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Eichenberger v. Falcon Air Express Incorporated

United States District Court, D. Arizona

June 30, 2015

Lori Eichenberger, Plaintiff,
Falcon Air Express Incorporated, Defendant.


DAVID G. CAMPBELL, District Judge.

The Court previously decided to enter default judgment against Defendant Falcon Air and denied Defendant's motion to set aside the default. Docs. 32, 48. Plaintiff Lori Eichenberger has filed a proposed form of judgment, Defendant has responded, and Eichenberger has replied. Docs. 35, 41, 50. No party has requested oral argument. The Court will now enter default judgment.

I. Background.

Lori Eichenberger began working for Falcon Air in January of 2011. Doc. 1, ¶ 7. She was initially hired as a flight attendant with a wage of $21.85 an hour. Id., ¶¶ 7, 14. Falcon Air promptly promoted her to a "temporary base coordinator" position that paid her $26.35 an hour with an extra $500 per month. Id., ¶ 15. Eichenberger logged long hours, working an average of sixty to seventy hours per week. Id., ¶ 18. From February to December 2011, however, Falcon Air did not pay her for all the hours she worked and did not pay her the extra $500 per month as promised. Id., ¶¶ 17-19.

Gregory Vanek, a director of operations at Falcon Air, began to sexually harass Eichenberger in March of 2011. Id., ¶¶ 23-24. For example, he would say to Eichenberger "Oh my god you are so sexy" and "I want you." Id., ¶¶ 24-25, 28. He would bump into Eichenberger, wrap his arms around her, and ask her to give him a kiss. Id., ¶ 27. He would offer to take Eichenberger on trips and vacations. Id., ¶¶ 29-30. He would tell other employees at Falcon Air that he wanted to have sex with Eichenberger. Id., ¶ 33. When Eichenberger asked Vanek for help at work, Vanek would make comments such as "Why would I give that to you, when you do not give me anything?" Id., ¶ 35. This occurred from March to December of 2011, and Eichenberger consistently rejected Vanek's advances. Id., ¶ 31.

Eichenberger began to suffer problems with her health. In December of 2011, she requested a leave of absence. Id., ¶¶ 36-37. Falcon Air claimed that it had not received the relevant paperwork, even though both Eichenberger and her medical provider had sent the documents to Falcon Air. Id., ¶¶ 37-39. Eichenberger eventually resolved the missing-paperwork issue with the help of Gus Fuerte, a human resources director at Falcon Air. Id., ¶¶ 39-40. Eichenberger complained to Fuerte that the misplacement of the medical paperwork, as well as the lost work time she suffered as a result, seemed to be happening because she had rejected Vanek's sexual advances. Id., ¶ 42.

Eichenberger also complained about Vanek's harassment to Cindy Nicholson, a manager at Falcon Air. Id., ¶ 41. She forwarded to Nicholson inappropriate text messages that she had received from Vanek. Id. Eichenberger believes that neither Fuerte nor Nicholson investigated her complaints. Id., ¶¶ 47-48. In February and March of 2012, Eichenberger had to take several days off for health reasons. Id., ¶¶ 43-44. She was suffering from a bronchial infection, strep throat, and injuries from a car accident. Id., ¶¶ 43-44. On March 12, 2012, Nicholson e-mailed Eichenberger that she was being fired for being absent from work. Id., ¶ 45.

Eichenberger believes that she was fired for having rejected Vanek's sexual advances. Id., ¶ 46. After receiving a notice of right to sue from the EEOC, she filed this suit. The Court partially granted a motion to dismiss, leaving Eichenberger with six claims against Falcon Air: three under Title VII, two under the Family and Medical Leave Act ("FMLA"), and one under the Fair Labor Standards Act ("FLSA").

II. Default Judgment Factors.

In deciding whether to grant default judgment, the Court may consider: (1) the possibility of prejudice to the plaintiff, (2) the merits of the claim, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the policy favoring a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In applying the Eitel factors, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977).

A. Possible Prejudice to Plaintiff.

The first Eitel factor weighs in favor of entering default judgment. Falcon Air prejudiced Eichenberger by failing to produce documents, delaying the case, and failing to appear at a hearing and case-management conference.

B. The Merits of Plaintiff's Claims and the Sufficiency of the Complaint.

The second and third Eitel factors favor a default judgment where the complaint sufficiently states a claim for relief. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002). For this factor, the Court must "consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.'" Landstar Ranger, Inc. v. Parth Enterprises, Inc., 725 F.Supp.2d 916, 920 (C.D. Cal. 2010) (quoting Wright, Miller, et al., 10A Federal Practice and Procedure § 2688 (3d ed. 1998)). The Court will examine whether Eichenberger has adequately pled her six claims.

1. Title VII Sexual Harassment Claim.

A plaintiff may establish a sex-discrimination claim under Title VII by proving that sexual harassment created a hostile work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986); 42 U.S.C. § 2000e-2(a)(1). To establish this claim, a plaintiff must show that (1) she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. See Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1065 (9th Cir. 2002) (citing Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991)). The work environment "must be both objectively and subjectively offensive, one that a reasonable [woman] would find hostile or abusive, and one that the [plaintiff] in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). An employer's vicarious liability for sexual harassment "depends on the status of the harasser." Vance v. Ball State Univ., 133 S.Ct. 2434, 2439 (2013). If the harasser is a supervisor and the "harassment culminates in a tangible employment action, the employer is strictly liable." Id.

According to Plaintiff's complaint, Greg Vanek harassed her on several occasions. He made inappropriate comments such as "my god you are so sexy, " he embraced and kissed her, and he responded to her requests with comments such as "[w]hy would I give that to you, when you do not give me anything." Doc. 1, ¶¶ 24-35. This conduct was unwelcome, as shown by Eichenberger's repeated rejections of Vanek's advances. Id., ¶ 31. A reasonable woman would find Vanek's conduct to be hostile and abusive.

"[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison, 924 F.2d at 878. Vanek's conduct continued for nine months. Because Vanek was a supervisor and Eichenberger alleges that his harassment resulted in her firing, Falcon Air is vicariously liable. Eichenberger has stated a claim of sexual harassment under Title VII.

2. Title VII Sex Discrimination Claim.

Eichenberger claims that Falcon Air violated Title VII when it fired her on account of her sex. This claim presumably relies on the same statutory provision as does her sexual harassment claim. See 42 U.S.C. § 2000e-2(a). Because the Court has already determined that Eichenberger is entitled to relief under this provision, it is not necessary to address her additional claim.

3. Title VII Retaliation Claim.

To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in a protected activity under Title VII, (2) an adverse employment action was then taken against her, and (3) a causal link existed between the two events. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004); see 42 U.S.C. § 2000e-3(a). An employee engages in a "protected activity" when the employee complains about or protests conduct that the employee reasonably believes constitutes an unlawful employment practice. See Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir. 1994). An employment action is materially adverse if "it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks and ...

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