MAYBANK v. MCHUGH

Filing 51

ORDER GRANTING 41 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
STEPHEN A. MAYBANK,
Plaintiff,
VS.
JOHN M. McHUGH, SECRETARY,
DEPARTMENT OF THE ARMY,
Defendant.

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Civil Action No: SA-11-CA-508-XR

ORDER
On this date, the Court considered Defendant’s Motion for Summary Judgment (docket no.
41) and the Response and Reply thereto. After careful consideration, the Court grants the motion.
I. Factual and Procedural Background
Plaintiff Stephen Maybank was employed as a Traffic Management Specialist by the U.S.
Army at Fort Sam Houston from August 2003 to February 2008. Before beginning civilian
employment at Fort Sam Houston in August 2003, Plaintiff held a similar position as active duty
military at Fort Gordon, Georgia, until his military retirement on May 31, 2003. Plaintiff was hired
to work in the Logistics Readiness Division, Transportation Branch, of the G-4 Directorate of the
U.S. Army South Organization (USARSO) at Fort Sam Houston, San Antonio.
At the time Plaintiff accepted the position, the USARSO command was in the process of
moving from Puerto Rico to Fort Sam Houston. The Army entered into a transportation agreement
to relocate Plaintiff from Fort Gordon to Fort Sam Houston, and this agreement provided Plaintiff
with the benefit of relocation expenses. Plaintiff has admitted that the transportation agreement was

1

entered in error based on the fact that USARSO was relocating from overseas. Pl. Ex. 1 at 9; Docket
no. 42-2 at 205. New hires that relocate from a domestic location ordinarily are not paid such
relocation expenses.
When Plaintiff first relocated to San Antonio, his wife and children did not accompany him,
and thus it was only a partial move. In 2003, Plaintiff submitted a voucher for Permanent Change
of Station (“PCS”). He was reimbursed approximately $9,500 in relocation expenses pursuant to
the transportation agreement. After his family moved to San Antonio in 2006, Plaintiff submitted
a final PCS voucher to indicate his family had relocated, with applicable receipts for moving his
household goods. Because his family relocated more than 24 months after Plaintiff, he had to obtain
approval for the time limit extension, which was granted.1 He also requested a commuted rate or
“self-move” because his wife had accepted a job at USAA and needed to move immediately. His
original estimate for the move cost was about $6,000, but the total cost turned out to be
approximately $18,000 because the goods weighed more than he originally estimated. Docket no.
42-2 at 202.
It is undisputed that there were a number of amendments to the original PCS travel order, but
Plaintiff notes that many of the amendments were not made or caused by him. Rather, he states that
Defense Finance Accounting Services (“DFAS”) found the original PCS travel orders were not
properly completed and directed the DCS-G4 Personnel Officer, Ms. Lydia Kieswhetter-Wright to
amend the order. Plaintiff asserts that she attempted to correct the record, which resulted in several
amended travel orders.
The DFAS notified Plaintiff on February 23, 2007, that he was not entitled to the $9,500
1

A civilian employee has two years from the date of the PCS move to file the claim forms.
2

reimbursement and had incurred a debt that would be offset from his regular pay. Docket no. 42-3.
Plaintiff was also notified of his right to request a waiver of repayment of the debt. Id. On February
27, 2007, Plaintiff submitted a waiver of indebtedness application packet to the Commanding
General via his second-level supervisor at the time, Lt. Col. Kyle Waggoner.2 The packet included
a cover memo and all the travel orders, amendments to the travel orders, and email exchanges
between Plaintiff and DFAS regarding how to apply for the waiver. Pl. Ex. 1 at 14.
The details of what happened after that are somewhat disputed and unclear. Waggoner stated
he was suspicious of the packet because it contained so many amendments and discrepancies.3 At
some point, Plaintiff’s third-level supervisor, Mr. James Norris,4 received the waiver packet as it
passed through for approval. He noticed that the packet was missing a copy of the original travel
voucher, and informed Plaintiff that he could not send the packet forward without a copy of the
voucher. Plaintiff states that he then contacted the DFAS supervisor for a copy of the original
voucher and presented it as requested. When Plaintiff provided the voucher on March 7, Norris
could not identify the signature as any authorized supervisor in the G-4 command, and the signature
was illegible. Docket no. 42-7. Norris states that he asked Plaintiff who had signed the voucher, and

2

Waggoner became Plaintiff’s second-level supervisor in 2006 and remained his secondlevel supervisor until February 2008. Docket no. 42-4 at 3.
3

See Fact-finding hearing testimony at 119-127. The Court notes that the transcripts
submitted as summary judgment evidence are not complete, and as a result often do not identify the
various speakers. The Court has attempted to determine who the various speakers are as best it
could.
4

Norris was Plaintiff’s third-level supervisor from 2003 until February 2008. Docket no. 42-

4 at 3.
3

Plaintiff stated that he did not know.5 Plaintiff denies that Norris asked him this, and states Norris
asked him only if he had a copy of the original voucher, to which Plaintiff replied that he was not
sure.
Norris stated he became suspicious because Plaintiff had not submitted the original voucher
and because the signature was illegible and Norris could not identify it as an authorized signature.6
Norris suspected the signature might be forged. Norris also stated that he became suspicious of the
self-move that he had approved, and that Maybank had taken advantage of the self move.7 Norris
testified decided to go to JAG because he did not want to send in a packet where he had doubt about
its authenticity, and he wanted guidance from JAG. Docket no. 42-2 at 224-25.
The details of how Norris and Waggoner approached JAG are unclear and/or disputed, as are
the details of how it was determined that they should go to law enforcement. Plaintiff complains that
no one ever approached him with concerns about the voucher before going to law enforcement.
Plaintiff also complains that Norris and Waggoner’s explanations for why they were suspicious are
not credible, and they could have easily resolved their suspicions about the signature and voucher

5

Plaintiff asserts that the identity of the signor did not matter to him, because the travel had
already been authorized and the signature merely attested that the papers were in order. Pl. Ex. 1 at
11.
6

Norris did not investigate to determine who the signature belonged to, nor did he talk to
Plaintiff again about the packet before speaking to JAG. Docket no. 42-2 at 223. Although Plaintiff
makes much of the fact that he was not asked who signed the voucher, the fact remains that, if he
had been asked, Plaintiff would not have known the identity of the signer, and thus this likely would
not have alleviated any suspicion.
7

Docket no. 42-8 (Norris sworn statement). Norris testified at the EEOC hearing that he was
not concerned about the number of amendments to the packet because they had been explained to
him and he was aware of the circumstances surrounding them. Docket no. 42-2 at 226-27.
4

by talking to Plaintiff.8
Defendant states that Waggoner then contacted the military police, but they directed him to
the Criminal Investigation Division (CID). Plaintiff states that Waggoner identified Charles Koutras
as the person who advised he go to CID, but Koutras testified that he gave no advice whatsoever.
Plaintiff argues that Defendant’s explanations of how they decided to contact CID are conflicting
and not credible. Waggoner contacted the CID on or about April 12, 2007 to request an investigation
and provided a sworn statement detailing his suspicions, as did Norris. The investigation was
conducted by Agent Branlund. She questioned Norris on April 12, 2007 about his suspicions. She
also asked him if there were any other “questionable” vouchers submitted by Plaintiff. Norris stated
that Plaintiff went TDY (temporary duty) to a GSA conference and had a rental car, the receipt for
which reflected excessive mileage, and the hotel ticket for parking only reflected two days rather
than the entire duration. Norris stated that Plaintiff never admitted it, but he suspected that Plaintiff
stayed with a friend and not at the hotel. Apparently Waggoner also expressed suspicion about some
of Plaintiff’s other travel.
CID completed its investigation in about a week, and closed the case on April 18, 2007 after
finding no basis to find any criminal misconduct. Branlund testified that she telephoned Waggoner
about the results, and that he expressed some concerns about the fact that CID had not verified the
mystery signature. At some point, JAG Agent Woods also expressed disagreement with the conduct
of the investigation and its thoroughness to CID.
Defendant asserts that Plaintiff’s supervisors did not inform him that he had been referred
8

The signature was ultimately determined to be legitimate. Plaintiff’s waiver request was
ultimately approved by the Commanding General on June 11, 2007, and the recommendation was
accepted by DFAS such that Plaintiff was not required to repay the relocation reimbursement.
5

for criminal investigation upon advice from CID, nor did they then inform him that he had been
cleared of any wrongdoing because he had not been told of the investigation in the first place.
Plaintiff states that Agent Branlund testified that she did not advise Plaintiff’s supervisor not to
discuss the case with the Plaintiff or to inform him that he was being investigated, but only
referenced not discussing a new incident (the allegation of an additional fraudulent TDY voucher).
After a time, Plaintiff began to question why he had not heard about his waiver request and
attempted to locate it. He then concluded that his waiver request was being delayed or intentionally
lost (by Norris and Waggoner) because of his race. Docket no. 42-4 at 3; Pl. Ex. 1 at 16. Plaintiff
first contacted the EEO office on or about April 18, 2007 to inquire about procedures, then contacted
an EEO counselor on April 20, 2007.9 The EEO counselor reported to Plaintiff sometime in June
that his waiver packet was not lost but had been referred to CID for investigation. Pl. Ex. 1 at 16.
Thus, Plaintiff learned on June 15 about the investigation. Plaintiff filed his Formal Complaint of
Discrimination on June 25, 2007.
Plaintiff’s EEO complaint alleged that Plaintiff was discriminated against on the basis of his
race (Black), and retaliated against for his prior EEO activity (April 20, 2007). In support of the
racial discrimination complaint, Plaintiff wrote: “On March 29, 2007, I became aware that Mr.
Norris lost my packet, for ‘Waiver for Repayment of Debt,’ which I submitted on 27 Feb 2007. I
perceive that Mr. Norris’ action is discriminatory, and maybe a willful intent to discriminate based
on my Race. Further, his action created a hostile work environment, which has festered into distrust
and anxiety.”
In support of the reprisal/retaliation (April 20, 2007) claim, Plaintiff wrote: “On 15 Jun 2007,
9

Plaintiff amended the Complaint on February 13, 2008.
6

I discovered the USARSO Command (Mr. James Norris and COL Dan Meyer), withheld favorable
results of the outcome of a criminal investigation and continued to pursuit of an investigation after
I was cleared of all wrong-doings by Criminal Investigations Division (CID). I believe such reprisal
action resulted in: a) The continual action (withholding information) to create the appearance of
improprieties and illegal actions when the investigation was concluded; b) The continuation of
actions (affidavits were still being submitted to CID) to incriminate me after the investigation was
concluded; c) Actions to remove me from favorable consideration for a ‘Supervisory’ position, as
indicated in personnel structure by paragraph and line number, dated Apr 2007 to a ‘NonSupervisory’ position as indicated in the change to the 6th Army personnel structure, dated 7 May
2007.”10
In support of the reprisal/retaliation since March 2005 claim, which is really a discrimination
claim, Plaintiff wrote: “I perceive that the bias and animosity against me was based on a previous
disagreement with Mr. Norris concerning the execution of a contract resulting in me being: a)
Removed as the Contracting Officer Representative (COR); b) Denied (4) Training: - Logistics
Execution Development Course, - Transportation and Logistics Mgmt, - Sustainment Base
Leadership & Mgmt, and - Transportation Coordinator Trng; c) Denied Travel as it relates to specific
duties and responsibilities for job assignments (could not perform my job, because I was not allowed
to travel, but the Contractor (Mr. Jose Hernandez and Ms. Muriel Jacque-Saintiny), were used to
perform my duties.” Plaintiff later clarified that this claim was not a retaliation claim based on
protected EEO activity, but part of his race discrimination claim.
The Army investigated between August 22, 2007 and May 12, 2008, creating a Report of
10

This last allegation was voluntarily withdrawn. Docket no. 42-1 (EEOC Decision) at 3 n.1.
7

Investigation (ROI), including a transcript of sworn testimony taken at a Fact-Finding Conference
on August 29, 2007. Plaintiff elected to proceed to an evidentiary hearing conducted by an EEOC
Administrative Judge. The evidentiary hearing was conducted May 6-8, 2009, and Administrative
Judge Robert Powell then issued a Bench Decision in the Army’s favor on May 8, 2009. The
Army’s office of Equal Employment Opportunity Compliance and Complaints Review issued a Final
Agency Action adopting the decision on June 10, 2009. Plaintiff appealed to the EEOC’s Office of
Federal Operations, which issued its Decision affirming the final agency action on November 9,
2010. Docket no. 42-1.
Plaintiff filed his original complaint on December 21, 2010 in the District of Columbia
District Court, asserting claims under Title VII. Federal employees asserting discrimination claims
under Title VII are entitled to de novo review, but the administrative findings may be entered into
evidence and considered by the district court. Astoria Fed. Sav. & Loan Assn’ v. Solimino, 501 U.S.
104, 113-14 (1991) (citing Chandler v. Roudebush, 425 U.S. 840 (1976)). Following a joint motion
of the parties to transfer venue, the case was transferred to this Court.
Plaintiff was later granted leave to file an amended complaint, and the First Amended
Complaint (docket no. 23) is the live pleading. Therein, Plaintiff alleges the following claims: (1)
Defendant wrongfully referred Plaintiff to CID, without affording him the opportunity to address the
stated concern or to clarify the matter, while other similar employees were not referred to CID;
Plaintiff asserts that he was targeted because of his race; (2) Defendant illegally retaliated against
Plaintiff for filing an EEO complaint and discriminated against him based on his race by keeping the
criminal investigation and its result secret from him, and by actions taken to press CID to continue
a closed investigation after CID found no basis for continuing the investigation; Plaintiff contends
8

that Defendant kept the knowledge of the criminal investigation from Plaintiff and secretly
maintained the appearance of wrongdoing in an effort to harm and blemish Plaintiff’s service record;
and (3) Defendant discriminated against Plaintiff on the basis of his race by denying him travel to
overseas duties, wrongfully removing him from duties as a COR, and denying training opportunities.
After discovery, Defendant filed its Motion for Summary Judgment. Defendant argues that
summary judgment is appropriate because (1) Plaintiff cannot establish a prima facie case of race
discrimination insofar as he cannot point to any nearly identically situated employees who received
preferential treatment; (2) he otherwise has no probative evidence that Defendant was motivated by
discriminatory and retaliatory animus; (3) he did not sustain a materially adverse employment action;
(4) the Army acted for legitimate, non-discriminatory reasons; and (5) Plaintiff’s claims regarding
denial of training, removal from the COR position, and most of his claims regarding denial of travel
are untimely.
II. Summary Judgment Standard
The court shall grant 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. F ED. R. C IV. P. 56.
To establish that there is no genuine issue as to any material fact, the movant must either submit
evidence that negates the existence of some material element of the nonmoving party’s claim or
defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at
trial, merely point out that the evidence in the record is insufficient to support an essential element of
the nonmovant’s claim or defense. Lavespere v. Niagra Machine & Tool Works, Inc., 910 F.2d 167,
178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the
burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City

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of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).

III. Analysis
A. Race Discrimination Claim Related to the Referral to CID for Investigation
Plaintiff alleges the following: The Defendant wrongfully referred him to CID without
affording him the opportunity to address the stated concern or to clarify the matter. The Defendant’s
action in the CID referral was inconsistent with the manner in which others in the organization, with
similar Defense Travel System (DTS) errors, were addressed. Although there were many other
personnel in the organization, who were identically situated, only Mr. Maybank was referred to
criminal authority. Yet, a Command Audit Report clearly showed that Mr. Maybank’s travel error
resulted from the implementation of the new DTS, which was extremely user “unfriendly,” and that
ineffective management control contributed to the DTS overpayment errors. Since the persons who
referred Mr. Maybank to CID were aware of this, they made statements under oath that they knew
to be false at the time of the referral.
Defendant argues that Waggoner and Norris had legitimate reasons to be concerned about
the propriety of Plaintiff’s waiver request and appropriately sought legal advice to address these
concerns before forwarding the waiver application to the Commanding General. Defendant notes
that the investigation was closed on April 18, 2007 and was not re-opened, that Plaintiff was not
charged with a crime, that Plaintiff was not “titled” by CID,11 and that his name is not retrievable on
any national criminal record database by any potential employer as a result of the CID referral.12

11

Titling is the process by which the CID makes an administrative determination about
whether the individual and the possible crime for which he was investigated will be indexed with
the national Crime Records Center.
12

This is confirmed in the summary-judgment evidence submitted.
10

Defendant notes that Plaintiff was not disciplined as a result of the waiver request, and the request
was ultimately approved. Defendant contends that Plaintiff cannot establish that any other nearly
identically situated employee made a similar waiver request for repayment of a debt and was treated
more favorably. Accordingly, Defendant moves for summary judgment on Plaintiff’s claims related
to the CID investigation because Plaintiff was not materially harmed and because Plaintiff has failed
to demonstrate disparate treatment.
In order to establish a prima facie case of discrimination in a disparate treatment case, a
plaintiff must show that she was: “(1) a member of a protected class; (2) qualified for the position;
(3) subject to an adverse employment action; and (4) treated differently from others similarly
situated.” Abarca v. Met. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005) (citations omitted).
1. No adverse employment action
Defendant asserts that the referral to CID resulted in no harm to Plaintiff, as he lost neither
pay nor status. Although Plaintiff testified at the fact-finding conference that withholding the
favorable result of the investigation maintained the appearance of wrongdoing, Defendant notes that
the favorable results were reported to Plaintiff’s supervisors. Further, Defendant notes that Plaintiff
learned of the investigation results approximately two months later, and has not shown how he was
harmed by the delayed notification. Though the Army attempted to persuade CID to continue or reopen the investigation, these attempts were unsuccessful. Thus, Defendant contends, threatened
actions or possible outcomes (such as titling) are not materially adverse if they do not come to be,
and the initiation of internal investigations that do not lead to any administrative action against the
employee are not materially adverse employment actions.
Proof of an adverse employment action is a necessarily element of a prima facie case of race
11

discrimination. With respect to claims of discrimination, in accordance with Title VII’s language,
the Fifth Circuit generally only recognizes ultimate employment decisions such as hiring, granting
leave, discharging, promoting, or compensating as actionable adverse employment actions. See
Harrison v. Corrections Corp. of Am., 2012 WL 1623575 (May 9, 2012).
The Court agrees that Plaintiff fails to demonstrate an adverse employment action based on
the referral to CID for investigation. The Fifth Circuit has held that an investigation into an alleged
improper use of a government vehicle was not an adverse employment action, where pay, benefits,
and level of responsibility remain the same. Mora v. Ashcroft, 142 Fed. Appx. 206 (5th Cir. 2005).
The Court has also generally stated that allegedly baseless investigations or false accusations do not
qualify as ultimate employment actions. Cardenas-Garcia v. Tex. Tech. Univ., 118 Fed. Appx. 793,
at *1 (5th Cir. 2004); Hockman v. Westward Comm., LLC, 407 F.3d 317, 331 (5th Cir. 2004) (claim
that employer instituted a baseless racial harassment investigation did not qualify as adverse
employment action); Breaux v. City of Garland, 205 F.3d 150, 157-58 (5th Cir. 2000) (false
accusations and investigations are not adverse employment actions); Benningfield v. City of Houston,
157 F.3d 369 (5th Cir. 1998) (internal affairs investigation not an adverse employment action).
Other circuit and district courts have reached similar conclusions. Johnston v. O’Neill, 130
Fed. Appx. 1 (6th Cir. 2005) (finding that investigation did not amount to adverse employment
action were all charges were dropped and plaintiff was not otherwise punished); Watkins v. Tex.
Dept. Crim. Justice, Civ. A. No. H-03-5698, 2006 WL 1581833 (S.D. Tex. June 6, 2006) (“To the
extent that Plaintiff asserts that TDCJ discriminated against him by investigating the alleged assault
that occurred during the Prison incident, this claim fails because an investigation of this type is not
an adverse employment action.”); Dawson v. Rumsfeld, Civ. A. No. 1:05-CV-1270, 2006 WL
12

325867 (E.D. Va. Feb. 8, 2006) (“It is evident that the mere decision to initiate an investigation is
not an adverse employment action.”); Lewis v. Conn. Dep’t of Corrections, 355 F. Supp. 2d 607, 619
(D. Conn. 2005) (“Nor could Officer Lewis’ counsel cite a single case that held that the mere
participation in an internal investigation-standing alone-was an adverse employment action. Indeed,
case law on this subject holds precisely the opposite.”).
Although Plaintiff attempts to raise a fact issue concerning whether the referral to CID was
legitimate, he does not produce any evidence demonstrating that the referral affected his the
conditions of his employment in any way. Although he argues that the intent was to “title” him, that
did not occur. Although he contends that certain individuals took actions to press CID to reopen the
investigation, that also did not occur.13 Plaintiff’s testimony during the various investigations and
hearings demonstrates that he suffered no ultimate employment action. Insofar as Plaintiff alleges
that they withheld the outcome to maintain the appearance of wrongdoing, again Plaintiff shows no
adverse employment action that resulted.
2. No disparate treatment under nearly identical circumstances
Plaintiff attempts to establish a prima facie case by showing that other employees with DTS
errors were treated more favorably. To do so, Plaintiff must show that employees who were not
members of the plaintiff’s protected class were treated differently under circumstances “nearly
identical” to his. Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). The employment
actions being compared will be deemed to have been taken under nearly identical circumstances
13

Plaintiff asserts in his brief that “[t]he impact of Defendant’s actions is still problematic
to Plaintiff’s current security clearance investigation; Plaintiff must reference the CID investigation
in all current and future security clearance reviews, which continues to be a source of emotional
duress for Plaintiff.” Response at 34. However, Plaintiff presents no evidence in support of this
assertion, and statements in a brief are not evidence.
13

when the employees being compared held the same job or responsibilities, shared the same
supervisor or had their employment status determined by the same person, and have essentially
comparable violation histories. Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
Thus, “employees who have different work responsibilities or who are subjected to adverse
employment action for dissimilar violations are not similarly situated.” Id.
Defendant argues that Plaintiff cannot show that any nearly identically situated employees
were treated more favorably. Plaintiff acknowledged at the fact finding hearing that he is unaware
of anyone else that submitted a waiver request regarding repayment of a debt. Docket no. 42-5 at
59. Plaintiff was not referred simply for DTS travel errors, but for supposed irregularities and
suspicious circumstances surrounding his waiver request.

Although the referral may have

encompassed additional concerns over other travel issues, these are not nearly identical
circumstances because the violation histories are not similar.14 Further, although Plaintiff contends
that other similarly situated employees had DTS overpayment errors were not referred to criminal
investigation, Plaintiff does not come forth with evidence to identify these individuals or show that
they were similarly situated in terms of their job positions, supervisors, types of errors, etc. Contrary
to Plaintiff’s assertion, the fact that other individuals had overpayment errors and were not referred
for investigation is insufficient to show that these individuals were treated more favorably under
nearly identical circumstances.
3. Pretext
Most of Plaintiff’s briefing attempts to establish that Defendant’s asserted reasons for

14

In addition, it appears from the record that Plaintiff had one of the highest number of
travel-related errors. Docket no. 42-2 at 192-93.
14

referring Plaintiff to CID or attempting to continue or reopen the investigation were pretextual.
Plaintiff points to a number of inconsistencies in the evidence concerning what exactly Norris and
Waggoner were suspicious about, when and how they contacted JAG and CID,15 what they told to
JAG and CID concerning their concerns and investigation, what they were told about keeping
information confidential, and when they learned of the investigation results. Plaintiff contends that
Norris and Waggoner went to CID under false pretenses and with false information, and that their
credibility is easily challenged by their inconsistent statements. However, the Court need not reach
the issue of pretext or credibility because Plaintiff has failed to establish a prima facie case, as
discussed above. The failure to establish a prima facie case requires the Court to grant defendant’s
motion for summary judgment on this employment discrimination claim. See Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 658 (5th Cir. 2012) (“To survive summary judgment on a claim of
employment discrimination based on circumstantial evidence, the plaintiff first must establish a
prima facie case.”).
B. Retaliation Claim
Plaintiff alleges Defendant illegally retaliated against him for filing an EEO complaint in
April 2007 by keeping the criminal investigation and its result secret from him, and by actions taken
to press CID to continue a closed investigation after CID found no basis for continuing the
investigation. Plaintiff contends that Defendant kept the knowledge of the criminal investigation
from him and secretly maintained the appearance of wrongdoing in an effort to harm and blemish
Plaintiff’s service record.
15

Plaintiff devotes much of his reply brief to pointing out alleged inaccuracies in Brandlund’s
investigative summary, concluding that Waggoner incorrectly presented his allegations and misled
her as to certain facts and what was being investigated.
15

Title VII forbids retaliating against an employee because that individual “made a charge”
under Title VII. 42 U.S.C. § 2000e–3(a). As with a discrimination claim, a retaliation claim based
on circumstantial evidence proceeds via the McDonnell Douglas burden-shifting framework. E.g.,
McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). To present a prima facie case
of retaliation, a plaintiff must show: (1) he participated in protected activity; (2) he suffered an
adverse employment action; and (3) there was a causal connection between the protected activity and
the adverse action. Id. at 557. An adverse employment action in the context of a retaliation claim
is one that “a reasonable employee 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
of discrimination.” Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008).
Once the plaintiff makes a prima facie showing, the burden shifts to the employer to
articulate a legitimate, nonretaliatory reason for the adverse employment action. Id. at 557. If the
employer meets this burden of production, then the burden shifts back to the plaintiff to show that
the employer’s proffered explanation is a pretext for retaliation or that the employer’s explanation,
while true, is only one of the reasons for its conduct, and another “motivating factor” is the plaintiff’s
race. At this stage, “a plaintiff must show that the adverse employment action would not have
occurred ‘but for’ the protected activity in order to prove unlawful retaliation.” Long v. Eastfield
Coll., 88 F.3d 300, 308 (5th Cir. 1996) (citation omitted); Nunley v. City of Waco, 440 Fed. Appx.
275, *5 (5th Cir. 2011) (“[O]ur decision in Xerox did not dispense with this final ‘but for’
requirement for avoiding summary judgment.”).
To defeat a motion for summary judgment, a plaintiff must demonstrate “a conflict in
substantial evidence on [the] ultimate issue” of “but for” causation. Hernandez v. Yellow Transp.,
16

Inc., 670 F.3d 644, 658 (5th Cir. 2012). “Evidence is ‘substantial’ if it is of such quality and weight
that reasonable and fair-minded men in the exercise of impartial judgment might reach different
conclusions.” Id. (quotation marks and citation omitted). Temporal proximity, standing alone, is not
enough. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
Plaintiff first contacted his EEO representative on April 18, 2007. Thus, only actions taken
after that date could conceivably be taken in retaliation for this protected conduct. See Watkins v.
Tex. Dept. of Crim. Justice, 269 Fed. Appx. 457, 461 (5th Cir. 2008) (actions that predate protected
activity cannot be retaliatory). Plaintiff was referred to CID on April 12, and CID closed the
investigation on April 18, 2007. Thus, the original referral to CID cannot be retaliatory because it
occurred before Plaintiff’s protected activity.
However, Plaintiff complains that the investigation and its results were kept secret, and CID
was pressed to continue or re-open the investigation in retaliation for his EEO activity. Plaintiff
submits an email from a Teri Garnett to Col. Meyer dated April 21 showing that Plaintiff contacted
an EEO Counselor. Meyer then forwarded it to Norris, Col. Woods, and others in an email dated
April 22. The email informed Norris that Plaintiff filed an EEO Complaint against him related to
the delay in processing his waiver packet. Norris forwarded the email to Waggoner on April 23.16
Plaintiff argues that the results of the CID investigation were kept secret to maintain the
appearance of wrongdoing. At the EEOC hearing, Plaintiff was asked who specifically discriminated
against him, and he listed Norris, Waggoner, and Col. Meyer (the Chief of Staff at the time). Docket
no. 42-2 at 193. Plaintiff testified that Meyer knew the packet was returned from CID on April 20,
16

The email chain refers to a prior meeting among the parties, which Plaintiff asserts was a
meeting to discuss Plaintiff’s EEO Complaint. However, there is no evidence in the record to
support this assertion, and the meeting could just have easily been about the investigation.
17

but he kept it under wraps to “continue the pursuit of the investigation.” Docket no. 42-2 at 195.
However, as Defendant points out, Plaintiff’s supervisors were told of the favorable result of the
investigation.17 Thus, it is unclear how Plaintiff was actually harmed by the fact that the results of
the investigation were kept secret, or who they were kept secret from other than Plaintiff. Although
Plaintiff contends that it created an environment of distrust and stress, presumably the same result
would have obtained had he been told he had been referred to CID for investigation. And Plaintiff
fails to demonstrate any harm stemming from the failure to inform him of the investigation between
its initiation and his discovery in June 2007.
Plaintiff alleges that Defendant “illegally reprised against Plaintiff” by taking actions to press
CID to reopen the closed investigation. Defendant argues that this “reprisal” includes a telephone
call from Lt. Col. Woods (the SJA senior legal counsel) to the CID Special Agent in Charge, Russell
Graves, which was unsuccessful in causing CID to reopen the investigation. Defendant contends that
no further action was taken on the matter, and Plaintiff’s waiver request was ultimately approved.
The evidence shows that CID conducted its investigation quickly, and did not attempt to
determine who signed the original voucher. Russell Graves, the Special Agent in Charge for the CID
unit, testified that he received a request to examine the travel voucher for possible fraud, that they
reviewed the documents and interviewed several people (including finance and “several other
17

At the fact-finding hearing, Plaintiff testified that “[t]he withholding of favorable
information created and maintained the appearance of wrongdoing in the eyes of my superior
Lieutenant Colonel Waggoner and did therefore constitute an act of reprisal.” Docket no. 42-5 at
20. Plaintiff testified that Waggoner believed the packet was still with CID in on May 24, 2007. Id.
at 48. However, in his brief on appeal of the AJ’s decision, Plaintiff states that Waggoner knew the
results of the investigation shortly after it was concluded because Agent Brandlund testified that she
personally telephoned him and gave him the results of the investigation within a day or two of the
outcome. Pl. Ex. 1 at 33. Plaintiff also attaches testimony from Agent Branlund that she informed
Waggoner of the results of the investigation soon after it was closed. Pl. Ex. 3 at 22.
18

individuals”) and determined there was no fraud based on the evidence, the regulation, and the
vouchers. Docket no. 42-5 at 227. He stated that CID did not investigate the signature because “the
signature really is not an issue” because “all the paperwork was genuine.” Id. Graves testified that
CID just looked to see if all the paperwork was there and looked at the circumstances of why it was
filed.
Graves stated he sent the report to JAG at USARSO when it was closed. Id. at 228. He
stated he had discussions with SJA (Col. Woods) that “they didn’t like my findings.” Id. at 229.
Norris also testified that Woods thought they should have done more, and that even after CID closed
the investigation, Plaintiff’s supervisors did not know the identity of the “mystery signature.” Id.
270. Both Norris and Waggoner testified that they did not pursue an additional internal inquiry
because CID had decided not to pursue it and Waggoner felt an additional inquiry would be fruitless.
Id. at 270, 419. Branlund testified that she spoke to Waggoner about the results of the investigation,
and he expressed disagreement. She also stated that Col. Woods expressed disagreement and
inquired about why they did not investigate the signature. Id. at 628-29. It is not clear from the
evidence presented when Woods contacted Branlund or Graves with his disagreement, though it
appears to have been within a week or two after the final report was returned to USARSO SJA. See
Docket no. 42-4 at 15.18
18

The Court points out, as Defendant has done, that Plaintiff refers to evidence that he has
not actually submitted to the Court. For example, he refers to testimony at hearings that is not
included (Defendant has submitted portions, but not all, of certain transcripts). He also refers to
deposition testimony that has not been submitted. In docket no. 47, Plaintiff describes 17 exhibits,
but attached only 9 with his response, and 1 additional exhibit with his sur-reply. The Court cannot
consider evidence that has not been submitted. In addition, the brief filed by Plaintiff’s attorney
during the prior proceedings (Pl. Ex. 1) is not competent summary judgment evidence. The Court
has cited it in some instances for background facts, but it is not evidence for purposes of summary
judgment. Plaintiff was informed by the Defendant of the need to submit his evidence at the
19

Plaintiff alleges that Woods was “expressing more than his disagreement with the CID
experts; he was engaging in possibly illegal activity and was being used as a conduit for retaliatory
action against Mr. Maybank.” Plaintiff asserts that his complaint was a problem for the organization,
and Woods was being used as the conduit to press CID to reopen the investigation as a retaliatory
measure.
The Court questions whether expressing disagreement with the conclusion of an investigation
or urging that the investigation be continued is an adverse employment action even under the more
lenient standard for retaliation claims. Plaintiff argues that the effort was to have Plaintiff titled,
adversely affecting his security clearance. However, it is undisputed that the case was not re-opened,
Plaintiff was not titled, and nothing else occurred. See Docket no. 42-4 (ROI Summary) (“Some
conversations/questions could have occurred after the date the case was officially closed but those
did not change the outcome of the case.”).
Even if it is an adverse employment action, however, Defendant has proffered a legitimate,
nondiscriminatory reason for these actions – the investigation was conducted quickly and did not
determine the identity of the “mystery signature,” which was one of the reasons the waiver packet
had been referred to CID in the first place. Plaintiff fails to demonstrate that this asserted reason was
pretextual.
Plaintiff’s allegation is that “Norris emailed a copy of his CID sworn statement to Woods on
April 23, after the CID agent closed the case and said she notified Waggoner, and a few days after
Plaintiff filed his EEO action. Woods testified he had spoken to Waggoner about the CID sworn

summary judgment stage, and was given an opportunity to do so, but failed to submit all of the
evidence that he references in his briefs.
20

statement; Woods noted he only spoke with Mr. Waggoner after he (Waggoner) filed his sworn
statement. Lt. Col. Woods call[ed] the CID agent and her supervisor to press them to reopen the
case, stating, I think we have a crime here, to which the CID supervisor said, no we do not or words
to that effect.” Plaintiff also states that “Lt. Col. Woods testified that Mr. Waggoner informed him
he had filed a sworn statement with CID.” Response at 38.
As noted, Plaintiff fails to demonstrate pretext insofar as he does not demonstrate that the
reason given for disagreement with the conclusion – that the signature was not identified or that the
investigation was cursory – is false. Further, Plaintiff demonstrates no reason for Woods, who was
the Staff Judge Advocate, to retaliate against Plaintiff for filing an EEO Complaint against Norris,
nor has he demonstrated that Woods was acting “as a conduit” for Norris, Waggoner, or anyone else.
Woods was aware of the facts surrounding the CID investigation, and Plaintiff has not shown he was
acting solely on information provided by Norris and/or Waggoner. Plaintiff has not demonstrated
substantial evidence that Woods’ actions (or anyone else who expressed disagreement with the
investigation’s conclusion or allegedly pressed to have the investigation reopened) would not have
occurred ‘but for’ the protected activity. Accordingly, the Court grants summary judgment on
Plaintiff’s retaliation claims.
C. Race Discrimination – denial of travel and training, and removal from COR
Plaintiff alleges that Defendant discriminated against him on the basis of his race by denying
him travel to overseas duties, wrongfully removing him from duties as a Contracting Officer
Representative (“COR”), and denying training opportunities.
1. timeliness
Defendant notes that a federal employee is required to initiate EEO counseling within 45 days
21

of the challenged employment action, and the failure to timely exhaust administrative remedies bars
the claim.
Before seeking judicial 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); Teemac v. Henderson, 298 F.3d 452 (5th Cir. 2002) (affirming
district court’s dismissal because employee failed to seek informal counseling within forty-five days
of the alleged discrimination before filing EEOC complaint).
Defendant asserts that Plaintiff’s claim regarding replacement as the COR is untimely since
it occurred on or about April 7, 2005, yet Plaintiff did not make his first contact with an EEO
Counselor to complain of discrimination until April 18, 2007. Defendant also argues that Plaintiff’s
denial of training claims are untimely, because they are based on events occurring between
September 2004 and February 2006. Defendant argues that the denial of travel claims based on
denials before March 4, 2007 are untimely.
Plaintiff responds that his claims were not treated as untimely in the proceedings before the
Administrative Judge and EEOC. He asserts that the Administrative Judge accepted the EEO
Officer’s judgment that Plaintiff’s claims of racial discrimination occurred over a number of years,
and the combined effects and totality of the events let to his complaint. Response at 39. However,
Defendant correctly points out that this will not waive the Defendant’s defense of failure to timely
exhaust administrative remedies as there is no affirmative finding of timeliness in the record.
22

In Werner v. Department of Homeland Security, 441 Fed. Appx. 246, 249 (5th Cir. 2011),
the Fifth Circuit considered this issue, and held that the fact “[t]that the TSA investigated Werner’s
hostile work environment claim did not suspend the time limit [of 1614.105(a)(1)] nor indicate the
government waived the defense of failure to timely exhaust administrative remedies.” Id. Rather,
“[i]n order to waive a timeliness objection, the agency must make a specific finding that the
claimant’s submission was timely,” and in the absence of such a finding, summary judgment in favor
of the defendant on timeliness was proper. Id.; see also Ulanoff v. Henderson, 240 F.3d 1073, at *4
(5th Cir. 2000).
The employee bears the burden of establishing waiver, estoppel, or equitable tolling to
circumvent this EEO requirement. Teemac v. Henderson, 298 F.3d 452, 454, 457 (5th Cir.2002).
The Fifth Circuit has held that equitable tolling should not be applied on the basis that timeliness was
not raised as a defense at the administrative stage. Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.
1992). The Fifth Circuit also “has refused to toll the requirement in 29 C.F.R. § 1614.105 . . . where
the [employee] claimed he lacked the necessary knowledge to pursue his claims.” Eberle v.
Gonzales, 240 Fed. Appx. 622, 627 (5th Cir. 2007) (citing Pacheco v. Rice, 966 F.2d 904 (5th Cir.
1992) (the doctrine of equitable tolling “does not permit plaintiffs to suspend the time for filing
discrimination complaints indefinitely when they discover instances of disparate treatment of other
employees months or years after their discharge”)).
Plaintiff points to no specific finding of timeliness in the record, and thus Defendant’s
timeliness defense warrants summary judgment as to all discrete acts of discrimination occurring
more than 45 days before April 18, 2007. Because the COR removal was a discrete act of
discrimination occurring in 2005, Plaintiff’s claims related to this action are time-barred. To the
23

extent the travel and training allegations could be considered continuing violations, the doctrine
requires a series of related acts of discrimination, at least one of which falls within the 45 day
limitation period. Plaintiff alleges that he was denied training from September 2004 to February
2006, and thus none of these events occurred within the 45-day period. Plaintiff alleges that he was
denied travel between May 2005 and July 2007, and Defendant acknowledges that some of these
claims may thus be timely.
2. removal of COR duties
Plaintiff complains that his duties as COR for a contract were removed in April 2005. As
noted, this claim is untimely and summary judgment on that basis alone is warranted. However,
Defendant also moves for summary judgment on other bases.
The contract at issue was for “mil group vehicle repair,” and involved repair and maintenance
of vehicles in connection with certain foreign embassies. Docket no. 42-5 at 89-90. The evidence
shows that Plaintiff, a transportation specialist, was a COR, and Partab, a maintenance specialist was
an alternate COR on the contract. Docket no. 42-2 at 279. As the transportation specialist, Plaintiff
had written the statement of work and put together a lot of the contract.

The orders ran from

September 14, 2004 to September 15, 2005. Plaintiff complains that he was removed as COR on
April 7, 2005. Defendant asserts that the contract was a split contract between transportation and
maintenance, and the decision was made to allow the maintenance specialist to focus on maintenance
issues after the contract was in place so that Plaintiff could perform other duties in the office.19
Defendant seeks summary judgment on this claim on the basis that Plaintiff did not suffer
a materially adverse employment action. Defendant notes that this was a one-time contract that
19

Witnesses testified to this effect at the fact-finding hearing. Docket no. 42-5 at 89-93
24

expired five months later, such that the removal of a portion of Plaintiff’s temporary duties as a COR
was not materially adverse. The evidence shows that Plaintiff was not officially removed as COR,
but did cease to perform the functions of a COR. Docket no. 42-5 at 181. Plaintiff has not provided
summary judgment evidence that the removal of his COR duties was a materially adverse
employment action. As the Court explained previously, a discrimination claim requires an adverse
employment action. “[W]here the evidence produces no objective showing of a loss in compensation,
duties, or benefits, but rather 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.” Anthony v. Donahoe, 2012 WL 470193 (Feb. 13, 2012) (quoting Pegram v.
Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)). Removal of the temporary COR duties, with
no other changes to Plaintiff’s position, is not a materially adverse employment action.
Plaintiff further fails to show that similarly situated employees were treated more favorably
under nearly identical circumstances. Although Partab was not removed as COR, he was a
maintenance specialist, while Plaintiff was a transportation specialist. Thus he was not similarly
situated. Summary judgment on this basis is also proper.
Defendant further argues that the duties were reassigned for a legitimate, non-discriminatory
reason. Partab testified that the decision to transition COR duties to Partab was made by Col.
Chavis. Docket no. 42-5 at 181 (Partab testimony). Norris testified at the fact-finding hearing that
Chavis made the decision to remove Plaintiff’s COR duties because he was needed to perform
transportation duties. Id. at 91. At the EEOC hearing, he stated that the decision was made by
himself and Col. Chavis. Docket no. 42-2 at 281.
Plaintiff contends he has established pretext insofar as Norris first testified that Plaintiff was
25

not removed from his COR duty and did not receive rescinded appointment orders, but then testified
that Plaintiff’s former second-level supervisor (Chavis) removed him from COR duty. However,
Norris testified at the fact-finding hearing both that Chavis made the decision to remove Plaintiff
from COR duties, and that he was never officially taken off. Docket no. 42-5 at 91-92. Thus, these
were not inconsistent statements.
Plaintiff complains that Norris discriminated against him by removing him as COR. Docket
no. 42-2 at 193-95. Plaintiff further asserts that when an email was discovered that clearly indicated
that Norris directed Plaintiff be removed, he again changed the story to say it was planned all along.
Apparently, this was an email from Norris in which Norris stated to Chavis that Partab was the
COR.20 As noted, the fact that Norris testified that Plaintiff was not removed as COR does not raise
a fact issue on pretext. There is evidence in the record that Plaintiff was not officially removed as
COR, but he stopped performing the duties of COR. Further, Norris explained the email by stating
that COR and ACOR were interchangeable and that they were equal. Docket no. 42-2 at 282. Thus,
this is not necessarily probative that Norris made the decision to remove Plaintiff as COR. Further,
other witnesses supported the Defendant’s assertion that the plan to transition to Partab had been in
place all along. See Docket no. 42-6 at 14 (Major Rosas). Thus, although Plaintiff has pointed out
some discrepancies in the testimony concerning the removal of his COR duties, these are not
material discrepancies such that Defendant’s asserted explanation is not worthy of credence or
pretextual.
Summary judgment on Plaintiff’s race discrimination claims related to his COR duties is

20

The Court notes that Plaintiff’s response brief contains no citations to the record in support
of any of these statements.
26

appropriate based on limitations, failure to establish a prima facie case, and failure to establish
pretext.
3. denial of training
Plaintiff complains that he was denied several training courses from September 2004 to
February 2006.21 As noted, because these events all occurred more than 45 days before Plaintiff
went to the EEO Counselor, they are all barred by limitations.
Defendant further argues that training was denied for legitimate, nondiscriminatory reasons.
Defendant asserts that when Plaintiff was denied attendance at particular courses it was because there
was a lack of space or he needed to perform work in the office. Norris testified that he denied some
training requests, and did so for funding reasons and because he needed people to be there to do the
work. Docket no. 42-2 at 289, 313. He also testified some training courses were approved but the
courses were later cancelled. Docket no. 4202 at 295. Defendant notes that others, such as
Plaintiff’s first-level supervisor Lt. Col. Rosas, were denied training and TDY because they were
needed in the office.
One course Plaintiff sought to take – the SBLM training – was a three-month long course
away from the office and also had restricted enrollment numbers. Docket no. 42-2 at 289-290, 316.
Plaintiff compares himself to Mr. Partab, who was sent on the three-month long SBLM training, but
no other employee was sent on any of the training courses Plaintiff says he was denied. Further,
Partab’s circumstances were not similar because Partab’s training was approved by Lt. Col. Chavis,
21

Docket no. 42-6 (AJ Decision) at 4 (“From approximately September 2004 to February
2006, the Agency denied Claimant certain training, courses such as Logistics Executive
Development course, Transportation and Logistics Management, Sustainment-Based Leadership and
Management Course, and Transportation Coordinator training.”); Docket no. 42-1 (EEOC Decision,
listing same claim).
27

not Norris. Norris testified that Partab “circumvented the system” to get his approval by going
through Chavis and not Norris. Docket no. 42-2 at 295. Further, another Black employee (Pickett)
was given training. Docket no. 42-2 at 299. Thus, Plaintiff fails to establish that any similarly
situated employee was treated differently under nearly identical circumstances.
He further fails to demonstrate that the asserted legitimate, nondiscriminatory reasons given
for denial of training were pretext or that race was a motivating factor in the denial of training.22
Summary judgment is granted on these bases, in addition to limitations.
4. denial of travel
Plaintiff complains that between May 2005 and July 2007, he was denied travel because of
racial discrimination. Because Plaintiff contacted the EEO Counselor on April 18, 2007, some of
this denial may have occurred within the limitations period. However, because much of the
underlying evidence has not been presented to the Court, the Court does not have a clear
understanding of what travel was requested at what time, and what reasons were given for the denial
of specific travel requests.
Plaintiff admits that he was sent on ten separate TDY trips for a total of 32 days.23 Thus, as
found by the ALJ, there was no blanket restriction on Plaintiff’s travel. Plaintiff states in his
response brief that his complaint is about the denial of overseas travel. Response at 38. As noted,

22

In his briefing, Plaintiff claims that no reason was given for not approving his application
to attend the American University master degree program in logistics, an independent study course,
done on the Plaintiff’s own time and at no cost to the government. However, the brief does not
direct the Court to any evidence in the record concerning this course, and it is unclear whether this
is one of the courses Plaintiff complained about in the administrative proceedings. Further, he fails
to demonstrate that any other similarly situated employees were not approved for this training.
23

Docket no. 42-2 at 187.
28

however, the Court has not been directed to any specific evidence in the record before the Court
concerning any specific overseas travel requests and the circumstances surrounding their denial.
In his administrative complaint, Plaintiff complained that he was not allowed to travel, but
contractor employees were used to perform his duties. However, Defendant notes that Plaintiff
acknowledges that one of these two contract employees is African-American. Plaintiff fails to show
that similarly situated employees outside of his protected class were treated more favorably with
regard to travel. Although he compared himself to Partab and Gomez at the EEO hearing, he fails
to demonstrate that these employees were similarly situated to him or were treated more favorably
under nearly identical circumstances.
Defendant argues that Plaintiff was not materially harmed by the denial of travel, and that
travel was denied for legitimate nondiscriminatory reasons such as budget constraints. Some
requested travel was not economically feasible. Docket no. 42-5 at 134. It was not unusual for travel
requests to be denied due to funding. Docket no. 52-5 at 203. Further, the evidence shows that
while travel could be required as part of Plaintiff’s job, it was not a primary responsibility or
necessary for performance of his job. Docket no. 42-5 at 134, 190-91. The Court finds that Plaintiff
has failed to proffer sufficient summary judgment evidence to establish that he was materially
harmed by the denial of travel or that the asserted reasons for the denial of travel were pretextual.
Accordingly, Plaintiff’s race discrimination claims based on denial of travel are barred by
limitations in part, and summary judgment is granted based on failure to establish a prima facie case
and failure to establish pretext.
D. Hostile Work Environment and Constructive Discharge
In his brief, Plaintiff contends that “[t]he Defendant created a hostile work environment,
29

perhaps to the level of constructive discharge.” Thus, to the extent Plaintiff asserts these claims,
summary judgment is proper, as urged by Defendant in the motion for summary judgment.
Whether a work environment is hostile is determined by an objectively reasonable standard
assessed by the totality of the circumstances. Alaniz v. Zamora–Quezada, 591 F.3d 761, 771 (5th
Cir. 2009). A hostile-work-environment claim must be supported by harassment “sufficiently severe
or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working
environment.” Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (1986). Relevant factors include
“frequency of the conduct, its severity, the degree to which the conduct is physically threatening or
humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work
performance.” Alaniz, 591 F.3d at 771. Plaintiff’s evidence is insufficient to raise a fact issue
concerning hostile work environment.
Constructive discharge claims are assessed by the objective standard of whether a
“reasonable employee would feel compelled to resign” under the circumstances. Stover v.
Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008). The evidence “must demonstrate
a greater severity or pervasiveness of harassment than the minimum required to prove a hostile
working environment.” Id. Plaintiff must show “working conditions . . . so intolerable that a
reasonable person in the employee’s position would have felt compelled to resign.” Aryain v.
Wal–Mart Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 2008). Factors to look for include: (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.
30

The evidence here does not rise to that level. It cannot be said that Plaintiff’s working conditions
were so intolerable that a reasonable employee would feel compelled to resign. In fact, despite
learning of the investigation in June 2007, Plaintiff did not resign until February 2008, when he left
USARSO for a promotion to a GS-13 position with the Army Corps of Engineers.
Conclusion
Defendant’s Motion for Summary Judgment (docket no. 41) is GRANTED. Plaintiff shall
take nothing on his claims, and the action shall be DISMISSED WITH PREJUDICE. The Clerk
shall close the case and enter Judgment in accordance with Rule 58.
It is so ORDERED.
SIGNED this 18th day of June, 2012.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

31