Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:07-cv-00013-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DIANE RECZEK, Plaintiff, v. JHA WILMINGTON, INC., Defendants. : : : : : : : :

CIVIL ACTION NO: 07-00013 (GMS)

PLAINTIFF'S MEMORANDUM IN SUPPORT OF CLAIM FOR DAMAGES NOW COMES plaintiff, Diane Reczek ("Ms. Reczek"), by and through her undersigned counsel, and submits this Memorandum in support of her claim for damages in the abovecaptioned action. The Court will recall that this memorandum was requested at the time of the damages hearing, April 11, 2008, to allow plaintiff to secure documents from plaintiff's file at the Delaware Department of Labor ("DDOL"). Relevant documents from Ms. Reczek's DDOL file are attached hereto as Exhibit A (documents dated December 2004 to November 2005), Exhibit B (January 2006 to May 2006), and Exhibit C (June 2006 to February 2007), all of which are incorporated herein by reference. I. BACKGROUND Ms. Reczek was employed by defendant, JHA Wilmington, Inc., d/b/a Tilton Terrace ("JHA"), starting in late December 2004, as a Licensed Practical Nurse and Unit Manager. Her starting rate of pay was $28.75/hour, which did not change during the course of her employment. Throughout Ms. Reczek's employment with JHA she was subjected to severe and pervasive harassment and discrimination based upon her race (white). Ms. Reczek described the treatment

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she endured from her supervisors and managers, as well as the impact this conduct had on her emotional and physical well-being, during her testimony on April 11. Counsel will not repeat this testimony here. The treatment was sufficiently damaging to Ms. Reczek that she sought medical treatment in September 2005 (a colonoscopy following bouts of diarrhea), and began treating with Xanax. Ms. Reczek continues to treat with Xanax to this day. Copies of Ms. Reczek's colonoscopy reports and a receipt for the Xanax (½ month - 15 tabs) are attached hereto as Exhibit D and are incorporated herein by reference. On September 16, 2005, Ms. Reczek filed an Intake Questionnaire with the DDOL, complaining of the racial discrimination she believed to exist at JHA. On September 19 Ms. Reczek informed JHA of her intent to resign, effective September 28. She was subsequently denied unemployment, and filed her formal Charge of Discrimination on November 8, 2005. Copies of the relevant documents from Ms. Reczek's DDOL file that show these events are attached as part of Exhibit A. JHA, through its original counsel, responded to and denied the Charge of Discrimination in a very detailed and comprehensive Position Statement that was filed with the DDOL on or about January 13, 2006. Several months later the DDOL responded with a request for additional information, which was supplied by JHA on May 30, 2006. Copies of JHA's submissions, and the DDOL's request for information, are attached as Exhibit B.1

The submissions by JHA are attached without the exhibits referenced therein. These exhibits are quite voluminous and contained information not relevant to the purposes of this damages memorandum.

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In addition to the additional document request, the DDOL conducted interviews of at least two witnesses (which were reduced to writing in the investigative file). On July 10, 2006 the DDOL issued a detailed letter that summarizes the positions of the parties, and describes in detail the conduct Ms. Reczek experienced while employed with JHA. The DDOL concluded that Ms. Reczek was subjected to dissimilar treatment because of her race. JHA was allowed additional time to provide a response to this letter, but instead its original counsel notified the DDOL of its withdrawal (July 21, 2006). No further submissions were made by JHA. The DDOL subsequently issued a "Final Determination and Right to Sue Notice," which found reasonable cause to believe that discrimination occurred. Mandatory conciliation was scheduled and completed on August 17, 2006.2 On January 9, 2007, Ms. Reczek filed her Complaint. JHA initially defended the action, through its second counsel, but counsel filed a motion to withdraw in May, 2007. An Entry of Default pursuant to F.R.C.P. 55(a) was entered in July 2007, and this memorandum follows the damages hearing that was held on April 11, 2008. Upon information and belief, JHA has ceased operations and has no assets. During her employment with JHA Ms. Reczek earned $28.75 an hour, or $59,800.00 per year. Having been denied unemployment, Ms. Reczek was unable to secure new employment for seven months, until April 2006. Her new position initially paid $25.00/hour, or $52,000.00 per year. While Ms. Reczek did receive annual increases, she has yet to attain the same level of compensation she received while employed with JHA. Copies of Ms. Reczek's last JHA pay

A separate Right to Sue Notice was issued by the Equal Employment Opportunity Commission on October 30, 2006, and this action was filed within ninety (90) days of that Notice.

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stub, her 2005 W-2 form, and her 2007 W-2 form (all redacted) are attached as Exhibit E and are incorporated herein by reference. Additionally, as was shown through her very emotional testimony during the damages hearing, Ms. Reczek continues to suffer considerable pain, anguish, and distress when she recounts her experience with JHA, and continues to treat with Xanax.

II.

SUMMARY OF DAMAGES Ms. Reczek's demand for damages includes the following categories: back and front pay;

medical costs and charges; emotional distress; punitive damages; attorney's fees and costs. A breakdown of each item follows: Back/Front Pay Using Ms. Reczek's JHA income ($28.75/hour or $59,800.00/year) as a baseline, her back and front pay damages are as follows: 1. 2. 3. 4. Seven (7) months of no income and no unemployment One (1) year at $25.00/hour ($52,000.00/year), salary differential One (1) year at $26.33/hour ($54,766.40/year), salary differential One (1) year of front pay at $27.65/hour ($57,512.00/year) $50,004.93 $ 34,883.33 $ $ $ 7,800.00 5,033.60 2,288.00

Total Back/Front Pay Damages

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Medical Costs A copy of the receipt for Ms. Reczek's Xanax prescription is attached as part of Exhibit D. Ms. Reczek pays $11.50 for 15 tabs of Xanax, or roughly a ½ month supply, and has done so since at least December 2005 (32 months). Total Medical Damages Emotional Damages Ms. Reczek continues to suffer severe and pervasive emotional trauma as a result of her experience with JHA. This was evident during the damages hearing on April 11, 2008. Ms. Reczek therefore seeks damages for her emotional distress in the amount of at least $150,000.00. Punitive Damages At no time did JHA raise any affirmative or statutory defenses with respect to damages. In light of the conduct of JHA, by and through its employees, Ms. Reczek is entitled to punitive damages in an amount of at least $150,000.00. Attorney's Fees and Costs Attached hereto as Exhibit F, and incorporated herein by reference, is the affidavit of Delaware counsel with respect to the attorney's fees and costs incurred in this action, and a statement from primary counsel with respect to his firm's fees and costs. Ms. Reczek was represented primarily by Kevin Lovitz, Esquire, of the Lovitz Law Firm in Philadelphia, Pennsylvania. Delaware counsel for this matter is G. Kevin Fasic, Esquire, of the Law Offices of G. Kevin Fasic, LLC. Attorney's Fees and Costs are as follows: $ 736.00

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1. 2. 3. 4.

For Mr. Lovitz (Fees) For Mr. Lovitz (Costs) For Mr. Fasic (Fees) For Mr. Fasic (Costs) $ 13,420.25

$ $ $ $

3,575.00 425.90 9,381.50 37.85

Total Attorney's Fees and Costs

III.

CONCLUSION Plaintiff Diane Reczek suffered immeasurably as a result of her treatment by defendant

JHA Wilmington, Inc., and continues to experience the trauma, pain, humiliation and embarrassment caused by the conduct of its employees. JHA is in default, and is presumed to be out of business. Nevertheless, Ms. Reczek is entitled to an award of her back and front pay, medical expenses, damages for emotional distress, punitive damages, and to recover her reasonable attorney's fees and costs. LAW OFFICES OF G. KEVIN FASIC

By: /s/ G. Kevin Fasic G. Kevin Fasic, Esquire (DE 3496) 1225 King Street, Suite 200 Legal Arts Building Wilmington, DE 19801 (302) 654-4501 - Telephone (302) 654-4406 - Facsimile [email protected] - E-Mail Dated: June 11, 2008

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