc., No. 15-CV-5737 (ADS) (ARL), 2017 WL 5564892, at *3 (E.D.N.Y. Nov. 3, 2017) (cleaned up), adopted by 2017 WL 5564593 (Nov. 18, 2017).
f. Post-Judgment Interest
Williams also seeks post-judgment interest. Pl. Mem. ¶48. Post-judgment interest is mandatory pursuant to 28 U.S.C. § 1961. See, e.g., Westinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir. 2004); Paravas v. Tran, No. 21-CV-807 (AJN) (KHP), 2022 WL 718842, at *12 (S.D.N.Y. Feb. 22, 2022), adopted by 2022 WL 718587 (Mar. 10, 2022). Williams is therefore entitled to post-judgment interest on all sums awarded, commencing when the Clerk of the Court enters judgment until the date of payment.
III. CONCLUSION
For the foregoing reasons, I recommend that the Court award Williams damages in the amount of $142,421.45 ($90,930.79 in back pay, $30,000.00 in emotional distress damages, $20,900.00 in attorneys' fees, and $590.66 in costs), in addition to pre-judgment interest on the back pay award and post-judgment interest on all sums awarded, commencing when the Clerk of the Court enters judgment until the date of payment.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).