Laxmi Devi Sarwal v. Veterans Administration
MEMORANDUM AND OPINION entered : GRANTING 27 MOTION to Dismiss for Failure to Exhaust Administrative Remedies, GRANTING 26 MOTION for Summary Judgment . Case is dismissed by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LAXMI DEVI SARWAL,
DAVID SHULKIN, Secretary,
U.S. Department of Veterans Affairs,
July 14, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-00247
MEMORANDUM AND OPINION
Laxmi Devi Sarwal alleges that her former employer, the United States Veterans Affairs
Medical Center, discriminated against her on the basis of her race (Asian Indian), her gender
(female), her age (70), her color, and her Hindu religion, and in retaliation for her complaints. The
Department of Veterans Affairs has moved to dismiss some of Sarwal’s claims for failure to exhaust
administrative remedies and has moved for summary judgment on her remaining claims. (Docket
Entry Nos. 26, 27). Sarwal has not responded to either motion. Based on a careful review of the
pleadings, motions, the record, and the relevant law, the court grants the VA’s motions to dismiss
and for summary judgment. (Docket Entry No. 26, 27). An order of dismissal is separately entered.
The reasons for the rulings are set out below.
Sarwal has worked as a staff assistant for the VA at the VA Medical Center in Houston,
Texas since January 1996. (Docket Entry No. 25, Ex. 2 at 4). In February 2011, Sarwal filed a
formal complaint with the VA’s Office of Resolution Management. (Id., Ex. 1 at 264). She alleged
race, gender, age, and religious discrimination after she was denied a pay increase and received a
performance rating of “fully successful” rather than “exceptional.” (Id. at 265). (The VA uses
performance ratings of “exceptional,” “fully successful,” and “unacceptable.”) (Id. at 220). In May
2014, the EEOC Administrative Law Judge granted the VA’s motion for summary judgment on all
the claims, and the Office of Employment Discrimination Complaint and Adjudication affirmed the
ruling. (Id. at 258–71).
In January 2013, Sarwal filed another formal complaint. (Id. at 587). She alleged that she
was discriminated against because of her age and retaliated against for her complaints when she
received a performance rating of “excellent” instead of “outstanding.” (Id. at 588). (The VA
performance ratings on this form were “unacceptable,” “minimally satisfactory,” “fully sucessful,”
“excellent,” and “outstanding.”) (Id. at 254). In May 2014, the EEOC Administrative Law Judge
granted the VA’s motion for summary judgment on these claims, and the Office of Employment
Discrimination Complaint and Adjudication affirmed. (Id. at 581– 96).
In December 2013, Sarwal filed another complaint. She had received a rating of “fully
successful” rather than “outstanding” for her communication skills and performance. (Docket Entry
No. 25, Ex. 1 at 1–8). She alleged this action was caused by discrimination on the basis of her race,
gender, age, and national origin, and was in retaliation for her prior complaints. In June 2014,
Sarwal filed another complaint alleging discrimination on the basis of race, gender, age, national
origin, and color, and retaliation for her prior complaints. This complaint was based on the VA’s
downgrading her position from a GS-9 to a GS-5, lowering her performance ratings, removing some
of her job duties, reprimanding and suspending her, and other behavior. (Id.).
The Office of
Employment Discrimination Complaint and Adjudication found that as a matter of law Sarwal had
not shown discrimination, retaliation, or a hostile work environment. (Id. at 30). A notice of final
agency action dismissing her complaint was issued on November 2, 2015. (Id. at 1–32).
Sarwal filed this suit against the VA in January 2016. (Docket Entry No. 1). She reurged
all the discrimination and retaliation complaints made in her EEOC and other agency filings,
asserting claims under Title VII and the ADEA. She also alleged that she was subjected to a hostile
work environment, in violation of Title VII and the ADEA. The VA moves to dismiss some of the
claims for lack of subject-matter jurisdiction and moves for summary judgment on the remaining
claims. (Docket Entry Nos. 26, 27). Sarwal has not responded to either motion. The parties’
arguments and the record evidence are analyzed under the applicable legal standards.
The Legal Standards
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s subject-matter
jurisdiction. “A case is properly dismissed, for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss.,
Inc. v. City of Masidon, 143 F.3d 1006, 1010 (5th Cir. 1998). “Courts may dismiss for lack of
subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed
facts plus the court’s resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th
Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. See
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). When examining a factual challenge
to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of plaintiff’s
cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d
1256, 1261 (11th Cir. 1997); see also Clark, 798 F.2d at 741. When a party challenges the
allegations supporting subject-matter jurisdiction, the court has wide discretion to allow affidavits
or other documents and to hold a limited evidentiary hearing to resolve disputed jurisdictional facts.
See Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015). The
court may consider matters outside the pleadings to resolve factual challenges to subject-matter
jurisdiction, without converting the motion to dismiss to one for summary judgment. See Garcia,
104 F.3d at 1261.
“Summary judgment is required when ‘the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’” Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). “A genuine dispute of material
fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Nola Spice Designs, LLC v. Haydel Enters., Inc.,783 F.3d 527, 536 (5th Cir. 2015) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact.’” Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“Where the non-movant bears the burden of proof at trial, the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact warranting trial.” Id.
(quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact, it does not
need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir. 2005). “A fact is ‘material’ if its resolution in favor of one party might affect the
outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316,
326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the
motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United
States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
“Once the moving party [meets its initial burden], the non-moving party must ‘go beyond
the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.’” Nola
Spice, 783 F.3d at 536 (quoting EEOC, 773 F.3d at 694). The nonmovant must identify specific
evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v.
Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding
a summary-judgment motion, the court draws all reasonable inferences in the light most favorable
to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice,
783 F.3d at 536.
The Rule 12(b)(1) Motion to Dismiss
The VA moves to dismiss Sarwal’s claims arising from the events she alleged in her
February 2011 and January 2013 administrative complaints. The VA contends that this court lacks
subject-matter jurisdiction because Sarwal did not appeal the dismissals to the EEOC and because
she filed suit too late.
“There are two requirements for filing a Title VII action in federal court: 1) the complaint
must be filed within the time allotted by Title VII, and 2) the complainant must first have exhausted
her administrative remedies.” Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990). “There
is disagreement in this circuit on whether a Title–VII prerequisite, such as exhaustion, is merely a
prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that
implicates subject matter jurisdiction.”1 Ruiz v. Brennan, 851 F.3d 464, 472 (5th Cir. 2017) (quoting
Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006)). In Ruiz, the Fifth Circuit considered
whether the judge erred dismissing the plaintiff’s claims under Rule 12(b)(6) for failure to exhaust.
Id. Because neither party argued waiver or estoppel, and “because the outcome would remain the
same whether [the court] consider[ed] exhaustion to be a condition precedent or a jurisdictional
prerequisite,” the court did not need to “take sides in this dispute.” Id. The Fifth Circuit has
affirmed dismissals under both Rules 12(b)(1) and 12(b)(6) when a plaintiff has failed to exhaust
administrative remedies and does not argue waiver or estoppel as a defense to dismissal. Id.
(affirming dismissal under Rule 12(b)(6)); Pacheco, 448 F.3d at 792 (affirming dismissal under Rule
12(b)(1)). Sarwal has not asserted waiver or estoppel, and the outcome would remain the same
whether the court considered exhaustion to be a condition precedent or a jurisdictional prerequisite.
The court need not wade into, much less pick a side in, this intra-circuit dispute.
A federal employee who receives a notice of final agency action may appeal to the EEOC
within 30 days after receiving the notice, or she may file suit in federal district court within 90 days
after receiving the notice or within 180 days after filing an appeal to the EEOC if it has not issued
a final decision. 42 U.S.C. § 2000e–16(c); 29 C.F.R. §§ 1614.402, 1614.407. Sarwal did not appeal
to the EEOC or file suit within the required period.
The Fifth Circuit in Pacheco explained the intra-circuit split. “Neither the Supreme Court nor this
court sitting en banc has ruled that the exhaustion requirement is subject to waiver or estoppel, and our panels
are in disagreement over that question.” Pacheco, 448 F.3d at 788 n.7; compare Tolbert v. United States, 916
F.2d 245, 247 (5th Cir. 1990) (“[I]t is the well-settled law of this circuit that each [Title VII] requirement is
a prerequisite to federal subject matter jurisdiction.”) and Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981)
(“The exhaustion requirement . . . is an absolute prerequisite to suit”) and Randel v. Dep’t. of U.S. Navy, 157
F.3d 392, 395 (5th Cir. 1998) (“If the claimant fails to comply with either of these [Title VII] requirements
then the court is deprived of jurisdiction over the case.”) with Young v. City of Houston, Tex., 906 F.2d 177,
180 (5th Cir. 1990) (“A failure of the EEOC prerequisite does not rob a court of jurisdiction.”) and Fellows
v. Universal Restaurants, Inc., 701 F.2d 447, 449 (5th Cir. 1983) (“The basic two statutory requirements
(although these are not necessarily ‘jurisdictional’) for a Title VII suit are . . . .”).
A final agency decision was issued on May 30, 2014 dismissing Sarwal’s 2011 and 2013
administrative complaints. (Docket Entry No. 25, Ex. 1 at 258, 581). The notice of final agency
action notified Sarwal that she could file a civil action: 1) within 90 days, if she did not appeal to
the EEOC; 2) if she appealed, within 90 days after receiving the EEOC’s final decision; or 3) 180
days after filing the appeal to the EEOC, if no final decision had issued. (Id. at 260, 583). Sarwal
did not appeal to the EEOC, and she did not file this suit until January 28, 2016. That was more than
a year and a half after the notice of final agency action issued. Her failure to file suit within the
deadline deprives this court of subject-matter jurisdiction over her claims based on the 2011 and
2013 agency actions. See Pacheco, 448 F.3d at 792 ; 42 U.S.C. § 2000e–16(c). The VA’s motion
to dismiss the claims arising from its actions that were the basis of the 2011 and 2013 administrative
complaints is granted.2 (Docket Entry No. 27).
The Summary Judgment Motion
The McDonnell-Douglas Burden-Shifting Standard
Employment discrimination in violation of Title VII can be proved by either direct or
circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
Evidence is direct if it would prove the fact in question without inference or presumption. Fabela
v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003) (citations omitted). If no direct
evidence exists, the court uses the familiar burden-shifting framework in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973), to determine whether summary judgment is appropriate. See
Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004). The legal standard is well
Alternatively, Sarwal’s claims could be dismissed under Rule 12(b)(6) for failure to exhaust her
administrative remedies. See Ruiz, 851 F.3d at 472.
To survive summary judgment under McDonnell Douglas, the plaintiff must first
present evidence of a prima facie case of discrimination. If the plaintiff presents a
prima facie case, discrimination is presumed, and the burden shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the underlying employment
action. If the employer is able to state a legitimate rationale for its employment
action, the inference of discrimination disappears and the plaintiff must present
evidence that the employer’s proffered reason was mere pretext for racial
Davis, 383 F.3d at 317 (citations omitted).
The elements of a prima facie showing of discrimination are that the plaintiff: (1) is a
member of a protected class; (2) was qualified for the position; (3) was subject to an adverse
employment action; and (4) was replaced by someone outside the protected class or, in the case of
disparate treatment, was treated more harshly than others who were similarly situated. Okoye v.
Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001).
The defendant’s burden of articulating a legitimate nondiscriminatory reason for its adverse
employment action is a burden of production, not persuasion. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 506–07 (5th Cir. 1993). The “ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
Id. at 507 (internal citations and quotation marks omitted). The defendant must produce “admissible
evidence, . . . which, if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action.” Id. at 507.
If the employer meets its burden, the prima facie case dissolves and the burden shifts back
to the plaintiff to raise a fact dispute material to determining either: (1) that the employer’s proffered
reason is not true but is instead a pretext for discrimination; or (2) that the employer’s reason, while
true, is not the only reason for its conduct, and another “motivating factor” is the plaintiff’s protected
characteristic. Vaughn, 665 F.3d at 636 (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004)); see also Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002) (“On
summary judgment . . . the plaintiff must substantiate his claim of pretext through evidence
demonstrating that discrimination lay at the heart of the employer’s decision.”). “Once a Title VII
case reaches the pretext stage, the only question on summary judgment is whether there is a conflict
in substantial evidence to create a jury question regarding discrimination.” Shackelford, 190 F.3d
When evaluating pretext, the focus is on the employer’s motivation for the adverse
employment action, not whether the employer acted wisely or based its decision on an accurate
understanding of the facts. Title VII does not require objectively fair or well-reasoned business
decisions. It does prohibit employers from making business decisions on a prohibited basis,
including race discrimination or retaliation for protected conduct. LeMaire v. Louisiana Dep’t of
Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007). It is not enough for a plaintiff to show a material
factual dispute as to whether the company’s decision to take an adverse employment action against
her was good business, or to show that the employer was wrong about the underlying facts. The
question is whether the employer had a good-faith belief that the facts that motivated the adverse
action were true and warranted the action. Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379
(5th Cir. 2010).
The VA concedes that Sarwal has made a prima facie showing of two of the four elements
of discrimination. She is a member of a protected class, and she had the minimum qualifications for
her position. The VA argues that Sarwal has not shown that she suffered an adverse employment
action, and even if she had, she cannot show that a similarly situated employee was treated more
favorably than she was.
Sarwal alleged that she suffered an adverse employment action in October 2013 and April
2014 when she received “fully successful” performance ratings instead of “outstanding” or
“exceptional.” (Docket Entry No. 1 at ¶¶ 17, 23). Sarwal retained her classification as a GS-9 staff
assistant, duties, and compensation, with the corresponding benefits. The uncontroverted summary
judgment evidence shows no negative effect on her pay. Because she does not point to facts
showing that the evaluation reduced or otherwise affected her job duties, compensation, or benefits,
it is not an adverse employment action. Thompson v. City of Waco, Texas, 764 F.3d 500, 503–504
(5th Cir. 2014). Nor has Sarwal pointed to similarly situated comparators who were treated more
favorably than she was. Sarwal has not met her burden to make a prima facie showing of
Sarwal also alleged that she was suspended for three days in September 2014 and that this
was an adverse employment action. Suspension with pay, followed by reinstatement and no loss of
benefits, is as a matter of law not an adverse employment action. Brooks v. Houston Indep. Sch.
Dist., 86 F. Supp. 3d 577, 589 (S.D. Tex. 2015) (citing Stewart v. Mississippi Transp. Comm’n, 586
F.3d 321, 331–32 (5th Cir. 2009)). Suspension without pay may be an adverse employment action.
Hypolite v. City of Houston, Tex., 493 F. App’x 597, 606 (5th Cir. 2012) (temporary suspension
without pay was an adverse employment action, but the court did not distinguish between
discrimination and retaliation claims); Brown v. Prentiss Reg’l Hosp., No. 2:11-CV-180-KS-MTP,
2013 WL 610520, at *5 (S.D. Miss. Feb. 19, 2013) (suspension without pay qualifies as an adverse
employment action in the Title VII discrimination context). The VA has not presented evidence
clarifying whether the suspension was with or without pay.
Assuming that the three-day suspension is an adverse employment action, Sarwal still has
not made a prima facie showing that similarly situated individuals were treated more favorably than
she was. And even assuming that Sarwal had made a prima facie showing, the VA has presented
legitimate nondiscriminatory reasons for the suspension. The record shows that Sarwal had claimed
that a supervisor threatened to stab her in the neck with a pencil. (Docket Entry No. 25, Ex. 1 at
1054). After a thorough internal factfinding investigation and a police investigation, Sarwal’s
claims were determined to be false. (Id.). She was charged with conduct unbecoming a federal
employee for the fabrication and suspended. (Id.). The record does not contain evidence supporting
an inference that the VA’s proffered explanation was a pretext for discrimination or that
discrimination was a motivating factor in her suspension. Summary judgment on this claim is
Sarwal also alleges that the “downgrade” of her position was discriminatory.
uncontroverted record evidence shows that in November 2014, Sarwal’s job description had to be
updated to reflect her current duties. (Id. at 20). Sarwal’s supervisor, together with Sarwal and her
union representative, updated her job description. (Id.). Sarwal’s position was reclassified from a
GS-9 staff assistant to a GS-5 medical clerk. (Id. at 20, 795–96, 1201–20). But a moratorium meant
that the downgrading never occurred. (Id. at 1027). Sarwal is still classified as a GS-9 employee.
(Id.). Nor has Sarwal pointed to any similarly situated individuals who were treated differently than
she was. Even if she had, the government has provided a legitimate nondiscriminatory reason for
the change in Sarwal’s employment status. Changes in Sarwal’s job duties since she was hired in
1996 made her job description outdated.3 (Id. at 1060). The job description was examined and
revised to reflect the job duties she was currently performing. The record evidence does not support
an inference or give rise to a factual dispute material to deciding whether the VA’s proffered reason
was a pretext for discrimination or that discrimination was a motivating factor in the revised job
description and change to the grade.
Sarwal alleged that the removal of her timekeeper duties in December 2013, her reprimand
in December 2013, and her placement on sick-leave certification in November 2014, which required
There is also record evidence to suggest that Sarwal initiated the reclassification process, not her
supervisor. (Docket Entry No. 25, Ex. 1 at 1060).
her to provide medical documentation to use sick leave, were caused by discrimination. (Docket
Entry No. 1 at ¶¶ 20–21, 36). The VA provided legitimate nondiscriminatory reasons for each
action. The VA presented evidence that it removed Sarwal’s timekeeper duties because she engaged
in misconduct by entering and certifying her own time. (Docket Entry No. 25, Ex. 1 at 20, 1093).
Sarwal was issued a formal reprimand for her continuing failure to follow the chain of command,
despite repeated warnings from multiple supervisors. (Id. at 18, 1052–54). The VA presented
evidence that it placed Sarwal on sick-leave certification because she was taking “excessive sick
leave.” (Id. at 1022). The record contains no evidence that the VA’s proffered reasons were
pretextual or that discrimination was a motivating factor. And Sarwal has not identified or presented
record evidence that similarly situated individuals were treated differently than she was.
The VA’s summary judgment motion on Sarwal’s discrimination claims is granted. (Docket
Entry No. 26).
The Legal Standard
Title VII prohibits retaliation when an employee “has opposed any practice made an unlawful
employment practice by [Title VII].” 42 U.S.C. §2000e-3. The elements of a prima facie showing
of retaliation are that: (1) the plaintiff engaged in an activity protected by Title VII; (2) an adverse
action occurred; and (3) a causal link existed between the protected activity and the adverse action.
Zamora v. City Of Houston, 798 F.3d 326, 331 (5th Cir. 2015).
In Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013), the Supreme Court
held that a Title VII retaliation claim requires the plaintiff to show that the protected activity was
a but-for cause of the employer’s adverse action. There is some disagreement among the circuits
as to whether this requires a plaintiff to show but-for causation as part of her prima facie case of
retaliation, or to show but-for causation only at the third step of the McDonnell-Douglas framework
to rebut the proffered legitimate nonretaliatory reason for the adverse employment action. Smith v.
Bd. of Supervisors of S. Univ., 656 F. App’x 30, 33 n.4 (5th Cir. 2016) (citing Young v. City of Phila.
Police Dep’t, 651 F. App’x. 90, 97 & n.12 (3d Cir. June 3, 2016) (“Applying the ‘but-for’ standard
at the prima facie stage would effectively eliminate the need to use the McDonnell-Douglas burden
shifting framework because plaintiffs who can prove ‘but-for’ causation at the prima facie stage
would essentially ‘be able to satisfy their ultimate burden of persuasion without proceeding through
the pretext analysis.’” (citations omitted)); Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250–51
(4th Cir. 2015) (noting circuit split as to whether Nassar applies to the causation prong of the prima
facie case of retaliation)). The Fifth Circuit has twice declined to decide which way to resolve this
circuit split. Id.; Hernandez v. Metro. Transit Auth. of Harris Cty., 673 F. App’x 414, 419 n.6 (5th
Cir. 2016). This court need not do so because Sarwal’s retaliation claim fails whether she is
required to show but-for causation at the prima facie stage or at step three of the McDonnellDouglas framework. See Smith, 656 F. App’x at 33 n.4 (even assuming the plaintiff was not
required to show but-for causation until the third step of the McDonnell-Douglas framework—the
“most favorable” standard to the plaintiff—she could not meet her burden); see also
Montgomery-Smith v. Louisiana Dep’t of Health & Hosps., No. CV 15-6369, 2017 WL 2256801,
at *5 (E.D. La. May 22, 2017).
Sarwal’s retaliation claims fail for the same lack of evidence as her discrimination claims.
Sarwal relies on the same alleged adverse actions as the basis for her retaliation claims. Even
assuming that these were adverse employment actions, the record evidence does not support the
required causal connection between the actions and her protected activity. And after the VA
provided legitimate nondiscriminatory reasons for each employment action, Sarwal did not point
to record evidence showing that those reasons were a pretext for discrimination.
The VA’s summary judgment motion on Sarwal’s retaliation claims is granted. (Docket
Entry No. 26).
Hostile Work Environment
The Legal Standard
To prevail on a hostile work environment claim under Title VII, a plaintiff must prove that
she: (1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the
harassment was based on the protected factor; (4) the harassment affected a term, condition, or
privilege of employment; (5) the employer knew or should have known of the harassment and failed
to take prompt remedial action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.
A workplace environment is hostile when it is “permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment.” Alaniz v. Zamora–Quezada, 591 F.3d 761, 771 (5th Cir. 2009). To determine
whether conduct is severe or pervasive, courts look to the totality of the circumstances. Stewart v.
Miss. Transp. Comm’n, 586 F.3d 321, 330 (5th Cir. 2009). Relevant factors include “the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). 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.” Hernandez, 670
F.3d at 651 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Discourtesy, rudeness, “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Faragher, 524 U.S. at 788 (internal citations and quotations omitted). A hostile
work environment is one in which the abuse is continuous, not simply episodic. Id. at 787 n.1. A
bare allegation of harassment, or one unrelated to membership in any protected class cannot form
the basis of a Title VII claim. Carr v. Sanderson Farms, Inc., 665 F. App’x 335, 339 (5th Cir.
Sarwal did not respond to the summary judgment motion and neither submitted nor pointed
to evidence of the underlying conduct she alleges, nor shown its relationship to her protected status.
Mitchell v. Wackenhut Corr., 224 F.3d 765 (5th Cir. 2000) (“The nonmovant cannot satisfy his
summary judgment burden with conclusional allegations, unsubstantiated assertions, or only a
scintilla of evidence.”). Even if this court were to accept as true all of Sarwal’s allegations, which
it is not required to do at the summary judgment stage, she has not made a prima facie showing of
a hostile work environment.
Sarwal alleged that Linda Harper, a supervisor, “waived her hands back and forth in a
threatening manner” and told Sarwal to “get out of her face.” (Docket Entry No. 1 at ¶ 13). Harper
also allegedly threatened to charge Sarwal as being absent without leave despite approval from
another supervisor to leave the office for a medical emergency. (Id. at ¶ 15). A different
supervisor, Dr. Nicholas Masozera, allegedly threatened Sarwal with written counseling when she
“reported fraudulent activity,” of an unspecified nature. (Id. at ¶ 19). Sarwal alleged, again without
specificity, that two other supervisors, Ila Flannigan and Nytasha Wolford, “made racist remarks”
and “threatened to physically assault” Sarwal. (Id. at ¶ 22). Another new supervisor, Curtis
Bergeron, allegedly “excessively monitor[ed]” Sarwal’s absences from her desk, threatened to
charge her with being absent without leave when she left a meeting to go to the restroom, and told
her that “he did not fear anything.” (Id. at ¶¶ 25–27).
Sarwal also alleged that one of her supervisors, Wolford, pointed a sharp pencil close to
Sarwal’s neck and threatened to poke the pencil into her neck so that she would “bleed to death.”
(Id. at ¶ 22). The VA has presented competent record evidence showing that Sarwal complained of
this incident and filed a police report. An internal factfinding investigation found no evidence of
any verbal or physical threats and concluded that Sarwal had fabricated the incident. (Docket Entry
No. 25, Ex. 1 at 1054–55, 1057). Sarwal was charged with “conduct unbecoming a federal
employee” and suspended for three days for her lies, for wasting facility resource, and for potentially
harming Wolford. (Id.). Sarwal has neither identified nor submitted record evidence creating a
factual dispute or supporting an inference of a hostile work environment.
Nor has Sarwal alleged or pointed to record evidence showing that these alleged actions were
based on her race, gender, religion, color, national origin, or age. A wide range of behaviors can
make a workplace uncivil, but Sarwal must point to record evidence showing that they were based
on a protected factor. See Carr, 665 F. App’x at 339 (a bare allegation of harassment, unrelated to
membership in any protected class, cannot form the basis of a hostile work environment claim);
Hernandez, 670 F.3d at 652.
Only one allegation is seemingly tied to Sarwal’s Indian heritage. Sarwal alleges that she
was required to attend a continuing education course entitled “Communicating Successfully in the
American Workplace.” (Docket Entry No. 1at ¶ 32). Sarwal alleges that her supervisor, Bergeron,
“insinuat[ed]” that her “accent was not American,” leading her to believe this is why she was
required to take this course. (Id.). The VA has presented competent record evidence that Bergeron
gave Sarwal this assignment because he believed that she needed to improve in communicating as
a team member and to achieve better workplace harmony. (Docket Entry No. 25, Ex. 1at 1020–21).
Bergeron testified that Sarwal was disruptive in her communications to other employees, was
condescending to supervisory staff, and “issu[ed] directives and actions on how to do things” that
were outside her job duties. (Id. at 1020). Sarwal would also open doors and walk in while patients
were with physicians. (Id.). Bergeron spoke to Sarwal before assigning her to take the course about
“being more tactful, courteous and asking instead of demanding” in talking to staff. (Id.). Bergeron
“look[ed] for a way that [supervisors] could turn this all around and discover a new way to
communicate with staff.” (Id.). Other staff members besides Sarwal had to take the class. (Id.).
The competent summary judgment evidence refutes Sarwal’s allegations that she was singled out
to take the course because of her race, national origin, or other protected trait. The competent record
evidence shows that she, along with others, was assigned the course because of problems
communicating in the workplace. Sarwal’s subjective belief that she was discriminated against does
not defeat summary judgment. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.
2000) (refusing to rely on a plaintiff’s subjective belief of discriminatory intent).
In addition, except for the alleged threat to stab her in the neck—which the uncontroverted
summary judgment evidence shows was proven to be a fabrication—the threats Sarwal alleges do
not rise to the level courts have found sufficient to show that the conduct affected a term, condition,
or privilege of employment to overcome summary judgment. See Baker v. FedEx Ground Package
Sys., Inc., 278 F. App’x. 322, 329 (5th Cir. 2008) (supervisor’s comments to African–American
employee that “she did not want to work with people like” the employee and that “whites rule” were
not sufficiently severe to survive summary judgment on a race-based hostile work environment
claim); Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007) (a supervisor’s
infrequent and isolated comments to the plaintiff about “ghetto children” and other racially
insensitive remarks did not create a factual dispute as to whether there was severe or pervasive
harassment); Septimus v. Univ. of Houston, 399 F.3d 601, 612 (5th Cir. 2005) (a supervisor’s one
two-hour “harangue” and use of a mocking tone on one occasion, and another supervisor’s comment
comparing the plaintiff to a “needy old girlfriend,” did not amount to a severe or pervasive working
environment); Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003) (occasional
racial comments were insufficient for a hostile work environment claim). The threat alleged, proven
to be false by a factfinding investigation, is by itself insufficient to support an inference of a racebased hostile work environment.
The VA’s summary judgment motion on the hostile work environment claim is granted.
(Docket Entry No. 26).
The VA’s summary judgment motion and its motion to dismiss are granted. (Docket Entry
Nos. 26, 27). This case is dismissed by separate order.
SIGNED on July 14, 2017, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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