Ricks v. Friends of WWOZ, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TABITHA PEARL RICKS CIVIL ACTION

VERSUS NO. 18-9767

FRIENDS OF WWOZ, INC. ET AL. MAGISTRATE JUDGE

JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTIONS

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.

I. UNDISPUTED MATERIAL FACTS

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.

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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

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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:

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(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

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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

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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

incidents during her employment and filed a formal complaint. Record Doc. No. 18 (Amended

Complaint at ¶¶ 17–43).

(I) Hostile Work Environment

To establish a race or gender-based hostile work environment claim under Title VII, a

plaintiff must prove each of the following:

(1) membership in a protected group; (2) harassment (3) based on a factor

rendered impermissible by Title VII; (4) the harassment affected a term,

condition, or privilege of employment; and (5) the employer knew or should have

known of the harassment yet failed to address it promptly.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012) (emphasis added). To

affect a term, condition, or privilege of employment, the harassment complained of must be

sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment. Hernandez, 670 F.3d at 651. To determine whether conduct is

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severe or pervasive, courts look to the totality of the circumstances. Stewart v. Miss. Transp.

Com’n, 586 F.3d 321, 330 (5th Cir. 2009).

“‘[W]here the harassment is allegedly committed by a supervisor with immediate or

successively higher authority, the plaintiff employee needs to satisfy only the first four of the

elements listed above.’” Parker v. La. Dep’t of Special Educ., 323 F. App’x 321, 325 (5th Cir.

2009) (quoting Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 353 (5th Cir. 2001)). The

employer defendant will then have the opportunity to prove its affirmative Ellerth/Faragher

defense, derived from Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998).

The Ellerth/Faragher defense provides that when, as here, the harasser is plaintiff’s

supervisor, rather than a mere coworker, defendants may be subject to liability unless they can

show that (1) the employer exercised reasonable care to prevent and correct any harassing

behavior; and (2) the plaintiff unreasonably failed to take advantage of the preventive or

corrective opportunities that the employer provided. Vance v. Ball State Univ., 570 U.S. 421,

424 (2013) (citing Faragher, 524 U.S. at 807 (1998); Burlington Industries, Inc. v. Ellerth, 524

U.S. at 765).

A supervisor, for purposes of the employer’s vicarious liability under Title VII, is one

who “is empowered by the employer to take tangible employment actions against the [plaintiff].”

Vance, 570 U.S. at 450. Tangible employment actions are those which “effect ‘a significant

change in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in benefits.’”

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Id. at 431. Utterback and Royster testified that McGee had such authority. Record Doc. Nos. 50-

7 at pp. 10–11; 50-8 at p. 12.

In this case, it is unnecessary to address Friends’s Ellerth/Faragher defense because

plaintiff cannot prove an essential element of her claim as to which she bears the burden of proof

at trial.

Ricks testified that the harassment about which she complains began in early August

2017 and continued until she tendered her resignation on November 16, 2017. Record Doc. No.

50-4 at pp. 16–17. As an African-American woman and thus a member of two protected

classes, Ricks has satisfied her burden as to the first essential element of a hostile work

environment claim. As to the second and third elements, she has produced sufficient evidence

to create a triable issue of disputed fact as to whether some harassment seemingly based on race1

or gender occurred. In particular, Ricks testified that McGee called her “black woman . . . [on

m]ultiple occasions . . . during each of [their] interactions . . . [at least] . . . more than fifteen

times . . . [from] when he started . . . until [she] tendered [her] resignation.” Record Doc. No. 50-

1 In the context of age-based discrimination, the Fifth Circuit has held that “discrimination is less

likely when the supervisor is in the same protected class as plaintiff.” McMichael v. Transocean Offshore

Deepwater Drilling, Inc., 2019 WL 3798211, at *8 (5th Cir. Aug. 13, 2019) (citing Kelly v. Costco

Wholesale Corp., 632 F.App’x 779, 783 (5th Cir. 2015) (“[The plaintiff’s] membership in the same

protected class as [the supervisor] bolsters the inference that age discrimination was not the reason for

his termination.”) and Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996), abrogated on other

grounds by Reeves, 530 U.S. at 134). Other courts in this circuit have extended the reasoning in

Kelly and McMichael to cases involving discrimination based on race. Donald v. Plus4 Credit Union,

2017 WL 3235659, at *9 (S.D. Tex. Jul. 31, 2017) (“Here, [CEO] is of the same protected class as

[plaintiff] and was the same person who hired and fired her, generating a rebuttable inference that racial

discrimination was not the employer’s motivating factor.”) These cases indicate that, while the fact that

plaintiff and her supervisor, McGee, were both African-Americans and thus in the same protected class

makes racial discrimination less likely, such an inference does not per se preclude plaintiff from

demonstrating a triable issue of racial discrimination.

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4 at pp. 16–17. When asked for the context, Ricks testified that McGee would use the term “in

phrasing, like, ‘just like a black woman to make my life difficult’ . . . ‘typical black woman.’”

Id. at p. 17. She testified that McGee also called Griffin “black woman.” Id. at p. 18.

Ricks testified that McGee, himself an African-American, also expressed his opinion

about black people dating outside of their race, and “explain[ed] why black men can date outside

of their race because it’s a social construct that prevents them from doing so, whereas, black

women who date outside of their race are selling out.” Record Doc. No. 50-4 at p. 37. Ricks

testified that she was not part of this conversation but overheard it, and thinks that Griffin,

another African-American woman, was also a part of it. Id. Ricks testified that McGee also

made comments about her hair. Id. at p. 21. McGee allegedly said at a team luncheon that Ricks

may have to change her hairstyle if the employee handbook said that “natural hair” was not

allowed,2 and he made a passing comment that “women . . . with natural hair . . . hav[e] more

attitude.” Id. at p. 25.

Ricks also testified that “we had a new couch delivered [in the hallway] and . . . Jorge

Fuentes came into the office [and] . . . made a statement where . . . people are going to be [having

sex] on the couches and you’re going to have to be careful about all those stains and laughed at

that joke . . . .” Id. at p. 21. Ricks testified that McGee was present for the conversation, but left

when Fuentes made the joke. Id. Then, when Ricks talked to McGee about the incident, she

testified that “he pretty much told me that I needed to hold myself with more respect and

decorum and that . . . I shouldn’t be acting like that . . . [a]nd I asked him to . . . go and talk to

2 The handbook contains no such statement.

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Jorge and do what you need to do to document this . . . and take care of it. . . . And he . . . never

did anything about it.” Id. at pp. 21–22.

As to the fourth required element, however, Ricks cannot bear her burden to prove that

the incidents affected a term, condition or privilege of her employment.

For harassment to affect a term, condition or privilege of employment, it must be

“sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” To determine whether

harassment is so severe or pervasive that it alters the conditions of the plaintiff’s

employment, this Court considers a number of factors: “the frequency of the

discriminatory conduct, its severity, whether it is physically threatening or

humiliating (or whether it is a mere offensive utterance), and whether it

unreasonably interferes with the victim’s work performance.”

Buisson v. Bd. of Supervisors, 592 F. App’x 237, 245 (5th Cir. 2014) (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)(emphasis added)).

Except for possibly the “black woman” comments, these incidents involve isolated,

infrequent comments and stray remarks. Fifth Circuit precedent establishes that evidence of

stray remarks does not establish harassment that was so severe or pervasive that it altered the

conditions of Ricks’s employment. McGee’s remarks and discussions with Ricks, while

offensive and annoying, are not evidence sufficient to sustain an actionable claim of race or

gender-based hostile work environment. Buisson v. Bd. of Sup’rs of La. Cmty. and Tech.

College Sys., 592 F. App’x 237, 245 (5th Cir. 2014) (citing Lauderdale v. Tex. Dep’t of Criminal

Justice, 512 F.3d 157, 163 (5th Cir. 2007)) (“Title VII . . . is not a ‘general civility code,’ and

‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory charges in the ‘terms and conditions of employment.’”) (quoting

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998))).

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Even the “black woman” comments, which Ricks testified were frequent but occurred

only during the three-and-one-half month period during which she and McGee were both

employed at Friends, Record Doc. No. 50-4 at pp. 16–17, “pale in comparison, both in severity

and frequency, to the kinds of verbal harassment that the Fifth Circuit and other circuits have

held would support a Title VII, hostile-work-environment claim.” Buisson, 592 F. App’x at 245

(5th Cir. 2014) (comparing Walker v. Thompson, 214 F.3d 615, 619–22 (5th Cir. 2000) (holding

that a hostile work environment claim survived summary judgment where evidence demonstrated

years of inflammatory racial epithets, including “nigger” and “little black monkey”); Daniels v.

Essex Group, Inc., 937 F.2d 1264, 1266 (7th Cir. 1991) (holding that the plaintiff survived

summary judgment where the plaintiff was subjected to “nigger jokes” for a ten-year period and

the plaintiff’s work-station was adorned with “a human-sized dummy with a black head”);

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182 (4th Cir. 2001) (reversing summary

judgment where the plaintiff suffered “incessant racial slurs” including “nigger” and “dumb

monkey”), with Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007)

(finding that the evidence was insufficient to establish a hostile-work-environment claim where

a supervisor’s comments about inner-city “ghetto children” ceased upon plaintiff’s request, and

the supervisor’s other arguably racially offensive comments were “isolated incidents”)); see also

Kumar v. Shinseki, 495 Fed. Appx. 541, 543 (5th Cir. 2012) (criticism in the workplace and

threats to employee’s job did not constitute actionable harassment).

McGee’s comments were rude and uncivil, but there is no indication that they or he were

physically threatening. Thus, Ricks has not produced evidence that this alleged conduct was so

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severe, physically threatening or humiliating to interfere unreasonably with her work. “Based

on the totality of the circumstances, the combination of alleged acts does not constitute a hostile

work environment because [plaintiff] has not shown that the acts were ‘sufficiently severe or

pervasive to alter the conditions of [her] employment and create an abusive working

environment.’” Minnis, 620 F. App’x at 221. Accordingly, Friends is entitled to summary

judgment in its favor as a matter of law on Ricks’s hostile work environment claim because she

fails to create a triable issue of fact as to an essential element of this cause of action.

(ii) Discriminatory Termination/Constructive Discharge Claim

In an employment discrimination case under Title VII alleging termination, including by

constructive discharge, plaintiff has the initial burden of proving a prima facie case of

discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). A plaintiff establishes a prima facie case of race- or sex-based

discrimination by demonstrating that she

“(1) is a member of a protected class; (2) was qualified for the position; (3) was

subject to an adverse employment action; and (4) was replaced by someone

outside of the protected class, or, in the case of disparate treatment, shows that

other similarly situated employees were treated more favorably.”

Standley v. Rogers, 2017 WL 958318, at *1 (5th Cir. Mar. 10, 2017) (quoting Bryan v.

McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004)) (emphasis added); accord Buckhanan v.

Shinseki, 665 F. App’x 343, 349 (5th Cir. 2016) (citing Haire v. Bd. of Supervisors, 719 F.3d

356, 363 (5th Cir. 2013)). If plaintiff establishes a prima facie case, the burden of production

shifts to the defendant to present a legitimate, non-discriminatory reason for the challenged

employment action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). “If the defendant

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meets its burden, the presumption of discrimination created by the plaintiff’s prima facie case

disappears and the plaintiff must meet [his] ultimate burden of persuasion on the issue of

intentional discrimination.” Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).

Ricks cannot establish a prima facie case of discrimination because she has insufficient

proof to establish that she was subject to an adverse employment action. Adverse employment

actions in the context of discrimination claims “consist of ultimate employment decisions such

as hiring, firing, demoting, promoting, granting leave, and compensating. [A]n employment

action that does not affect job duties, compensation, or benefits is not an adverse employment

action. . . . [A] mere inconvenience or an alteration of job responsibilities will not suffice.”

Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (quotation and citations omitted)

(emphasis added).

Ricks was not terminated by Friends. She conceded in her deposition testimony that

neither her salary nor her benefits changed. Record Doc. No. 50-4 at p. 20. Ricks admittedly

resigned. She alleges, however, that defendants’ actions resulted in her constructive discharge.

“[A] resignation may still constitute an adverse employment action ‘if the resignation qualifies

as a constructive discharge. To prove a constructive discharge, a plaintiff must establish that

working conditions were so intolerable that a reasonable employee would feel compelled to

resign.’” Brown v. Liberty Mut. Grp., Inc., 616 F. App’x 654, 657 (5th Cir. 2015) (quoting

Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)) (emphasis added). “This is an

objective standard, and what is subjectively intolerable to a particular employee may strike a

court or jury as merely unpleasant.” Green v. Brennan, 136 S. Ct. 1769, 1789 (2016) (Alito, J.,

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concurring in the judgment) (citing Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); accord

Noack v. YMCA, 418 F. App’x 347, 352 (5th Cir. 2011) (citing Stover v. Hattiesburg Pub. Sch.

Dist., 549 F.3d 985, 991 (5th Cir. 2008); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481

(5th Cir. 2008)).

“Part of an employee’s obligation to be reasonable is an obligation not to assume the

worst and not to jump to conclusions too fast.” Dornhecker v. Malibu Grand Prix Corp., 828

F.2d 307, 310 (5th Cir. 1987) (quotation omitted); accord Brandon v. Sage Corp., 808 F.3d 266,

272 (5th Cir. 2015) (citing Aryain, 534 F.3d at 481–82). In other words, plaintiff must complain

about working conditions and give her employer a reasonable time to remedy them before she

concludes that the employer is acting deliberately to force her resignation. Hinojosa v. CCA

Props. of Am., LLC, 400 F. App’x 920, 923–24 (5th Cir. 2010); Haley v. Alliance Compressor

LLC, 391 F.3d 644, 652 (5th Cir. 2004); McKethan v. Tex. Farm Bureau, 996 F.2d 734, 741 (5th

Cir. 1993).

In determining whether a reasonable employee would have felt compelled to

resign, [the Fifth Circuit has] considered whether the following factors are

present: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities;

(4) reassignment to menial or degrading work; (5) reassignment to work under a

younger supervisor; (6) badgering, harassment, or humiliation by the employer

calculated to encourage the employee’s resignation; or (7) offers of early

retirement or continued employment on terms less favorable than the employee’s

former status.

Matherne v. Ruba Mgmt., 624 F. App’x 835, 841 (5th Cir. 2015) (quoting Brown, 237 F.3d at

566). “In addition, a plaintiff may be constructively discharged if the employer gives the

employee an ultimatum to quit or be fired. However, in these ultimatum cases, courts have

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required something beyond the employee’s subjective belief that termination was inevitable.”

Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338–39 (5th Cir. 2014) (citations omitted).

“Constructive discharge is an ‘aggravated’ form of discrimination involving truly

‘intolerable’ working conditions that leave an employee no choice but to resign.” Green, 136

S. Ct. at 1789 (Alito, J., concurring in the judgment) (quoting Suders, 542 U.S. at 146–47).

“Constructive discharge requires a greater degree of harassment than that required by a hostile

environment claim. Discrimination alone, without aggravating factors, is insufficient for a claim

of constructive discharge . . . .” Brown, 237 F.3d at 566 (citations omitted); accord Matherne,

624 F. App’x at 841.

Ricks alleges that changes in her job duties were part of the conditions resulting in her

constructive discharge. “Defendant McGee [first] began to strip [her] of her responsibilities and

would assign [her] tasks to another white/Caucasian employee [Melanie Merz] . . . [and later]

escalated his conduct by effectively removing all of [her] responsibilities, changing her job

description and changing her job title all together.” Record Doc. No. 18 (Amended Complaint

at ¶¶ 26, 43). Ricks testified that after this change she “no longer handled branding outside of

[Friends]. [Her] relationships with multiple . . . businesses and associations were cut. [She] no

longer held events like procurement and management for the major gift events. [She] was no

longer able to do . . . sponsorship duties, like strategic partnership, community partners that [she]

typically handled.” Record Doc. No. 50-4 at p. 20. Ricks also alleges that this was in “retaliation

for her continued complaints and action to correct the harassment.” Id. at ¶ 43. Ricks states in

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her Declaration that “McGee personally disregarded my requests to keep my role as is.” Record

Doc. No. 50-3 at p. 7, ¶ 42.

However, on November 1, 2017, McGee emailed Ricks and included an attached

description of her title change and new responsibilities. Record Doc. No. 31-9 at p. 33. On

November 8, 2017, Ricks replied with apparent approval, including in her message a “thumbs-

up” emoticon and the words “I can dig it.” Id. Additionally, Royster, McGee, Griffin and even

Ricks herself all testified that the entire development department was being reorganized and

restructured. Record Doc. Nos. 50-4 at p. 19; 50-5 at p. 8; 50-6 at pp. 6–8; 50-7 at pp. 7–11; 50-

8 at p. 14. Royster and Griffin testified, without evidentiary contradiction, that the discussion

of reorganization began before Ricks’s complaint. Record Doc. Nos. 50-5 at pp. 8–9; 50-8 at p.

14. Restructuring of the development department and the resulting changes in Ricks’s job duties

were not adverse employment actions because her reassigned duties were neither menial nor

degrading, and no “ultimate employment decisions” of the type the law requires to meet this

standard occurred. Plaintiff cannot establish a prima facie case of discrimination based on them.

Ackel v. Nat’l Communs., Inc., 339 F.3d 376, 385 (5th Cir. 2003) (“Restructuring office

procedures [and] clarifying job duties . . . do not constitute ultimate employment decisions”);

accord Thompson, 764 F.3d at 503.

Ricks fails in her burden to produce competent summary judgment evidence of a genuine

fact issue that she was constructively discharged. She has not shown that she gave her managers

a reasonable opportunity to address her complaints before resigning. Friends’s Employee

Handbook clearly states that if an employee has “any concern” that Friends’s No Harassment

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Policy may have been violated, that employee is to first “discuss any concern with the Chief

Financial Officer. If you are not satisfied after you speak to the Chief Financial Officer, or if you

feel that you cannot speak to the Chief Financial Officer, discuss your concern with the General

Manager. If you are not satisfied after you speak with the General Manager, or if you feel you

cannot speak to the General Manager, speak to the Human Resources Committee of the Board

of Directors.” Record Doc. No. 50-10 at p. 13. As established by the undisputed evidence

submitted by the parties, Ricks formally complained about her working conditions to Royster,

the Chief Financial Officer, on October 31, 2019. Record Doc. No. 50-3 at p. 5, ¶ 25. She

resigned approximately two weeks later, on November 16, 2019, Record Doc. No. 50-15 at pp.

1–2, before the Human Resources Committee notified her of the results of their investigation.

See Record Doc. No. 31-3 at p. 45 (“[the Board gave a response] the day after I resigned”).

Additionally, by her own admission Ricks contacted the EEOC through its online portal in

October 2017, before she filed her written complaint with Royster. Record Doc. No. 50-4 at p.

15.

Ricks states in her Declaration that Utterback “threaten[ed her] employment, insist[ed]

that [she] could either return to work or find employment elsewhere.” Record Doc. No. 50-3 at

p. 6, ¶ 35. Ricks testified in her deposition that Utterback told her that she “could get onboard

and do [her] job or . . . [she was] welcome to find new employment.” Record Doc. No. 50-4 at

p. 39. Utterback testified that she said, “But, you know, we’re going to be doing big things here.

We’re turning the station around. I want you to be a part of it. I want you to come back and be

part of that.” Record Doc. No. 50-7 at p. 16. Doug Hammel, then a member of Friends’s Human

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Resources Committee, testified that Ricks did not mention any threatened job loss or ultimatum

during the Human Resources Committee’s interview with her. Record Doc. No. 50-9 at p. 6.

In cases involving ultimatums, courts have generally found that evidence that an

employee was forced to choose between resigning or being fired may be sufficient to establish

a triable fact issue regarding constructive discharge. See Faruki v. Parsons S.I.P., Inc., 123 F.3d

315, 319 (5th Cir. 1997) (compelling evidence of constructive discharge when manager “told

[plaintiff] that he should find another job, as the company would be unable to retain him, and

that he had one week before he would be placed on indefinite unpaid leave”); Stephens v. C.I.T.

Grp./Equip. Fin., Inc., 955 F.2d 1023, 1027–28 (5th Cir. 1992) (holding that employee

“reasonably could have believed that his demotion was a harbinger of dismissal” where there

was a demotion, continuing limitations on the employee’s salary and responsibility, and a

supervisor repeatedly asking him whether he was going to quit his job); Lee v. Mission

Chevrolet, Ltd., 2017 WL 4784368 at *16 (W.D. Tex. Oct. 23, 2017) (finding genuine issue of

material fact as to whether plaintiff was constructively discharged when he testified that he was

told by his manager that either plaintiff or his girlfriend, who also worked at the company “had

to resign or both would be terminated”); Caldwell v. Lazano, 689 Fed. App’x 315, 320 (5th Cir.

2017) (finding no constructive discharge when plaintiff was sent a letter by his supervisor which

stated that plaintiff was going to be terminated, but asked plaintiff to provide reasons why he

should not be and plaintiff failed to do so); Jones v. Blue Cross and Blue Shield of Louisiana,

2018 WL 618599, at *10 (M.D. La. Jan. 29, 2018) (finding summary judgment appropriate on

constructive discharge issue where, in tendering her resignation, plaintiff “said she was resigning

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‘in lieu of being let go as stated in my last meeting with you’” where plaintiff’s recollection of

her meeting with her supervisor was “extremely vague” and the supervisor said “something”

about plaintiff being “let go”); Ruggles v. Greco, 2015 WL 1538803, at *8 (E.D. La. Apr. 7,

2015) (finding constructive discharge when plaintiff was told by employer to “either resign or

be arrested”); Bianchini v. Vance, 2018 WL 1801431, at *3 (S.D. Miss. Apr. 16, 2018) (finding

case was more akin to constructive discharge when employer gave plaintiff “an ultimatum to

resign or be terminated”).

The evidence in this case is like the circumstances in Jones and Caldwell and does not

rise to the level of ultimatum noted in the other cases cited above. Unlike the cases in which the

ultimatum was found to be a constructive discharge, no evidence suggests that Utterback

explicitly threatened Ricks’s continued employment or termination. Instead, particularly in the

context of a meeting during which Ricks was complaining about the conditions of her

employment, Utterback’s statement does not contain a threat of termination. Ricks’s mere

subjective belief that this statement inherently contained such a threat, when it does not on its

face and in full context, is insufficient to defeat summary judgment on this issue.

Ricks has proffered insufficient evidence that a reasonable employee would have felt

compelled to resign in these circumstances. She was not demoted or reassigned to menial or

degrading work or under a younger supervisor. While her job responsibilities changed, the

evidence establishes that Friends was formally and openly restructuring the development

department, a fact Ricks herself expressly acknowledges. Record Doc. No. 50-4 at p. 19. There

is no evidence that any alleged harassing behavior from McGee was intended to encourage or

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should reasonably have prompted her resignation. Griffin testified that McGee referred to her

and other African-American women as “black woman” and even referred to himself as “black

man.” Record Doc. No. 50-5 at pp. 11–15, 20. Griffin testified that she viewed McGee’s

statements as “just . . . how he spoke in general.” Id. at 20. There were no offers of early

retirement or continued employment on terms less favorable than Ricks’s former status. As

established by the evidence, Ricks participated in and even approved her change in title and job

duties. Record Doc. Nos. 31-6 at p. 8; 31-9 at pp. 31–33.

Ricks suffered no reduction in salary. While she admitted in her deposition testimony that

none of Friends’s actions resulted in any actual reduction in her compensation or benefits,

Record Doc. No. 50-4 at p. 20, she asserts that she was not given a raise in pay that she requested

from McGee. Specifically, she testified that she “was told [by McGee] that I would get a raise

because that’s what I asked for. . . . I remember I went to payroll because it wasn’t effective that

past check and it should have been.” Id. at p. 23. She did not recall when she asked McGee for

the raise or when McGee told her she would get it, although she recalled that it was going to be

a $3,000 raise in annual salary. Id. at pp. 23–24. Asked when she expected to receive the pay

raise, she testified vaguely, “Maybe November [2017] . . . that first check, maybe” around

November 1. Id. at p. 24. She stated that she did not remember ever getting the raise. Id.

Ricks acknowledged that when she went to the payroll department in early November to

inquire about the raise not being effective, id. at p. 23, she was told by Royster “that he had

received no paperwork to initiate my raise and that I wasn’t going to see anything until, like,

Marcel [McGee] had made a formal request and it passed through all the things that it needed

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to pass through.” Id. at p. 24. She denied ever actually receiving the raise. Id. However, the

undisputed evidence in the record demonstrates that an email exchange among McGee,

Utterback and Royster “to finalize and implement” the $3,000 pay raise, approved for Ricks

expressly by name and position, was processed and formally approved November 7–10, 2017,

before her resignation six days later. Record Doc. No. 50-16 at pp. 1–2. Thus, this cannot be

characterized as an adverse employment action when defendants approved the raise before she

resigned and close in time to when she thought she would receive it, and her resignation six days

later prevented her from actually pocketing it.

In the absence of a constructive discharge or other negative ultimate employment

decision, plaintiff cannot show that she was subject to an adverse employment action and cannot

establish a prima facie case of intentional race or sex discrimination.

(iii) Retaliation Claim

As to her retaliation claim, “Title VII’s antiretaliation provision forbids employer actions

that ‘discriminate against’ an employee . . . because [s]he has ‘opposed’ a practice that Title VII

forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation,

proceeding, or hearing.’” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 58 (2006)

(quoting 42 U.S.C. § 2000e-3(a)); accord McCoy v. City of Shreveport, 492 F.3d 551, 561 n.28

(5th Cir. 2007).

To prove retaliation, plaintiff bears the initial burden to produce evidence:

(1) that [she] participated in an activity protected by Title VII, (2) that [her]

employer took an adverse employment action against [her], and (3) that there is

a causal connection between the adverse employment action and the protected

activity. This establishes the employee’s prima facie case, and gives rise to an

inference of retaliation. The burden then shifts to the employer to articulate a

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legitimate non-retaliatory reason for the adverse employment action. Once the

employer articulates a legitimate, non-retaliatory reason for the adverse

employment action, the burden shifts back to the employee to demonstrate that

the employer’s [stated] reason is actually a pretext for retaliation. In order to

demonstrate pretext sufficient to defeat a motion for summary judgment, an

employee must produce evidence that could lead a reasonable fact-finder to

conclude that the adverse [employment] action would not have occurred “but for”

the employee’s decision to engage in an activity protected by Title VII.

Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017) (quotations and citations

omitted) (emphasis added).

For the same reasons discussed above, Ricks cannot establish actionable retaliation

because she cannot sustain her burden to prove that Friends took an adverse employment against

her causally connected to any protected activity. The evidence in the record is insufficient to

create a triable issue that a reasonable employee in Ricks’s position would have felt compelled

to resign. Thus, plaintiff cannot establish that she suffered any adverse employment action,

including constructive discharge. Id. In the absence of an adverse employment action, Ricks

cannot establish a case of retaliation.

No genuine issue of material fact is presented as to an essential element of plaintiff’s Title

VII race and gender discrimination and retaliation claims. Her evidence is insufficient to support

her burden of proving at trial that she was subjected to an adverse employment action, was

constructively discharged or was subjected to a hostile work environment as those terms are

defined as a matter of law. Thus, Friends is entitled to summary judgment on the Title VII

claims.

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C. Americans with Disabilities Act Claims

Like the Title VII claims, Friends is the only defendant remaining on the ADA claims.

Record Doc. No. 61. Ricks asserts two ADA causes of action; specifically, that Friends (1)

discriminated against her based on her disability and (2) retaliated against her for asserting

claims of disability discrimination. Record Doc. No. 18 (Amended Complaint at ¶¶ 44–47). The

ADA broadly provides that “[n]o covered entity shall discriminate against a qualified individual

on the basis of disability . . . .” 42 U.S. C. § 12112(a) (emphasis added). Although their

“methods of proof are related,” some kinds of disability discrimination claims are “distinct” from

others. E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 703 n. 6 (5th Cir. 2014).

Considering the allegations in her amended complaint, as expressly explained in her

memorandum in opposition to defendants’ ADA motion, plaintiff’s ADA discrimination claim

in this case must properly be characterized as a discriminatory termination action. Id. Her

amended complaint alleges that defendant both discriminated against and retaliated against her

when it “constructively discharged” her by making her working conditions, including

defendant’s failure to accommodate her request to be moved to another location, “so onerous,

abusive and intolerable” that her “choice to resign was void of choice or free will.” Record Doc.

No. 18 at p. 7, ¶ 48. In her opposition memorandum, plaintiff unambiguously states that “[t]here

can be no dispute that claims of discrimination and retaliation under [the] ADA are governed by

the McDonnell Douglas burden-shifting framework, . . .” under which “plaintiff bears ‘the initial

burden of establishing a prima facie case of . . . discrimination.’” Record Doc. No. 49 at p. 4

(emphasis added). In addition, Ricks makes plain, citing LHC Group, Record Doc. No. 49 at p.

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5, that her arguments and evidence concerning Friends’s failure to provide a reasonable

accommodation in the form of temporary transfer to its satellite office pertain exclusively to the

second prong of her discriminatory termination action prima facie case, i.e., that she was

“qualified” because the requested accommodation would have allowed her to perform the

essential functions of her job. LHC, 773 F.3d at 703. Thus, plaintiff must present evidence

sufficient to create a triable fact dispute concerning all ADA discriminatory termination prima

facie case requirements.

“In a discriminatory-termination action under the ADA, the employee may either present

direct evidence that she was discriminated against because of her disability or alternatively

proceed under the burden-shifting analysis first articulated in McDonnell Douglas,” which “first

requires the [plaintiff] to establish a prima facie case of discrimination.” E.E.O.C. v. LHC Group,

Inc., 773 F.3d 688, 694 (5th Cir. 2014). As clearly stated in her opposition memorandum, Ricks

expressly proceeds under the latter approach.

In LHC Group, the Fifth Circuit painstakingly evaluated the “splinter into three distinct

lines” of cases in its decisions and clearly concluded: “‘To establish a prima facie discrimination

claim under the ADA, a plaintiff must prove: (1) that [s]he has a disability; (2) that [s]he was

qualified for the job; [and] (3) that [s]he was subject to an adverse employment decision on

account of [her] disability.’” LHC, 773 F.3d at 695–697 (quoting Zenor v. El Paso Healthcare

Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)) (emphasis added).

As to the first component, a disability is

“(A) a physical or mental impairment that substantially limits one or more major

life activities of such individual; (B) a record of such impairment; or © being

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regarded as having such an impairment.” 42 U.S.C. § 12102(1). Major life

activities include “caring for oneself, performing manual tasks, seeing, hearing,

eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.” 42 U.S.C. §

12102(2)(A).

Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010) (quoting 42 U.S.C. §§ 12102(1),

12102(2)(A)).

As to the second component, “[a] plaintiff can establish that [s]he is ‘qualified’ by

showing that ‘either (1) [she] could perform the essential functions of the job in spite of [her]

disability,’ or ‘(2) that a reasonable accommodation of [her] disability would have enabled [her]

to perform the essential functions of the job.’” Moss, 851 F.3d at 417 (quoting LHC Group, 773

F.3d at 697).

As to plaintiff’s ADA retaliation claim, Ricks must establish a prima facie case “by

showing that (1) [s]he engaged in an activity protected by the ADA, (2) [s]he suffered an adverse

employment action, and (3) there is a causal connection between the protected act and the

adverse action.” Weed v. Sidewinder Drilling, Inc., 2017 WL 1164294, at *8 (S.D. Tex. Mar.

29, 2017) (internal citations omitted) (emphasis added); accord DeBlanc v. St. Tammany Par.

Sch. Bd., 640 F. App’x 308, 312 (5th Cir. 2016) (quoting Seaman v. CSPH, Inc., 179 F.3d 297,

301 (5th Cir. 1999)).

Significantly, as to both ADA claims, plaintiff must establish as part of her prima facie

case that she suffered an “adverse employment action.” For purposes of ADA claims, the Fifth

Circuit has adopted the same definition of “adverse employment action” as applies in Title VII

claims; i.e., that adverse employment actions consist only of “ultimate employment decisions,”

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such as hiring, granting leave, discharging, promoting or compensating. McKay v. Johanns, 265

F. App’x 267, 268–69 (5th Cir. 2008); Willis v. San Antonio ISD, 2017 WL 3470944, at *7

(W.D. Tex. Aug. 11, 2017); Tran v. Pflugerville Independent School District, 2014 WL

122160774, at *5 (W.D. Tex. May 23, 2014), report and recommendation adopted sub nom.,

2014 WL 12160775 (W.D. Tex. June 17, 2014).

The record establishes triable issues of material fact concerning several components of

the prima facie case of plaintiff’s ADA claims. For example, material fact disputes exist as to

whether Ricks actually has a disability that qualifies as “a physical or mental impairment that

substantially limits one or more major life activities . . . [which] include caring for oneself, . . .

, sleeping, . . . and working.” 42 U.S.C. §§ 12102(1)(A) and (2)(A). Courts have found that

mental illnesses such as the bipolar and post-traumatic stress disorders alleged by Ricks may

qualify as impairments under the ADA. Garner v. Chevron Phillips Chemical Co., L.P., 834 F.

Supp.2d 528, 539 (S.D. Tex. Nov. 29, 2011) (citing ADA Amendments Act of 2008, Sec. 4, §

3(4)(D), 122 Stat. 3553, 3555; 29 C.F.R. § 1630.2(j)(5)); Zamora v. GC Servs., LP, 2018 WL

1937088, at *4–*5 (W.D. Tex. Apr. 24, 2018) (citing 29 C.F.R. § 1630.2(j)(3)(iii)). “Merely

having an impairment, however, does not make one disabled for purposes of the ADA. Plaintiffs

also need to demonstrate that the impairment substantially limits a major life activity.” E.E.O.C.

v. Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 614–15 (5th Cir. 2009) (citing Toyota Motor

Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002) (citing 42 U.S.C. § 12102(2)(A) (1994))).

“To be substantially limited means to be unable to perform a major life activity that the average

person in the general population can perform, or to be significantly restricted in the ability to

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perform it.” Chevron Phillips, 570 F.3d 606, 614–15 (5th Cir. 2009) (citing 29 C.F.R. §

1630.2(j)). The phrase “substantially limits . . . is not meant to be a demanding standard.” 29

C.F.R. §§ 1630.2(j)(1)(I), (iii).

On one hand, plaintiff has produced evidence that her mental issues, when they are

triggered or active, may substantially limit major life activities, such as caring for herself, driving

a car, going to the grocery store, shopping or sleeping. Record Doc. No. 50-4 at pp. 25–30. On

the other hand, the record contains ample evidence that Ricks was able to work, communicate

and regularly perform major life activities.

Similarly, the evidence presents material fact disputes as to whether (1) her disability was

known to her employer; (2) the requested accommodation was reasonable; (3) Ricks requested

the accommodation because of a medical disability; and (4) the breakdown in the interactive

process was “traceable to the employee” or Friends “fail[ed] to engage in the interactive

process.” See, e.g., Record Doc. Nos. 50-6 at p. 9; 50-7 at p. 10; 50-8 at p. 11 (Royster and

Utterback deny having knowledge of Ricks’s alleged disability); Record Doc. Nos. 50-4 at p.

42; 50-7 at p. 15; 50-7 at pp. 15–16 (Ricks testifies that she told defendants about her mental

conditions, requested to work out of Friends’s satellite office and told defendants that she needed

the accommodation for a few weeks while medication for her mental conditions took effect).

However, both of Ricks’s ADA claims – for discriminatory termination and retaliation

– require that Ricks must first establish that she suffered an adverse employment action

constituting an ultimate employment decision as part of the burden she bears to prove a prima

facie case of discrimination or retaliation under the ADA. For the same reasons discussed above,

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no such adverse employment action occurred as a matter of law. In addition, plaintiff provides

no evidence to support her claims that any of Friends’s actions were on account of her alleged

disability. Even in her own deposition testimony and declaration, Ricks does not state that she

suffered any adverse employment action because of her disability. The evidence in the record

is insufficient for a finding that a reasonable employee in Ricks’s position would have felt

compelled to resign. Thus, plaintiff cannot establish that she suffered any adverse employment

action, including constructive discharge. Id. In the absence of an adverse employment action,

Ricks cannot meet her burden of proof to make a case of termination discrimination or retaliation

under the ADA.

For all of the foregoing reasons, Friends is entitled to summary judgment on plaintiff's

disability discrimination and retaliation claims under the Americans with Disabilities Act as a

matter of law, and those claims must be dismissed.

D. Louisiana Employment Discrimination Law Claims

Ricks also alleges race, sex and disability discrimination and retaliation under the

Louisiana Employment Discrimination Law, La. Rev. Stat. § 23:2301 et seq., again with Friends

as the only remaining defendant. Record Doc. No. 61. Courts have consistently held that claims

brought under Title VII, the ADA and the Louisiana Employment Discrimination Law are

analyzed under the same standard. Turner, 675 F.3d at 891 n.2 (citing Lawrence v. Univ. of Tex.

Med. Branch, 163 F.3d 309, 311 (5th Cir. 1999); Knapper v. Hibernia Nat’l Bank, 49 So. 3d 898,

902 n.11 (La. App. 4th Cir. 2010)); Doe v. Merritt Hospitality, LLC, 353 F.Supp. 3d 472, 481

(E.D. La. Dec. 18, 2018).

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For the same reasons discussed above, plaintiff cannot satisfy her burden of proving race,

sex and disability discrimination and retaliation because she cannot establish an adverse

employment action as a matter of law. Accordingly, Ricks’s state law claims must be dismissed.

Minnis v. Bd. of Supervisors, 55 F. Supp. 3d 864, 884–85 (M.D. La. 2014), aff’d, 620 F. App’x

215 (5th Cir. 2015) (citing Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989);

Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th Cir. 2002); King v. Phelps Dunbar, L.L.P., 743

So. 2d 181, 187 (La. 1999) (citing Bustamento v. Tucker, 607 So. 2d 532, 538, n.6 (La. 1992)).

D. Section 1981 Claims

Plaintiff’s Section 1981 claims against all three defendants remain in the case. Record

Doc. No. 61. In her cause of action under 42 U.S.C. § 1981, plaintiff alleges that she is “a

member of the Black and/or African-American race [who] was discriminated against by

Defendants because of her race . . . and . . . also claims unlawful retaliation . . . for her opposition

to Defendants’ unlawful employment practices.” Record Doc. No. 18 at p. 9, ¶ 62.

Courts recognize Section 1981 claims alleging racial discrimination and retaliation in the

employment contract context, including such claims asserted against individuals. See Jones v.

R.R. Donnelley & Sons Co., 541 U.S. 369, 373 (2004) (racially hostile work environment);

Felton, 315 F.3d at 483 (racial harassment); Foley v. University of Houston System, 355 F.3d

333, 339 (5th Cir. 2003)(retaliation).“Claims for race discrimination under Title VII . . . and

Section 1981 are generally analyzed under the same Title VII framework.” Wallace v. Seton

Family of Hosps., 2019 WL 2484692, at *3 (5th Cir. June 13, 2019) (citing Jackson v. Watkins,

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619 F.3d 463, 466 (5th Cir. 2010)) (analyzing plaintiff’s Title VII and 42 U.S.C. § 1981 using

the same burden-shifting framework) (emphasis added)).

Because Section 1981 claims are analyzed under the same framework as Title VII race

discrimination and retaliation claims, plaintiff must initially establish a prima facie case of

discrimination and retaliation to meet her initial burden, including adverse employment action.

Wallace, 2019 WL 2484692, at *4. For the reasons more fully set out above, plaintiff has not

shown that she suffered an adverse employment action, an essential element of a prima facie

case. For that reason, she cannot prevail on her Section 1981 claims, and her claims against

Royster, Utterback and Friends must be dismissed.

Plaintiff argues that “because "[d]efendants . . . expressly failed to timely request

summary judgement (sic) as to [plaintiff’s] cause of action under Section 1981 [, defendants] .

. . have thereby waived those issues.” Record Doc. No. 60 at p. 3. Defendants did not mention

plaintiff’'s Section 1981 claim in their original motion papers, asserting arguments as to Section

1981 only when they later filed their reply memoranda. Record Doc. Nos. 54, 55, 56. The

deadline for filing pretrial motions was in time to permit notice of submission under Local Rule

7.2 by July 8, 2019. Record Doc. No. 25 at p. 1. Defendants timely filed their original motion

papers before this deadline. However, their replies were filed on July 9, 2019, one day after the

submission deadline.

Where – as here – the court has entered a scheduling order setting a deadline for filing

pre-trial motions, the schedule “may be modified only for good cause and with the judge’s

consent.” Fed. R. Civ. P. 16(b)(4) (emphasis added). “In determining whether the movant has

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met its burden under Rule 16(b)(4), the court considers four factors: (1) the party’s explanation;

(2) the importance of the requested relief; (3) potential prejudice in granting the relief; and (4)

the availability of a continuance to cure such prejudice.” Choice Hotels Int’l v. Goldmark

Hospitality, LLC, 2014 WL 80722, at *2 (N.D. Tex. Jan. 9, 2014) (quotation omitted)(citing

S & W Enters., LLC v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003)); accord

Borden v. United States, 537 F. App’x 570, 574 (5th Cir. 2013)(citing Reliance Ins. Co. V. La.

Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)).

Weighing these factors, I find that good cause has been established in these

circumstances. The explanation for defendants’ failure to assert Section 1981 arguments in their

original motions appears to be oversight. This is not a persuasive explanation and weighs

against allowing the late assertion of their Section 1981 arguments. However, all remaining

factors favor permitting it. The Section 1981 arguments asserted one day late are important. A

ruling on plaintiff's Section 1981 claims will affect whether the parties will be spared or exposed

to incurring the substantial time, effort and cost of preparing for and conducting a trial. No

prejudice occurs in permitting the one-day late assertion of arguments relating to the Section

1981 claims. The analytical and evidentiary framework for evaluating the Section 1981 claims

is the same as what was previously and timely briefed in connection with the similar Title VII

claims. The court interpreted defendants’ arguments in their replies as supplementing their

original motions for summary judgment and provided plaintiff with a full opportunity to respond

to those arguments. Record Doc. No. 59. Thus, a further continuance is unnecessary. Balancing

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the Rule 16 factors establishes good cause for permitting defendants’ Section 1981 arguments.

I do not accept plaintiff's argument that defendants waived their summary judgment rights.

Il. CONCLUSION

For all the foregoing reasons, IT IS ORDERED that defendants’ motions for summary

judgment, Record Doc. Nos. 28 and 31, are GRANTED, and these claims are DISMISSED

WITH PREJUDICE. Considering the court’s prior orders, Record Doc. Nos. 61 and 62, because

all claims asserted by plaintiff against all defendants have been dismissed, judgment will be

separately entered.

New Orleans, Louisiana, this 25th day of September, 2019.

JOSEPH C. WILKINSON, JR.

UNITED STATES MAGISTRATE JUDGE

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