Farsakian v. Kent

Aimee Farsakian, Plaintiff, v. David Kent, et al., Defendants.

No. CV-20-00141-PHX-MTL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

October 28, 2020

ORDER

Plaintiff Aimee Farsakian moves for default judgment against Defendants David Kent, D.O. ("Dr. Kent"), Phoenix Sands Surgical Associates, PLLC ("Phoenix Sands"), Renew Medical Management, LLC ("Renew Medical"), Quantum Ventures Holdings, LLC ("Quantum Holdings"), Quantum Ventures, LLC ("Quantum Ventures"), and Quantum Business Solutions, LLC ("Quantum Business") (collectively, "Defendants"), pursuant to Fed. R. Civ. P. 55(b)(2). Defendants have not appeared or filed any responses. For the reasons discussed below, the motions for default judgment are granted; Ms. Farsakian is awarded $735,067.53 in damages.

I. BACKGROUND

Ms. Farsakian filed her original Complaint on January 20, 2020. (Doc. 1.) She filed a First Amended Complaint ("FAC") on February 24, 2020. (Doc. 9.) The FAC asserts six claims against all defendants: (1) hostile work environment under Title VII, (42 U.S.C. § 2000(e-2)(a)); (2) retaliation under Title VII (42 U.S.C. § 2000(e-3)); (3) sexual harassment in violation of the Arizona Civil Rights Act ("ACRA") (A.R.S. § 41-1463); (4) retaliation in violation of ACRA; (5) violation of the Arizona Employment Protection Act ("AEPA") (A.R.S. § 23- 1501); and (6) intentional infliction of emotional distress ("IIED"). (Doc. 9.) Plaintiff has received Notices of Right to Sue for each charge from the EEOC. (Id. ¶ 27).

All facts alleged in the FAC (except as to damages) are assumed to be true. See Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). Around September 2018, Ms. Farsakian was hired by Phoenix Sands and Renew Medical as a sales representative. (Doc. 9 ¶ 10.) Quantum Venture Holdings, Quantum Ventures, and Quantum Business subsequently acquired and operated Phoenix Sands and Renew Medical. (Id. ¶ 12.) Collectively, the Quantum entities "employ over 500 people." (Id.) Dr. Kent is the owner, managing member, and medical director of Phoenix Sands and Renew Medical. (Id. ¶ 11.) He was Ms. Farsakian's supervising physician. (Id. ¶ 13.)

In December 2018, Dr. Kent texted Plaintiff "photographs of himself standing in front of a mirror, naked from the waist down, with a hand covering his genitals, or without a shirt on." (Id. ¶ 14.) Ms. Farsakian received "five such photographs" along with obscene text messages. (Id. ¶ 15.) Other sexual advances followed, as Dr. Kent telephoned "or FaceTimed" Plaintiff "twice a day for approximately three months." (Id. ¶¶ 16-17.) These "photographs, text messages, phone calls and offers were unwelcomed, unsolicited and continued for approximately four months." (Id. ¶ 18.) They made Ms. Farsakian "feel uncomfortable and caused her severe stress and fear of losing her job." (Id. ¶ 19). Dr. Kent "specifically indicated" to Ms. Farsakian that "it would be in [her] best interest" to see him or allow him to visit her, which she felt was "a threat to her employment with Defendants." (Id. ¶ 20.) Ms. Farsakian told Dr. Kent to "stop contacting her" at the end of March 2019. (Id. ¶ 21.)

While selling Defendants' "ezFIRM facial firming (lift) procedure" and "ez fill/fat Stem Cell transfer," Ms. Farsakian became aware of what she asserts are false claims regarding the use of stem cells in the treatments. (Id. ¶ 22.) On April 17, 2019, she "mentioned" to the Vice President of Marketing that she was "uncomfortable" with the"false and misleading" advertisements and representations. (Id. ¶ 23.) Ms. Farsakian alleges that because she reported Dr. Kent's sexual harassment and refused to continue making false and misleading representations, she was terminated on April 18, 2019. (Id. ¶ 25.)

All defendants were timely served with the Summons and FAC.¹ (Docs. 8, 10, 11, 12, 13 17.) Defendants have failed to file an answer, a motion to dismiss, or any other response. Upon Ms. Farsakian's application (Docs. 20, 22-25, 32), the Clerk of the Court entered default against each defendant. (Docs. 21, 26, 33.) Ms. Farsakian subsequently filed the pending motions for default judgment. (Docs. 27-31, 34.) No responses have been filed. The Court held a damages hearing on October 27, 2020. (Doc. 39.) Ms. Farsakian submitted a supplemental brief to the Court in advance of the hearing. It asserts that she seeks a total of $736,041.43 in damages. (Doc. 37.) Ms. Farsakian also submitted an affidavit and accompanying exhibits. (Doc. 37-1.)

II. LEGAL STANDARD

Once a default has been entered, the district court has discretion to grant default judgment. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The court may consider several factors, including (1) the possibility of prejudice to the plaintiff; (2) the merits of the claims; (3) the sufficiency of the complaint; (4) the amount of money at stake; (5) the possibility of a dispute concerning material facts; (6) whether default was due to excusable neglect; and (7) the strong policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In applying the Eitel factors, the factual allegations of a complaint, apart from damages, are taken as true. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). The moving party has the burden to prove all damages. Philip Morris USA, Inc. v. Castworld Prod., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003).

III. DISCUSSION

A. The first, fifth, sixth, and seventh Eitel factors

In a case such as this, where the defendants have not participated in the litigation, the "first, fifth, sixth, and seventh [Eitel] factors are easily addressed." Zekelman Indus. Inc. v. Marker, 2020 WL 1495210, *3 (D. Ariz. 2020). The first factor weighs in favor of default judgment because denying Plaintiff's motions will leave her "without other recourse for recovery." PepsiCo, Inc. v. Cal. Sec. Cans., 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). The fifth factor is satisfied. Because all well-pleaded facts in the FAC are taken as true, there is no "genuine dispute of material facts" that would preclude granting the motions. Id. Similarly, the sixth factor is satisfied; because Defendants were properly served, it is unlikely that their failure to answer was a result of excusable neglect. See Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1072 (D. Ariz. 2006). And while generally the seventh Eitel factor weighs against default judgement, the existence of Rule 55(b) "indicates that this preference, standing alone, is not dispositive." PepsiCo, 238 F. Supp. 2d at 1177. The Court finds that this factor is not sufficient to preclude the entry of default judgment.

B. The second and third Eitel factors

The second and third Eitel factors—the merits of the claim and the sufficiency of the complaint—are often "analyzed together and require courts to consider whether a plaintiff has stated a claim on which it may recover." Vietnam Reform Party v. Viet Tan - Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019). As described below, Plaintiff has adequately alleged each of her claims.

i. Hostile Work Environment (Title VII)

A "hostile work environment" occurs under Title VII when: (1) a plaintiff is subjected to verbal or physical conduct of a harassing nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016); Draper v.Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998). The harassment must be both subjectively and objectively abusive. Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527 (9th Cir.1995).

Here, taking the FAC's allegations as true, Ms. Farsakian claims that she was subject to unwarranted sexual advances for approximately four months, which left her "uncomfortable" and worried about losing her job. (Doc 9. ¶¶ 18-19.) She found this behavior abusive, and states that a reasonable person would have, as well. (Id. ¶ 35.) The Court, upon review of the photographs and text messages attached to Ms. Farsakian's affidavit, agrees. (Doc. 37-1.) Plaintiff has stated a claim that pervasive sexual harassment created a hostile work environment under Title VII.

ii. Retaliation (Title VII)

An employer has unlawfully retaliated against an employee under Title VII if it has discriminated against said employee for "oppos[ing] any practice made an unlawful employment practice." 42 U.S.C. § 2000(e-3)(a). The employment action must have been "materially adverse." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). A plaintiff must prove her case with but-for causation, proving that "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). Here, firing Ms. Farsakian was a materially adverse action. She has alleged that but for her reports of Dr. Kent's sexual harassment, she would not have been fired. (Doc. 9 ¶¶ 40-48.) Ms. Farsakian has stated a claim for retaliation under Title VII.

iii. Retaliation and Sexual Harassment (ACRA)

The ACRA is "'modeled after and is generally identical' to Title VII of the Civil Rights Act." Arizona ex rel. Horne, 816 F.3d at 1198 (citing Ariz. Civil Rights Div. v. Hughes Air Corp., 139 Ariz. 309, 678 P.2d 494, 497 (App.1983)). Accordingly, "federal Title VII case law [is] persuasive in the interpretation of [the ACRA]." Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (citation omitted). Because Ms. Farsakian has sufficiently pled claims for hostile work environment and retaliation under Title VII, shehas sufficiently pled her claims under the ACRA.² Ms. Farsakian is "not seeking monetary or other relief under the ACRA." (Doc. 37 at 6.)

iv. Retaliation (AEPA)

An employer...