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Ricks v. Friends of Wwoz, Inc.

United States District Court, E.D. Louisiana

September 25, 2019




         This is 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.

         Two of 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.

         Having 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.


         The following material facts are accepted as undisputed solely for purposes of the pending motions for summary judgment.

         Ricks, 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.

         On 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.

         On 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. 1–2.

         On 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.

         On 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.

         As to 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.

         Ricks 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.

         II. ANALYSIS

         A. Legal Standards for Summary Judgment Motion

         “A 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.” Fed.R.Civ.P. 56(a).

         Rule 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 record.
(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).

         Thus, 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.)

         A fact 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).

         To 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.

         “Factual 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).

         “Moreover, 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).

         B. Title VII Claims

         The 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 ...

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