Opinion
Civil Action No. 00-2067-KHV
May 10, 2001
MEMORANDUM AND ORDER
Plaintiff brings suit against Wesley Health Services f/k/a Hunter Care, Inc. d/b/a/ Friendship Manor of Anthony, Kansas, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended. On March 8, 2001, Magistrate Judge David J. Waxse recommended that the Court enter default judgment against defendant. See Report And Recommendation (Doc. #29) filed March 8, 2001. On April 3, 2001, the Court adopted the recommendation and heard plaintiff's evidence on damages. See Clerk's Courtroom Minute Sheet (Doc. #31) filed April 3, 2001.
Defendant appeared in the case but failed to obtain substitute counsel after original counsel withdrew.
The case was scheduled for trial on April 3, 2001. See Scheduling Order (Doc. #14) filed July 17, 2001. Defendant had notice of the trial date but did not appear. At the hearing, plaintiff waived any right to a jury trial and asked the Court to decide damages. See Clerk's Courtroom Minute Sheet (Doc. #31).
Plaintiff asks the Court to award damages in a greater amount than she demands in the complaint. Specifically, plaintiff requests the Court to enter judgment in the amount of damages which she alleges in the body of her complaint: $40,000 in back pay, $60,000 in front pay, $300,000 for emotional pain and suffering, $147,000 in attorney's fees and $75,000 for future medical costs. See Complaint (Doc. #1) filed February 9, 2000, at ¶ 11. In the prayer for relief, however, plaintiff demands damages "in the amount of $75,000, plus interest and attorney fees, and other such relief as the Court deems fair, just and equitable." Complaint at 3.
The record is unclear why the amount of damages which plaintiff alleges in the body of the complaint is different than the amount which she demands in the prayer for relief. Plaintiff has not requested leave to file an amended complaint, however, in compliance with D. Kan. Rule 15.1(b).
Rule 54(c), Fed.R.Civ.P., limits the amount of damages which plaintiff may recover on default to the amount which she claims in the prayer for relief in the complaint. Specifically, Rule 54(c) states that "[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." The purpose of the rule is to provide defendant due process with respect to the amount of damages. See 10 Moore's Federal Practice § 54.71 at 54-127 (Matthew Bender 3d ed.). If plaintiff had demanded greater relief, defendant might have chosen to defend the action on the merits; thus it would be unjust to award by default relief greater than that which plaintiff demanded in the pleadings. See id.; see also Anunciation v. West Capital Fin. Servs. Corp., 97 F.3d 1458, 1996 WL 534049, *3, No. 95-15845 (9th Cir. Sept. 19, 1996).
Plaintiff asks the Court to use its discretion to enter judgment in accordance with the evidence presented at the hearing. Plaintiff cites no authority, however, for her claim that the Court possesses such discretion. Some courts have allowed such an amendment where defendant was present at the damages hearing or where plaintiff has served notice of the proposed amendment on defendant. See Fong v. United States, 300 F.2d 400, 412 (9th Cir. 1962) (court may allow amendment to prayer for relief when defendant appears at default hearing); Peitzman v. City of Illmo, 141 F.2d 956, 962 (8th Cir. 1944) (same); Appleton Elec. Co. v. Graves Truck Line, Inc., 635 F.2d 603, 610 (7th Cir. 1980) (allowing amendment where plaintiff served proposed default order on defendant). Neither circumstance exists in this case. On this record, plaintiff's damages are limited to the amount which she demanded in her prayer for relief. See, e.g., O'Brien v. Sage Group, Inc., 141 F.R.D. 81, 87-88 (N.D.Ill. 1992); Marina B Creation S.A. v. de Maurier, 685 F. Supp. 910, 912-13 (S.D.N Y 1988). Thus plaintiff may recover only $75,000 plus interest, attorney's fees and equitable relief.
The only authority which plaintiff cites is United States v. Hougham, 364 U.S. 310 (1960), which provides the standards for granting leave to amend pleadings under Rule 15, Fed.R.Civ.P. As noted, however, plaintiff has not requested leave to file an amended complaint.
With respect to attorney's fees, plaintiff should follow the procedure set forth in Rule 54(d)(2), Fed.R.Civ.P. and D. Kan. Rule 54.2.
Because defendant is in default, the Court accepts as true the factual allegations in plaintiff's complaint except those relating to damages. See Beck v. Atlantic Contracting Co., 157 F.R.D. 61, 64 (D.Kan. 1994). Thus the Court accepts as true the following allegations. From May 8, 1998 through May 16, 1998, Emilo Lymon, plaintiff's supervisor, sexually assaulted plaintiff multiple times. See Complaint ¶ 6. Following the assaults, Lymon intimidated plaintiff to prevent her from reporting the assaults. See id. ¶ 7. In August 1998, plaintiff reported the sexual assaults and other sexual harassment to defendant. See id. ¶ 8. Defendant terminated plaintiff's employment because she reported the conduct. See id. ¶ 9. Based on these allegations, the Court concludes that defendant is liable under Title VII. See, e.g., Desmarteau v. City of Wichita, Kan., 64 F. Supp.2d 1067, 1076-78 (D.Kan. 1999).
Title VII allows compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses. See 42 U.S.C. § 1981a (b)(3). The amount of compensatory damages which plaintiff may recover depends on the number of defendant's employees. See id. Plaintiff testified that defendant has at least 300 employees. Thus plaintiff cannot recover more than $200,000 in compensatory damages. See 42 U.S.C. § 1981a(b)(3)(C). Plaintiff and her husband testified that plaintiff has suffered substantial physical, emotional and psychological harm as a result of defendant's conduct. Based on this testimony and plaintiff's prayer for relief, the Court awards $75,000 in compensatory damages.
Section 1981a(b)(3)(C) limits the sum of compensatory and punitive damages to $200,000 against a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year. Plaintiff does not request punitive damages.
In addition to compensatory damages, Title VII allows equitable relief, which includes back pay and front pay. See Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 556 (10th Cir. 1999), cert. denied, 528 U.S. 813 (citing 42 U.S.C. § 1981a(b)(2) and 2000e-5(g)). The Court has discretion to award back pay and front pay. See Daneshvar v. Graphic Technology, Inc., 40 F. Supp.2d 1225, 1239-41 (D.Kan. 1998). Back pay covers the time period from termination until the time of judgment, and front pay compensates for future earnings loss after the time of judgment. See id.; see also Pitre v. Western Elec. Co., 843 F.2d 1262, 1278 (10th Cir. 1988) (front pay intended to compensate for continuing future effects of discrimination until victim can be made whole). Plaintiff earned $17,000 a year when she worked for defendant. She requests $40,000 in back pay and $60,000 in front pay. Plaintiff testified that she has been unable to work for three years, and that she still cannot to return to work. The Court calculates that from August 1998 to the present, plaintiff would have earned approximately $45,344. Thus the Court will award the $40,000 in back pay which plaintiff requests. Plaintiff requests front pay in the amount of $60,000, which would compensate plaintiff at her salary of $17,000 for the next three and half years. While the Court sympathizes with plaintiff's difficulty coping with defendant's conduct, her request for front pay is excessive. Given the passage of time, it is reasonable to expect plaintiff to put this matter behind her and move forward. The Court will award plaintiff front pay for three months in the amount of $4,250.
The general request for equitable relief in plaintiff's prayer for damages is sufficient to give defendant reasonable notice of the potential amounts of back pay and front pay which are at stake in this case. See, e.g., Anunciation, 1996 WL 534049 at *3.
At $17,000 a year, plaintiff's monthly income would have been approximately $1,417 ($17,000/12 = $1,416.67). Approximately 32 months have lapsed from August 1998, which amounts to $45,344 in lost income (32 x $1,417 = $45,344).
Because the amount which plaintiff would have earned to date is greater than $40,000, the Court will not subtract the $250 which plaintiff made when she attempted to work part time at a bath and body store.
IT IS THEREFORE ORDERED that the Clerk enter judgment against defendant in the amounts of $75,000 in compensatory damages, $40,000 in back pay and $4,250 in front pay. Interest shall accrue post judgment at the statutory rate.