Breland v. Woodhouse Day Spa et al

MOTION for Summary Judgment Regarding Plaintiff's Remaining Claims

E.D. La.April 3, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MELINDA BRELAND * CIVIL ACTION NO.: Plaintiff * 2:16-cv-00030-JTM-JCW * versus * * JUDGE: MILAZZO WOODHOUSE DAY SPA; DEW SPA, LLC; * DEW SPA II, LLC; TAMMY TORRES * BRIDGES; DENEB WARNER AND * MAGISTRATE: WILKINSON ERIN WARNER * Defendants * ***************************************************************************** DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF’S REMAINING CLAIMS NOW INTO COURT come Defendants, DEW Spa, LLC, DEW Spa II, LLC, Erin Warner, Deneb Warner and Tammy Bridges, who, pursuant to Rule 56 of the Federal Rules of Civil Procedure and LR 56.1 hereby move this Court for summary judgment in their favor, dismissing with prejudice Plaintiff’s remaining claims against them in this matter, as the Plaintiff’s claims under The Family and Medical Leave Act of 1993 (FMLA) were previously dismissed. There are no genuine issues of material fact that require trial and Defendants are entitled to judgment as a matter of law. WHEREFORE, for the reasons set forth more fully in the accompanying Memorandum in Support, Defendants pray that this Court dismiss Plaintiff’s remaining claims against them with prejudice and enter judgment in favor of the Defendants at Plaintiff’s cost. Case 2:16-cv-00030-JCW Document 77 Filed 04/03/17 Page 1 of 2 2 Respectfully submitted: The Bezou Law Firm /s/ Matthew L. Devereaux Matthew L. Devereaux, T.A. (32125) Jacques F. Bezou, Jr. (33728) 534 East Boston Street Covington, LA 70433 Telephone: (985) 892-2111 Facsimile: (985) 892-1413 mdevereaux@bezou.com jb2@bezou.com Counsel for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has been served all counsel of record by the CM/ECF system, email, facsimile and/or U.S. mail properly addressed and first class postage prepaid this 3rd day of April, 2017. /s/ Matthew L. Devereaux Matthew L. Devereaux Case 2:16-cv-00030-JCW Document 77 Filed 04/03/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MELINDA BRELAND * CIVIL ACTION NO.: Plaintiff * 2:16-cv-00030-JTM-JCW * versus * * JUDGE: MILAZZO WOODHOUSE DAY SPA; DEW SPA, LLC; * DEW SPA II, LLC; TAMMY TORRES * BRIDGES; DENEB WARNER AND * MAGISTRATE: WILKINSON ERIN WARNER * Defendants * ***************************************************************************** DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF’S REMAINING CLAIMS MAY IT PLEASE THE COURT: Pursuant to Rule 56 of the Federal Rules of Civil Procedure and LR 56.1, Defendants DEW Spa, LLC, DEW Spa II, LLC, Erin Warner, Deneb Warner and Tammy Bridges (“Defendants”) hereby submit their Memorandum in Support of their Motion for Summary Judgment to demonstrate there are no genuine issues of material fact, and that Defendants are entitled to judgment as a matter of law. I. BACKGROUND Plaintiff began working for Defendant DEW Spa, LLC (“DEW Spa”) in May 2013, as an esthetician and nail technician. (Doc. No. 1, Complaint, ¶ 21). DEW Spa owns and operates a Woodhouse Day Spa location at 796 East I-10 Service Road, Slidell, Louisiana. On or about March 1, 2015, Plaintiff learned she was pregnant and communicated this information to DEW Spa Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 1 of 22 2 employees.1 On or about May 10, 2015, Plaintiff stopped working for DEW Spa.2 (Doc. No. 1, Complaint, ¶ 81). Thereafter, Plaintiff filed a claim with the Louisiana Workforce Commission for unemployment benefits, which was ultimately denied. She appealed this decision to an Administrative Law Judge and her claims were, again, denied. Plaintiff also submitted a Claim to the Equal Employment Opportunity Commission and an unsuccessful mediation occurred. After the Louisiana Workforce Commission denial and unsuccessful EEOC mediation, the Plaintiff instituted this litigation against Defendants asserting all manner of claims. (Doc. No. 1, Complaint). Specifically, Plaintiff has made claims against Defendants under the following: - 42 U.S.C. § 1981. (Doc. No. 1, Complaint, page 9 section 1); - 42 U.S.C. § 1985. (Doc. No. 1, Complaint, page 10 section 2); - Title VII of the Civil Rights Act of 1964. (Doc. No. 1, Complaint, page 9 section 1); - Pregnancy Discrimination Act. (Doc. No. 1, Complaint, ¶ 87); - “Louisiana’s Pregnancy Discrimination Act.” (Doc. No. 1, Complaint, ¶ 87);3 As explained in greater detail below, she cannot meet her burden of proof for any of these claims. The evidence revealed in this case thus far shows that Plaintiff has asserted claims against the Plaintiff under these laws in bad faith, in a frivolous attempt to “shake down” the Defendants. Accordingly, the Defendants are entitled to judgment as a matter of law dismissing Plaintiff’s claims against them in their entirety. 1 Exhibit A, page 79. 2 The specific day in May of 2015 in which Plaintiff stopped working at the Woodhouse Slidell location is disputed. 3 Plaintiff’s claims under the Family and Medical Leave Act (FMLA) were previously dismissed. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 2 of 22 3 II. LAW AND ARGUMENT A. Standard for Summary Judgment. “Summary judgment is appropriate when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, ‘there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law.’” LeMaire v. Louisiana Dept. of Transp., 480 F.3d 383, 387 (5th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). There is no “genuine issue” when the record, taken as a whole, could not lead a rational trier of fact to find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). When considering a motion for summary judgment, the Court must “review the facts drawing all inferences most favorable to the party opposing the motion.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 137 (5th Cir. 2004). The inferences must be “reasonable.” Nung v. Allstate Ins. Co., 604 F.3d 840, 844 (5th Cir. 2010). The standard for determining whether summary judgment is appropriate is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Once the party moving for summary judgment demonstrates the absence of a genuine issue of material fact, “the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995); Matsushita, 475 U.S. at 587. A factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for the non-moving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002); Anderson, 477 U.S. at 248. Summary judgment is appropriate when the movant meets its initial burden of Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 3 of 22 4 demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrell , 477 U.S. 317, 323 (1986). B. 42 U.S.C. § 1981 The Plaintiff has asserted claims against Defendants under 42 U.S.C. § 1981, which is particularly confounding. To succeed on a Section 1981 claim, the Plaintiff must establish: “(1) that she is a member of a racial minority; (2) that [the defendant] had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute.”4 (emphasis added). Melinda Breland is a Caucasian female, aged 33. She is most certainly not a “member of a racial minority.” Accordingly, her claims under 42 U.S.C. § 1981 cannot stand and must be dismissed. Further, Defendants would request that this Honorable Court award them their attorney’s fees and costs related to the preparation and filing of this motion, as this claim is clearly frivolous and not based in fact or law.5 C. 42 U.S.C. § 1985 Plaintiff has likewise asserted claims under 42 U.S.C. U.S.C. § 1985 – Conspiracy to Interfere With Civil Rights, which provides as follows: (1)PREVENTING OFFICER FROM PERFORMING DUTIES If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; 4 Arguello v. Conoco, 330 F.3d 355, 358 (5th Cir. 2003); see also Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir.2001). 5 Fox v. Vice, 563 U.S. 826 (2011); see also 42 U.S.C. § 1988. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 4 of 22 5 (2)OBSTRUCTING JUSTICE; INTIMIDATING PARTY, WITNESS, OR JUROR If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; (3)DEPRIVING PERSONS OF RIGHTS OR PRIVILEGES If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.6 Section 1985 provides a cause of action for several types of conspiracies, under subsections one through three. Plaintiff does not expressly cite to the portion or portions of Section 1985 on which she relies. Section 1985(1) applies to conspiracies to interfere with a federal official’s performance 6 42 U.S.C. § 1985. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 5 of 22 6 of his duties.7 Section 1985(2) applies to conspiracies to influence grand juries and obstructing justice in state courts.8 The complaint does not allege a factual scenario to support any claim under sub-sections one and two. Therefore, the Complaint does not state a claim under these sub-sections. Section 1985(3) prohibits conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws,” or to prevent another from voting or advocating in federal election.9 The second part of this sub-section is clearly inapplicable as federal elections are not at issue here. That leaves the first part of sub-section three arguably applicable to the instant matter. “To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States.”10 A conspiracy to deprive another of the equal protection of the law requires a showing that racial animus or political belief or association lay behind the conspiracy.11 As discussed above, Plaintiff’s Complaint makes no factual allegations to support an Equal Protection claim.12 Therefore, Plaintiff’s Section 1985(3) conspiracy must fail for this reason. 7 42 U.S.C. § 1985(1). 8 42 U.S.C. § 1985(2). 9 42 U.S.C. § 1985(3). 10 Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994)(emphasis added). 11 Sullivan v. County of Hunt, 106 Fed. Appx. 215, 220 (5th Cir. 2004)(emphasis added). 12 Melinda Breland is, in fact, a Caucasian. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 6 of 22 7 Plaintiff’s conspiracy claim also fails because, at the onset, before reaching the issue of whether political association lay behind the conspiracy, Plaintiff must show there was, indeed, a conspiracy. Conspiracy requires: “(1) two or more persons or corporation; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; (5) and, damages as the proximate result.”13 To date the Plaintiff has put forth no evidence whatsoever regarding any “conspiracy” between Erin Warner, Deneb Warner and Tammy Bridges, despite her baseless allegations otherwise. In Guidry, the Fifth Circuit opined that “a general allegation of conspiracy, without a statement of the facts constituting that conspiracy, is only a legal conclusion and is insufficient to state a cause of action.”14 Accordingly, Plaintiff’s claims under 42 U.S.C. § 1985 should be dismissed. Defendants would also request that this Honorable Court award them their attorney’s fees and costs related to the preparation and filing of this motion, as this claim is clearly frivolous and not based in fact or law.15 D. Americans with Disabilities Act (ADA) The Plaintiff makes no reference to the Americans with Disabilities Act (ADA) in her Complaint. However, in her Response Memorandum to Defendants’ Motion for Summary Judgment Regarding Claims Under the Family and Medical Leave Act of 1993 (FMLA)(Doc. No. 75, page 3), she ambiguously states that she “reserves all her rights” relating to her claims under the ADA. Thus, it seems the Plaintiff has asserted a claim under this Act. Regardless, she cannot establish a prima facie case under the ADA and her claims must be dismissed as a matter of law. 13 Marsh v. Wallace, 666 F. Supp. 2d 651 (S.D. Miss. 2009). 14 Guidry v. U.S. Tobacco Co. Inc., 188 F. 3d 619, 631-32 (5th Cir. 1999). 15 Fox, supra. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 7 of 22 8 A person “may establish a claim of discrimination under the ADA either by presenting direct evidence or by using the indirect method of proof set forth in McDonnell Douglas....”16 To establish a prima facie case of intentional discrimination under McDonnell Douglas, a plaintiff must show that she “(1) suffers from a disability; (2) was qualified for the job; (3) was subject to an adverse employment action, and (4) was replaced by a non-disabled person or treated less favorably than non-disabled employees.” 17 The employer then “must show a legitimate, nondiscriminatory reason for its action.” The employee “ultimately bears the burden of showing that the employer's actions were motivated by considerations prohibited by the statute.”18 A person is disabled under the ADA if she (1) has a physical or mental impairment that substantially limits one or more of the major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment.19 The court must interpret this definition strictly.20 Here, Breland contends that her disability is a “high risk” pregnancy and that this, apparently, qualifies as a disability under the ADA. This argument, however, is not supported by law. In Appel, the court dismissed the plaintiff’s ADA claims finding that it, “agrees with Defendant that pregnancy alone is not a disability under the ADA…”21 In Villarreal v. J.E. Merit Constructors, Inc., the court held that “[C]onditions, such as pregnancy, that are not the result of 16 Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.1999); see also Appel v. Inspire Pharmaceuticals, Inc., 712 F.Supp.2d 538 (N.D. Tex. 2010). 17 Id. 18 Id. 19 42 U.S.C. § 12102(2). 20 Carmona v. Southwest Airlines Co., 604 F.3d 848, 855–56 (5th Cir.2010) (citations omitted). 21 Appel at 548. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 8 of 22 9 a physiological disorder are not impairments.”22 Other courts have held this, as well. In Gorman v. Wells Mfg. Corp., the court held that plaintiff's pregnancy-related nausea, vomiting, dizziness, severe headaches, and fatigue did not qualify as disabilities under the ADEA.23 In Johnson v. A.P. Prods., Ltd., the court found that “[P]regnancy and related medical conditions are not disabilities under the ADA.”24 Further, the court in LaCoparra v. Pergament Home Ctrs., Inc., held that “pregnancy-related complications usually will not qualify a woman for ADA protection” and found no disability where plaintiff had a history of infertility, a prior miscarriage, and spotting and cramping.25 Ms. Breland’s pregnancy, by itself, does not constitute a disability under the ADA. That much is clear from the case law. Furthermore, even if her pregnancy were “high risk” it would not be considered a disability under Act. Critically, though, Ms. Breland’s pregnancy was most certainly not “high risk.” This condition was completely fabricated by the Plaintiff. In her deposition, Ms. Breland testified as follows: “Q. In your complaint, you mention and use the phrase "high-risk pregnancy" a couple of times. Do you see that? A. Yes. Q. I think we kind of scratched the surface on this earlier today. You considered your pregnancy with Ella to be high risk; correct? A. Yes. Q. If I wasn't clear before, I will ask it again. Did Dr. Lobello ever diagnose you as a high-risk pregnancy? A. She asked if I would like to take off because of my high blood pressure. She said it could be high risk and she asked me if I wanted to have the rest of the pregnancy off. Q. When did this happen? 22 895 F.Supp. 149, 152 (S.D.Tex.1995) (quoting 29 C.F.R. 1630). 23 209 F.Supp.2d 970, 976 (S.D.Iowa 2002), aff'd, 340 F.3d 543 (8th Cir.2003). 24 934 F.Supp. 625, 627 (S.D.N.Y.1996). 25 982 F.Supp. 213, 228 (S.D.N.Y.1997). Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 9 of 22 10 A. That was the second visit. Q. Which was when? A. Had to be sometime in April. We talked about several things. Q. Just to be clear, Dr. Lobello said you might be a high-risk pregnancy; correct? A. She said -- we were talking about my history. I was new to her. So she was trying to get to know me. She said based off of what I told her before, I was at risk high for hypertension, toxemia, or edema. Q. Did she say you were a high-risk pregnancy? A. We never discussed it. Q. So no? A. So no.”26 (emphasis added). After a bit of evading, the Plaintiff finally admitted that she never discussed her pregnancy being “high risk” with Dr. Lobello (her OB-GYN). This testimony was confirmed during the deposition of Dr. Lobello, who testified: “Q. I'm going to go through those records in just a second; but, first off, in Ms. Breland's lawsuit there are several places where she references her pregnancy as being, quote, high risk. Did you ever diagnose her pregnancy as high risk? A. I did not. She had a history in the prior pregnancies of some hypertension, but it didn't appear it had prompted an early induction of labor or anything, so I did not consider her high risk at that point.”27 (emphasis added). Breland and Dr. Lobello never discussed her pregnancy as being “high risk.” Dr. Lobello did not consider her pregnancy to be “high risk.” Despite this, Ms. Breland continued to solicit notes and other representations from Dr. Lobello stating that her pregnancy was “high risk.” These solicitations were rebuffed by Dr. Lobello, who went on to testify: “Q. The documents that I passed to you, on Page 1 there is at the very bottom under the section "additional comments" on May 12th, 2015, you provide, Patient very tearful about work and having to, quote, do nails, end quote. Wants letter stating that she can't. I let her know we have women who do that seven days a week, comma, and can write only that she prefer not to do it." Did you dictate that? A. I did. Q. Can you tell us about that. 26 Exhibit A, pages 121-122. 27 Exhibit B, page 11. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 10 of 22 11 A. I remember the patient coming in, and she seemed upset. She thought that being a nail tech would somehow complicate her pregnancy. In our community, we have a large Vietnamese population, and they have an incredible work ethic. And they work around nail chemicals, nail fumes, whatnot; often six, seven days a week; with no harmful outcome. I only write letters for people to not do their job if they have a definitive diagnosis, an obstetrical definitive diagnosis. And I saw no reason that she couldn't perform her stated job; no danger to her or the fetus. Q. So her claim or statement that performing work as a nail tech would somehow risk her pregnancy has no basis in medicine? A. No.”28 The testimony from Ms. Breland and Dr. Lobello clearly shows that Plaintiff was fabricating the notion that her pregnancy was “high risk” and that her condition precluded her from performing work as a nail technician. She acted in bad faith in an attempt to coerce Defendants into doing something they were not obligated to do under Federal law. Ironically, the day after Dr. Lobello refused to give the Plaintiff a note that her pregnancy prevented her from doing nails, Ms. Breland switched to a different OB-GYN for the remainder of her pregnancy. That physician, Dr. Tydings, is located in Covington, Louisiana (approximately 30 miles from her residence at the time) and he also happens to be a practicing attorney. Even more ironic is that Breland requested the “note’ from Dr. Lobello the day after she claims she was terminated by Defendants. The Plaintiff cannot establish a prima facie case under the ADA because she is not disabled within the meaning of the ADA. Her claims should be dismissed. Ms. Breland repeatedly misrepresented her pregnancy as “high risk” to the Defendants. She can offer no evidence whatsoever as to any limitations imposed upon her by the pregnancy. In fact, Dr. Lobello specifically testified at her deposition that she placed no restrictions on the Plaintiff from performing any work as a nail technician or esthetician.29 As such, her claims under the Americans 28 Exhibit B, pages 17-18. 29 Exhibit B, page 12. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 11 of 22 12 with Disabilities Act (ADA) has no basis in fact or law and Defendants request that this Honorable Court award them their attorney’s fees and costs related to the preparation and filing of this motion.30 E. Title VII of the Civil Rights Act of 1964, Pregnancy Discrimination Act and Louisiana’s Pregnancy Discrimination Act It appears that the Plaintiff has asserted claims against Defendants under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act (PDA) and the “Louisiana Pregnancy Discrimination Act.” For purposes of this motion, it is assumed that Ms. Breland is referencing the Louisiana Employment Discrimination Law (LEDL)31 when referring to her “state law” claims. In Louisiana, courts “look to federal jurisprudence interpreting Title VII of the Civil Rights Act of 1964 §§ 701–705, as amended, 42 U.S.C. §§ 2000e–2000e–4, to interpret the LEDL because it contains similar prohibitions against discrimination.”32 Further, The Fifth Circuit analyzes PDA claims the same way it analyzes Title VII discrimination claims.33 Accordingly, this portion of Defendants’ motion will analyze the Title VII, PDA and LEDL claims together. In order to establish a prima facie case of discrimination under Title VII and the PDA, an employee must “show (1) she was a member of a protected class; (2) she was qualified for the position she lost; (3) she was fired; and (4) that other similarly situated employees were more favorably treated, or that she was replaced by a person who is not a member of the protected 30 Fox, supra. 31 La. R.S. 23:341. 32 Brooks v. Popeye’s, Inc., 101 So.3d 59, 62 (La.App. 3 Cir. 3/14/12); see also King v. Phelps Dunbar, L.L.P., 98– 1805 (La.6/4/99), 743 So.2d 181; see also Bustamento v. Tucker, 607 So.2d 532 (La.1992). 33 McLaughlin v. W & T Offshore, Inc., 78 Fed.Appx. 334 (5th Cir. 2003), 2003 WL 22348926. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 12 of 22 13 class.”34 Here, the Plaintiff can provide no evidence that she was fired from any position at the Woodhouse Day Spa. As such, she cannot establish a prima facie case under Title VII, the PDA or LEDL. Besides Ms. Breland’s self-serving testimony at her deposition, there is no evidence she was fired from her position at the Woodhouse Day Spa. In fact, documentary evidence in this case shows otherwise. At her deposition, the Plaintiff testified: “Q. Turn to page 9 of the complaint. 84, do you see that? A. Yes. Q. "Warner then terminated plaintiff." Is that correct? A. Yes. Q. You're referring to your role as an esthetician; right? A. Yes. Q. Because you quit as a nail tech; right? A. Yes. Q. What documents do you have to support the allegation in paragraph 84? A. Verbal and she told Jessica to take me off the schedule. I was done. MR. DEVEREAUX: Objection. Nonresponsive. BY MR. DEVEREAUX: Q. What documents do you have to support the allegations in paragraph 84 of the complaint? A. I don't have them.”35 In this exchange, the Plaintiff states that she has no documentary evidence to support her allegations that she was fired. Her entire Title VII, PDA / LEDL claims rely solely on her self- serving testimony about a telephone call she allegedly had with Defendant Erin Warner on May 11. Conversely, there is evidence which shows that Ms. Breland quit. Prior to instituting this litigation, the Plaintiff pursued an administrative claim against the Defendants, which was denied. 34 Adcock v. Sunquest Properties, Inc., 421 Fed.Appx. 446 (5th Cir. 2011), 2011 WL 1363983; see also Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir.1999). 35 Exhibit A, pages 181-182. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 13 of 22 14 She appealed this decision and after a telephone hearing in which Ms. Breland provided testimony, the administrative law judge found: “The evidence in this case does show that the claimant worked under customary working conditions and that there was no substantial change in these conditions during employment. The claimant was aware at the time she accepted the employment the licensure requirements and her lack of meeting them. She also admitted during her testimony that she essentially quit because she refused to perform nail services as requested by her employer.”36 This finding is important for a number of reasons. First, it confirms that Plaintiff quit her position with Woodhouse and was not fired. Thus, her claims under the PDA and LEDL must fail. Second, it further supports Defendants’ position that Plaintiff has misrepresented and fabricated the facts underlying this litigation since the beginning. She claimed in her administrative filings that she was terminated by Defendants. Upon questioning by the ALJ, she admitted to quitting. She then institutes this action against Defendants, asserting all manner of disparate treatment concerning her “high risk” pregnancy. Again, when asked under oath Ms. Breland could offer no evidence that she was ever diagnosed as “high risk.”37 Her treating OB-GYN at the time confirmed this.38 The Plaintiff has engaged, and continues to engage, in a pattern of bad faith in prosecuting this action. Additionally, the Plaintiff admitted that she never put anything in writing to the Defendants about her alleged inability to perform nail work while pregnant. She stated: “Q. Is there anything in writing to my client complaining about: Hey, because I'm pregnant I can't do these tasks as a nail tech? A. It never got to that point. That's why I was trying to go to the doctor. Q. So the answer no? A. Yes. 36 Exhibit C. 37 See Exhibit A, pages 121-122. 38 See Exhibit B, page 11. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 14 of 22 15 Q. Correct, the answer is no? A. Correct.”39 Likewise, Ms. Breland cannot establish that any actions taken by Defendants were “adverse employment actions.”40 “To constitute a cognizable ‘adverse employment action’ an action must be an ultimate employment decision.”41 “Ultimate employment decisions' include acts ‘such as hiring, granting leave, discharging, promoting, and compensating.”42 Here, any alleged actions by Defendants certainly do not constitute separate “ultimate employment decisions” in and of themselves. The Plaintiff has no evidence that she was terminated and, as set forth below, admitted at her deposition that she believed she could still work at Woodhouse after the date she was allegedly terminated. A plaintiff in a retaliation case must show that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”43 Ms. Breland fails to establish how her being taken off the esthetician schedule for one day could have possibly constituted an adverse employment action. Since Ms. Breland has no evidence that she was fired (or that she ever informed my client about her fictitious pregnancy condition), she will likely argue that she was constructively discharged from her position as an esthetician.44 As with her other claims, she has no evidence of 39 Exhibit A, page 116. 40 LeMaire v. Louisiana Dept. of Transp. and Development, 480 F.3d 383, 388 (5th Cir. 2007). 41 Skinner v. Brown, 951 F.Supp. 1307, 1315 n. 9 (1996), aff'd, 134 F.3d 368 (5th Cir.1997) (citing Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir.1995)). 42 Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (quoting Dollis, 77 F.3d 777 at 781-82 (noting that Title VII was not designed to “address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions”)). 43 Burlington Northern & Santa Fe Railway Co., 126 S.Ct. 2405, 2415. 44 Remember, Plaintiff admitted during her deposition that she quit as a nail tech. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 15 of 22 16 this and cannot carry her burden. The Supreme Court has held that “for an atmosphere of sexual harassment or hostility to be actionable,…the offending behavior ‘must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’”45 A hostile-environment “constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.”46 In this case, Breland has no evidence whatsoever of an “abusive working environment.” The Plaintiff makes numerous allegations that she was not allowed time off from work to see her doctor and that she was treated differently than non-pregnant workers with respect to requesting time off. She equates this to a hostile work environment. At her deposition, however, Ms. Breland testified: “Q. Is it your position in this lawsuit that nonpregnant workers did not have to request time off in writing? A. Did not have to? Q. Yes. A. I feel like I had to. … Q. I'm going to ask it again. Did other workers at Woodhouse besides yourself have to request time off in writing? A. At times, yes. Q. As you had to request time off in writing; correct? A. At times, yes. … Q. So just to clarify, other workers besides yourself at Woodhouse were required to submit requests for time off in writing; correct? 45 Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342 (2004); see also Meritor, 477 U.S., at 67, 106 S.Ct. 2399 (internal quotation marks and brackets omitted). 46 Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (C.A.8 1999) (“[A]lthough there may be evidence from which a jury could find sexual harassment, ... the facts alleged [for constructive discharge must be] ... so intolerable that a reasonable person would be forced to quit.”); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (C.A.7 1997) (“[U]nless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.”). Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 16 of 22 17 A. Correct.”47 (emphasis added). Here, Breland admits that with respect to time off requests, she was treated no differently than any other worker at Woodhouse. The Plaintiff also alleges that she was treated differently than non-pregnant workers by “requiring that she perform nail technician work even though she was hired as an esthetician and worked full time as an esthetician.” (Doc. No. 1, Complaint, ¶ 89). At her deposition, she again testified in complete contrast to the allegations in her Complaint: “Q. I will represent to you that this is a written Decision of an Administrative Law Judge from the Louisiana Workforce Commission, Appeals Tribunal. Is that fair to say? A. Yes. … Q. We talked about this earlier. You filed a claim for unemployment which was denied and then you filed an appeal; right? A. Yes. Q. The second paragraph under Case History refers to a telephone hearing conducted on July 16, 2015. Do you see that? A. Yes. Q. Did you participate? A. Yes. Q. Did you testify? A. Yes. … Q. Do you see where it says Findings of Fact? A. Yes. … Q. "When the claimant was initially hired it was as a nail tech as well as an independent contractor to provide esthetician services." Is that correct? A. Correct. Q. You agree with that statement? A. Correct.”48 (emphasis added). 47 Exhibit A, pages 102-104. 48 Exhibit A, pages 149-152. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 17 of 22 18 Despite numerous assertions throughout this litigation that she was only hired as an esthetician, Ms. Breland admitted during the appeal hearing that she was hired as both. This is yet another allegation against the Defendants in this lawsuit which was proven inaccurate when Plaintiff was made to testify under oath. For purposes of her Title VII and PDA / LEDL claims, this doesn’t even get close to a “hostile working environment.” The Plaintiff simply has no evidence of this nor of any different treatment of her by the Defendants. Ms. Breland was not treated differently than non-pregnant workers. She was not fired or constructively discharged from her position at Woodhouse Day Spa. In fact, the Plaintiff admitted during her deposition that she thought she was still working at Woodhouse the day after she claims she was terminated: “Q. So you believe you were terminated as of Monday, May the 11th? A. All I know is what I told you. Q. Monday, May the 11th? A. Yes. Q. The following day you saw Dr. Lobello and requested a letter saying you couldn't do nails; correct? … Q. Why did you need a letter such as that the day after you were terminated? A. Because, like I said, I thought I still had a chance to go back because I've seen some in the past. Q. The following day you saw Tydings who gave you a handwritten letter talking about the scope of your license; correct? A. Yes. Q. Why would you need that if you were terminated from Woodhouse? A. Like I said, I thought I would be able to go back.”49 (emphasis added). This testimony is supported by Defendant Erin Warner’s deposition: “Q. Did you consider letting Melinda perform esthetician services without performing nail tech services? A. Yeah. Like I said, we had no intention of taking her off the esthetic books. She’s the one that was nonresponsive.”50 49 Exhibit A, pages 186-188. 50 Exhibit D. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 18 of 22 19 The evidence in this case shows that Breland wasn’t fired. There’s no evidence whatsoever that the Plaintiff was treated differently than any other employee of Woodhouse. Ms. Breland has put forth no evidence that the Defendants did anything to create a “hostile working environment” such that a reasonable person would have felt compelled to resign – she herself actually thought she was still working at Woodhouse the day after she claims she was fired! The evidence also shows that Breland did not have a “high risk” pregnancy. Her OB-GYN testified that she didn’t diagnose the Plaintiff’s pregnancy as “high risk” and she placed no work restrictions on Ms. Breland because of the pregnancy. Despite these truths, the Plaintiff repeatedly sought concessions from Defendants based upon a mythical diagnosis, all in an effort to force the Defendants to do something they were not obligated to do. The Plaintiff refused to perform her job as a nail tech and ultimately quit her position with Woodhouse. Her claims under Title VII, the PDA and LEDL have no merit and should be dismissed. F. Attorney’s Fees and Costs – Fox v. Vice In Fox v. Vice, the Supreme Court authorized the awarding of attorney’s fees and costs to a defendant for frivolous claims asserted by a plaintiff.51 In her opinion for a unanimous Court, Justice Kagan held: “Federal law authorizes a court to award a reasonable attorney's fee to the prevailing party in certain civil rights cases. See 42 U.S.C. § 1988. We have held that a defendant may receive such an award if the plaintiff's suit is frivolous. In this case, the plaintiff asserted both frivolous and non-frivolous claims. We hold today that a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims.”52 51 563 U.S. 826 (2011). 52 Id. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 19 of 22 20 Here, Ms. Breland has asserted completely frivolous claims. As set forth above, she is seeking damages from Defendants for allegedly violating her “rights” under 42 U.S.C. § 1981 and 1985. These sections require that she either be a member of a racial minority53 or that there be a conspiracy to abrogate her rights driven by racial animus.54 Melinda Breland is, undisputedly, a Caucasian female. As such, her claims under sections 1981 and 1985 are baseless and frivolous. Likewise, the Plaintiff’s claims under the Americans with Disabilities Act (ADA) are frivolous and have no basis in fact, law or medicine. As admitted by Ms. Breland at her deposition55 and as testified to by her treating OB-GYN, Dr. Lobello, the Plaintiff did not have a “high risk” pregnancy and she was not restricted from performing any work as a nail tech and/or esthetician.56 The caselaw is clear that pregnancy in and of itself does not constitute a disability under the ADA. This, combined with the Plaintiff’s fabrication of her “high risk” pregnancy and bad faith pursuit of these claims, exposes the frivolity of the ADA claim. On March 21, 2017, The Plaintiff voluntarily dismissed her FMLA claims stipulating that she cannot prove that Defendants employed the requisite number of employees to be considered a “covered employer.” (Doc. No. 75, ¶ 1). This fact has been stated to the Plaintiff since the inception of this litigation. In fact, on April 29, 2016 (nearly 1 year before Plaintiff’s voluntary dismissal) the undersigned sent a letter to Plaintiff’s counsel specifically stating that Defendants did not meet the definition of “covered employer” under the FMLA and offering documents to back that up. In response, the Plaintiff stated that her “count” of the employees at Defendants’ Slidell location 53 See footnote 4. 54 See footnote 11. 55 See footnote 26. 56 See footnotes 27-29. Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 20 of 22 21 exceeded the requisite amount and that “there is no question” when Defendants’ Slidell and Baton Rouge locations are combined. Of course, Ms. Breland never produced a scintilla of evidence to back up these allegations and Defendants were forced to litigate this issue for nearly a year, draft and file a motion for summary judgment which the Plaintiff voluntarily dismissed. The FMLA claims had no basis in fact, which was revealed to Ms. Breland early on in this litigation. As such, Defendants should be awarded their fees and costs associated with defending this meritless claim. The Defendants should be awarded their attorney’s fees and costs associated with defending themselves against these frivolous claims, as same is authorized under Fox v. Vice. III. CONCLUSION For the above-stated reasons, Defendants respectfully request that the Court grant their Motion for Summary Judgment and enter judgment as a matter of law in their favor dismissing Melinda Breland’s suit in its entirety, and award them their attorney’s fees and costs associated with Plaintiff’s frivolous claims. Respectfully submitted: The Bezou Law Firm /s/ Matthew L. Devereaux Matthew L. Devereaux, T.A. (32125) Jacques F. Bezou, Jr. (33728) 534 East Boston Street Covington, LA 70433 Telephone: (985) 892-2111 Facsimile: (985) 892-1413 mdevereaux@bezou.com jb2@bezou.com Counsel for Defendants Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 21 of 22 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has been served all counsel of record by the CM/ECF system, email, facsimile and/or U.S. mail properly addressed and first class postage prepaid this 3rd day of April, 2017. /s/ Matthew L. Devereaux Matthew L. Devereaux Case 2:16-cv-00030-JCW Document 77-1 Filed 04/03/17 Page 22 of 22 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 1 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 2 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 3 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 4 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 5 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 6 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 7 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 8 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 9 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 10 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 11 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 12 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 13 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 14 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 15 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 16 of 17 Case 2:16-cv-00030-JCW Document 77-2 Filed 04/03/17 Page 17 of 17 Case 2:16-cv-00030-JCW Document 77-3 Filed 04/03/17 Page 1 of 5 Case 2:16-cv-00030-JCW Document 77-3 Filed 04/03/17 Page 2 of 5 Case 2:16-cv-00030-JCW Document 77-3 Filed 04/03/17 Page 3 of 5 Case 2:16-cv-00030-JCW Document 77-3 Filed 04/03/17 Page 4 of 5 Case 2:16-cv-00030-JCW Document 77-3 Filed 04/03/17 Page 5 of 5 Case 2:16-cv-00030-JCW Document 77-4 Filed 04/03/17 Page 1 of 3 Case 2:16-cv-00030-JCW Document 77-4 Filed 04/03/17 Page 2 of 3 Case 2:16-cv-00030-JCW Document 77-4 Filed 04/03/17 Page 3 of 3 Case 2:16-cv-00030-JCW Document 77-5 Filed 04/03/17 Page 1 of 2 Case 2:16-cv-00030-JCW Document 77-5 Filed 04/03/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MELINDA BRELAND * CIVIL ACTION NO.: Plaintiff * 2:16-cv-00030-JTM-JCW * versus * * JUDGE: MILAZZO WOODHOUSE DAY SPA; DEW SPA, LLC; * DEW SPA II, LLC; TAMMY TORRES * BRIDGES; DENEB WARNER AND * MAGISTRATE: WILKINSON ERIN WARNER * Defendants * ***************************************************************************** DEFENDANTS’ STATEMENT OF UNCONTESTED MATERIAL FACTS NOW INTO COURT come Defendants, DEW Spa, LLC, DEW Spa II, LLC, Erin Warner, Deneb Warner and Tammy Bridges, who, pursuant to LR 56.1 hereby submit this Statement of Uncontested Material Facts in support of their Motion for Summary Judgment regarding Plaintiff’s remaining claims in this matter: 1. Plaintiff began working for Defendant DEW Spa, LLC (“DEW Spa”) in May 2013, as an esthetician and nail technician. (Doc. No. 1, Complaint, ¶ 21). 2. On or about March 1, 2015, Plaintiff learned she was pregnant and communicated this information to DEW Spa employees. (Exhibit A to Defendants’ Memorandum, page 79). 3. In May 2015, Plaintiff stopped working for DEW Spa. (Doc. No. 1, Complaint, ¶ 81). 4. The Plaintiff has asserted claims against Defendants under 42 U.S.C. § 1981. (Doc. No. 1, Complaint, page 9 section 1). 5. To succeed on a Section 1981 claim, the Plaintiff must establish that she is a member of a racial minority; (2) that Defendants had intent to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute.” Case 2:16-cv-00030-JCW Document 77-6 Filed 04/03/17 Page 1 of 4 2 (Arguello v. Conoco, 330 F.3d 355, 358 (5th Cir. 2003); see also Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir.2001). 6. Melinda Breland is a Caucasian female. 7. Melinda Breland is not a member of a racial minority. 8. The Plaintiff has asserted claims against Defendants under 42 U.S.C. § 1985. (Doc. No. 1, Complaint, page 10 section 2). 9. Section 1985 provides a cause of action for conspiracies to interfere with one’s civil rights. (42 U.S.C. § 1985). 10. A conspiracy to deprive another of the equal protection of the law requires a showing that racial animus or political belief or association lay behind the conspiracy. (Sullivan v. County of Hunt, 106 Fed. Appx. 215, 220 (5th Cir. 2004)(emphasis added). 11. Pregnancy alone is not a disability under the Americans with Disabilities Act. (Appel v. Inspire Pharmaceuticals, Inc., 712 F.Supp.2d 538 (N.D. Tex. 2010). 12. Dr. Lobello never told Plaintiff that her pregnancy was “high risk.” (Exhibit A to Defendants’ Memorandum, pages 121-122). 13. Dr. Lobello never diagnosed Plaintiff’s pregnancy as “high risk.” (Exhibit B to Defendants’ Memorandum, page 11). 14. The Plaintiff requested that Dr. Lobello write her a note stating that she couldn’t do nails as a result of her pregnancy. Dr. Lobello refused because she saw no reason why the Plaintiff couldn’t perform her job. (Exhibit B to Defendants’ Memorandum, pages 17-18). 15. Dr. Lobello placed no restrictions on the Plaintiff from performing any work as a nail technician or esthetician. (Exhibit B to Defendants’ Memorandum, page 12). 16. The Plaintiff has no documentary evidence that she was fired from her position with Woodhouse Day Spa. (Exhibit A to Defendants’ Memorandum, pages 181-182). Case 2:16-cv-00030-JCW Document 77-6 Filed 04/03/17 Page 2 of 4 3 17. The administrative law judge presiding over Plaintiff’s EEOC appeal found that she quite from her job at Woodhouse. (Exhibit C to Defendants’ Memorandum). 18. The Plaintiff never put anything in writing to the Defendants about her alleged inability to perform nail work while pregnant. (Exhibit A to Defendants’ Memorandum, page 116). 19. With respect to requesting time off from work, the Plaintiff was treated the same as other workers. (Exhibit A to Defendants’ Memorandum, pages 102-104). 20. The Defendants originally hired Plaintiff as a nail tech and an esthetician. ((Exhibit A to Defendants’ Memorandum, pages 149-152). 21. Days after the Plaintiff alleges she was “terminated” by Defendants, she believed she could still work for Defendants. (Exhibit A to Defendants’ Memorandum, pages 186-188). 22. Defendants did not remove Plaintiff from the esthetic books. (Exhibit D to Defendants’ Memorandum). Respectfully submitted: The Bezou Law Firm /s/ Matthew L. Devereaux Matthew L. Devereaux, T.A. (32125) Jacques F. Bezou, Jr. (33728) 534 East Boston Street Covington, LA 70433 Telephone: (985) 892-2111 Facsimile: (985) 892-1413 mdevereaux@bezou.com jb2@bezou.com Counsel for Defendants Case 2:16-cv-00030-JCW Document 77-6 Filed 04/03/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has been served all counsel of record by the CM/ECF system, email, facsimile and/or U.S. mail properly addressed and first class postage prepaid this 3rd day of April, 2017. /s/ Matthew L. Devereaux Matthew L. Devereaux Case 2:16-cv-00030-JCW Document 77-6 Filed 04/03/17 Page 4 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MELINDA BRELAND * CIVIL ACTION NO.: Plaintiff * 2:16-cv-00030-JTM-JCW * versus * * JUDGE: MILAZZO WOODHOUSE DAY SPA; DEW SPA, LLC; * DEW SPA II, LLC; TAMMY TORRES * BRIDGES; DENEB WARNER AND * MAGISTRATE: WILKINSON ERIN WARNER * Defendants * ***************************************************************************** NOTICE OF SUBMISSION Please take notice that Defendants, DEW Spa, LLC, DEW Spa II, LLC, Erin Warner, Deneb Warner and Tammy Bridges, submit their Motion for Summary Judgment regarding Plaintiff’s remaining claims for consideration before the Honorable Joseph C. Wilkinson, Jr., United States District Chief Magistrate Judge for Eastern District of Louisiana on April 19, 2017. Respectfully submitted: The Bezou Law Firm /s/ Matthew L. Devereaux Matthew L. Devereaux, T.A. (32125) Jacques F. Bezou, Jr. (33728) 534 East Boston Street Covington, LA 70433 Telephone: (985) 892-2111 Facsimile: (985) 892-1413 mdevereaux@bezou.com jb2@bezou.com Counsel for Defendants Case 2:16-cv-00030-JCW Document 77-7 Filed 04/03/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has been served all counsel of record by the CM/ECF system, email, facsimile and/or U.S. mail properly addressed and first class postage prepaid this 3rd day of April, 2017. /s/ Matthew L. Devereaux Matthew L. Devereaux Case 2:16-cv-00030-JCW Document 77-7 Filed 04/03/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MELINDA BRELAND * CIVIL ACTION NO.: Plaintiff * 2:16-cv-00030-JTM-JCW * versus * * JUDGE: MILAZZO WOODHOUSE DAY SPA; DEW SPA, LLC; * DEW SPA II, LLC; TAMMY TORRES * BRIDGES; DENEB WARNER AND * MAGISTRATE: WILKINSON ERIN WARNER * Defendants * ***************************************************************************** JUDGMENT THIS MATTER came before the court on April 19, 2017, on the Motion for Summary Judgment regarding Plaintiff’s remaining claims filed by Defendants, DEW Spa, LLC, DEW Spa II, LLC, Erin Warner, Deneb Warner and Tammy Bridges. After considering the pleadings filed, the arguments of counsel, and the applicable law: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Motion for Summary Judgment regarding Plaintiff’s remaining claims is GRANTED and Plaintiff Melinda Breland’s claims against Defendants, DEW Spa, LLC, DEW Spa II, LLC, Erin Warner, Deneb Warner and Tammy Bridges, be and are hereby dismissed in their entirety with prejudice. NEW ORLEANS, LOUISIANA, this ____ day of April, 2017. MAGISTRATE WILKINSON Case 2:16-cv-00030-JCW Document 77-8 Filed 04/03/17 Page 1 of 1