Hill v. Napolitano et al

Filing 40

ORDER GRANTING 36 Motion for Summary Judgment Signed by Judge Kathleen Cardone. (mc4, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ANGENETTE HILL,
Plaintiff,
v.
JANET NAPOLITANO, in her official
capacity as Secretary of the United
States Department of Homeland
Security, et al.,
Defendants.

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EP-10-CV-0424-KC

ORDER
On this day, the Court considered Defendants Janet Napolitano and Alan Bersin’s
(“Defendants”) Motion for Summary Judgment (“Motion”), ECF No. 36. For the reasons set
forth herein, the Motion is GRANTED.
I.

BACKGROUND
The following facts are undisputed unless otherwise noted. Plaintiff was employed by

Customs and Border Protection (“CBP”) from November 4, 1991, until her resignation on
November 14, 2008. Defs.’ Mot. for Summ. J. App. A (“Statement of Facts”) ¶ 1, ECF No. 361. Beginning in 2002, Plaintiff held the position of Supervisory Mission Support Specialist of
Human Resources. Id. ¶ 2. In this role, Plaintiff’s first-line supervisor was William Russell
(“Russell”), the Assistant Director of Mission Support in the El Paso field office. Id. ¶ 4. In
about September 2007, Plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor
claiming that Russell racially harassed her when Russell made the comment that “[s]laves can’t
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quit their jobs, they need to be sold” during a staff meeting, and, again when she overheard him
make the same comment to visitors in the office on July 30, 2007. Id. ¶ 5. On another occasion,
on an unspecified date, Russell stated to the entire office staff that “a one-armed monkey” could
do this job, and he kept a toy black monkey on his desk. Mot. Ex. 3 (“Hill Declaration”), at 8,
ECF No. 36-4; Mot. Ex. 81 (“Pl.’s Interrogatory”), at 7, ECF No. 36-5. Plaintiff also complained
that Russell simulated spitting on her head. Statement of Facts ¶ 5. As a result of that complaint,
Plaintiff and Russell attended a mediation session in September 2007. Id. ¶ 6. Thereafter,
Plaintiff did not proceed with a formal complaint. Id. ¶ 7.
On May 27, 2008, Ana B. Hinojosa (“DFO Hinojosa”) began working for CBP in El Paso
as Director of Field Operations and became Plaintiff’s second-line supervisor. Id. ¶ 8 (citing
Mot. Ex. 4 “Hinojosa Declaration”).2 Soon after, in the summer of 2008, DFO Hinojosa issued a

1

Because the document is not paginated, the Court refers to the page numbers
automatically assigned to the document by the Court’s docketing system.

2

Plaintiff objects to the admissibility of DFO Hinojosa’s declaration. Pl.’s Resp.
to Defs.’ Proposed Undisputed Facts ¶ 8, ECF No. 38-1. Plaintiff argues that the
declaration is inadmissible under Federal Rule of Civil Procedure 56 because it
is not made on personal knowledge. Id. Plaintiff also argues that this evidence
contravenes this Court’s Standing Order Governing Motions for Summary
Judgment. Id. Plaintiff is incorrect on both counts.
As Defendants point out, 28 U.S.C. § 1746 allows for the substitution of
unsworn declarations, such as DFO Hinojosa’s, for affidavits so long as the
declaration is signed and sworn and contains the specific language set forth in
the statute that the declarant swears under penalty of perjury that the statement is
true and correct. See 28 U.S.C. § 1746. Indeed, Federal Rule of Civil Procedure
56(c)(4) specifically references declarations, in addition to affidavits, as the type
of evidence that may be submitted on summary judgment. See Fed. R. Civ. P.
56©. DFO Hinojosa’s declaration complies with 28 U.S.C. § 1746 and is thus
admissible pursuant to the statute, the Federal Rules of Civil Procedure, and this
Court’s Standing Order.
Plaintiff also argues that DFO Hinojosa’s declaration is not made on personal
knowledge. Pl.’s Resp. to Def.’s Proposed Undisputed Facts ¶ 8. However, the
declaration is replete with statements based upon DFO Hinojosa’s personal
knowledge. Id. Indeed, DFO Hinojosa is aware that her declaration must be

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policy memorandum limiting the authority of managers to grant Leave Without Pay, requiring
Port Directors or the Director of Field Operations to approve such leave. Id. ¶ 25 (citing Mot.
Ex. 10). The policy states that “[e]xcept for emergencies, [Leave Without Pay] should be
scheduled in advance, in writing, and be approved by the supervisor authorized to approve such a
request. . . . Requests for [Leave Without Pay] must include an explanation of circumstances
surrounding the request, and a medical certificate if the absence is for health reasons.” Id. ¶ 22;
Mot. Ex. 10.3
According to Defendants, in September 2008, an audit of Plaintiff’s leave balance was
prepared showing that her annual leave balance was negative 104 hours, her sick leave balance
was negative 220 hours, and that the amount of Leave Without Pay that Plaintiff had taken was
260.2 hours. Statement of Fact ¶ 9.4

In addition to this leave, Plaintiff also used 208 hours of

made on personal knowledge because she explains in the declaration that certain
matters were not within her knowledge so she does not discuss them. Plaintiff’s
objections are therefore OVERRULED.
3

Plaintiff also objects to the admissibility of Exhibit 10, June 30, 2008,
Memorandum regarding Leave W ithout Pay, because she claims it is
unauthenticated and contains hearsay. However, Plaintiff herself authenticated
the document during her deposition and explained that she had seen the
document previously. Mot. Ex. 1 (“Hill Deposition”), at 33:4-37:18. In fact,
during her deposition Plaintiff actually recites from this document the same
portions at issue here. Id. Because Plaintiff authenticated the document, the
objection is OVERRULED. See Fed. R. Evid. 901(b)(1).

4

Plaintiff objects to this evidence explaining that the evidence submitted in
support of this leave balance audit does not reference September 2008, although
she does not deny that it does represent “Year: 2008 Pay Period: 17.” Pl.’s
Resp. to Defs.’ Proposed Undisputed Facts ¶ 9. In her deposition, however,
Plaintiff admits that pay period eleven of 2008 was in May 2008 and that pay
period twenty-three was in November 2008. Hill Depo. 38:15-38:20; 51:2452:3. Pay period seventeen is exactly in the middle of these two pay periods,
half way between May and November, which would place the date of this pay
period in August or September 2008, as indicated. Further, the precise date of
the audit is not important here, and Plaintiff’s objection is OVERRULED .

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annual leave and 104 hours of sick leave that she had accrued. Id. ¶ 10. Overall, Plaintiff was on
leave forty percent of the time during the 2008 performance rating period. Mot. Ex. 9 (“Russell
Declaration”), at 3, ECF No. 36-5. And, according to DFO Hinojosa, “Ms. Hill had a horrible
time and attendance record. This was so significant that Mr. Russell and I considered her to be
unreliable.” Hinojosa Decl. 2. Because of the large number of absences during 2008, over 900
hours, DFO Hinojosa encouraged Russell to pursue the leave issue with Plaintiff. See id.;
Statement of Facts ¶¶ 9-10. Further, DFO Hinojosa instructed Russell that if Plaintiff fails to
provide documentation to support her leave then that leave should be coded as Absent without
Leave. Hinojosa Decl. 2. In October and November 2008, Plaintiff’s attendance records were
changed from “Leave Without Pay” to “Absent Without Leave” because Plaintiff failed to
provide medical documentation in support of her Leave Without Pay, as required by CBP policy.
Statement of Facts ¶ 24.5
Plaintiff’s frequent absences had a significant impact on her department and on Russell,
her supervisor. During these absences, Russell communicated directly with the employees whom

5

Plaintiff objects to this fact claiming that the evidence supporting it, the Russell
Declaration, is not admissible because this Court’s Standing Order does not
allow it, because it was not made on personal knowledge, because the statement
is hearsay, and because the factual assertion is not supported by the evidence.
W ith regard to the Standing Order and the personal knowledge arguments, the
objection is unavailing for the reasons explained in footnote 2 above. As for the
claim that the assertion is not supported by the evidence, the Court disagrees.
W hile it is true that the declaration discusses October and November 2007
instead of October and November 2008, and thus does not appear to support the
statement of fact asserted, it is apparent to the Court that Russell intended to
refer to 2008. In her own deposition, Plaintiff discusses her absences being
designated as Absent W ithout Leave in October and November 2008, not 2007.
See Hill Depo. 42:9–48:1. The reference to 2007 is simply a mistake. For these
reasons, the objection is OVERRULED.

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Plaintiff supervised. Id. ¶ 20.6 He did so because the employees approached him for guidance in
Plaintiff’s absence. Id. Moreover, after the September 2007 EEO session, Russell arranged
weekly meetings with Plaintiff. Russell Decl. 7. He did so to “go over any issues she or I might
have with regards to her unit.” Id. Russell explained that, unlike Plaintiff, his other supervisees
came to speak with him on a daily basis regarding issues and activities in their respective units so
he did not have to schedule weekly meetings with them. Id. at 7. Separately, Russell also
explained that because Plaintiff was absent forty percent of the time during the 2008 rating period,
she did not receive a performance award. Id.; see Statement of Facts ¶ 30. Plaintiff resigned from
her position effective November 14, 2008. Statement of Facts ¶ 11.
On November 24, 2008, Plaintiff contacted an EEO counselor, id. ¶ 12, and, on January 6,
2009, she filed an EEO complaint. Id. ¶ 13. In that complaint, Plaintiff alleges that she was
discriminated against in several ways. Id. The discriminatory events alleged include: from
September 2007 to November 14, 2008, following an EEO session, Russell failed to communicate
with Plaintiff; from September 2007 through November 14, 2008, Russell gave assignments to
Plaintiff’s employees without her knowledge, changed decisions she had made without notifying
her, approved training and temporary duty requests for her employees without consulting her and
without her knowledge, and did not inform her of meetings, changes in procedures and work
assignments; from approximately September 2007 to November 2008, Russell assigned work to
Plaintiff’s team that belonged to other teams; from May 2008 to November 2008, Plaintiff was
6

Plaintiff objects to this evidence as inadmissible under Federal Rule of Civil
Procedure 56 and this Court’s Standing Order. For the reasons explained in
footnote 2, this objection is OVERRULED. Plaintiff also objects because she
argues these statements are hearsay. W hile some of the statements contained in
the affidavit are hearsay, those relied on by the government and included in this
Order are not hearsay statements.

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required to provide medical documentation when she used Leave without Pay; on October 10, 27,
30, and November 3, 4, 7, and 10 through 14, 2008, Plaintiff’s time and attendance records were
altered to reflect Absent without Approved Leave rather than Leave Without Pay; and, on or about
October 27, 2008, Plaintiff learned that she would not receive a performance cash award for fiscal
year 2008. Id. On November 22, 2010, Plaintiff filed the instant action alleging race
discrimination/disparate treatment, retaliation, and constructive discharge. Pl.’s First Am. Compl.
(“Amended Complaint”) ¶¶ 20-25, ECF No. 11.
II.

DISCUSSION
A.

Standard

A court must enter summary judgment “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 Cir. 1996).
“[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,
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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©. 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.
B.

Analysis
1.

Exhaustion

At the outset, the parties dispute whether Plaintiff can rely upon conduct that occurred
more than forty-five days before the initiation of her administrative claim in support of her Title
VII claims in this Court. Defendants assert that Plaintiff contacted an EEO counselor on
November 24, 2008, so that Plaintiff is barred from raising conduct in this claim that occurred
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prior to October 10, 2008, forty-five days before. Mot. 4. Plaintiff argues that “‘the scope of an
EEOC charge should be liberally construed for litigation purposes because Title VII was designed
to protect the many who are unlettered and unschooled in the nuances of literary draftsmanship.’”
Pl.’s Resp. 2 (quoting McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008)), ECF No.
38.7 Thus, she claims that her complaint can include conduct that “can reasonably be expected to
grow out of the charge of discrimination.” Id. (quoting McClain, 519 F.3d at 274). Therefore, she
concludes that the conduct, which occurred prior to October 10, 2008, should be considered here
because it is conduct that extended into the exhaustion period. Resp. 2-3.
“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 v. Mineta, 448 F.3d 783, 791 n.11 (5th Cir. 2006)
(citing 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.105). Still, “a Title VII lawsuit may include
allegations ‘like or related to allegation[s] contained in the [EEOC] charge and growing out of
such allegations during the pendency of the case before the Commission.’” McClain, 519 F.3d at
273 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)) (alterations in
original).
Because it does not change the outcome of the case, the Court assumes without deciding
that the alleged improper conduct which occurred more than forty-five days before Plaintiff
contacted the EEO counselor is not time barred. Accordingly, the Court considers the words and
actions of Russell beginning in 2007 as Plaintiff requests.

7

Because the document is not paginated, the Court refers to the page numbers
automatically assigned to the document by the Court’s docketing system.

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2.

Title VII discrimination

In their Motion, Defendants seek summary judgment on all three of Plaintiff’s claims: race
discrimination, retaliation, and constructive discharge. The Court addresses each challenge in
turn.
a.

Race discrimination/disparate treatment

Defendants challenge Plaintiff’s race discrimination claim, arguing it must fail because she
cannot show that Defendants took an adverse employment action against her. Mot. 5-6. Further,
Defendants argue that Plaintiff has not presented evidence that similarly situated employees
outside of her protected class were treated more favorably. Id. at 6-7.
Title VII forbids an employer from discriminating against an employee because of the
“individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). A plaintiff
can prove intentional discrimination with direct or circumstantial evidence. Jackson v. Watkins,
619 F.3d 463, 466 (5th Cir. 2010). Absent direct evidence of discrimination, the court analyzes
racial discrimination claims under the burden-shifting framework set out by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Abarca v. Metro.
Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005). Under this framework, the plaintiff must first
set forth a prima facie case of discrimination. Id. (citing Frank v. Xerox Corp., 347 F.3d 130, 137
(5th Cir. 2003)). If successful, the burden shifts to the defendants to offer a legitimate,
nondiscriminatory reason for their actions. See id. If the defendants satisfy this burden, then
burden shifts back to the plaintiff to show that the legitimate, nondiscriminatory reason was a
pretext for discrimination. Id.
I.

Prima facie case

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In order to set forth the prima facie case of race discrimination, the plaintiff must show
that she was “(1) a member of a protected class; (2) qualified for the position held; (3) subject to
an adverse employment action; and (4) treated differently from others similarly situated.” Id.
“The burden of establishing a prima facie case of disparate treatment is not onerous.” Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In the instant Motion, the parties dispute
the third and fourth elements, that Plaintiff suffered an adverse employment action and that others
similarly were treated more favorably. Mot. 5-6.
The adverse employment action of which Plaintiff complains is not any single action;
instead, Plaintiff raises a litany of Russell’s conduct, which, she argues, taken together amounts to
an adverse employment action. See Resp. 3-4. This conduct includes: Russell’s making the
statement that “slaves cannot quit”; his placing a stuffed black monkey on his desk and telling the
office staff that a one-armed monkey could do the job; his requiring Plaintiff to provide medical
documentation when she took Leave Without Pay when other employees did not need to provide
such documentation; his refusing to give Plaintiff a performance award for fiscal year 2008 when
others received such awards; his changing attendance records from Leave Without Pay to Absent
Without Approved Leave; his failing to communicate with Plaintiff; and his directly interacting
with Plaintiff’s supervisees. Id.
Although Plaintiff is generous with the recitation of the allegedly adverse actions taken by
her employer, she is stingy with case law to support her contention that the cumulative effect of
these actions amounts to an adverse employment action. Indeed, the Court is only able to locate
one unpublished case within the Fifth Circuit that mentions this issue of aggregating actions to
show adversity, and that case dismisses the contention summarily under the facts of that case. See
Mylett v. City of Corpus Christi, 97 F. App’x 473, 475 (5th Cir. 2004). Moreover, a number of

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district courts within the Southern District of New York have held that in disparate treatment
claims, a plaintiff cannot rely upon the cumulative effect of multiple discriminatory acts to
establish an adverse employment action. See Bookman v. Merrill Lynch, No. 02 Civ. 1108(RJS),
2009 WL 1360673, at *16 n.9 (S.D.N.Y. May 14, 2009); Dauer v. Verizon Commc’ns Inc., No. 03
Civ. 05047(PGG), 2009 WL 186199, at *3 (S.D.N.Y. Jan. 26, 2009); Figueroa v. N.Y.C. Health
& Hosp. Corp., 500 F. Supp. 2d 224, 230 (S.D.N.Y. 2007); Hill v. Rayboy-Brauestein, 467 F.
Supp. 2d 336, 356 n.22 (S.D.N.Y. 2006).
Regardless, this Court need not resolve the issue of the issue of the cumulative effect in
this case because none of the complained of conduct approaches the type of actions which the
Fifth Circuit has found to be adverse. Specifically, the Fifth Circuit has held that adverse
employment actions include only ultimate employment decisions such as “discharges, demotions,
refusals to hire, refusals to promote, and reprimands.” Alvarado v. Tex. Rangers, 492 F.3d 605,
612 (5th Cir. 2007) (quoting Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000)); see
McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (citing Green v. Adm’rs of Tulane
Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). If the action “does not affect job duties,
compensation, or benefits,” it is not an adverse employment action. Pegram v. Honeywell, Inc.,
361 F.3d 272, 282 (5th Cir. 2004) (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d
570, 575 (5th Cir. 2003)). None of Plaintiff’s claims involve any of these sorts of ultimate
employment decisions, nor does their combined weight approach the gravity of these types of
actions because Plaintiff’s duties, compensation, and benefits were not altered. See Alvarado, 492
F.3d at 612; Mylett, 97 F. App’x at 475. Thus, Plaintiff has failed to establish the third element of
the prima facie case.

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Further, Plaintiff has also not established the fourth element, that others similarly situated
were treated more favorably. To show this, Plaintiff must put forth some evidence that similarly
situated employees outside of her protected class were treated more favorably in circumstances
“nearly identical” to hers. See Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir. 2005)
(quoting Mayberry v. Vought Aircraft Co., 55 F.3d 1086 1090 (5th Cir. 1995)). Plaintiff has
identified Christy Daly, Angela Aleman, and Alice Torres, who were also supervisors reporting to
Russell, as similarly situated to her but treated more favorably. Pl.’s Dep. 61:5-12; Pl.’s Interrog.
8. Defendants explain that these comparators were not similarly situated because, unlike Plaintiff,
they were not absent from work for forty percent of the work year, missing many hundreds of
hours of work. Mot. 6-7. The Court agrees that they were not similarly situated.
Defendants have presented evidence that these supervisors did not have any leave or
attendance issues. Russell Decl. 3-5. Plaintiff has not come forward with any evidence to
demonstrate otherwise. Instead, Plaintiff argues that the need to have the same leave balance to
be similarly situated is unsupported in the case law. Resp. 5. But that is not true: the Fifth Circuit
has held that “the conduct at issue is not nearly identical when the difference between the
plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in
treatment received from the employer.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th
Cir. 2001). Here, it was precisely Plaintiff’s extensive absenteeism and refusal to provide
documentation to support the leave without pay that is alleged to have resulted in the treatment to
which she objects. Accordingly, Plaintiff has failed to establish the fourth element of her prima
facie case, that others similarly situated were treated more favorably.
ii.

Legitimate, nondiscriminatory reason and pretext

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Even if Plaintiff had established a prima facie case, Defendants have come forward with a
legitimate nondiscriminatory reason for the objected to conduct. See Abarca, 404 F.3d at 941.
Defendants state that the actions of which Plaintiff complains were taken due to Plaintiff’s
excessive absences and failure to comply with CBP leave policy. Mot. 13. These are legitimate,
nondiscriminatory reasons. See Ajao v. Bed Bath and Beyond, Inc., 265 F. App’x 258, 263
(5th Cir. 2008) (citing Crawford v. Formosa Plastics corp, La., 234 F.3d 899, 902 (5th Cir.
2000)) (finding that poor work performance including attendance issues to be a legitimate,
nondiscriminatory reason). Therefore, the burden shifts to Plaintiff to show that the reasons were
a pretext for discrimination. See Abarca, 404 F.3d at 94.
Plaintiff has utterly failed to offer any evidence that the Defendants’ reasons for the
objected to actions were pretextual. Plaintiff’s only argument appears to be that Defendants did
not meet their burden on summary judgment because all of their summary judgment evidence is
inadmissible. But, the Court has ruled otherwise, so Plaintiff must show a fact issue of pretext
which she has not done with even a scintilla of evidence. The Court has combed the record on
Plaintiff’s behalf and finds nothing contained there that would hint at the existence of pretext.
Indeed, the evidence seems to suggest that had Plaintiff not been absent from work for so many
hours, and had she followed leave policy, Russell would not done the things that upset Plaintiff:
He would not have managed Plaintiff’s supervisees directly; he would not have insisted on
Plaintiff providing medical documentation to use Leave Without Pay pursuant to CBP policy;
and, he would not have changed Plaintiff’s attendance record from Leave Without Pay to Absent
Without Leave. Further, it seems that Russell would have given Plaintiff a performance award as
he had done in each of the previous years Plaintiff was under his supervision. See Hill Decl. 5.
Accordingly, Defendants’ Motion is granted as to the disparate treatment claim.

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b.

Retaliation

Defendants next challenge Plaintiff’s claim that Defendants retaliated against her for
engaging in protected activity. Mot. 8. The burden shifting analysis of McDonnell Douglas
applies to retaliation claims. McCoy, 492 F.3d at 556; Long v. Eastfield College, 88 F.3d 300,
304 (5th Cir. 1996). To survive summary judgment, the plaintiff must first make a prima facie
showing that “(1) [she] engaged in activity protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link existed between the protected activity and the adverse
action.” Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002) (quoting Raggs v. Miss. Power &
Light Co, 278 F.3d 463, 471 (5th Cir. 2002)) (alteration in original). If the plaintiff establishes the
prima facie case, the defendant must demonstrate a legitimate, nondiscriminatory reason for the
employment action. Id. (citing Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001)). If the
defendant satisfies this burden then the plaintiff must prove that the “employer’s stated reason for
the adverse action was merely a pretext for the real, discriminatory purpose.” Id. The nonmovant
need only present the existence of a genuine issue of material fact. Id.
I.

Prima facie case

The parties do not dispute that Plaintiff engaged in protected activity when she instituted
an EEO complaint in September 2007. Mot. 8; Resp. 6. However, Defendants argue that Plaintiff
cannot establish the second and third elements of the prima facie case, the existence of an adverse
employment action, and a causal connection between Plaintiff’s instituting the EEO complaint
and the conduct which she argues is retaliatory. Mot. 8. Plaintiff responds that all of Russell’s
words and actions taken together create a question of fact whether Defendants’ conduct
constituted adverse actions, and that the temporal proximity between Plaintiff’s engaging in the

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protected activity and the adverse employment actions establishes the necessary causal
connection. Resp. 5-6.
The United States Supreme Court has held that a retaliation claim may be based upon an
action that “a reasonable person would have found . . . [to be] materially adverse, ‘which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge or discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). “Whether a reasonable
employee would view the challenged action as materially adverse involves questions of fact
generally left for a jury to decide.” McArdle v. Dell Prods., L.P., 293 F. App’x 331, 337 (5th Cir.
2008) (citing White, 548 U.S. at 71-73; Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir.
2008)). In McArdle, the Fifth Circuit held that a potential loss in compensation to a plaintiff could
constitute an adverse employment action and found that the issue was best left for the jury. Id. at
337-38. Thus, in this case, Defendants’ denying Plaintiff a performance award for 2008 could
also constitute an adverse employment action and such determination is best left for the jury. See
Garner v. Chevron Phillips Chem. Co., L.P., --- F. Supp. 2d ----, 2011 WL 5967244, at *26 (S.D.
Tex. 2011) (finding that under White, “whether the reduction in the plaintiff’s bonus percentage
constituted an adverse action is for the jury to decide”).
With regard to the third element, the causal connection between the adverse employment
action and the protected activity, Plaintiff points to her “Individual Complaint of Employment
Discrimination” in support. Resp. 6. (citing Mot. Ex. 2, at 3). She argues that soon after
contacting the EEO counselor in September 2007, the adverse employment actions began, which
included Russell’s refusing to communicate with her, his communicating directly with Plaintiff’s
supervisees, his overriding her decisions, and culminating a year later with the denial of her

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performance award, and the changing Plaintiff’s leave designation to Leave Without Pay. See id.
(citing Mot. Ex. 2.). Close temporal proximity can show the necessary causal connection when
the time lapse is less than four months. Evan v. City of Houston, 246 F.3d 344, 354 (5th Cir.
2001); Thomas v. Geren, 393 F. App’x 182, 188 (5th Cir. 2010); see also Clark Cty Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (“The cases that accept mere temporal proximity between an
employer's knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the temporal proximity
must be ‘very close.’”).
Here it is not crystal clear how much time has elapsed between Plaintiff’s engaging in the
protected activity in September 2007 and all of the adverse employment actions that Plaintiff has
alleged. The Court has already found there to be a question of fact regarding the existence of an
adverse employment action due to the denial of the performance award in October 2008. More
than one year passed between Plaintiff’s engaging in the September 2007 protected activity and
the October 2008 denial of the performance award. This length of time is not close enough in
time to establish a causal connection without more. See Evans, 246 F.3d at 354.
However, Plaintiff alleges that, taken as a whole, Russell’s ongoing actions and his
treatment of Plaintiff over the course of that entire year following the EEO mediation, including
the subsequent communication problems, Russell’s direct management of Plaintiff’s supervisees,
and the manner in which Russell handled Plaintiff’s leave issues constitute an adverse
employment action and are close in time to the protected activity. Resp. 6; see also Mot. Ex. 2, at
3-4. Plaintiff has presented evidence that many of these actions including the communication
problems with Russell, Russell’s giving of assignments to Plaintiff’s employees without her
knowledge, Russell’s changing of Plaintiff’s decisions without notifying her, and Russell’s

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approving of training and temporary duty requests for her employees without consulting her all
began soon after the EEO mediation in September 2007. Because of this close temporal
proximity, Plaintiff has shown a question of fact regarding the existence of a causal connection.
See Evans, 246 F.3d at 354.
ii.

Legitimate, nonretaliatory reason and pretext

Defendants explain that Plaintiff was treated in the manner to which she objects because
they were attempting to deal with her excessive absenteeism and her failure to comply with CBP
policy. Mot. 7. As explained above, this is a legitimate, nonretaliatory reason. See Ajao, 265 F.
App’x at 263.
But, Plaintiff has not met her burden because she has not offered any evidence of pretext.
Her only statement in response is that Defendants have not offered any summary judgment
evidence in support of their reason for her treatment at work. Resp. 7. But, as explained above,
Defendants have offered considerable admissible evidence of legitimate reasons for the way
things were handled in the office, that they were attempting to deal with the fallout from an
employee with very significant work absences. This may not have been to Plaintiff’s liking but
she has not shown that Defendants’ explanation for Russell’s actions was anything but legitimate.
Accordingly, Defendants’ Motion is granted as to the retaliation claim.
c.

Constructive discharge

Lastly, Defendants challenge Plaintiff’s constructive discharge claim arguing that
Plaintiff has not provided evidence showing that the conditions were sufficiently severe to cause
her to quit her job. Mot. 10.
In order to prove constructive discharge, a plaintiff must show that “a reasonable party in
[the plaintiff’s] shoes would have felt compelled to resign.” Dediol v. Best Chevrolet, Inc., 655

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F.3d 435, 444 (5th Cir. 2011) (quoting Benningfield v. City of Houston, 157 F.3d 369, 378 (5th
Cir. 1998)). In determining if a reasonable employee would feel compelled to resign, courts
consider the presence of the following events: “(1) demotion; (2) reduction in salary; (3) reduction
in job responsibility; (4) reassignment to menial or degrading work; (5) reassignment to work
under a younger supervisor; (6) badgering harassment, or humiliation by the employer calculated
to encourage the employee’s resignation; or (7) offers of early retirement or continued
employment on terms less favorable than the employee’s former status.” Id. (citing Brown v.
Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
Furthermore, to constitute constructive discharge, there must be “greater severity of
pervasiveness or harassment than the minimum required to prove a hostile work environment.”
Id. (quoting Benningfield, 157 F.3d at 378). To survive summary judgment on a claim of hostile
work environment, a plaintiff must create a fact issue on each of the following elements: “(1)
racially discriminatory intimidation, ridicule, and insults that are; (2) sufficiently severe or
pervasive that they; (3) alter the conditions of employment; and (4) create an abusive working
environment.” Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000), overruled on other
grounds by White, 548 U.S. at 53. In evaluating a hostile work environment claim, the court uses
a totality-of-the-circumstances test which focuses on “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating . . . and whether it
unreasonably interferes with an employee’s work performance.” Id. (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993)).
In this case, Plaintiff has not provided evidence to create a question of fact regarding the
presence of a constructive discharge. First, she has not shown the presence of any of the events
set out by the Fifth Circuit in Brown and Dediol. There was no demotion and no reduction in

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salary.8 Plaintiff does not provide evidence that she was assigned menial or degrading work.
With regard to the issues surrounding Plaintiff’s Leave Without Pay, there is no dispute that
Russell was following CBP policy, and DFO Hinojosa’s direct orders, when requiring
documentation for this leave. Moreover, Plaintiff does not argue that Russell’s inappropriate
comments about slaves and monkeys were more than isolated incidents nor does she assert that
these comments were directed only at her. Hill Depo. 109:23-110:15. Taken as a whole,
Russell’s conduct and comments were not sufficiently pervasive or severe to amount to a
constructive discharge claim. See Dediol, 655 F.3d at 444.
Further, the situation alleged does not even amount to a hostile work environment claim
under Supreme Court precedent and, for that reason, also cannot for the basis of a constructive
discharge. See id. Plaintiff acknowledged that Russell apologized for the statement about the
inability of slaves to quit their jobs just after he made it. Hill Depo. 20:9-22:14. And, as for the
Russell’s placement of a toy monkey on his desk and related comment, Plaintiff was unaware of
the context for the remark. These statements and Russell’s other conduct regarding Russell’s
communication issues, Plaintiff’s leave, and the management of her supervisees, were simply not
severe enough to amount to a hostile work environment. See Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of
employment.’”) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).

8

Although she did not receive the performance award for 2008, Plaintiff does not
argue that this was a reduction in salary. Further, the denial of a performance
award even combined with less favorable work assignments, derogatory
comments, and the requirement that the employee use leave time to compensate
for arriving late to work do not constitute a hostile work environment. Ellis v.
Principi, 246 F. App’x 867, 871 (5th Cir. 2007); Proctor v. Sw. Bell Tel. Co.,
Civil Action No. H–10–1068, 2011 W L 1770831, at *4 (S.D. Tex. May 9,
2011).

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Therefore, they cannot form the basis for a constructive discharge claim. See Dediol, 655 F.3d at
444. Defendants’ Motion is granted on this claim.
III.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment, ECF No. 36,

is GRANTED.
The Clerk shall close the case.
SO ORDERED.
SIGNED on this 28th day of February, 2012.

______________________________________
KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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