United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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).
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.”
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.
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.
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
Findings of Fact
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.
Facts Establishing Violations of Title VII
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.
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?”
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.
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