Gutierrez v. Robert Walker/President & CEO

MICHELLE GUTIERREZ, Plaintiff, v. ROBERT WALKER/PRESIDENT & CEO, Defendant.

Civ. No. 19-124 JCH/JFR

United States District Court, D. New Mexico

December 16, 2021

MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter is before the Court on the Motion for Default Judgment (ECF No. 99) filed by Plaintiff Michelle Gutierrez (“Plaintiff” or “Gutierrez”) on July 7, 2021. Plaintiff requests that the Court enter judgment against Defendant Robert Walker (“Walker”) for sex discrimination against Plaintiff in violation of Section 703(a) of Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 1981a; for retaliation against Plaintiff in violation of Title VII; for retaliatory discharge in violation of New Mexico tort law and for invasion of privacy -false light. (See Pl.'s Mot. 2, ECF No. 99). On August 26, 2021, this Court held a hearing on the motion by Zoom videoconference in which Plaintiff appeared through her attorney, R. Michael Hughes. Defendant Walker has not entered his appearance or otherwise answered this lawsuit. The Court, having considered the motion, the evidence, the testimony, the arguments of counsel, the applicable law, and otherwise being fully advised, will grant the motion in part and deny it in part. The Court will enter judgment for Plaintiff and against Defendant Walker on her claims for retaliatory discharge in violation of New Mexico tort law and for invasion of privacy - false light. The Court, however, will deny the motion to the extent Plaintiff seeks an entry of judgment on her Title VII claim against Defendant Walker because, as a matter of law, Title VII does not permit claims for individual liability against a person. Accordingly, the Court concludes that Defendant Walker is in default, the motion for default judgment should be granted, and judgment should be entered in favor of Plaintiff in the amount of $182, 000.00.

I. ALLEGATIONS IN PLAINTIFF'S AMENDED COMPLAINT

Defendant Jim Henning (“Henning”) was the founder and owner of United Restaurant and Hospitality Consultants, also known as United Restaurant Hospitality Group (“United”). (See Am. Compl. ¶¶ 4, ECF No. 77.) Walker was the President and CEO of United, which did business in New Mexico as Marcello's Chophouse, or Marcello's Chophouse, LLC (“Marcello's”). (Id.) Marcello's, United, Henning, and Walker did business as an integrated enterprise with common management by Henning, Walker, and United. (Id. ¶¶ 4-5.) Defendants employed Plaintiff at Marcello's. (Id. ¶ 14.)

Defendants sent Gutierrez to Peoria, Illinois, to train servers. (See id. ¶¶ 14-16.) When she arrived for this out-of-state training for servers, Gutierrez discovered she would be sharing a luxury cabin by the lake with Henning, Walker, and another male individual. (See id. ¶¶ 14-15.) While there, Walker made unusual comments to Gutierrez, flirted with her, drank copious amounts of alcohol, and encouraged her to drink with him. (Id. ¶ 17.) On November 5, 2015, Walker made unwanted sexual advances toward her by putting his head in her lap while they watched a football game, and he put his hands under her thighs. (Id. ¶ 19.) Gutierrez immediately got up and went to her room. (Id.)

On November 14, 2015, Walker drank a lot of alcohol, and after Gutierrez went to bed, he sexually assaulted her. (Id. ¶ 20.) She awoke to Walker grinding against her in his underwear. (Id.) She immediately pushed him out of her bed and ran out of the room, shaken and distraught. (Id. ¶ 21.) When she returned to her room, Walker was still there and made additional sexual advances towards her. (Id. ¶ 22.) She rebuffed him, told him to get out of her room, slammed the door in his face, and locked the door to keep him from coming back in. (Id.) The next day, Walker was still intoxicated when he went to work, and told Gutierrez that she should not tell anyone about his sexual assault the prior evening because it “would not be good for her position.” (Id. ¶ 23.)

Towards the end of November 2015, Gutierrez moved into a condominium closer to the restaurant in Peoria owned by one of the owners of the restaurant. (Id. ¶ 24.) When Walker returned to New Mexico for Thanksgiving, Henning came to Peoria to run operations at the restaurant. (Id. ¶ 25.) Henning asked Gutierrez if she would be interested in moving to Peoria permanently. (Id.)

On November 29, 2015, Henning told Gutierrez that she had to move out of her bedroom and sleep on the couch in the living room of the condominium. (Id. ¶ 26.) On December 8th, Walker stormed into Gutierrez's room in the middle of the night and made sexual overtures to her. (Id. ¶ 27.) She again rebuffed his advances and had to kick him out of her room. (Id.)

On December 10, 2015, Gutierrez first reported to upper management that Walker sexually assaulted her, and she was not the first female employee to report Walker for sexually inappropriate behavior. (Id. ¶ 29.) Walker began acting more erratically, accusing Gutierrez of not being committed to the restaurant, and becoming increasingly critical of her every move. (Id. ¶ 30.) On December 13th, Walker told her that she would be higher up in the company if she slept with him. (Id. ¶ 31.) The next day he tried to send her home to Albuquerque, but Henning talked him out of it, and Henning told Gutierrez to be a “good girl” and try to make Walker happy. (Id. ¶ 32.)

In the middle of December 2015, Gutierrez agreed to go home to New Mexico for a couple weeks. (Id. ¶ 33.) After returning to New Mexico, she met with Henning and Robert Noland, and Henning made unfounded accusations against her and her character, obviously from false information provided by Walker. (Id. ¶ 35.) Gutierrez informed them that Walker sexually assaulted her. (Id.) Henning screamed at her and threatened her that if she told anyone else about these accusations she would “definitely not have a job.” (Id. ¶ 36.) He said, however, that he would look into her allegations against Walker. (Id. ¶ 37.)

On January 8, 2016, Gutierrez again met with Henning and Mr. Noland. (Id. ¶ 38.) At that meeting, Henning terminated her employment. (Id.) Both Henning and Walker made false statements about the reasons for her termination that disparaged her character and conduct; statements that were highly offensive to a reasonable person and that gave her highly objectionable publicity. (Id. ¶¶ 70-72.)

II. PROCEDURAL BACKGROUND

Plaintiff filed suit against Defendants Marcello's, United, Henning, and Walker for Title VII sex discrimination (Count I), Title VII retaliation (Count III), Retaliatory Discharge (Count V), Invasion of Privacy - False Light (Count VII). Plaintiff seeks compensatory, statutory, and punitive damages. (See id. ¶¶ 67-68, 73-74.) Defendants Marcello's, Henning, and United filed Answers to the amended complaint. (See Answers, ECF Nos. 80 & 84.) The case subsequently settled with respect to all parties except Walker. (See Clerk's Minutes, ECF No. 93.)

A summons for Robert Walker was issued on May 3, 2021. (See Proof of Service, ECF No. 96 at 1 of 3.) On May 7, 2021, delivery of the summons was made by U.S. Post Service certified mail, with return receipt, on Robert Walker at his address in Cibolo, Texas. (See id. at 3 of 3.)^[1] According to the return receipt signed by the postal agent, the documents were received by “R Walker” on May 7, 2021. (Id.) The summons notified Walker to serve an answer or motion “on the plaintiff or plaintiff's attorney” with the listed name and address of plaintiff's counsel. (Id. at 2 of 3.) The summons further stated: “If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.” (Id.)

In a letter dated May 20, 2021, and signed by Robert Walker, Walker stated, “I have received your summons and I am responding to the allegations.” (Letter, ECF No. 103 at 5 of 5.) Walker then denied any unprofessional conduct towards Plaintiff, as described by the summons; stated he did not terminate her employment (although acknowledging he communicated her behaviors to Henning), and asserted he has never owned Marcello's or United. (Id.) Walker stated in the letter that he was including witness statements collected in United's original investigation. (Id.) Walker, however, has not filed an answer to Plaintiff's complaint or a motion with the Court, and the deadline to do so has long since passed.

On July 5, 2021, Plaintiff filed an application for default (ECF No. 97), and the next day, the Clerk entered default as to Robert Walker. (Entry of Default, ECF No. 98.)

III. LEGAL STANDARD

A party who defaults concedes the truth of the factual allegations in the complaint as establishing liability. See In re The Home Restaurants, Inc., 285 F.3d 111, 114 (1st Cir. 2002). By declining to participate in the judicial process, the non-responding party gives up his right to contest liability. Id. See also U.S. v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989) (“As a general rule, a default judgment establishes, as a matter of law, that defendants are liable to plaintiff as to each cause of action alleged in the complaint.”). Under Federal Rule of Civil Procedure 55(b)(2), the Court may conduct hearings when, to enter or effectuate judgment, it needs to conduct an accounting, determine the amount of damages, establish the truth of an allegation by evidence, or investigate any matter. Fed.R.Civ.P. 55(b)(2)(A)-(D).

Nevertheless a district court has discretion to deny default judgment when the plaintiff's claims clearly lack merit. See Pinaud v. Count of Suffolk, 52 F.3d 1139, 1152 n. 11 (2d Cir. 1995) (concluding that district court did not err in denying motion to default given large sum sought by plaintiff, disputable merits...