Bender v. Gibson et al

Filing 68

MEMORANDUM OPINION AND ORDER: The court GRANTS in part and DENIES in part 43 Defendant's Motion for Summary Judgment. The court directs Plaintiff to state whether authority exists for him to assert his state-law claims of employment discrimination against Defendant, and to provide the court with this authority in a written response not to exceed 5 pages by 3/29/17. (Ordered by Judge Sam A Lindsay on 3/22/2017) (ash)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOHN A. BENDER,
Plaintiff,
v.
DAVID J. SHULKIN, M.D.,
Secretary of Veteran’s Affairs,1
Defendant.

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Civil Action No. 3:14-CV-2595-L

MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s Motion for Summary Judgment (Doc. 43), filed December
28, 2015. After considering the motion, response, reply, summary judgment evidence, record, and
applicable law, the court grants in part and denies in part Defendant’s Motion for Summary
Judgment.
I.

Factual and Procedural Background
This is an employment discrimination case. Plaintiff John A. Bender (“Bender”), an African-

American male, filed this action on July 18, 2014, against Defendant David J. Shulkin, Secretary,
United States Department of Veteran’s Affairs (“Defendant” or “VA”), pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Texas
Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.001 et seq.2 Bender alleges

1

On February 13, 2017, David J. Shulkin, M.D., replaced Robert A McDonald as the Secretary of Veteran’s
Affairs. Accordingly, the court has altered the caption to reflect that the proper named Defendant is David J. Shulkin,
M.D. See Fed. R. Civ. P. 25(d), which provides that a public official’s successor is automatically substituted as a party.
2

Texas abolished the Texas Commission on Human Rights in March 2004 and transferred its duties to the Texas
Workforce Commission. The popular appellation for Chapter 21 of the Texas Labor Code, however, is the Texas
Commission on Human Rights Act or TCHRA. The court, for reasons stated later in this opinion, has serious
Memorandum Opinion and Order - Page 1

that Defendant unlawfully discriminated against him based on race, retaliated against him for
engaging in protected activity, and subjected him to a hostile work environment. Bender seeks
compensatory and punitive damages, attorney’s fees, and costs. The court now sets forth the
evidence, viewed in the light most favorable to Bender, as the nonmovant, and draws all reasonable
inferences in his favor. See Celotex v. Catrett, 477 U.S. 317, 323 (1986).
A.

Bender’s Employment as Patient Safety Manager

Bender began working for the VA in January 2007 as a Patient Safety Manager, grade 13,
at the VA’s North Texas Health Care System located in Dallas, Texas (hereinafter, “VANTHCS”).
VANTHCS is one of four VA Health Care Systems in the state of Texas, all of which are in the
geographical boundaries of the VA’s Veterans Integrated Service Network 17 (“VISN 17").
As Patient Safety Manager, Bender was supervised by the Medical Director of VANTHCS.
Medical Director Joseph Dalpiaz (“Dalpiaz”) supervised Bender from 2007 to sometime in 2010.
In 2009, Dalpiaz awarded Bender a retention incentive of 15% of his salary and promised him that
the incentive would be increased to 20% if the Dallas VA achieved certain milestones. Sometime
in 2010, Dalpiaz took a different job position and Mark Doskocil (“Doskocil”), as Acting Medical
Director, became Bender’s immediate supervisor until in or around the end of September 2011. In
October 2011, Jeffrey Milligan (“Milligan”) was hired as the Medical Director of VANTHCS and
became Bender’s direct supervisor.

concerns as to whether Bender, a federal employee, can even assert state law employment discrimination claims
against the Veterans Administration and will require further briefing on this matter, as neither party addressed
this issue.
Memorandum Opinion and Order - Page 2

B.

Acting Medical Director Doskocil

In 2010, Doskocil issued Bender a “letter of counseling” based on a complaint against him
made by a Caucasian female, Diane Lyle. Doskocil did not investigate the allegations prior to
issuing the “letter of counseling” and raised his voice at Bender during a meeting about the
complaint. Bender believed that Doskocil was discriminating against him based on race, that he
would not have issued the “letter of counseling” to a Caucasian employee without first conducting
an investigation, and that he would not have raised his voice at a Caucasian employee. In April
2011, based on these events, Bender filed an Equal Employment Opportunity (“EEO”) complaint
asserting harassment and race discrimination. Thereafter, another employee, Sharon Johnson, told
Bender that Doskocil was trying to “weed out” African-American employees. Doskocil learned
about the EEO Complaint and was angry.
On May 24, 2011, Doskocil issued Bender a second “letter of counseling,” advising him of
a complaint by another Caucasian female, Dr. Catherine Orsak. Doskocil, once again, failed to
investigate the complaint prior to issuing the letter. In July 2011, Bender and the Dallas VA
successfully mediated Bender’s EEO complaint. Doskocil was angry during the negotiations and
berated Bender for filing an EEO complaint.
In September 2011, Doskocil gave Bender a lower performance rating of “Fully Successful,”
instead of the “Outstanding” rating he had previously received, justifying the lower rating by
pointing out the “letters of counseling.” Doskocil had the Dallas VA police stand by when he
delivered the lower rating to Bender. Bender believes this lower rating adversely affected his income
because it caused him to not receive a bonus in 2011, as only employees with a higher rating that
“Fully Successful” were entitled to a bonus.

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Doskocil refused to allow Bender to attend the Health Care Leadership Development
Program in 2011, telling Bender he could not attend because of Dr. Orsak’s prior complaint against
him. Near the end of his term as Acting Medical Director, Doskocil made negative statements about
Bender to Milligan—the incoming Medical Director and Bender’s soon-to-be supervisor—and told
him that Bender should be fired. Donald Burrell (“Burrell”), President of the American Federation
of Government Employees, Local 2437, who was, until recently, employed by VANTHCS, states
in a declaration that he participated in a 2011 meeting with Doskocil, where he learned that “Mr.
Milligan had been given orders by Mr. Doskocil to fire John Bender[.]” Pl.’s App. 215-16. Burrell
further testifies that Doskocil told him “that he was mad that Mr. Bender had filed an EEO
[complaint] against Mr. Doskocil” and “wanted Mr. Bender gone[.]” Id.
Doskocil made it difficult for Bender to perform his job duties by not allowing him to fill two
open positions in his department, which caused Bender to have to work numerous hours of overtime
each day. Bender was not allowed either overtime pay or compensatory time for these hours,
although he had received overtime pay when he worked under Dalpiaz. Though there were hiring
freezes in place for a period of time, Doskocil eventually allowed other departments to hire, but did
not release the freeze on Bender’s department. Bender’s department was the only one not allowed
to fill vacancies during that time period in 2012.
C.

Medical Director Milligan

Milligan was hostile to Bender during their first meeting and asked Bender to explain why
other members of the “Quad” did not like Bender. Milligan ordered Bender to conduct individual
meetings with each member of the “Quad.”

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1.

Racial Slurs

In late 2011, per Milligan’s instructions, Bender met with Dr. Clark Gregg (“Gregg”), Chief
of Staff at the VANTHCS. Dr. Gregg told Bender that Shirley Bealer, Sandra Griffin, and “all the
rest of these niggers” would be gone and that Bender would be next. Gregg also told Bender he
would kill him if he filed an EEO complaint against him. Id. at 12, 183, 500.
On November 21, 2011, Kenneth Carroll, a staff attorney with the VA Office of Regional
Counsel, called Bender a “house nigger” in front of his peers and supervisors during a morning
meeting of the VA senior leadership team. Bender describes the incident as follows:
During the meeting, Carroll had been asked what should be done if the union called
people names or if the union became disrespectful during a meeting with an
employee and the union. In response to the question, Carroll pointed at Bender and
called him a “house nigger’ as an example of what would be an inappropriate
comment.
Id. at 499 (Pl.’s Ans. to First Set of Interrogs. at 12). In attendance at the meeting were, among
others, Milligan, Human Resources Officer Barbara Rogers (“Rogers”), Associate Director Peter
Dancy (“Dancy”), attorney Curt Martin, Chief of Pharmacy Ruth Bechdol, Florine McCall
(“McCall”), Capri Rice (‘Rice”), and Bender. Milligan, Bender’s direct supervisor, did nothing to
reprimand Carroll. Though Milligan denies hearing the racial slur, three other meeting attendees
testify that they heard Carroll call Bender a “house nigger.” McCall heard Carroll call Bender a
“house nigger,” and states Carroll was “making an analogy” when he said “house nigger,” and was
using Bender as an example. Id. at 354. She also testified at her deposition that the “word is used
around here loosely[.]” Id. at 355.
That same morning, just before the November 21, 2011 meeting, Bender heard Milligan and
others discussing a “monkey book.” Rice, an African-American female, later filed an EEO

Memorandum Opinion and Order - Page 5

complaint after hearing Carroll call Bender the “house nigger” and after hearing Milligan joke with
another employee at the same meeting about a book called “The Monkey,” rather than reprimand
Carroll for his conduct.
On certain occasions, when Christopher Sandles, an African American-employee, was late
to the morning report meeting, Bender heard Milligan ask the group: “Where is that boy Sandles?
I am looking for that boy.” Id. at 14, 500. Bender never heard Milligan refer to any non-AfricanAmerican employees as “boy.” Id. at 500.
2.

Termination of Retention Incentive

In December 2011, Milligan terminated Bender’s retention incentive with the termination
retroactive to June 2010, contending that the retention incentive had not been properly approved.
In contrast to Milligan’s declaration, Lawrence Biro (“Biro”), Network Director of VISN 17, testified
that he accepted Milligan’s decision to terminate Bender’s retention incentive because of Bender’s
low performance rating.
3.

Edoghotu’s Complaint About Bender

VANTHCS employee Felicia Edoghotu (“Edoghotu”) filed an EEO complaint on September
2, 2011, alleging hostile and offensive behavior toward her by Bender when she was his subordinate
at VANTHCS, including allegations that Bender approached her aggressively about work matters
and would call her into his office to yell at her and berate her once or twice per month. Def. App.
123-37. She also alleged retaliatory harassment by Bender based on her prior EEO activity. Id. On
March 7, 2014, after holding an administrative hearing, Administrative Law Judge (“ALJ”) Veronica
Cuadra issued a decision finding in favor of Edoghotu and holding the VA vicariously liable “for
sex- and reprisal-based hostile environment.” Id. at 137. Following the ALJ’s decision, the parties

Memorandum Opinion and Order - Page 6

negotiated a settlement and the ALJ issued a procedural decision dismissing the complaint. Id. at
120. Bender contends that the VA did not adequately defend him from Edoghotu’s complaint.
Sandra Cawley defended the VA in the proceeding but did not meet with Bender to prepare him for
the hearing and introduced none of the documentary evidence that supported the VA’s position.
4.

Bender’s Suspension and Temporary Detail

When the ALJ’s ruling was issued, Edoghotu no longer reported directly to Bender. She had
been moved out of his department before the hearing was held. Even though she no longer reported
to him, the VA’s counsel, Michael Anfang and Kurt Martin, and Human Resources Officer Rogers
decided to strip Bender of all supervisory duties. These individuals knew of Bender’s prior EEO
complaints. Milligan recused himself from the process but knew what occurred because he was a
participant in e-mail threads on the subject. These employees, knowing that Edoghotu no longer
worked for Bender, instructed Associate Director Peter Dancy (“Dancy”) to put Bender on
administrative leave immediately. Dancy admits that the decision to put Bender on leave was not
his decision, although he signed the letter that placed Bender on leave. Bender was instructed to
leave the VA premises immediately and not to return until so instructed. VA police officers were
nearby and closely watched as Bender left the premises.
On March 28, 2014, after two weeks on paid administrative leave, Bender was summoned
to report to Dancy’s office At that meeting, Dancy advised Bender that he was going to be
temporarily detailed to a GS-12 position.3 On March 31, 2014, Dancy issued Bender a letter

3

The court understands a detail is a temporary assignment of an employee to a different position, usually for
a specified period, after which the employee returns to his or her regular duties. Although the employee has been detailed
to a different position, the employee is considered to be occupying his or her regular position, as there is no reduction
in the employee’s grade or pay while on detail.

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formalizing the decision to detail him to the Administrative Officer position in the Physical Medicine
and Rehabilitation Service (“PM&R”), a position with no supervisory duties. The detail had no
impact on Bender’s pay. In this position, Bender reports to Dr. Weibin Yang. At his deposition,
Dancy stated that the justification for moving Bender out of a supervisory role was so that he would
no longer supervise the employee who had complained about him. Dancy admitted at his deposition
that he was not made aware that Edoghotu no longer worked for Bender at the time he was moved
to PM&R. Although this assignment was classified as a “temporary detail,” as of January 2016,
Bender was still working this detail. Dancy states that he has not considered returning Bender to his
former job as Patient Safety Manager (or any supervisory position) because such decision is the
domain of Milligan.
5.

Fourteen-Day Suspension Without Pay

On November 2, 2015, Dancy, relying on the recommendation of HR employee Rebecca
Franks and VA Regional Counsel Jeffrey Reeder, suspended Bender for fourteen (14) days without
pay, purportedly as a formal discipline for the ALJ’s adverse decision on Edoghotu’s complaint.
This suspension took place twenty (20) months after the ALJ’s decision. Dancy states that Human
Resources drafted the letter he presented to Bender regarding the disciplinary suspension, that he
reviewed no documents to help him reach the decision of suspension, and that he relied on Human
Resource’s guidance. Dancy testified he had no explanation why no discipline was proposed earlier
and can identify no other VA managers disciplined in this same fashion because of an adverse
finding on an EEO complaint by an ALJ. The fourteen (14) day suspension deprived Bender of
compensation in the amount of $3,700.

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6.

Bender’s PM&R Position Downgraded from GS 12 to GS 9

Bender learned on September 13, 2016, that his detailed position in PM&R had actually been
downgraded from a GS-12 to a GS-9 position in May 2015. Thus, since May 2015, even though
Bender is a GS-13, step 7 employee, he is classified and performing the job duties of a GS-9
employee. Staff members are aware of the downgrading of Bender’s position, which is publicly
embarrassing for Bender.

Being a GS-9 with no supervisory duties has harmed Bender

professionally. His applications for other positions at the VA or in the private sector have been
rejected because of his lack of leadership duties in his current position, and his requests to attend
leadership training seminars were denied for similar reasons.
7.

Bender’s Charges of Discrimination and Lawsuit

Bender filed EEO Complaints in April 2011, November 2011, February 2013, and May 2014,
complaining of harassment, race discrimination, and retaliation. On July 18, 2014, Bender filed this
lawsuit. On December 11, 2015, Bender filed his Third Amended Complaint (Doc. 39), the live
pleading. It is undisputed that Bender has exhausted his administrative remedies. On December 28,
2015, Defendant filed a motion for summary judgment on all of Bender’s claims. The motion has
been fully briefed and is ripe for decision.
II.

Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Celotex, 477 U.S. at 323-25; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby,

Memorandum Opinion and Order - Page 9

Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is
required to view all facts and inferences in the light most favorable to the nonmoving party and
resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402
F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh
the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden
of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative
defense, he must establish beyond peradventure all of the essential elements of the claim or defense
to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)
(emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita, 475 U.S. at
587. (citation omitted). Mere conclusory allegations are not competent summary judgment
evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73
F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136

Memorandum Opinion and Order - Page 10

F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of
evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant
and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
III.

Analysis
A.

Race Discrimination Claims

Defendant moves for summary judgment on Bender’s claim that he was subjected to race
discrimination in violation of Title VII and the TCHRA. After setting forth the applicable law, the
court will consider the parties’ arguments and the summary judgment evidence.
1.

Race-Based Discrimination under Title VII and the TCHRA

Federal employees are protected from discriminatory personnel actions based on “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Under the TCHRA, “[a]n employer
commits an unlawful employment practice if because of race . . . the employer . . . discharges an
individual, or discriminates in any other manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment[.]” Tex. Labor Code Ann. §
21.051. Claims of race discrimination brought under Title VII and the TCHRA are governed by the
same evidentiary framework. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n. 2 (5th

Memorandum Opinion and Order - Page 11

Cir. 1999); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (quoting Mission
Consol. Indep. School Dist. v. Garcia, 372 S.W.3d 629, 633 (Tex. 2012) (internal quotation marks
omitted) (“Because one of the purposes of the TCHRA is to provide for the execution of the policies
of Title VII of the Civil Rights Act of 1964, [the Texas Supreme Court has] consistently held that
those analogous federal statutes and the cases interpreting them guide [the] reading of the
TCHRA.”)).
A plaintiff may prove employment discrimination with either direct or circumstantial
evidence. See, e.g., Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005); Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citing Portis v. First Nat’l Bank of
New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994)). “Direct evidence is evidence that, if believed,
proves the fact of discriminatory animus without inference or presumption.” Sandstad v. CB
Richard Ellis, 309 F.3d 893, 897 (5th Cir. 2002) (citation omitted). If an employee produces
evidence that discriminatory animus played a role in the employment decision at issue, the burden
of production shifts to the defendant, who must prove that it would have taken the same action
regardless of discriminatory animus. Id. at 896 (citation omitted).
When a plaintiff relies on circumstantial evidence, such as in this case, courts apply the
McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973) (establishing the three-part procedure for assessing a disparate treatment claim
in the absence of direct evidence). As modified, McDonnell Douglas consists of three stages. First,
a Title VII plaintiff must set forth a prima facie case of race-based discrimination. Rogers v.
Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016) (quoting McDonnell Douglas, 411
U.S. at 802). “Establishment of the prima facie case in effect creates the presumption that the

Memorandum Opinion and Order - Page 12

employer unlawfully discriminated against the employee.” Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 254 (1981). Second, once the plaintiff establishes a prima facie case, the burden of
production shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the
employment action it took against the plaintiff. Machinchick, 398 F.3d at 350. This is a burden of
production, not persuasion, on the employer’s part, and it “can involve no credibility assessment.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Third, if the employer meets its burden
of production, “the presumption of discrimination drops out of the picture, and the employee must
offer some evidence that the reason proffered was a pretext for discrimination, or that a ‘motivating
factor’ for the employment decision was the plaintiff’s protected characteristic.” Rogers, 827 F.3d
at 408 (internal quotation marks and citations omitted);4 see also Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253) (“Although
intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden
of persuading the trier of fact that the defendant intentionally discriminated against plaintiff remains
at all times with the plaintiff.’”).

4

The TCHRA similarly provides that an employee may prove unlawful discrimination by showing that a
“motivating factor” in the employer’s decision was the employee’s protected characteristic. The TCHRA provides:
(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when
the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a
motivating factor for an employment practice, even if other factors also motivated the practice, unless
race, color, sex, national origin, religion, age, or disability is combined with objective job-related
factors to attain diversity in the employer's work force.
Tex. Labor Code Ann. § 21.125(a) (emphasis added).

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2.

Bender’s Race Discrimination Claims

Bender contends that the VA discriminated against him on the basis of race, citing the
following incidents:
(1) he was paid less than Caucasian employees in the same Patient Safety Manager
position;
(2) his retention incentive, equal to 15% of his pay, ended in December 2011;
(3) he received lower-than-deserved performance ratings in 2011, 2012, and 2013;
(4) staffing levels in his department were frozen, causing him to have to work unpaid
overtime to get the job done;
(5) Doskocil issued him a performance counseling memorandum on September 30,
2011, relating to his interaction with a subordinate, Felicia Edoghotu; and
(6) he was detailed to a non-supervisory position in March 2014 after an adverse
finding against him in an EEO case brought by a subordinate.5
a.

Bender’s Prima Facie Case

To establish a prima facie case of disparate treatment racial discrimination, the plaintiff must
provide evidence that: “(1) he is a member of a protected class, (2) he was qualified for the position
at issue, (3) he was the subject of an adverse employment action, and (4) he was treated less
favorably than were other similarly situated employees who were not members of the protected class,
under nearly identical circumstances.” Paske v. Fitzgerald, 785 F.3d 977, 985 (5th Cir. 2015)
(quoting Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 269 (5th Cir. 2009)).

5

Although Bender included several other alleged instances of race discrimination in his pleadings, in his brief
submitted in opposition to Defendant’s Motion for Summary Judgment, he concedes that the following three alleged
incidents of race discrimination do not constitute adverse employment actions under Fifth Circuit law: (1) Doskocil and
Milligan denying him an opportunity to attend training; (2) being prevented from giving performance awards to his
employees; and (3) Milligan’s requirement that he attend individual meetings with members of the “Quad.” See Pl.’s
Resp. Br. 38 (Doc. 50). Bender also makes clear that he is not relying on the instance of Carroll calling him a “house
nigger” to support his Title VII disparate treatment race discrimination claim. Id. at 37 n.227. In light of Bender’s
concessions and clarifications, the court will grant Defendant’s Motion for Summary Judgment on Bender’s disparate
treatment race discrimination claims based on these instances.
Memorandum Opinion and Order - Page 14

Defendant does not dispute that Bender has satisfied the first two elements of his prima facie
case, and concedes that Bender has satisfied the third element of his prima facie case as to two of
the above-listed incidences, namely, his contention that he was paid less than Caucasian employees,
and that his retention incentive was terminated, as these are adverse employment actions. Defendant
disputes that Bender has satisfied the third prong as to the remaining incidents listed directly above.
Defendant also argues that Bender has failed to satisfy his prima facie case as to the fourth element,
that is, that he was treated less favorably than were other similarly situated employees who were not
members of the protected class, under nearly identical circumstances. See Def.’s Summ. J. Br. 20
(Doc. 44) (“[F]or the alleged two incidences that affected Bender’s compensation and would stand
as adverse employment actions, Bender cannot show that he was treated less favorably than were the
other similarly situated Caucasian employees, under nearly identical circumstances.”).
i.

Adverse Employment Action

An adverse employment action in the context of a race discrimination claim means an
“ultimate employment decision,” such as “hiring, granting leave, discharging, promoting, or
compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). Title VII does not
cover “every decision made by employers that arguably might have some tangential effect upon those
ultimate decisions.” Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570. 575 (5th Cir. 2003)
(citation omitted).
Other than Bender’s contention that he was paid less than Caucasian employees, and that
his retention incentive was terminated, the court agrees with Defendant that the remaining incidents
upon which Bender relies to support his race discrimination claim are not adverse employment
actions as interpreted by the Fifth Circuit in the context of a Title VII disparate treatment case.
These instances are: Bender’s receipt of lower-than-deserved performance ratings in 2011, 2012, and
Memorandum Opinion and Order - Page 15

2013; the freezing of Bender’s staffing levels in his department, causing him to have to work unpaid
overtime to get the job done; issuance of a performance counseling memorandum by Doskocil
relating to Bender’s interaction with Edoghotu; and denial of a non-supervisory position in March
2014 after an adverse finding against him in an EEO case brought by a Edoghotu. These events do
not rise to the level of adverse employment actions necessary to support an employment
discrimination claim, as they have only a tangential effect, if any, on ultimate employment decisions.
See McCoy, 492 F.3d at 559-560; see also Hart v. Life Care Ctr. of Plano, 243 F. App’x 816, 818
(5th Cir. 2007) (per curiam) (holding that an employee’s being assigned more difficult tasks than
Hispanic workers did not constitute an adverse employment action for purposes of employee’s Title
VII discrimination claim); Martin v. Kroger, 65 F. Supp. 2d 516, 536, 539 (S.D. Tex. 1999) (holding
that increased workload and negative performance evaluations, even if undeserved, do not constitute
adverse employment actions for purposes of employee’s Title VII discrimination claim). Further,
to the extent Bender asserts in his response brief that these incidences negatively affected his
compensation, Bender offers no evidence other than his own belief, which is insufficient, absent
more, to meet his burden of successfully opposing a motion for summary judgment. Unsubstantiated
assertions, improbable inferences, conclusory allegations, and unsupported speculation are not
competent summary judgment evidence. See Forsyth, 19 F.3d at 1533; Eason, 73 F.3d at 1325; see
also Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (“This Court has cautioned that
‘conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy’ the
nonmovant’s burden in a motion for summary judgment.”)).

Memorandum Opinion and Order - Page 16

ii.

Similarly Situated Comparators

Defendant contends that, as to those two instances that are adverse employment actions, it
is entitled to summary judgment because Bender fails to satisfy the fourth element of his prima facie
case, that he was treated less favorably than were the other similarly situated Caucasian employees,
under nearly identical circumstances.
With respect to Bender’s claim of pay disparity with other patient safety managers who were
not African American, Defendant argues that these employees were not similarly situated or “nearly
identical” because they were employed under the authority of Title 38 of the United States Code, and
Bender was employed under the authority of Title 5 of the United States Code. In response, Bender
provides the court with the Declaration of Patricia Barth, the Network Human Resources Manager
for VISN 17, as well as portions of her deposition transcript, in which she explains that regardless
of whether hired under Title 38 or Title 5, the patient safety managers performed essentially the same
job, and that facilities employing the Title 38 managers are encouraged to convert them to Title 5
managers. Pl.’s App. 378-84. Thus, the court rejects Defendant’s argument that Bender has failed
to produce evidence of similarly situated comparators, under “nearly identical” circumstances.
With respect to termination of his retention incentive, however, the court determines that
Bender has failed to provide any competent summary judgment evidence that similarly situated
comparators, namely, other patient safety managers (whether hired under Title 38 or Title 5) who
were receiving retention incentives, kept them after Bender’s incentive had been removed. The court
rejects Bender’s attempt to compare himself to all VISN 17 employees, as they are not all similarly
situated. Thus, the court concludes that Bender has failed to satisfy the fourth element of his prima
facie case with respect to the termination of his retention bonus.

Memorandum Opinion and Order - Page 17

b.

Defendant’s Legitimate, Nondiscriminatory Reason

Having determined that Bender produced evidence sufficient to satisfy his prima facie case
of disparate treatment based on race with respect to being paid less than other patient safety
managers who were not African-American, the burden of production shifts to Defendant to articulate
a legitimate, nondiscriminatory reason for this difference.
Defendant has satisfied its burden of production, providing the court with evidence that the
employees hired under Title 38 were registered nurses and, as such, their salaries were set by the
Nurse Professional Standards Boards at the VISN 17 medical centers where the nurses worked, based
on their qualifications and credentials. VA App. 17. Bender, not a registered nurse, was hired under
Title 5, under which employees are compensated according to the General Schedule pay scale
published by the United States Office of Personnel Management. Id. The grade levels for Title 5
employees are initially determined by the VISN 17 Conditional Classification Unit, which receives
no input from the Nurse Professional Standards Boards. Id.
c.

Pretext

As Defendant has met its burden of production, “the presumption of discrimination drops out
of the picture, and [Bender] must offer some evidence that the reason proffered was a pretext for
discrimination, or that a ‘motivating factor’ for the employment decision was the plaintiff’s protected
characteristic.” Rogers, 827 F.3d at 408 (internal quotation marks and citations omitted); see also
Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253) (“Although intermediate evidentiary
burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against plaintiff remains at all times with the
plaintiff.’”).

Memorandum Opinion and Order - Page 18

As proof of pretext, Bender argues that Milligan’s failure to correct the pay disparity between
Title 5 and Title 38 patient safety managers is evidence of pretext. Bender, however, presents no
competent summary judgment evidence that Milligan, and not the Nurse Professional Standards
Boards at the VISN 17 medical centers where the nurses worked, set the pay for patient safety
manager hired under Title 38 or of VA policies allowing such changes by Milligan. For these
reasons, the court determines that Bender has failed to raise a genuine dispute of material fact that
Defendant’s proffered reason for any pay disparity among patient safety managers was a pretext for
unlawful race discrimination. In other words, Bender has not shown that he was the victim of
intentional race discrimination. Accordingly, Defendant is entitled to judgment as a matter of law,
and its motion for summary judgment on Bender’s disparate treatment race discrimination claim will
be granted.
B.

Retaliation Claims

The court now considers whether summary judgment is proper as to Bender’s Title VII and
TCHRA retaliation claims.
It is “an unlawful employment practice for an employer to discriminate against any of [its]
employees . . . because [the employee] has opposed any practice made an unlawful employment
practice” under Title VII, or “because [the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a); see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001).6 Whether the
employee opposes an unlawful practice or participates in a proceeding against the employer’s

6

The TCHRA prohibits an employer from retaliating against an employee for engaging in certain protected
activities. Tex. Lab. Code § 21.055. Protected activities consist of: (1) opposing a discriminatory practice; (2) making
or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner of investigation,
proceeding, or hearing. Id.; Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 647 (Tex. App.— Houston [1st
Dist.] 2015, no pet.).
Memorandum Opinion and Order - Page 19

activity, the employee must hold a reasonable belief that the conduct he opposed violated Title VII.
Long v. Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996).
To establish a prima facie case of retaliation, a Title VII plaintiff must show that: (1) he
engaged in a protected activity; (2) he experienced an adverse employment action following the
protected activity; and (3) a causal link existed between the protected activity and the adverse
employment action. McCoy, 492 F.3d at 556-57 (footnote and citation omitted); Montemayor v.
City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001); Mota v. Univ. of Texas Houston Health Sci.
Ctr., 261 F.3d 512, 519 (5th Cir. 2001). The establishment of a prima facie case gives rise to an
inference of retaliation. Montemayor, 276 F.3d at 692. This inference, in turn, shifts the burden of
production to the employer, who must then articulate a legitimate, nondiscriminatory or
nonretaliatory reason for the challenged employment action. McCoy, 492 F.3d at 557. Once the
employer articulates such a reason, the inference of retaliation raised by the prima facie showing
drops from the case. Montemayor, 276 F.3d at 692.
At this juncture, the plaintiff bears the burden of establishing that the employer’s stated
reason is a pretext for the real retaliatory purpose. McCoy, 492 F.3d at 557 (citation omitted). “Title
VII retaliation claims must be proved according to traditional principles of but-for causation, not the
lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
University of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2533 (2013).7 If the
7

The Fifth Circuit recently noted a circuit split “regarding whether the Supreme Court’s holding in [Nassar]
requires a plaintiff to show but-for causation as part of [his] prima facie case of retaliation, or only at the third step of
the McDonnell Douglas framework” to rebut an employer’s legitimate stated reason for the adverse employment action.
See Smith v. Board of Supervisors of S. Univ., 656 F. App’x 30, 33 n.4 (5th Cir. 2016) (and cases cited therein). The
Fifth Circuit has not yet decided this issue. Further, the court acknowledges a lack of authoritative decisions on whether
the “but-for” standard of causation enunciated in Nassar applies to federal-sector Title VII claims, rather than the more
lenient “motivating factor” standard, but need not reach this issue because the evidence in this case, viewed in the light
most favorable to Bender, is sufficient to satisfy either standard.
Memorandum Opinion and Order - Page 20

employee fails to prove, or raise a genuine dispute of material fact, that the employer’s real reason
is a pretext for its allegedly retaliatory conduct, the defendant is entitled to summary judgment. See
McCoy, 492 F.3d at 561-62.
Unlike in the Title VII discrimination context, an adverse employment action in the
retaliation context is not limited to ultimate employment decisions, such as hiring, granting leave,
discharge, promotion, and compensation. Burlington Northern & Santa Fe Ry. Co. v. White, 548
U.S. 53, 64 (2006); McCoy, 492 F.3d at 558. Consistent with this view, the Supreme Court has held
that a plaintiff claiming retaliation under Title VII must show that a reasonable employee would have
found the alleged retaliatory action “materially adverse” in that “it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 548
U.S. at 68 (quotation marks and citation omitted). In evaluating whether actions are materially
adverse, the Supreme Court in Burlington Northern went on to hold that “petty slights, minor
annoyances, and simple lack of good manners will not” deter or dissuade a reasonable employee
from making or supporting a charge of discrimination, and therefore they do not constitute conduct
that is “materially adverse.” Id. at 68.
In support of summary judgment, Defendant argues that Bender has failed to establish a
prima facie case, that for each adverse employment action Defendant has a legitimate, nonretaliatory
reason for its implementation, and that, in any event, Bender has failed to produce evidence
sufficient to raise a genuine dispute of material fact that the reasons proffered by Defendant are a
pretext for retaliation.
Defendant’s argument is not supported by the evidence or fails to take into account that the
court must construe all evidence in the light most favorable to Bender. As a preliminary matter,
protesting what an employee believes in good faith to be a discriminatory practice is protected
Memorandum Opinion and Order - Page 21

conduct. 42 U.S.C. § 2000e-3(a). It is undisputed that Bender engaged in activities protected under
Title VII and that the various supervisors, human resources personnel, VA counsel, and others with
decisionmaking authority were aware of his protected activity. Defendant has offered a facially
legitimate reason for detailing Bender and suspending him without pay (the adverse ALJ decision),
as well as other adverse employment actions that would suffice to dissuade a reasonable worker from
making a charge of discrimination, but it has failed to demonstrate that Bender cannot produce
evidence to support his claim.8 To the contrary, Bender has provided sufficient circumstantial
evidence such that a reasonable jury could conclude that he was detailed from his supervisory job
and suspended without pay, and subjected to the various other adverse employment actions of which
he complains, because he repeatedly complained about discrimination at the VANTHSC. Further,
Bender has provided evidence that casts doubt on Defendant’s reliance on the ALJ’s adverse
decision, including, among other things, inconsistent reasons given by decisionmakers involved in
the implementation of the adverse employment actions.
In light of this evidence and drawing all inferences in Bender’s favor, a reasonable jury could
conclude that Defendant’s proffered reasons are a pretext for retaliatory conduct. Otherwise stated,
the deposition transcripts and other summary judgment evidence before the court, viewed in the light
most favorable to Bender, demonstrate the existence of a genuine dispute of material fact regarding
whether Bender was transferred to a nonsupervisory role, suspended without pay, and subjected to
other adverse employment actions of which he complains, in retaliation for engaging in protected

8

Of the adverse employment actions Bender cites to support his retaliation claim, the court agrees with
Defendant that the following are not adverse employment actions even after Burlington Northern: exclusion from
meetings; denial of advance leave; loss of computer privileges; loss of a key; the order to attend meetings with all
members of the Quad; and Milligan’s disparaging comments to Bender’s new supervisor. Moreover, Bender does not
counter in his response that these incidents are adverse employment actions. In light of Bender’s failure to dispute that
these incidents constitute adverse employment actions, and after considering applicable law, the court will grant
Defendant’s Motion for Summary Judgment on Bender’s retaliation claims based on these instances.
Memorandum Opinion and Order - Page 22

activity. A reasonable jury could conclude on the basis of the summary judgment record that Bender
engaging in protected activity was a but-for cause for the adverse action taken by Defendant.9 This
is sufficient to create a genuine dispute for trial and, therefore, precludes summary judgment on
Bender’s Title VII and TCHRA unlawful retaliation claims. See Matsushita Elec. Indus., 475 U.S.
at 586. Accordingly, Defendant’s Motion for Summary Judgment on Bender’s retaliation claim will
be denied.
C.

Hostile Work Environment Claims

To establish a prima facie case of hostile work environment based on race, an employee must
raise a genuine dispute of material fact or prove: (1) that he belongs to a protected class; (2) he was
subject to unwelcome harassment; (3) the harassment complained of was based on race; (4) the
harassment complained of affected a term, condition, or privilege of employment; and (5) the
employer knew or should have known of the harassment and failed to take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002); Hernandez v. Yellow Transp., Inc., 670
F.3d 644, 651 (5th Cir. 2012) (Title VII and Chapter 21). The fifth element need not be established
if the harassment is allegedly committed by the victim’s supervisor. Celestine v. Petroleos de
Venuzuella SA, 266 F.3d 343, 353-54 (5th Cir 2001); see also Faragher v. City of Boca Raton, 524
U.S. 775, 807 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
The fourth element of the test is met only if the harassment was “sufficiently severe or
pervasive so as to alter the conditions of employment and create an abusive working environment.”
Ramsey, 286 F.3d at 268 (citations omitted). If the conduct at issue was not severe or pervasive, the

9

Moreover, under the TCHRA, the standard for stating a retaliation claim is whether engaging in the protected
conduct was a “motivating factor.” See Tex. Labor Code Ann. § 21.125(a). As the “motivating factor” standard is less
stringent than the “but for” causation standard, genuine disputes of material fact necessarily exist as to Bender’s TCHRA
retaliation claims.
Memorandum Opinion and Order - Page 23

employer cannot be held vicariously liable for the supervisor’s actions. Wyatt v. Hunt Plywood Co.,
297 F.3d 405, 409 (5th Cir. 2002). To be actionable, the work environment must be “both
objectively and subjectively offensive, one that a reasonable person would find hostile or abusive,
and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787 (addressing sex
discrimination) (citation omitted); see also Johnson v. Uncle Ben’s Inc., 965 F.2d 1363, 1372 (5th
Cir. 1992) (addressing race-based harassment). To determine whether an environment was
objectively offensive, courts consider the totality of the circumstances, including the frequency of
the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with the employee’s work performance. Faragher,
524 U.S. at 787-88; Ramsey, 286 F.3d at 268 (same). This totality of the circumstances inquiry relies
on “[c]ommon sense[] and an appropriate sensitivity to social context.” Oncale v. Sundowner
Offshore Servs., 523 U.S. 75, 82 (1998).
Even when a hostile environment is shown, the plaintiff must establish that the workplace
environment had the effect of altering the terms, conditions, or privileges of his employment. Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Nash v. Electrospace Sys., Inc., 9 F.3d 401, 403 (5th
Cir. 1993). “Not all harassment will affect a term, condition, or privilege of employment.”
Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999) (citation omitted). The
“mere utterance of an . . . epithet which engenders offensive feelings in a[n] employee[ ] does not
sufficiently affect the conditions of employment.” Harris, 510 U.S. at 21 (quoting Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Title VII’s overall goal of equality is not served if
a claim can be maintained solely based on conduct that wounds or offends but does not hinder an
employee’s performance. Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996).

Memorandum Opinion and Order - Page 24

In the Complaint, Bender originally alleged ten incidents of race-based hostile actions. In
opposition to Defendant’s motion for summary judgment, however, he submits evidence of, and
narrows his claim to, three race-based hostile actions.
First, Bender presents evidence that he was called a “house nigger” by Carroll during a
meeting on November 21, 2011, of the VA senior leadership team. Milligan, Bender’s direct
supervisor, was at the meeting and did nothing to reprimand Carroll. Though Milligan denies
hearing the racial slur, three other meeting attendees—McCall, Dancy, and Rice—heard Carroll call
Bender a “house nigger.” Pl’s App. 239-40, 354-55, and 377. McCall also testified that the “word
is used around here loosely.” Id. at 355.
Second, Bender heard Milligan and others discussing a “monkey book” before the November
21, 2011 meeting. Rice, an African-American female, later filed an EEO complaint based on
Carroll’s use of the term “house nigger” and also complained that, instead of reprimanding Carroll,
Milligan was joking with another meeting attendee, making racist comments about reading a book
called “The Monkey.” Id. at 377.
Third, on certain occasions, when Sandles, an African American employee, was late to the
morning report meeting, Bender heard Milligan inquire of the group: “Where is that boy Sandles?
I am looking for that boy.” Id. at 14, 500. Bender did not hear Milligan refer to any non-AfricanAmerican employees as “boy.” Id. at 500. While the court believes that most reasonably intelligent
persons fully understand how degrading, demeaning, and offensive the word “nigger” is, the same
is not true with regard to the word “boy.” At times, the term is minimized by those who are ignorant
of its history and use.
“Boy” was often used during slavery to address an adult Black male rather than call him by
his name. The unmistakable intent was to let the Black male know that he was not mature or smart
Memorandum Opinion and Order - Page 25

enough to be considered equal to a White male. That prevailing view toward Blacks was also
repeated in the original version of Article I of the United States Constitution, in which Blacks were
counted as three-fifths of a person for purposes of taxation and representation. This provision was
included as a compromise because of competing interests between the North and South. Blacks are
referred to as “other Persons.” Article I was later modified by the Fourteenth and Sixteenth
Amendments to the United States Constitution, which became effective in 1868 and 1913,
respectively.
Finally, in late 2011, Gregg, Chief of Staff at the VANTHCS, told Bender that “all the rest
of these niggers” would be gone and that Bender would be next. Id. at 12, 183. Gregg stated that
he would kill Bender if he filed an EEO Complaint. Id.
Defendant moves for summary judgment on Bender’s hostile work environment claim,
arguing that the complained-of treatment was not sufficiently “severe and pervasive,” such that it
affected a term, condition, or privilege of his employment. See Def.’s Summ. J. Br. 17, 19 (Doc. 44).
Because the incidents were few and all took place in 2011, Defendant emphasizes the lack of
frequency.
First, the correct standard for establishing a hostile work environment requires that the
conduct be “severe or pervasive” and not the “severe and pervasive” standard cited by Defendant.
See Meritor Savings, 477 U.S. at 67 (emphasis added); see generally Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 434-35 (5th Cir. 2005) (calling into question prior Fifth Circuit decisions
applying the wrong legal standard requiring the conduct to be “severe and pervasive,” when the
Supreme Court has enunciated that the standard is “severe or pervasive”). Finally, the Fifth Circuit
cases that use “and” in place of “or” misstate the law as enunciated by the highest Court of the land.
Defendant’s citation to, and application of, the wrong legal standard is not an “irrelevant distinction,”
Memorandum Opinion and Order - Page 26

as “the requirement that a plaintiff establish that reported abusive conduct is both severe and
pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required
by law.” Harvill, 433 F.3d at 435 As stated by the Fifth Circuit, “under a conjunctive standard,
infrequent conduct, even if egregious, would not be actionable because it would not be ‘pervasive.’”
Id. Defendant’s reliance on the wrong legal standard alone constitutes a sufficient basis for denying
its motion for summary judgment on Bender’s hostile work environment claim, as the court is not
able to untangle how the more stringent burden placed on Bender to show that the conduct was
severe and pervasive aids Defendant’s argument.
Second, with regard to the infrequency of the harassment, upon which Defendant focuses,
it is well-established that “[u]nder the totality of the circumstances test, a single incident of
harassment, if sufficiently severe, could give rise to a Title VII claim.” EEOC v. WC & M Enters.,
469 F.3d 393, 400 (5th Cir. 2007); Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 163 (5th
Cir. 2007) (“An egregious, yet isolated, incident can alter the terms, conditions, or privileges of
employment and satisfy the fourth element necessary to constitute a hostile work environment.”);
see also Harvill, 433 F.3d at 435 (citing with approval Lockard v. Pizza Hut, Inc., 162 F.3d 1062,
1072 (10th Cir. 1998) (holding that a single incident of physically threatening and humiliating
conduct can be sufficient to create a hostile work environment)).
In addition to denying Defendant’s motion for summary judgment on Bender’s hostile work
environment claims for relying on the wrong legal standard, for the reasons that follow, the court will
deny the motion on the merits, after a full review of the evidence in the summary judgment record
and the parties’ legal arguments.
Construing the evidence in the light most favorable to Bender, the court concludes that the
evidence, considered under the “totality of the circumstances,” could enable a reasonable jury to
Memorandum Opinion and Order - Page 27

conclude that Bender was subject to a racially hostile work environment. Otherwise stated, Bender
has raised a genuine dispute of material fact that the conduct occurring was sufficiently severe to
constitute discrimination based on a hostile work environment, notwithstanding that it was
infrequent. Applying “[c]ommon sense[] and an appropriate sensitivity to social context[,]” Oncale,
523 U.S. at 82, this is not a case where the racial slurs can be written off as “mere offensive
utterance[s].” Harris, 510 U.S. at 23.10 This is conduct that is severe enough to create an objectively
hostile or abusive work environment—an environment that a reasonable person would find hostile
or abusive.
The evidence regarding the racially charged statements and conduct previously set forth,
which the court must accept as true at this stage, shows disdain by those in the higher echelons of
the VANTHCS for African-American employees. Only by utterly disregarding the meaning of the
words stated, or by failing to apply “[c]ommon sense[] and an appropriate sensitivity to social
context[,]” Oncale, 523 U.S. at 82, would one fail to comprehend the derisive and offensive nature
of the statements. Further, that Milligan, Medical Directory of VANTHCS and Bender’s supervisor,
did not correct or reprimand Carroll when he referred to Bender as a “house nigger,” suggests to a
reasonable person that such language and conduct are “standard operating procedure” at VANTHCS.
In addition, it is fatuous for the court to entertain the notion that Milligan would not know that the

10

“House nigger” of “house negro” is a “pejorative term for a black person, used to compare someone to a
house slave of a slave owner from the historic period of legal slavery in the United States.”
Https://en.wikipedia.org/wiki/House_Negro. Further, references by Milligan and colleague to reading a booked called
“The Monkey,” happening at the same meeting where Carroll called Bender a “house nigger,” is sufficient for a
reasonable jury to conclude that the term “monkey” was being used as a derogatory term for the African-American
employees attending the meeting. See, e.g., Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000), abrogated on other
grounds by Burlington Northern, 548 U.S. 53 (2006)) (A triable issue was raised with regard to hostile work environment
where, inter alia, supervisors referred to African-American employees as “monkeys”). Finally, a reasonable juror could
easily conclude that Gregg’s threat to kill Bender, immediately after telling Bender that “all the niggers” would be gotten
rid of, is severe enough to constitute a hostile work environment.
Memorandum Opinion and Order - Page 28

term “boy,” which term he used to describe an African-American employee on more than one
occasion, is derogatory and offensive when directed at an adult African-American male.
Further, viewing all the evidence in the light most favorable to Bender, the court concludes
he has also raised a genuine dispute of material fact that the harassing conduct unreasonably
interfered with his work performance. See Harris, 510 U.S. at 23. (“Title VII comes into play before
the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment,
even one that does not seriously affect employees’ psychological well-being, can and often will
detract from employees’ job performance, discourage employees from remaining on the job, or keep
them from advancing in their careers.”). Here, drawing all reasonable inferences in Bender’s favor,
the court concludes that he has produced sufficient evidence to raise a genuine dispute of material
fact that the harassing conduct, including being referred to by Carroll as a “house nigger,” being told
by Gregg that all the “niggers” would be gone and he would be next, being threatened by Gregg that
he would be killed if he filed an EEO complaint, and working under a supervisor that references a
book titled “The Monkey Book,” and refers to adult African-American men as “boy,”caused him to
experience fear, anger, stress, and chest pains that unreasonably interfered with his work
performance.
Of all factors the court must consider, the only one about which Bender fails to raise a
genuine dispute of material fact is the frequency of the conduct. Frequency, however, is only one
factor and “no single factor is required.” Harris, 510 U.S. at 23. The court has weighed this factor
and does not find it sufficiently strong to grant Defendant’s summary judgment motion. While
infrequent, the evidence shows this is far from a single occurrence. Indeed, in filing her own EEO
Complaint, African-American employee McCall, who was at the November 21, 2011 meeting, and
heard Carroll call Bender a “house nigger,” also testified that the “word is used around here loosely.”
Memorandum Opinion and Order - Page 29

Pl.’s App. at 355. This statement, along with other evidence in this case, indicates that a culture
exists in which high levels of management not only condone and tolerate but also engage in, racially
insensitive and offensive conduct.
In sum, Bender has produced evidence sufficient to raise a genuine dispute of material fact
that his workplace was “permeated with discriminatory intimidation, ridicule, and insult . . .
sufficiently severe or pervasive to alter the conditions of [his] employment and to create an abusive
work environment.” Meritor Savings, 477 U.S. at 65. Accordingly, Defendant’s Motion for
Summary Judgment on Plaintiff’s hostile work environment claim will be denied.
III.

Conclusion
For the reasons herein stated, the court grants in part and denies in part Defendant’s

Motion for Summary. Plaintiff John Bender has failed to raise a genuine dispute of material fact to
support his disparate treatment race discrimination claim under Title VII and Chapter 21 of the
TCHRA. The court, therefore, grants Defendant’s Motion for Summary Judgment on Plaintiff’s
disparate treatment race discrimination claims, enters judgment as a matter of law in favor of
Defendant on these claims, and dismisses them with prejudice.
Genuine disputes of material fact do exist, however, with respect to Plaintiff’s federal and
state law hostile work environment claims. The court, therefore, denies Defendant’s Motion for
Summary Judgment as to these claims.
With respect to Plaintiff’s retaliation claim, Plaintiff has failed to raise a genuine dispute of
material fact that the following were adverse employment actions: exclusion from meetings; denial
of advance leave; loss of computer privileges; loss of a key; the order to attend meetings with all
members of the Quad; and Milligan’s disparaging comments to Bender’s new supervisor.

Memorandum Opinion and Order - Page 30

The court, therefore, grants Defendant’s Motion for Summary Judgment as to Plaintiff’s Title
VII and TCHRA retaliation claims based on these acts, and dismisses with prejudice these claims.
The court denies Defendant’s Motion for Summary Judgment as to the remainder of Plaintiff’s Title
VII and TCHRA retaliation claims. Plaintiff’s claims of retaliation under Title VII and Chapter 21
of the TCHRA, with the exception of those portions of the retaliation claims the court has dismissed,
remain for trial.
Although not raised by Defendant, the court sua sponte raises for summary judgment
purposes whether Plaintiff, as a federal employee, can assert state law employment discrimination
claims against the VA in light of existing Supreme Court and Fifth Circuit precedent. In particular,
the Supreme Court has held that Title VII provides the exclusive remedy for claims of employment
discrimination filed against the federal government, since “Congress intended [Title VII] to be
exclusive and pre-emptive” regarding federal employment. Brown v. General Servs. Admin., 425
U.S. 820, 829, 835 (1976). The Fifth Circuit and lower federal courts in this circuit have applied the
Supreme Court’s decision in Brown to dismiss federal employee’s federal and state statutory and
common law claims arising out of an employment relationship when these claims were joined with
Title VII claims. See Smith v. Harvey, 265 F. App’x 197, 200 (5th Cir. 2008) (citations omitted)
(affirming dismissal of all federal non-Title VII claims and all state law claims); Rowe v. Sullivan,
967 F.2d 186, 189 (5th Cir. 1992) (citation omitted); Irwin v. Veterans Admin., 874 F.2d 1092, 1095
(5th Cir. 1989) (citation omitted); Porter v. Shinseki, 650 F. Supp. 2d 565, 571 (E.D. La. 2009)
(citations omitted). Further, the court notes that pursuant to the doctrine of sovereign immunity,
federal courts do not have jurisdiction over suits against the United States absent a statutory waiver
of sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). The court is not aware

Memorandum Opinion and Order - Page 31

of any waiver of sovereign immunity by the United States with respect to lawsuits under the
TCHRA.
In light of this precedent, the court directs Plaintiff to state whether authority exists for him
to assert his state-law claims of employment discrimination against Defendant, and to provide the
court with this authority in a written response not to exceed five (5) pages. The deadline for Plaintiff
to file his response is March 29, 2017. Defendant shall not reply unless directed to do so by the
court. Following receipt of Plaintiff’s written response, the court will determine whether its current
ruling on Defendant’s Motion for Summary Judgment, supra, requires amendment or
supplementation with respect to Plaintiff’s state law employment discrimination claims.
It is so ordered this 22nd day of March, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order - Page 32