Joseph v. HDMJ Rest., Inc., 09–CV–0240 (JS)(AKT).

Decision Date09 September 2013
Docket NumberNo. 09–CV–0240 (JS)(AKT).,09–CV–0240 (JS)(AKT).
Citation970 F.Supp.2d 131
PartiesGermelia JOSEPH, Plaintiff, v. HDMJ RESTAURANT, INC., Defendant.
CourtU.S. District Court — Eastern District of New York

970 F.Supp.2d 131

Germelia JOSEPH, Plaintiff,
v.
HDMJ RESTAURANT, INC., Defendant.

No. 09–CV–0240 (JS)(AKT).

United States District Court,
E.D. New York.

Sept. 9, 2013.


[970 F.Supp.2d 137]


Edward Lee Sample, II, Esq., Frank & Associates, P.C., Farmingdale, NY, for Plaintiff.

No appearance for Defendant.


MEMORANDUM & ORDER

SEYBERT, District Judge:

Presently before the Court is Magistrate Judge A. Kathleen Tomlinson's Report and Recommendation (“R & R”), issued on August 19, 2013. For the following reasons, the Court ADOPTS this R & R in its entirety.

BACKGROUND

Plaintiff Germelia Joseph (“Plaintiff”) commenced this action on January 20, 2009, against HDMJ Restaurant, Inc. (“HDMJ”), George Athanasopoulos, Gus Athanasopoulos, and Peter Athanasopoulos (collectively, “Defendants”), asserting claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYHRL”), N.Y. Exec. Law. § 29, et seq., and New York Labor Law. In March 2009, Defendants filed motions to dismiss the Complaint (Docket Entries 8, 11), which were granted in part and denied in part by the Court on October 19, 2009 (Docket Entry 18). The Court granted the motions to the extent that they sought dismissal of Plaintiff's

[970 F.Supp.2d 138]

NYHRL and Labor Law claims as well as all claims against George, Gus, and Peter Athanasopoulos. The Court denied the motions to the extent that they sought the dismissal of the ADA and Title VII claims against HDMJ.

HDMJ did not file an answer to the Complaint. Rather, in July 2012, counsel for HDMJ sought leave to withdraw. (Docket Entry 31.) HDMJ's principle, Gus Athanasopoulos, did not oppose the request, and Judge Tomlinson granted the application on the record on August 2, 2012 (Docket Entry 34.) In granting the application, Judge Tomlinson warned Gus that a corporation cannot represent itself pro se and granted HDMJ thirty days to obtain new counsel. (Docket Entry 34.) Judge Tomlinson held a status conference on September 6, 2012. (Docket Entry 38.) No counsel appeared on behalf of HDMJ, and HDMJ's principles, Gus, George, Peter, and James Athanasopoulos, advised Judge Tomlinson that they had no intention of retaining new counsel.

On November 27, 2012, Plaintiff moved for an entry of default against HDMJ, which was entered by the Clerk of the Court on that same day. (Docket Entries 44–45). On December 5, 2012, Plaintiff moved for default judgment (Docket Entry 46), and on December 17, 2012, the Court referred Plaintiff's motion to Judge Tomlinson for an R & R (Docket Entry 47.)

Judge Tomlinson issued her R & R on August 19, 2013, recommending that Plaintiff's motion for default judgment be granted in part and denied in part: granted with respect to Plaintiff's Title VII claims and denied with respect to Plaintiff's ADA claims. She further recommended that damages be awarded to Plaintiff as follows: (1) $10,650.00 in back pay; (2) pre-judgment interest on the back pay running from December 12, 2005 at an annual rate of 3.37%, to be compounded annually; (3) $30,000.00 in compensatory damages; and (4) $4,371.75 in attorney's fees.

No party has objected to any portion of Judge Tomlinson's R & R.

DISCUSSION

In reviewing an R & R, a district court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). If no timely objections have been made, the “court need only satisfy itself that there is no clear error on the face of the record.” Urena v. New York, 160 F.Supp.2d 606, 609–10 (S.D.N.Y.2001) (internal quotation marks and citation omitted).

Here, no party has objected to Judge Tomlinson's R & R, and the Court finds it to be correct, comprehensive, well-reasoned and free of any clear error. Accordingly, the Court ADOPTS Judge Tomlinson's R & R in its entirety.

CONCLUSION

Judge Tomlinson's R & R is ADOPTED in its entirety, and Plaintiff's motion for a default judgment against HDMJ is GRANTED IN PART. It is hereby ORDERED that judgment be entered on Plaintiff's Title VII claims against HDMJ in the amount of: (1) $10,650.00 in back pay, plus pre-judgment interest running from December 12, 2005 through the entry of judgment at an annual rate of 3.37%, to be compounded annually; (2) $30,000.00 in compensatory damages; and (3) $4,371.75 in attorney's fees. It is further ORDERED that Plaintiff's ADA claims are DISMISSED WITH PREJUDICE.

The Clerk of the Court is directed to enter judgment consistent with this Memorandum and Order and to mark this matter CLOSED.

SO ORDERED.

[970 F.Supp.2d 139]

REPORT AND RECOMMENDATION
A. KATHLEEN TOMLINSON, United States Magistrate Judge:
I. Preliminary Statement

Plaintiff Germelia Joseph brings this action against Defendant HDMJ Restaurant, Inc. (“Defendant” or “HDMJ”), seeking redress for violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq. (“ADA”) and Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. § 2000e et seq. On December 5, 2012, Plaintiff moved for a default judgment against the Defendant. DE 46. By Order dated December 17, 2012, Judge Seybert referred Plaintiff's motion to this Court for a Report and Recommendation as to whether Plaintiff has demonstrated that the allegations in the Complaint establish Defendant's liability such that the motion for default should be granted, and if so, what damages, costs, and/or fees, if any, should be awarded. See Electronic Order, Dec. 17, 2012.

II. Pertinent Facts

Plaintiff is a black female of Haitian national origin. Compl. at 6. Plaintiff was employed as a waitress at HDMJ Restaurant, operated by Defendant HDMJ, from at least March 2004 until January 23, 2006. Compl. at 3, 6, 10. HDMJ Restaurant is owned by former defendants George Athanasopoulos (“George”), Gus Athanosopoulos (“Gus”), and Peter Athanasopoulos (“Peter”) (collectively, the “Owners”). Compl. at 7. At all times relevant to the Complaint, George was Plaintiff's supervisor. Compl. at 1. Defendant employs more than 15 employees. Compl. at 1.

During Plaintiff's course of employment, the Owners insulted and abused Plaintiff on numerous occasions. Compl. at 3, 8–10. George constantly cursed at Plaintiff, calling her a “f*****g bitch”, “n****r” and “malvos.” Compl. at 8.1 Further, the Owners repeatedly asked Plaintiff to perform oral sex on them. Compl. at 8–9. Gus demanded oral sex from Plaintiff on numerous occasions. Compl. at 8. On one occasion, Gus called Plaintiff into the kitchen and told Plaintiff to “feel him” because he was not wearing any underwear and he wanted Plaintiff to give him a “blow job.” Id. Peter spoke frequently about “what he did with his girlfriend” and how much he liked the “blow jobs.” Id. One day Peter pulled a knife from his belt pocket and told Plaintiff, “look this is the knife I use to cut the throats of waitresses who refuse to give me a blow job.” Compl. at 8–9. On numerous occasions, George grabbed his crotch and would tell Plaintiff “here, suck my dick.” Compl. at 8. When Plaintiff complained about this behavior to Gus he said it was a “joke for n****rs.” Id. Once, a busboy asked Plaintiff to perform oral sex on him. Compl. at 9 Plaintiff reported the behavior to Gus, but instead of reprimanding the busboy, Gus sent Plaintiff home and did not permit her to return to work for 12 days. Id.

In February 2005, Plaintiff suffered a knee injury in a car accident. Compl. at 9. The Owners were aware of Plaintiff's accident and that she had surgery on her knee. Id. On January 22, 2006, Plaintiff was not being assigned any tables to serve. Id. When Plaintiff asked Peter why she was not being assigned any tables, he said that white girls were supposed to make more money than foreign blacks. Id. He

[970 F.Supp.2d 140]

then became angry and pulled Plaintiff down a flight of stairs to curse and yell at her. Id. Plaintiff was limping and when Peter grabbed her she told him that she could not go down the stairs. Id. Peter responded, saying that he did not “give a f**k” and did not care that Plaintiff was hurt. Id. Peter stated that it was his “f*****g business and he could do whatever the f***he wanted.” Id. Plaintiff complained to Gus about this incident but no action was taken on Plaintiff's behalf. Id. However, the following day, on January 23, 2006, George fired Plaintiff. Compl. at 10. George told Plaintiff that Gus had informed him of her complaint against Peter and that George no longer wanted her there. Compl. at 10. Plaintiff alleges damages as a result of the foregoing incidents. Compl. at 7.

III. Procedural History

Plaintiff, proceeding pro se, filed her Complaint on January 20, 2009 against HDMJ and the Owners alleging race, color, national origin, sex and disability discrimination under the ADA and Title VII, as well as state law claims under the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. (“NYSHRL”), and N.Y. Labor Law § 740. See Compl. at 1–5. In March 2009, HDMJ and the Owners moved to dismiss the action. DE 8, 9, 11, 12, 13. The motions to dismiss were granted in part and denied in part. See Joseph v. HDMJ Restaurant, Inc., 685 F.Supp.2d 312 (E.D.N.Y.2009) (decision on motion to dismiss). Judge Seybert dismissed Plaintiff's state law claims in their entirety. Id. at 317. With respect to HDMJ, Plaintiff's Title VII and ADA claims were permitted to proceed. Id. at 315–317. However, finding that there is no individual liability under Title VII and the ADA, Judge Seybert dismissed those claims against the Owners, leaving HDMJ as the sole remaining defendant. Id. at 317–18. An interlocutory appeal was certified on behalf of HDMJ, but was later withdrawn at HDMJ's request due to a lack of resources. DE 19–26.

On July 3, 2012, Defendant's attorney moved to withdraw as counsel for HDMJ. See DE 31. On July 31, 2012, this Court held a hearing...

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