974 F.3d 610
5th Cir.2020Background
- Denise Badgerow worked as an Associate Financial Advisor (AFA) for REJ Properties from Jan 2014 until her termination in July 2016; compensation shifted to a salary-draw-against-commissions scheme after she began earning commissions.
- Badgerow alleges unequal pay relative to some male AFAs, bullying and rumors (primarily by principal Thomas Meyer), and an oral salary-plus-commission agreement.
- On July 13, 2016 Badgerow complained to an Ameriprise compliance officer, Marc Cohen, that she was unsure whether she was treated unfairly because she was not family or because she was a woman; Cohen told Walters about the conversation on July 26.
- Walters fired Badgerow the same day Cohen informed him; REJ contends the termination was for repeated coworker complaints about Badgerow’s workplace behavior.
- District court granted summary judgment to REJ on disparate pay, hostile work environment, breach of contract, and retaliation; Fifth Circuit affirmed summary judgment on pay, hostile work environment, and contract, reversed and remanded as to Title VII retaliation (genuine factual dispute on pretext/causation), and affirmed denial of defendant’s attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disparate pay (Title VII & Equal Pay Act) | Badgerow contends she was paid less than male AFAs and points to salary histories of senior male AFAs | REJ argues comparators are not "nearly identical" in duties or conditions; job title alone insufficient | Affirmed: Badgerow failed to show nearly identical comparators; summary judgment proper |
| Hostile work environment (Title VII) | Meyer’s Skype/text messages, time-card policing, and sexual rumors created a hostile environment based on sex | REJ contends conduct was not based on gender and was not sufficiently severe or pervasive | Affirmed: no competent evidence linking conduct to gender or showing severe/pervasive harassment |
| Retaliation (Title VII) | Badgerow says her complaint to Cohen about potential gender-based unfair treatment was protected activity and termination occurred immediately after Cohen told Walters | REJ proffers legitimate, nondiscriminatory reason: termination due to coworker complaints about Badgerow | Reversed in part: prima facie case established (protected activity + timing); genuine dispute as to whether REJ’s reason was pretext — remanded |
| Breach of oral contract (Louisiana law) | Badgerow alleges REJ breached an oral agreement to pay $30,000 salary plus commissions | REJ and Badgerow’s own testimony show pay converted to salary draw against commissions once she earned commissions | Affirmed: testimony shows parties agreed to salary-draw arrangement; no meeting of minds for fixed-salary contract |
| Attorney’s fees (cross-appeal by REJ) | REJ sought fees for defending Rule 59(e) motion and overall litigation costs | Badgerow’s claims not so frivolous/groundless to warrant fee award under Title VII standard for prevailing defendants | Affirmed denial: district court did not abuse discretion; case not in the narrow category meriting defense fees |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (establishes burden-shifting framework for discrimination/retaliation claims)
- Harris v. Forklift Systems, 510 U.S. 17 (U.S. 1993) (defines "severe or pervasive" standard for hostile work environment)
- EEOC v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007) (elements and totality-of-circumstances test for hostile work environment)
- Taylor v. United Parcel Serv., Inc., 554 F.3d 510 (5th Cir. 2008) (requires "nearly identical" circumstances for pay-comparator proof)
- Chance v. Rice Univ., 984 F.2d 151 (5th Cir. 1993) (elements of an Equal Pay Act claim)
- EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988) (job titles/descriptions alone insufficient to prove job equality)
- Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398 (5th Cir. 1999) (suspicious timing plus other evidence can show pretext)
- Likens v. Hartford Life & Accident Ins. Co., 688 F.3d 197 (5th Cir. 2012) (speculation and unsubstantiated assertions insufficient to defeat summary judgment)
- Garcia v. Professional Contract Services, Inc., 938 F.3d 236 (5th Cir. 2019) (temporal proximity and employer knowledge support causation inference)
- Read v. Willwoods Community, 165 So. 3d 883 (La. 2015) (Louisiana law on contract formation and evidentiary requirements)