Abbood v. Texas Health and Human Services Commission

Filing 55

MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 38 motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and that plaintiff's claims be, and are hereby, dismissed with prejudice. (Ordered by Senior Judge John McBryde on 11/30/2018) (tln)

U.S. Ill STRICT COURT
NORTHERN DISTRICT or Tl ::,\'

IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
AMANDA R. ABBOOD,

COU!ff--::__F~J
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Plaintiff,

CLERK, U.S. DISTRICT COUlff
B~~~~~~~~

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vs.

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TEXAS HEALTH AND HUMAN SERVICES
COMMISSION,

NOV 3 0 201B

Jcputy

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Defendant.

NO. 4:17-CV-909-A

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Texas
Health and Human Services Commission, for summary judgment. The
court, having considered the motion, the response of plaintiff,
Amanda R Abbood, the reply, the record, and applicable
authorities, finds that the motion should be granted.
I.

Plaintiff's Claims
The operative pleading is plaintiff's third amended original
complaint filed November 2, 2018. Doc. 1 43. In it, plaintiff
asserts claims under Title VII of the Civil Rights Act of 1964,
42

u.s.c.

§§

2000e to 2000e-17,

("Title VII") for sexual

discrimination, hostile work environment, and retaliation. In
sum, plaintiff alleges that she was sexually harassed by another
employee and that when she reported his actions and pursued the

'The "Doc.

" reference is to the number of the item on the docket in this action.

matter with the EEOC, defendant retaliated against her by firing
her. Plaintiff says that the reason given by defendant for her
termination was pretext for discrimination.
II.

Grounds of the Motion
Defendant maintains that plaintiff cannot establish that she
was discriminated against based on her sex or subjected to a
hostile work environment. Nor can she establish that defendant
retaliated against her for engaging in protected activity.
III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.

Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

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concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56(c)

asserting that a fact
the assertion by
the record

("A party

is genuinely disputed must support
citing to particular parts of materials in

• fl )

•

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986).

In Mississippi Prat. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.'

Celotex Corp., 477 U.S. at 323.

If the record taken as a

'In Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
(continued ... )
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whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
IV.

Undisputed Facts
The summary judgment evidence' establishes:
Plaintiff began her employment with defendant in 2014 as a
"Texas Works Advisor I," whose primary job duty was to accurately
determine client eligibility for various Medicaid programs. Doc.
46 at 2; Doc. 40 at 51. In connection with her employment,
plaintiff signed a computer use agreement, recognizing that in
the course of her employment she would have access to
confidential information (including phone numbers) and
specifically agreeing that as a condition to her access to
confidential information she would "use confidential information
only as needed to perform legitimate duties." Doc. 40 at 52. The
computer use agreement concluded with the statement:

2

( ... continued)
explained the standard to be applied in determining whether the comt should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
3

The comt notes that each party has objected to portions of the summary judgment evidence
submitted by the other. As is its practice, the court is not striking any summary judgment evidence, but
rather giving the evidence whatever weight it may deserve.

4

I understand that my failure to comply with this
Agreement may result in loss of access privileges to
HHS applications; disciplinary action, up to and
including dismissal; and person legal liability.
Id. In addition, plaintiff signed a Data Broker' Computer
Security Agreement, providing in part that "information obtained
from the system shall be used only for official state-approved
business." Id. at 54. Further, the agreement provided,
I understand that inappropriate use of Data Broker
information is a work rule violation and will result in
disciplinary action up to and including dismissal,
exercise of remedies for breach of contract, and/or
termination of contract.

In August 2016, plaintiff and another woman reported to
their supervisor that they were being sexually harassed by Matt
Otts ("Otts"), another employee. Doc. 40 at 64, 72-73, 74-75.
Otts was counseled, reassigned to another unit, and his office
was moved to the opposite side of the building. Id. at 31-32, 65.
Otts was out on medical leave for a significant amount of time.
Id. at 32, 65. Plaintiff next complained about Otts' behavior in
December 2016.

Id. at 28,

65, 76. Otts was removed from the

building, placed on emergency leave, and the locks to the main

4

The "Data Broker" system enabled employees to look up more specific information about
clients. Doc. 40 at 17. Plaintiff understood that she could not access defendant's systems, including Data
Broker, for personal use. Id. at 2 I.

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door were changed. Id. at 65, 87. Otts was terminated. Id. at 65,
88-93.
On December 15, 2016, Robin Weger reported that plaintiff
had used the Data Broker system to look for the owner of a dog
she found tied up outside at a grocery store during her lunch
break. Doc. 40 at 58, 65. Plaintiff freely admitted that she had
used the system for that purpose and that she would do so again
in that situation. Id. at 28, 58, 65. Plaintiff's supervisor
reported the incident and it was determined that plaintiff would
be terminated. Id. at 66. Plaintiff was given notice and an
opportunity to respond, which she did. Id.; Doc. 46 at 157-58.
Plaintiff's responses, both dated January 5, 2017, argued that
what she had done

(using the Data Broker system for personal

research) was not as serious as what Ott had done (in sexually
harassing plaintiff) and what others had done (in committing
fraud). Id. at 157-58.

Plaintiff was terminated effective

January 11, 2017. Doc. 40 at 66.
At least two employees prior to plaintiff who accessed the
Data Broker system for non-business purposes were terminated.
Doc. 40 at 69. There is no evidence that anyone who used the Data
Broker system for personal purposes was not fired. See Doc. 46 at
63

(it was a "known thing that if you did something with Data

Broker, a violation, that you would normally get terminated").

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v.
Analysis
To establish a prima facie claim for discrimination under
Title VII plaintiff must show that:
protected group;
(3)

(1)

she is a member of a

(2) she was qualified for the position at issue;

she suffered an adverse employment action by her employer;

and (4) she was replaced by someone outside the protected group
or was treated less favorably than other similarly situated
employees. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th
Cir. 2007). To prove gender discrimination on the basis of
disparate discipline, as here, plaintiff must show that the
actions taken against her and the comparator employee were under
nearly identical circumstances. Wyyill v. United Cos. Life Ins.
Co., 212 F.3d 296, 304 (5th Cir. 2000). That is, she must show
that the misconduct for which she was discharged was nearly
identical to that engaged in by Otts, who was retained. Smith v.
Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180

(5th Cir. 1990).

Although plaintiff makes a good argument that the conduct
engaged in by Otts was far more despicable, the fact is that the
conduct was of a wholly different sort. Otts engaged in sexual
harassment, whereas plaintiff misused her work-assigned computer
for personal purposes. Plaintiff cannot point to any other person
who did what she did and was not terminated. The evidence is to

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the contrary. Doc. 40 at 68-69. Because plaintiff cannot prove
the fourth element, she cannot prevail on this claim.
To prove her claim for hostile work environment, plaintiff
must show:

(1) plaintiff belongs to a protected group;

was subjected to unwelcome harassment;
based on her protected status;

(2) she

(3) the harassment was

(4) the harassment affected a

term, condition, or privilege of employment; and,

(5) defendant

knew or should have known about the harassment and failed to take
prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir. 2002). To be actionable, the harassment must be both
objectively and subjectively offensive. Harvill v. Westward
Communications, L.L.C., 433 F.3d 428, 434

(5th Cir. 2005). It

must be sufficiently severe or pervasive to alter the conditions
of plaintiff's employment and create an abusive work environment.
Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993). Factors

considered include the frequency of the conduct, its severity,
whether the conduct was physically threatening or humiliating or
a mere offensive utterance, and whether it unreasonably
interfered with the employee's work performance. Faragher v. City
of Boca Raton, 524 U.S. 775, 787-88

(1998). The Supreme Court has

"made it clear that conduct must be extreme to amount to a change
in the terms and conditions of employment." Id. at 788.

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Here, defendant maintains that plaintiff cannot establish
the fourth or fifth elements of her claim. Defendant notes that
the alleged harasser was not a supervisor, but merely a coworker.
This matters because where the alleged harasser is a supervisor,
the plaintiff need only establish the first four elements in
making a prima facie case. Matherne v. Ruba Mgmt., 624 F. App'x
835, 839 (5th Cir. 2015). Stated another way, an employer may be
held vicariously liable for an employee's unlawful harassment
only when the employer has empowered that employee to take
tangible employment actions against the victim, i.e., to effect a
significant change in employment status, such as hiring, firing,
failing to promote, reassigning with significantly different
responsibilities, or making a decision causing a significant
change in benefits. Vance v. Ball State Univ., 570 U.S. 421, 431
(2013).
In this case, plaintiff pleaded that the harasser, Otts,

•in

relation to Plaintiff, was in a supervisory position.• Doc. 43,
, 10. However, the summary judgment evidence, including
plaintiff's own testimony, establishes that Otts was not
plaintiff's supervisor. See, e.g., Doc. 40 at 36, 65; Doc. 46 at
3 (plaintiff says she and Otts had similar job duties and were
under supervision of the same supervisor). See also Doc. 45 at

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22-23

(twice stating that Otts and plaintiff were similarly

situated) .
More importantly, the summary judgment evidence establishes
that this is not the type of case where it could be said that the
alleged harassment was so severe or pervasive as to alter a
condition of plaintiff's employment.' See, e.g., E.E.0.C. v. Boh
Bros. Constr. Co., L.L.C., 731 F.3d 444

(5th Cir. 2013); E.E.O.C.

v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007). Although
plaintiff generally avers that she was sexually harassed
constantly and in many ways, her affidavit is conclusory and does
not provide sufficient facts to raise a genuine issue in this
regard. In her deposition, plaintiff admitted that Otts never
touched her in a way that was unwelcoming, propositioned her or
asked for sex. He never exposed himself, sent or requested
photographs, or sent any written communications to plaintiff.
Doc. 40 at 36. Rather, Otts made comments about how flattering
plaintiff's clothes were on her body. Id. at 33. One time when
plaintiff put lotion on her hands, Otts told her she was getting
him going, indicating that he was getting an erection. Id. at 34.
He told plaintiff about his sex life and marital problems. Id.
Plaintiff surmised that she was not as forceful as she should

'Thus, the court need not reach the fifth element in any event. (The record does reflect that
defendant took prompt remedial action following her initial complaint, even though plaintiff contends it
was not sufficient. And, Otts was fired after the December complaints.)

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have been in telling him to stop, because "[h]e always thought
everything was a big joke." Id. at 34. Plaintiff reported Otts
for sexual harassment in August' and December' of 2016.

Id. at

28-29. Plaintiff did her work properly and competently and there
was never a time when she did not get her work assignments done.
Doc. 46 at 3-4. In sum, plaintiff has not shown that she was
subjected to a hostile work environment.
To state a claim for retaliation under Title VII, plaintiff
must allege that she participated in an activity protected by
Title VII, her employer took an adverse employment action against
her, and a causal connection exists between the protected
activity and the adverse employment action. McCoy, 492 F.3d at
557. "Protected activity" means any practice rendered unlawful by
Title VII, including making a charge, testifying, assisting, or
participating in any investigation, hearing or proceeding under
Title VII. Lopez v. Kempthorne, 684 F. Supp. 2d 827, 862

(S.D.

Tex. 2010). For there to be a causal connection, the employer
must know about the employee's protected activity. Manning v.

'Plaintiff testified that she was afraid to repmt Otts by herself, so she found a coworker who had
also been harassed and she and the coworker each made an initial repmt to their supervisor. Doc. 40 at
30-31. Between August and December, Otts was moved to the other side of the building. Id. at 31-32.
After that, Otts went on medical leave for a month or so. Id. at 35. Then, he slowly made his way back
over to plaintiffs side of the building "to seemingly find pointless things to do in order to talk to us." Id.
at 32. It was "an uncomfo1table situation." Id. at 35.
'On December 15, 2016, plaintiff and the same coworker repmted that on December 14, Otts had
told each of them how nice she looked and that he wanted to "jump [plaintiffs] bones." Doc. 40 at 76,
77. Otts was terminated. Id. at 65.
11

Chevron Chem. Co., LLC, 332 F.3d 874, 883

(5th Cir. 2003).

Temporal proximity between the protected activity and the adverse
employment action, by itself,

is insufficient to create a genuine

issue of material fact as to causation. Lopez, 684 F. Supp. 2d at
863

(citing cases) . Once an employer offers a legitimate,

nondiscriminatory reason that explains both the adverse action
and the timing, plaintiff must offer some evidence from which to
infer that retaliation was the real motive. McCoy v. City of
Shreveport, 492 F.3d 551, 562 (5th Cir. 2007).
In this case, plaintiff says that she was fired in
retaliation for taking her complaint about Otts to the EEOC.' The
summary judgment evidence establishes that in August 2016,
plaintiff made known to defendant that she was considering filing
a complaint about Otts with the EEOC. Doc. 46 at 156. And, on
December 20, 2016, she asked for the next day off to meet her
attorney to file a formal complaint with the EEOC. Doc. 40 at 60.
On January 11, 2017, plaintiff was notified that her employment
was immediately terminated. Doc. 40 at 66. As for the causal
connection between the protected activity and the termination,

'Plaintiffs complaint also referred to her having reported cases of fraud over a period of time as
a reason for her termination. Doc. 43, if 14. And, she testified that she thought that was a reason she was
fired. Doc. 40 at 29. Plaintiffs response appears to recognize that such reporting would not suppmt a
retaliation claim, Doc. 45 at 16, as does at least one of the cases plaintiff cites, id. at 18 (citing E.E.O.C.
v. Rite Way Serv., Inc., 819 F.3d 235, 242 (5th Cir. 2016)(noting that even the EEOC would not argue
that reporting accounting fraud could give rise to a retaliation claim). Plaintiff did not assert any kind of
whistleblower claim in this action.

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plaintiff's only argument and evidence is that she "had not done
anything at work which justified firing." Doc. 45 at 51. The
overwhelming summary judgment evidence is to the contrary. As
plaintiff admitted, she had used her work computer and the Data
Broker system for personal purposes. The agreements she signed
clearly gave notice, which plaintiff understood, that neither her
computer nor the system was to be used for other than workrelated purposes. No other person who did what plaintiff did
remained employed by defendant. That plaintiff sincerely believed
that her actions merited a lesser sanction, e.g., Doc. 46 at 15758, does not create a fact issue for trial.
Even assuming plaintiff had made a Prima facie showing of
retaliation, defendant has come forward with a legitimate, nonretaliatory reason for her termination. To show that defendant's
reason was actually a pretext for discrimination, plaintiff must
show that she would not have been terminated "but for" the
retaliatory reason. Univ. of Tex. Sw. Med. Ctr., 570 U.S. 338,
360 (2013). For the reasons discussed, plaintiff has not, and
cannot, make that showing.

VI.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing

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on her claims against defendant; and that plaintiff's claims be,
and are hereby, dismissed with prejudice.

,.

SIGNED November 30, 2018.

I

1#711/
District J

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