WILLIAM S. DEFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge J. Clay Fuller's Final Report and Recommendation [15] ("R&R), recommending that Plaintiffs Jennifer Alger and Amber Myers' (collectively, "Plaintiffs") Motion for Default Judgment [9] be granted.
Between 2011 and 2013, Defendant Prime Restaurant Management, LLC ("Defendant") operated three (3) Tilted Kilt restaurants in Atlanta and employed approximately 100-200 employees. ([13] at 3, 6-7, 28, 30). These themed restaurants require female staff to serve as "entertainers and models" and to wear certain revealing uniforms. ([13] at 7-8). In 2011, Defendant hired Plaintiff Jennifer Alger ("Alger") to work as a bartender in its Tilted Kilt franchises. (Compl. ¶ 15; [13] at 6). Alger worked primarily at Defendant's Dunwoody location for at least five (5) shifts per week. (Compl. ¶ 17). That location saw higher customer volume, and generated higher staff earnings, than Defendant's other locations. (
In January 2013, Alger became pregnant. ([13] at 8). By March 2013, Alger had notified "all of [Defendant's] management and . . . owners" that she was pregnant and had asked Defendant for a "maternity [work] uniform." (Compl. ¶¶ 16, 19; [13] at 8-9). Defendant told her that the uniforms were "out of stock" but agreed to order more. (Compl. ¶ 19). Alger claims she repeatedly followed up with Defendant and that Defendant repeatedly advised her that no new maternity uniforms had come into stock. (Compl. ¶ 20). Defendant never provided her with a maternity uniform. (Compl. ¶ 21).
In March 2013, Alger began to experience "severe complications" with her pregnancy and, on or around March 17, 2013, after experiencing bleeding at work, she ended her shift early and went to the hospital. (Compl. ¶ 22; [13] at 10-11). The doctor recommended bed rest for approximately two (2) weeks. (Compl. ¶¶ 23-24; [13] at 11-12). Her gynecologist agreed. ([13] at 11). Alger immediately informed her manager and took two (2) weeks off work. (Compl. ¶ 24; [13] at 11-12). Defendant did not tell Alger that she had a right to medical leave under the Family Medical Leave Act ("FMLA"). (Compl. ¶¶ 24-25; [13] at 12).
In or around early April 2013, when Alger returned to work, she was assigned solely to the Alpharetta location and her shifts were cut to three (3) per week. (Compl. ¶ 26). This significantly reduced her income. (Compl. ¶ 27). In or around May 2013, Alger took four (4) days off work due to continued complications with her pregnancy. (Compl. ¶ 28). Although Defendant "routinely assists other non-pregnant employees in covering shifts," Defendant refused to help Alger find coverage for her shifts. (Compl. ¶¶ 29-30). Defendant also did not advise Alger of her right to take medical leave under the FMLA. ([13] at 17). Alger claims that Defendant previously permitted her to take more than a week off work to get a breast augmentation, "very happ[ily]" arranged cover for her shifts during that period, and gave her the same shifts and several new uniforms when she returned to work. ([13] at 18).
On May 8, 2013, Defendant terminated her employment, telling her that, although she was "a good employee and great bartender," Defendant "could not build a business if she was going to be out" and "maybe [she could] return after [her] baby is born." (Compl. ¶¶ 31-33; [13] at 20-21). Alger understood this to mean that Defendant "had a problem with [her] being pregnant and . . . requiring medical leave." ([13] at 21). She testified that she was terminated "because [she] was pregnant, and because [she] needed some medical leave." ([13] at 27). Alger did not obtain new employment until August 2014, meaning she was out of week for approximately 63 weeks. ([13] at 22-23).
In June 2011, Defendant hired Plaintiff Amber Myers ("Myers") to work as a bartender and server in its Tilted Kilt franchise. ([13] at 28). Myers worked at Defendant's Alpharetta restaurant for approximately five (5) shifts per week. ([13] at 29). In January 2013, Myers became pregnant and obtained a maternity uniform from a friend at work. ([13] at 31-32). By March 2013, Myers had informed Defendant that she was pregnant and that she intended to take "a brief period" off work after giving birth. (Compl. ¶ 35; [13] at 31-32). Defendant did not advise her of her right to medical leave under the FMLA. ([13] at 31-32). After learning of Myer's pregnancy, Myer's manager became "extremely hostile" towards her, "often yell[ing] at her and call[ing] her `stupid'" and "referr[ing] to [her] as a `walking lawsuit.'" (Compl. ¶¶ 45-47; [13] at 35-37).
In or around April 2013, Myers asked Defendant for a larger skirt for her maternity uniform. (Compl. ¶ 36). Defendant told her that the larger skirts were "out of stock" and that Defendant would order more and notify Myers when they arrived. (Compl. ¶¶ 37, 41). In April and May 2013, Myers repeatedly reminded Defendant that she needed a larger maternity uniform. (Compl. ¶¶ 38, 42). Defendant told Myers the uniforms were "backordered" and suggested that Myers could work as a hostess because employees in that position were permitted to wear slacks. (Compl. ¶¶ 39, 41). Myers declined because hostesses were paid less than employees in her position. (Compl. ¶ 40). Myers claims she contacted the maternity uniform supplier, who told her that the large skirts were in stock and that Defendant had not placed an order for them. (Compl. ¶ 43; [13] at 33). The supplier informed Myers that she could not order a large skirt for herself and that any order had to come from Defendant. ([13] at 33). Myers informed Defendant but Defendant never provided her with the larger maternity uniform. (Compl. ¶ 42; [13] at 34).
On July 26, 2013, Defendant called Myers into a meeting, provided her with a "final written warning," asked her to sign it, criticized her work performance, and stated that she was being placed on a thirty (30) day "performance improvement plan." (Compl. ¶¶ 48, 50; [13] at 37-39). Defendant claimed to issue the warning because Myers was "uncoachable," had a bad attitude, was not providing a good customer experience, and did not get along with co-workers. ([13] at 37). Myers was not aware of these issues and had not previously received any written or verbal warnings. (Compl. ¶ 49; [13] at 38). Myers testified that she did her job well, had "lots of regulars," worked hard, had high sales, and had a good relationship with her coworkers. ([13] at 36-38).
Myers refused to sign the warning unless Defendant obtained confirmation from Myers' coworkers that the criticisms were valid. ([13] at 38-39). Myers claims she asked for a copy of the warning but was told she could only have one if she signed it. ([13] at 39). The general manager arrived later that evening, refused to give Myers a copy of the warning, and terminated her employment. (
On February 26, 2015, Plaintiffs filed their Complaint [1], asserting claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act of 1990 ("ADA"), and the FMLA. On May 7, 2015, Plaintiffs served [4] their Complaint on Defendant. Defendant failed to file an answer or responsive motion and, on June 1, 2015, Plaintiffs filed their Motion for Entry of Default against Defendant Prime Restaurant Management, LLC [5]. The Court entered default against Defendant later that day.
On January 21, 2016, Plaintiffs filed their Motion for Default Judgment [9], seeking back pay, liquidated damages, compensatory and punitive damages, attorneys' fees, and litigation costs. On March 3, 2016, the Magistrate Judge held an evidentiary hearing in which Plaintiffs testified and provided factual support for their claims. (
On June 9, 2016, the Magistrate Judge issued his R&R, recommending that Plaintiffs' Motion for Default Judgment be granted. The Magistrate Judge found that Plaintiffs were entitled to relief under Title VII and the FMLA but not under the ADA. The Magistrate Judge concluded that Alger is entitled to $66,912.12 in back pay and prejudgment interest, $100,000 in compensatory and punitive damages under Title VII, and $66,912.12 in liquidated damages under the FMLA. The Magistrate also concluded that Myers is entitled to $25,620.17 in back pay and prejudgment interest, $100,000 in compensatory and punitive damages under Title VII, and $25,620.17 in liquidated damages under the FMLA. The Magistrate Judge recommends granting Plaintiffs' request for attorneys' fees and litigation costs in the amount claimed. The parties did not object to the R&R.
Rule 55(b) of the Federal Rules of Civil Procedure provides that default judgment may be entered against defaulting defendants as follows:
Fed. R. Civ. P. 55(b).
"While a defaulted defendant is deemed to `admit[ ] the plaintiff's well-pleaded allegations of fact,' he `is not held to admit facts that are not well-pleaded or to admit conclusions of law.'"
Ultimately, "[t]he entry of a default judgment is committed to the discretion of the district court,"
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1);
Under Title VII, it is unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex," 42 U.S.C. § 2000e-2(a)(1), including "because of or on the basis of pregnancy, childbirth, or related medical conditions," 42 U.S.C § 2000e(k). "[A]n employer is obliged to ignore a woman's pregnancy and to treat the employee as well as it would have if she were not pregnant."
"There are two types of discrimination actionable under Title VII. The first is `disparate treatment,' or intentional discrimination. . . . The second type of discrimination prohibited by Title VII is `disparate impact.'"
The Magistrate Judge found that Defendant discriminated against Alger on the basis of her pregnancy, including because Defendant did not provide her with a maternity uniform, did not help her find coverage for her shifts during pregnancy-related medical leave, and cut her shifts after she returned to work. Defendant "routinely assist[ed] other non-pregnant employees in covering shifts," "very happ[ily]" arranged coverage for Alger when she took more than a week off work to receive a breast augmentation before her pregnancy, and gave Alger the same shifts and several new uniforms when she returned to work after that procedure. (Compl. ¶¶ 29-30; [13] at 18). Defendant also appears to have terminated Alger's employment on the basis of her pregnancy, telling her that, although she was "a good employee and great bartender," Defendant "could not build a business if she was going to be out" on pregnancy-related medical leave and "maybe [she could] return after [her] baby is born." (Compl. ¶¶ 31-33; [13] at 20-21). Alger testified that Defendant "had a problem with [her] being pregnant and . . . requiring medical leave." ([13] at 21). She also testified that she was terminated "because [she] was pregnant, and because [she] needed some medical leave." ([13] at 27).
The Magistrate Judge also found that Defendant discriminated against Myers on the basis of her pregnancy, including because Defendant repeatedly refused to provide her with a maternity uniform and became "extremely hostile" towards her after learning of her pregnancy, "often yell[ing] at her and call[ing] her `stupid'" and "referr[ing] to [her] as a `walking lawsuit.'" (Compl. ¶¶ 42, 45-47;
The FMLA provides that an "eligible employee"
"[W]hen the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances."
In March 2013, Alger began to experience "severe complications" with her pregnancy and, on or around March 17, 2013, after experiencing bleeding at work, she ended her shift early and went to the hospital. (Compl. ¶ 22; [13] at 10-11). The doctor recommended bed rest for approximately two (2) weeks. (Compl. ¶¶ 23-24; [13] at 11-12). Her gynecologist agreed. ([13] at 11). Alger immediately informed her manager and took two (2) weeks off work. ([13] at 11-12). Alger later took four (4) more days off work due to continued complications with her pregnancy. (Compl. ¶ 28; [13] at 17). Defendant did not notify Alger of her right to "FMLA leave." (Compl. ¶¶ 24-25; [13] at 17). In early 2013, Myers informed Defendant that she was pregnant and that she intended to take "a brief period" off work after giving birth. (Compl. ¶ 35; [13] at 31-32). Defendant did not advise her of her right to protected leave under the FMLA. ([13] at 31-32). The Magistrate Judge determined that "Plaintiffs . . . set forth a claim for interference under the FMLA" because "[n]either employee was ever made aware of the fact that they had rights with regards to taking time off under the Family Medical Leave Act." (R&R at 11). The Court finds no plain error in this finding.
The ADA provides that no covered employer shall discriminate against "a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). To state a claim under this provision, a plaintiff must show that: (1) she has a disability, (2) she was a "qualified individual," meaning she could perform the essential functions of her job with or without reasonable accommodations, and (3) she was subjected to unlawful discrimination because of her disability.
The ADA also provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA]." 42 U.S.C. § 12203(a). To state a claim under this provision, plaintiff must show that (1) she "engaged in conduct protected by the ADA," (2) she "was subjected to an adverse employment action at the time, or after the protected conduct took place," and (3) Defendant took the adverse employment action against Plaintiff "because of" her protected conduct.
Although a "plaintiff asserting a retaliation claim need not succeed in proving an underlying claim of actual disability," she "must show that [s]he had a good faith, objectively reasonable belief that [s]he was disabled, and thereby protected by the ADA."
The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities . . .; (B) "a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). "[T]emporary, non-chronic impairments of short duration do not constitute disabilities."
"It is clearly established that pregnancy per se does not constitute a disability under federal law."
Myers does not assert a claim under the ADA and the Magistrate Judge found that she does not allege any pregnancy-related complications during her employment with Defendant. (
"Successful Title VII claimants are presumptively entitled to back pay."
"Title VII requires plaintiffs to mitigate their damages through reasonably diligent efforts to seek employment that is substantially equivalent."
Alger testified that she earned approximately $1,000 per week during her employment with Defendant. ([13] at 23). In April 2013, after learning of Alger's pregnancy, her pregnancy-related complications, and her need for medical leave, Defendant put Alger on a reduced schedule and transferred her to a slower, lower-volume restaurant. ([14] at 5). As a result, Alger lost approximately $1,500 in income. ([14] at 5). On May 8, 2013, Alger was terminated. ([14] at 5). Although Alger did not stop searching for a new job, she remained unemployed for approximately sixty-three (63) weeks . ([14] at 5-6). The Magistrate Judge found that Alger is entitled to $63,000 in back pay for the time she was out of work, and $1,500 in back pay for the time she worked a reduced schedule. (R&R at 13). Applying prejudgment statutory interest at a rate of 3%, the Magistrate Judge concluded that Alger is entitled to a total award of $66,912.12 in back pay. (R&R at 13-14; [14] at 6). The Court finds no plain error in these findings.
Myers testified that she earned approximately $400 per week when she worked for Defendant. ([13] at 29). Myers was dismissed on July 26, 2013, and remained unemployed until January 2, 2014, twenty-three (23) weeks later. ([14] at 6). Because her new job provided her with less income, she earned, between January 2, 2014 and July 12, 2015, approximately $15,800 less than she would have had she not been terminated. ([14] at 7). On July 12, 2015, she began a job that provided her with at least the same income she received from Defendant. ([14] at 7). Except for a two week period after giving birth, Myers did not stop looking for work after she was dismissed. ([14] at 6-7). The Magistrate Judge concluded that, with statutory prejudgment interest, Myers is entitled to $25,620.17 in back pay. (R&R at 14). The Court finds no plain error in this finding.
A Title VII plaintiff can recover compensatory damages where the defendant "engaged in unlawful intentional discrimination." 42 U.S.C. § 1981a(a)(1). Compensatory damages include damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses." 42 U.S.C. § 1981a(b)(3). Compensatory damages also cover "humiliation and emotional distress."
Where a defendant engaged in unlawful discrimination under Title VII, punitive damages also are available if the plaintiff "demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1);
"`[P]unitive damages will ordinarily not be assessed against employers with only constructive knowledge' of [Title VII discrimination]; rather, punitive damages may only be considered in cases where the `discriminating employee was high up the corporate hierarchy' or where `higher management countenanced or approved his behavior.'"
After learning of Myers' pregnancy, Defendant referred to Myers as a "walking lawsuit," suggesting that Defendant understood that pregnancy discrimination is unlawful. (Compl. ¶¶ 45, 47).
"[T]he district court has a great deal of discretion in deciding the level of damages to be awarded."
Under the FMLA, plaintiffs are entitled to recover liquidated damages in an amount equal to their back pay and interest. 29 U.S.C. § 2617(a)(1)(A)(iii). "Liquidated damages are awarded presumptively to an employee when an employer violates the FMLA, unless the employer demonstrates that its violation was in good faith and that it had a reasonable basis for believing that its conduct was not in violation of the FMLA."
The Magistrate Judge found that Defendant, having failed to participate in this action, has not established that its actions were in good faith or that it had a reasonable basis for believing its conduct was not in violation of the FMLA. (R&R at 16). The Magistrate Judge concluded that Plaintiffs are each entitled to liquidated damages in an amount equal to their back pay plus interest. (R&R at 16-17). The Magistrate Judge recommends awarding Alger $66,912.12 and Myers $25,620.17 in liquidated damages. (R&R at 17). The Court finds no plain error in these findings and recommendations.
Title VII permits, and the FMLA requires, plaintiffs to recover reasonable attorneys' fees and litigation costs. 42 U.S.C. § 2000e-5(k); 29 U.S.C. § 2617(a)(3). Courts use the federal lodestar method to calculate reasonable fee awards. "Under the lodestar formula, a court must first determine the attorney's reasonable hourly rate . . . . Next, the court takes the reasonable hourly rate and multiplies it by the `reasonable number of compensable hours.'"
In determining counsel's reasonably hourly rate, the court may consider the following factors:
"`[E]xcessive, redundant or otherwise unnecessary" hours should be excluded from the amount claimed."
The Magistrate Judge determined that Plaintiffs' counsel provided sufficiently detailed evidence of their fees and that their hours and rates are reasonable. The Magistrate Judge found that this case involved a complex factual situation, two (2) plaintiffs with different stories, multiple causes of action, several filings, and an evidentiary hearing. The Magistrate Judge also found that the "vast majority" of counsel's work was done by associates and paralegals, thus lowering costs, that counsel's "detailed [billing] reports" do not indicate any overreaching, and that counsel's rates previously were found reasonable by this Court. (R&R at 20-21);
The Magistrate Judge recommends that judgment be entered in favor of Alger against Defendant in the amount of $251,332.99, and that judgment be entered in favor of Myers against Defendant in the amount of $168,749.09. The Court finds no plain error in this recommendation.
For the foregoing reasons,