United States District Court, E.D. Louisiana
DENISE A. BADGEROW
REJ PROPERTIES, INC., ET AL.
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
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).
reasons that follow, the motion is GRANTED.
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
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
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.
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.
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
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.
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.
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).
filed the instant action and jury demand on September 22,
2017, against WMT and Ameriprise. 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),  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 as well as a breach of contract claim.
moves for summary judgment on all of Badgerow's remaining
WMT's Motion for Summary Judgment
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.
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)).
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. 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)).
Hostile Work Environment
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.
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.
second facet of Badgerow's hostile work environment claim
is that the rest of the office staff, with the exception of
Walters and Trosclair,  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.
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.
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)).
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
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
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. Id. at 128.
Simply, Badgerow has no evidence to suggest that anyone
else's conduct toward her specifically was related to her
gender.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.
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,  Badgerow has not
demonstrated that those messages were so pervasive or so
severe as to alter the conditions of her work environment.
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.
WMT is entitled to judgment as a matter of law on
Badgerow's federal and state law gender-based hostile
work environment claim.
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
argues that Badgerow cannot establish a prima facie claim of
retaliation under Title VII because she did not engage ...