Escalante v. Holder Jr.
ORDER MOOTING 33 Motion to Strike ; GRANTING 21 Motion to Dismiss ; MOOTING 23 Motion to Strike Signed by Judge Kathleen Cardone. (dl1, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CLAUDIA B. ESCALANTE,
ERIC HOLDER, JR., ATTORNEY
GENERAL, U.S. DEPARTMENT OF
On this day, the Court considered Defendant’s objections to Plaintiff’s response to
Defendant’s proposed undisputed facts (“Objections”), ECF No. 31; Defendant’s motion to strike
Plaintiff’s errata sheet correcting her deposition testimony and motion to strike Plaintiff’s
declaration and three of her exhibits (collectively, “Motions to Strike”), ECF Nos. 23, 33; and
Defendant’s motion to dismiss, or in the alternative, motion for summary judgment (“Motion”),
ECF No. 21. For the reasons set forth herein, Defendant’s Objections are SUSTAINED in part,
Defendant’s Motions to Strike are DENIED as moot, and Defendant’s Motion is GRANTED.
OBJECTIONS AND MOTIONS TO STRIKE
Defendant has filed objections to Plaintiff’s response to Defendant’s proposed undisputed
facts. Defendant has also filed a motion to strike Plaintiff’s errata sheet and a motion to strike
Plaintiff’s declaration and three of her exhibits. Because it may affect the factual narrative of this
case, the Court addresses Defendant’s Objections and Motions to Strike before setting forth the
Defendant objects to nearly all of Plaintiff’s responses to Defendant’s proposed
undisputed facts. See Objections 1-40. Upon due consideration, the Court SUSTAINS in part
these objections to Plaintiff’s relevant responses. The sustained objections can be separated into
two categories: those in which Plaintiff denies proposed undisputed facts in bad faith, and those
in which Plaintiff denies proposed undisputed facts with conclusory allegations supported by no
Finding that these responses belong in the first category, the Court sustains Defendant’s
Objections and hereby strikes the following paragraphs of Plaintiff’s response: paragraphs 1-2, 9,
15, 20-22, 58, 60, 65, 71, 74-75, 82, 102, 105, 113-14, 135, 191. In these responses, Plaintiff
either denies a proposed fact that she herself admits in the same document, denies based on
grammatical mistakes, denies based on disagreement with facts other than the proposed fact, or
denies for the apparent purpose of confusing the record and attempting to mislead the Court.
With respect to these facts, Plaintiff has not demonstrated a material dispute by citing to specific,
admissible evidence in the record to dispute Defendant’s proposed fact; therefore, Plaintiff’s
facts are stricken. See Fed. R. Civ. P. 56(e)(2).
Furthermore, finding that these responses belong in the second category identified above,
the Court strikes the following paragraphs of Plaintiff’s response: paragraphs 3-4, 33, 38-40, 45,
57, 64, 72, 76, 141, 144. In these responses, Plaintiff denies Defendant’s proposed fact with only
conclusory allegations as support. Such responses do not suffice to create a genuine issue of
material fact so as to defeat summary judgment. See United States v. Lawrence, 276 F.3d 193,
197 (5th Cir. 2001) (“[S]elf-serving allegations are not the type of significant probative evidence
required to defeat summary judgment.”); Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297
(5th Cir. 1997) (“Unsupported allegations or affidavit or deposition testimony setting forth
ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for
summary judgment.”). The Court OVERRULES AS MOOT the remainder of Defendant’s
objections since they do not involve issues necessary to resolve the instant Motion.
With regard to the above-mentioned responses that fail to comport with Federal Rule of
Civil Procedure 56(e), the Court considers Defendant’s asserted facts corresponding to Plaintiff’s
deficient responses undisputed for purposes of resolving the Motion. See Fed. R. Civ. P. 56(e)(2)
(where a party fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may “consider the fact undisputed for purposes of the motion”). Further,
Plaintiff’s response to Defendant’s Motion contains no citations to specific parts of the record.
Because the Court is not required to sift through the record in search of evidence showing
disputed issues of material fact, the Court need not consider Defendant’s Motions to Strike. See
Mid-Continent Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 116 n.9 (5th Cir. 2010) (citing
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)), the Court DENIES AS MOOT
Defendant’s Motions to Strike.
MOTION FOR SUMMARY JUDGMENT
Unless otherwise noted, the following facts are undisputed. The Bureau of Prisons
maintains prisons in La Tuna in Anthony, Texas including a Federal Correctional Institution
(“FCI”), Federal Satellite Low (“FSL”), and a prison camp. Def.’s Proposed Undisputed Facts ¶¶
1-2, ECF No. 20. Facilities are shared, and staff rotate between the FCI and the FSL. Id. ¶¶ 3-4.
In 1999, Plaintiff began employment as a correctional officer in FCI La Tuna. Id. ¶ 7. In 2003,
Plaintiff was promoted to the position of Special Investigative Support (SIS) technician. Id. ¶ 9.
Plaintiff received a step increase from GS-8 step 9 to GS-8 step 10 effective June 2007, and
received an incentive award in August 2008. Id. ¶¶ 14-15.
Plaintiff complains that in February 2007, her schedule was changed in which her days
off would be Sunday and Monday instead of Saturday and Sunday. Id. ¶¶ 20-21. The proposed
schedule change affected all officers within the institution, including both SIS technicians and
correctional officers. Id. ¶¶ 23-24. However, the new schedule did not take effect, and as a
result Plaintiff continued her Monday through Friday day-shift work schedule with Saturdays and
Sundays off. Id. ¶ 22.
In April 2007, Lieutenant Juan Labrado (“Labrado”) was the Special Investigative
Supervisor, which was Plaintiff’s first-line supervisor. Id. ¶¶ 33-34. According to Labrado, La
Tuna underwent a “staff assist,” which precedes a program review and is aimed at identifying
institutional problems. Id. ¶ 38. The staff assist identified thirty-one deficiencies, and Labrado
felt that all employees in the SIS unit were responsible for those deficiencies. Id. ¶¶ 39-40.
During a meeting held on April 5, 2007, SIS staff were told their schedules would be changed to
allow for coverage of the institution on weekends and evenings in order to address the
deficiencies that had been identified in the staff assist. Id. ¶ 45. Plaintiff alleges she told
Labrado during the meeting that she would be unable to work the schedule as proposed because
of childcare issues. Id. ¶ 46. Labrado responded that if she could not work the schedule, he
would find someone else who could, that she should find another job, that a secretary position
was open, and that she should apply. Id. ¶ 47.
On April 19, 2007, a new schedule was implemented on a month-to-month rotation,
enabling coverage of the institution on evenings and weekends. Id. ¶ 56. During the first
rotation, Plaintiff was scheduled to work the same schedule as before the new schedule was
implemented: Monday through Friday with Saturdays and Sundays off. Id. ¶ 57. For a three and
one half week period between May 20, 2007, and June 16, 2007, Plaintiff worked weekends and
some evenings. Id. ¶ 58. Subsequently, Plaintiff spoke to Warden Bragg about childcare issues
she was experiencing as a result of the new schedule rotation, and beginning June 17, 2007,
Plaintiff no longer worked the afternoon shift, returning to the same schedule Plaintiff had
worked when she arrived at the SIS office. Id. ¶¶ 60, 64-65. Plaintiff claims that on May 16,
2007, Labrado yelled at her and was unprofessional with her over the telephone. Id. ¶ 71.
According to Labrado, there was a training session regarding gangs that was to be held in
El Paso, Texas, and he had been asked to provide a speaker for the conference. Id. ¶ 72. SIS
technician Ruben Luna volunteered. Id. SIS technician Steven Nevarez later told Labrado he
wanted to attend the conference. Id. ¶ 73. Albert Genera also expressed interest in attending the
conference. Id. While the training authorization initially reflected that Labrado and Genera
would attend, Labrado withdrew his name and sent Nevarez and Genera to attend the conference.
Id. If Plaintiff or the other SIS technicians had expressed interest in attending the conference,
Labrado would have considered them to attend. Id. ¶ 74. In making such a decision, Labrado
would have had to consider both financial expense to the institution and maintaining coverage by
an SIS technician at the institution. Id. ¶ 75. Labrado believed Plaintiff had previously attended a
similar training. Id. ¶ 76.
Plaintiff claims that on May 17, 2007, Labrado told staff at a closed lieutenant’s meeting
that they should not trust or listen to the SIS technicians because they do not know what they are
talking about. Id. ¶ 78. Plaintiff claims Labrado was referring to her. Id. ¶ 79. On May 18,
2007, Plaintiff contacted an EEO counselor alleging she was discriminated against. On May 20,
2007, Plaintiff was pulled from the SIS office to help with the 9:00 p.m. official count at the
camp. Id. ¶ 82. Plaintiff claims she was subjected to harassing conduct by another lieutenant
when he called her at home saying she should be at work. Id. ¶ 93. Plaintiff also alleges that
correctional counselor Vicky Castanon made a demeaning and inappropriate comment. Id. ¶ 95.
According to Plaintiff, on June 10, 2007, Labrado told Plaintiff he did not want to have to watch
his back around her. Id. ¶ 102.
In a six month review, Plaintiff received a rating of satisfactory. Id. ¶ 105. In that same
review, all other SIS technicians received the same rating of satisfactory based in part on the
discrepancies identified in the staff assist. Id. ¶ 107. According to Plaintiff, on July 12, 2007,
she was informed that a gang task force meeting would be held at the FCI Training Center. Id. ¶
113. She alleges she was not informed by her supervisor and had been isolated from all
information. Id. ¶ 114.
On August 20, 2007, Plaintiff was temporarily reassigned from her position to religious
services. Id. ¶ 135. Warden Bragg made the decision to temporarily reassign Plaintiff to
religious services because he had received information about a possible breach of confidentiality
in the SIS unit. Id. ¶¶ 140-42. He felt strongly enough about the information that he transferred
Plaintiff and referred the information to the Office of Internal Affairs for investigation. Id. ¶ 142.
Warden Bragg was concerned because intelligence gathering, which is within the SIS
technician’s job responsibilities, is essential for the safety and security of the institution. Id. ¶
144. On September 6, 2007, approximately two weeks after Plaintiff’s reassignment, Maxine
Griego informed Plaintiff she was cleared and could return to the SIS office. Id. ¶ 165.
During the time that Plaintiff worked in religious services, her title as SIS technician did
not change, she did not lose pay, and she did not lose any benefits. Id. ¶ 167. On April 3, 2009,
an Administrative Judge found that Plaintiff was not discriminated against nor was she retaliated
against. Id. ¶ 191. On October 6, 2009, Plaintiff filed her Complaint of discrimination,
retaliation, and hostile work environment. Compl. ECF No. 1. On January 31, 2011, Defendant
filed the instant Motion seeking to dismiss all three claims. Mot. 9-26.
Standard governing motion to dismiss
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it
fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a
Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in a light
most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Still, “a plaintiff’s obligation
to provide the grounds of his entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)); see also Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir.
2005) (stating that a court need not accept as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions”).
Though a complaint need not contain “detailed” factual allegations, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 555 (internal
citation omitted). Thus, to survive a motion to dismiss, a plaintiff’s complaint must allege
sufficient facts “to state a claim to relief that is plausible on its face.” Id. at 570. Nevertheless,
“a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and ‘that a recovery is very remote and unlikely.’” Id. at 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Standard governing motions for summary judgment
Summary judgment is required “if 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weaver v. CCA Indus., Inc., 529
F.3d 335, 339 (5th Cir. 2008). “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 Tex.,
560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th
“[The] party seeking summary judgment always 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.” Celotex,
477 U.S. at 323; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996). To show
the existence of a genuine dispute, the nonmoving party must support its position with citations
to “particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials[,]” or show “that the materials cited by the movant do not establish
the absence . . . of a genuine dispute, or that [the moving party] cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c). The court resolves factual controversies in
favor of the nonmoving party; however, factual controversies require more than “conclusory
allegations,” “unsubstantiated assertions,” or “a ‘scintilla’ of evidence.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the
court must draw all reasonable inferences in favor of the nonmoving party, and may not make
credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc.,
438 F.3d 476, 478-79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000)). Thus, the ultimate inquiry in a summary judgment motion is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
Defendant’s Motion is a motion to dismiss, or in the alternative, motion for summary
judgment. Mot. 1. Because evidence outside the Complaint is necessary to dispose of the
Motion, the Court addresses the Motion’s alternative grounds for relief via summary judgment.
See Fed. R. Civ. P. 12(d) (“if, on a motion under Rule 12(b)(6) . . . matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56”).
Exhaustion of remedies
Defendant argues that Plaintiff’s claims occurring before April 3, 2007, are barred
because she failed to contact an EEO counselor in a timely fashion and thus failed to exhaust
administrative remedies. Mot. 8-9. Plaintiff concedes that some of her claims are time barred,
but disagrees about when Plaintiff contacted an EEO counselor. Pl.’s Resp. to Def.’s Mot. to
Dismiss or in the Alternative, Mot. for Summ. J. (“Response”) 8-9, ECF No. 27.
Before seeking relief for a Title VII violation, employees “must exhaust their
administrative remedies by filing a charge of discrimination with the EEO division of their
agency.” Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). As part of the charge-filing
process, an employee “must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the
effective date of the action.” 29 C.F.R. § 1614.105(a)(1) (2010). “Generally, discrimination
claims alleging conduct that occurred more than 45 days before the initiation of administrative
action (contacting an EEO counselor) are time barred in a subsequent action in federal court.”
Pacheco, 448 F.3d at 791 n.11 (citing 42 U.S.C. § 2000e-16 (2006)).
In this case, Plaintiff complains of conduct dating back to January 2007. Resp. 11-14.
The parties dispute when Plaintiff made initial contact with an EEO counselor. Defendant claims
Plaintiff contacted an EEO counselor on May 18, 2007, Mot. 8, while Plaintiff claims she
contacted an EEO counselor on May 8, 2007. Resp. 8-9. However, Plaintiff offers no competent
summary judgment evidence to support her assertion. Furthermore, Plaintiff herself admitted
that she first contacted an EEO counselor on May 18, 2007. Mot. Ex. 2, at 80:14-81:16. While
equitable tolling could be available to stay the limitations period, see Miller v. Potter, 359 F.
App’x 535, 537 (5th Cir. 2010) (citing Manning v. Chevron Chem. Co., 332 F.3d 874, 880 (5th
Cir. 2003)), Plaintiff has made no such argument in this case. As such, any events that took
place more than forty-five days before that date, or April 3, 2007, cannot properly be considered
by this Court. See Pacheco, 448 F.3d at 791 n.11.
Hostile work environment
Plaintiff contends she was subjected to a hostile work environment based not on sexual
harassment, but on gender discrimination. Resp. 9-14. Defendant counters that Plaintiff cannot
state a prima facie case of hostile work environment because the conduct in question is not
sufficiently severe or pervasive as to alter a term, condition, or privilege of employment, and
because such conduct was not based on Plaintiff’s protected status. Mot. 10-17.
To make a prima facie showing of hostile work environment, a plaintiff must show: (1)
she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the
harassment was based on her membership in the protected class; (4) the harassment affected a
term, condition, or privilege of employment; and (5) the employer knew or should have known of
the harassment and failed to take adequate remedial action. McGarry v. Univ. of Miss. Med. Ctr.,
355 F. App’x 853, 858 (5th Cir. 2009) (citing Harvill v. Westward Commc’ns, L.L.C., 433 F.3d
428, 434 (5th Cir. 2005)). Where the alleged harassment is perpetrated by a supervisor with
immediate or successively higher authority, the employee need only satisfy the first four elements
set forth above. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
“To affect a term, condition, or privilege of employment, the harassing conduct ‘must be
sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an
abusive working environment.’” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 479 (5th Cir.
2008) (quoting Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)).
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.” Id. In determining whether a hostile work environment exists, courts assess the totality of
the circumstances, including: (1) the frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with an employee’s work performance. Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th
Cir. 2009). Merely offensive conduct, however, is not actionable. Harris, 510 U.S. at 21.
In this case, Plaintiff claims she was subjected to a hostile work environment based on
twenty-six discrete events. Resp. 11-14. Excluding events for which Plaintiff has failed to
exhaust administrative procedures, the Court summarizes these events into four categories: (1)
unwarranted comments and rude behavior with no specific examples offered by Plaintiff; (2)
temporary change of schedule, the three and one half week-period in which Plaintiff worked
weekends and some evenings and added duty assignments when Plaintiff was asked to help with
the official count; (3) Plaintiff’s not attending a training conference; and (4) an investigation into
Plaintiff’s alleged breach of policy by releasing confidential information and her temporary
transfer to the religious services unit. Because it is dispositive, the Court addresses the fourth
factor required to establish a claim for hostile work environment, whether the harassment
affected a term, condition, or privilege of employment.
The facts of this case, in their totality, are not sufficiently severe or pervasive so as to
alter the conditions of Plaintiff’s employment. The incidents Plaintiff alleges are not frequent,
nor do they approach severe as Fifth Circuit case law defines the term. In addition, the
complained of conduct is not physically threatening or humiliating. Finally, there is no evidence
that the conduct at issue unreasonably interfered with Plaintiff’s work performance.
Rude behavior and unwarranted comments, especially when alleged in a conclusory
fashion, do not alter a term, condition, or privilege of employment. See LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 394 (5th Cir. 2007) (finding offhand comments alleged in nonspecific, conclusory fashion not to affect a term, condition, or privilege of employment);
Hayatdavoudi v. Univ. of La. Sys. Bd. of Trs., 240 F.3d 1073, at *6-7 (5th Cir. 2000) (table
decision) (conduct insufficiently severe or pervasive where the plaintiff was called a “dog in the
desert,” the plaintiff and alleged perpetrator engaged in “chest butting,” the plaintiff was called
an idiot, and the plaintiff was accused of theft).
Similarly, temporary changes to schedule and duty assignments are not sufficiently severe
or pervasive as to constitute a hostile work environment. Ellis v. Principi, 246 F. App’x 867,
871-72 (5th Cir. 2007) (no hostile work environment where supervisor gave plaintiff less
favorable work assignments, denied her performance award, required her to use leave time to
compensate for arriving late to work); McConathy v. Dr. Pepper/Seven-Up Corp., 131 F.3d 558,
563-64 (5th Cir. 1998) (no hostile work environment where the plaintiff’s supervisor was (1)
unsupportive toward the plaintiff when she needed several surgeries; (2) became angry and said
she had “better get well this time” when the plaintiff explained her need for additional surgery;
(3) told the plaintiff he would no longer tolerate her health problems; (4) complained about
plaintiff’s extensive use of the company’s benefits; (5) pressured plaintiff to return to work
before she recovered; (6) told plaintiff’s co-workers to cease communicating with the plaintiff;
(7) transferred assignments away from plaintiff; and (8) refused to acknowledge plaintiff’s
Next, although there is no evidence to suggest Plaintiff made her desire to attend the
training conference known to Labrado, an individual’s being denied the opportunity to attend a
training conference is not severe enough to constitute a hostile work environment. See Hill v.
Emory Univ., 346 F. App’x 390, 395-96 (11th Cir. 2009) (no hostile work environment where
plaintiff was denied the opportunity to attend educational conference). Finally, an investigation
and transfer of an individual to a different unit does not alter the terms, conditions, or privileges
of employment. See McGarry, 355 F. App’x at 858 (internal investigation and transfer of the
plaintiff are not sufficiently severe to alter a term, condition, or privilege of employment).
Even if at least some of the complained of conduct were sufficiently severe or pervasive,
Plaintiff has offered no evidence showing that any of the complained of conduct was based on
her gender. On the contrary, Defendant has offered evidence that the temporary change in
schedule was to address deficiencies, Def.’s Proposed Undisputed Facts ¶ 45, that Labrado was
unaware of Plaintiff’s desire to attend the training conference and that he believed she had
already attended a similar training, id. ¶¶ 74-76, and that Plaintiff was investigated and
reassigned to religious services because of an allegation that she had disclosed confidential
information. Id. ¶¶ 140-42. Because Plaintiff cannot make a prima facie case of hostile work
environment, the Court grants summary judgment with respect to that claim.
Defendant contends that Plaintiff cannot make out a prima facie case of discrimination
because she was not subjected to an adverse employment action and cannot show that she was
treated less favorably than other similarly situated employees outside the protected group. Mot.
18-22. The Court agrees.
Claims of discrimination based on circumstantial evidence are analyzed under the “threestep, burden-shifting analysis embodied in the ‘modified McDonnell Douglas approach.’”
Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (quoting Burrell v. Dr. Pepper/Seven Up
Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)). First, a plaintiff must establish a prima
facie case of discrimination. Jackson, 619 F.3d at 466. Second, if a plaintiff establishes a prima
facie case, a defendant must articulate a legitimate, non-discriminatory reason for the
employment action at issue. Id. Third, assuming the defendant meets this burden, the plaintiff
must show that the defendant’s legitimate, non-discriminatory reasons were a pretext for
To make out a prima facie case of discrimination, a plaintiff must show that he or she:
(1) is a member of a protected group; (2) was qualified for the position at issue;
(3) was discharged or suffered some adverse employment action by the employer;
and (4) was replaced by someone outside his protected group or was treated less
favorably than other similarly situated employees outside the protected group.
Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 350 (5th Cir. 2008) (quoting McCoy v. City
of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citation omitted)).
“[F]or all Title VII claims, [a]dverse employment actions include only ultimate employment
decisions such as hiring, granting leave, discharging, promoting, or compensating.” McCoy, 492
F.3d at 559 (quotation omitted).
Once again, Plaintiff alleges discrimination based on twenty-six discrete events. Resp.
15-19. As was the case with Plaintiff’s claim for hostile work environment, these events can be
properly summarized into the same four categories: (1) unwarranted comments and rude behavior
with no specific examples offered by Plaintiff; (2) temporary change of schedule, the three and
one half week-period in which Plaintiff worked weekends and some evenings, and added duty
assignments when Plaintiff was asked to help with the official count; (3) Plaintiff’s not attending
a training conference; and (4) an investigation into Plaintiff’s alleged breach of policy by
releasing confidential information and her temporary transfer to the religious services unit.
Because it is dispositive, the Court addresses the third factor required to establish a claim for
discrimination, whether Plaintiff suffered an adverse employment action.
Plaintiff does not allege that she suffered an ultimate employment decision such as
“hiring, granting leave, discharging, promoting, or compensating” based on discrimination. See
McCoy, 492 F.3d at 559 (quotation omitted). Rather, she asserts four categories of events.
Accordingly, the Court addresses each in turn. First, unwarranted comments and rude behavior
are not adverse employment actions. See Webb v. Cardiothoracic Surgery Assocs. of N. Tex.,
139 F.3d 532, 540 (5th Cir. 1998) (rude treatment by employer is not an adverse employment
action); McConathy, 131 F.3d at 563-64 (insensitive and rude behavior, along with “coldshouldering,” do not rise to the level of an adverse employment action).
Second, temporary changes in schedule and added duty assignments similarly do not rise
to the level of adverse employment actions. See Watts, 170 F.3d at 512 (a change in schedule
and assignment to new tasks are not adverse employment actions); Benningfield v. City of
Houston, 157 F.3d 369, 377 (5th Cir. 1998) (merely changing an employee’s working hours,
without more, does not constitute an adverse employment action). Next, denial of an
individual’s request1 to attend a training conference is not an ultimate employment decision, and
There is no evidence that Plaintiff actually requested to attend the training
conference. Rather, the evidence suggests that Labrado was unaware Plaintiff
wished to attend the conference. See Def.’s Proposed Undisputed Facts ¶¶ 7476.
thus, is not an adverse employment action. See Veal v. Schlumberger Tech. Corp., No. Civ. A.
H-04-3550, 2006 WL 237006, at *9 (S.D. Tex. Jan. 31, 2006) (an employer’s alleged failure to
train is not an adverse employment action) (citing Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 406-07 (5th Cir. 1999); Dollis v. Rubin, 77 F.3d 777, 779, 782 (5th Cir. 1995),
overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 67
Lastly, an investigation into and transfer of an individual to a different unit are not
adverse employment actions sufficient to set forth a prima facie case of discrimination. See
Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004) (“in cases where the evidence . . .
solely establishes that a plaintiff was transferred from a prestigious and desirable position to
another position, that evidence is insufficient to establish an adverse employment action”) (citing
Serna v. City of San Antonio, 244 F.3d 479, 485 (5th Cir. 2001)). The facts in Pegram are more
serious than the facts in the case at bar, since in this case Plaintiff’s transfer was temporary, and
she maintained her job title, benefits, and salary both before and after the transfer. See Def.’s
Proposed Facts ¶ 167. Just as the facts in Pegram did not constitute an adverse employment
action, Pegram, 361 F.3d at 283, the facts in this case do not constitute an adverse employment
Plaintiff cannot show that she has suffered an adverse employment action. She has also
failed to offer any evidence that other, similarly situated individuals outside her protected group
received more favorable treatment than she did. Because Plaintiff has failed to make a prima
facie case of discrimination, the Court grants summary judgment with respect to her
Defendant argues that Plaintiff cannot make a claim for retaliation because she cannot
show that she has suffered an adverse employment action or that there is a causal connection
between participation in a protected activity and the adverse action. Mot. 22-25. The Court
The McDonnell Douglas burden shifting framework also applies to retaliation cases.
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). If a plaintiff sets out a prima
facie case of retaliation, then the burden shifts to the employer to articulate a legitimate nonretaliatory reason for its employment action. Aryain, 534 F.3d at 484 (citing McCoy, 492 F.3d at
557). If the employer meets this burden of production, then the plaintiff bears the burden of
showing that the employer’s reason is a pretext for the actual retaliatory reason. Id.
To make a prima facie case of retaliation, a plaintiff must show: (1) that he or she
participated in a protected activity; (2) that his or her employer took an adverse employment
action against her; and (3) a causal connection exists between the protected activity and the
materially adverse action. Id. (citing McCoy, 492 F.3d at 557). An adverse employment action
in the retaliation context is one that “a reasonable employee would have found . . . [to be]
materially adverse, which . . . means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006); Love v. Motiva Enters. LLC, 349 F. App’x 900, 904 (5th Cir. 2009).
The adverse employment action must be materially adverse because “it is important to
separate significant from trivial harms.” White, 548 U.S. at 68. The anti-retaliation provisions
do “not set forth ‘a general civility code for the American workplace.’” Id. (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). The purpose of the objective standard
is to “filter out complaints attacking the ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional teasing.” Stewart v. Miss.
Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009) (quoting White, 548 U.S. at 68). “An
employee’s decision to report discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at work and that all employees
experience.” White, 548 U.S. at 68.
In this case, Plaintiff alleges retaliation based on eighteen discrete events. Resp. 21-24.
As is true with Plaintiff’s hostile work environment and discrimination claims, these events can
be properly summarized into the same four categories: (1) unwarranted comments and rude
behavior with no specific examples offered by Plaintiff; (2) temporary change of schedule, the
three and one half week-period in which Plaintiff worked weekends and some evenings and
added duty assignments when Plaintiff was asked to help with the official count; (3) Plaintiff’s
not attending a training conference; and (4) an investigation into Plaintiff’s alleged breach of
policy by releasing confidential information and her temporary transfer to the religious services
unit. Because it is dispositive, the Court addresses the second factor required to establish a claim
for retaliation, whether Plaintiff suffered an adverse employment action.
Unwarranted comments and rude behavior do not constitute adverse employment actions.
See Browning v. Sw. Research Inst., 288 F. App’x 170, 179 (5th Cir. 2008) (finding no adverse
employment action where employer allegedly called employee crazy and threatened her
employment); King v. Louisiana, 294 F. App’x 77, 85-86 (5th Cir. 2008) (“[e]ven taken in a light
most favorable to [plaintiff], allegations of unpleasant work meetings, verbal reprimands,
improper work requests, and unfair treatment do not constitute actionable adverse employment
actions as discrimination or retaliation”) (citing White, 548 U.S. at 68). Although a change in
schedule may constitute an adverse employment action, see White, 548 U.S. at 69, Plaintiff’s
schedule change was for a mere three and one half weeks, at which time Plaintiff’s original work
schedule was restored at Plaintiff’s request. The Court does not find that a temporary, three and
one half week schedule change that was undisputably implemented for the sound reasons set out
above would dissuade a reasonable worker from making a charge of discrimination, and thus
does not constitute an adverse employment action. See id. at 68. Furthermore, Defendant has
offered a legitimate, non-retaliatory explanation for the schedule change, to provide coverage of
the institution on nights and weekends so as to remedy the thirty-one deficiencies identified by
the staff assist. Def.’s Proposed Undisputed Facts ¶ 45. Plaintiff has not offered any evidence to
show that this explanation is a pretext for retaliation.
Moreover, additional duty assignments are not adverse employment actions. See Peace v.
Harvey, 207 F. App’x 366, 368-69 (5th Cir. 2006) (added duty assignments did not constitute
adverse employment actions). Plaintiff’s not being asked to attend the training conference also is
not an adverse employment action. Dollis, 77 F.3d at 779, 782 (holding an employer’s refusal to
allow an employee to attend a training conference is not an adverse employment action); Clegg v.
Ark. Dep’t of Corr., 496 F.3d 922, 929 (8th Cir. 2007) (failure to provide training, orientation,
and access to employment tools are not adverse employment actions). Finally, a plaintiff suffers
no adverse employment action where an employer conducts an investigation and transfers the
plaintiff to a different unit. See Magiera v. City of Dallas, 389 F. App’x 433, 437 (5th Cir. 2010)
(no adverse employment action where internal affairs investigated complaints lodged against
plaintiff with heightened scrutiny); Sabzevari v. Reliable Life Ins., 264 F. App’x 392, 396 (5th
Cir. 2008) (a transfer that does not involve a demotion in form or substance cannot rise to the
level of materially adverse employment action). Plaintiff’s transfer was temporary, and she
maintained her job title, benefits, and salary both before and after the transfer. See Def.’s
Proposed Facts ¶ 167. She did not suffer an adverse employment action.
The Court finds that Plaintiff cannot make a prima facie case for retaliation. Therefore,
summary judgment is granted with respect to Plaintiff’s claim for retaliation.
For the foregoing reasons, Defendant’s Objections, ECF No. 31, are SUSTAINED in
part. Defendant’s Motions to Strike, ECF Nos. 23, 33, are OVERRULED AS MOOT, and
Defendant’s Motion, ECF No. 21, is GRANTED.
The Clerk of Court shall close the case.
SIGNED on this 20th day of April, 2011.
UNITED STATES DISTRICT JUDGE
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