United States District Court, E.D. Louisiana
CG & JS ENTERPRISES, LLC, ET AL.
H&R BLOCK, INC., ET AL.
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JJUDGE.
following motion is before the Court: Motion for
Summary Judgment (Rec. Doc. 72) filed by defendant
H&R Block Tax Services, LLC. Plaintiffs CG & JS
Enterprises, LLC, Christopher Gibbens, and Johnny Shaw oppose
the motion. The motion, submitted for consideration on
November 1, 2017, is before the Court on the briefs without
oral argument. For the reasons that follow, the motion is
Christopher Gibbens and Johnny Shaw own the legal entity, CG
& JS Enterprises, LLC, also a plaintiff herein. Both
Gibbens and Shaw were employed by H&R Block Tax Services,
LLC (“HRB”) as district managers. Gibbens
resigned his employment with HRB in January 2013 under
amicable circumstances. (Rec. Doc. 72-2, Def. Exhibit 1,
Gibbens 1/23/13 email to Ricks).
April 2013, HRB franchisee David Sewell contacted HRB to
advise that he and his wife wished to terminate their HRB
franchise (DAP Technologies, LLC) due to financial burdens.
(Rec. Doc. 72-8, Def. Exhibit 7, Sewell 4/28/13 email to
Casey). Shaw contends that Sewell approached him about
purchasing the franchise and he became immediately interested
due to the economic potential of DAP's location. (Rec.
Doc. 101-3, Pla. Exhibit 1, Shaw Affidavit). According to
Shaw, he and Sewell reached an agreement but Sewell
couldn't simply transfer his franchise agreement to a
purchaser; HRB had a contractual right of first refusal to
purchase the franchise and any new franchisee would have to
be approved by HRB.
Shaw had continued his employment with HRB but apparently not
without difficulty. In May 2013 Shaw received an unfavorable
performance appraisal from his supervisor. (Rec. Doc. 72-3,
Def. Exhibit 2, Johnson 5/30/13 email to Shaw). Shaw had also
filed a charge of racial discrimination and harassment
against his immediate supervisor, Calvin Ricks, and
May and early June 2013, Ms. Stacy Tyler with HRB was working
with Sewell to assist him in completing the steps necessary
to sell the franchise. (Rec. Doc. 101-5, Pla. Exhibit 4,
Tyler emails to Sewell). The record contains an HRB Letter of
Intent (LOI) to Transfer Franchise dated May 30, 2013, which
was executed in part by Sewell and in part by Shaw. (Rec.
Doc. 72-10, Def. Exhibit 9).
8, 2013, Tyler emailed Shaw directly to ask him to confirm
that he was going to move forward with purchasing the
franchise from Sewell so that the paperwork could be sent to
legal. (Rec. Doc. 101-6, Pla. Exhibit 5, Tyler 6/8/13 email
to Shaw). Shaw responded in the affirmative, and within
minutes Tyler replied: “I do not believe you can be
both a franchise owner and employed by the company. Is this
something you are aware of?” (Rec. Doc. 101-22, Pla.
Exhibit 21, Tyler 6/9/13 email to Shaw). Shaw replied,
“yes.” (Id.). Less than one hour later
Ms. Tyler emailed:
Just sn [sic] FYI, your resignation is contingent
upon approval. Therefore, it is important that
your field leader be aware of your desire to become a
franchisee and that if you are approved you would want to
coordinate a transition plan, etc.
If we're in the same page, I'll proceed with the LOI
so company can look at FROR.
(Rec. Doc. 101-7, Pla. Exhibit 6, Tyler 6/9/13 email to Shaw)
28, 2013, Ms. Lori K. Potts-Wisner sent Shaw numerous
documents to be completed as a potential buyer of the DAP
franchise. (Rec. Doc. 72-11, Def. Exhibit 10, Potts-Wisner
6/28/13 email to Shaw). The transmittal states that the
documents were needed “to prepare the final approval
package for review by the Market VP.” (Id.).
1, 2013, an employee with HRB advised Shaw that HRB would not
be pursuing its right of first refusal to purchase the DAP
franchise. (Rec. Doc. 101-9, Pla. Exhibit 8, High 7/1/13
email to Shaw).
Shaw had decided to voluntarily resign because on July 29,
2013, Ms. Geri Sutter sent Shaw a Confidential Separation and
Release Agreement for his consideration and approval. (Rec.
Doc. 72-7, Def. Exhibit 6). Shaw executed the Release and his
termination date was going to be August 2, 2013. The Release,
which has been filed under seal, details the mutual promises
that HRB and Shaw agreed to, including that Shaw would
voluntarily resign from HRB and settle his pending EEOC claim
in exchange for a significant lump sum monetary payment.
(Rec. Doc. 72-4, Def. Exhibit 3). Shaw received the monetary
consideration. (Rec. Doc. 72-5, Def. Exhibit 4, Pay Summary).
The detailed Release contains no promise related to or
reference whatsoever to Shaw's efforts to purchase the
record demonstrates that during September 2013,
communications between Christopher Gibbens and Potts-Wisner
continued (Rec. Docs. 72-12 & 72-13, Def. Exhibits 11
& 12), and on September 13, 2013, Potts-Wisner emailed
Gibbens and Sewell that she had received final approval for
the franchise transfer and would begin to prepare the
contract documents. (Rec. Doc. 72-14, Def. Exhibit 13). On
September 18, 2013, Potts-Wisner mailed the contract
documents to Shaw at a Denham Springs address. (Rec. Doc.
72-16, Def. Exhibit 15). The transmittal letter contains the
We are required by law to provide you with these documents no
less than seven calendar days prior to closing. Therefore, if
you receive this package on September 19, 2013, the first
date which you may return the original signed documents it
[sic] to me is September 27, 2013, but not before that date.
transmittal letter also contained a reminder that a $2500
deposit check would be ...