Garland v. Trustmark National Bank

Filing 74

Memorandum Opinion and Order granting 66 SEALED MOTION for summary judgment in favor of Trustmark. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 7/21/17 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CYNTHIA L. GARLAND

PLAINTIFF

VS.

CIVIL ACTION NO. 3:16CV462TSL-RHW

TRUSTMARK NATIONAL BANK

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of Trustmark
National Bank (Trustmark) for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure.

Plaintiff Cynthia L.

Garland has responded in opposition to the motion.

The court,

having considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes that the motion
is well-taken and should be granted.
Plaintiff became employed by Trustmark in its Mortgage Loan
Department in August 2011 as a mortgage loan originator (MLO).

In

October 2014, she filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC), claiming discrimination
based on her national origin (Asian).1

1

Plaintiff alleges that

Plaintiff alleged in her EEOC charge that her supervisor
discriminated against her by (1) denying her lead positions on
committees, which affected her workflow and production, which in
turn, had a direct impact on her salary; (2) denying her an
opportunity to attend conferences; (3) giving her leads on loans
that were smaller and produced less income and thereby adversely
affected her salary.

after filing the EEOC charge, Trustmark “blatantly retaliated
against [her] ... creating a hostile work environment.”

Plaintiff

alleged that as a result of this continuous discrimination and
retaliation, she was constructively discharged effective July 27,
2015.
On March 22, 2016, the EEOC issued its determination (finding
no evidence of discrimination) and notice of right to sue.

On

June 16, 2016, plaintiff filed the present action against
Trustmark, asserting claims under Title VII, 42 U.S.C. § 2000e et
seq. for race and national origin discrimination and retaliation.
In response to Trustmark’s summary judgment motion, she has
conceded her claims for race and national origin discrimination,
leaving only her claim that Trustmark unlawfully retaliated
against her by subjecting her to a hostile work environment after
she filed her EEOC charge.

Trustmark seeks summary judgment on

plaintiff’s retaliation claim, contending the alleged retaliatory
actions she has identified do not rise to the level of materially
adverse employment actions.
The anti-retaliation provision of Title VII forbids employers
from discriminating against a job applicant because she has “‘made
a charge, testified, assisted, or participated in’ a Title VII
‘investigation, proceeding, or hearing.’”

Burlington N. & Sante

Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S. Ct. 2405, 165 L. Ed.

2

2d 345 (2006) (quoting 42 U.S.C. § 2000e–3(a)).

Under the

McDonnell Douglas burden-shifting framework, which applies to
Title VII retaliation claims in the absence of direct evidence of
retaliation, the plaintiff must first show a prima facie case of
retaliation.

Standley v. Rogers, No. 16-51092, 2017 WL 958318, at

*1 (5th Cir. Mar. 10, 2017).

If she establishes her prima facie

case, the burden of production then shifts to the defendant
employer to articulate a legitimate, nondiscriminatory or
non-retaliatory reason for the employment action at issue.
id.

See

If it satisfies its burden, the burden then shifts back to

the plaintiff to offer evidence that the employer's stated reason
was only pretext for retaliation.
To establish a prima facie case of retaliation, the plaintiff
must establish the following elements: “(1) she participated in an
activity protected by Title VII; (2) her employer took an adverse
employment action against her; and (3) a causal connection exists
between the protected activity and the materially adverse action.”
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
2008).

To rise to the level of an adverse employment action for

the purposes of a prima facie case of retaliation,
there must be a “materially adverse” action that is
“harmful to the point that [it] could well dissuade a
reasonable worker from making or supporting a charge of
discrimination.” Porter v. Houma Terrebonne Hous. Auth.
Bd. of Comm'rs, 810 F.3d 940, 945 (5th Cir. 2015)
(quoting White, 548 U.S. at 57, 126 S. Ct. 2405). This
3

requirement of materiality is intended to “separate
significant from trivial harms.” Aryain v. Wal–Mart
Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)
(quoting White, 548 U.S. at 68, 126 S. Ct. 2405).
Accordingly, this standard does not encompass the
“‘petty slights, minor annoyances, and simple lack of
good manners' that employees regularly encounter in the
workplace.” Id. at 485 (quoting White, 548 U.S. at 68,
126 S. Ct. 2405). To determine whether an action is
materially adverse, we look to indicia such as whether
the action affected “job title, grade, hours, salary, or
benefits” or caused “a diminution in prestige or change
in standing among ... co-workers.” Stewart v. Miss.
Transp. Comm'n, 586 F.3d 321, 332 (5th Cir. 2009).
Paul v. Elayn Hunt Corr. Ctr., 666 F. App'x 342, 346 (5th Cir.
2016).
The court’s first task in this case is to identify the
alleged retaliatory actions.

In her complaint and amended

complaint, plaintiff alleged generally that after she filed her
EEOC charge, Trustmark “blatantly retaliated against [her] ...
creating a hostile work environment.”

More specifically, she

charged that Trustmark retaliated against her by “denying her a
promotion or even discussions of a promotion.”

Plaintiff has

apparently abandoned her claim that she was denied a promotion in
retaliation for her EEOC charge2 and has now identified the
following actions which she contends were retaliatory and
constitute materially adverse employment actions:

2

(1) in October

Plaintiff has claimed she was denied promotions;
however, that occurred before she filed her EEOC charge and thus
could not have been in retaliation for her EEOC charge.
4

2014, her loan processor was assigned to assist other MLOs; (2)
Trustmark declined to correct a November 2014 mass marketing mailout which incorrectly indicated that she was still working at the
Key Drive Trustmark location in Madison when she had in fact moved
to a new location; (3) in March 2015, she was required to take a
new marketing photograph, which resulted in a a delay of a month
in the processing of her order for new business cards; and (4) her
2014 Annual Review, which was supposed to be issued in March 2015,
was not issued until June 2015.3

These allegations, considered

individually or collectively, do not rise to the level of
materially adverse employment actions.
With respect to the loan processor charge, plaintiff contends
that in October 2014, shortly after she filed her EEOC charge, her

3

Trustmark contends the court should disregard
allegations (1) and (2) as these allegations appear nowhere in
plaintiff’s amended complaint and are directly inconsistent with
her deposition testimony. See Albertson v. T.J. Stevenson & Co.,
749 F.2d 223, 228 (5th Cir. 1984) (nonmovant cannot defeat summary
judgment motion with affidavit that directly contradicts, without
explanation, prior sworn deposition testimony). The court is not
persuaded that her current position is inconsistent with her
deposition testimony. Plaintiff did testify in her deposition
that her amended complaint was a “full and accurate statement” of
her claims. However, Trustmark knew that was not the case, as
plaintiff’s amended complaint contained no factual basis for her
retaliation claim. That is precisely why Trustmark asked in her
deposition that she provide the specific facts that form the basis
of this claim. She did identify her allegations about the
marketing photo, business cards and delayed performance assessment
as the basis for her retaliation claim; but she was not asked, and
did not testify, that these were the only facts in support of the
claim.
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supervisor began assigning plaintiff’s loan processor to perform
work for other MLOs.

Plaintiff thought it unfair that her

processor, who worked part-time, was assigned to help others, when
another MLO’s full-time loan processor was not assigned to help
other MLOs.

Plaintiff claims that while her processor “was not as

busy during that time, having [her processor] assigned to others
caused delay on processing [plaintiff’s] loans when [she] did
have loans to process.”

While plaintiff may have found this

situation unfair, there is no evidence to suggest that it was
other than marginally inconvenient, at worst.

There is no

evidence to show that it adversely affected her “job title, grade,
hours, salary, or benefits” or caused “a diminution in prestige or
change in standing among ... co-workers.”

Stewart, 586 F.3d at

332.4
In November 2014, Trustmark closed its Key Drive location in
Madison.

Plaintiff, who had been assigned to that location, was

4

The court notes, moreover, that in rebuttal, Trustmark
has presented an affidavit from plaintiff’s supervisor, Paula
Warren, who explains that plaintiff’s loan processor was allowed
to work for other MLOs because she felt that plaintiff did not
have enough work to keep her busy, even on a part-time basis; and
since her compensation was directly tied to the number of loans
she processed, she asked to be assigned to more viable work.
Warren explains that after verifying the lack of viable work with
plaintiff, she granted the processor’s request with her assurance
that she would not allow her work for other MLOs to detract from
her work on plaintiff’s loans. Warren confirms that allowing the
processor to work for other MLOs did not materially impact
plaintiff’s performance in any way.
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moved to the Trustmark branch on Highway 463 in Madison.
Trustmark’s Corporate Communications Department sent out a bulk
mailing concerning the status of the Key Drive location which,
according to plaintiff, incorrectly stated that a MLO, i.e.,
plaintiff, was still present at the Key Drive location.

Plaintiff

states that she learned in January 2015 that her customers thought
she was still at the Key Drive location and were unaware of her
move to the Highway 463 location.

Plaintiff asked her supervisor,

Paula Warren, to issue a new mass mailing to advise her customers
of her move, but “Ms. Warren said they would not do that,” and
suggested that plaintiff could contact her own individual clients
to inform them of her new location.

In her response, plaintiff

does not explain how the mail-out itself was retaliatory; she does
not claim that Trustmark intentionally included incorrect
information about her location in the mail-out or that the error
was anything other than inadvertent.5

Perhaps she claims that

Warren’s refusal to reissue the mail-out was retaliatory.

5

But she

In addition to arguing that plaintiff has failed to
present evidence that the circumstances surrounding the mail-out
were materially adverse, it also contends that plaintiff cannot
establish any causal link between her EEOC charge and the mailout, as the evidence establishes that Trustmark’s Corporate
Communications Department which sent the mail-out had no
information or reason to know anything about Garland’s EEOC
charge. Without evidence of such knowledge, there can be no
causal connection. See Ackel v. Nat’l Communications, Inc., 339
F.3d 376, 385-86 (5th Cir. 2003) (no causal link where plaintiff
produced no evidence that alleged retaliating party had knowledge
of underlying protected activity).
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does not explain in what way this was materially adverse.

She

does not argue, and has offered no evidence, that she was unable
to contact her customers; and in fact, Warren’s affidavit explains
that she suggested that plaintiff could have the bank send out a
direct mailing notifying plaintiff’s customers of her relocation.
Moreover, she makes no claim that her customers were unable to
find her or that she lost any business as a result of the mistaken
mail-out.
Plaintiff’s further allegations regarding Trustmark’s
requiring her to take a new marketing photograph and the resulting
delay in the processing of her order for new business cards falls
squarely in the category of petty slights and minor annoyances, as
does her complaint that her 2014 performance evaluation was not
issued in a timely manner.

Plaintiff notes that while her

original marketing photograph may not have complied with
Trustmark’s Dress Guidelines – which is the reason Trustmark gave
for requiring a new photograph – that original photograph had been
approved by the Human Resources Department and there was
accordingly no need for her to have her take a new marketing
photograph.

Whether or not there was a need, however, merely

requiring her to have a photograph taken can hardly be
characterized as materially adverse.

Likewise, while her order

for business cards was delayed, she offers no facts to suggest how
she was adversely affected by this delay.
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Finally, Trustmark’s

delay in issuing her performance evaluation obviously does not
rise to the level of a materially adverse employment action.
In sum, plaintiff has failed to identify a single act that
would arguably qualify as a materially adverse employment action.
It follows that she cannot establish a prima facie case of
retaliation and that, consequently, Trustmark is entitled to
summary judgment.6
Therefore, it is ordered that Trustmark’s motion for summary
judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 21st day of July, 2017.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

6

In addition to contending that plaintiff has failed to
present sufficient evidence to establish the adverse employment
action prong of her prima facie case, Trustmark also contends she
has failed to present evidence to support finding a causal link
between her EEOC charge and the various alleged acts of
retaliation, and that she has further failed to present evidence
of pretext. In the court’s opinion, while these additional
arguments do have merit, it is unnecessary to address them further
given the manifest absence of proof of any materially adverse
employment action.
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