PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

JOHN Z. LEE, District Judge.

Plaintiff Renita Austin, by and through her undersigned, Court-appointed counsel, Stephen R. Meineitzhagen of Burke, Warren, MacKay & Seiritella, P.C., moves this Court for entry of a. default judgment against Defendant Ecowize North America, LLC ("Ecowize"). In support of this Motion, the Plaintiff states as follows:

1. Plaintiff brought a Complaint against her former employer, Defendant Ecowize, alleging employment discrimination in the form of her harassment and ultimate termination on the basis of her race (African American) and gender (female), in violation of Title 7 of the Civil Rights Act of 1964 and 42 U.S.C. § 1931.

2. On July 18, 2018, this Court entered an Order of Default as to Ecowize as a result of its failure to appear in this case following service of process. (Dkt. 33.)

Back Pay

3. Plaintiff is entitled to an award of back pay against Ecowize. An award of back pay is presumptively proper for a violation of the civil rights law. David v. Caterpillar Inc., 324 F.3d 851, 865 (7th Cir. 2003).

4. Plaintiff had an annual salary of $68,000 when Ecowize wrongfully terminated her on January 23, 2017. She expected her pay to increase approximately 3% per year while employed at Ecowize. (See Affidavit of Renita Austin, attached hereto as Ex. A, para. 8.)

5. After diligently seeking comparable employment, in March 2017 she was hired by the Anthem Companies, LLC ("Anthem"), but her pay was less than it had been at Ecowize — $23,435.23 in 2017 and $33,761.67 in 2018. Based on her hourly wage of $18.14 per hour at 40 hours per week, for 2019 she expects to have earned $18,865.60 through June 30, the estimated date of judgment in this case. (Austin Aff., paras. 10-16.)

6. Plaintiff calculates back pay as follows:

7. Plaintiff respectfully requests the Court enter judgment against Ecowize and award her back pay of $93,763.17.

Prejudgment Interest

8. Prejudgment interest on back pay is presumptively available. Shott v. Rush-Presbyterian-St. Luke's Med. Ctr., 338 F.3d 736, 745 (7th Cir. 2003). When calculating prejudgment interest, courts should use the prime rate. Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 820 (7th Cir. 2002). The average in monthly prime rate for the period January 2017 through May 20193 is 4.67%. See Board of Governors, Federal Reserve System, Data Download Program, https://www.federalreserve.gov/datadownload/Choose.aspx?rel=H15 (last visited June 12, 2019), print-out attached hereto as Ex. B. Because Ecowize's civil rights violations occurred no later than January 23, 2019, she calculates prejudgment interest from that date through the estimated judgment date of June 30, 2019, as follows: $93,763.17 × .0467 × 2.43704 = $10,670.99.

9. Plaintiff respectfully requests the Court enter judgment against Ecowize and award award her prejudgment interest on her back pay of $10,670.99.

Front Pay

10. Plaintiff is also entitled to an award of front pay. While reinstatement is the preferred remedy for future harm caused by employer's discriminatory action, it is unsuitable where it "would be difficult for the Court to administer." Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1045 (7th Cir. 1994). Likewise, reinstatement is inappropriate in circumstances such as where there is no position available or the employer-employee relationship is pervaded by hostility. Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (9th Cir. 1998). In such circumstances, front pay is the appropriate award for prospective relief. Id. Here, it is unclear how the Court could administer reinstatement because Ecowize has failed to appear in this case. Furthermore, as demonstrated by her Affidavit, the Plaintiff's relationship with her former employee is pervaded by hostility and there is no evidence that the position from which the Plaintiff was wrongfully terminated is even open. (Austin Aff., paras. 5-7.)

11. Under 42 U.S.C. § 1981a(b)(3) the amount of damages available for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages" is limited to $200,000 where the defendant has more than 200 and fewer than 500 employees.

12. According to Ecowize's LinkedIn page it has 256 employees on LinkedIn. See https://www.linkedin.com/company/ecowize-group, last accessed June 18, 2019, print-out attached hereto as Ex. C. Ecowize may have more than 500 employees, but it certainly has more than 200 as that many have their own LinkedIn pages.

13. Three years of front pay is appropriate in this case. See, e.g., Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 574 (7th Cir. 1995) (affirming ten-year front pay award until plaintiff's retirement age of 65); Phillips v. City of South Bend, No. 3:15CV527-PPS, 2018 WL 2041798, at *10 (N.D. Ind. May 1, 2018) ("an award for three years properly balances the need to compensate [the plaintiff] with the difficulty inherent in predicting the future."); Washington v. Office of the State Appellate Def., 12 C 8533, 2016 WL 3058377, at *9-10 (N.D. Ill. May 31, 2016) (awarding 6 and ½ years front pay); Scott v. Peterson, No. 09 C 1633, 2010 WL 3173001, at *4 (N.D. Ill. Aug. 11, 2010) (awarding 33 months of front pay).

14. Front pay calculations must be discounted to present value. Scott, 2010 WL 3173001, at *4, FN 5. Here, the discount rate of 4.67% applied to front pay is equally appropriate for front pay since, although it is backward-looking, it is derived from the average monthly prime rate for the period January 2017 through May 2019 and is therefore tied to an historical index.

15. Plaintiff expects her hourly wage at Anthem to increase approximately 3% annually. (Austin Aff., para. 13.)

16. Plaintiff calculates front pay as follows:

17. Plaintiff respectfully requests the Court enter judgment against Ecowize and award her front pay after discounting to the present value of $101,710.74.

Emotional Distress

18. Damages for emotional distress and humiliation are available for a §1981 claim. Musikiwamba v. ESSZ Inc., 760 F.2d 740, 748 (7th Cir. 1985). An emotional distress damages award can be supported solely by a plaintiff's testimony about his or her emotional distress. Tullis v. Townley Eng'g & Mfg. Co., 243 F.3d 1058, 1068 (7th Cir.2001).

19. Here, Plaintiff experienced emotional distress after her wrongful termination by Ecowize, including feeling devastated, humiliated and degraded. She suffers from and is being treated for clinical depression and experiences physical symptoms including insomnia, headaches and weight gain. As a result of her wrongful termination by Ecowize she has difficulty socializing or enjoying former pastimes.

20. Plaintiff believes that a minimum award of $75,000 would compensate her for the emotional distress and humiliation she has suffered as a result of Ecowize's civil rights violations.

21. Plaintiff respectfully requests the Court enter judgment against Ecowize and award her emotional distress damages of $75,000.

Conclusion

22. In summary, Plaintiff requests the Court enter judgment in her favor and against Ecowize in the amount of $256,144.90 as follows:

WHEREFORE, Plaintiff Renita Austin request that this Court enter default judgement against Defendant Ecowize North America, LLC under Fed. R. Civ. P. 55(b)(2) as set forth herein, and grant her such other and further relief as the Court deems appropriate.

EXHIBIT A

AFFIDAVIT OF RENITA AUSTIN

I, Renita Austin, declare as follows:

1. I am the Plaintiff in this action and make this Affidavit based upon my personal knowledge. If called to testify at trial, I could competently testify as to all facts set forth in this Affidavit.

2. I am a.48-year old African American woman.

3. I was employed by the Defendant Ecowize North America, LLC ("Ecowize") as Site Plant Manager at West Liberty Foods' Bolingbrook Plant starting on October 30, 2016.

4. On January 23, 2017, Ecowize wrongfully terminated my employment on the basis of my race (African American) and gender (female).

5. During my employment with Ecowize, I brought to management's attention misconduct by Hispanic male employees including reporting of falsified timekeeping records. I was reprimanded and falsely accused of misconduct by Ecowize's Vice President, David Maldonado, a Hispanic male. The real reason for this mistreatment was that I am an African American woman and Ecowize was dominated by a predominately Hispanic male culture whose misconduct I had sought to expose.

6. In mid-December 2016, Hope Alverez, the Area Manager for Ecowize, visited the plant where I was employed. Alverez made unwanted and unwarranted advances toward me. He asked me personal questions about my weight and age and made offensive commentary to me about both. He volunteered information about his personal life and indicated that he was currently separated from his "girl" and seeing someone else. I ignored him and changed the subject, trying to be careful not to offend him. A day or two later he invited me to breakfast after the nightshift and when I turned him down he was upset and commented, "that's ok, you don't want to eat with me that's fine." A few days later my daughter, Ariel Austin (also an Ecowize employee at the time), commented to Alvarez about his nice phone case and asked how she could get one like that. Alverez replied, "get me that breakfast date." My daughter laughed and ignored him. In the days and weeks to follow, as a result of my shunning of Alvarez's advances, Alverez's treatment of me (and my daughter) became increasingly harsh and critical.

7. On January 23, 2017, Alverez terminated me on behalf of Ecowize.

8. At the time of my termination from Ecowize my annual salary was $68,000. While at Ecowize, expected that my salary would increase by approximately 3% per year.

9. I had no intention of leaving my employment with Ecowize and I expected continuing to work for Ecowize for at least ten years.

10. Following my termination at Ecowize, I immediately began to seek comparable employment. However, I was unable to find any employment with pay commensurate to what I received at Ecowize.

11. In March 2017, I began working for the Anthem Companies, Inc. ("Anthem"). I remain employed at Anthem as a Referral Specialist 1.

12. During my tenure with Anthem, I have always been paid an hourly wage. My current hourly wage is $18.14 per hour and I work 40 hours per week.

13. While employed at Anthem I expect that my salary will increase by approximately 3% per year.

14. I have no intention of leaving my employment with Anthem and anticipate continuing my employment there for the foreseeable future.

15. A true and accurate copy of my Anthem W2 for 2017 is attached hereto as Exhibit 1. It reflects wages, tips and other compensation of $23,435.23.

16. A true and accurate copy of my Anthem W2 for 2018 is attached hereto as Exhibit 2. It reflects wages, tips and other compensation of $33,761.67.

17. The mistreatment I received at Ecowize, as a result of retaliation for reporting the misconduct of Hispanic workers and not submitting to Alverez's advances, was devastating, humiliating and degrading. As a result, I suffered extreme emotional distress. To this clay, as a. result of this emotional distress, I continue to suffer from clinical depression (for which I am currently being treated), insomnia, headaches, irritability and weight gain. I have difficulty socializing or enjoying former pastimes.

18. I believe that a minimum of $75,000 would compensate me for the severe emotional distress Ecowize has caused me.

I declare under penalty of perjury under the laws of the United States of America that the bringing is true and correct, Executed at Chicago, Illinois on June 21, 2019.

EXHIBIT 1

EXHIBIT 2

EXHIBIT B

Series Dese Average majority prime rate charged by banks on short-term loans to business, quoted on an investment basis

EXHIBIT C