Opinion
Case No. 2:20-cv-01201-PLD
04-20-2021
JOSEPH CARBISIERO, Plaintiff, v. SOUTHWEST HOTEL MANAGEMENT, Defendant.
Electronically Filed REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that Plaintiff's Motion for Default Judgment on Liability and Damages be granted.
II. Report
A. Procedural History
Plaintiff Joseph Carbisiero commenced this action against Defendant Southwest Hotel Management ("SHM") on August 13, 2020. His Complaint asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq.
As reflected on the docket, SHM was served with a summons and the Complaint on October 11, 2020 (ECF No. 5). However, it failed to timely file an answer or responsive pleading or seek an extension of time to do so. Thereafter, on November 15, 2020, Plaintiff moved for entry of default (ECF No. 6), and the Clerk of Court entered default on November 16, 2020. (ECF No. 7). Plaintiff represents that he served notice of entry of default on SHM the same day via regular mail. Since then, SHM has neither moved to lift the default nor otherwise responded.
Plaintiff then moved for a default judgment against SHM (ECF No. 8) and a hearing on this motion was scheduled for April 16, 2021. Notice to SHM of the date and time of the hearing, as well as the necessary video conference instructions, was mailed to SHM at its address of record by the Court.
An evidentiary hearing on Plaintiff's motion was conducted on April 16, 2021. Plaintiff testified at the hearing and various supporting documents were offered and admitted into evidence.
These facts are derived from the Complaint, Plaintiff's sworn testimony and his Declaration, which was admitted into evidence as Exhibit "F." --------
The following facts are uncontroverted. Plaintiff was employed by SHM as Chief Engineer from August 2015 through August 23, 2018, when he was terminated. He testified that during his employment with SHM, he performed his duties to the best of his ability. Starting in early 2018, the Director of Sales, Christie Girstner, subjected him to an unwelcome sexually hostile work environment. The sexual comments, gestures and unwanted sexual comments are detailed in the Complaint. See Complaint, ¶ 14(a) through (l). While Plaintiff approached management frequently to report Ms. Girstner's harassment, management failed to take any action to address his concerns and the harassment continued. He was also subjected to heightened scrutiny. Ultimately, Plaintiff was falsely accused of theft and based upon this pretext, was terminated. In reality, he was fired because of his gender and in retaliation for his raising complaints about sexual harassment.
During his last full year of his employment with SHM, Plaintiff earned $42,895.00. This is reflected in his W-2 (see Exhibit B). After he was terminated, Plaintiff sought other employment and was employed at various times in 2018, 2019 and 2020. He also received unemployment compensation at certain times in 2019 and 2020. See Exhibits C, D and E. His total wage loss through 2020 was $35,131.00. See Exhibit A.
C. Standard of Review
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331. A district court may enter default judgment against a party when a default has been entered by the Clerk of Court. Fed. R. Civ. P. 55(b)(2). Entry of default judgment is a matter within the sound discretion of the court. Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
Three factors are examined in determining whether to grant a default judgment: prejudice to the plaintiff if default is denied; whether the defendant appears to have a litigable defense; and whether the defendant's delay is due to culpable conduct. Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). Once a default judgment is entered, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) (citations omitted). See also Stout Street Funding LLC v. Johnson, 2014 WL 5591043 *2 (E.D. Pa. Nov. 4, 2014).
D. Discussion
1. Liability
SHM did not answer or otherwise respond to the Complaint in this action or appear at the hearing to context Plaintiff's evidence. Therefore, all of the facts in the Complaint are deemed as admitted and true. Comdyne I, Inc. v. Corbin, supra. Moreover, Plaintiff's testimony at the hearing was credible.
Plaintiff is male and protected against harassment and discrimination on the basis of his gender under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He was qualified for his position at SHM and was harassed in the workplace due to his gender. He was retaliated against and ultimately terminated for complaining that he was subject to harassment. Based upon this evidence, SHM is liable to Plaintiff for violating his rights to be free from employment discrimination and retaliation based on his gender.
The Court will next turn to the three factors that must be examined in order to determine whether to grant a default judgment. Chamberlain, 210 F.3d at 164. A review of these factors supports the entry of a default judgment in favor of the Plaintiff.
First, Plaintiff will be prejudiced if default is denied. SHM failed to appear or respond despite being served with the Complaint, the request for entry of default and the hearing notice. Second, the well-pleaded claims in the Complaint, as well as the evidence presented at the hearing, suggest that SHM does not have a litigable defense. Simply stated, SHM subjected Plaintiff to harassment in the workplace because of his gender and retaliated against him for making complaints about sexual harassment, ultimately terminating him in retaliation for reporting the harassing conduct. Finally, given that SHM was served and failed to respond in any manner, it must be concluded that its default is due to culpable conduct.
Therefore, the Court concludes that a default judgment as to liability should be entered in this case in favor of the Plaintiff. The Complaint was served upon SHM, it failed to appear and a default was entered against it by the Clerk of Court. In addition, the facts pleaded in the Complaint and the testimony and evidence presented at the hearing are sufficient to demonstrate liability under Title VII. Accordingly, the Court will now turn to the amount of damages claimed by Plaintiff.
2. Damages
As Plaintiff notes, "the chief remedial purpose of employment discrimination statutes such as Title VII is 'to make persons whole for injuries suffered on account of unlawful employment discrimination.' Eshelman v. Agere Sys., Inc., 554 F.3d 426, 440 (3d Cir. 2009) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)."
Here, Plaintiff seeks back pay as damages for SHM's conduct. Back pay is "determined by computing the 'difference between the actual wages earned and the wages the individual would have earned in the position that, but for the discrimination, the individual would have attained.'" Linhart v. Zitelli & Brodland, P.C., 2011 WL 4971729 at * 13 (W.D. Pa. Oct. 19, 2011) (citation omitted). See also Robinson v. SEPTA, 982 F.2d 892, 899 (3d Cir. 1993).
Plaintiff is claiming wage loss from August 24, 2018 through December 31, 2020 in the amount of $35,382.00. Based upon the evidence presented, he is entitled to back pay in the amount of $35,382.00.
Title VII also allows for a prevailing party to obtain an award of reasonable attorneys' fees and litigation costs. Plaintiff is a prevailing party because he has succeeded on his claims by virtue of a default judgment being entered against SHM on liability.
The lodestar approach is appropriately used to examine the reasonableness of total billings in this matter. See Student Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1995). This is the product of the hours reasonably expended and the hourly billing rate for the legal services rendered. Id; see also Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983).
Counsel for Plaintiff has submitted a sworn Declaration (see Exhibit H) in which he outlines, among other things, his experience in handling employment cases as well as the number of hours he has spent on this case through the date of the declaration. He has provided detailed time records detailing all of the work performed. Exhibit I provided a detailed summary of all of the work performed, including the tasks performed, the date of the work, and the amount of time spent on each such task. The number of hours that counsel has expended is 28.5 hours. He further avers that his hourly rate is $400.00 per hour, a reasonable rate in this jurisdiction for an attorney with nearly thirty years of experience. As reflected in Exhibit I, the fees that have been incurred total $11,400.00.
As required, the Court has reviewed each billing entry, including the nature of the service performed, the time spent in doing so and the hourly rate for all such services. Based upon this review, the Court concludes that the work performed, the time spent working on this case and the hourly rate for such services were reasonable and appropriate.
Finally, Plaintiff is also entitled to recover the litigation expenses incurred by his counsel. As reflected in Exhibit J, these expenses include a filing fee of $400.00 and services costs of $592.00, totaling $992.00.
Thus, the total damages to which Plaintiff is entitled is $47,774.00.
E. Conclusion
Based on the foregoing, it is respectfully recommended that Plaintiff is entitled to a default judgment against Defendant Southwest Hotel Management and an award of damages consisting of back pay, attorneys' fees and costs in the total amount of $47,774.00.
Litigants who wish to challenge this Report and Recommendation must seek review by the district judge by filing objections by May 4, 2021. Failure to file timely objections will waive the right of appeal. April 20, 2021
s/ Patricia L Dodge
PATRICIA L DODGE
UNITED STATES MAGISTRATE JUDGE cc: SOUTHWEST HOTEL MANAGEMENT
101 Gosai Drive
Bentleyville, PA
15314