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Davis v. Ricketts

United States Court of Appeals, Eighth Circuit

August 27, 2014

Patricia J. Davis, an Individual; Patricia A. Duncan, an Individual; Jeffrey J. Goergen, Plaintiffs - Appellants
v.
J. Joe Ricketts, an Individual; Hugo Enterprises, LLC, a Nebraska Limited Liability Company, formerly known as Ricketts Enterprises, LLC; Opportunity Education Foundation, an Iowa Non-Profit Corporation, Defendants - Appellees, ADP TotalSource, Inc., a Florida Corporation, Defendant

Submitted May 15, 2014

Page 824

Appeal from United States District Court for the District of Nebraska - Omaha.

For Patricia J. Davis, an Individual, Patricia A. Duncan, an Individual, Jeffrey J. Goergen, Plaintiffs - Appellants: Brian D. Ekstrom, John C. O'Connor, Pappas & Davidson, Chicago, IL; Michael J. Merrick, Merrick Law Firm, Chicago, IL.

For J. Joe Ricketts, an Individual, Defendant - Appellee: Heidi Ann Guttau-Fox, Baird & Holm, Omaha, NE; Thomas J. Piskorski, Seyfarth & Shaw, Chicago, IL.

For Hugo Enterprises, LLC, a Nebraska Limited Liability Company, formerly known as: Ricketts Enterprises, LLC, Opportunity Education Foundation, an Iowa Non-Profit Corporation, Defendants - Appellees: Tracy Marie Billows, Kara L. Goodwin, Ellen Elizabeth McLaughlin, Attorney, Thomas J. Piskorski, Seyfarth & Shaw, Chicago, IL; Heidi Ann Guttau-Fox, Christopher R. Hedican, Baird & Holm, Omaha, NE.

Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges. RILEY, Chief Judge, concurring in part and dissenting in part.

OPINION

Page 825

SHEPHERD, Circuit Judge.

Appellants Patricia J. Davis, Patricia A. Duncan, and Davis's son, Jeffrey J. Goergen, brought suit against Opportunity Education Foundation (OEF) and Hugo Enterprises, LLC (Hugo) under Title VII of the Civil Rights Act of 1964 and the Nebraska Fair Employment Practices Act (NFEPA), alleging sexual harassment and retaliation. Davis and Duncan also sued Joe Ricketts, the Chief Executive Officer of OEF and owner of Hugo, for tortious interference with their expectation of continued employment. The district court[1] dismissed the tortious interference claim, finding Davis and Duncan had failed to state a claim against Ricketts because he was acting on behalf of OEF and thus could not be a third party interferer. The district court later granted OEF and Hugo's motion for summary judgment, concluding that OEF did not have the requisite number of employees to be considered an employer under Title VII and the NFEPA and that OEF and Hugo were not integrated employers to meet the numerosity requirement under the statutes.[2] We affirm.

I.

We recite the facts in the light most favorable to the appellants, the nonmoving parties. Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 437 (8th Cir. 2007). Ricketts established OEF, an Iowa nonprofit corporation with its principal place of business in Omaha, Nebraska. It provides educational support and materials to schools in developing countries. Ricketts also owns, funds, and is managing member

Page 826

of Hugo, a for-profit limited liability company organized under the law of Nebraska with its principal place of business in Denver, Colorado. Hugo provides some administrative infrastructure for Ricketts' various for-profit and nonprofit enterprises, including OEF.

The Appellants were all employed by OEF in different capacities. In 2009, Davis and Duncan complained internally that OEF's Chief Operating Officer was sexually harassing them. Both Davis and Duncan were thereafter terminated. About a year later, Goergen was also terminated. Davis and Duncan filed suit, asserting that OEF and Hugo subjected them to a hostile work environment and quid pro quo sexual harassment in violation of Title VII, retaliated against them by perpetuating the hostile work environment and by firing them in violation of Title VII and the NFEPA, and retaliated against Davis by terminating Goergen in violation of Title VII and the NFEPA. They also asserted that Ricketts violated Nebraska common law by tortiously interfering with Davis's and Duncan's expectation of continued employment.

OEF, Hugo, and Ricketts moved to dismiss the Complaint. The district court granted the motion in part, finding that Davis and Duncan had failed to state a claim against Ricketts because the allegations against him were " conclusory and 'a formulaic recitation of the elements of a cause of action,'" Davis and Duncan did not show that a claim could be brought against the employer's CEO, and the action ...


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