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Ralser v. Hudson Group (HG) Retail, LLC

United States District Court, E.D. Louisiana

January 8, 2020

RICHARD RALSER
v.
HUDSON GROUP (HG) RETAIL, LLC, ET AL.

         SECTION: "G"(5)

          ORDER AND REASONS

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Motion for Summary Judgment filed by Defendants, Hudson Group (HG) Retail, LLC and New Orleans Air Ventures II (collectively "Hudson"). (Rec. doc. 18). Plaintiff, Richard Ralser, has filed an opposition memorandum (rec. doc. 21) and Hudson filed a reply memorandum. (Rec. doc. 25). The Court heard oral argument on November 13, 2019. (Rec. doc. 27). After thorough consideration of the pleadings, the law, the facts, and the arguments of counsel, the Court rules as follows.

         I. THE RELEVANT FACTS

         A. Undisputed Facts[1]

         Hudson operated concessions at the New Orleans International Airport, employing Plaintiff as Assistant General Manager (“AGM”) for Airport concessions from May 7, 2014 until March 16, 2018. At the time of Plaintiff's hire, Hudson also employed Janice Scott (an African American female and Hudson employee since 1997) as an AGM. Gina Trevino, a white female, served as General Manager ("GM") at that time and was responsible for supervising Plaintiff's and Scott's work. Later, Gina Trevino left New Orleans and Lee Barrett (“Barrett”), a white male, took over as GM of Hudson's operations and Plaintiff's supervisor until around April 2016, when he was replaced by Carol McElheney (“McElheney”), an African American female.

         Just prior departing as GM in 2016, Barrett gave Plaintiff a poor performance review. Despite being aware of this poor review, McElheney did not dismiss Plaintiff when she became GM, instead giving him an opportunity to continue in his position as an AGM.

         During McElheney's tenure as GM, Plaintiff complained to her about his co-worker, Scott, asserting that Scott did not carry her weight as an AGM. McElheney believed that Plaintiff's performance was significantly better than Scott's and expressed that she was in favor of dismissing Scott in 2017. Conversely, McElheney sent Plaintiff to work at other airports, discussed with him whether he was interested in taking an available GM position in Mobile, Alabama, and obtained approval to offer him that position, which he declined.

         McElheney was promoted to Regional Vice President in January of 2017 and was replaced as GM by Anthony Griffin (an African American male). After her promotion, on numerous occasions, McElheney discussed with Bob Napoli, a Senior Vice President of Hudson, the possibility of promoting Plaintiff to the GM position in New Orleans. She did not discuss with Mr. Napoli promoting Ms. Scott to the GM position in New Orleans. In December of 2017, McElheney requested and obtained a $5, 000 raise for Plaintiff. Scott did not receive such a raise.

         Also in December of 2017 Mr. Griffin was replaced as GM by Sam Kogos (“Kogos”), a white male. Kogos served in that position until February of 2018, at which time the GM position became vacant. To a large extent, Plaintiff's complaints regarding the hostile work environment to which he was subjected and his claim that he was fired in retaliation for complaining about that environment arise from events that occurred after the GM position came open and was not filled. Also to a large extent, the parties disagree about several events that occurred around that time.

         B. Disputed Facts [2]

         Following Kogos' departure as GM in February of 2018, Plaintiff alleges that McElheney “leaned on Mr. Ralser to perform most of the duties of the General Manager, but he was not considered for promotion to the position.” (Rec. doc. 21 at p. 3). Specifically, he alleges that he “was assigned [by McElheney] to deal with special projects and problems regarding video advertising boards, clean up an area of the warehouse, to investigate an injury involving one of the Dunkin Donuts employees, [3] and to do performance evaluations for the Dunkin employees.” (Id.). Conversely, Plaintiff alleges, “the other Assistant General Manager, Janice Scott, was not given additional general manager duties.” (Id.). He attributes this disparate treatment to his being a white male whereas Scott and McElheney are African American females. (Id. at 1, rec. doc. 21-2 at p. 2).

         In addition to these indignities, Plaintiff alleges that “Ms. McElheney began a pattern of unjustly blaming Mr. Ralser for the consequences of her and other managers' failure to perform and share information.” (Id. at p. 4). For example, concerning 2017 employee evaluations, McElheney “waited several days before she passed the assignment to perform evaluations on several employees to me with only one day before the deadline set by corporate. Then she instructed me not to perform evaluations on several individuals who should have been given evaluations according to company policy. She gave me no explanation to give the lower level managers and employees about why they were not all getting evaluations.” (Rec. doc. 21-2 at p. 13).

         Another example cited by Plaintiff of McElheney's “unfairly making Mr. Ralser look bad for her failure or the failure of her preferred non-white managers” involved an episode in which Dunkin store management instructed its store employees to dispose of some yogurt due to “major food safety issues.” (Id. at p. 4). According to Plaintiff (who claims he was never informed about the instruction), when that instruction was not heeded and the Dunkin managers emailed McElheney and him to ensure the yogurt got destroyed, McElheney responded to the email in part by stating “[a]lso, Richard the AGM could have handled.” (Id.). According to Plaintiff, “this was one of several recent instances of Ms. McElheney blaming me for problems that she knew I did not cause.” (Id.).

         Sometime in February 2018, Plaintiff claims he came to work to find Ms. McElheney and another African American manager, Anthony Griffin, in Griffin's office laughing. (Rec. doc. 21 at p. 3). Plaintiff claims that when he greeted the two, McElheney said, “Oh no, Richard I can't take too much more of this.” (Id.). When Plaintiff asked if she was talking to him, McElheney allegedly said, “Yes. Your president is sleeping with a porn star” and began laughing with Griffin. (Id.). Plaintiff claims that he found this comment to be disrespectful, inappropriate, and racial, a “racist assumption” that he supports the President merely because he is white. (Id.).

         Ralser claims that at some point after McElheney's “Trump” comment, he complained about McElheney's “preferential treatment toward certain people as well as her making racial and inflammatory remarks about President Trump being ‘your president'” to Joe Aiello, a Dunkin Donuts Manager. (Rec. doc. 21 at p. 4).[4]

         Thereafter, on March 15th or 16th, Plaintiff alleges he was called into a meeting with McElheney and Cynthia Newton, the white Regional Human Resources Manager at Hudson. (Rec. doc. 21 at p. 5). According to Plaintiff, McElheney began the meeting by telling Plaintiff he needed to do a better job of controlling overtime, to which Plaintiff responded that “that Janice Scott was supposed to be an [A]ssistant [G]eneral [M]anager equal to him, although Ms. McElheney gave her preferential treatment to do whatever she wanted. He complained that all the work is delegated to him. All the responsibility and projects were delegated to him.” (Id.). Plaintiff further alleges that, in response to these statements, McElheney asked him “Let me get this right Richard, you're telling me I give Janice preferential treatment because I am black and female, and Janice is black and female, ” to which Plaintiff allegedly responded “Yes that's correct.” (Id.).

         What happened next is in serious dispute. Defendants, who claim the meeting was called to issue Plaintiff a written warning about his performance, in particular his “lack of communication and poor interpersonal skills with those whom he supervised, ” allege that Plaintiff “became irate, stood up and threw the papers onto the desk in front of Ms. McElheney while yelling profanities and gesticulating.” (Rec. doc. 18-1 at p. 4). Defendants claim he was thereafter escorted out of the meeting and that, after consultation between McElheney; Newton; Robert Napoli, Senior Vice President of Hudson (“Napoli”); and John Flaim, Senior Director of Human Resources for Hudson, the decision was made to terminate Plaintiff for his inappropriate conduct at the meeting. (Id.).

         Plaintiff, on the other hand, claims that after he confirmed to McElheney his belief that her treatment of him was based on his race, that she called Napoli and said “Bob, I'm sitting here having a conversation with Richard and he's telling me it's all racial.” (Rec. doc. 21 at p. 6). He alleges this statement to Napoli was “confirmation” of his complaint of racial discrimination to McElheney. (Id.). He further alleges that McElheney informed him that he would not be getting an evaluation the next month because his performance was below standard and that he thereafter “calmly got up and left” without being escorted from the building. (Id.).

         The parties agree that Scott was also eventually terminated for poor job performance on April 24, 2018, just over a month after Plaintiff's termination.

         II. LAW AND ANALYSIS

         A. Summary Judgment Standard

         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 of Washington, 276 F.3d 754, 759 (5th Cir. 2002)(quoting 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)). Conclusory 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)). Additionally, if the nonmoving party would bear the burden of proof of the dispositive issue at trial, then the moving party can satisfy its burden by proving that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325.

         B. Discrimination/Hostile Work Environment

         Although less than entirely clear from the pleadings, Plaintiff has conceded through counsel that his race discrimination claim is based solely on what he alleges was a hostile work environment arising from race discrimination against him. (Rec. doc. 21 at p. 10 (“Plaintiff only intends to assert a hostile work environment claim for discrimination”)). Moreover, he has conceded that the relevant time period during which the hostile work environment existed was the time between Kogos' departure and Plaintiff's termination - February of 2018 until March 15 or 16, 2018. (Rec. doc. 31 at pp. 18-19).

         “A hostile work environment exists ‘when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 328 (5th Cir. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)).

         To establish a claim of hostile work environment under Title VII, a plaintiff must prove that he:

(1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (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.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.), cert. denied, 586 U.S. 817 (2012)(quoting Ramsey v. Henderson, 286 F.3d 264, ...

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