Quintero v. Angels of the World, Inc.

REPORT AND RECOMMENDATION

ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:

In this employment-related action, plaintiff Sylvia Quintero (“plaintiff”) sues her former employers, defendants Angels of the World, Inc. (“Angels of the World”), and George Stoupas (“Stoupas”) (collectively, “defendants”), alleging claims for racial and sexual discrimination and retaliatory discharge under 42 U.S.C. § 1981 et seq. (“Section 1981”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”). See generally Complaint (Oct. 30, 2019) (“Compl.”), Electronic Case Filing (“ECF”) Docket Entry (“DE”) #1.^[1] Currently pending before this Court, on a referral from the Honorable Diane Gujarati, is plaintiff's motion for default judgment. See Motion for Default Judgment (Mar. 1, 2021) (“Mot. for Default J.”), DE #25; Order Referring Motion (Mar. 2, 2021).

For the reasons that follow, this Court recommends that the District Court grant plaintiff's motion for default judgment in large part as discussed below.

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BACKGROUND

On October 30, 2019, plaintiff commenced this action, asserting various causes of action arising out of her employment with defendants. See Compl. Plaintiff is an African-American woman who worked at defendants' “gentlemen's club” as an “Entertainer” or exotic dancer, from December 2014 to October 25, 2017. See id. ¶¶ 3 n.1, 9-11, 21. Plaintiff worked exclusively for tips and did not receive any wages from defendants. See id. ¶ 22. Defendants required plaintiff to pay them “housing fees, ” ranging from $80 to $300 per night, depending on the shift she worked. See id. ¶ 23.

In December 2015, defendants began to highlight the presence of bartenders, whom they called “Startenders, ” and instructed them to wear the same or similar types of attire as Entertainers, and to engage in stripteases and exotic nude dancing. See id. ¶ 25. The Startenders hired by defendants were exclusively Latina and lighter-skinned women, in contrast to plaintiff, and other Entertainers, who were darker-skinned African-American women. See id. ¶ 26. Plaintiff alleges that management began to feature the Startenders because defendants perceived lighter-skinned women to be more desirable to customers than darker-skinned women. See id. ¶ 27.

Although defendants directed customers to tip Startenders directly, they instructed customers that all tips for Entertainers must be thrown onto the stage, so that the money could be collected by defendants and redistributed to the Entertainers, and to other of defendants' employees, at defendants' discretion. See id. ¶ 28; see also id. ¶ 31. Plaintiff and other Entertainers were prohibited from meeting with customers in semi-private VIP areas, which were generally reserved for Startenders. See id. ¶ 29. Unlike the Entertainers, the Startenders were not required to pay a housing fee. See id. ¶ 32. Defendants designated the club's more popular nights as “Latina Nights, ” during which plaintiff was not permitted to work. See id. ¶ 33. Plaintiff further alleges

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that she was subjected to racial slurs by “defendants, ” but does not identify the managers or employees to whom she refers. See id. ¶ 34 (plaintiff and other darker-skinned Entertainers were called “Monkeys” and “Zoo Animals”).

In addition to the ongoing racial discrimination, defendants fostered an environment of sexual harassment and quid pro quo harassment by managers and promoters.^[2] See id. ¶ 36. Plaintiff was subjected to a pattern and practice of quid pro quo sexual harassment by the managers and promoters. See id. ¶ 39. Specifically, in 2017, defendant Stoupas, who managed the day-today operations of Angels of the World, began making sexually explicit comments and requests towards plaintiff. See id. ¶¶ 14, 44. Stoupas also “frequently directed Entertainers and Startenders downstairs to his private office to engage in sexual activities with him.” Id. ¶ 42. One promoter, known as “Strike Sinatra, ” sexually harassed plaintiff on a regular basis by demanding sexual favors from her via phone and text message. See id. ¶ 47. Other promoters also demanded that plaintiff have sex with them. See id. ¶ 48. Because plaintiff did not submit to these unwanted sexual advances, she received fewer and less lucrative shifts than other dancers, and therefore less compensation. See id. ¶ 49.

In October 2017, plaintiff began to speak publicly about defendants' racial discrimination towards the African-American Entertainers. See id. ¶¶ 35, 50. Plaintiff's advocacy started a movement designated as the “NYC Stripper Strike, ” which garnered significant media attention. See id. ¶ 50 & n.3. On or about October 24, 2017, a promoter known as “King Keno, ” who worked for defendants, created an Instagram page entitled “dancersarefried, ” in which King Keno, as well as other Angels of the World employees, posted comments describing plaintiff as

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“ignorant, ” “a fraud, ” a “fake bitch, ” insulted her appearance, shared offensive and altered images of plaintiff, and called for plaintiff's termination. See id. ¶¶ 52-53. On October 25, 2017, during a radio interview in which plaintiff discussed “defendants' racist treatment of their employees, ” id. ¶ 54, King Keno called in and denied plaintiff's allegations and continued his attacks against her on-air, see id. ¶ 55. As a result of defendants' alleged retaliation, plaintiff was afraid to return to work and was forced to quit. See id. ¶¶ 56, 57.

PROCEDURAL HISTORY

Plaintiff filed her Title VII charges with the Equal Employment Opportunity Commission (“EEOC”) on August 16, 2018, and was granted the right to sue on August 2, 2019. See id. ¶¶ 7-8. Plaintiff filed her federal complaint against defendants on October 30, 2019. See Compl. Plaintiff effected service on the corporate defendant through the New York Secretary of State on July 9, 2020, and served defendant Stoupas on June 29, 2020. See Summons Returned Executed (July 2, 2020), DE #13; Summons Returned Executed (July 14, 2020), DE #14. By Order dated October 28, 2020, after plaintiff failed to take any action beyond service of process, this Court directed plaintiff to show cause why the case should not be dismissed for lack of prosecution, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and for failure to effect timely service, pursuant to Rule 4(m). See Order to Show Cause (Oct. 28, 2020), DE #15. Although the Court found that plaintiff had not shown good cause for her delay, the Court exercised its discretion to extend the deadline for serving defendants, nunc pro tunc, to July 30, 2020. See Order (Nov. 5, 2020).

On December 7, 2020, plaintiff requested a certificate of default. See Request for Certificate of Default (Dec. 7, 2020), DE #23. The Clerk of Court noted defendants' default on December 14, 2020. See Clerk's Entry Of Default (Dec. 14, 2020), DE #24. On March 1, 2021,

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plaintiff moved for default judgment, see Mot. for Default J., and subsequently supplemented her motion at the Court's direction, see Letter Response (July 14, 2021) (“7/14/21 Letter”), DE #36. Counsel mailed defendants copies of plaintiff's motion for default judgment, see Affidavit of Service (Mar. 5, 2021), DE #28, and communicated with an attorney representing them in another matter, thereby ensuring that they had actual notice of this lawsuit, see Affirmation of Susan K. Crumiller (Mar. 1, 2021) (“Crumiller Aff.”) ¶¶ 9-17, DE #25-1 & Exs. A-F thereto. Defendants nevertheless have not responded to the motion.

DISCUSSION

I. Default Judgment Standard

After the Clerk of the District Court enters a Certificate of Default, the District Court may, on a plaintiff's application, enter a default judgment where a defendant “has failed to plead or otherwise defend” an action. See Fed R. Civ. P. 55(a), (b); see also S.D.N.Y./E.D.N.Y. Local Civ. R. 55.2(b). A defendant's default constitutes an admission of all well-pleaded factual allegations in the complaint except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Nevertheless, a pleading's legal conclusions are not assumed to be true, and, on a motion for default judgment, the factual allegations in the complaint must themselves be sufficient to establish a right to relief. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (district court is “required to determine whether the [plaintiff's] allegations establish [defendant's] liability as a matter of law”); Chen v. JP Standard Constr. Corp., 14-CV-1086 (MKB), 2016 WL 2909966, at *4 (E.D.N.Y. Mar. 18, 2016), adopted, 2016 WL 2758272 (E.D.N.Y. May 12, 2016). “When deciding a [defendant's liability on a] motion for default judgment, courts have also looked to recent

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precedent with regard to surviving a Rule 12(b)(6) motion to dismiss[.]” Chanel, Inc. v. Jean-Louis, No. 06-cv-5924 (ARR)(JO), 2009 WL 4639674, *3 (E.D.N.Y. Dec. 7, 2009).

If the allegations in the pleading properly state a claim, the plaintiff must then establish damages. See Greyhound Exhibitgroup, 973 F.2d at 158. It is within a court's discretion to determine whether the plaintiff's burden has been met, and whether or not to hold an evidentiary hearing on the issue of damages. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991); Fed.R.Civ.P. 55(b)(2). In this regard, the moving party is...