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Badgerow v. Rej Properties, Inc.

United States District Court, E.D. Louisiana

May 28, 2019

DENISE A. BADGEROW
v.
REJ PROPERTIES, INC., ET AL.

         SECTION: "A" (2)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         The following motion is before the Court: Motion for Summary Judgment (Rec. Doc. 73) filed by defendant REJ Properties, Inc. d/b/a Walters, Meyer, Trosclair & Associates. Plaintiff Denise A. Badgerow opposes the motion. The motion was submitted for consideration on the briefs upon receipt of Defendant's reply memorandum on April 15, 2019. (Rec. Doc. 110, Order setting deadlines).

         For the reasons that follow, the motion is GRANTED.

         I. Background

         Plaintiff Denise Badgerow (“Badgerow” or “Plaintiff”) has filed this action against her former employer, REJ Properties, Inc. d/b/a Walters, Meyer, Trosclair & Associates (“WMT”), and Ameriprise Financial Services, Inc. Ameriprise is a registered broker dealer that offers financial products and services to customers through several models, including through a franchisee-based platform of independent advisors who own and operate their own businesses as franchises. Ameriprise's principal place of business is located in Minneapolis, Minnesota.

         WMT was a small private financial advisory practice affiliated with Ameriprise. The principals of WMT were Gregory Walters, Thomas Meyer, and Ray Trosclair, and those individuals were Ameriprise Franchise Financial Advisors during the period of Badgerow's employment. WMT was a d/b/a or branding name recognized by Ameriprise to allow franchise advisors to practice and market as a team, and it was operated and managed by Walters, Meyer, and Trosclair. WMT was domiciled in Lafourche Parish, with its main office located in Thibodaux, Louisiana.[1]

         REJ Properties, Inc. was a corporate entity that WMT used when a juridical entity was necessary to WMT's operations. REJ Properties is the entity that paid WMT's employees during the time of Badgerow's employment.[2]

         Greg Walters was the principal who hired Badgerow in January 2014. Badgerow completed a 90-day probationary period with WMT, and was ultimately promoted to Associate Financial Advisor (“AFA”), a title recognized by Ameriprise, when she passed her Series 7 exam. Walters mentored Badgerow throughout the brief period of time that she was with WMT and he helped to shape her career.

         Becoming an AFA was significant in that Badgerow would now be eligible to earn commissions. One of Badgerow's claims in this case is that WMT retroactively changed her compensation structure in October 2014 after she made a large commissioned sale.

         Badgerow contends that she was ill-used in a myriad of ways during her employment at WMT and she attributes this to her gender. Badgerow contends that she was bullied by Thomas Meyer as well as her female co-workers in the office.

         On July 26, 2016, Walters terminated Badgerow after she declined to voluntarily resign. Badgerow contends that Walters terminated her in retaliation for speaking with Marc Cohen, who works for Ameriprise. During a telephone evaluation Badgerow had told Cohen that WMT was not paying her commissions through the Ameriprise-approved system. Badgerow had also complained to Cohen that she was being treated poorly at WMT.

         Badgerow filed a Charge of Discrimination against WMT on September 8, 2016, claiming gender discrimination and retaliation. (Rec. Doc. 27-3 at 5). On October 6, 2016, she amended the charge to include class allegations. (Id. at 8). On June 27, 2017, the EEOC issued a dismissal and notice of rights (Id. at 13).

         Badgerow filed the instant action and jury demand on September 22, 2017, against WMT and Ameriprise.[3] Badgerow's original complaint alleged eleven causes of action against WMT, including claims for violations of Title VII (gender-based hostile work environment and retaliation), [4] and the Equal Pay Act, 29 U.S.C. § 206(d)(1) (disparate pay based on gender). Badgerow also brought a claim for disparate treatment based on gender[5] as well as a breach of contract claim.

         WMT now moves for summary judgment on all of Badgerow's remaining claims.[6]

         II. WMT's Motion for Summary Judgment

         WMT now moves for summary judgment arguing that Plaintiff's claims of discrimination, harassment, and retaliation should be dismissed because she does not present a prima facie case as to those claims nor create a triable issue of fact on the merits. WMT argues that Badgerow's Equal Pay Act claim is time-barred in whole or in part, and that she otherwise has failed to present evidence of any gender-based disparity in pay. Finally, WMT argues that Badgerow's breach of contract claim fails because she has no evidence of an agreement to pay her a fixed salary plus commission after she became an AFA.[7]

         Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-movant, "show that there is no genuine issue as to any material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).

         When faced with a well-supported motion for summary judgment, Rule 56 places the burden on the non-movant to designate the specific facts in the record that create genuine issues precluding summary judgment. Jones .v Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996). The district court has no duty to survey the entire record in search of evidence to support a non-movant's position.[8] Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).

         1. Hostile Work Environment

         Badgerow worked closely with Greg Walters, the principal who hired her. Walters was the sole principal with authority to fire Badgerow. (Badgerow depo. at 55). Badgerow has never suggested that Walters contributed to the allegedly abusive environment at WMT. In fact, it is clear that Walters did everything he could to help Badgerow succeed at WMT, and that he protected her a lot. Id. at 197. Walters gave Badgerow the same split of new business leads that he gave to his own nephews and he did this because he is a nice person. Id. at 93.

         Badgerow's hostile work environment claim appears to have two facets. First, Badgerow complains that Thomas Meyer, one of the other principals at WMT, subjected her to unwelcome harassment that was not sexual in nature. Badgerow testified that Meyer, with whom she rarely dealt with in person, bullied her by using Skype software messages and email. Badgerow felt singled out. (Badgerow depo. at 153). Meyer would send her messages like “I know what you said, ” and then when Badgerow would ask him what he meant he would not explain. Id. Badgerow deleted Skype from her computer but Meyer stood over her desk and made her reinstall it. Id. He also came by her desk one evening and told her that “I just want to let you know that no one is jealous of you.” Id. at 247. Badgerow attributes Meyer's negative treatment of her to her gender. Badgerow believes that Meyer treated her poorly because she was the only client-facing AFA, and that she refused to work as an assistant to Walters.[9]

         The second facet of Badgerow's hostile work environment claim is that the rest of the office staff, with the exception of Walters and Trosclair, [10] bullied her because “they” would schedule events, and then change the plans without telling her. (Badgerow depo.at 127). Badgerow claims that she was constantly excluded from things. Id. at 195.

         WMT argues that Badgerow has no evidence to support her hostile work environment claim. In particular, WMT argues that the statements that Badgerow does complain about are not linked to her gender, and they fail as a matter of law to be sufficiently severe or pervasive so as to support a claim for gender based hostile work environment discrimination. As to any ill treatment by either Meyer or other members of the office staff, WMT points out that Badgerow was a disruptive employee who was generally disliked by her co-workers.

         To establish a claim of hostile work environment under Title VII a plaintiff must prove that she 1) belongs to a protected group; 2) was subjected to unwelcome harassment; 3) the harassment complained of was based on gender; 4) the harassment complained of affected a term, condition, or privilege of employment; 5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005) (citing Green v. Admin. of Tulane Educ. Fund, 284 F.3d 642, 655 (5th Cir. 2002); Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298-99 (5th Cir. 2001)). Conduct sufficient to create a hostile working environment must be severe or pervasive. Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998)). To be actionable, the alleged harassment must have created an environment that a reasonable person would find hostile or abusive. Id. (citing Woods, 274 F.3d at 299). Whether an environment is hostile or abusive depends on the totality of the circumstances, including factors such as the frequency of the conduct, its severity, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance. Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).

         The conduct that Badgerow complains about is insufficient as a matter of law to support a gender-based claim for hostile work environment. First of all, regardless of how abusive or hostile Badgerow perceived her work environment to be, neither the comments from Meyer nor the “bullying” of the other coworkers (who were female and not identified with any specificity) suggest any type of gender bias. Badgerow had been told from the beginning that many people at the WMT office did not like her, (Badgerow depo. at 157), and she knew that Meyer and her female co-workers had a negative opinion about her because of the way that she treated other people, id. at 118, 158. At times others found Badgerow to be discourteous and unprofessional and Badgerow knew this although she viewed it as other people just perceiving her differently. Id. at 40. The comments and the co-workers' conduct are just as consistent (if not more so) with dislike for Badgerow as with gender discrimination and the former is not proscribed by law.

         Further, it is now clear that several of Badgerow's co-workers, both male and female, lobbied Walters to fire Badgerow because they believed that her treatment of others, which they at times perceived as being cruel, rude, disrespectful, and mocking, negatively affected the environment of the small office. (Rec. Doc. 73-4, Exhibit A Greg Walters decl.; Rec. Doc. 73-7, Exhibit E Hornsby decl.; Exhibit H Andrew Walters decl.; Exhibit J Nathan Walters decl.). The record contains evidence of this discord and dislike that predates both Walters' decision to terminate Badgerow and this litigation. (Rec. Doc. 73-7 Exhibit I-1, Lynna Marcel text).[11]

         Moreover, Meyer made crass (although never sexual or lewd) comments to other employees besides Badgerow, including male employees. (Rec. Doc. 73-6, Exhibit D Transcript at 127). In her arbitration testimony Badgerow acknowledged that Meyer used Skype to say hurtful things to other employees and to put them down. Id. at 126. Badgerow believed generally that the atmosphere at the office suffered due to Meyer's conduct so she was not singled out.[12] Id. at 128. Simply, Badgerow has no evidence to suggest that anyone else's conduct toward her specifically was related to her gender.[13]But because Badgerow believes that she did nothing wrong and that everyone else acted unjustly in disliking her, she surmises that by default their conduct could only be linked to her gender. Unlawful discrimination must be proven affirmatively, not by default, and Badgerow's subjective belief is insufficient to create a triable issue of fact.[14]

         But even if Meyer's comments and the other co-workers' conduct had been indicative of gender bias, that conduct does not rise to the level of severity so as to have altered the conditions of Badgerow's employment. Badgerow did not work directly with Meyer and she rarely interacted with him in the office. In fact, Badgerow believes that Meyer tried to avoid interacting with her in the office. (Badgerow depo. at 118). Badgerow has not produced a single discriminatory email or discriminatory text from Meyer, and the comments and behavior that she describes in her deposition are not particularly abusive or worse than the way that Meyer acted with other male employees. Accepting as true Badgerow's claims as to the Skype messages, [15] Badgerow has not demonstrated that those messages were so pervasive or so severe as to alter the conditions of her work environment.

         In that vein, there is no evidence whatsoever that Meyer's or anyone else's conduct at the office interfered with Badgerow's job performance. Badgerow not only rejects WMT's contention that her job performance was mediocre, she considered herself to be performing quite well at WMT. (Badgerow depo. at 245). And Badgerow was hardly cowed by anyone's conduct at the office. She was comfortable confronting Meyer in person about his comments (Badgerow depo. at 215) and getting “in his face” to try to get him to explain himself. (WMTA-000056, Text). Although Badgerow alleged in her Complaint that she was driven to seek medical attention for depression, stress, and anxiety, (Complaint ¶ 22), no evidence of such was produced.

         In sum, WMT is entitled to judgment as a matter of law on Badgerow's federal and state law gender-based hostile work environment claim.

         2. Retaliation

         Badgerow contends that Walters terminated her employment with WMT in retaliation for complaining to him about Meyer's bullying, and in retaliation for complaining to Marc Cohen about 1) the way her commissions were paid at WMT, and 2) the poor treatment she received at WMT, which Badgerow admitted could have been a product of nepotism and not gender discrimination.

         WMT argues that Badgerow cannot establish a prima facie claim of retaliation under Title VII because she did not engage ...


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