• Case 1:02-cv-05081-ILG-VVP

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

A : 1 . · · ------------------------------------------------------x

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

';~yActi~O~

Plaintiff,

5081

-against-

COMPLAINT .---

BEST CLOTHING MANUFACTURING,

INC., a/kla NEW ERA KNITTING MILLS, INC.

JURY TRIAL DEMAND

Defendant.
----------------------------------------------------------x

GLASSER. J

POHORELSKY, M.J.

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991 to correct unlawful employment practices on the basis of sex, and to provide

appropriate relief to Yolanda Simon and other similarly situated employees affected by such

unlawful practices. As alleged with greater specificity below, the Commission charges that

Defendant has engaged in sex discrimination by implementing and enforcing a dress code for

female employees only that substantially and adversely affects working conditions for female

employees. Defendant also has engaged in unlawful retaliation against female employees who

opposed the discrimination, including terminating Ms. Simon after she complained about the

discriminatory dress code.

JURIDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451,1331,1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) of

• Case 1:02-cv-05081-ILG-VVP

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Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1)(3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981 a.
2. The alleged unlawful employment practices were and are now being committed within the jurisdiction of the United States District Court for the Eastern District of New York.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) ofTitle VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Best Clothing Manufacturing, Inc., aIkIa, New Era Knitting Mills, Inc., has continuously been a New York corporation doing business in the State of New York and the county of Kings, and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Yolanda Simon filed a charge with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least June 2001, Defendant has engaged in unlawful employment practices in violation of Sections 703 and 704 of Title VII, 42 U.S.C. §§ 2000e-2 and e-3. These practices have included, but are not limited to, the following:

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A. Defendant has discriminated against a class of female employees based on

their gender. Specifically, Defendant has a dress code for females only

that substantially and adversely affects working conditions and

employment opportunities for female employees by requiring them to wear

long sleeve shirts with coverage to the neck. Defendant has no dress code

for male employees, who are permitted to wear sleeveless shirts and tank

tops.

B. The discriminatory dress code substantially and adversely affects the

working conditions and employment opportunities of a class of female

employees, who perform manual labor in a hot factory.

C. Female employees are threatened with retaliation, including, but not

limited to, loss of pay and termination, for failure to comply with the dress

code. Yolanda Simon was terminated by Defendant after she complained

about the dress code.

9. The effect of the practices complained of above has been to deprive Yolanda

Simon and other similarly situated employees, of equal employment opportunities and otherwise

adversely affect their status as employees because of their sex.

10. The unlawful employment practices complained of above were and are

intentional.

11. The unlawful employment practices complained of above were and are done with

malice or with reckless indifference to the federally protected rights of Yolanda Simon and other

similarly situated employees.

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PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with them, from engaging in employment practices which discriminate on the basis of sex and unlawful retaliation. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for women and which eradicate the effects of Defendant's past and present unlawful employment practices. C. Order Defendant to make whole Yolanda Simon and other similarly situated female employees by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of their unlawful employment practices, including, but not limited to, front pay and reinstatement. D. Order Defendant to make whole Yolanda Simon and other similarly situated female employees by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, in amounts to be determined at trial. E. Order Defendant to make whole Yolanda Simon and other similarly situated female employees by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of above, including pain, suffering and humiliation, in amounts to be determined at trial. F. Order Defendant to pay Yolanda Simon and other similarly situated female employees punitive damages for Defendants' malicious and reckless conduct described above, in amounts to be determined at trial.

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G. Grant such further relief as the Court deems necessary and proper in the public

interest. H.

Award the Commission its costs of this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its

complaint.

Respectfully submitted,

Gwendolyn Y. Reams Acting Deputy General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

1801 "L" Street, N.W. Washington D.C. 20507

atherine E. Bissell (KB 1831) Regional Attorney

Lisa Sirkin Supervisory Trial Attorney
/~~cQ Robert D. ose (RR 9174) Trial Attorney
New York District Office 201 Varick Street, Suite 1009 New York, N.Y. 10014 (212) 741-3181 (212) 337-1075 (facsimile)
5

 
 Case 1:02-cv-05081-ILG-VVP Document 20 Filed 04/16/2003 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NFW YORK
------------------------------------------------------------------)(
EQUAL EMPLOYMENT OPPORTUNITY COMl\lISSION.
Plaintiff
-against-
nrST CLOTHING MANUFACTURING. INc.. alk/a NEW ERA KNITTING MILLS. INc..
Defendant. ------------------------------------------------------------------)(

JUDGMINI 02-CV- 5081 (lLG)

An Order 01 Ilonorable l. Leo Glasser. United States District Judge, having been filed on April 11,2003, adopting the Report and Recommendation of Magistrate Judge Viktor V. Pohordsky. dated March 25, 2003. ordering that the defendant's answer be
stricken. and a de[,uit judgment he entered: it is
ORDERED and ADJUDGED that the Report and Recommendation of Magistrate Judge Viktor V. Pohorclsky dated March 25. 2003 is adopted: that the defendant's answer is sLricken: and LhaL j uLlglllellL is her<;:by granLed by L1d"ult agaiust L1c1'enLianL. [kSL ClothiIlg Manufacturing. Inc.. a/k/a New Era Knitting Mills, Ill(

Dated: Brooklvn. New York
April fs. 2003

'J-
ROBERT c. HEINEMANN
Clerk of emlrt

Wednesday, April 16, 2003.max

 
 Case 1:02-cv-05081-ILG-VVP Document 30 Filed 03/11/2005 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,
- v -
BEST CLOTHING MANUFACTURING, INC., a/k/a NEW ERA KNITTING MILLS, INC.,

REPORT AND RECOMMENDATION CV-02-5081 (ILG)(VVP)

Defendant. ---------------------------------------------------------x

This is an action brought by the Equal Employment Opportunity Commission (“EEOC”) under

Title VII on behalf of female employees of Best Clothing Manufacturing, Inc. (“Best Clothing”) alleging

that the defendant maintained a discriminatory dress code for women only. By order dated April 10,

2003, the Honorable I Leo Glasser adopted the undersigned’s recommendation that a default be

entered against the defendant. The matter has now been referred by Judge Glasser to the undersigned

for a report and recommendation on the amount of damages, and any injunctive relief to be awarded to

the plaintiff as against the defaulting defendant.

I. Liability

By virtue of the defendant’s default, the well-pleaded allegations of the Complaint are deemed

admitted, except as to the amount of the plaintiff's damages. See, e.g., Greyhound Exhibitgroup v.

E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 113 S. Ct. 1049 (1993); Au

Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). The allegations of the complaint are

more than sufficient to establish the defendant’s liability for violating Title VII, which makes it unlawful

Case 1:02-cv-05081-ILG-VVP Document 30 Filed 03/11/2005 Page 2 of 9
for an employer “to fail or refuse to hire or to discharge an individual, or otherwise to discriminate against an individual with respect to his compensation, terms conditions, or privileges of employment, because of such individual’s race, color, religion, sex or, national origin. . . .” See 42 U.S.C. § 2000e2(a)(1).
The complaint establishes the following facts. Thirty days prior to the initiation of this action, Yolanda Simon (“Ms. Simon”), an employee of Best Clothing, filed a discrimination charge with the EEOC concerning defendant’s violations of Title VII. See Complaint ¶ 7. Since at least June 2001, Best Clothing has engaged in unlawful employment practices by discriminating against female employees based on their gender. Id ¶ 8. Defendant has a dress code for females, but not for males, requiring sewing machine operators to wear long sleeve shirts with coverage to the neck in a hot factory, which adversely affects working conditions and equal employment opportunities. Id. The pleadings further establish that the unlawful practices by Best Clothing were intentional and were done with reckless disregard for the rights of female employees. Id ¶¶ 9-11. The discriminatory practices deprived Ms. Simon and other similarly situated employees of equal employment opportunities and adversely affected their employment because of their sex. Id. ¶ 9.
The allegations of the complaint also establish the defendant’s liability for retaliating against employees who opposed the defendant’s discriminatory practices which Title VII makes unlawful. See 42 U.S.C. § 2000e-3(a). In an action for retaliation a plaintiff must demonstrate that she opposed defendant’s violation of Title VII , the defendant was aware of her opposition, the employer subsequently took action which adversely affected her employment, and the adverse action was
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causally connected to plaintiff’s opposition to defendant’s unlawful activity. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995).
The court accepts as a fact the allegation that female employees were threatened with loss of pay and termination if they failed to comply with the dress code. See Complaint ¶ 8. The allegations of the complaint also establish that Ms. Simon was terminated immediately following her complaints to the defendant about the unlawful policy. Id. This constitutes clear retaliation in violation of Title VII. See Tomka, 66 F.3d at 1308-1309.
II. Damages Liability having been established, Section 706(g) of Title VII provides a series of equitable remedies, including back pay and compensatory damages, as well as injunctive relief to victims of discrimination. See 42 U.S.C. § 2000e-5(g). The goal of the remedies is to make the victims whole, or put them in the position they would have been but for the discriminatory practice. Albermarle Paper Co. V. Moody, 422 U.S. 405, 419 (1975). Having provided notice to the defaulting defendant, the court may receive and rely on affidavits in lieu of holding an evidentiary hearing on the appropriate amount of damages to be awarded. See, e.g., Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 11 (2d Cir. 1997) (“We have held that, under rule 55(b)(2), it [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in the default judgment.”); accord, Fustok v. ContiCommodity Serv., Inc., 873 F.2d 38, 40 (2d. Cir.1989); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir.1993). There being no objection by any party to that procedure, the court has received and considered affidavits submitted by the plaintiff. The defendant
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has made no submissions as to damages. The court concludes that the plaintiff’s submissions provide a basis for the damages recommended below.
The uncontested affidavits submitted by the plaintiff establish that on June 1, 2001, Best Clothing enacted a dress-code that applied to women only. See Affidavit of Yolanda Simon (“Simon Affidavit”) ¶ 2, and Affidavit of Esther Gutierrez (“Gutierrez Affidavit”) ¶ 2. The code prohibited women from wearing low cut clothing and required women to wear blouses with sleeves that went below the elbow. See Simon Affidavit ¶ 2, Ex. 1. The code stated that women who were in violation would be sent home without pay. See Gutierrez Affidavit ¶ 2. Management checked the women daily to ensure compliance, and failure to abide by the policy did in fact result in women being sent home without pay. See Simon Affidavit ¶¶ 2, 6. Men, on the other hand, wore tank tops without fear of reprisal or loss of wages. Id. ¶ 3. The defendants never denied the existence, or substance, of the policy. See Gutierrez Affidavit ¶ 2. In fact, Abraham Weiss (“Weiss”), an upper-level manager, revealed to the EEOC that the defendant’s believed the code to be appropriate and had drawn that conclusion based on information they had received from the New York State Department of Labor. Id.
A. Back Pay for Simon The plaintiff is entitled to back pay for Ms. Simon resulting from her retaliatory termination. As a rule back pay is awarded in situations involving unlawful termination. Carrero v. New York City Housing Authority, 890 F.2d. 569, 580 (2d Cir. 1989). Back pay is awarded from the time that the discrimination occurred until employment is obtained with compensation at the same or higher rate of pay the victim was earning at the time of termination. Franks v. Bowman Transportation, Co., 424
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U.S. 747, 764 (1976). The party seeking back pay must demonstrate that she took steps to mitigate her damages. Ford Motor Co. V. EEOC, 458 U.S. 219 (1982).
At the time Ms. Simon was terminated from Best Clothing on June 22, 2001, she earned a weekly salary of approximately $205. See Simon Affidavit Ex. 3. Following her termination, Ms. Simon was able to find other employment but lost that position following September 11, 2001. Id. ¶ 8, Ex. 3. In subsequent months, after taking various training courses and applying for numerous positions, she was able to find steady employment. Id. Although Ms. Simon persistently sought employment and obtained several short-term positions, she was not able to find employment with comparable compensation until January 18, 2003. The plaintiff calculates that during this time period Ms. Simon lost wages of approximately $8,416. See Simon Aff. Ex. 3. However, during this same period Ms. Simon did apply for and receive $2,240 in unemployment benefits. Id. Subtracting these benefits so as to prevent a double recovery, the plaintiff should be awarded $6,176 in back pay for Ms. Simon.
B. Compensatory Damages The plaintiff seeks compensatory damages for Ms. Simon and other female employees similarly situated resulting from emotional stress and physical discomfort. 42 U.S.C. § 1981a(b)(3). Although the plaintiff has submitted an affidavit by Simon to support this request, the evidence concerning her emotional distress is limited. She recounts a single episode when she was reprimanded for not dressing in a manner which the defendants expected. See Simon Affidavit ¶ 4. Weiss gave her a note which read, “I know that you have a pretty body but do not exhibit it to me.” Id. ¶ 4 and Ex. 2. The other specific instance of stress cited by Simon concerned her termination which occurred after she complained about the discriminatory enforcement of the code. Id. ¶ 5. Although Ms. Simon asserts that
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her work environment caused a considerable amount of nervousness, stress, and anxiety Id. ¶ 7, the record is devoid of evidence of physical manifestations resulting from the stress.
The court has reviewed a number of employment discrimination cases with evidence of emotional distress similar to that offered by Ms. Simon, and in these cases the awards usually range from $5,000 to $30,000. See Bick v. City of New York, No. 95 Civ. 8781, 1998 WL 190283, at *25 (S.D.N.Y. Apr. 21, 1998). The evidence is normally limited to the plaintiff’s own testimony describing the emotional distress, and little or no medical evidence is offered. See, e.g., Fowler v. New York Transit Authority, No. 96 Civ. 6796, 2001 WL 83228, at *13 (S.D.N.Y. Jan. 31, 2001). For example, in Borja-Fierro v. Girozentrale Vienna Bank, No. 91 Civ. 8743, 1994 WL 240360 (S.D.N.Y. May 27, 1994), which involved a plaintiff who was subject to retaliatory discharge, based on the scarce proof of emotional distress, the court concluded that an award of $15,000 was adequate. In another action with similar limited testimony of emotional distress in a discrimination action, the Second Circuit upheld the district court’s finding of $15,000 in compensatory damages. Cowan v. Prudential Insurance Co. of America, 852 F.2d 688, 691 (2d Cir.1988). Therefore, the court concludes that an award of $15,000 in compensatory damages is appropriate for Ms. Simon.
The plaintiff also seeks compensatory damages for four other employees who were subject to the defendants’ discriminatory dress code. Unlike the evidence submitted supporting Ms. Simon’s damages claim, the request for compensatory damages for other female employees is not supported by affidavits given by the victims themselves, but rather is based on the observations and hearsay statements contained in the affidavits of Ms. Simon and Inspector Esther Gutierrez. Blanca Parades and Blanca Cordero, two sewing machine operators, were yelled at and threatened with termination for
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wearing sleeveless blouses. See Gutierrez Affidavit ¶¶ 4, 7. Both women were harassed by management, and out of fear of termination always changed their clothing to be in compliance with the policy. Id.
Based upon these representations, Ms. Parades and Ms. Cordero should be awarded compensatory damages. Given the lack of direct evidence of emotional distress, however, the court concludes that the amount that should be awarded to Ms. Parades and Ms. Cordero is $2,500 each.
Two other female sewing machine operators, Marta Ponce and Carmen Cortez, aware of what had happened to Ms. Simon and other women, felt compelled to comply with the dress-code required by management and endure the oppressive working conditions. See Gutierrez Affidavit ¶¶ 5, 6. There is no evidence in the record, however, that either of these women were subjected to any other hostility by management like their female co-workers above. The court therefore recommends that they be awarded $1,000 each.
Finally, the plaintiff also seeks an award of $50,000 in compensatory damages to be distributed to all female sewing machine operators employees who were subject to the discriminatory dress code. See Affidavit of Robert Rose (“Rose Affidavit”) ¶ 3. The plaintiff has not provided the court with a legal basis upon which this type of relief may be granted, nor is the court aware of any such authority, and the court therefore declines to recommend an award for such unsubstantiated damages to unidentified individuals.
III. Injunctive Relief Lastly, plaintiff requests that injunctive relief preventing the defendants from carrying out the discriminatory policy. See 42 U.S.C. § 2000e-5(g). Among the items of injunctive relief requested are
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(1) implementation by the defendant of policies and procedures regarding discrimination, (2) training for

defendant’s employees in discrimination laws, (3) allowing the EEOC to monitor defendant’s

compliance with the court’s order, and (4) requiring the defendant to submit periodic reports to the

EEOC to ensure compliance. See Rose Affidavit, Ex. 2. As the plaintiff has established an ongoing

pattern of discriminatory treatment of female employees, and as this injunctive relief is not unreasonable,

the injunction should be granted.

IV. Conclusion

In accordance with the above considerations, the undersigned hereby RECOMMENDS that

a judgment be entered in favor of the plaintiff against the defendant Best Clothing:

1. Awarding Yolanda Simon $6,176 for back pay and $15,000 in compensatory damages;

2. Awarding Blanca Cordero and Blanca Parades $2,000 each in compensatory damages;

3. Awarding Carmen Cortez and Marta Ponce $1,000 each in compensatory damages and;

4. That an injunction be entered against the defendant as set forth in Exhibit 2 to the Affidavit of

Robert Rose.

*

*

*

*

*

*

Any objections to the Report and Recommendation above must be filed with the Clerk of the

Court within 10 days of receipt of this report. Failure to file objections within the specified time waives

the right to appeal any judgment or order entered by the District Court in reliance on this Report and

Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see, e.g., Thomas v. Arn, 474 U.S.

140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann,

9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 113 S.

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Ct. 825 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).
Counsel for the plaintiff shall serve a copy of this Report and Recommendation on the defendant by regular mail and file proof of such service in the record.

Dated: Brooklyn, New York March 11, 2005

Viktor V. Pohorelsky
VIKTOR V. POHORELSKY United States Magistrate Judge

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 E.E.O.C. v. Best Clothing Mfg., Inc., Not Reported in F.Supp.2d (2005)

2005 WL 1594153 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
BEST CLOTHING MANUFACTURING, INC. a/k/a New Era Knitting Mills, Inc., Defendant.
No. 02-CV-5081 (ILG). | July 7, 2005.
Attorneys and Law Firms
Robert D. Rose, Senior Trial Attorney, United States Equal Employment Opportunity Commission, New York District Office, New York, New York, for Plaintiff.
Opinion
MEMORANDUM AND ORDER
GLASSER, J.
BACKGROUND
*1 The Equal Employment Opportunity Commission (“plaintiff” or “EEOC”) filed this Title VII action against defendant Best Clothing Manufacturing, Inc. a/k/a New Era Knitting Mills, Inc. (“defendant”) on behalf of female employees, alleging that defendant discriminated against them on the basis of gender by maintaining a dress code that applied to women but not men. Defendant filed an answer to the complaint on November 18, 2002. On February 10, 2003, defendant’s counsel filed a motion to withdraw from representation of defendant, which motion was granted. Defendant never retained new counsel. Accordingly, Magistrate Judge Viktor V. Pohorelsky issued a Report and Recommendation on March 25, 2003 recommending that defendant’s answer be stricken and a default judgment entered against defendant. The Court issued an order dated April 10, 2003 adopting Magistrate Judge Pohorelsky’s recommendation. The Court re-referred this case to Magistrate Judge Pohorelsky for a determination of damages and injunctive relief, if any, that should be imposed against defendant. The Court has received Judge Pohorelsky’s Report and Recommendation, dated March 11, 2005 (the “Report”), recommending that judgment in the amount of $21,176 be

entered on behalf of Yolanda Simon; that judgment in the amount of $2,000 be entered on behalf of Blanca Cordero and Blanca Parades; that judgment in the amount of $1,000 be entered on behalf of Carmen Cortez and Marta Ponce; and that an injunction be entered against defendant on the terms proposed by plaintiff. Pursuant to Fed.R.Civ.P. 72, the parties had ten days in which to file objections to the Report. (Report at 8) (citing 28 U.S.C. § 636(b)(1) (“Failure to file objections within the specified time waives the right to appeal any judgment ... entered by the District Court”); Fed.R.Civ.P. 72(b)). The Court has received no objections to the March 11, 2005 Report.
As set forth below, the Court adopts the Report only in part.
I. Standard of Review The consequences of failing to object to a report and recommendation are great; the Second Circuit has held that the “[f]ailure to timely object to a report generally waives any further judicial review of the findings contained in the report.” Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir.2000). In reviewing a Magistrate Judge’s Report and Recommendation, the Court may adopt those sections of the report to which no objections have been made and which are not facially erroneous. See Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Hotchkiss v. Walsh, 2004 WL 2721943, at *1 (S.D.N.Y. Nov. 29, 2004). Therefore, the Court will excuse the failure to object to a Report and Recommendation only if it appears after reading the Report and Recommendation that the Magistrate Judge committed plain error in ruling against the defaulting party. See Spence, 219 F.3d at 174; see also Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985) (“To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.”). By contrast, “[i]f either party objects to the magistrate judge’s recommendations, a judge ... shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” United States v. Tortora, 30 F.3d 334, 337 (2d Cir.1994) (internal quotations omitted). Because no objections have been filed, the Court reviews the Report for plain error.
II. The Court’s Review of The Report *2 The Report awards three different types of damages: 1) back pay to Ms. Simon; 2) compensatory damages to five female employees, including Ms. Simon, resulting from their alleged emotional distress; and 3) injunctive relief. Regarding the findings relating to back pay and injunctive
1

E.E.O.C. v. Best Clothing Mfg., Inc., Not Reported in F.Supp.2d (2005)

relief, the Court adopts them because they are supported in fact and law.
Regarding the award of compensatory damages, the Court distinguishes between the award granted to Ms. Simon and the other four employees whom the EEOC alleges were similarly situated to her. In awarding Ms. Simon $15,000 for her emotional distress resulting from the discrimination, Magistrate Judge Pohorelsky stated that he had “reviewed a number of employment discrimination cases with evidence of emotional distress similar to that offered by Ms. Simon, and in these cases the awards usually range from $5,000 to $30,000.” (Report at 6, citations omitted). In reaching his decision, Magistrate Judge Pohorelsky relied on, among other cases, Borja-Fierro v. Girozentrale Vienna Bank, 1994 WL 240360 (S.D.N.Y. May 27, 1994). In that national-origin-discrimination case, the court reduced a $160,000 emotional distress award to $15,000, reasoning: “Plaintiff was the sole witness as to his mental anguish. His testimony on this point was brief, not particularly strong, and included a single reference to a visit to a psychologist ‘because it really was a combination of the problem that I had in this previous job and also because of the [November 1991 car] accident.” ’ Id. at *3. The evidence presented by Ms. Simon is similar to that found in Borja-Fierro. Specifically, Ms. Simon’s evidence of emotional distress was “limited” in that she recounted “a single episode when she was reprimanded for not dressing in a manner which the defendants expected.” (Report at 5). Based on Borja-Fierro, the Court cannot conclude that the $15,000 compensatory damages award is “plain error.”
The Report awards compensatory damages to four other female employees based on the hearsay testimony of either Ms. Simon or the EEOC investigator. (Report at 6). The Report does not cite any case, and the Court has been unable to locate one, in which a prevailing party in a Title VII case has been awarded damages for alleged emotional distress where the employee failed to come forward with any competent proof of such damages. The Court finds that there is no reason to depart from the general rule requiring parties bearing the burden of proof to sustain their burden of presenting competent evidence demonstrating compensatory damages. Here, it was plaintiff’s burden to submit competent evidence of the alleged emotional distress. Yet, plaintiff failed to sustain its burden of proof because hearsay testimony-the sole evidence proffered of the emotional distress

damages-cannot support a claim for such damages. See, e.g., King v. Town of Wallkill, 302 F.Supp.2d 279, 299-300 (S.D.N.Y.2004) (on summary judgment motion, letter relied upon by plaintiff to prove amount of damages was inadmissible hearsay; letter was out-of-court statement offered to prove truth of matter asserted and was not subject to any of hearsay exceptions); see also Curbean v. Kibel, 12 A.D.3d 206, 784 N.Y.S.2d 518, 519 (1st Dep’t 2004) (claims of emotional distress could not be supported by psychologist’s hearsay testimony). This rule, moreover, should not be disregarded simply because the defendant has defaulted and has also failed to file objections to the Report. Accordingly, the Court does not grant compensatory damages to Blanca Cordero, Blanca Parades, Carmen Cortez and Marta Ponce, because such damages are not supported by admissible evidence, and therefore the Report’s finding in this regard constitutes “plain error.”
CONCLUSION
*3 The Court adopts the Report and Recommendation of Magistrate Judge Pohorelsky dated March 11, 2005 only in part. Accordingly, the Court enters judgment in favor of the Equal Employment Opportunity Commission against defendant Best Clothing Manufacturing, Inc. a/k/a New Era Knitting Mills, Inc. as follows: awarding Yolanda Simon $21,176.00, and granting the following injunctive relief as set forth more fully in the affidavit of Robert D. Rose: (1) requiring defendant to implement anti-discrimination policies and procedures; (2) training defendant’s employees with respect to federal anti-discrimination laws; (3) allowing the EEOC to monitor defendant’s compliance with the judgment; and (4) requiring defendant to submit periodic reports to the EEOC to ensure compliance with the judgment.
Counsel for plaintiff shall serve a copy of this Memorandum and Order on the defendant by regular mail and electronically file proof of such service in the record.
After entering the judgment in this case, the Clerk of Court is respectfully directed to close this case. SO ORDERED.
	  

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U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:02-cv-05081-ILG-VVP

CLOSED

Equal Employment Opportunity Commission v. Best Clothing Manufacturing, Inc Assigned to: Senior-Judge I. Leo Glasser Referred to: Magistrate-Judge Viktor V. Pohorelsky Cause: 42:1983 Civil Rights Act

Date Filed: 09/19/2002 Date Terminated: 04/16/2003 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Robert D. Rose Equal Employment Opportunities Commission New York District Office 201 Varick Street Suite 1009 New York, NY 10014 212-741-3181 Fax: 212-337-1075 Email: robert.rose@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Best Clothing Manufacturing, Inc also known as New Era Knitting Mills, Inc.
Garnishee Chinatrust Bank (U.S.A.) Garnishee J.P. Morgan Chase Garnishee Bank Leumi USA

represented by Allen B. Roberts Epstein, Becker & Green, P.C. 250 Park Avenue New York, NY 10177 212-351-4500 Fax: 212-661-0989 Email: aroberts@ebglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed 09/19/2002
11/01/2002 11/06/2002 11/18/2002 11/18/2002 11/28/2002
12/20/2002
02/10/2003 02/10/2003 02/10/2003 02/19/2003
02/19/2003
03/06/2003

#

Docket Text

1 Complaint filed and summons issued as to defendant(s) Best Clothing Manufacturing, Inc. Filing fee $150.00. Jury trial demanded.. Filed by Robert D. Rose on behalf of Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Joe, Victor) (Entered: 09/20/2002)
2 SCHEDULING ORDER: Initial Conference set for 11/21/2002 at 10:30 AM before Magistrate-Judge Viktor V. Pohorelsky. Signed by Judge Viktor V. Pohorelsky on 10/28/02. (Rodriguez, Angela) (Entered: 11/05/2002)
3 Letter dated 11/4/02 from Robert Rose to Clerk of Court advising that the EEOC is moving to a new office. (Rodriguez, Angela) (Entered: 11/19/2002)
4 ANSWER to Complaint by Best Clothing Manufacturing, Inc.(Rodriguez, Angela) (Entered: 11/19/2002)
5 DISCLOSURE of Interested Parties by Best Clothing Manufacturing, Inc.(Rodriguez, Angela) (Entered: 11/19/2002)
6 ORDER endorsed on letter dated 11/15/02 from Allen Roberts to Magistrate Pohorelsky. The 11/21/02 conference is adjourned to 12/19/02 at 4:00. Signed by Judge Viktor V. Pohorelsky on 11/18/02. (Rodriguez, Angela) (Entered: 12/23/2002)
7 SCHEDULING ORDER signed by Judge Viktor V. Pohorelsky on 12/19/02. Factual discovery to be completed by 6/16/03; dispositive motions to be made by 7/29/03; final pretrial conference is set for 8/7/03 at 9:30.(Rodriguez, Angela) (Entered: 01/06/2003)
8 MOTION to Withdraw as Attorney as to Allen B. Roberts filed by Best Clothing Manufacturing, Inc. (Rodriguez, Angela) (Entered: 02/11/2003)
9 MEMORANDUM in Support of [8] MOTION for Allen B. Roberts to Withdraw as Attorney.(Rodriguez, Angela) (Entered: 02/11/2003)
10 AFFIDAVIT of Allen B. Roberts in Support of [8] MOTION to Withdraw as Attorney. (Rodriguez, Angela) (Entered: 02/11/2003)
11 ORDER signed by Judge Viktor V. Pohorelsky on 2/11/03. A hearing on the motion by defendant's counsel to withdraw from representation of the defendant is hereby scheduled for 3/6/03 at 10:30. The 2/13/03 settlement conference is adjourned sine die.(Rodriguez, Angela) (Entered: 02/19/2003)
12 CERTIFICATE OF SERVICE: Motion by Epstein Becker & Green, P.C.'s to withdraw as attorney was served on Aron Lefkowitz on 2/13/03. A copy of Magistrate Pohorelsky's order of 2/11/03 was served on 2/12/03. (Rodriguez, Angela) (Entered: 02/20/2003)
13 Minute Entry for proceedings held before Viktor V. Pohorelsky : Docket Call held on 3/6/2003. A hearing on an order to show cause issued today will be held on 3/25/03 at 11:30. The motion to withdraw is granted, provided, however, that outgoing counsel shall serve the order to show cause on the defendant by the

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03/11/2003
03/11/2003 03/25/2003
03/25/2003 04/02/2003 04/11/2003 04/16/2003 04/16/2003 05/05/2003
05/06/2003 05/15/2003

close of business on 3/11/03 and file proof of such service. (Rodriguez, Angela) (Entered: 03/10/2003)
14 ORDER TO SHOW CAUSE: Dft is ordered to show cause on 3/25/03 at 11:30am why the answer should not be stricken and why a default judgment should not be entered against it for failing to appear and defend in this action. A corporation may not appear except by counsel. Signed by Judge Viktor V. Pohorelsky on 3/6/03. (Fahey, Lauren) (Entered: 03/11/2003)
15 AFFIDAVIT of Service for Order to Show Cause, dated 3/6/03, served on Aron Lefkowitz on 3/7/03. (Rodriguez, Angela) (Entered: 03/18/2003)
16 Minute Entry for proceedings held before Viktor V. Pohorelsky : Show Cause Hearing held on 3/25/2003. Counsel for pltf present; No appearance for dft. Report and recommendation made on the record that dft's answer be stricken and that a default judgment be entered against the dft. (Tape #37: 2203-3081.) (Fahey, Lauren) (Entered: 03/26/2003)
17 Minute Entry for proceedings held before Viktor V. Pohorelsky: Status Conference held on 3/25/2003. Report and recommendation made on the record that the defendant's answer be stricken and that a default judgment be entered against defendant. (Rodriguez, Angela) (Entered: 03/26/2003)
18 TRANSCRIPT of Proceedings held on 3/25/03 before Judge Magistrate Pohorelsky. Court Transcriber: Elizabeth Barron. (Rodriguez, Angela) (Entered: 04/03/2003)
19 ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Pohorelsky. The answer is stricken and a default judgment is entered. Case is referred to Magistrate for damages inquest. Signed by Judge I. Leo Glasser on 4/10/03. (Rodriguez, Angela) (Entered: 04/11/2003)
20 JUDGMENT in favor of plaintiff against defendant. Defendant's answer is stricken and a default judgment is entered against defendant. Signed by Judge Clerk of Court on 4/15/03. (Rodriguez, Angela) (Entered: 04/16/2003)
21 ORDER: Damages inquest before Magistrate Pohorelsky is set for 5/5/2003 at 04:00 PM. Signed by Judge Viktor V. Pohorelsky on 4/16/03. (Rodriguez, Angela) (Entered: 04/17/2003)
22 Minute Entry for proceedings held before Viktor V. Pohorelsky : Scheduling Conference held on 5/5/2003. Counsel for pltf present; No appearance for dft. The next conf is adjourned sine die. Submissions regarding the inquest referred to this USMJ are to be submitted in accordance with the separate scheduling order to be entered by the court. (Fahey, Lauren) (Entered: 05/06/2003)
23 ORDER: See document for the schedule for submissions and other proceedings regarding the inquest. Signed by Judge Viktor V. Pohorelsky, on 5/6/03. (Fahey, Lauren) (Entered: 05/06/2003)
24 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission: A copy of Magistrate Pohorelsky's order dated 5/6/03 was served on defendant on 5/14/03. (Rodriguez, Angela) (Entered: 05/22/2003)

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07/21/2003 07/21/2003 07/21/2003 07/24/2003 07/28/2003 03/11/2005 03/30/2005 06/30/2005 07/07/2005
07/07/2005 07/12/2005

25 MEMORANDUM in Support of damages filed by Equal Employment Opportunity Commission. (Rodriguez, Angela) (Entered: 07/24/2003)
26 AFFIDAVIT of Yolanda Simon in Support of damages filed by Equal Employment Opportunity Commission. (Rodriguez, Angela) (Entered: 07/24/2003)
28 AFFIDAVIT of Robert D. Rose in Support of damages filed by Equal Employment Opportunity Commission. (Rodriguez, Angela) (Entered: 07/24/2003)
27 AFFIDAVIT of Esther Gutierrez in Support of damages filed by Equal Employment Opportunity Commission. (Rodriguez, Angela) (Entered: 07/24/2003)
29 ORDER referring case to Magistrate for a report and recommendation on damages. Signed by Judge I. Leo Glasser on 7/24/03. (Rodriguez, Angela) (Entered: 07/28/2003)
30 REPORT AND RECOMMENDATIONS re Motion for default judgment, filed by Equal Employment Opportunity Commission, Objections to R&R due by 3/25/2005. Signed by Judge Viktor V. Pohorelsky on 3/11/2005. (Pohorelsky, Viktor) (Entered: 03/11/2005)
31 NOTICE of filing a Report and Recommendation: REPORT AND RECOMMENDATIONS re Motion for default judgment, filed by Equal Employment Opportunity Commission, Objections to R&R due by 3/25/2005. Signed by Judge Viktor V. Pohorelsky on 3/11/2005. (Vaughn, Terry) (Entered: 03/30/2005)
32 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission for Magistrate's Rpt. & Rec. (Rose, Robert) (Entered: 06/30/2005)
33 Memorandum and Order adopting in part the Report and Recommendation dated March 11, 2005 as to 30 Report and Recommendations. Accordingly, the Court enters judgment in favor of the EEOC against defendant as follows: awarding Yolanda Simon $21,176.00, and granting the following injunctive relief as set forth more fully in paragraph 2 of the affidavit of Robert D. Rose: (1) requiring defendant to implement anti-discrimination policies and procedures; (2) training defendant's employees with respect to federal anti-discrimination laws; (3) allowing the EEOC to monitor defendant's compliance with the judgment; and (4) requiring defendant to submit periodic reports to the EEOC to ensure compliance with the judgment.Counsel for plaintiff shall serve a copy of this Memorandum and Order on the defendant by regular mail and electronically file proof of such service in the record.After entering the judgment in this case, the Clerk of Court is respectfully directed to close this case. Ordered by Judge I. Leo Glasser on July 7, 2005. (Kathawala, Rene) (Entered: 07/07/2005)
34 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission for 7/7/05 Memorandum and Order (Rose, Robert) (Entered: 07/07/2005)
35 CLERK'S JUDGMENT directing that the Report and Recommendation of Mag Pohorelsky dated 3/11/05 is adopted in part; and that judgment is hereby entered in favor of plaintiff, EEOC and against deft Best Clothing Manufacturing, Inc.

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07/12/2005
02/27/2006
02/27/2006
02/27/2006
02/28/2006 02/28/2006 02/28/2006 04/03/2006 04/04/2006 06/06/2006

a/k/a New Era Knitting Mills, Inc. as follows: Yolanda Simon is awarded $21,176.00 and the following injunctive relieve, as set forth more fully in the affidavit of Robert D. Rose, is granted: 1. requiring deft to implement anti-discrimination policies and procedures; 2. training deft's employees with respect to Federal anti-discrimination laws; 3. allowing the EEOC to monitor deft's compliance with the judgment; and 4. requiring deft to submit periodic reports to the EEOC to ensure compliance with the judgment . Ordered by Robert C. Heinemann, Clerk of Court on 7/8/05. c/m with appeal pkg.(Fernandez, Erica) (Entered: 07/12/2005)
36 Mail Returned as Undeliverable. Mail sent to Robert D. Rose; EEOP Commission; New York District Office; 201 Varick Street; Suite 1009; NY, NY. Document returned: Judgment. (Sica, Michele) (Entered: 07/28/2005)
37 MOTION for Writ of Garnishment for Garnishee Bank of Leumi by Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 Text of Proposed Order # 4)(Rose, Robert) (Entered: 02/27/2006)
38 MOTION for Writ of Garnishment for Garnishee J.P. Morgan Chase by Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 Text of Proposed Order # 4)(Rose, Robert) (Entered: 02/27/2006)
39 MOTION for Writ of Garnishment for Garnishee ChinaTrust Bank U.S.A. by Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 Text of Proposed Order # 4)(Rose, Robert) (Entered: 02/27/2006)
WRIT OF GARNISHMENT issued as to Best Clothing Manufacturing, Inc. (Sica, Michele) (Entered: 02/28/2006)
WRIT OF GARNISHMENT issued as to best Clothing Manufacturing, Inc. (Sica, Michele) (Entered: 02/28/2006)
WRIT OF GARNISHMENT issued as to Best Clothing Manufacturing, Inc. (Sica, Michele) (Entered: 02/28/2006)
41 ANSWER to Writ of Garnishment by Chinatrust Bank (U.S.A.). (Sica, Michele) (Entered: 04/14/2006)
40 Response and Reply by J.P. Morgan Chase (Sica, Michele) (Entered: 04/04/2006)
42 ANSWER to Writ of Garnishment by Bank Leumi USA. (Sica, Michele) (Entered: 06/06/2006)

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Docket Report

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1:02-cv-05081-ILG-VVP

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