Brookins v. Buttigieg

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CYNTHIA BROOKINS,

Plaintiff,

v. No. 4:23-cv-00744-P

PETER P. BUTTIGIEG, U.S.

SECRETARY OF TRANSPORTATION,

Defendant.

MEMORANDUM OPINION & ORDER

Before the Court is Defendant’s Motion for Summary Judgment. ECF

No. 19. Having considered the Motion, the Court concludes that it should

be and is hereby GRANTED.

BACKGROUND

This case arises from allegations of age discrimination by Plaintiff

Cynthia Brookins against her former employer, the Federal Aviation

Administration (“FAA”). Brookins was employed in the FAA’s Flight

Standards, Manufacturing Inspection Office in Fort Worth, Texas, from

2015 to 2022. Throughout her employment, Brookins received favorable

performance reviews every year and was never disciplined,

reprimanded, suspended, or dismissed. But Brookins alleges that during

her tenure, her supervisor, Carlton Cochran, made several derogatory

comments regarding her age. These comments included assertions that

older employees were not “innovative” or “tech savvy” and did not learn

as quickly as younger employees. Additionally, Cochran allegedly

questioned Brookins about her retirement plans and suggested that the

FAA preferred younger employees. Brookins claims that, because of her

age, Cochran refused to promote her internally and cost her a job at

another federal agency by providing a negative employment reference.

In May 2022, Brookins contacted an EEO counselor and the FAA

investigated Brookins’ allegations of age discrimination, issuing a 249-

page written investigation report. The FAA’s Office of Civil Rights

issued a Final Agency Decision in April 2023, finding no discrimination.

Brookins subsequently filed this lawsuit on July 18, 2023, alleging age

discrimination, retaliation, and hostile work environment. Brookins

then amended her complaint, dropping her hostile work environment

claim. The Government filed a Motion for Summary Judgment, which is

now ripe for the Court’s review.

LEGAL STANDARD

Summary Judgment is appropriate when the moving party “shows

that there is no genuine dispute as to any material fact” and “is entitled

to judgment as a matter of law.” FED. R. CIV. P. 55(a). A dispute is

“genuine” if the evidence presented would allow a reasonable jury to

return a verdict in favor of the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 242–43 (1986). A fact is “material” when it

might affect the outcome of a case. Id. at 248. Generally, the

“substantive law will identify which facts are material,” and “[f]actual

disputes that are irrelevant or unnecessary will not be counted.” Id.

When determining whether summary judgment is appropriate, the

Court views the evidence in the light most favorable to the nonmovant.

First Am. Title Ins. Co. v. Cont’l Cas. Co., 709 F.3d 1170, 1173 (5th Cir.

2013). In conducting its evaluation, the Court may rely on any

admissible evidence available in the record but need only consider those

materials cited by the parties. FED. R. CIV. P. 55(c)(1)–(3). The Court

need not sift through the record to find evidence in support of the

nonmovant’s opposition to summary judgment; the burden falls on the

moving party to simply show a lack of evidence supporting the

nonmovant’s case. See Malacara v. Garber, 353 F.3d 393, 404–05 (5th

Cir. 2003).

ANALYSIS

Brookins’ Amended Complaint asserts two claims under the ADEA:

(1) retaliation; and (2) disparate-treatment.1 See ECF No. 10. The

Government asks the Court to grant summary judgment on both claims.

The Court will address each claim in turn.

A. Retaliation

In 2019, Brookins’ supervisor, Carlton Cochran, was interviewing for

a position along with other candidates. See ECF No. 10 at 4. Brookins

alleges that Cochran asked her to provide him with another candidate’s

interview notes in order to gain an advantage over other candidates. See

id. Brookins confidentially reported Cochran for the request, and alleges

that Cochran retaliated against her by increasing her work duties,

refusing to promote her, and “providing inaccurate performance

feedback to potential supervisors.” Id. at 5. The Government argues

Brookins’ retaliation claim fails for three reasons: (1) Brookins failed to

exhaust her administrative remedies; (2) the retaliation claim fails on

the merits; and (3) Brookins recanted her retaliation claim during her

deposition. See ECF No. 20 at 14–18. The Court finds that Brookins

failed to exhaust her administrative remedies and will dismiss Brookins’

retaliation claim.

Section 717 of the Civil Rights Act of 1964 permits most federal

employees to seek relief from discriminatory employment practices in

federal court. See 42 U.S.C. § 2000e-16(c), Pacheco v. Mineta, 448 F.3d

783, 787 (5th Cir. 2006). Before seeking judicial relief, however,

employees must exhaust their administrative remedies by filing a

charge of discrimination with the EEO division of their agency. See id.

The scope of the exhaustion requirement balances two competing

1 Although the Government’s Motion originally sought summary judgment

on Brookins’ hostile work environment claim, see ECF No. 20 at 21, Brookins

states in her Response that “Plaintiff filed her First Amended Complaint on

September 11, 2023, removing her claims of hostile work environment and

negligence hiring, supervising, training and retention.” ECF No. 28 at 5.

Accordingly, the Government acknowledged in its Reply that its Motion for

Summary Judgment on that point is moot. See ECF No. 31 at 1. Thus, the

Court will address Brookins’ two remaining claims: retaliation and disparate

treatment.

policies. On one hand, as most complaints are initiated pro se, the scope

of an EEO complaint should be construed liberally. Id. (citing Sanchez

v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)). On the

other hand, a primary purpose of the EEO process is to trigger

investigatory and conciliatory procedures in attempt to achieve non-

judicial resolution of employment discrimination claims. See id. at 788–

89. Allowing claims well-beyond the scope of an EEO complaint to

proceed in subsequent lawsuits would “circumvent the statutory

scheme, since [it] clearly contemplates that no issue will be the subject

of a civil action until the EEOC has first had the opportunity to attempt

to obtain voluntary compliance.” Id. at 789.

With that balance in mind, the claims an employee can bring in a

lawsuit are limited to the scope of the EEO investigation which can

“reasonably be expected to grow out of the charge of discrimination.”

Madaki v. Am. Airlines, Inc., No. 4:21-CV-0760-P, 2022 WL 227163, at

*2 (N.D. Tex. Jan. 25, 2022) (Pittman, J.). Courts look slightly beyond

the four corners of an administrative charge, to its substance rather

than its labels. See Pacheco, 448 F.3d at 789. In other words, a plaintiff’s

failure to check the right box on an administrative charge is not fatal to

a claim that could reasonably be expected to grow out of the

administrative charge. See Sanchez, 431 F.2d at 463 (“[W]e decline to

hold that the failure to place a check mark in the correct box is a fatal

error.”).

The Government argues that Brookins did not assert any retaliation

claim during the administrative process, and a retaliation claim could

not reasonably be expected to grow out of her charge of age

discrimination. See ECF No. 20 at 16. Indeed, Brookins did not allege

that she was experiencing retaliation in her intake interview with the

EEO counselor. See ECF No. 21 at 123–29. Under “basis(es) for alleged

discrimination,” she did not check the box for “Reprisal,” nor did she

allege any facts to suggest she was retaliated against. Id. 124–25. And

during her intake interview, Brookins’ “claims and bases were reviewed

and confirmed,” with no mention of retaliation. Id.

Then, when Brookins submitted her formal complaint on August 11,

2022, she once again did not check the box for retaliation, nor did she

mention any facts that could support a retaliation claim. Id. at 115. And

when Brookins received a letter notifying her that the EEO had accepted

her claims for investigation, the letter explained that the only claims

accepted for investigation were: “Whether Complainant was subject to

discrimination and/or hostile work environment harassment (non-

sexual) based on age . . . .” ECF No. 32-1 at 195–96. The letter further

stated: “If you object to the articulation of the claims, you may submit a

written statement for inclusion in the administrative file to

DOCR_CMB@dot.gov.” Id. at 196. Brookins elected not to add any

claims of retaliation. See ECF No. 31 at 8. Thus, the EEO investigation

did not encompass Brookins’ allegation of retaliation.

Brookins argues that although she did not check the box for

retaliation, “Plaintiff[’s] affidavit and EEO investigation specifically

discuss Plaintiff’s retaliation claims,” citing an affidavit Brookins

submitted to the EEO investigator. ECF No. 28 at 15. Plaintiff’s

Response then states as follows:

Throughout the entire EEO investigation, Plaintiff’s assertions

have been clear. Plaintiff has always alleged that Cochran has a

history of interfering with employee interviews, meddling in other

people’s promotions and how offended Plaintiff has been at

Cochran’s agist comments. During the EEO interview, Plaintiff

was asked to “explain how the management official coerced you

into providing the notes from another job candidate’s interview by

specifically describing what the person did or said to you[.]”. [T]o

which, Plaintiff gave a lengthy description of Cochran’s request

for Plaintiff to give him notes for candidates interviews even

though it was against FAA policies. Plaintiff further went into

details about how she “contacted her previous manager, Caroll

Dobbs[,]” and made a report about her concerns about Cochran

asking her to do this as well as the complaints she had against

him for his ageist comments. Therefore, the claim was reasonably

expected to grow out of the EEO’s investigation and Plaintiff

sufficiently exhausted her administrative remedies allowing this

matter to proceed in due course through litigation.

Id. at 15–16 (citations omitted).

Notably absent from this recount of Brookins’ interview is any

mention of retaliation. See id. And the Court is unable to divine a

conceptual link between the events described and a retaliation claim

without inferring facts that were not alleged. Brookins’ Response does

not point to any statement in her affidavit suggesting that she

experienced retaliation for reporting Cochran. See id. Although “the

Court need not sift through the record to find evidence in support of the

nonmovant’s opposition to summary judgment,” Malacara v. Garber,

353 F.3d at 404–05, the Court’s own review of Brookins’ affidavit

similarly comes up empty. See ECF No. 29 at 130–46. Therefore,

Brookins’ retaliation claim could not reasonably be expected to grow out

of the administrative charge. Accordingly, the Court concludes that

Brookins did not exhaust her administrative remedies with respect to

her retaliation claim.

B. Disparate-Treatment

Next, the Government argues that Brookins’ age-discrimination

claim fails because she has not made a showing sufficient to establish

an essential element of her case. See ECF No. 20 at 19. The Court agrees.

To establish a prima facie case of discriminatory treatment based on

age, a plaintiff must show: (1) they are within the protected class; (2)

they are qualified for the position; (3) they suffered an adverse

employment action; and (4) they were replaced by someone younger or

treated less favorably than similarly situated younger employees (i.e.,

suffered from disparate treatment because of membership in the

protected class). Leal v. McHugh, 731 F.3d 405, 410–11 (5th Cir. 2013).

A non-movant will not avoid summary judgment by presenting

“speculation, improbable inferences, or unsubstantiated assertions.”

Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019). Rule 56

“mandates the entry of summary judgment against a party who fails to

make a showing sufficient to establish the existence of an element

essential to that party’s case.” Id.

Here, the Government argues Brookins has failed to establish she

suffered an adverse employment action. See ECF No. 20 at 19–20; 31 at

15. In Brookins’ Response, she alleges she “suffered [an] adverse

employment action in the form of not receiving a promotion under

Cochran due to her age. More specifically, Plaintiff applied for the

position of Administrative Support Assistant in the Dallas Field Office

of the FDIC in 2022 . . . and was passed up because of Cochran’s agism.”

ECF No. 28 at 11. The Government’s Reply analyzes these as two

separate alleged adverse employment actions: (1) Cochran’s negative

employment reference to the FDIC and (2) Cochran’s interference with

Brookins’ ability to receive an internal promotion within the FAA. See

ECF No. 31 at 15. Although Brookins’ Response appears to exclusively

discuss the FDIC negative employment reference saga—referring to the

FDIC job as a “promotion”—the Court will liberally construe Brookins’

Response as pointing to two separate adverse employment actions.

Having reviewed the summary judgment record, both allegations

appear to be based solely on speculation. The Court addresses each in

turn.

First, Brookins alleges that Cochran gave a negative employment

reference to the FDIC, which interfered with her ability to get that job.

See ECF No. 10 at 5. In 2022, Brookins applied for a position at the

Dallas Field Office of the FDIC. See ECF No. 10 at 5; 28 at 11. During

the application process, the hiring manager, Vickie Conrad, informed

Brookins that she would be contacting Cochran for a reference check,

stating “I will probably be reaching out early next week.” ECF No. 29 at

78. Brookins was later notified that she was not selected for the position,

and she took this to mean that Cochran had provided a negative

employment reference. See ECF No. 10 at 5. But Brookins’ belief that

Cochran provided a negative employment reference appears to be based

entirely on speculation. See ECF No. 29 at 6–7 (“I am certain that

[Cochran] told [Ms. Conrad] his concerns about my age . . . .”); Id. at 16

(email from Brookins to Ms. Conrad stating: “I have a feeling that

[Cochran] didn’t provide you with a fair/accurate opinion of me”).

Both Ms. Conrad and Cochran maintain that they never

communicated about an employment reference for Brookins. See ECF

No. 21 at 12, 181. Ms. Conrad’s sworn declaration states: “I never

communicated with either of the two FAA managers that Ms. Brookins

provided as references. No one at FAA provided any information to me

on a reference check for Ms. Brookins.” Id. at 12. In an interview,

Cochran clarified that although Ms. Conrad reached out, they were

never able to connect, stating: “I never talked to [Vickie Conrad]. Ms.

Conrad called and left a message on my phone. I returned her call

subsequently leaving several messages and she did not return any of my

calls. I never got to talk to her.” Id. at 181. Thus, the record paints a

clear and consistent picture of these events: Ms. Conrad told Brookins

that she intended to reach out to Cochran for an employment reference,

Ms. Conrad called Cochran and left a message, Cochran returned her

call and left several messages, but Ms. Conrad never returned the calls

and the two were never able to connect. Brookins is unable to provide

any evidence to support her theory that Cochran gave her a negative

employment reference other than the fact Ms. Conrad told Brookins she

intended to reach out to Cochran and Brookins was ultimately not

offered the job. See ECF No. 28 at 13. Therefore, the Court concludes

that Brookins has not made a showing sufficient to establish that she

suffered an adverse employment action.

Second, Brookins alleges that she “was not promoted” during her

seven years under Cochran. Id. at 11. Brookins appears to allege that

Cochran prevented her from receiving internal promotions within the

FAA. See ECF No. 28 at 11. But the summary-judgment record and

Brookins’ own admission show that she was promoted twice during that

period—in 2020 and 2022. See ECF No. 21 at 86 (a Notification of

Personnel Action identifying Brookins as the recipient of a “promotion”

in 2020), 175 (same in 2022); see also id. at 121 (Brookins’ recounting

that her colleague “congratulated me in my promotion” in 2022).

Further, Brookins acknowledges that “[d]uring her seven years under

Cochran, Plaintiff received a performance evaluation that commended

her for her achievements and awarded her multiple pay increases based

on her continued excellent work performance and output.” ECF No. 28

at 11. And Brookins is unable to point to any specific internal promotion

that Cochran prevented her from getting, or any action Cochran took to

interfere with her opportunities for promotion. Indeed, when asked in

her deposition whether Cochran prevented her from getting any jobs

besides the FDIC job, Brookins said no. See ECF No. 21 at 53. While

somewhat difficult to decipher, Brookins’ Response simply recalls that

Cochran “quizzed her about her retirement plans,” and argues: “[w]hile

Defendant states that Cochran did nothing to impede her ability to get

a promotion, there exists a genuine question of fact exists [sic] in why

would Cochran promote Plaintiff if he wanted Plaintiff to retire?” ECF

No. 28 at 12. That won’t survive summary judgment.

Accordingly, as Brookins has not provided sufficient evidence to

establish an essential element of her case, and because no genuine

dispute of material fact exists, the Court GRANTS summary judgment

in favor of the Government on her disparate-treatment claim.

CONCLUSION

For these reasons, having considered Defendant's Motion for

Summary Judgment, the summary judgment record, and the applicable

law, the Court concludes that Defendant’s Motion (ECF No. 19) should

be and is hereby GRANTED. Accordingly, this case is DISMISSED

with prejudice.

SO ORDERED on this 9th day of August 2024.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE