Collins v. Andrews

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

STEPHANIE COLLINS, )

)

Plaintiffs, )

)

v. ) CIV. ACT. NO. 1:20-cv-296-ECM

) (WO)

KELVIN MITCHELL ANDREWS and )

ALLIED COMPANY OF THE )

WIREGRASS, d/b/a ALLIED FENCE )

COMPANY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Stephanie Collins (“Collins”) filed this action against defendants Kelvin

Andrews and Allied Company of the Wiregrass doing business as Allied Fence Company

(collectively the “Defendants”) on May 1, 2020. (Doc. 1). Collins alleges claims of race

discrimination, hostile work environment and retaliation pursuant to 42 U.S.C. § 1981 as

well as state law claims of outrage and invasion of privacy. (Id.).

Process was served on Kelvin Mitchell Andrews—individually and as agent of

Allied Company of the Wiregrass—on June 29, 2021. (Docs. 15 and 16). Thereafter, no

answer was filed, and the Plaintiff filed an application to the Clerk of Court for an Entry

of Default. (Doc. 17). The Clerk completed the Entry of Default on August 16, 2021.

(Doc. 19). The Entry of Default was mailed to the Defendants. Now pending before the

Court is the Plaintiff’s motion for entry of default judgment and motion for hearing to

determine damages. (Doc. 19). Because evidence can be submitted to the Court on a

motion for default judgment without a hearing, the Court ordered the Plaintiff to submit

evidence in support of her motion for default judgment. (Doc. 20). The Plaintiff timely

filed her evidentiary submissions, (docs. 21–22), and the Court finds a hearing to be

unnecessary.

For the reasons that follow, the Plaintiff’s motion for default judgment and award

of damages is due to be GRANTED in part and DENIED in part.

I. JURISDICTION

The Court has original subject matter jurisdiction of this matter pursuant to 28

U.S.C. §§ 1331. The Court has supplemental jurisdiction of the Plaintiff’s state law claims

pursuant to 28 U.S.C. § 1367(a).

Personal jurisdiction and venue are uncontested, and the Court concludes that venue

properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

II. STANDARD OF REVIEW

Federal Rules of Civil Procedure 55 governs the procedure for obtaining a default

judgment. An entry of default must precede an entry of a default judgment. See Fed. R.

Civ. P. 55. When a defendant “has failed to plead or otherwise defend,” and the plaintiff

demonstrates that failure, the clerk must enter the defendant’s default. FED. R. CIV. P. 55(a).

After entry of default, the plaintiff “must apply to the court for a default judgment.” FED.

R. CIV. P. 55(b)(2).

“When a defendant defaults, he “admits the plaintiff’s well-pleaded allegations of

fact.” Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015) (quoting Lary v. Trinity

Physician Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir. 2015) (quotation marks

omitted)). The Court may but is not required to hold a hearing before entering a default

judgment. “Given its permissive language, Rule 55(b)(2) does not require a damages

hearing in every case.” Giovanno, 804 F.3d at 1366. “The district court may forego a

hearing where all essential evidence is already of record.” Id. (internal quotations omitted).

Pursuant to Federal Rule of Civil Procedure 54(c), a “default judgment must not

differ in kind from, or exceed in amount, what is demanded in the pleadings.” If the record

is sufficient, a district court may determine damages without a hearing. See Sec. & Exch.

Comm'n v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005). Damages may be awarded

only if the record adequately reflects the basis for award via a hearing or a demonstration

by detailed affidavits establishing the necessary facts. Adolph Coors Co. v. Movement

Against Racism and the Klan, 777 F.2d 1538, 1543–44 (11th Cir. 1985). When assessing

damages, a district court must “assure that there is a legitimate basis for any damage

award it enters.” Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir.

2003).

III. DISCUSSION

A. Facts

The Plaintiff, Stephanie Collins (“Collins”), was employed for approximately eight

years by Kelvin Andrews (“Andrews”) at Allied Company of the Wiregrass, doing business

as Allied Fence Company.1 She was initiated hired to answer the phones and clean offices.

1 Although the Plaintiff alleges in the Complaint that Allied Company of the Wiregrass is a domestic

limited liability company, the online records of the Alabama Secretary of State indicate that Allied

Company of the Wiregrass is an incorporated entity. See “Business Entity Details,” at https://arc-

sos.state.al.us/cgi/corpdetail.mbr/detail?corp=000188852&page=name&file=&type=ALL&status=ALL&

In 2018, Collins began driving Andrews to job sites, entering payroll, and performing other

duties which increased her hours to 40 hours per week.

At some point during her employment, Andrews began using the n-word in Collins’

presence, telling her that his friends employed a n*****r-lover, referring to her. Collins

informed Andrews that she was offended by his language and that she had African

American family members. Collins’ stepfather and boyfriend are African–American, and

her children are biracial.

After Andrews’ grandson called Collins a n****r-lover at work, Collins complained

to Andrews. Andrews responded, “well you can’t help who you are.” Collins left work

and Andrews told her he would call her about when to return. When Andrews did not call

Collins to return to work, she assumed she had been fired. She applied for unemployment,

which was denied because Allied Fence responded that she had quit. Thereafter, Andrews’

wife, Linda, called Collins and said that Andrews wanted her to return to work, Collins

agreed; however, Andrews continued to use the n-word in her presence.

On January 20, 2020, Collins was driving Andrews to a job site when she took a

wrong turn, and Andrews called her stupid. When Collins told Andrews not to call her

stupid, he responded by saying “I just did, and I meant what I said.” He then proceeded to

tell Collins that he was “dominant over a damn female;” that she would “never equal a

place=ALL&city= (last visited on Sept. 26, 2022). “The court may judicially notice a fact that is not subject

to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). See also Sims v. CM Food Serv., LLC, 2016

WL 6778301, *2 (N.D. Ala. 2016). The information gleaned from the Secretary of State’s website falls

within the purview of Rule 201, and the Court takes judicial notice of the Secretary of State’s records.

white human;” that she was not a white human; and that she thinks she’s “special because

[she] live[s] with n*****s.” Andrews continued in this vein until they returned to the

office.

Collins left work and returned three days later. The next day, Andrews asked

Collins to drive him to another job site and Collins refused, telling Andrews that she was

not comfortable being in a car with him. Andrews told Collins she would not have a job if

she “wasn’t going to do what he said.” Collins left and did not return to Allied Company

of the Wiregrass.

Collins filed this lawsuit on May 1, 2020.

B. Entry of Default Judgment

The Defendants have failed to file a response or acknowledge the pending lawsuit,

bringing a halt to Collins’ litigation. Both the Company and Andrews were properly

served. (Docs. 15 and 16). The Clerk has completed an Entry of Default. (Doc. 18). The

Plaintiff has filed a motion for entry of default judgment (doc. 19) which is ripe for review.

Thus, the Court must determine whether default judgment is appropriate.

In the Eleventh Circuit, there is a “strong policy of determining cases on their merits

and we therefore view defaults with disfavor.” In re Worldwide Web Systems, Inc., 328

F.3d 1291, 1295 (11th Cir. 2003). Nonetheless, it is well-settled that a “district court has

the authority to enter default judgment for failure . . . to comply with its orders or rules of

procedure.” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985). Rule 55 of the Federal

Rules of Civil Procedure provides for entry of default and default judgment where a

defendant “has failed to plead or otherwise defend as provided by these rules.” Fed. R. Civ.

P. 55(a). Where, as here, the Defendants have failed to respond to or otherwise

acknowledge the pendency of a lawsuit against them after being served, entry of default

judgment may be appropriate.

The law is clear, however, that a defendant’s failure to appear and the Clerk's

subsequent entry of default do not automatically entitle the Plaintiff to a default judgment.

A default is not “an absolute confession by the defendant of his liability and of the

plaintiff's right to recover,” but is instead “an admission of the facts cited in the Complaint,

which by themselves may or may not be sufficient to establish a defendant's liability.” Pitts

ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1357 (S.D. Ga. 2004); see also

Descent v. Kolitsidas, 396 F. Supp. 2d 1315, 1316 (M.D. Fla. 2005) (“The defendants'

default notwithstanding, the plaintiff is entitled to a default judgment only if the complaint

states a claim for relief”); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41

(11th Cir. 1997) (“A default judgment cannot stand on a complaint that fails to state a

claim.”).

“The allegations must be well-pleaded in order to provide a sufficient basis for the

judgment entered.” De Lotta v. Dezenzo's Italian Rest., Inc., 2009 WL 4349806 at *2 (M.D.

Fla. 2009) (citing Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298,

1307 (11th Cir. 2009)). In deciding whether the allegations in the complaint are well

pleaded, the “plaintiff’s obligation to provide the grounds of [her] entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quotations omitted) (bracket added). Instead, the “factual allegations must be enough to

raise a right to relief above the speculative level.” Id.

1. 42 U.S.C. § 1981 Race Discrimination and Hostile Work Environment

Claims

The Plaintiff brings § 1981 race discrimination and hostile work environment claims

against the Company as her employer and Andrews individually. Pursuant to § 1981, “[a]ll

persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties,

[and] give evidence . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981.2 Section 1981

“prohibits intentional race discrimination in the making and enforcement of public and

private contracts, including employment contracts.” Ferrill v. Parker Group, 168 F.3d

468, 472 (11th Cir. 1999). Thus, section 1981 provides a cause of action for race-based

employment discrimination. In an employment discrimination case, the Plaintiff bears the

ultimate burden of proving that the Defendants intentionally discriminated against her.

Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

2 Section 1981 provides, in pertinent part:

(a) All persons within the jurisdiction of the United States shall have the same

right in every State . . . to make and enforce contracts, . . . and to the full and equal

benefit of all laws and proceedings for the security of persons and property as is

enjoyed by white citizens, . . .

(b) For purposes of this section, the term “make and enforce contracts” includes

the making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.

42 U.S.C. § 1981.

Direct evidence of employment discrimination consists of statements by a person

with control over the employment decision “sufficient to prove discrimination without

inference or presumption.” See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11th

Cir. 1993) (citing Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989)).

Although the Eleventh Circuit has severely limited the type of language constituting direct

evidence of discrimination, the language used in this case by Andrews is sufficient to

demonstrate direct evidence of discrimination. See, Burrell v. Board of Trustees of

Georgia Military College, 125 F.3d 1390, 1393 (11th Cir. 1997) (“Direct evidence is

evidence, which if believed, proves [the] existence of fact in issue without inference or

presumption.”) (internal quotation omitted).

A plaintiff presents direct evidence of discrimination where “actions or statements

of an employer reflect a discriminatory or retaliatory attitude correlating to the

discrimination or retaliation complained of by the employee.” Carter v. Three Springs

Residential Treatment, 132 F.3d 635, 641-42 (11th Cir. 1998); Merritt v. Dillard Paper

Co., 120 F.3d 1181, 1189 (11th Cir. 1997).

Unlike in Title VII cases, “individual employees can be held liable for

discrimination under § 1981.” Leige v. Capitol Chevrolet, Inc., 895 F. Supp. 289, 293

(M.D. Ala. 1995). “Supervisors with the capacity to hire and fire and those who can

recommend such decisions are subject to liability under § 1981.” Id. (citing Faraca v.

Clements, 506 F.2d 956, 959 (5th Cir. 1975)).3

Finally, the Supreme Court, in Comcast Corp. v. Nat’l Ass’n of African American-

Owned Media, held that § 1981 plaintiffs must prove but–for causation. 140 S.Ct. 1009,

1014 (2020) (holding, “a plaintiff must demonstrate that, but for the defendant’s unlawful

conduct, [her] alleged injury would not have occurred”) (bracket added). Accordingly,

Collins bears the burden of demonstrating that “race was a but-for cause of [her] injury,”

or that “the defendant would have responded differently but for the plaintiff’s race . . . .”

Id. at 1014–15 (bracket added).

To establish a hostile work environment claim, a plaintiff must

show: (1) that [s]he belongs to a protected group; (2) that [s]he

has been subject to unwelcome harassment; (3) that the

harassment must have been based on a protected characteristic

of the employee, . . .; (4) that the harassment was sufficiently

severe or pervasive to alter the terms and conditions of

employment and create a discriminatorily abusive working

environment; and (5) that the employer is responsible for such

environment under either a theory of vicarious or of direct

liability.

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (brackets added).

Moreover, it has long been recognized in this circuit that “section 1981 prohibits

discrimination based upon interracial marriage or association.” See Parr v. Woodmen of

the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986); Faraca, 506 F.2d at 958–59;

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981.

Tomczyk v. Jocks & Jills Restaurants, LLC, 198 F. App’x 804, 808–09 (11th Cir. 2006).4

Evidence of discrimination sufficient to support a claim under § 1981 may be either direct

or circumstantial.

“Only the most blatant remarks whose intent could be nothing other than to

discriminate constitute direct evidence.” Clark, 990 F.2d at 1223. The Plaintiff’s

allegations concerning her § 1981 race discrimination and hostile work environment claims

provide a sufficient basis to hold both the Company and Andrews liable, and for the Court

to enter default judgment against the Defendants. The Plaintiff alleges that Andrews

routinely used abhorrent and racially offensive language directed at her due to her

association with African–Americans during the scope of her employment. (Doc. 1).

Andrews, among other things, told the Plaintiff she “will never equal a white human,” that

she submits to “f***ing n***ers,” that she is not “a white human,” that she thinks she’s

special “because [she] live[s] with n***ers,” and “just don’t be sassing white folks.” (See

Doc. 21-1).

Andrews’ own words clearly and directly demonstrate his discriminatory, hostile

attitude towards Collins that results from her relationships with African–Americans. In the

complaint, Collins details Andrews’ repeated use of the “n” word around her despite his

knowledge that she has an African–American stepfather, lives with an African–American

man and has biracial children. (Id.). In addition, she describes in detail Andrews’

4 While the Court recognizes that Tomczyk, 198 F. App’x 804 (11th Cir. 2006), is an unpublished opinion,

the Court finds its analysis to be persuasive.

abhorrent remarks about African–Americans in general and Collins in particular for her

association with African–Americans. (Id.).

As the President and Secretary of Allied Company of the Wiregrass, Andrews

clearly had the authority to hire and fire Collins.5 Andrews perpetuated the discrimination,

and the Company knew or should have known of his discriminatory conduct because he is

the Company President with hiring and firing authority.

The law is well established that harassment based on the Plaintiff’s interracial

relationships is forbidden. See Parr, 791 F.2d at 890; Faraca, 506 F.2d at 957. The Court

concludes that the allegations in the complaint, which are deemed admitted by reason of

default, are sufficient to establish that Collins was subjected to a discriminatorily hostile

work environment due to her relationship with African-Americans, and the allegations are

sufficient to hold both the Company and Andrews liable for the hostile work environment.

2. 42 U.S.C. § 1981 Retaliation - Constructive Discharge Claim

Section 1981 also provides a vehicle for retaliation claims. See CBOCS W., Inc. v.

Humphries, 553 U.S. 442, 446 (2008). “To make a prima facie case for a claim of

retaliation ..., a plaintiff must first show (1) that she engaged in statutorily protected

activity, (2) that she suffered an adverse action, and (3) that the adverse action was causally

related to the protected activity.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121,

1134 (11th Cir. 2020) (quotations omitted). Constructive discharge claims are appropriate

when “an employer discriminates against an employee to the point such that [her] working

5 See fn.1, supra.

conditions become so intolerable that a reasonable person in the employee’s position would

have felt compelled to resign.” Hicks v. City of Tuscaloosa, Ala., 870 F.3d 1253, 1258

(11th Cir. 2017) (quoting Green v. Brennan, 578 U.S. 547, 555 (2016) (bracket added)).

The Plaintiff’s protected activity must be “a but-for cause of the alleged adverse action by

the employer.” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). “Stated

another way, a plaintiff must prove that had she not complained, she would not have been

fired.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018).

The Plaintiff alleges that she engaged in protected activity, she was subjected to a

hostile work environment as a result of her protected activity, and as a result, her “working

conditions were so intolerable that any reasonable person in her position would be forced

to resign.”6 (Doc. 1 at 7, para. 33–35). Specifically, Collins alleged that she complained

on multiple occasions to Andrews of discrimination and that he was creating a hostile work

environment by his repeated offensive language directed at her. Collins further alleges that

Andrews continued the harassing behavior after she complained, leaving her no choice but

to resign resulting in her constructive discharge. (Doc. 1 at 7). “Constructive discharge

occurs when an employer deliberately makes an employee’s working conditions intolerable

and thereby forces [her] to quit [her] job.” Davis v. Legal Servs. Alabama, Inc., 19 F.4th

1261, 1268 (11th Cir. 2021) (alteration added). Upon consideration of the Plaintiff’s

6 Although the Plaintiff alleged in her complaint that the protected activity she engaged in was her

association with African–Americans, in her submissions, she adequately alleges that she repeatedly

complained to Andrews about his continued harassment by his use of racially offensive language. She

alleges that Andrews persisted in his harassing behavior, and thus, she was forced to quit when Andrews

failed to cease his discriminatory conduct.

allegations, which are deemed admitted by the Defendants, the Court finds that Collins has

sufficiently alleged that she was retaliated against by Andrews and constructively

discharged from the Company. The Plaintiff’s motion for entry of default judgment on

these claims will be granted.

3. Outrage Claim

The Plaintiff also brings a claim of outrage based on Defendant Andrews’ diatribe

in January 2020. The Alabama Supreme Court first recognized the tort of outrage, or

intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394

So. 2d 361 (Ala. 1981). To establish a claim of the tort of outrage, Collins must show that

(1) the actor intended to inflict emotional distress, or knew or

should have known that emotional distress was likely to result

from his conduct; (2) the conduct was extreme and outrageous;

(3) the defendant's actions caused the plaintiff distress; and (4)

the distress was severe. Harris v. McDavid, 553 So.2d 567

(Ala.1989). The conduct alleged must be “so outrageous in

character and so extreme in degree as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly

intolerable in a civilized society.” Id. at 570; citing American

Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980).

Shepherd v. Summit Mgmt. Co., 726 So. 2d 686, 694 (Ala. Civ. App. 1998).

The Alabama Supreme Court has declined to impose liability against an employer

except in the most egregious cases. BSE Indus. Contr. Inc., 624 So. 2d 1041, 1044 (Ala.

1993).

Under Alabama law, the tort of outrage is an extremely limited

cause of action that applies to three kinds of conduct: (1)

wrongful conduct regarding burial matters; (2) barbaric

methods used to coerce an insurance settlement; and (3)

egregious sexual harassment.

Stancombe v. New Process Steel LP, 652 F. App’x 729, 739 (11th Cir. 2016). In those

cases in which egregious sexual harassment has been found to constitute the tort of outrage,

some sort of physical touching occurred in conjunction with sexually charged language.

See Gray v. Koch Foods, Inc., 580 F. Supp. 3d 1087, 1129–30 (M.D. Ala. 2022)

(allegations of sexual assault, “followed by an indecent exposure and exhibitionist sex act”

sufficient for outrage claim to proceed); Busby v. Truswal Sys. Corp., 551 So. 2d 322, 324

(Ala. 1989) (finding outrage where the defendant made sexually charged and offensive

comments and “put his arm around the plaintiffs, grabbed their arms, and stroked their

necks”); Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F. Supp. 2d 1336, 1344–45 (M.D.

Ala. 2009) (finding outrage where defendant made sexually explicit and offensive

comments and “rubbed [the plaintiff's] leg”; blocked her path in the corridors of the plant;

grabbed and shook his genitals at her; intentionally bumped up against her; “hugged her”;

and repeatedly sexually propositioned her); Mills v. Wex-Tex Indus., Inc., 991 F. Supp.

1370, 1386 (M.D. Ala. 1997) (finding a claim for outrage where the defendant repeatedly

touched the plaintiff in a sexual way); Brewer, 946 F. Supp. at 936 (finding outrage where

a supervisor touched the plaintiff's buttocks and breasts, pressed against her, and made

sexual propositions).

While Andrews’ conduct was reprehensible and egregious, the Plaintiff has failed

to allege sufficient facts to be entitled to default judgment on her claim of outrage. The

Plaintiff’s allegations revolve around Andrews’ racially abhorrent language that was

repeatedly directed at her. The Plaintiff does not allege that she was in any way assaulted

or otherwise physically accosted by Andrews. While Collins alleges that Andrews’

conduct was “so outrageous in character and so extreme in degree as to go beyond all

possible bounds of decency,” she fails to allege any facts that place her race discrimination

or hostile work environment claim in the realm of the extremely limited conduct that

constitutes the tort of outrage. While the Court finds Andrews’ conduct offensive and

appalling, as pled, the Plaintiff’s allegations are insufficient under Alabama law to entitle

the Plaintiff to default judgment on her claim of outrage.

4. Invasion of Privacy Claim

Alabama “recognizes that the wrongful intrusion into one's private activities

constitutes a tort known as the invasion of privacy.” Alabama Electric Co–Operative, Inc.

v. Partridge, 284 Ala. 442, 445, 225 So.2d 848, 851 (1969). The Alabama Supreme Court

set out the “four distinct wrongs” of the tort of invasion of

privacy: 1) the intrusion upon the plaintiff's physical solitude

or seclusion; 2) publicity which violates the ordinary

decencies; 3) putting the plaintiff in a false, but not necessarily

defamatory, position in the public eye; and 4) the appropriation

of some element of the plaintiff's personality for a commercial

use. See Hogin v. Cottingham, 533 So.2d 525, 528 (Ala.1988).

Johnson v. Corp. Special Servs., Inc., 602 So. 2d 385, 387 (Ala. 1992) (internal quotations

omitted).

In her complaint, the Plaintiff alleges the following in support of her claim on

invasion of privacy.

In January 2020, Defendant committed a tortious invasion of

privacy by wrongfully intruding into Plaintiff’s private

activities and affairs in an indecent and offensive manner and

for an immoral and unlawful purpose so as to outrage or cause

mental suffering, shame or humiliation to a person or ordinary

sensibilities and thereby invaded Plaintiff’s privacy.

(Doc. 1 at 9, para. 44).

Beyond these conclusory allegations, the Plaintiff fails to allege sufficient facts to

support a claim of invasion of privacy under Alabama law. The Court declines to enter

default judgment on this claim.

C. Damages

After careful consideration of the pleadings, the briefs and evidence submitted, the

Court concludes that a hearing is not necessary to award the Plaintiff damages. In her

affidavit submitted in support of her motion for default judgment, Collins asserts that

Andrews’ comments occurred during her eight-year tenure at Allied Fence Company and

culminated in his tirade in January 2020. (Id.) Collins also presents a handwritten letter

from Andrews to Collins’ attorney in which he does not dispute the recording referenced

in the complaint and provided to the Court in evidence. (Doc. 21-2 at Ex. A). The letter,

in its entirety, reads as follows:

All statemen she recorder is the truth. I stand behind them If

she had not talk back to me this fuss would not happen. She

would not do as I ask. Then given me order she made me mad

and I tool her off. And this was in private until she made it

public. All she wants is a free ride.

(Id.) (errors in original).

1. Back Pay

Collins first requests back pay from the date of her termination, January 24, 2020,

to entry of judgment. She presented evidence that her annual salary at Allied Fence was

$22,180.64. “The purpose of relief under the federal employment anti-discrimination laws

is to make persons whole for injuries suffered on account of unlawful employment

discrimination.” U.S. E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244,

1251 (11th Cir. 1997) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418–19

(1975) (a Title VII case) (internal quotations omitted)); Virgo v. Riviera Beach Assocs.,

Ltd, 30 F.3d 1350, 1363 (11th Cir. 1994). Thus, the Court concludes that Collins is entitled

to an award of back pay.

However, the Plaintiff is also required to mitigate her damages. While mitigation

is required by statute in Title VII cases, mitigation of damages under § 1981 is consistent

with the statutory duty established in other employment discrimination cases. See

Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 591 (5th Cir. 1998)

reinstated on reh’g 182 F.3d 333 (5th Cir. 1999) (en banc) (“Because an award of back

pay is an equitable remedy designed to make the injured party whole, ... an injured party

has a duty under both § 1981 and Title VII to use reasonable diligence to attain

substantially similar employment and, thereby, mitigate damages.”); see also generally

Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231 (11th Cir. 1982) (plaintiff has a “statutory

duty to minimize damages” in a Title VII case); Murphy v. City of Flagler Beach, 846 F.2d

1306, 1309–10 (11th Cir. 1988) (federal rule of mitigation applies in § 1983 cases).

Thus, the Court concludes that Collins is required to mitigate her damages. The

evidence before the Court demonstrates that Collins was unemployed between February

2020 and August 2020 when she secured employment with the United States Postal

Service. Although Collins suggests that there should be no offset because she has to travel

further and works more hours, she provides the Court with no authority for that proposition.

Thus, the Court finds that Collins is entitled to back pay from the date of her constructive

discharge in January 2020 until she secured employment with the United States Postal

Service in August 2020. The Court concludes that Collins is entitled to back pay in the

amount of $14,787.09 which equates to eight (8) months of back pay plus prejudgment

interest.

2. Front Pay

Collins also seeks damages in the amount of two years of front pay. While

reinstatement is a preferred remedy in a constructive discharge case, in extenuating

circumstances, “a trial court may award a plaintiff front pay in lieu of reinstatement.” U.S.

E.E.O.C. v. W&O, Inc., 213 F.3d 600, 619 (11th Cir. 2000). In determining whether to

award front pay, “courts look to whether discord and antagonism between the parties would

render reinstatement ineffective as a make-whole remedy.” Id. (internal citations and

quotation marks omitted). In this case, the Court finds that reinstatement is not a viable

remedy for Collins.

However, the burden of proof is on Collins to prove her damages. This she fails to

do. Collins presented no evidence of the difference in her current salary and her salary at

Allied Fence. She provides no evidence of her lost benefits. Accordingly, the Court

concludes that an award of front pay is not supported on this record.

3. Mental Anguish and Pain and Suffering

Collins seeks damages for mental anguish and pain and suffering. Compensatory

damages are available under § 1981 to compensate Collins for the emotional distress that

resulted from Andrews’ discriminatory conduct. See Stallworth v. Shuler, 777 F.2d 1431,

1435 (11th Cir. 1985). However, “[u]nder Carey v. Piphus, 435 U.S. 247, 263–64, 98 S.Ct.

1042, 1052–53, 55 L.Ed.2d 252 (1978), compensable damage may not be presumed but

must be proven.” Id. In support of her claim for compensatory damages, Collins asserts

that she is “still very hurt and [she] still can’t sleep.” (Doc. 21-1 at 3). She further sought

treatment for anxiety and depression. (Id.). Accordingly, the Court concludes that Collins

is entitled to an award of compensatory damages in the amount of $50,000 plus

prejudgment interest.

4. Punitive Damages

Collins also requests punitive damages in the amount of ten times compensatory

damages to punish Andrews for his reprehensible behavior. While due process prohibits

“the imposition of a grossly excessive or arbitrary” award, punitive damages are permitted

in a § 1981 discrimination case. See Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,

1282 (11th Cir. 2008); see also Stallworth, 777 F.2d at 1435 (“Punitive damages are of

course available under 42 U.S.C. § 1981 . . . where the defendant’s conduct is shown to be

motivated by evil motive of intent, or when it involves reckless or callous indifference to

the federally protected rights of others.”)(internal quotation marks omitted)).

“Perhaps the most important indicium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defendant's conduct.” BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 575 (1996). See also Williams v. First Advantage LNS Screening

Solutions, Inc., 947 F.3d 735, 749 (11th Cir. 2020).

In considering the reprehensibility of the defendant's

conduct—“[t]he most important indicium of the

reasonableness of a punitive damages award”—the Court

articulated the following five factors as relevant: (1) whether

the harm caused was physical, rather than economic; (2)

whether the defendant's conduct “evinced an indifference to or

a reckless disregard of the health or safety of others”; (3)

whether the target of the conduct was financially vulnerable;

(4) whether “the conduct involved repeated actions or was an

isolated incident”; and (5) whether the harm resulted from

“intentional malice, trickery, or deceit, or mere

accident.” Id. at 419, 123 S.Ct. 1513 (quotation marks

omitted).

Williams, 947 F.3d at 749.

The Court has little difficulty determining that the factors weigh in favor of an award

of punitive damages. While Andrews’ conduct was not physical but economic in nature,

his conduct “evinced an indifference to” and “a reckless disregard” for Collins. Collins, as

Andrews’ employee, was financially vulnerable and dependent on her employment.

Andrews’ conduct was not an isolated instance but conduct that continued for years,

culminating in the January 2020 incident. Finally, it is clear that Andrews’ conduct was

intentional and designated to denigrate, diminish, and offend Collins.

Punitive damages “are aimed at deterrence and retribution.” State Farm Mut. Auto.

Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003); Pacific Mut. Life Ins. Co. v. Haslip, 499

U.S. 1, 19 (1991) (“punitive damages are imposed for purposes of retribution and

deterrence.”). In this case, based on the need to punish and deter Andrews, the Court

concludes that an award of punitive damages is warranted. In determining the amount of

punitive damages to award, the Court is cognizant that the Supreme Court has stated that

“in practice, few awards exceeding a single-digit ratio between punitive and compensatory

damages, to a significant degree, will satisfy due process.” State Farm Mut. Auto. Ins. Co.

v. Campbell, 538 U.S. 408, 425 (2003).

Andrews’ actions are reprehensible, and he has expressed no remorse. The Court

concludes that an award of punitive damages in the amount of $150,000, which is three

times the amount of compensatory damages, is an appropriate award in this case.

D. Attorney’s fees award

Collins also requests an award of attorney’s fees on her federal claims. “In the

United States, parties are ordinarily required to bear their own attorney’s fees—

the prevailing party is not entitled to collect from the loser. . . . Congress, however, has

authorized the award for attorney’s fees to the ‘prevailing party’ in numerous statutes”

including § 1988(b).7 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health &

Human Res., 532 U.S. 598, 602 (2001). “In order to be eligible for attorney's fees under §

1988, a litigant must be a ‘prevailing party.’” Hewitt v. Helms, 482 U.S. 755, 759 (1987).

The Plaintiff may be a prevailing party for § 1988 attorney's fees purposes if she

“succeed[s] on any significant issue in litigation which achieves some of the benefit [she]

sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)(citation omitted)

(alterations added).

Because the Plaintiff has prevailed on her race discrimination, hostile work

environment and retaliation claims, she is a prevailing party and entitled to an award of

7 42 U.S.C. § 1988(b) provides as follows:

In any action or proceeding to enforce a provision of section[ ] ... 1981 ...

the court, in its discretion, may allow the prevailing party, other than the

United States, a reasonable attorney's fee as part of the costs, . ..”

Id.

attorney’s fees. See Goldsmith, 513 F.3d at 1292. However, the Plaintiff has failed to

provide any competent evidence to support her claim for $30,000 in attorney’s fees.8

Accordingly, the Court will deny the Plaintiff’s request for attorney’s fees without

prejudice with leave to refile.

IV. CONCLUSION

For the reasons as stated and upon consideration of the record as a whole, it is

ORDERED as follows:

1. The motion for default judgment (doc. 19) is GRANTED as to the Plaintiff’s

§ 1981 claims and judgment will be entered in favor of the Plaintiff and against the

Defendants on these claims.

2. The Plaintiff is awarded back pay in the amount of $14,787.09 plus

prejudgment interest for the default judgment on her § 1981 claims.

3. The Plaintiff is awarded compensatory damages in the amount of $50,000

plus prejudgment interest for the default judgment on her § 1981 claims.

4. The Plaintiff is awarded punitive damages in the amount of $150,000 plus

prejudgment interest for the default judgment on her § 1981 claims.

5. The Plaintiff’s request for front pay is DENIED.

6. The motion for default judgment is DENIED with respect to the Outrage and

Invasion of Privacy claims.

8 In her motion, Collins’ attorney asserts that attorney’s fees to date are approximately $30,000. (Doc. 21

at 22).

7. The Plaintiff’s request for attorney’s fees is DENIED without prejudice with

leave to refile.

8. The Plaintiff’s motion for a hearing on damages (doc. 19) is DENIED as

moot.

The Clerk of Court is DIRECTED to mail to this Memorandum Opinion and Order

and the Final Judgment to the address reflected on docket for the Defendants.

A final judgment will be entered in accordance with the Court’s Order.

DONE this 28th day of September, 2022.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE