Corbett v. Texas Tech University Health Sciences Center

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

SHANNON CORBETT,

Plaintiff,

v. No. 5:21-CV-281-H

TEXAS TECH UNIVERSITY HEALTH

SCIENCES CENTER,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Dr. Shannon Corbett was a student in Texas Tech University Health

Sciences Center’s Anesthesiology Residency Program. As part of the program, she was

required to pass a standardized exam before entering the fourth year of residency. After

failing the exam four times, Dr. Corbett was recommended for dismissal. She filed a

complaint with Texas Tech’s Office of Equal Opportunity and appealed the dismissal

recommendation, which was ultimately upheld. Dr. Corbett then filed suit, bringing claims

of sex discrimination, hostile workplace harassment, and retaliation.

The Court grants summary judgment in part and denies it in part. The Court grants

summary judgment as to Dr. Corbett’s sex discrimination because she fails to meet two

elements of her prima facie case. The Court also grants summary judgment as to Dr.

Corbett’s retaliation claims because she cannot meet the prima facie case for either claim

and failed to establish pretext. The Court, however, denies summary judgment as to Dr.

Corbett’s hostile workplace harassment claim because she has pointed to at least some

evidence sufficient to create a genuine issue of material fact as to whether the conduct

against her was severe or pervasive enough to alter the conditions of her employment.

1. Factual and Procedural Background

A. TTUHSC’s Anesthesiology Residency Program

Defendant Texas Tech University Health Sciences Center (TTUHSC)—a state-

supported institution that is part of the Texas Tech University System—maintains an

Anesthesiology Residency Program (ARP). See Dkt. No. 19 at 2. During the first year of

the ARP, residents receive “broad-based clinical training.” Id. That training is followed by

three clinical (CA-1, CA-2, and CA-3) or post-graduate years (PGY) “during which

residents receive training focused on the clinical application of anesthesiology and its

various subspecialty rotations.” Id.

Throughout the ARP, residents are required to “meet certain performance

requirements and clinical competency standards” (id.) and must pass certain medical

licensure exams, including the American Board of Anesthesiology (ABA) Basic Exam,

within certain deadlines in order to advance to the next post-graduate year of the program

(id. at 3). The ABA Basic Exam “is a computer-based multiple-choice test used to assess a

resident’s mastery of topics.” Id. at 34. According to the ABA, if a resident fails the ABA

Basic Exam for the first time, that resident can retake the exam at the next opportunity. Id.

However, “a resident who fails the ABA Basic Exam for the second time is automatically

marked as ‘unsatisfactory’ for the reporting period by the ABA,” and the ARP “has no

authority to change the ‘unsatisfactory’ marking.” Id. “A resident cannot graduate from the

residency training program without passing the ABA Basic Exam.” Id. “Successful passage

of the ABA Basic Exam is a requirement for advancement in the anesthesiology education

continuum as failure reflects a deficit in essential medical knowledge required for an

anesthesiologist.” Id. The ABA Basic Exam has a national first-attempt pass rate of 91

percent. Id. at 4.

B. Dr. Corbett’s Career at TTUHSC

Dr. Shannon Corbett began her employment with TTUHSC as part of the four-year

ARP in July 2016. Dkt. No. 25-1 at 2. While in the program, Dr. Corbett attempted and

failed to pass the ABA Basic Exam in June 2018 and November 2018, scoring in the bottom

1 percent on both attempts. Dkt. No. 19 at 36–37.

In early 2019, Dr. Corbett and Dr. Alan Santos, the Program Director of the ARP at

the time, signed an amendment to Dr. Corbett’s 2018–2019 Graduate Medical Education

Program Agreement. Id. at 23. The amendment specified that “the [ABA] requires passage

of the ABA Basic Exam, the first of three staged exams for ABA Board Certification, prior

to promotion to the CA-3 (PGY 4) year.” Id. It noted that Dr. Corbett had “failed two

attempts of the ABA Basic Exam and received an ‘Unsatisfactory’ report to the ABA for the

July–December 2018 reporting period.” Id. It also stated “that a third failed attempt on the

ABA Basic Exam will demonstrate a significant deficiency in medical knowledge and will

result in a recommendation for dismissal from the program.” Id.

Dr. Corbett took the exam in June 2019 and failed once again. Id. at 38. She scored

in the bottom 3 percent. Id. Consequently, Dr. Corbett also received an “Unsatisfactory”

report to the ABA for the January–June 2019 reporting period, which details that she had

failed the exam three times. Dkt. No. 25-1 at 109.

Rather than recommending that Dr. Corbett be dismissed from the program,

however, Dr. Santos and Dr. Corbett signed another amendment to the 2019–2020

Graduate Medical Education Program Agreement in July 2019. Dkt. No. 19 at 24–25. The

amendment included similar language, noting that Dr. Corbett must pass the ABA Basic

Exam before being promoted to the CA-3 (PGY 4) year. Id. It also explained, “[T]he

TTUHSC Anesthesia Faculty have afforded a fourth and final attempt to pass the ABA

[B]asic Exam. During the period leading up to the test date in November 2019, you will

serve as a resident performing research, with an assigned faculty mentor, as well as attend

all non-clinical residency activities, but all clinical privileges are withheld.” Id. at 24. The

amendment also warned “that a fourth failed attempt on the ABA Basic Exam will

demonstrate a significant deficiency in medical knowledge and will result in an immediate

recommendation for dismissal from the program.” Id.

Dr. Santos “created, funded, and placed Dr. Corbett in a paid 6-month research

position without any clinical duties or on-call hours,” and he connected her “with a mentor

to help her with a study plan to increase her chance for success on this fourth attempt.” Id.

at 34–35. Dr. Corbett was also provided with a question bank to help her study (see Dkt.

No. 25-1 at 37) and access to other TTUHSC resources (Dkt. No. 19 at 41). Nevertheless,

in November 2019, Dr. Corbett failed the ABA Basic Exam once again, scoring in the

bottom 2 percent. Id. at 39.

During her time in the program, Dr. Corbett also showed other performance

deficiencies. For instance, she had difficulty passing the United States Medical Licensing

Examination Step 3 test, ultimately passing it on her third attempt. Id. at 11, 26–27.

Additionally, Dr. Corbett struggled on her ABA In-Training Exams. Id. at 11, 28–30. In

December 2018, Dr. Santos also received an evaluation from a physician at Dallas

Children’s Hospital who had overseen Dr. Corbett during a rotation at that medical care

facility. Id. at 34, 79–80. The physician expressed his department’s “serious concerns”

about Dr. Corbett’s performance and understanding of basic concepts of anesthesiology. Id.

at 79–80.

C. Dr. Corbett’s Dismissal, Complaint to the Office of Equal Opportunity,

and Appeal of Dismissal Recommendation

On December 10, 2019, Dr. Corbett received the Notice of Recommendation for

Dismissal. Id. at 45. The notice informed her that the program faculty had recommended

that she “be dismissed as a resident for deficiency in medical knowledge,” noting that she

had failed the ABA Basic Exam for the fourth time. Id. The notice informed her that Dr.

Steven Berk, the Dean of the School of Medicine, would make the final decision and that

she had 5 business days to appeal the recommendation. Id.

On December 17, 2019, Dr. Corbett filed an appeal of the recommendation of

dismissal. Id. at 51. She claimed that she had been discriminated against on the basis of her

sex. Id. Dr. Corbett was advised to file a complaint with the Texas Tech University System

Office of Equal Opportunity (OEO), which would investigate her complaint. Id. Dr.

Corbett subsequently filed a complaint, and the appeals process related to her dismissal from

the ARP was put on hold pending the OEO’s investigation and determination. Id. Dr.

Corbett complained that Dr. Santos “treated her worse than her male colleagues because

she is female. She alleged that he harassed her and created a hostile work environment in

an attempt to get her (a woman) out of the program.” Id. She also “claimed that Dr.

Santos’ verbal conduct created an intimidating, hostile, and offensive working and

educational environment.” Id.

On April 15, 2020, the OEO issued the Confidential Memorandum detailing its

investigation and findings and conclusions, ultimately concluding that no discrimination

had occurred. Id. at 50–78. The investigator gathered and reviewed information and

“interviewed twenty-five people, including Dr. Corbett and Dr. Santos[,] . . . all six female

faculty members in the Department of Anesthesiology, four female residents/former

residents, and three other females including a faculty member, hospital administrator, and

residency program coordinator.” Id. at 48–49, 51–74. The OEO “found no evidence to

support Dr. Corbett’s allegations of discrimination or harassment based on gender or her

claims that Dr. Santos’ conduct was sufficiently severe or pervasive that it created an

intimidating, hostile, and offensive working and educational environment based on her

sex.” Id. at 75.

Once the OEO’s investigation concluded, the ad hoc appeal subcommittee moved

forward with Dr. Corbett’s appeal of her dismissal recommendation and held a hearing on

April 30, 2020. Id. at 5–9. Dr. Corbett had legal counsel present. Id. at 5. The

subcommittee reviewed the submitted documents, heard each party’s presentation of

evidence, including witness statements, and then deliberated in a closed session. Id. After

deliberation, “the subcommittee unanimously agreed that the anesthesiology residency

followed, afforded, and even went beyond normally provided due process under the

published program and institutional policies.” Id. The subcommittee determined that the

ARP’s recommendation to dismiss Dr. Corbett should be upheld. Id. at 5, 9. One week

later, on May 11, 2020, Dr. Corbett was notified that Dean Berk had upheld the

recommendation decision and that she had been dismissed from the ARP. Id. at 47.

D. Dr. Corbett’s EEOC Charge and Lawsuit

On March 31, 2020, Dr. Corbett filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (EEOC). Id. at 86. She alleged that she had been

discriminated and retaliated against and subjected to a hostile work environment on the

basis of her sex. Id. The EEOC issued its Dismissal and Notice of Rights, explaining that it

was closing its file on this charge and would not be proceeding with its investigation. Dkt.

No. 24-1 at 60. The EEOC explained that it made “no determination about whether further

investigation would establish violations of the statute,” noting that the notice “d[id] not

mean the claims have no merit” or “certify that the respondent is in compliance with the

statutes.” Id. The EEOC also provided Dr. Corbett with notice of her suit rights. Id. at 60–

61.

Dr. Corbett then filed suit against TTUHSC in the 237th District Court in Lubbock

County, Texas, bringing claims for sex discrimination, retaliation, and gender

discrimination pursuant to Title VII and the Texas Commission on Human Rights Act

(TCHRA). Dkt. No. 1-6 at 1–16. TTUHSC removed the case to the Lubbock Division of

the Northern District of Texas. Dkt. No. 1 at 1–3.

TTUHSC has moved for summary judgment on all of Dr. Corbett’s claims. Dkt.

No. 17. TTUHSC argues that (1) it is entitled to sovereign immunity for Dr. Corbett’s

request for punitive damages under Title VII (Dkt. No. 18 at 20); (2) Dr. Corbett’s TCHRA

claims are barred by Eleventh Amendment immunity (id. at 20–21); (3) Dr. Corbett’s

disparate treatment claim fails because she cannot meet the prima facie case or raise a

genuine issue of material fact as to pretext (id. at 22–30); (4) Dr. Corbett’s retaliation claim

fails because she cannot establish a prima facie case or raise a genuine issue of material fact

as to pretext (id. at 30–33); and (5) Dr. Corbett’s hostile work environment claim fails

because Dr. Santos’s treatment of her was not sufficiently severe to constitute harassment

and, even if it was, Dr. Santos was equally abrasive towards men, so Dr. Corbett cannot

show that his actions were based on her gender (id. at 33–36). Dr. Corbett responded (Dkt.

No. 22), stating that she no longer seeks punitive damages against TTUHSC under Title VII

(Dkt. No. 25 at 6) and opposing TTUHSC’s summary-judgment arguments (id. at 13–23).

She also raised several evidentiary objections. Id. at 7–12. TTUHSC replied. Dkt. No. 26.

TTUHSC also moved to strike portions of Dr. Corbett’s summary-judgment evidence (Dkt.

No. 27), to which Dr. Corbett did not respond. Previously, the Court notified the parties

that it would grant the motion for summary judgment in part. Dkt. No. 37. This

memorandum opinion provides more explanation for that decision.

2. Legal Standards

A. Summary Judgment

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A genuine dispute of material fact exists if a reasonable jury could

enter a verdict for the non-moving party.” Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351,

358 (5th Cir. 2020). The moving party “bears the initial responsibility of demonstrating the

absence of a genuine issue of material fact.” Jones v. United States, 936 F.3d 318, 321 (5th

Cir. 2019) (cleaned up). Thus, the moving party must “identify[] those portions of [the

record] which it believes demonstrate [that] absence.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986).

In evaluating a summary-judgment motion, the Court draws all reasonable

inferences in the light most favorable to the nonmoving party. Darden v. City of Fort Worth,

880 F.3d 722, 727 (5th Cir. 2018). However, “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original).  “A fact is

material if its resolution could affect the outcome of the action.” Dyer v. Houston, 964 F.3d

374, 379 (5th Cir. 2020) (citation and internal quotation marks omitted). The Court must

consider materials cited by the parties, but it may also “consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3).

“Where the nonmovant bears the burden of proof at trial, the movant may merely

point to an absence of evidence, thus shifting to the non-movant the burden of

demonstrating by competent summary judgment proof that there is an issue of material fact

warranting trial.” Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 301–02 (5th Cir. 2020)

(citation and internal quotation marks omitted). The movant, however, does not need to

“negate the elements of the nonmovant’s case.” Austin v. Kroger Tex., L.P., 864 F.3d 326,

335 (5th Cir. 2017) (emphasis omitted) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1076

n.16 (5th Cir. 1994)).

When the moving party has met its burden, “the nonmoving party cannot survive a

summary judgment motion by resting on the mere allegations of its pleadings.” Duffie v.

United States, 600 F.3d 362, 371 (5th Cir. 2010). Rather, the nonmovant must identify

specific evidence in the record and articulate how the evidence supports its claim. Willis v.

Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014); see also Fed. R. Civ. P. 56(c)(1)(A). “This

burden will not be satisfied by some metaphysical doubt as to the material facts, by

conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”

Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation and internal

quotation marks omitted). Additionally, Rule 56 does not impose a duty on the Court to

“sift through the record in search of evidence to support” the nonmovant’s opposition to the

motion for summary judgment. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.

1998) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)).

“A failure on the part of the nonmoving party to offer proof concerning an essential

element of its case necessarily renders all other facts immaterial and mandates a finding that

no genuine issue of fact exists.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164

(5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to establish the

existence of an element essential to its case and on which it will bear the burden of proof at

trial, the Court must grant summary judgment. Celotex, 477 U.S. at 322–23. “Where the

record taken as a whole could not lead a rational trier of fact to find for the non-moving

party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).

B. The Texas Commission on Human Rights Act

The TCHRA addresses employment discrimination, retaliation, and hostile work

environment on the basis of sex. Tex. Lab. Code §§ 21.051, 21.055; see Cain v. Blackwell, 246

F.3d 758, 760 (5th Cir. 2001); Soto v. El Paso Nat. Gas Co., 942 S.W.2d 671, 677–78 (Tex.

App.—El Paso 1997, writ denied). The TCHRA “is modeled after federal civil rights law,”

(NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)), and one of its stated

purposes is to “provide for the execution of the policies of Title VII of the Civil Rights Act

of 1964.” Tex. Lab. Code § 21.001(1). Accordingly, Texas courts use “analogous federal

statutes and the cases interpreting them” for guidance when applying the TCHRA.

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); see also Hoffmann-LaRoche

Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004) (explaining that “federal case law may

be cited as authority in cases relating to the [TCHRA]”).

When deciding an issue of Texas law, federal courts follow the lead of Texas courts.

Myers v. Crestone Int’l, LLC, 121 F. App’x 25, 28 (5th Cir. 2005); see also Rodriguez v. ConAgra

Grocery Prods., Co., 436 F.3d 468, 474 (5th Cir. 2006) (“As must federal diversity courts

when deciding an issue of state law, we will follow the Texas courts’ lead.”). Thus, because

Texas courts look to and apply federal precedent, federal courts analyzing TCHRA claims

apply federal precedent as well. Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d

602, 606–07 (5th Cir. 2007); see Bugos v. Ricoh Corp., No. 07-20757, 2008 WL 3876548, at *3

(5th Cir. Aug. 21, 2008). Nevertheless, where Title VII conflicts with TCHRA, the text of

the TCHRA will control. Tex. Dep’t of Transp. v. Lara, 577 S.W.3d 641, 650 (Tex. App.—

Austin 2019, pet. granted) (“Yet while the courts of Texas must look to federal

interpretation of Title VII . . . for guidance on our interpretation of the TCHRA, we

consider that guidance at the expense of the statute itself.” (internal citation omitted)), aff’d

in relevant part 625 S.W.3d 46, 58 (Tex. 2021).

3. Analysis

A. TTUHSC waived sovereign immunity when it removed the case from state

court to federal court.

TTUHSC first argues that Dr. Corbett’s TCHRA claims are barred because

TTUHSC has Eleventh Amendment immunity. Dkt. No. 18 at 20–21. If the Court “lacks

the statutory or constitutional power to adjudicate the case,” the Court must dismiss the

case for lack of subject matter jurisdiction. Home Builders Ass’n of Miss., Inc. v. City of

Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The plaintiff bears the

burden of proof that the Court has jurisdiction. Ramming v. United States, 281 F.3d 158, 161

(5th Cir. 2001). Under the Eleventh Amendment, “[a]bsent waiver, neither a State nor

agencies acting under its control may be subject to suit in federal court.” P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (citation and internal quotation

marks omitted). The parties do not contest that TTUHSC is a state entity and is thus

entitled to Eleventh Amendment immunity. See Tex. Educ. Code ch. 110; Dkt. No. 18 at

21; Dkt. No. 25 at 13–14.

Nevertheless, as Dr. Corbett points out (Dkt. No. 25 at 13–14) and TTUHSC does

not contest in its reply (see Dkt. No. 26), TTUHSC waived sovereign immunity from a

TCHRA suit when it removed this case to federal court. As the Supreme Court has

previously explained, “a State waives [sovereign] immunity when it removes a case from

state court to federal court.” Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613,

618–19, 624 (2002) (“We conclude that the State’s action joining the removing of this case

to federal court waived its Eleventh Amendment immunity . . . .”). Following this

principle, the Fifth Circuit concluded in another case that the defendants, including Texas

Tech University Health Sciences Center at El Paso, had waived sovereign immunity for

TCHRA claims when they removed the case from state court to federal court. Zeng v. Tex.

Tech Univ. Health Sci. Ctr. at El Paso, 836 F. App’x 203, 207–08 (5th Cir. 2020). Likewise,

here, TTUHSC has waived sovereign immunity by removing the case to federal court. See

Dkt. No. 1.

B. The Court grants summary judgment as to Corbett’s sex-discrimination

claim because she fails to meet her prima facie case.

Dr. Corbett alleges that TTUHSC discriminated against her on the basis of sex when

it dismissed her from the ARP, pointing to circumstantial evidence. Dkt. No. 25 at 18–19.

Specifically, Dr. Corbett argues that she was treated less favorably than similarly situated

males who did not pass the ABA Basic Exam but were not recommended for dismissal. Id.

at 19. As Dr. Corbett points out, discrimination claims based on circumstantial evidence

are analyzed under the McDonnell Douglas burden-shifting framework. Id. at 18; Hassen v.

Ruston La. Hosp. Co., 932 F.3d 353, 356 (5th Cir. 2019) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973)). Under the McDonnell Douglas framework, the plaintiff

must first make out a prima facie case of discrimination. Hassen, 932 F.3d at 356.

“Establishment of the prima facie case in effect creates a presumption that the employer

unlawfully discriminated against the employee.” Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 254 (1981).

If the plaintiff meets her initial burden of satisfying the elements of the prima facie

case, then the burden of production shifts to the defendant to establish a “legitimate,

nondiscriminatory reason” for its adverse employment action. Okoye v. Univ. of Tex. Hous.

Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (quoting Reeves v. Sanderson Plumbing Prods.

Inc., 530 U.S. 133, 142 (2000)). In order to meet this burden, the defendant “must provide

both ‘clear and reasonably specific reasons’ for its actions,” (id. at 513 (quoting Burdine, 450

U.S. at 258)), using admissible evidence to support the defendant’s nondiscriminatory

reason. Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 236 (5th Cir. 2016); Hervey v. Miss.

Dep’t of Educ., 404 F. App’x 865, 868 (5th Cir. 2010). “If the employer is able to articulate a

reason, ‘the presumption raised by the prima facie case is rebutted and drops from the

case.’” Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015) (quoting St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)).

If the defendant satisfies this burden, “then the burden shifts back to the plaintiff to

make an ultimate showing of intentional discrimination.” Reed v. Neopost USA, Inc., 701

F.3d 434, 439 (5th Cir. 2012). Under Title VII and the TCHRA, the plaintiff must establish

by a preponderance of the evidence that “either (1) the reason stated by the employer was a

pretext for discrimination, or (2) the defendant’s reason, while true, was only one reason for

its conduct and discrimination is another motivating factor.” Id. at 439–40; see Wittmer v.

Phillips 66 Co., 915 F.3d 328, 332 (5th Cir. 2019).

TTUHSC argues that it is entitled to summary judgment as to Dr. Corbett’s claims

because she cannot meet her prima facie case. Dkt. No. 18 at 23–27. To establish a prima

facie claim of gender discrimination under Title VII and, consequently, the TCHRA, the

plaintiff must show that she (1) is a member of a protected group; (2) was qualified for her

position; (3) suffered an adverse employment action by the employer; and (4) was either

replaced by someone outside of her protected group or treated less favorably than other

similarly situated employees outside of her protected group. Owens v. Circassia Pharms., Inc.,

33 F.4th 814, 825 (5th Cir. 2022); Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 321–22 (5th

Cir. 2021); see also Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).

The parties do not dispute that Dr. Corbett meets the first and third elements. See

Dkt. No. 18 at 23–27; Dkt. No. 25 at 18–19. Dr. Corbett is a female. Dkt. No. 25-1 at 2.

She was recommended for dismissal from the ARP (Dkt. No. 19 at 45), the subcommittee

determined that the recommendation should be upheld (id. at 5–9), and the Dean of the

School of Medicine ultimately dismissed her from the program (id. at 47).

Nevertheless, TTUHSC argues that Dr. Corbett cannot meet the second and fourth

elements. Dkt. No. 18 at 23–27. Specifically, Dr. Corbett was not qualified for her position

because she failed the ABA Basic Exam four times. Id. at 25–26. In addition, she cannot

point to a similarly situated male who received more favorable treatment. Id. at 26. The

Court agrees.

i. Dr. Corbett did not remain qualified for her position because she

could not pass the ABA Basic Exam.

The Court finds that Dr. Corbett cannot meet the second element of her prima facie

case because she cannot show that she remained qualified for her position. As stated in the

Amendment to the 2019–2020 Graduate Medical Education Agreement between Dr.

Corbett and TTUHSC, in order for Dr. Corbett to remain in the program and proceed to the

CA-3 or PGY 4 year, she would need to pass the ABA Basic Exam on her fourth attempt.

Dkt. No. 19 at 24. She “acknowledge[d] that a fourth failed attempt on the ABA Basic

Exam [would] demonstrate a significant deficiency in medical knowledge and . . . result in

an immediate recommendation for dismissal from the program.” Id.

Precedent provides helpful guidance. In Sreeram v. Louisiana State University Medical

Center-Shreveport, the Fifth Circuit considered a similar situation, ultimately concluding that

a third-year surgical resident who had been expelled from her program had “failed to

establish that she was qualified for the position in question at all relevant times.” 188 F.3d

314, 318 (5th Cir. 1999). While the plaintiff in that case had shown an ability to perform

under test conditions, she had received negative surgical evaluations, which demonstrated

that she was unable to perform under real working conditions. Id. Because the plaintiff had

met some qualifications but not others, the court concluded that she failed to show she had

remained qualified for her position. Id. at 318–20.

Here, Dr. Corbett was aware that passing the ABA Basic Exam was a qualification

for continuing in the ARP but ultimately failed to satisfy that qualification. Dkt. No. 19 at

24. Dr. Corbett contests this argument, pointing to her ABA evaluation for the January–

June 2019 reporting period and arguing that she “received satisfactory grades.” Dkt. No. 25

at 19 (citing Dkt. No. 25-1 at 107–109). But that evaluation also gave her an

“Unsatisfactory” score for her Basic Exam Performance, resulting in an “Unsatisfactory”

Overall Clinical Competence score. Dkt. No. 25-1 at 109. Similar to the plaintiff in

Sreeram, although Dr. Corbett is able to show that she met certain qualifications, she fails to

demonstrate that she met other qualifications. Ultimately, then, Dr. Corbett fails

to establish that she was qualified for her position at all relevant times. See Sreeram, 188

F.3d at 318–20. Because she fails to meet an element of her prima facie case, summary

judgment in favor of TTUHSC is warranted.

ii. Dr. Corbett fails to point to a proper comparator and show that she

was treated less favorably than him.

Additionally, because Dr. Corbett has not shown that a similarly situated male was

treated more favorably than her, she fails to meet the fourth element of her prima facie case.

She is unable to point to a male ARP resident who, as a proper comparator, was not

dismissed from the ARP after failing the ABA Basic Exam several times like her. See Dkt.

No. 25 at 19.

“To satisfy the ‘similarly situated’ prong, the employee carries out a comparator

analysis.” Saketkoo v. Adm’rs of the Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022)

(citing Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). The plaintiff must

identify appropriate comparator employees who are outside of the plaintiff’s protected class

and “produce evidence that they were similarly situated employees.” Owens, 33 F.4th at 827

(cleaned up) (quoting Okoye, 245 F.3d at 515). The plaintiff must “demonstrate that any of

the employment actions ‘were taken under nearly identical circumstances’” and that the

comparator employee or employees “shared the same job or responsibilities, reported to the

same supervisor, had ‘essentially comparable violation histories[,]’” and engaged in nearly

identical conduct that drew the employer’s adverse employment action. Hernandez v. Yellow

Transp., Inc., 670 F.3d 644, 659 (5th Cir. 2012) (quoting Lee, 574 F.3d at 260). The plaintiff

must also demonstrate that the employer did treat the employees differently. See Lee, 574

F.3d at 262. While the question of whether an employee is an appropriate comparator is a

question of fact for the jury (see Perez v. Tex. Dep’t of Crim. Just., Institutional Div., 395 F.3d

206, 215 (5th Cir. 2004)), the question of whether a reasonable factfinder could find that the

plaintiff is similarly situated to the comparator employee is a question of law (see, e.g.,

Owens, 33 F.4th at 827–28; Vaughn v. Woodforest Bank, 665 F.3d 632, 640 (5th Cir. 2011)).

The Fifth Circuit has defined “similarly situated employees narrowly” in the context

of Title VII discrimination claims. Eyob v. Mitsubishi Caterpillar Forklift Am., Inc., 745 F.

App’x 209, 213 (5th Cir. 2018). In Lee, for instance, the Fifth Circuit recognized that

employees (1) with different supervisors; (2) who work in different divisions of a company;

(3) who faced an adverse employment action too remote in time from that taken against the

plaintiff; (4) with different work responsibilities; or (5) with different violations will not be

deemed similarly situated. Lee, 574 F.3d at 259–60. However, “nearly identical” is not

synonymous with “identical,” so the situations of the plaintiff and the comparator employee

do not need to be totally or completely identical, only “nearly identical.” Id. at 260. “For

example, it is sufficient that the ultimate decisionmaker as to employees’ continued

employment is the same individual, even if the employees do not share an immediate

supervisor.” Id. at 260–61. Additionally, “[e]ach employee’s track record at the company

need not comprise the identical number of identical infractions,” but “these records must be

comparable.” Id. at 261.

Here, Dr. Corbett fails to carry out any kind of comparator analysis or otherwise

show that another current or former ARP resident was a similarly situated employee. See

Dkt. No. 25 at 19. While she does point to two males who were in the ARP program and

allegedly failed the ABA Basic Exam (Dkt. No. 25-1 at 6), Dr. Corbett does not point to any

evidence to show they failed the exam more than once—much less that their records are

comparable to her four failing scores (Dkt. No. 25 at 19). To the contrary, no other student

in the program’s history has failed the exam four times.1 Dkt. No. 19 at 4. Therefore, Dr.

Corbett is the only person in the ARP’s history to have received as many opportunities to

pass the exam as she did and still fail. See id. Because she cannot point to a proper

comparator, show a comparable track record, and demonstrate that the male received an

opportunity to remain in the ARP, Dr. Corbett fails to meet the fourth element of her prima

facie case. Therefore, the Court grants summary judgment in favor of TTUHSC as to Dr.

Corbett’s sex-discrimination claim.

1 Dr. Corbett objects to ¶ 24 of Dr. Cooper Phillips’s affidavit (Dkt. No. 25 at 9), which states that

“[n]o other resident in TTUHSC’s ARP has failed the ABA Basic Exam four times” (Dkt. No. 19 at

4). She argues that the “statement fails to show that it is based on the affiant’s personal knowledge.”

Dkt. No. 25 at 9. The Court overrules this objection.

At the outset, the Court notes that Dr. Phillips’s affidavit states that he made these statements with

“personal knowledge of the matters contained in[side].” Dkt. No. 19 at 2. In any event, as the Fifth

Circuit has made clear, “there is no requirement for a set of magic words.” SE Prop. Holdings, L.L.C.

v. Green (In Re Green), 968 F.3d 516, 523–24 (5th Cir. 2020) (quoting DIRECTV, Inc v. Budden, 420

F.3d 521, 530 (5th Cir. 2005)). “[P]ersonal knowledge can be inferred if such knowledge reasonably

falls within the person’s ‘sphere of responsibility.’” Id. at 524 (citation omitted); see also RBC Real

Estate Fin., Inc. v. Partners Land Dev., Ltd., 543 F. App’x 477, 479 (5th Cir. 2013) (concluding that an

affiant had personal knowledge as required by Federal Rule of Civil Procedure 56(c)(4) where he

testified about information that he was “responsible for monitoring and collecting”). As Dr. Phillips

explains in his affidavit, he has “authority and accountability for the operation of the program and

responsibilities that encompass every aspect of postgraduate medical training, including assessing

and documenting the competency of each resident and ensuring patient safety.” Dkt. No. 19 at 2.

As part of his responsibilities, then, Dr. Phillip has personal knowledge of how many times Dr.

Corbett and other students failed the ABA Basic Exam.

C. The Court grants summary judgment as to Dr. Corbett’s retaliation claim

because she cannot make a prima facie case of retaliation or raise a genuine

issue of material fact as to pretext.

TTUHSC argues that Dr. Corbett has not shown a prima facie case of retaliation or

raised a genuine issue of material fact as to pretext. Dkt. No. 18 at 30–33. Dr. Corbett

relies on two arguments to support her retaliation claim. Dkt. No. 25 at 20–23. First,

TTUHSC allegedly retaliated against her when the appeal subcommittee determined that

the dismissal recommendation should be upheld a few months after she filed a complaint

with the OEO. Id. at 21. Second, TTUHSC retaliated against her when, months after Dr.

Corbett filed charges of discrimination with the EEOC, Dr. Santos allegedly failed to

forward calls from Dr. Corbett’s prospective employers and reference checkers to the

Graduate Medical Education Department to verify Dr. Corbett’s residency. Id. at 22–23;

Dkt. No. 25-1 at 118. The Court finds that Dr. Corbett has not shown a prima facie case of

retaliation, much less raised a genuine issue of material fact as to pretext, so it grants

summary judgment on this claim.

“To establish a prima facie case of retaliation, [the plaintiff] must show that: (1) she

participated in an activity protected by Title VII; (2) her employer took an adverse

employment action against her; and (3) a causal connection exists between the protected

activity and the materially adverse action.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473,

484 (5th Cir. 2008); see Jenkins v. City of San Antonio Fire Dept., 784 F.3d 263, 269 (5th Cir.

2015). “If the plaintiff makes a prima facie showing, the burden then shifts to the employer

to articulate a legitimate[,] [] non-retaliatory reason for its employment action.” Aryain, 534

F.3d at 484 (citation omitted). Then, “[i]f the employer meets this burden of production, the

plaintiff . . . bears the burden of proving that the employer’s reason is a pretext for the actual

retaliatory reason.” Id.

This third step “requires a greater showing than mere causal connection” and asks

whether the protected activity “was a ‘but for’ cause of the adverse employment decision.”

Owens, 33 F.4th at 835 (quoting Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996)).

The plaintiff must show that the “protected conduct was the reason for the adverse action.”

Id. (emphasis in original). “In other words, even if a plaintiff’s protected conduct is a

substantial element in a defendant’s decision to terminate an employee, no liability for

unlawful retaliation arises if the employee would have been terminated even in the absence

of the protected conduct.” Id. (quoting Long, 88 F.3d at 305 n.4).

i. Dr. Corbett fails to establish a causal link between the complaint

she filed and the appeal subcommittee’s decision that the dismissal

recommendation should be upheld and does not raise a genuine issue

of material fact as to pretext.

Dr. Corbett alleges that TTUHSC retaliated against her when the appeal

subcommittee concluded that the decision to recommend dismissal should be upheld after

she had filed a complaint with the OEO. Dkt. No. 25 at 21. TTUHSC argues, however,

that Dr. Corbett failed to establish a causal link because adverse job actions began before

Dr. Corbett had engaged in any protected activity. Dkt. No. 18 at 30–33. In response, Dr.

Corbett argues that a causal connection between the protected activity—Dr. Corbett’s

complaint with the OEO—and the adverse employment action exists because “TTUHSC

was aware that [Dr. Corbett] had filed a complaint with the OEO . . . when it upheld the

recommendation of [her] dismissal.” Dkt. No. 25 at 21.

As other courts have repeatedly explained, however, a “plaintiff’s protected activity

after [her] misconduct . . . does not establish a causal connection between the protected

activity and the [dismissal].” Crisp v. Sears Roebuck & Co., No. SA–13–CA–962–PM, 2015

WL 12977378, at *14 (W.D. Tex. Mar. 4, 2015). “A plaintiff cannot use the threat of a

discrimination lawsuit to immunize herself from the reasonable and foreseeable

consequences of her misconduct.” Linehan v. Univ. of Tex. at Tyler, No. 6:16-CV-00066-

RWS, 2017 WL 8810745, at *3 (E.D. Tex. 2017) (cleaned up) (quoting Saenger v. Montefiore

Med. Ctr., 706 F. Supp. 2d 494, 519 (S.D.N.Y. 2010)), R. & R. adopted by 2018 WL 703246

(E.D. Tex. Feb. 5, 2018). For instance, where “gradual adverse job actions began well

before the plaintiff had ever engaged in any protected activity,” an inference of causation

based on temporal proximity does not arise. Finch v. Tex. Health & Hum. Servs. Comm’n, No.

H–13–3716, 2015 WL 5674834, at *6 (S.D. Tex. Sept. 25, 2015) (quoting Slattery v. Swiss

Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)). In addition, evidence indicating that

an employer was dissatisfied with the plaintiff’s performance before the plaintiff engaged in

protected activity does not support an inference of a causal link based on temporal

proximity. See Brod v. Sprint Corp. & Sprint/United Mgmt. Co., No. 4:20-CV-1854, 2022 WL

479521, at *8 (S.D. Tex. Jan. 28, 2022). Ultimately, “[t]he mere fact that some adverse

action is taken after an employee engages in some protected activity will not always be

enough for a prima facie case.” Owens, 33 F.4th at 835 (emphasis omitted) (quoting

Swanson v. GSA, 110 F.3d 1180, 1188 n.3 (5th Cir. 1997)).

Here, the misconduct that the appeal subcommittee relied on in deciding that Dr.

Corbett’s recommendation dismissal should be upheld—Dr. Corbett’s fourth failure of the

ABA Basic Exam—occurred before Dr. Corbett filed her complaint with the OEO. Dkt.

No. 19 at 5–9. In addition, TTUHSC made Dr. Corbett aware of its dissatisfaction with her

performance and warned her of the beginning of gradual adverse job action when she signed

the amendments—which occurred long before she filed her complaint. Id. at 23–25. Both

amendments explicitly stated that failure of the ABA Basic Exam for the third and fourth

time would result in the recommendation of her dismissal because those failures would

“demonstrate a significant deficiency in medical knowledge” (id. at 23–24), and the fourth

amendment withheld all clinical privileges (id. at 24). In fact, Dr. Corbett did not even file

her complaint until after she had been notified of the recommendation for dismissal. Id. at

51. Dr. Corbett cannot immunize herself from the results of her misconduct—including the

recommendation of her dismissal and the appeal subcommittee’s subsequent conclusion that

the recommendation should be upheld—by engaging in protected activity. See Linehan,

2017 WL 8810745, at *3.

Even if Dr. Corbett could make a prima facie case, however, TTUHSC has proffered

a legitimate, nondiscriminatory reason for why the subcommittee concluded that the

recommendation should be upheld. As stated in the Notice of Recommendation for

Dismissal, the ARP had received the results of Dr. Corbett’s fourth failed attempt at the

ABA Basic Exam. Dkt. No. 19 at 45. In accordance with the amendment that she had

signed and because she had demonstrated a “deficiency in medical knowledge,” she was

recommended for dismissal. Id. In the appeal subcommittee’s Report of Findings and

Recommendations, the subcommittee noted that “Dr. Corbett’s fund of knowledge as

evidenced by the ABA [Basic] [Exam] was inadequate” and that her “[t]est scores, even on

the [fourth] attempt, were significantly below passing.” Dkt. No. 19 at 9. Therefore, the

burden would shift to Dr. Corbett to show that her protected conduct was a but-for cause of

the appeal subcommittee’s determination that the dismissal recommendation should be

upheld.

Dr. Corbett fails to raise a genuine issue of material fact as to pretext because she

relies solely on a conclusory statement. Dr. Corbett simply argues that “TTUHSC would

not have upheld the recommendation for dismissal merely because [Dr. Corbett] failed the

ABA Basic Exam on her [fourth] attempt. Rather, TTUHSC upheld the recommendation

because [Dr. Corbett] filed a complaint with the OEO.” Dkt. No. 25 at 22. Dr. Corbett

points to no evidence to support this assertion. “Conclusory statements are not competent

evidence to defeat summary judgment”; the plaintiff “must offer specific evidence.” Turner

v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345–46 (5th Cir. 2007). Dr. Corbett does not

point to any evidence to show that her complaint with the OEO was the reason the appeal

subcommittee determined that the dismissal recommendation should be upheld. See Owens,

33 F.4th at 835. Therefore, this retaliation argument fails at the pretext stage, too.

ii. Dr. Corbett lacks evidentiary support and fails to show that Dr.

Santos’s alleged failure to refer phone calls is a materially adverse

action sufficient to meet the prima face case.

Dr. Corbett also alleges that Dr. Santos failed to refer phone calls he received from

prospective employers and reference-checking companies that she had hired to the Graduate

Medical Education Department. Dkt. No. 25 at 22–23 Dkt. No. 25-1 at 118. Dr. Corbett

relies on portions of her declaration and a document allegedly from one of the reference-

checking companies to support her claim labeled as P-Tab 7. Dkt. No. 25 at 22–23 (citing

Dkt. No. 25-1 at 3–4, 120–21). TTUHSC objects to the declaration because, among other

arguments, some of the statements included in the declaration are hearsay. Dkt. No. 27 at

1–2. TTUHSC also objects to P-Tab 7, alleging that the document is not properly

authenticated and should therefore be struck from the record. Id. at 2. Finally, TTUHSC

argues that Dr. Santos’s alleged conduct does not amount to a materially adverse action

sufficient to support a claim of retaliation. Dkt. No. 18 at 31-32; Dkt. No. 26 at 5 n.1. The

Court sustains TTUHSC’s objections to the evidence and finds, in any event, that Dr.

Corbett has not shown that Dr. Santos’s alleged conduct is a materially adverse action,

resulting in her failing to make a prima facie claim. Therefore, summary judgment as to this

claim is granted in TTUHSC’s favor.

a. The Court strikes paragraphs 32, 33, 34, and 37 of Dr.

Corbett’s declaration as hearsay.

TTUHSC objects to Dr. Corbett’s affidavit because some of the statements constitute

hearsay. Dkt. No. 27 at 1–2. “Under Federal Rule of Civil Procedure 56, an affidavit must

‘set out facts that would be admissible in evidence.’” Jennings v. Dall. Hous. Auth., No. 3:20-

cv-03462-M , 2022 WL 487914, at *2 (N.D. Tex. Feb. 17, 2022) (Lynn, C.J.) (quoting Fed.

R. Civ. P. 56(c)) (concluding that statements made by a coworker about statements made by

plaintiff’s “supervisor are double hearsay and inadmissible”). “Evidence on summary

judgment may be considered to the extent not based on hearsay or other information

excludable at trial.” Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).

Paragraphs 32, 33, 34, and 37 include statements that Patriot Placement &

Recruitment, LLC and Allison & Taylor, Inc. told Dr. Corbett, which she then relays. Dkt.

No. 25-1 at 3–4. These statements that Dr. Corbett has shared are out-of-court statements

being offered for the truth of the matter asserted and thus constitute hearsay. Therefore, the

Court sustains TTUHSC’s objection to these portions.

b. The Court strikes P-Tab 7 because it has not been properly

authenticated.

TTUHSC also objects to P-Tab-7—the Allison & Taylor, Inc. Professional Reference

Report (Dkt. No. 25-1 at 1)—because, among other arguments, the document has not been

authenticated. “Federal Rule of Evidence 901(a) states that the requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent

claims.” R.R. Mgmt. Co. v. CFS La. Midstream Co., 428 F.3d 214, 219 (5th Cir. 2005)

(cleaned up). “While a document cited as summary judgment evidence is most commonly

authenticated by affidavit, any method of authentication available under the Federal Rules

of Evidence will suffice.” Sport Supply Grp., Inc. v. Savage, No. 3:10-cv-913-O, 2011 WL

13234197, at *5 (N.D. Tex. Dec. 22, 2011). Some evidence may be self-authenticating

under Federal Rule of Evidence 902. Id. Some evidence may also be authenticated by

distinctive looking characteristics, such as the document’s appearance, contents, and

substance. Carter v. H2R Restaurant Holdings, LLC., 2017 WL 3704688, at *4 (N.D. Tex. July

20, 2017). In addition, a document may also be authenticated when (1) it was produced in

discovery by the opposing party; (2) it bears the opposing party’s signature; (3) the opposing

party does not “claim that the document is not authentic or that [the] signature is a forgery”;

and (4) the opposing party acknowledges the truth of the facts contained in the produced

record in its dispositive-motion briefing. McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d

558, 562 (5th Cir. 1998).

The Fifth Circuit has held that a district court did not abuse its discretion when it

excluded an exhibit because there were no indicia of authenticity within the exhibit itself or

other evidence on the record authenticating the exhibit. R.R. Mgmt. Co., 428 F.3d at 220.

The Fifth Circuit has also concluded that summary judgment evidence was properly

excluded where the plaintiff “made no viable arguments to the district court as to the

admissibility of the document or its contents, and . . . never explained how he would put the

otherwise inadmissible evidence into an admissible form for trial.” Campos v. Steves & Sons,

Inc., 10 F.4th 515, 522 (5th Cir. 2021).

Here, P-Tab 7 does not fall under any of the self-authenticating categories of Fed. R.

Evid. 902, nor is it otherwise properly authenticated under Rule 901. Dr. Corbett’s

declaration does not reference the document whatsoever, much less describe what it is or

support a finding that the document is what the plaintiff says it is. Dkt. No. 25-1 at 2–5.

The document itself has not been signed anywhere and contains no distinguishing contents.

See id. at 120–21. In fact, the only references to Allison & Taylor, Inc. are inside what

appears to be links on the pages. Id. The document is not a creation of the defendant or the

defendant’s agent, either. See id. Furthermore, the plaintiff failed to respond to the

defendant’s motion, much less offer any argument indicating that the document could be

authenticated at trial. Because the document has not been authenticated, the Court strikes

the document from the record.

c. Dr. Corbett does not have sufficient evidence to support her

allegation that TTUHSC committed a material adverse

action.

Dr. Corbett fails to point to any other evidence to support her allegation that Dr.

Santos did not respond to or refer the calls from prospective employers and reference

checkers. See Dkt. No. 25 at 22–23. Unsubstantiated assertions or a mere scintilla of

evidence are insufficient to show that there is a genuine issue for trial and defeat summary

judgment. See Boudreaux, 402 F.3d at 540, 544. Therefore, Dr. Corbett’s retaliation claim

on this basis fails for insufficient evidence.

d. In any event, Dr. Santos’s alleged conduct fails to rise to a

materially adverse action, so Dr. Corbett cannot establish a

prima facie case.

Even still, Dr. Santos’s alleged conduct fails to rise to a materially adverse action.

Dr. Corbett alleges that she suffered an adverse employment action because “Dr. Santos did

not return voicemails to refer prospective employers to the Graduate Medical Education

Department.” Dkt. No. 25 at 22–23.

“In addition to tangible adverse actions, such as firing an employee, the definition of

adverse employment action includes any act which well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Abbt v. City of Houston, 28

F.4th 601, 610 (5th Cir. 2022) (citation and internal quotation marks omitted). The

Supreme Court has distinguished “material adversity” from “trivial harms,” however,

noting that “[a]n employee’s decision to report discriminatory behavior cannot immunize

that employee from those petty slights or minor annoyances that often take place at work

and that all employees experience.” Grice v. FMC Techns. Inc., 216 F. App’x 401, 407 (5th

Cir. 2007) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Title

VII is meant to prohibit “employer actions that are likely ‘to deter victims of discrimination

from complaining to the EEOC,’ the courts, and their employers.” Burlington N. & Santa Fe

Ry. Co., 548 U.S. at 68 (citation omitted). “[N]ormally petty slights, minor annoyances, and

simple lack of good manners will not create such deterrence.” Id.

Here, Dr. Corbett fails to raise any argument to show that a reasonable person would

have been deterred from complaining or supporting a charge of discrimination. Dkt. No. 25

at 22–23. She also does not explain why this harm rises beyond a “trivial level” and

amounts to “material adversity.” See id. And even if Dr. Santos had received voicemails

and not responded to them, that conduct appears to be more akin to a “minor annoyance[]”

or “simple lack of good manners” that “often take[s] place at work.” Burlington N. & Santa

Fe Ry. Co., 548 U.S. at 68; Grice, 216 F. App’x at 407. Therefore, because Dr. Corbett fails

to show a prima facie case of retaliation, the Court grants summary judgment in TTUHSC’s

favor as to this claim.

D. The Court denies summary judgment as to Corbett’s hostile work

environment claim because there is a genuine issue of material fact as to

whether the discriminatory conduct was sufficiently severe or pervasive.

Finally, Dr. Corbett brings a hostile work environment claim, alleging that Dr.

Santos harassed her while she was in the ARP. Dkt. No. 1-6 at 7–8; see Dkt. No. 25 at 14–

17. TTUHSC argues that summary judgment should be granted in its favor, however,

because all of the incidents that she “described are not sufficiently severe or pervasive to

sustain her hostile work environment claim” and “Dr. Santos treated male residents in a

similarly abrasive manner.” Dkt. No. 18 at 35–36. Because Dr. Corbett points to some

evidence to support her assertions and there is a genuine issue of material fact as to whether

Dr. Santos’s comments were severe or pervasive enough to alter the conditions of Dr.

Corbett’s employment, the Court denies summary judgment as to this claim.

To establish a hostile work environment claim, a plaintiff must show that: (1) “she

belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the

harassment complained of was based on” the plaintiff’s protected class; (4) “the harassment

complained of affected a term, condition, or privilege of employment;” and (5) “the

employer knew or should have known of the harassment in question and failed to take

prompt remedial action.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). For

harassment to affect a term, condition, or privilege of employment, the conduct must be

“sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.” Id. (citation omitted).

Courts consider “the frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993). The “severe or pervasive” standard is meant to be a “middle path

between making actionable any conduct that is merely offensive and requiring the conduct

to cause a tangible psychological injury.” Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320,

325 (5th Cir. 2010) (citing Harris, 510 U.S. at 21). The Fifth Circuit has noted that “the

test—whether the harassment is severe or pervasive—is stated in the disjunctive.”

Lauderdale v. Tex. Dep’t of Crim. Just., Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007).

Thus, on one hand, “[a]n egregious, yet isolated, incident can alter the terms, conditions, or

privileges of employment and satisfy the fourth element necessary to constitute a hostile

work environment.” Id. On the other hand, “[f]requent incidents of harassment, though

not severe, can reach the level of ‘pervasive,’ thereby altering the terms, conditions, or

privileges of employment such that a hostile work environment exists.” Id. As such, “the

required showing of severity or seriousness of the harassing conduct varies inversely with

the pervasiveness or frequency of the conduct.” Id. (citation omitted). “To get past

summary judgment, [the plaintiff] need not make it ‘clear’ that she was subject to actionable

harassment; she of course only needs to show that a jury could reach that conclusion based

on its view of the evidence.” Gardner, 915 F.3d at 325.

TTUHSC first asserts that Dr. Santos’s comments regarding women were “sporadic

and not severe or pervasive.” Dkt. No. 18 at 35. Unless extremely serious, “isolated

incidents” and “offhand comments” do not suffice to alter the terms and conditions of

employment. Shepherd v. Comptroller of Pub. Accts., 168 F.3d 871, 874 (5th Cir. 1999)

(internal quotation marks and citation omitted). Nevertheless, here, Dr. Corbett does not

allege that Dr. Santos made a few or even a handful of comments. In her deposition, Dr.

Corbett testified that while she was in the ARP, Dr. Santos “made comments such as not

wanting women in the program and that they should stay as nurses” on “at least 10 or 15

occasions.” Dkt. No. 25-1 at 52. A reasonable factfinder could find that these comments

were pervasive enough.

Moreover, these alleged statements were more than just “simple teasing” comments.

Shepherd, 168 F.3d at 874 (citation omitted). They explicitly sent the message that the

plaintiff was incompetent because of her sex. See Dkt. No. 25-1 at 52. Fifth Circuit

precedent has highlighted this consideration as a relevant factor in determining the severity

and pervasiveness of a defendant’s conduct. In Butler v. Ysleta Independent School District, the

Fifth Circuit explained that a plaintiff had not been subjected to a hostile work environment

because, in part, the communication the plaintiff had received did not contain “the message

that the plaintiff is incompetent because of her sex.” 161 F.3d 263, 270–71 (5th Cir. 1998).

The court went on to note that an example of such communication would be “a cartoon

suggesting that women are incapable of teaching on account of their sex,” which would

“undermine the ability of women to teach.” Id. at 270. Likewise, in Shepherd, the Fifth

Circuit affirmed a district court’s grant of summary judgment, noting, among other factors,

that the defendant’s “actions did not undermine [the plaintiff’s] workplace competence.”

168 F.3d at 874.

TTUHSC also asserts that Dr. Santos was similarly abrasive with male residents,

too, which indicates that his actions were not based on sex (Dkt. No. 18 at 35–36), but this

argument fails. “The critical issue, Title VII’s text indicates, is whether members of one sex

are exposed to disadvantageous terms or conditions of employment to which members of

the other sex are not exposed.” Butler, 161 F.3d at 271 (citation omitted). As other courts

have pointed out, “the fact that both male and female employees are treated similarly, if

badly, does give rise to the inference that their mistreatment shared a common cause that

was unrelated to their sex.” Brown v. Henderson, 257 F.3d 246, 254 (2d Cir. 2001).

Nevertheless, “the inquiry into whether ill treatment was actually sex-based

discrimination cannot be short-circuited by the mere fact that both men and women are

involved.” Id. For instance, a supervisor could harass a woman on the basis of her sex

while abusing men for other reasons unrelated to their sex. See Steiner v. Showboat Operating

Co., 25 F.3d 1459, 1464 (9th Cir. 1994). In addition, as another court has previously

noted, for summary judgment purposes, a jury could still conclude that a woman faced

harassment while disbelieving other accusations or finding that the alleged harassment

against the male “was a non-recurring deviation from a pervasive pattern of same-sex

harassment.” Jones v. Wal-Mart Stores, Inc., No. 1:05-CV-121, 2006 WL 8441386, at *17

(E.D. Tex. June 15, 2006).

Here, Dr. Santos’s alleged comments were not general rude or demeaning

comments; they targeted the competency of women based on their sex. See Dkt. No. 25-1 at

52. TTUHSC does not point to similar comments that Dr. Santos made towards men that

challenged their competency based on sex. See Dkt. No. 18 at 35–36; Dkt. No. 26 at 8–9.

Thus, this case is distinguishable from one in which the defendant engaged in general

abrasive conduct towards both men and women or demeaned both men and women’s

competency on the basis of sex. See Saketkoo, 31 F.4th at 1003-04 (affirming a district

court’s grant of summary judgment because the plaintiff did not demonstrate that the

defendant’s degrading actions were based on her sex and the record showed that the

defendant had also treated male physicians in a similarly abrasive manner resulting in males

complaining).

Therefore, viewing the evidence in the light most favorable to Dr. Corbett, a

reasonable factfinder could find that TTUHSC’s conduct was sufficiently severe or pervasive

and that Dr. Corbett suffered a hostile work environment on the basis of her sex, even if

male residents also dealt with abrasive behavior from Dr. Santos. As such, the Court denies

summary judgment as to Dr. Corbett’s hostile work environment claims.

4. Conclusion

The Court grants summary judgment in TTUHSC’s favor as to Dr. Corbett’s sex

discrimination and retaliation claims because she cannot establish a prima facie case for

either claim. Nevertheless, because Dr. Corbett points to evidence—her deposition—to

show that Dr. Santos allegedly made comments about not wanting women in the ARP and

believing they should only be nurses, not doctors, a genuine issue of material fact exists as to

her hostile work environment claim. Therefore, the Court denies summary judgment as to

that claim. The parties’ remaining evidentiary objections are denied as moot because the

Court did not rely on that evidence in making its determination.

So ordered on July 10, 2023.

Lows (UO. Hek>

J ES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

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