United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTIONS
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
an employment discrimination action brought by Tabitha Pearl
Ricks against her former employer, Friends of WWOZ, Inc.
(“Friends”); Beau Royster, Friends’s Chief
Financial Officer (“Royster”); and Beth
Utterback, Friends’s General Manager
(“Utterback”). Ricks asserted claims of
employment discrimination and retaliation based on race,
gender and disability under 42 U.S.C. § 1981
(“Section 1981”); Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17
(“Title VII”); the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq.
(“ADA”); the Louisiana Employment Discrimination
Law, La. R.S. 23:302; and the New Orleans Code of Ordinances,
Chapter 86. Record Doc. No. 18 (Amended Complaint at 1). This
matter was referred to a United States Magistrate Judge for
all proceedings and entry of judgment in accordance with 28
U.S.C. § 636(c) upon written consent of all parties.
Record Doc. No. 24.
defendants’ motions for partial summary judgment remain
pending. Record Doc. Nos. 28, 31. Plaintiff filed opposition
memoranda after being granted an extension of time to do so.
Record Doc. Nos. 49, 50. Defendants then filed replies.
Record Doc. Nos. 55, 56. Because defendants addressed
plaintiff’s Section 1981 claims for the first time in
their replies, I provided plaintiff an opportunity to oppose
those arguments in a supplemental memorandum and to address
certain ambiguities in her complaint. Record Doc. No. 59.
Plaintiff filed the supplemental memorandum. Record Doc. No.
60. I subsequently dismissed as moot in part and without
prejudice in part defendants’ motion for summary
judgment as to plaintiff’s claims against the
individual defendants, Record Doc. No. 29, except
plaintiff’s Section 1981 claims, which I reserved to
address in connection with the Title VII motion. Record Doc.
No. 62. Plaintiff also voluntarily dismissed all claims under
the New Orleans Municipal Code as to all parties. Record Doc.
No. 60 at p. 17.
considered the complaint, the record, the submissions of the
parties and the applicable law, IT IS ORDERED that the
motions are GRANTED for the following reasons.
UNDISPUTED MATERIAL FACTS
following material facts are accepted as undisputed solely
for purposes of the pending motions for summary judgment.
an African-American woman, was hired at Friends on June 1,
2016, as an Outreach Coordinator in the development
department with a salary of $36, 000 per year. Record Doc.
Nos. 50-3 at p. 1, ¶ 3; 50-4 at p. 13. On or around
August 1, 2017, Marcel McGee (“McGee”), an
African-American man, was hired as Director of Development.
Record Doc. Nos. 50-3 at p. 2, ¶ 8; 50-7 at p. 10.The
development department was subsequently reorganized and
restructured. Record Doc. Nos. 50-3 at p. 7, ¶ 42; 50-4
at p. 19. Friends had an Employee Handbook that contained
reporting policies for harassment and discrimination, among
other things. Record Doc. No. 50-10 at pp. 12–13.
September 15, 2017, Ricks emailed Royster requesting a
meeting to discuss “some [Human Resources] related
questions.” Record Doc. No. 50-11 at p. 1. They
scheduled their meeting to take place at 8:30 a.m. on
September 20, 2017 at CC’s Coffee shop on Esplanade
Avenue. Id. at pp. 1–2. On September 19, 2017,
the day before their scheduled meeting, Ricks cancelled the
meeting. Id. at p. 3.
October 31, 2017, Ricks emailed Royster outlining a complaint
she had against McGee. Record Doc. No. 50-12 at p. 1. Ricks
met with Royster on November 1, 2017. Record Doc. Nos. 50-3
at p. 5, ¶ 26. At Royster’s request, Ricks wrote
down her complaint, and Royster sent an email with her
complaint to Utterback. Record Doc. No. 50-12 at pp.
November 2, 2017, Royster met with McGee, and had him draft a
written response. Record Doc. No. 50-13 at pp. 3–4.
Utterback and Royster then met with McGee. Id.
Utterback and Royster interviewed Ricks’s colleagues in
the development department, including KaTrina Griffin
(“Griffin”), an African-American woman. Record
Doc. Nos. 50-3 at p. 6, ¶ 31; 50-5 at p. 17; 50-7 at p.
12; 50-13 at p. 4. Later that day, Ricks met with Royster and
Utterback, who informed plaintiff about the results of their
investigation. Record Doc. Nos. 50-3 at p. 6, ¶¶
32–36; 50-7 at p. 15; 50-8 at p. 21.
November 3, 2017, Ricks emailed the Human Resources Committee
of Friends’s Board of Directors (“Human Resources
Committee”) and filed a formal complaint against McGee.
Record Doc. No. 50-3 at p.7, ¶ 38; 50-18. On Monday,
November 6 or Tuesday, November 7, 2017, Ricks met with the
Human Resources Committee, which was comprised of Doug
Hammel, Deb Harkins and Judge Sidney Cates. Id. The
Human Resources Committee, in the course of their
investigation, again interviewed McGee. Record Doc. No. 50-9
at pp. 6–7.
her ADA claims, Ricks depends upon diagnoses of
post-traumatic stress and bipolar disorders, including
generalized anxiety, depression, panic attacks and
sleeplessness. Record Doc. No. 50-4 at pp. 25–29.
tendered her resignation on November 16, 2017. Record Doc.
No. 31-9 at p. 53. On November 17, 2017, the Human Resources
Committee notified Ricks in writing that the committee was
“unable to substantiate the alleged violations of
[Friends’s] Equal Opportunity Employment policy . . .
and accordingly determined that no remedial action would be
taken at this time.” Record Doc. No. 31-9 at p. 49.
Shortly after her departure from Friends on November 16,
2017, Ricks began working at Voice of the Experienced or
Voters Organized To Educate (“Voters”) at an
increased salary of $45, 000 per year and retained her
position there until June 2018. Record Doc. No. 50-4 at p. 8.
Legal Standards for Summary Judgment Motion
party may move for summary judgment, identifying each claim
or defense–or the part of each claim or
defense–on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56, as revised effective December 1, 2010, establishes
procedures for supporting factual positions:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the
cited materials, but it may consider other materials in the
(4) Affidavits or Declarations. An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.
Fed. R. Civ. P. 56(c).
the moving party bears the initial burden of identifying
those materials in the record that it believes demonstrate
the absence of a genuinely disputed material fact, but it is
not required to negate elements of the nonmoving
party’s case. Capitol Indem. Corp. v. United
States, 452 F.3d 428, 430 (5th Cir. 2006) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“[A] party who does not have the trial burden of
production may rely on a showing that a party who does have
the trial burden cannot produce admissible evidence to carry
its burden as to [a particular material] fact.”
Advisory Committee Notes to 2010 Amendments to Rule 56
(quoted in Federal Civil Judicial Procedure and
Rules, at p. 229 (Thomson Reuters 2019 ed.)
is “material” if its resolution in favor of one
party might affect the outcome of the action under governing
law. Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986). No genuine dispute of material fact exists if a
rational trier of fact could not find for the nonmoving party
based on the evidence presented. Nat’l Ass’n
of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d
698, 712 (5th Cir. 1994).
withstand a properly supported motion, the nonmoving party
who bears the burden of proof at trial must cite to
particular evidence in the record to support the essential
elements of its claim. Id. (citing Celotex,
477 U.S. at 321–23); accord U.S. ex rel. Patton v.
Shaw Servs., L.L.C., 418 F. App’x 366, 371 (5th
Cir. 2011). “[A] complete failure of proof concerning
an essential element of the nonmoving party’s case
renders all other facts immaterial.” Celotex,
477 U.S. at 323; accord U.S. ex rel. Patton, 418 F.
App’x at 371.
controversies are construed in the light most favorable to
the nonmovant, but only if both parties have introduced
evidence showing that an actual controversy exists.”
Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th
Cir. 1998); accord Murray v. Earle, 405 F.3d 278,
284 (5th Cir. 2005). “We do not, however, in the
absence of any proof, assume that the nonmoving party could
or would prove the necessary facts.” Badon v.
R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000)
(quotation omitted) (emphasis in original). “Conclusory
allegations unsupported by specific facts . . . will not
prevent the award of summary judgment; ‘the plaintiff
[can]not rest on his allegations . . . to get to a jury
without any “significant probative evidence tending to
support the complaint.”’” Nat’l
Ass’n of Gov’t Employees, 40 F.3d at 713
(quoting Anderson, 477 U.S. at 249).
the nonmoving party’s burden is not affected by the
type of case; summary judgment is appropriate in any
case where critical evidence is so weak or tenuous on an
essential fact that it could not support a judgment in favor
of the nonmovant.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (quotation omitted)
(emphasis in original); accord Duron v. Albertson’s
LLC, 560 F.3d 288, 291 (5th Cir. 2009).
Title VII Claims
court has previously dismissed all Title VII claims against
the individual defendants, Record Doc. No. 61, leaving
Friends as the only defendant on these claims. Ricks asserts
three kinds of Title VII claims based upon her race and
gender; specifically, that Friends (i) subjected her to a
hostile work environment, (ii) discriminated against her in
causing her termination by constructive discharge, and (iii)
retaliated against her because she complained about certain