Bennett v. Luigi's Italian Rest.

CYNTHIA BENNETT andAMANDA MEADS, Plaintiffs, v. LUIGI'S ITALIAN RESTAURANT andGIANNI TOPALLI, Defendants.

Case No. 18-1295-JTM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

March 30, 2020

MEMORANDUM AND ORDER

This matter is before the court on the plaintiffs' Motion for Entry of Default Judgment (Dkt. 11). By prior Order (Dkt. 13) the court found defendants Luigi's Italian Restaurant and Gianni Topalli to be in default as to the allegations of plaintiffs' Complaint but elected to hold an evidentiary hearing under Fed. R. Civ. P. 55(b)(2) to determine plaintiffs' damages. The court's prior order explained that although defendants were in default and it accepted as true all factual allegations in plaintiffs' Complaint, the court was still obligated to determine whether those facts established a basis for entry of judgment and whether the damages claimed were supported by the record. See Mathiason v. Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269, 1274 (D. Kan. 2016).

Plaintiffs did not specify the amount of monetary damages sought on any of their claims until the Motion for Default Judgment was filed with declarations by both plaintiffs and their attorney. For the first time in that motion, plaintiffs requested an award of $64,000, which encompassed $27,000 in damages to each plaintiff and a $10,000 fee award to their attorney. Further broken down, the $27,000 sought by each plaintiff consisted of $25,000 "for front pay, back pay, and emotional distress" (Dkt. 11-1, p. 1; Dkt. 11-2, p. 2) and an estimated $2,000 in unpaid wages (Dkt. 11-1, p. 1; Dkt. 11-2, p. 1). The requested fee award was made pursuant to the FLSA. (Dkt. 11-3, p. 2). The declaration submitted by plaintiffs' attorney in support of the Motion for Default Judgment specified that plaintiffs' claims for damages consisted of:

(a) Past and future earnings plus mental anguish as a result of sexual harassment and/or retaliation in violation of Title VII of the Civil Rights Act and the Kansas Act Against Discrimination;

(b) Unpaid wages, refusal to supply wage information, and punitive damages as a result of violations of the FLSA;

(c) Attorney fees related to attorney's representation of plaintiffs on their FLSA claims. (Dkt. 11-3, p. 2).

An evidentiary hearing on damages was held on July 22, 2019. Both plaintiffs were present at the hearing, and defendant Topalli appeared at the hearing, albeit appearing late. Both plaintiffs and defendant Topalli testified. Plaintiffs submitted four exhibits at the time of the hearing, including their EEOC charges of discrimination (Exhibits 1 and 3), medical records (Exhibit 2), and a declaration in support of the attorney fee award (Exhibit 4). At the conclusion of the hearing, plaintiffs requested an increased award of damages over what had originally been requested in the declarations submitted with the Motion for Default Judgment:

(a) As to plaintiff Meads: lost wages and benefits of $25,000; future wages and benefits of $25,000; compensatory damages of $800,000; unpaid wages and tips of $2,000;

(b) As to plaintiff Bennett: lost past and future wages from the date of the award of $70,000; compensatory damages of $500,000; unpaid wages and tips of $4,000; and

(c) Attorney fees as to both plaintiffs of $24,935.00. (Transcript, Dkt. 19, 70-71).

Subsequent to the hearing, plaintiffs submitted additional documentation in support of their claims, including documentation related to medical expenses on behalf of plaintiff Meads and wage and tip information related to plaintiff Bennett.

Plaintiffs' Claims for Sexual Harassment/Retaliation Under Title VII of the Civil Rights Act and the Kansas Act Against Discrimination (KAAD)

A. Do plaintiffs' allegations establish a violation of law?

1. Sexual Harassment

Courts have long held that "a plaintiff may establish a violation of Title VII [of the Civil Rights Act] by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399 (1986). But, to sustain an action in that regard, the sexual harassment must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (internal quotation marks and citations omitted). Whether an environment is hostile or abusive is determined by looking at a totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's workperformance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367 (1993). Courts may also consider any psychological harm suffered by the plaintiff to determine whether an environment is actually abusive, but while that factor is relevant, "no single factor is required" to establish a Title VII violation. Id.

Based upon the allegations of the plaintiffs' Complaint, along with their testimony at the hearing, the court finds that plaintiffs established the work environment created by defendants Topalli and Luigi's was hostile and abusive, that the hostility stemmed from discrimination based upon plaintiffs' sex, and that the nature of the harassment they suffered was sufficiently severe or pervasive as to alter the conditions of their employment and create an abusive working environment.

Both Meads and Bennett testified that they were subjected to harassment and abusive sexual comments at every shift. (Tr. 8, 40). This treatment included offensive sexual comments and unwelcome physical contact. Meads testified that Topalli "brought up sex constantly," made sexual jokes about the food at the restaurant, would brush up against her and touch her at work, requested to have sex with her, and implied that if she did not comply she would not have her position much longer. (Tr. 6-7). She also testified this harassment continued with Topalli following her home and then forcing her to drive to a lake, where he continued to proposition her for sex. (Tr. 6-7, 25-28). Meads testified this treatment left her embarrassed and humiliated, subject to "constant panic attacks and fear," and that she had "been living in fear since he did this." (Tr. 9). Bennett testified that she was subjected to repeated sexual comments, questions about her personal sex life, calls at home, direct requests for her to have sex with Topalli, and that eventually Topalliexposed his genitals to her at the restaurant. (Tr. 39). She testified that Topalli's behavior made her feel worthless, stupid, confused, scared, and not good at her job, and that it exacerbated her already-existing PTSD causing hospitalization and affecting her personal relationships. (Tr. 40, 42-44).

While both plaintiffs exhibit pre-existing conditions of anxiety or PTSD, both plaintiffs testified the abusive work environment at Luigi's exacerbated these conditions. As the Supreme Court has held, even without tangible psychological effects "the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII's broad rule of workplace equality." Harris, 510 U.S. at 22. In this case, the allegations of the Complaint and plaintiffs' testimony establish that Topalli created a work environment abusive to plaintiffs because of their gender, in violation of Title VII.¹

Moreover, the court finds defendant Luigi's to be liable for Topalli's conduct. Topalli was the owner of the restaurant, responsible for the day-to-day operations of the restaurant and plaintiffs' direct supervisor at the time of the harassment. "An employer may be liable for sexual harassment based upon the conduct of a supervisor if any of the following conditions are met: (1) the supervisor committed the harassment while acting in the scope of his employment; (2) the employer knew about, or should have known about, the harassment and failed to respond in a reasonable manner; (3) employer manifested in the supervisor the authority to act on its behalf, such manifestation resultedin harm to plaintiff, and plaintiff acted or relied upon apparent authority in some way; or (4) employer delegated authority to supervisor to control plaintiff's work environment and supervisor abused that delegated authority by using that authority to aid or facilitate the perpetration of harassment." Huffman v. City of Prairie Vill., Kan., 980 F.Supp. 1192, 1202 (10^th Cir. 1997) (citing Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1446 (10^th Cir. 1997), vacated on other grounds by Eddy Potash, Inc. v. Harrison, 524 U.S. 947 (1998)). The court finds the allegations of the Complaint and plaintiffs' testimony sufficient to establish that Topalli used his position as the owner of the restaurant and plaintiffs' direct supervisor to perpetrate the harassment. Luigi's consequently shares liability for the Title VII violations in this case.

2. Retaliation

Plaintiffs' claims of retaliation in violation of Title VII and the KAAD are less specific than their claims of sexual harassment. As to Meads, the Complaint alleges merely that "[d]efendants retaliated against Amanda because of her protected conduct [in complaining about the sexual harassment." (Dkt. 1, p. 5). As to Bennett, the Complaint alleges that she engaged in protected conduct "by being identified as a witness" to Meads's complaint of sexual harassment, and that "[defendants] cut Cynthia's work hours because of her protected activity." (Id.).

Unfortunately plaintiffs' testimony at the hearing did not do much to clarify their claims of retaliation. The record shows that Meads left employment as a result of the harassment, but there is no indication she was fired from her position in retaliation for reporting her claims of sexual harassment. She alleges that she was shorted on wages andtips, but it is not clear from either the...