Niles v. Rich's Cafe, Cause No. 1:03-CV-205 (N.D. Ind. 10/10/2003)

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REBECCA M. NILES, Plaintiff, v. RICH'S CAFÉ, Defendant.

Cause No. 1:03-CV-205.

United States District Court, N.D. Indiana.

October 10, 2003.

REPORT AND RECOMMENDATION

ROGER COSBEY, Magistrate Judge.

I. INTRODUCTION

This is a case brought by the Plaintiff, Rebecca M. Niles (hereafter, "Niles"), and against her former employer, Rich's Cafe (hereafter, "Rich's") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k). Following the entry of a default by the Clerk against Rich's, the District Court Judge, Theresa L. Springmann, entered an order pursuant to 28 U.S.C. § 636(b)(1)(B), (C), and N.D. Ind. L.R. 72.1(d)(1), referring this case to the undersigned Magistrate Judge "to conduct a Damages Hearing . . . and any other necessary hearings and to submit a Report and Recommendation for the disposition of this cause." (See September 26, 2003 Order.)

In fact, by the time the Order of Reference was entered, a damages hearing had already been scheduled for October 2, 2003, at 1:00 P.M., with notice issuing to Rich's.

On that date, a damages hearing was held with Niles appearing in person, together with her counsel, Thomas O'Malley ("O'Malley"). Rich's failed to appear. Evidence was submitted, and following the argument of counsel the Court took the matter under advisement.

Having considered the argument and evidence, the undersigned Magistrate Judge makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a) based on a preponderance of the evidence, and accordingly recommends that a default judgment be entered in favor of Niles and against Rich's.

II. FINDINGS OF FACT¹

Niles was eighteen years old and five months pregnant when she started to work at Rich's on August 1, 2002. (Compl. ¶ 8.)² Nevertheless, despite her youth, Niles was already an experienced waitress, having worked at three other restaurants since she was sixteen, the most recent being Hall's Restaurant in Fort Wayne, Indiana, where she earned approximately $400 per week. After her employment at Hall's ended in July 2002, Niles learned about an opening for a waitress at one of Rich's restaurants,³ and applied, noting on her job application that she was pregnant. (Id. at Tf 9.) After meeting with the owner, Niles was hired to start on August 1, 2002. (Mat ¶ 8.)

Indeed, with already one small child and another on the way, Rich's looked like a good opportunity to Niles. After all, one of her co-workers at Hall's was now a waitress at Rich's and reported making a little more than she had previously earned at Hall's. Moreover, Hall's and Rich's are similar in size and character, so it is probable that Niles too would have made more at Rich's than she had at Hall's, and certainly no less than the $400 per week she had been earning.

In any event, Niles' first day on August 1, 2002, was largely uneventful, because she spent the entire eight hour shift shadowing another waitress. With encouragement from this trainer that she was "doing great," Niles felt her first day had been a success (Id. at ¶ 9), and expected the next day would be the last one she would need for training.

However, when Niles arrived to work at 7:00 a.m. the next morning, the acting manager told her in the presence of other employees that she was being fired on instructions from Rich, the restaurant's owner, because he had not realized she was pregnant when he hired her. (Compl. ¶¶ 10, 17.) As it was related to Niles, and apparently as Rich related it to the acting manager, he did not want employees who would require long leaves of absence and therefore "did not need the inconvenience" of a pregnant employee.⁴

Niles testified convincingly about the embarrassment and humiliation she suffered surrounding the fact and manner of her termination. As observed on the witness stand, it is apparent from her demeanor that she still feels anguish from being fired in public, ostensibly for no other reason than that her protected status made her a potential "inconvenience" to Rich's. She also had to endure the humiliation of being fired under the curious gazes of her fellow employees. Moreover, because she was and remains the sole support for her children, Niles was "devastated" and felt "terrible" about losing a job she clearly could perform, and her resulting economic uncertainty led to "a lot of crying" and "loss of sleep."

Two months later, in October 2002, Niles, now approximately seven months pregnant, was hired to work at a Citgo truck plaza. However, this position, which required some occasional heavy lifting, was much more physically demanding than a waitress job. Niles was ultimately unable to perform her assigned tasks because of the strain they put on her pregnancy, and she quit working at the truck plaza after a few weeks, earning overall $1,577.

After leaving her truck plaza job, Niles was forced to go on public assistance for the first time in her life, an experience she credibly described as embarrassing and humiliating. Moreover, because these payments were much less than the $400 per week Niles likely would have earned at Rich's, she could not provide all the Christmas gifts and other holiday experiences she had hoped to supply for her children.

Niles ultimately gave birth to her second child on December 17, 2003. After a short recuperation at home, she attempted to reenter the workforce in March 2003, but could not find a job until she was able to land one at Bandido's Restaurant in April 2003, as a waitress.

Had Niles remained employed at Rich's, it is likely she would have worked full-time until the delivery of her child on December 17, 2002,⁵ and also would have been able to resume work at Rich's in March 2003. Thus, Rich's decision to terminate Niles caused her to miss eighteen weeks of work before delivery, and five weeks after, for a total of twenty-three weeks, resulting in a gross wage loss from her termination in the amount of $9200 (23 weeks x $4007 week = $9200). Therefore, after the $1577 in mitigation from the truck plaza job is subtracted, her net lost back pay amounts to $7623.

As for Niles's claim of emotional distress, it was obvious from her testimony that the public firing, the economic uncertainty that resulted, the having to settle for a job beyond her physical abilities, and being forced onto public assistance as the Christmas holiday approached, all contributed to an almost palpable sense of anxiety, as manifested in her crying, depression and sleeplessness. For having to go through these experiences, Niles seeks an appropriate, indeed modest, amount of damages. Upon inquiry, and as she noted in her Proposed Findings of Fact and Conclusions of Law, Niles maintains that $15,000 is an appropriate amount in compensation for the emotional injuries she suffered as a result of her unlawful termination. (See Proposed Findings of Fact and Conclusions of Law ¶ 17.) This amount is clearly reasonable by almost any standard, but as discussed more fully infra, certainly reasonable when placed within the context of other emotional distress awards.

Finally, Niles secured the services of counsel to prosecute her claim. Accordingly, she requests an award of attorney's fees in the amount of $2722.38. However, attorney's fees are not available to her, as discussed more fully infra.

III. CONCLUSIONS OF LAW⁶

The Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. § 1331 in that Niles asserts a claim arising under a federal statute, namely, Title YE of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the PDA, 42 U.S.C. § 2000e(k).

A. Liability

The Court first considers whether a default judgment should be entered against Rich's on Niles's charge of pregnancy discrimination. When a defendant defaults, the factual allegations of the complaint, except those relating to the amount of damages, Di Mucci, 879 F.2d at 1497, are taken as true and can no longer be contested. Black, 22 F.3d at 1399. Practically, this means that the defendant will usually be liable to the plaintiff for each cause of action alleged in the complaint. Di Mucci, 879 F.2d at 1497. Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2688 (1998) (hereinafter Wright & Miller); see Black, 22 F.3d at 1399 ("The entry of a default order does not, however, preclude a party from challenging the sufficiency of the complaint"). Thus, the Court must decide if the factual allegations of Niles's complaint entitle her to a default judgment.

Title VII makes it unlawful for an "employer" to "discharge any individual . . . because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1).⁷ In 1978, Congress amended Title VII's prohibition on sex discrimination with the PDA to include discrimination on the basis of pregnancy. See Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 722 (7th Cir. 1998). More particularly, the amendment provides that "women affected by pregnancy, childbirth, or related medical condition shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k); see Kennedy, 140 F.3d at 722. "An unlawful employment practice is established whenever pregnancy is a motivating factor for an adverse employment decision." Kennedy, 140 F.3d at 722, citing 42 U.S.C. § 2000e-2(m); see also Maldonado v. U.S. Bank, 186 F.3d 759, 763 (7th Cir. 1999).

Evidence of discrimination maybe direct or circumstantial. Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999). Direct evidence typically "relate[s] to the motivation of the decisionmaker...