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Townley v. The Servicemaster Company, LLC

United States District Court, D. Kansas

October 25, 2017




         This matter comes before the court on plaintiff's Motions for Default Judgment against defendants The Servicemaster Company, LLC (“Servicemaster”) and Terminix d/b/a Schendel Pest Services. Docs. 12 & 13. The court held a hearing on these motions on October 17, 2017. Plaintiff testified at the hearing and presented other evidence. Plaintiff asked the court to enter default judgment against defendants on her Title VII claims for sex discrimination and retaliation. Plaintiff also made a damage request at the hearing, asking the court to award her damages for lost wages, front pay, emotional distress, and punitive damages.

         After carefully considering the evidence adduced at the October 17, 2017 hearing and plaintiff's submissions, the court grants plaintiff's Motions for Default Judgment against both defendants and awards $29, 261.68 for back pay damages, $86, 400 for front pay damages, $50, 000 for emotional distress damages, and $100, 000 for punitive damages. The court explains how it reaches this decision below.

         I. Procedural Background

         Plaintiff Marjorie Townley, a former employee of defendants, filed this employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., alleging sex discrimination and retaliation. Doc. 1. Her Complaint alleges that defendants employed her as a District Sales Manager in the Lenexa, Kansas office from about April 3, 2016, until her termination in mid-February 2017. The Complaint also alleges that plaintiff experienced sex discrimination and harassment throughout her employment, she complained about sex discrimination and harassment to defendants about 20 to 30 times during her employment, defendants never addressed plaintiff's complaints, and defendants terminated plaintiff's employment to retaliate against her for complaining about sex discrimination and harassment. Plaintiff's Complaint seeks compensatory and punitive damages, costs and attorney's fees, and such other relief as the court deems just and proper.

         Plaintiff served defendant Terminix d/b/a Schendel Pest Services at its business address in Lenexa, Kansas, on August 1, 2017, as noted on the return of service filed with the court. Doc. 3. Plaintiff served defendant Servicemaster by serving its registered agent in Knoxville, Tennessee, on August 2, 2017, as noted on the return of service filed with the court. Doc. 4.

         On September 14, 2017, plaintiff filed Applications for Clerk's Entry of Default against defendants (Docs. 8 & 9) because neither defendant had filed an Answer after plaintiff served them with the summons and Complaint. The Clerk of the Court entered default against both defendants on September 15, 2017 (Docs. 10 & 11). To date, neither defendant has answered this lawsuit. Both defendants, thus, are in default.

         Also, neither defendant has appeared personally or by a representative at any time in this case. Thus, written notice of the application for default to defendants is not required. See Fed. R. Civ. P. 55(b)(2) (requiring seven days' notice of the application for default judgment only when “the party against whom a default judgment is sought has appeared personally or by representative”); see also Winfield Assocs., Inc. v. Stonecipher, 429 F.2d 1087, 1091 (10th Cir. 1970) (denying relief from a default judgment entered by a district court in Illinois without notice to defendant because the Illinois court concluded that defendant had not entered an appearance in the case); Local Union No. 226 Int'l Bhd. of Elec. Workers Open End Pension Tr. Fund v. Flowers Elec., Inc., No. Civ. A. 04-2237-CM, 2004 WL 2278562, at *1 (D. Kan. July 23, 2004) (holding that defendant's acceptance of service was not an appearance for purposes of Rule 55(b)(2), and thus concluding that no written notice of the motion for default judgment was required because defendant had not appeared in the action).

         II. Legal Standard

         Federal Rule of Civil Procedure 55 provides a two-step process for securing a default judgment. First, Rule 55(a) allows the Clerk to enter default against a party who “has failed to plead or otherwise defend” a lawsuit. Second, after the Clerk enters default, plaintiff may request the Clerk to enter judgment in an amount that is “a sum certain or a sum that can be made certain by computation.” Fed.R.Civ.P. 55(b)(1). But, when a plaintiff's claim is not for a sum certain or a sum made certain by calculation, plaintiff must apply to the court for a default judgment under Rule 55(b)(2). When considering a motion for default judgment, the court may hold a hearing if “it needs to (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed.R.Civ.P. 55(b)(2).

         “Once the default is established, defendant has no further standing to contest the factual allegations of plaintiff's claim for relief.” Mathiason v. Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269, 1274 (D. Kan. 2016) (citations and internal quotation marks omitted). The court accepts as true the well-pleaded factual allegations from plaintiff's Complaint but not allegations about the amount of damages. Id.

         But, even after default, “‘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.'” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting 10A Charles A. Wright et al., Federal Practice and Procedure § 2688, at 63 (3d ed. 1998)). The district court exercises broad discretion when deciding whether to enter a default judgment. Mathiason, 187 F.Supp.3d at 1274.

         A default judgment also does not establish the amount of damages. Id. at 1274-75. Instead, “[p]laintiff must establish that the amount requested is reasonable under the circumstances.” Id. at 1275 (citing DeMarsh v. Tornado Innovations, LP, No. 08-2588-JWL, 2009 WL 3720180, at *2 (D. Kan. Nov. 4, 2009)). A court may award damages “‘only if the record adequately reflects the basis for [the] award via a hearing or a demonstration by detailed affidavits establishing the necessary facts.'” DeMarsh, 2009 WL 3720180, at *2 (quoting Adolph Coors Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (further citations and internal quotation marks omitted)).

         III. Findings of Fact

         The court finds that plaintiff is entitled to damages under Title VII, based on these facts, taken from plaintiff's Complaint and attached exhibits, as well as testimony and evidence presented at the October 17 hearing. Plaintiff testified at this hearing. Neither defendant appeared personally or by its representative at the hearing. Defendants thus presented no witnesses or evidence on their behalf. They also did not cross-examine plaintiff. The court found plaintiff's testimony credible and incorporates her testimony into the factual findings below.

         A. Facts Establishing Violations of Title VII

         Defendants employed plaintiff at an office located in Lenexa, Kansas, from April 4, 2016, to mid-February 2017. Plaintiff asserts that both defendants employed her. Plaintiff understands that Servicemaster owns defendant Terminix d/b/a Schendel Pest Services. Plaintiff testified that Servicemaster provided the employee handbook and Human Resources services during her employment. Servicemaster also issued plaintiff's paycheck. But, Terminix employed plaintiff's boss's bosses, and Terminix hosted all of the regional meetings that plaintiff attended. Also, plaintiff held a position with Schendel Pest Services, and she had business cards with that company name on them. Both Servicemaster and Terminix employ more than 500 employees.

         Plaintiff was the only female employed in the Lenexa office where she worked. During her employment, plaintiff experienced discriminatory and harassing comments based on her sex. Male coworkers told plaintiff that she was hired only for affirmative action, that she worked in a man's world, and that she was successful during walk-in visits with customers because she had certain assets that men don't have. On one occasion, plaintiff walked into a room for a meeting, and one of the male employees said, “Look, dessert just walked in.” He then asked the other men in the room, “Do you want to use a spoon or a fork?”

         Plaintiff also experienced different treatment than her male counterparts received. Plaintiff had a company car that was an older model and had more miles on it than any of the newer company vehicles her male coworkers received. Plaintiff also received less training and less profitable sales leads than those provided to the male employees.

         Plaintiff complained about 20 to 30 times about discrimination and harassment, but defendants never responded to her complaints. Plaintiff submitted three written complaints to Human Resources, and she made two Hotline complaints. Defendants ignored all of these complaints. Plaintiff's bosses laughed at her complaints and told her to lighten up. Plaintiff also complained to the Vice President of Human Resources with Servicemaster. But, the Vice President sent the ...

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