Tejada v. The Travis Association for the Blind

Filing 36

ORDER DENYING Plaintiff's Objections to Magistrate Judge's Report and Recommendation, GRANTING 16 Motion for Summary Judgment. Signed by Judge David A. Ezra. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

MARIA TEJADA,

)
)
Plaintiff,
)
)
vs.
)
)
THE TRAVIS ASSOCIATION FOR )
THE BLIND,
)
)
Defendant.
)
________________________________ )

CV. NO. 1:12-CV-997-DAE

ORDER: (1) DENYING PLAINTIFF’S OBJECTIONS TO MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION; (2) GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On July 24, 2014, the Court heard oral argument on Objections to the
Magistrate Judge’s Report and Recommendation to grant Defendant Travis
Association for the Blind’s Motion for Summary Judgment filed by Plaintiff Maria
Tejada (“Plaintiff” or “Tejada”). (Dkt. # 30.) Robert Notzon, Esq., represented
Plaintiff at the hearing; Shafeeqa Watkins Giarratani, Esq., represented Defendant
Travis Association for the Blind (“Defendant” or “TAB”). For the reasons that
follow, the Court DENIES Plaintiff’s Objections to the Magistrate Judge’s Report
and Recommendation and GRANTS Defendant’s Motion for Summary Judgment.

1

BACKGROUND
Plaintiff Maria Tejada is legally blind and was employed by The
Travis Association for the Blind, a non-profit entity that provides employment,
training, and education to blind and visually-impaired individuals. (“Mayfield
Aff.,” Dkt. # 16, Ex. A.)
Tejada was employed at TAB from December 2006 until June 2,
2011, when she claims she was constructively terminated. (“Tejada Dep.,” Dkt.
# 16, Ex. C, 86–87, Mar. 19, 2013.) Tejada was originally hired to sew buckles on
rigger belts for United States Army uniforms in the Belts Department. (Id.) Her
original supervisor was Sylvia Gonzales. (Id.) Tejada then moved to the Binders
Department, where her supervisor was Sal Guzman. (Id. at 87–88.) In September
of 2007, Guzman, who is also blind, made sexually inappropriate comments to
Tejada. 1 (Mayfield Aff.; Tejada Dep. 137–39.) TAB investigated Tejada’s
complaint and terminated Guzman. (Tejada Dep. 140–41; Dkt. # 16, Ex. B-2.)
After Guzman’s termination, Tejada was assigned Laura Casias as her supervisor
in the Binders Department. (Tejada Dep. 88.) Tejada was later assigned to the
Trouser Belt Department under the supervision of Irene Pineda. (Id. at 89–90.)
She later moved to the Chin Straps Department under the supervision of Dolores
1

Guzman’s comments referenced smoking marijuana and having sex with himself
and two other male employees standing nearby, Donald James and Lionel DeLeon.
(“Tejada Decl.,” Dkt. # 19, Ex. 3 ¶ 3; Mayfield Aff. ¶ 4.)
2

Hernandez and then to the Soap Department also under the supervision of Dolores
Hernandez. (Id.) Corrine Randall was the Production Manager and supervised
various departments where Tejada worked. Randall’s supervisor was TAB’s
Executive Director, Jerry Mayfield. (Tejada Decl. ¶ 2.)
On November 17, 2007, Tejada was moved from the Soap
Department back to the Binders Department because some equipment was down.
She became upset and walked off the job. (Dkt. # 16, Ex. B-1 at 4.) Though not
subjected to any formal discipline, Tejada was counseled that if she walked off the
job again she could be suspended for three days. (Id.)
In May of 2009, Tejada and co-worker Clara Benavides were
involved in a confrontation in which Benavides is alleged to have threatened
Tejada, telling her to “clock out now and step outside.” (Id. at 2.) A Binders
Department supervisor approached a Senior Production Manager, Tim Gates about
the incident. (Id.) Gates “immediately spoke with Maria [Tejada] to begin an
investigation to understand from her perspective what had occurred.” (Id.)
According to Tejada’s account of the incident, Benavides felt that Tejada was
talking about her and became upset, telling Tejada to “clock out now and step
outside,” threatening to beat Tejada up if she sees her around town, and pointing
out that Tejada was the reason that Sal Guzman was no longer employed at TAB.
(Id.) Gates called Benavides into his office. (Id.) Benavides first denied making
3

such statements, but later admitted them and understood that messages like that
create a threatening presence in the workplace. (Id.) Gates warned Benavides that
future threats could subject her to termination. (Id.)
On April 28, 2010, one of Tejada’s coworkers, George Adams,
complained that Tejada was harassing him by talking about him pejoratively to
other employees. (Tejada Decl. ¶ 12; Dkt. # 16, Ex. B-1 at 41.) On April 30,
2010, Corrine Randall warned Tejada that if she continued to make negative
comments about coworkers to other coworkers, that she would be suspended for
three days. (Dkt. # 16, Ex. B-1 at 40.) Tejada informed Randall that she was
voluntarily taking the three-day suspension. (Id.) Randall explained that she was
not suspending Tejada, but Tejada clocked out and left anyway. (Id.) Tejada
acknowledged that she knew she was not being suspended at that time. (Tejada
Dep. 127.) In response, on May 5, 2010, Randall explained to Tejada that she
could not “suspend herself,” and suspended Tejada for three days without pay for
walking out and for missing work from April 30, 2010, to May 4, 2010. (Dkt.
# 16, Ex. B-1 at 37.)
On August 19, 2010, Binders Department employee Clara Benavides
complained that Tejada was making comments about Mexican immigrants taking
jobs away from people from the United States, making national origin comments
about Benavides and her husband, laughing in Benavides’ face, mimicking
4

Benavides, and telling other employees that Benavides was “no one.” (Id. at 35.)
Jerry Mayfield spoke with Tejada about this complaint, gave her a verbal warning,
and gave her coaching about treating others with respect. (“Mayfield Dep.,” Dkt.
# 16, Ex. E, 94–96, 100, Dec. 2, 2013; Dkt. # 16, Ex. B-1 at 33.) During the
meeting, Mayfield referenced her complaints against Guzman while counseling
Tejada on not making racially inappropriate remarks to Benavides by noting that
just as Guzman was terminated for harassing her, if she was engaging in unlawful
harassment, her employment could be ended too. (Mayfield Dep. 99:10–100:3.)
On the same date, Tejada complained to her supervisor Irene Pinieda, that
Benavides had called Tejada a name while walking by her. (Dkt. # 16, Ex. B-1 at
36.)
On October 12, 2010, Tejada filed a discrimination charge with the
EEOC alleging that she was being retaliated against for her 2007 complaint against
Guzman. (Dkt. # 19, Ex. 19.) In her charge she stated that “On or about August
23, 2010, I was told that management had received complaints from my coworkers
that I was harassing them. A management official told me what happened to Sal
Guzman could happen to me. I believe my employer is retaliating against
me . . . .” (Id.)
On November 17, 2010, Quality Control employee Sharlene Ervin
reported that she received an anonymous call stating that Tejada was criticizing
5

Quality Control employees by saying that they “get paid a lot of money just to
stand around and do nothing.” (Dkt. # 16, Ex. B-1 at 32.) Because the complaint
was anonymous, TAB took no action against Tejada. (“Penz Dep.,” Dkt. # 19, Ex.
8, 92:4–8, Dec. 10, 2013.)
In mid-May 2011, Tejada’s co-worker, Ricardo Piedra, was called to
Mayfield’s office over the loudspeaker. (Tejada Decl. ¶ 18.) Tejada alleges that
after this, Piedra began avoiding her like the other employees did. (Id.) Also in
mid-May, employee Jose “Tony” Garza complained that Tejada harassed him and
other employees by cursing at them verbally and in sign language, laughing at
employees, and giving them dirty looks. (Dkt. # 16, Ex. B-1 at 31.) TAB took no
action against Tejada. (Id.) On May 20, 2011, Tejada was given a written warning
and placed on probation for sixty days for attendance issues. (Id. at 30.) On June
1, 2011, TAB employee Andy Mireles reported that Tejada angrily pushed him out
of the way when he accidentally tapped her with his cane. (Id. at 29.) On June 2,
2011, Tejada resigned from TAB without giving notice. (Tejada Dep. 70–71.)
Nine months later on March 12, 2012, Tejada filed a Charge of
Discrimination with the EEOC alleging she was harassed and retaliated against by
Mayfield and Randall after filing charges and complaints against TAB. (Dkt. # 19,
Ex. 4.) She alleged that she had been constructively discharged on June 3, 2011.
(Id. at 3.) The EEOC issued a right to sue letter on July 31, 2012.
6

On October 29, 2012, Tejada filed this lawsuit alleging retaliation, a
retaliatory hostile work environment, and constructive discharge, all in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2. (Dkt.
# 1 ¶ 8.) Tejada has since withdrawn the retaliation claim, (see Dkt. # 19 at 1 n.1),
and her remaining claims are therefore that TAB created or permitted a retaliatory
hostile work environment and that she was constructively discharged.
On January 13, 2014, TAB filed a Motion for Summary Judgment.
(Dkt # 16.) On January 27, 2014, Tejada filed a Response. (Dkt. # 19.) The Court
referred TAB’s Motion to Magistrate Judge Andrew Austin. (Dkt. # 22.) On June
25, 2014, the Magistrate Judge issued a Report and Recommendation that TAB’s
Motion for Summary Judgment be granted. (“R&R,” Dkt. # 29.) Tejada timely
filed Objections to the Report. (“Obj.,” Dkt. # 30.) On July 16, 2014, TAB timely
filed a Response to Tejada’s Objections. (“Obj. Resp.,” Dkt. # 33.)
LEGAL STANDARDS
I.

Review of a Magistrate Judge’s Memorandum and Recommendation
Any party may contest the Magistrate Judge’s findings by filing

written objections within fourteen days of being served with a copy of the Report
and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections must specifically
identify those findings or recommendations that the party wishes to have the
district court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). A district court
7

need not consider “[f]rivolous, conclusive, or general objections.” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright,
677 F.2d 404, 410 n.8 (5th Cir. 1982), overruled on other grounds by Douglass v.
United States Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).
The Court must conduct a de novo review of any of the Magistrate
Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). On the other hand, findings to which no specific objections
are made do not require de novo review; the Court need only determine whether
the Memorandum and Recommendation is clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
II.

Motion for Summary Judgment
Summary judgment is granted under Federal Rule of Civil Procedure

56 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.” Fed. R. Civ. P. 56(a);
see also Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012).
“In an employment discrimination case, we focus on whether a genuine issue exists
as to whether the defendant intentionally discriminated against the plaintiff.”
Grimes v. Tex. Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 139
8

(5th Cir. 1996).
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden, the non-moving party
must come forward with specific facts that establish the existence of a genuine
issue for trial. ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699
F.3d 832, 839 (5th Cir. 2012). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289
(1968)).
In deciding whether a fact issue has been created, “the court must
draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation are not sufficient to
defeat a motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539,
541 (5th Cir. 2003); Douglass v. United Servs. Automobile Assoc., 79 F.3d 1415,
1429 (5th Cir. 1996) (en banc) (“[C]onclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”).
9

DISCUSSION
I.

Retaliatory Hostile Work Environment Claim
Although the Fifth Circuit had not yet determined whether a

retaliatory hostile work environment cause of action exists, the Magistrate Judge
utilized cases from other circuits to graft the requisite elements to state such a
claim. (R&R at 5–6.) He held that Tejada needed to show the following five
elements to establish a prima facie case: (1) Tejada engaged in a protected activity,
(2) she was subjected to unwelcome harassment, (3) there was a causal connection
between the harassment and the protected activity, (4) the harassment affected a
term, condition, or privilege of employment, (5) the employer knew or should have
known about the harassment in question and failed to take prompt remedial action.
(Id. at 6.) He then noted that if Tejada established a prima facie case, the burden
would shift to TAB to proffer a legitimate, nonretaliatory reason for its actions.
Assuming TAB had set forth such a reason, the burden would shift back to Tejada
to show that TAB’s reasons were mere pretext for retaliation. (Id.)
The Magistrate Judge concluded that Tejada failed to establish a
causal connection between the alleged harassment and her protected activity (id. at
8–10), the alleged harassment was not “materially adverse” so as to affect a
condition of her employment (id. at 10–11), and there was no evidence TAB knew
of any alleged co-worker retaliatory harassment (id. at 11). Tejada now objects to
10

all three findings.
A.

Causal Connection
The Magistrate Judge first noted:

Most courts consider three factors to help determine whether a causal
link has been demonstrated at the prima facie case: (1) the plaintiff’s
past disciplinary record, (2) whether the employer followed its typical
policies and procedures in taking action against the employee, and
(3) the temporal relationship between the employee’s conduct and the
adverse act.
(R&R at 8.) Here, he found that Tejada’s employment record revealed a history of
bickering before and after she made her complaint about Guzman and before and
after she made her 2010 charge of retaliation, noting that “the evidence show[ed]
that Tejada and Benavides complained about each other constantly.” (Id. at 9.) He
also found that there was “no evidence that TAB departed from its typical policies
and procedures in dealing with Tejada.” (Id.) In fact, the most severe disciplinary
action Tejada identified was a 60-day probation—which was the result of Tejada’s
numerous attendance issues.2 (Id.) With regard to the third factor, he concluded
that the temporal link was not satisfied because “the closest act of retaliation that
Tejada alleges took place [was] in May 2009, nearly two years after her complaint
about Guzman and before she had filed her 2010 charge of retaliation.” (Id.)
Tejada objects to the Magistrate Judge’s finding and asserts that TAB
2

There is no evidence that TAB treated Tejada differently than other employees in
this regard.
11

CEO Jerry Mayfield “bridged the temporal gap in his meetings with Tejada in
August 2010 and May 2011.” (Obj. at 4.) She relies exclusively on her
Declaration, wherein she described the August 2010 conversation with Mayfield
where he asked her how long it had been since Guzman had been fired and then he
answered his own question with “three or three and a half years.” (Id. (citing Dkt.
# 19, Ex. 3 ¶¶ 14, 19)) She posits that her “inference . . . that she was being
threatened with termination for having participated in protected activity” is entitled
to deference in her favor as the non-moving party. (Id. at 6.)
However, Mayfield’s one, isolated comment about Guzman’s
termination is insufficient to establish a causal connection between her protected
activity and the hostile work environment. Rather, it is abundantly clear that any
“harassment” that did occur was not predicated on Tejada’s previous complaint
about Guzman in September 2007, nor her EEOC Complaint in August 2010.
Although Tejada complains that various supervisors, including Mayfield,
“ignored” her and her coworkers were mean to her, she fails to identify any
evidence that either her supervisors or her coworkers were motivated by her
protected activity. In fact, Tejada’s own Declaration further explains Mayfield’s
aforementioned comment: “Mayfield then went on to tell me that I had to stop
harassing other employees and that if I didn’t that I would be fired just like “Sal”
[Guzman].” (Dkt. # 19, Ex. 3 ¶ 19.) Mayfield’s knowledge about Tejada’s earlier
12

complaint and use of it as an example to attempt to correct Tejada’s disruptive
work behavior does not establish causal connection between the alleged
harassment and her protected activity. See Ray v. Tandem Computers, 63 F.3d
429, 436 (5th Cir. 1995) (holding that a single vague statement susceptible to
several innocuous interpretations is insufficient to avoid summary judgment).
Alternatively, Tejada argues that “Mayfield’s threat to terminate
Tejada and reference to the termination of Guzman that had resulted from Tejada’s
protected activity of reporting Guzman’s sexual harassment demonstrates that TAB
was acutely aware of how much time had passed since Tejada’s complaint and that
TAB was also likely aware of the harassment and retaliation she was suffering as a
result.” (Obj. at 5.) She appears to assert that Mayfield was lying-in-wait for
nearly three years for a so-called “causal connection statute of limitations” to pass
so that he and the rest of TAB could continue retaliating against Tejada without
fear of litigation. Not only is this argument far-fetched, it borders on fanciful.
Also in support of her objection, Tejada argues that a causal
connection did exist because Tejada’s manager over operations admitted that she
was aware that Tejada had complained about Benavides retaliating against her
since Guzman’s termination. (Obj. at 5 (citing “Randall Dep.,” Dkt # 19, Ex. 3,
67:5–68:20, 84:14–85:14, Dec. 10, 2013; Dkt. # 16, Ex. B1, B2).) However, the
cited deposition testimony does not indicate that Tejada’s manager knew about
13

Benavides retaliating against Tejada for complaining about Guzman. Instead, it
only describes one of the many altercations between Benavides and Tejada.
Moreover, the exhibits cited do not substantiate that Benavides’ alleged harassment
against Tejada was motivated by Tejada’s complaint against Guzman. The only
reference to Guzman in one of the cited exhibits came from Tim Gates, Senior
Production manner, where he recounts a conversation with Tejada about a version
of an altercation with her and Benavides: “Maria also stated that Clara also
threatened to beat her up if she sees her around town, and continued to point out
that she (Maria) was the reason Sal Guzman was no longer employed here.” (Dkt.
# 16, B-1 at 2.) However, Gates’ statement only memorializes a version of events
according to Tejada. Of course, “[s]elf-serving allegations are not the type of
significant probative evidence required to defeat summary judgment,” Kariuki v.
Tarango, 709 F.3d 495, 505 (5th Cir. 2013) (quoting United States v. Lawrence,
276 F.3d 193, 197 (5th Cir. 2001)). Therefore, Gates’ statement is insufficient to
support conclusion that Benavides harassed Tejada because of her complaint
against Guzman.
Tejada’s cited provisions do not establish that there was a causal
connection between any alleged harassment. The Magistrate Judge correctly
observed that there is no evidence to suggest that any harassment that did occur
was motivated by Tejada’s previous complaint about Guzman or her filing an
14

EEOC complaint. Instead, the only thing Tejada offers to show a causal
connection is her subjective belief that her coworkers and supervisors were
retaliating against her for her complaint against Guzman that took place over two
years earlier. As the Magistrate Judge properly noted, “[a]t the summary judgment
stage, subjective belief is insufficient to create a genuine factual issue for trial.”
(R&R at 10 (citing Kennerson v. Guidry, 135 F. App’x 639, 641 (5th Cir. 2005).)
B.

“Materially Adverse” Harassment Affecting Condition of
Employment
The Magistrate Judge next found that “even if Tejada were able to

fulfill the causation prong of her prima facie case, she has failed to show that any
of the alleged harassment she suffered was ‘materially adverse.’” (R&R at 10.)
He concluded that “a reasonable employee would not have been dissuaded from
making a further charge by the TAB’s actions as described by Tejada.” (Id.)
Tejada objects to the Magistrate Judge’s determination that the
harassment she suffered was not materially adverse. (Obj. at 8.) She asserts that
the Report and Recommendation “ignores competent summary judgment evidence
that is probative of the material harm Tejada suffered to include statements from
disinterested third party witnesses: Portales and Espinosa.” (Id.)
“To constitute prohibited retaliation, an employment action must be
‘materially adverse,’ one that would ‘dissuade[ ] a reasonable worker from making
15

or supporting a charge of discrimination.’” Stewart v. Miss. Transp. Com’n, 586
F.3d 321, 331 (5th Cir. 2009) (quoting Burlington Northern and Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006)). The purpose of this objective standard is “to
separate significant from trivial harms” and “filter out complaints attacking the
ordinary tribulations of the workplace, such as the sporadic use of abusive
language, gender-related jokes, and occasional teasing.” Id.
Additionally, in determining whether an adverse employment action
occurred, the focus is on the final decision maker. Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 657 (5th Cir. 2012), cert. denied, 133 S. Ct. 136 (2012) (citing
Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002)). “The actions of ordinary
employees are not imputable to their employer unless they are conducted ‘in
furtherance of the employer’s business.’” Id. (quoting Long v. Eastfield Coll., 88
F.3d 300, 306 (5th Cir. 1996)). “There must, however, be ‘a direct relationship
between the allegedly discriminatory conduct and the employer’s business.’” Id.
(quoting Long, 88 F.3d at 306).
The majority of the incidents cited by Portales and Espinosa relate to
alleged harassment by Tejada’s coworkers, namely Benavides. 3 However, during

3

Some of the instances regarding Benavides clearly do not involve any alleged
retaliation. For example, Espinosa discusses at length a particular alternation
between Benavides and Tejada where Benavides allegedly placed a metal binder
clip into a machine that Tejada was operating to “get” Tejada. (“Espinosa Aff.,”
16

these altercations, Benavides was Tejada’s coworker and none of the altercations
were in furtherance of TAB’s business. For example, Portales averred that he
heard Benavides call Tejada “Bruja,” “cow,” and make crude references to
Tejada’s breasts. (Portales Aff. at 2.) Portales also claimed that on another
occasion, Benavides had pulled a switchblade on Tejada and threatened to stab her.
Despite the troubling nature of these accusations, none of them relate in any way to
TAB’s business. See Long, 88 F.3d at 306 (“Employers are liable under Title VII,
in accordance with common law agency principles, for the acts of employees
committed in the furtherance of the employer’s business.”) As such, they are not
“employer actions” within the context of Title VII’s anti-retaliation provision. See
id. (holding that the Fifth Circuit “do[es] not hold employers liable under Title VII
for every discriminatory act committed by employees in the workplace”).
With regard to the instances where Portales and Espinosa do talk
about Tejada’s supervisors, namely Corrine Randall and Irene Pineda, they do not
demonstrate that the supervisors’ actions were materially adverse. According to
Espinosa, he “would witness both of these supervisors coming into the department
and instructing Ms. Tejada not to talk to other employees and placing Ms. Tejada
in a location where she was required to work away or at a distance set apart from

Dkt. # 15 at 2.) However, Benavides’ actions could not have been retaliatory
because Guzman was still employed at TAB when this occurred.
17

everyone else.” (Espinosa Aff. at 1.) He adds that Pineda would “speak to Ms.
Tejada harshly” and “snip at Ms. Tejada often and about small stuff.” (Id.)
Portales contended that supervisors would pressure him to stay away from Tejada.
(“Portales Aff.,” Dkt. # 19, Ex. 14 at 1–2.)
Speaking harshly, sniping about small infractions, and informing other
employees to steer clear of Tejada are not actionable employer actions. See Aryain
v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484–85 (5th Cir. 2008) (being “treated
poorly” by supervisors, denied requested break times, and assigned to physically
“tough” work are collectively no more than “petty slights” that cannot form the
basis of a retaliation claim); Earle v. Aramark Corp., 247 F. App’x 519, 524 (5th
Cir. 2007 (holding that disciplinary write-ups and alleged retaliatory micromanaging of an employee’s performance did not constitute materially adverse
employment actions); see also Grice v. FMC Techs. Inc., 216 F. App’x 401, 404,
407 (5th Cir. 2007) (holding that an employee’s allegation that he was watched
more closely than other employees was not the sort of action that would dissuade a
reasonable employee from reporting discrimination); DeHart v. Baker Hughes
Oilfield Operations, 214 F. App’x 437, 442 (5th Cir. 2007) (finding that alleged
retaliatory written warnings would not have dissuaded a reasonable worker from
making or supporting a charge of discrimination).
The supervisors’ ostracism of Tejada is more troublesome, but still
18

not actionable. See generally Manatt v. Bank of Am., 339 F.3d 792, 803 (9th Cir.
2003) (holding that rudeness or ostracism, standing alone, usually is not enough to
support a hostile work environment claim); Simas v. First Citizens’ Fed. Credit
Union, 170 F.3d 37, 52 n.12 (1st Cir. 1999) (noting, in related context, that “social
ostracism alone is rarely actionable”). In Stewart v. Mississippi Transportation
Com’n, an employee claimed retaliation when, after reporting sexual harassment,
she was transferred and her work load increased, personal items were taken from
her desk, other employees were told not to fraternize with her, she was not allowed
to close her office door and the locks were changed, she was chastised by her
superiors and she was not invited to functions with the other secretaries. 586 F.3d
at 330. The court held that as a matter of law, the taking of the items from her
desk, changing of the locks on her door, and the chastisement and ostracism did
not rise to the level of material adversity. Id. at 331–32.
On the other hand, in Lee v. City of Corpus Christi, an employee
claimed that that there was an established weekly managers’ meeting and she was
specifically directed not to attend it and that the order for her not to attend the
meetings came after she complained about racial discrimination, 749 F. Supp. 2d
521, 540 (S.D. Tex. 2010). The Southern District of Texas found that because the
employee averred that the isolation and exclusion from the meetings caused her to
be unable to obtain information she needed to do her job, excluding her from
19

meetings she needed to attend in order to fulfill the obligations of her position was
a more severe act of retaliation than that was alleged in Stewart. Id. Therefore, the
court held that it could not say as a matter of law that the exclusion and isolation
were not materially adverse; instead, “fact issues exist regarding whether the
isolation and exclusion were such that they could dissuade a reasonable worker
from making or supporting a charge of discrimination.” Id.
Here, the purported actions described by Portales and Espinosa is
more like the isolation in Stewart rather than in Lee. There is no evidence in the
record to suggest that ostracizing Tejada made fulfilling her duties at TAB more
difficult. Rather, these incidents were solely the product of “petty slights, minor
annoyances, and simple lack of good manners,” which the Supreme Court has
recognized as not actionable. Aryain, 534 F.3d at 485 (quoting White, 548 U.S. at
68).
C.

Employer on Notice of Co-Worker Retaliatory Harassment and Failed
to Take Corrective Action
The Magistrate Judge concluded that Tejada failed to proffer adequate

summary judgment evidence that her supervisors either were put on notice or
should have known that the alleged harassment was in retaliation for Tejada having
complained about Guzman in 2007 or having filed a claim of retaliation in 2010.
(R&R at 11.) At most, he noted, “the evidence supports TAB being aware of a
20

number of personality conflicts between Tejada and other employees, something
which Title VII does not protect against.” (Id.)
Tejada objects to the Magistrate Judge’s determination, arguing that
TAB was aware or should have been aware that Benavides was in an intimate
relationship with Guzman and that Benavides was allegedly retaliating against
Tejada for Guzman’s termination. (Obj. at 7.) She argues that because TAB knew
of Benavides retaliating against Tejada, it was TAB’s responsibility to take prompt
remedial action. (Id. at 4.)
However, all of the evidence Tejada cites for these assertions fails to
create a genuine issue of material fact that TAB knew or should have known that
Benavides was retaliating against Tejada. First, the evidence does not show that
Benavides was Guzman’s “paramour” as Tejada repeatedly describes throughout
her briefing. (See Obj. at 6, 7, 9.) At best, the evidence shows that Guzman may
have kissed Benavides on the cheek prior to September 2007. (See Dkt. # 16, B2.) Second, although Tejada cites Docket No. 16, Exhibit B-1 to show that
“Tejada’s first complaint of harassment by Benavides would have immediately put
TAB on notice of the retaliatory conduct,” (Obj. at 4), the evidence in Exhibit B-1
actually supports the opposite conclusion. Not only did TAB have no real
colorable reason to think that Guzman and Benavides engaged in a relationship
prior to September 2007, but Tejada’s complaint against Benavides came almost
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two years later on May 28, 2009. (See Dkt. # 16, Ex. B-1 at 2.) It strains credulity
to think that TAB would equate Guzman kissing Benavides on the cheek and
Benavides’ harassment of Tejada—two entirely independent events separated by
nearly two years—and conclude that Benavides was retaliating against Tejada.
Tejada alternatively purports to offer “direct evidence” that TAB
supervisors knew of Benavides’ retaliation against Tejada for reporting Guzman.
(Obj. at 4.) Tejada states, “TAB admitted to being aware that [she] was
complaining about Benavides retaliating against her for Guzman’s termination.”
(Id. (citing Randall Dep. 71:13–74:5)) But the cited portion of Randall’s
deposition does not demonstrate that TAB admitted to knowledge of such
retaliation. On the contrary, Randall only testifies that she was aware that
Benavides confronted Tejada—not that such a confrontation had anything to do
with Tejada’s complaint against Guzman.
Tejada next points to another passage in Randall’s deposition to
further argue that TAB knew that Benavides was harassing Tejada because of her
complaints against Guzman. (Obj. at 7 (citing Randall Dep. 68:17–20, 70:19–24,
71:13–74:5, 85:24–86:11, 93:10–17).) There, Randall discusses her familiarity
with the May 28, 2009 notes of Tim Gates, Senior Production Manager, wherein
he describes a conversation he had with Tejada after she and Benavides had an
altercation:
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I immediately spoke with Maria [Tejada] to begin an investigation to
understand from her perspective what had occurred. She stated that
just before the second break in the afternoon, she was talking to Andy
about her roommate. She then stated that Clara [Benavides] felt she
was talking about her and became upset and threatened at first to
report the both of them (to whom it was unclear) and then told Maria
that if she wanted to resolve this, “let’s clock out now and step
outside” to settle their differences. Maria also stated that Clara also
threated to beat her up if she sees her around town, and continued to
point out that she (Maria) was the reason that Sal Guzman was no
longer employed here. Maria also said that Clara claimed that it is not
her fault Maria doesn’t understand how to perform certain tasks in the
binder department. Maria said these differences between her and
Clara go back a couple of years.
(See Dkt. # 16, Ex. B-1 at 2 (emphasis added))
However, yet again, neither Randall’s deposition testimony, nor
Gates’ notes demonstrate that TAB was on notice of Benavides’ alleged retaliation
and failed to take remedial action. First, this entire letter is replete with hearsay.
In effect, Tejada hopes to memorialize her hearsay statements regarding what
Benavides said into a report by Gates and then use such statements to affirmatively
prove that Benavides retaliated against her. Second, even assuming that Benavides
was retaliating against Tejada, Gates’ report indicates that he took corrective
action:
I then called Clara into the office. . . . I approached Clara about these
accusations made by 2 other co-workers, which she at first denied, but
later admitted that she did ask Maria to clock out and step outside. At
first, she did not feel that this comment was a problem, but later
understood that a message like this creates a threatening presence in
the work place. She said that she would not threaten employees
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anymore. She also stated that a few weeks ago Maria had called her
the “B**ch” word, and that she was observed Maria moving a table in
the department to intentionally trip up Lionel DeLeon after Maria
overheard a conversation that the table needed to be moved to a
certain location to prevent Lionel from tripping over it. Clara also
states that she feels Maria is jealous of her because of what she is
paid. I stated to Clara that we need to maintain a professional
workplace and that we cannot threaten other employees regardless of
the situation, and that she should have immediately reported any
differences to Ed, Corrine, myself, or Jerry before taking actions into
her own hands.
(Id. (emphasis added)) Tejada ignores the steps Gates took to initiate corrective
action with Benavides and instead argues that because Randall did not take
corrective action, “TAB took no remedial action.” (Obj. at 4.) However, Randall
explained that Gates, a supervisor himself, “was handling this one” and she “didn’t
see any reason to jump in at that time.” (Randall Dep. 69:6–8.) Tejada has not
shown an issue of material fact that TAB knew or should have known about
Benavides retaliation and failed to take corrective action.
In sum, the Magistrate Judge properly concluded that Tejada fails to
state a prima facie case for hostile work environment retaliation because she
cannot show a causal connection between any harassment and her complaints
against Guzman, that the harassment was “materially adverse,” and that TAB knew
of the harassment, but failed to take remedial steps.

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II.

Constructive Discharge Claim
A.

Time Barred
The Magistrate Judge found that Tejada’s constructive-discharge

claim was time barred because the majority of the actions she complained about
took place more than 300 days before she filed her EEOC charge on March 12,
2012 in violation of 42 U.S.C. § 2000e-5(e). (R&R at 13–15 (relying on 42 U.S.C.
§ 2000e–5(e); Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 554 (5th Cir.
1987)).) He noted that because Tejada filed the charge on March 12, 2012, any
complained-of employment actions that occurred before May 6, 2011—300 days
earlier—would be time barred. (Id. at 14.) He also noted that Tejada testified that
she felt compelled to resign because of verbal abuse, threats, name calling, and two
meetings with Mayfield at which she alleges he made veiled threats by suggesting
that what happened to Guzman could happen to her. (Id.) He found that based off
of Tejada’s own deposition testimony, the second meeting Tejada complained of
with Mayfield took place in September 2010—making her EEOC charge nearly a
year outside of the limitations period. (Id. at 14–15.)
Tejada objects to the Magistrate Judge’s finding that Tejada’s last
meeting with Mayfield occurred in August 2010. (Obj. at 10.) She posits that her
response, surreply, and evidence contain multiple references, arguments, and
inferences explaining the evidentiary basis for Tejada’s deposition inaccurately
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estimating the number of years. (Id.) Accordingly, Tejada maintains that the
second meeting occurred May 23, 2011.
However, the Magistrate Judge properly considered Tejada’s
explanation for why her deposition testimony conflicted with her later pleadings to
the Court. He found that her explanation that the dates she provided in her
deposition and in her EEOC charge were only “approximate” to be unreasonable.
(See R&R at 16 (“The claim that the dates stated in her deposition were
‘approximate’ fails to explain the difference from her Declaration testimony, as
September 2010 is not proximate to May 2011, but rather is eight months away.”).)
Because Tejada’s explanation lacked credulity, the Magistrate Judge disregarded
her Declaration averring that the second meeting occurred on May 23, 2011. The
Court agrees with the Magistrate Judge’s assessment and thereby disregards
Tejada’s Declaration. Based on Tejada’s deposition testimony alone, the meetings
with Mayfield would have taken place at the latest in September 2010—more than
300 days before filing her charge with the EEOC. Therefore, Tejada’s constructive
discharge claim is time barred.
B.

Prima Facie Case
Even though the Magistrate Judge found that Tejada’s constructive

discharge claim was time barred, he nevertheless engaged in an analysis to
determine whether she plead sufficient facts to establish a prima facie case for
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constructive discharge. (R&R at 17.) He found that all of the behavior Tejada
complained of came exclusively from coworkers and that “[t]he rude behavior of
coworkers, and even supervisors, cannot support a constructive discharge claim,
without the explicit support or approval of the employer.” (Id.) Additionally to
the extent that Tejada complained of the two meetings with Mayfield, a supervisor,
these meetings were also insufficient to support a constructive discharge claim
because even interpreting Mayfield’s reference to Guzman’s termination as a
threat, the threat was not actionable because it was based on a legitimate concern
about Tejada’s harassment of a co-employee on the basis of race. (Id. at 18.) He
concluded that “[c]onsidering the summary judgment evidence in the light most
favorable to Tejada, a reasonable employee in Tejada’s position would not have
felt compelled to resign.” (Id.)
Tejada only objects to the Magistrate Judge’s finding that “there is no
evidence that the alleged behavior of Tejada’s coworkers was in any way
motivated by her employer.” (Obj. at 11.) She argues that she had presented
“multiple pieces of evidence to show that TAB management was not only
complicit in the harassment of her but was encouraging it.” (Id. at 12.)
The Court rejects Tejada’s Objection because first, an employee fails
to state a constructive discharge claim solely because an employer was complicit in
any harassment. In the Fifth Circuit, “a constructive discharge exists only when
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the employer ‘deliberately’ makes an employee’s working conditions so intolerable
that the employee is forced to resign.” Lewis v. Waste Mgmt. of Miss., Inc., 148
F. Supp. 2d 726, 733–34 (S.D. Miss. 2001) (citing Dornhecker v. Malibu Grand
Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987)); see also Ward v. Bechtel Corp.,
102 F.3d 199, 202 (5th Cir. 1997) (emphasis added) (holding that to establish a
constructive discharge, a plaintiff “must offer evidence that the employer made the
employee’s working environment so intolerable that a reasonable employee would
feel compelled to resign” (quoting Barrow v. New Orleans S.S. Ass’n., 10 F.3d
292, 297 (5th Cir. 1994))). Accordingly, Tejada’s contentions that TAB was
“complicit” in her harassment are not actionable.
Tejada’s allegations that TAB “encouraged” her retaliatory
harassment are unsupported in the record and are without merit. She cites to
Portales’ Affidavit and a handwritten statement by Johnson, two of her coworkers
at TAB, as well as her own Declaration. (Obj. at 12 n.9.) Portales’ Affidavit
recounts a conversation he had with Mayfield where Mayfield told him, “Be
careful who you hang around with or you’re going to get in trouble.” (Portales
Aff. at 2.) Likewise, Johnson describes an encounter with Mayfield, wherein
Mayfield says in a determined tone to “stay away from trouble,” thereby implying
that Tejada is “trouble.” (Dkt. # 19, Ex. 30 at 2.) Similarly, Tejada’s Declaration
suggests that after Ricardo Pineda, one of her coworkers, had a meeting with
28

Mayfield, he stopped speaking to her. (Tejada Decl. ¶ 18.) Mayfield’s statements
equating Tejada with “trouble” fail to demonstrate that TAB “encouraged
retaliatory harassment.” In fact, none of the references to Tejada being “trouble”
have anything to do with her protected activity. Moreover, the “trouble”
references certainly fail to meet the threshold burden of a prima facie case (i.e.,
that a reasonable person would have felt compelled to resign under the same
circumstances). Again, this category of activity “fall[s] into the category of ‘petty
slights, minor annoyances, and simple lack of good manners’ that employees
regularly encounter in the workplace, and which the Supreme Court has recognized
are not actionable retaliatory conduct.” Aryain, 534 F.3d at 485 (quoting White,
548 U.S. at 68).
CONCLUSION
For the foregoing, the Court DENIES Plaintiff’s Objections to the
Magistrate Judge’s Report and Recommendation and GRANTS Defendant’s
Motion for Summary Judgment.
IT IS SO ORDERED.
DATED: Austin, Texas, August 7, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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