Loos v. CLUB PARIS, LLC

• Court: U.S. District Court — Middle District of Florida
• Writing for the Court: MARY S. SCRIVEN
• Citation: Loos v. Club Paris, LLC, 684 F. Supp.2d 1328 (M.D. Fla. 2010)
• Decision Date: 16 February 2010
• Docket Number: Case No. 6:08-cv-534-Orl-35GJK.
• Parties: Melissa LOOS, Plaintiff, v. CLUB PARIS, LLC and Fred Khalilian, Defendants.

684 F.Supp.2d 1328

Melissa LOOS, Plaintiff, v. CLUB PARIS, LLC and Fred Khalilian, Defendants.

Case No. 6:08-cv-534-Orl-35GJK.

United States District Court, M.D. Florida, Orlando Division.

February 5, 2010.

Order Granting Reconsideration February 16, 2010.

Travis R. Hollifield, Winter Park, FL, for Plaintiff.

Fred Khalilian, Miami, FL, pro se.

ORDER

MARY S. SCRIVEN, District Judge.

THIS CAUSE comes before the Court on consideration of Plaintiff's Motion for Entry of Final Default Judgment against Defendants Club Paris, LLC and Fred Khalilian. (Dkt. 48) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court hereby GRANTS in part and DENIES in part Plaintiffs Motion for Entry of Final Default Judgment (Dkt. 48), as described herein.

I. Summary

On April 9, 2008, Plaintiff filed her Complaint in this case, alleging gender discrimination pursuant to the Civil Rights Act of 1964 (Count I), retaliation in violation of 42 U.S.C. §§ 2000e, et seq. (Count II), negligent hiring, retention, and supervision (Count III), and civil battery (count IV) against Defendants Club Paris, LLC and Fred Khalilian ("Defendants"). (Dkt. 1) On June 25, 2008, Defendants, through counsel, filed an answer to Plaintiffs Complaint. (Dkt. 7) On December 11, 2008, the Court entered an Order allowing Defendants' counsel to withdraw as to Khalilian and directing Club Paris to retain substitute counsel. (Dkt. 24) On September 18, 2009, after Club Paris failed to comply with either of the Court Orders that it retain substitute counsel, the Court entered an Order striking the Answer as to Defendant Club Paris and directing the Clerk to enter default against Defendant Club Paris. (Dkt. 37) On September 21, 2009, the Clerk entered default against Club Paris. (Dkt. 38)

By Order dated October 8, 2009, the Court sua sponte notified the parties that they had failed to comply with Court's Case Management and Scheduling Order (Dkt. 11) by failing to timely file a Joint Pretrial Statement. (Dkt. 39) In the Order, the Court directed Plaintiff to file a Joint Pretrial Statement within fifteen days. (Dkt. 39) On October 12, 2009, Plaintiff filed a response to the Order and a Motion to Strike Pleadings and for Entry of Default against Defendant Khalilian. (Dkt. 41) In the Motion, Plaintiff alleged that Defendant Khalilian failed to appear for his properly noticed deposition and failed to participate in drafting a pretrial statement. (Dkt. 41) On December 8, 2009, the Court adopted the Magistrate Judge's Report and Recommendation (Dkt. 42), granted Plaintiffs Motion to Strike Pleadings and for Entry of Default Against Defendant Khalilian and directed the Clerk to enter default against Defendant Khalilian. (Dkt. 43) On December 9, 2009, the Clerk entered default against Defendant Khalilian. (Dkt. 46) The Court now addresses Plaintiffs Motion for Entry of Default Judgment against both Defendants and Request for Jury Trial on Damages.

II. Facts

Based on the Complaint (Dkt. 1) and Plaintiffs Motion (Dkt. 48), the Court finds as follows:

1. This Court has jurisdiction over Plaintiff and Defendants Fred Khalilian and Club Paris, LLC and has subject matter jurisdiction over this action;

2. Defendant Khalilian was employed by Defendant Club Paris, LLC ("Club Paris") in a supervisory position as owner, general manager, and V.I.P. manager;

3. Plaintiff was employed by Defendant Club Paris as marketing/pr director beginning in January 2007;

4. During her tenure with Defendant Club Paris, Plaintiff was subjected to unwelcome sexual advances, sexual comments, and sexual innuendo from Defendant Khalilian;

5. On one occasion in March 2007, Defendant Khalilian demanded sexual intercourse from Plaintiff, requested that Plaintiff remove her clothing, touched Plaintiffs inner thigh without her consent, and grabbed Plaintiffs hand and forced it on his genitals. Plaintiff refused Defendant Khalilian's sexual advances on all occasions;

6. Approximately one day after Plaintiffs refusal to have sexual intercourse with Defendant Khalilian, Plaintiff was demoted to an office assistant position and received a reduction in her salary 7. Plaintiff resigned in March 2007;

8. Defendant Club Paris' Answer was stricken after Defendant Club Paris' failed to comply with the Court's Case Management and Scheduling Order and Defendant failed to retain alternate counsel (Dkt. 37); and

9. Defendant Khalilian's Answer was stricken after Defendant Khalilian failed to comply with the Court's Case Management and Scheduling Order, failed to appear for his properly noticed deposition and failed to participate in drafting a pretrial statement. (Dkt. 43)

III. LEGAL STANDARD AND ANALYSIS

"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed.R.Civ.P. 55(a). However, a defendant's default alone does not require the court to enter a default judgment. DIRECTV, Inc. v. Trawick, 359 F.Supp.2d 1204, 1206 (M.D.Ala.2005). To enter a judgment, there must be sufficient basis in the pleadings to support the relief sought. Id. "The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law. In short, ... a default is not treated as an absolute confession of the defendant of his liability and of the plaintiff's right to recover." Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975).

A. Count I-Sex discrimination

While Title VII's statutory language prohibiting discrimination because of "sex" does not explicitly reference sexual harassment, both the Equal Employment Opportunity Commission ("EEOC"), the federal agency entrusted with enforcement of Title VII, and the United States Supreme Court have concluded that sexual harassment is covered under the Act. 29 C.F.R. § 1604.11(a); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Sexual harassment constituting a form of sex discrimination under Title VII is well settled law in the Eleventh Circuit. Gupta v. Florida Bd. of Regents, 212 F.3d 571, 582 (11th Cir.2000). One common form of supervisor harassment, quid pro quo sexual harassment, entails unwelcome sexual advances, requests for sexual favors, and the like, linked to an economic advantage or injury if the request is refused. Supreme Court precedent imposes automatic vicarious liability for employers in supervisor cases where a tangible employment action is taken against the harassed employee. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 802-03, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Accordingly, where some tangible employment action has been taken as a result of the employee's refusal to submit to a supervisor's sexual demands, that action constitutes a change in the terms and conditions of employment actionable under Title VII. Ellerth, 524 U.S. at 761, 118 S.Ct. 2257.

Here, Plaintiff's allegations are sufficient to meet the elements of a claim for quid pro quo sexual harassment under Title VII. Plaintiff alleges that her supervisor, Defendant Khalilian, made numerous unwanted sexual advances, including requests for sexual intercourse, forcible placement of his hand on Plaintiff's inner thigh, and placement of Plaintiff's hand on his genitals. (Dkt. 1 at ¶¶ 12-16) Additionally, Plaintiff alleges she was demoted to an office assistant position and that her salary was reduced after her refusal to have sexual intercourse with Defendant Khalilian, satisfying the adverse tangible employment action element. (See id. at ¶ 17) As the owner of Club Paris, Defendant Khalilian had the authority to hire, fire, demote, promote, or transfer employees. (Id. at ¶ 11) Because Plaintiff has established all the elements of a prima facie case, Plaintiff's motion for entry of default judgment as to Count I is GRANTED.

B. Count II-Retaliation

Title VII prohibits retaliation by an employer where an individual has engaged in protected activity, making it unlawful for an employer:

To discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). Specifically, the elements for a prima facie retaliation claim include: "(1) opposition to discrimination or participation in covered proceedings; (2)an adverse employment action; and (3) causal connection between the protected activity and the adverse action." EEOC COMPLIANCE MANUAL at § 8-11 (2009); Coutu v. Martin County Bd. of County Comm'rs, 47 F.3d 1068, 1074 (11th Cir.1995). Once a plaintiff establishes prima facie case, the burden of production is on the defendant employer to proffer a legitimate, non-retaliatory reason for the adverse employment action. Corbitt v. Home Depot U.S.A., Inc., 589 F.3d 1136, 1156 (11th Cir.2009).

Here, Plaintiff has not alleged any facts indicating participation in a protected activity such as testifying, assisting, or participating in any investigation, proceeding, or Title VII litigation for which she endured an adverse employment action. (See Dkt. 1 at ¶¶ 33-37). Without more, the conclusory allegation of gender discrimination and retaliatory action "because of her opposition to Club Paris' unlawful employment practices" is insufficient for a prima facie case. See Coutu, 47 F.3d at 1074-75. Accordingly, Plaintiffs motion for default judgment as to Count II is DENIED.

C. Count III-Negligent Hiring, Retention, and Supervision

To make out a prima facie case for negligent hiring, a plaintiff must establish:

(1)The employer was required to make an

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