The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
KAYODE SOTONWA,
Plaintiff,
v. No. 1:22-CV-189-H
DENIS MCDONOUGH, in his official
capacity as Secretary of the United States
Department of Veteran’s Affairs,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT
The plaintiff, Kayode Sotonwa, a physician, alleges that his employer, the VA,
discriminated against him and harassed him because of his race, color, national origin,
gender, and age and retaliated against him for engaging in a protected activity. Particularly,
the plaintiff’s remaining claims assert that the VA: (1) harassed him and retaliated against
him by investigating allegations of harassment made against him by other VA employees,
Dkt. No. 1 ¶ 33; and (2) discriminated and retaliated against him by demoting him, id. ¶ 34.
Before the Court is the defendant’s summary judgment motion on the plaintiff’s
remaining discrimination, harassment, and retaliation claims under Title VII of the Civil
Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA).
Dkt. No. 32. The Court grants the motion in full. First, the plaintiff cannot establish a
prima facie case of harassment. Second, even if he could establish a prima facie case of
discrimination or retaliation, he has not produced evidence that creates a genuine issue of
fact as to whether the defendant’s proffered reasons for the investigation and his demotion
were a pretext for discrimination or retaliation.
1. Factual and Procedural Background
A. The West Texas VA’s Leadership
At all times relevant to his claims, the plaintiff has been employed at the West Texas
VA Health Care System in Big Spring, Texas (West Texas VA). See Dkt. No. 29-1 at 8.
The West Texas VA provides medical and mental healthcare to the veteran population of
West Texas. Id. at 5. Within the organizational hierarchy of the West Texas VA, the
Director is the top leadership position and oversees the facility, staff, and programs. Id. at 2,
4. The Chief of Staff is second-in-command and oversees the clinical patient
care—including medical and operational components—and reports to the Director. Id. The
third-tier of leadership at the West Texas VA consists of multiple Associate Chiefs of Staff
placed over particular service areas, including an Associate Chief of Staff for Ambulatory
Care. Id. at 3, 4. The Associate Chiefs of Staff report to the Chief of Staff. Id.
In November 2015, Kalautie JangDhari became the Director of the West Texas VA
and the plaintiff’s second-level supervisor. Id. at 8. At that time, Dr. Neil Nusbaum served
as the Chief of Staff and the plaintiff’s direct supervisor, and he remained in this position
until September 2017. Id. Following Nusbaum’s departure, several physicians served as
Interim Chief of Staff. Id. Notably, Dr. D’Arcie Chitwood was serving as the Interim Chief
of Staff when the VA received an internal complaint about the plaintiff in January 2018, and
Dr. Nassir Hussain was serving as the Interim Chief of Staff when the plaintiff was
reassigned to the position of Staff Physician in March 2018 pending investigation of the
complaint. Id. at 9, 10; see also Dkt. No. 29-2 at 6.
Shortly thereafter, in April 2018, Dr. Jeff Hastings was temporarily appointed Acting
Chief of Staff where he served until he returned to his permanent position at another VA
medical facility on October 1, 2018. Dkt. No. 29-6 at 2. Hastings was the Acting Chief of
Staff and the plaintiff’s direct supervisor at the time of the plaintiff’s permanent demotion to
Staff Physician in September 2018. Id. Following the plaintiff’s demotion, Dr. Shawkat
Dhanani was hired as the permanent Chief of Staff in January 2019. Dkt. No. 29-1 at 8.
B. Plaintiff’s Employment History with the VA
The plaintiff was initially hired by the VA in 2003 to work as a physician in a
medical facility in Florida. Id. He resigned in 2007 and was re-hired in 2010 as a physician
at a medical facility in Missouri. Id. In August 2013, the VA promoted the plaintiff to
Associate Chief of Staff, Ambulatory Services at the West Texas VA. Id. The plaintiff
worked in this position until the VA received the internal complaint against him in 2018. Id.
at 10. Additionally, prior to 2018, the plaintiff occasionally served as Acting Chief of Staff
for a few days at a time in the event the permanent Chief of Staff was absent. Id. at 2–3, 8.
During his early employment at the West Texas VA, the plaintiff received excellent
feedback on his clinical performance and medical acumen. Dkt. No. 29-3 at 4, 8. However,
with respect to leadership and communication skills, his performance review in
2014—despite noting a “[f]ully [s]uccessful” rating in “[l]eading [p]eople”—stated that the
plaintiff “had some issues with uniting and communicating with all [of] his staff.” Id. at 4.
Additionally, the review noted “interactions with fellow service Chief’s[sic] and his
communication with his employees” as areas of improvement. Id. And a performance
review in 2016 suggested that the plaintiff “focus on [his] soft skills.” Id. at 6.
Also of note, in 2017, the plaintiff filed an EEO complaint claiming that he was
discriminated against when the Chief Health Information Officer awarded a co-worker a
larger bonus than he awarded the plaintiff. Dkt. No. 29-5 at 2. The complaint was
ultimately resolved in favor of the VA. Id. at 3. JangDhari, as the Director, was notified of
the plaintiff’s EEO complaint via letter in 2017. Id. at 2.
C. The Harassment Complaint Against the Plaintiff
In January 2018, two female VA employees filed a complaint with the VA’s internal
police, claiming that the plaintiff had sexually assaulted them when conducting their
required physical fitness examinations. Dkt. Nos. 29-1 at 9; 29-3 at 22. The VA’s internal
police department investigated the complaints to determine whether the plaintiff had
potentially engaged in criminal conduct and should be referred to proper authorities. Dkt.
No. 29-1 at 9. Chitwood was serving a 60-day term as the Acting Chief of Staff at the time
the allegations were made against the plaintiff. Dkt. No. 38-2 at 75. As his direct
supervisor, Chitwood made the initial decision to temporarily remove the plaintiff from
patient care in January 2018 while the allegations were investigated. Id. at 75–76. In due
course, the police determined that the plaintiff had not engaged in criminal conduct. Dkt.
No. 29-2 at 4.
Following the police’s investigation, JangDhari—still serving as the West Texas VA
Director—formed an independent Administrative Investigation Board (AIB) in March 2018
to determine if the plaintiff had engaged in non-criminal conduct that violated the VA’s
policies and procedures. Dkt. Nos. 29-1 at 6, 9–10; 29-9 at 4–6. The AIB was comprised of
five individuals—three physicians from other VA locations, a nurse from the regional office
for the West Texas facility, and a Human Resources Technical Advisor from the West
Texas VA. Dkt. Nos. 29-1 at 10; 29-3 at 17. The AIB was asked to “conduct[] a thorough
investigation into the facts and circumstances” and determine whether the plaintiff
“[f]ail[ed] to follow policy/procedures during an employee physical” or created “a hostile
work environment for peers and subordinates involving but not limited to sexual harassment
and discrimination during an examination.” Dkt. No. 29-3 at 19. Apart from the scope of
the investigation stated in the charge letter to the AIB, the AIB conducted the investigation
without input from JangDhari. Dkt. No. 29-9 at 6–7.
The then-Interim Chief of Staff, Hussain, “temporarily detailed/reassigned” the
plaintiff “to Consultative Care Service (Staff Physician)” on March 6, 2018, “pending the
outcome of” the AIB’s investigation. Dkt. No. 29-3 at 16. The letter to the plaintiff
informing him of his change in position noted that “[t]his action is standard procedure and
non-disciplinary in nature to protect all parties involved.” Id. In fact, this reassignment did
not change the plaintiff’s permanent position or pay. Dkt. No. 29-1 at 10. At the time of
the plaintiff’s reassignment, Chitwood was assigned as Acting Associate Chief of Staff,
Ambulatory Care, where she served until at least June 2019. Dkt. No. 38-1 at 23. In June
2019, a 66-year-old male, Dr. Luis Chavez,1 was hired as the permanent Associate Chief of
Staff, Ambulatory Care. Dkt. No. 29-1 at 14–15.
D. The AIB Report
After conducting over twenty interviews with various medical and administrative VA
staff members, on May 8, 2018, the AIB issued a report containing the results of its
investigation. Dkt. Nos. 29-6 at 4; 29-3 at 21–36. The AIB report first detailed the scope of
the investigation, the persons interviewed, and the allegations at issue. Dkt. No. 29-3 at
21–23. Next, the report stated detailed findings of fact related to: (1) the VA policies
implicated by the scope of the investigation, id. at 23–25; (2) the allegations of sexual
1 The plaintiff also asserts that Chavez is “brown, Hispanic[,] and not Nigerian born,” but does not
cite to any supporting authority. Dkt. No. 43 at 19.
harassment against the plaintiff, id. at 25–31; (3) the plaintiff’s leadership as an
administrator, id. at 31–32; and (4) the plaintiff’s experience and training, id. at 32–33. Each
finding of fact referenced supporting documentation. See id. at 21–33.
Following the findings of fact, the report stated four conclusions made by the AIB.
Id. at 33–35. First, the AIB found that “[t]he . . . exams [the plaintiff] performed on [the
complainants] were inappropriate and more thorough [than] necessary[,] but there is no
evidence of sexual harassment during either exam.” Id. at 33. The AIB next found that
there was no evidence of discrimination by the plaintiff against the complainants with
respect to the exams. Id. at 34. And conclusion three stated that the West Texas VA was
not following the current policy, which does not require physical exams of all employees
driving government vehicles. Id.
Finally, and most pertinently, the AIB concluded that the plaintiff’s “leadership
style . . . and his lack of emotional intelligence has created an uncomfortable working
relationship with many employees at [the West Texas VA].” Id. The report supported this
conclusion by stating that the plaintiff’s co-workers had described him as a “bully” and
described his leadership style as “gruff, hard[-]handed, . . . autocratic, arrogant, abrasive,
ugly, [dictatorial,]2 and demeaning.” Id. And some of his co-workers opined that other
employees had left the West Texas VA because of their experience working with the
plaintiff. Id. The report also noted that the plaintiff “tends to speak in a demeaning tone
and fashion to subordinates” and “lacks an awareness of how his actions and words affect
2 The AIB report’s fourth conclusion and the plaintiff’s demotion letter use the word “doctorial.”
The parties agree this is a typo and should read “dictatorial,” as stated in the AIB’s factual
findings. See Dkt. Nos. 33 at 15 n.8; 43 at 16; see also Dkt. Nos. 29-3 at 31, 34, 44; 38-2 at 78.
those around him.” Id. Finally, the AIB concluded that the plaintiff “deflect[s] any
criticism” of his workplace demeanor and instead blames his co-workers. Id. at 35.
Based on these conclusions, the AIB made various recommendations. See id. at
35–36. Important here, the AIB recommended that the plaintiff participate in sensitivity
training to, among other things, become “more aware of . . . how his actions and words
affect others.” Id. at 35. The board also recommended that the plaintiff undergo leadership
training if he was to continue in a leadership position. Id. Notably, the AIB stated that
“[the plaintiff] appears to lack the skills necessary . . . to exemplify [the] VA’s goal of
[s]ervant [l]eadership.” Id. at 35.
E. Plaintiff’s Demotion
Hastings, as the then-Acting Chief of Staff, was responsible for recommending what
action, if any, should be taken with respect to the plaintiff in response to the AIB report.
Dkt. No. 29-6 at 4. He received and reviewed the report and supporting documentation in
May 2018, but he did not immediately decide whether to take action because he had only
been at the West Texas VA for a short period of time. Id. at 5. Instead, Hastings states that
he spent approximately three months getting to know the staff at the West Texas VA and
“assess[ing] how well staff interacted with each other at all levels.” Id. However, the
plaintiff contends that Hastings did not have “any direct observatory evidence of [the
plaintiff’s] performance and[/]or interactions with [the plaintiff’s] subordinates or other
[West Texas VA] staff.” Dkt. No. 29-3 at 59.
In August 2018, Hastings recommended to JangDhari that she permanently demote
the plaintiff from his position of Associate Chief of Staff, Ambulatory Care, to Staff
Physician—the position he had been temporarily serving in since the allegations against him
arose. Dkt. No. 29-6 at 6; see also Dkt. No. 29-3 at 37–39. In his written recommendation,
Hastings stated that he had “no confidence in [the plaintiff’s] ability to lead [the] staff or to
refrain . . . from creating an environment that degrades staff and adversely impacts
moral[e].” Dkt. No. 29-3 at 38. Accordingly, Hastings formally found that the plaintiff had
“contributed to the establishment of a hostile work environment” and engaged in “Conduct
Unbecoming of a Federal Employee” in violation of the VA’s harassment policy. Id. at
44–45. Hastings proposed that JangDhari permanently demote the plaintiff to the position
of Staff Physician. Id. According to Hastings, he did not consult with JangDhari before
making this proposal. Dkt. No. 29-6 at 6. Furthermore, Hastings states that his decision to
propose the demotion was not motivated by the plaintiff’s race, color, national origin,
gender, or age. Id. at 9.
As Director, JangDhari was responsible for reviewing Hastings’s proposed
disciplinary action and the AIB report and supporting documentation to determine whether
to sustain the proposal. Dkt. No. 29-9 at 12. In addition to the AIB report and
documentation, JangDhari testified to personally receiving verbal complaints and
anonymous letters from the plaintiff’s coworkers claiming that the plaintiff made them
“uncomfortable” when they engaged and interacted with the plaintiff. Dkt. No. 29-10 at
31–33. Prior to a final decision, the plaintiff provided a written rebuttal to his proposed
demotion. Dkt. No. 29-9 at 13; see also Dkt. No. 29-3 at 57–80. Additionally, JangDhari
met with the plaintiff, his attorney, and a Human Resources representative from the West
Texas VA to discuss the proposed demotion. See Dkt. No. 29-3 at 48–56.
During the meeting, the plaintiff first described in detail his work history, character,
and contributions as a physician at the West Texas VA and stated that he was incorrectly
denied the opportunity to serve as the Chief of Staff. Id. at 48–50. JangDhari redirected the
conversation from the plaintiff’s work performance to the substance of the charges in his
proposed demotion—that the plaintiff had created a hostile work environment. See id. at 51;
see also id. at 37. The plaintiff contested the charges, claiming instead that he was subjected
to “workplace [bullying] and misuse of power.” Id. at 51. More specifically, the plaintiff
stated that certain employees who had made allegations against him had been continually
“rude and contentious,” had not followed VA policies, had been counseled by him
regarding their deficiencies at work, had worked “underground to sabotage him,” and “had
axes to grind.” Id. at 51–55. He provided multiple email communications between himself,
these employees, and other VA employees to support these contentions. See id. at 60–80.
The plaintiff also asserted that he had never been hostile or shouted at any VA employees.
Id. at 56. Moreover, the plaintiff stated that he had not been counseled about his leadership
style in the past other than the Chief of Staff asking about the plaintiff’s prior failure to
attend certain meetings. Id.
After considering the AIB report and documentation, the plaintiff’s written and oral
responses to the report and proposed disciplinary action, the plaintiff’s experience and work
history, the seriousness of the offense, and the aggravating and mitigating factors cited by
Hastings in his proposal, JangDhari sustained the charge against the plaintiff. Dkt. No. 29-9
at 14. She further “found that the penalty of demotion was appropriate and reasonable”
because the plaintiff “held a high leadership position . . . [over] one of the primary, largest
service areas.” Id. at 15. Additionally, she stated that the plaintiff “must lead by example
because his interpersonal interactions with staff impact both staff and the veterans.” Id. at
15. JangDhari demoted the plaintiff from Associate Chief of Staff to Staff Physician in
Ambulatory Care Service, effective September 16, 2018, at the age of 53. Dkt. Nos. 29-1 at
14; 29-3 at 81. She did not believe a lesser measure was appropriate because, under the
plaintiff’s leadership, “the facility’s performance and efficiency [were] failing.” Dkt. No.
29-9 at 15.
In making this decision, JangDhari—who describes herself as over 40, brown in
color, and of Indian national origin—states that she did not discriminate or retaliate against
the plaintiff based on his age, gender, race, color, or national origin by implementing the
AIB investigation or sustaining the proposed demotion. Id. at 15–16. Furthermore, she
asserts that, at the time of her decision to demote the plaintiff, she did not recall knowing
that he had filed a prior EEO complaint in 2017 and, regardless of any notification of this
complaint, her actions were not in retaliation for his engagement in any protected activity.
Id. at 16. Likewise, Hastings testified that when making his recommendation to demote the
plaintiff, he had no knowledge the plaintiff had filed an EEO complaint or engaged in any
protected activity. Dkt. No. 29-6 at 9.
F. Plaintiff’s Administrative Complaint
The plaintiff filed a Complaint of Employment Discrimination with the VA’s EEO
office on February 4, 2019.3 Dkt. No. 29-4 at 3. In his complaint, the plaintiff claimed
discrimination based on his race, color, national origin, and age and retaliation for engaging
in a protected activity. Id.
3 The plaintiff contends that he filed an administrative complaint on March 19, 2018, prior to his
demotion. See Dkt. Nos. 29-12 at 29; 29-13 at 15; 43 at 22. The plaintiff provides a copy of this
complaint, which is signed and dated for March 19, 2018. Dkt. No. 37-1 at 4. However, the VA’s
EEO Program Manager states that this complaint was never filed. Dkt. No. 29-5 at 1–3. Instead,
the plaintiff filed a complaint with similar allegations on February 4, 2019. Dkt. No. 29-4 at 1–3.
By letter, the EEO office notified the plaintiff, through his counsel, that it accepted
his EEO complaint and characterized it as a hostile work environment claim. Id. at 4.
More specifically, the letter advised that the plaintiff had stated a series of discrete and
non-discrete events that assert he was subjected to a hostile work environment on the bases
of his race, color, national origin, and age, and in retaliation for a protected activity. Id.
The VA filed a motion in the administrative case requesting summary judgment on
the plaintiff’s claims, which it enumerated as follows: (1) a hostile work environment claim
based on the dates when the plaintiff was allegedly denied the opportunity to serve as Acting
Chief of Staff, the investigation of his conduct by the AIB, and his demotion; and (2) a
discrimination and/or retaliation claim based on his demotion. See id. at 81–95. The
administrative judge granted the VA’s motion for summary judgment in full, stating it
“agree[d] in all material respects with the Agency’s articulation of the undisputed facts and
legal analysis,” id. at 98, and entered judgment and a final order in favor of the VA. Id. at
96–100. Lastly, the VA issued a final order accepting and implementing the administrative
judge’s decision. Id. at 104–07.
G. Plaintiff’s Employment Discrimination Suit
Following the VA’s final order in the administrative case, the plaintiff filed this suit,
alleging the following in the “Claims” section of his complaint: (1) the defendant
discriminated against the plaintiff in violation of Title VII by failing to appoint him as
Acting Chief of Staff on the basis of his race, color, and national origin; (2) the defendant
harassed the plaintiff on the basis of his race, color, and national origin and retaliated
against him for engaging in a protected activity by subjecting him to an “unmerited
fact-finding investigation” by the AIB; and (3) the defendant discriminated against the
plaintiff by demoting him on the basis of his race, color, and national origin and in
retaliation for engaging in a protected activity. See Dkt. No. 1 ¶¶ 32–34. Additionally, the
plaintiff alleged that he was discriminated against based on his gender and age in his
description of the “Nature of the Case.” Id. ¶ 2.
The defendant filed a motion seeking summary judgment on only the plaintiff’s first
claim—the discrimination claim for failure to appoint him as Acting Chief of Staff. See
generally Dkt. Nos. 16–18. The Court granted summary judgment on this claim for failure to
exhaust administrative remedies. Dkt. No. 25. The defendant then obtained leave and filed
this second motion for summary judgment on the plaintiff’s remaining claims. See Dkt.
Nos. 28–32. The plaintiff timely responded, Dkt. No. 36, and the defendant replied, Dkt.
No. 44. The motion is now ripe for review.
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) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), and
“identifying those portions of [the record] which it believes demonstrate [that] absence.”
Celotex Corp., 477 U.S. at 323.
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) (quoting Sierra Club, Inc. v. Sandy Creek Energy Assocs., 627 F.3d
134, 134 (5th Cir. 2010)). 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)
(quoting In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017)). 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 in original) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). “If the moving party fails to meet [its] initial
burden, the motion must be denied, regardless of the nonmovant’s response.” Pioneer Expl.,
L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Kee v. City of Rowlett,
247 F.3d 206, 210 (5th Cir. 2001)).
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) (quoting Little, 37 F.3d at
1075). 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 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) (citation omitted). If the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial,” summary judgment must be granted.
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) (quoting First Nat’l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).
B. Title VII and ADEA Employment Discrimination and Retaliation
Under Title VII, “[a]ll personnel actions affecting [federal government]
employees . . . shall be made free from any discrimination based on race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-16(a). Similarly, the ADEA requires that
personnel actions affecting federal employees over the age of 40 “be made free from any
discrimination based on age.” 29 U.S.C. § 633a(a).
A plaintiff may prove discrimination by either “direct or circumstantial evidence, or
both.” Price v. Valvoline, L.L.C., 88 F.4th 1062, 1065 (5th Cir. 2023) (citation omitted). The
Fifth Circuit analyzes Title VII and ADEA claims relying on circumstantial evidence under
the familiar McDonnell-Douglas burden-shifting test. See Heggemeier v. Caldwell Cnty., 826
F.3d 861, 867 (5th Cir. 2016) (Title VII); McCoy v. City of Shreveport, 492 F.3d 551, 556–57
(5th Cir. 2007) (retaliation); Chhim v. City of Houston, No. 20-20568, 2021 WL 5045432, at *1
(5th Cir. Oct. 29, 2021) (ADEA) (citing Nicholson v. Securitas Sec. Servs., USA, Inc., 830 F.3d
186, 189 (5th Cir. 2016). To survive summary judgment under the McDonnell-Douglas
framework, the plaintiff must first state a prima facie case of discrimination or retaliation.
Heggemeier, 826 F.3d at 867. “Establishment of [a] prima facie case in effect creates a
presumption that the employer unlawfully discriminated against the employee.” Dittmar v.
3M Co., No. 6:21-CV-043-H, 2022 WL 17858071, at *5 (N.D. Tex. Dec. 22, 2022) (Hendrix,
J.) (alteration in original) (quoting Tex. Dep’t of Cnty. Affs. v. Burdine, 450 U.S. 248, 254
(1981)).
If the plaintiff meets his initial burden of satisfying the elements of the prima facie
case, then the burden of production shifts to the defendant to establish a “legitimate,
non-discriminatory 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)). 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., 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) (citations omitted). Under both acts, “the employee must
‘prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons[] but were a pretext for discrimination [or retaliation].’”
Squyres, 782 F.3d at 231 (quoting Reeves, 530 U.S. at 143).
3. Analysis
The Court grants summary judgment on the plaintiff’s remaining claims for
discrimination based on race, color, national origin, gender, and age and retaliation for
engaging in a protected activity. 4
First, the Court finds that, even if the plaintiff could establish a prima facie case for
discrimination, he cannot show that a genuine issue of fact exists as to whether the
defendant’s legitimate, nondiscriminatory reasons for the investigation and demotion are a
pretext for discrimination. Next, to the extent the plaintiff has properly asserted a claim for
harassment that created a hostile work environment, the Court finds that the plaintiff cannot
establish his prima facie case. The plaintiff has not presented evidence that creates an issue
of fact as to whether the plaintiff experienced actionable harassment or that any such
harassment was based on a protected characteristic. Finally, like his discrimination claims,
4 The plaintiff’s factual allegations remain consistent throughout the administrative process and the
filing of this lawsuit, but his alleged bases for discrimination vary. In his complaint’s introduction,
the plaintiff alleges employment discrimination based on race, color, sex, national origin, and age
and employment retaliation. Dkt. No. 1 ¶ 2. The plaintiff also references both Title VII and the
ADEA. Id. Then, in the section labeled “Claims,” the plaintiff alleges employment discrimination
based only on race, color, and national origin, and employment retaliation, all in violation of Title
VII. Id. ¶¶ 32–34. However, in the plaintiff’s formal EEO complaint, the plaintiff alleged national
origin, race, color, and age as bases for the alleged employment discrimination. Dkt. No. 29-4 at 3.
The defendant acknowledges that the plaintiff now asserts gender as a basis for discrimination in
his complaint despite the fact that the EEO complaint did not assert gender discrimination. See
Dkt. No. 33 at 19 n.1. But the defendant does not seek dismissal of this claim based on failure to
exhaust administrative remedies. See id.
The Fifth Circuit liberally construes EEO complaints when determining administrative exhaustion,
and “a Title VII lawsuit may include allegations ‘like or related to allegation[s] contained in the
[EEO] charge and growing out of such allegations during the pendency of the case before the [EEO
agency].’” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (quoting Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). And, as the alleged personnel actions are
the same for all bases of discrimination and retaliation, the analysis of the plaintiff’s gender as a
basis for discrimination is essentially identical to the analysis of the other bases asserted by the
plaintiff. For all of these reasons, the Court evaluates gender in addition to race, color, national
origin, and age as a basis for the alleged discrimination.
the Court finds that the plaintiff cannot establish that the defendant’s legitimate,
nondiscriminatory reasons for the investigation and his demotion were a pretext for
retaliatory motives.
A. The Court grants summary judgment on the plaintiff’s discrimination
claims.
To establish a prima facie case of discrimination based on any of the protected
characteristics under Title VII, the plaintiff must show “that he (1) is a member of a
protected class; (2) was qualified for the position; (3) was subject to an adverse employment
action; and (4) was replaced by someone outside the protected class, or, in the case of
disparate treatment, . . . that other similarly situated employees were treated more
favorably.” Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004); see also Alvarado v.
Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). Similarly, the ADEA requires a plaintiff to
establish that he: “(1) [is] within the protected class; (2) [is] qualified for the
position; (3) . . . suffered an adverse employment decision; and (4) [was] replaced by
someone younger or treated less favorably than similarly situated younger employees (i.e.,
suffered from disparate treatment . . . ).” Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir.
2003), aff’d on other grounds, 544 U.S. 228 (2005). Additionally, where an employee suffers
an adverse employment action for violating a work rule, apart from showing disparate
treatment, he may also establish the final element of his prima facie case under either Title
VII or the ADEA by showing he did not violate the work rule.5 Turner v. Kan. City S. Ry.
5 Although the defendant conflates the two ideas, Dkt. No. 44 at 4 n.4, it is clear that a plaintiff can
establish a prima facie case of discrimination by showing either disparate treatment of similarly
situated employees or that he did not violate the rule for which he was disciplined. See Mayberry,
55 F.3d at 1090–91 (evaluating both bases separately to determine whether the plaintiff established
a prima facie case of discrimination).
Co., 675 F.3d 887, 892–93 (5th Cir. 2012) (quoting Mayberry v. Vought Aircraft Co., 55 F.3d
1086, 1090 (5th Cir. 1995)) (analyzing a work-rule violation argument in a Title VII case);
Chester v. Directv, L.L.C., 683 F. App’x 344, 347–48 (5th Cir. 2017) (citing Mayberry and
analyzing a work-rule violation argument in an ADEA case).
i. The Court assumes without deciding that the plaintiff has
established a prima facie case of discrimination.
The defendant disputes two elements of the plaintiff’s prima facie case. Dkt. No. 33
at 26. First, the defendant alleges that the plaintiff has not shown that he is qualified for the
position from which he was demoted. Id. Additionally, the defendant contends that the
plaintiff cannot show that he was replaced by someone outside of his protected class or that
similarly situated employees outside of the protected class were treated more favorably. Id.
In response, the plaintiff contends that he is qualified for the position, that he was replaced
by someone outside of his protected class, and that he can establish the final element in his
prima facie case because he did not violate the work rule that the defendant asserts as a
reason for his demotion. See Dkt. No. 43 at 17–19.
Because the Court finds that the plaintiff’s discrimination claims fail at the pretext
stage of the McDonnell-Douglas analysis, the Court assumes without deciding that the
plaintiff has established his prima facie case of discrimination under both Title VII and the
ADEA. See Moore v. Miss. Dept. of Hum. Servs., 6 F. Supp. 3d 713, 716 (S.D. Miss. 2014);
Lacy v. Dall. Cowboys Football Club, No. 3:11-CV-300-B, 2012 WL 2795979, at *7 (N.D. Tex.
July 10, 2012). Accordingly, the burden shifts to the defendant to establish a legitimate,
nondiscriminatory reason for the demotion. Okoye, 245 F.3d at 512.
ii. The Court finds that the defendant has proffered legitimate,
nondiscriminatory reasons for demoting the plaintiff.
“While the defendant is not required to ‘persuade the court that it was actually
motivated by the proffered reasons,’ in order to satisfy its burden, ‘the defendant must
clearly set forth, through the introduction of admissible evidence, the reasons for [its
decision].’” Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 900 (5th Cir. Mar. 23, 2012, revised
June 22, 2012) (quoting Burdine, 450 U.S. at 254–55). This Court has previously noted that
“[t]he Fifth Circuit has recognized that poor leadership is a legitimate, nondiscriminatory
reason for terminating a plaintiff.” Dittmar, 2022 WL 17858071, at *7 (first citing Faruki v.
Parsons S.I.P., Inc., 123 F.3d 315, 320 (5th Cir. 1997); and then citing Casarez v. Burlington
N./Santa Fe. Co., 193 F.3d 334, 337 (5th Cir. 1999)). Additionally, the Fifth Circuit has
recognized “violation of [a] workplace policy,” Hernandez v. Yellow Transp., Inc., 670 F.3d
644, 658 (5th Cir. 2012), and “complaints from [a plaintiff’s] coworkers about [his]
workplace behavior,” as legitimate nondiscriminatory reasons for an adverse employment
action, Badgerow v. REJ Props., Inc., 974 F.3d 610, 620 (5th Cir. 2020).
The defendant contends that the AIB’s findings with respect to the plaintiff’s
behavior at work—namely, that his “leadership style” and “lack of emotional
intelligence . . . created an uncomfortable working relationship with many of the
employees”—constitute legitimate, nondiscriminatory reasons for his demotion. Dkt. Nos.
29-3 at 34; 33 at 31. Furthermore, the demotion proposal and confirmation letters stated
that, after reviewing the AIB’s findings, the supporting documentation, and—in Hastings’s
case—personally observing the staff, both Hastings and JangDhari determined that the
plaintiff’s workplace behavior violated the West Texas VA’s harassment policy. Dkt. No.
33 at 31–34. And JangDhari testified to personally receiving verbal complaints and
anonymous letters from the plaintiff’s coworkers claiming that the plaintiff made them
“uncomfortable” when they engaged and interacted with the plaintiff. Dkt. No. 29-10 at
31–33. Thus, because the defendant cites the plaintiff’s leadership style, supported by the
complaints of his coworkers, and the determination that the plaintiff’s conduct violated a
work policy, the Court finds that the defendant has proffered legitimate, nondiscriminatory
reasons for the decision to demote the plaintiff. See Badgerow, 974 F.3d at 620; Hernandez,
670 F.3d at 658; Dittmar, 2022 WL 17858071, at *7.
The plaintiff argues that the reasons given for his demotion are “patently false” and
“not articulated by [JangDhari] in response to direct questions.” Dkt. No. 43 at 24. The
plaintiff specifically takes issue with JangDhari’s written discovery answers when asked why
she demoted the plaintiff. Id. at 25. The plaintiff argues that, because JangDhari stated her
decision was supported by the evidence in the AIB report and supporting documentation
instead of specifying the plaintiff’s conduct that led to his demotion, “[t]he defendant has
not pointed to any admissible evidence to back up that [the plaintiff] was fired for” his
leadership style, complaints about his workplace behavior, or violation of the harassment
policy. Id.
This argument is untenable. JangDhari made the final decision to demote the
plaintiff in September 2018 after reviewing the AIB report and supporting documentation.
Dkt. No. 29-3 at 81. The statements to which the plaintiff refers regarding JangDhari’s
reason for sustaining the proposed demotion occurred in May 2019 and July 2022, months
and years after she made the decision. See Dkt. Nos. 38-1 at 2, 9–10; 38-2 at 24, 26. They
do not conflict with her initial, articulated reason for her decision. Rather, she refers to the
same evidence she reviewed at the time of her decision and states she would “have to review
the evidence file at this time” to recall the precise information that led to her decision. Dkt.
No. 38-1 at 8. And directly after these statements, JangDhari confirms that it was the
plaintiff’s conduct as supported by the evidence she reviewed in the file that led to her
decision to demote, but she did not “remember what was in the evidence file . . . off the top
of [her] head.” Id. at 10. That JangDhari could not remember the specifics of a file she
reviewed months and years prior to her testimony does not negate the legitimate,
nondiscriminatory reasons for the demotion given by the defendant and supported by
admissible evidence made at or near the time of the decision. Cf. Sanchez v. City of San
Antonio, No. 5:18-CV-184, 2019 WL 2165811, *18 (W.D. Tex. May 17, 2019) (finding that
minor inconsistencies in testimony of individuals who may not recall details after the
passage of more than two years “do not tend to establish the falsity of [the defendant’s]
legitimate, nondiscriminatory reason”).
Thus, the Court finds that the defendant has proffered legitimate, nondiscriminatory
reasons for the demotion and turns to the final stage of the McDonnell-Douglas
analysis—whether the plaintiff can raise a genuine issue of fact that these reasons were not
true and instead were a pretext for discrimination. Squyres, 782 F.3d at 231.
iii. The Court finds that the plaintiff cannot raise a genuine issue of fact
that the defendant’s proffered reasons are a pretext for
discrimination.
“An employee can show pretext ‘either through evidence of disparate treatment or by
showing that the employer’s proffered explanation is false or unworthy of credence.’” Id.
(quoting Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010)). To ultimately
prevail, the plaintiff must demonstrate “but for” causation—that the defendant would not
have taken the adverse employment action but for the plaintiff’s membership in the
protected class. Id.; Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 1001 (5th Cir.
2022). The defendant does not have to show that the proffered reasons for the adverse
employment action were objectively true but, rather, “the inquiry is limited to whether the
employer believed the allegation in good faith and whether the [adverse employment]
decision . . . was based on that belief.” Kitchen v. BASF, 952 F.3d 247, 253 (5th Cir. 2020)
(quoting Waggoner v. City of Garland, 987 F.2d 1160, 1165–66 (5th Cir. 1993)).
“An employee seeking to show pretext must rebut each discrete reason proffered by
the employer.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015).
Moreover, “[t]o establish pretext, a plaintiff cannot merely rely on his subjective belief that
discrimination has occurred; rather, he has the ultimate burden of persuasion in proving
intentional discrimination throughout the case.” Price v. Marathon Cheese Corp., 119 F.3d
330, 337 (5th Cir. 1997).
a. The defendant’s proffered reasons for the demotion are
consistent.
The plaintiff first claims that a fact issue exists as to pretext because JangDhari’s
demotion letter “misrepresents” that the AIB found the plaintiff’s “mannerism was gruff,
hard[-]handed, bully-like, autocratic, arrogant, abrasive, ugly, [dictatorial], and demeaning
that degraded staff and moral[e].” Dkt. No. 43 at 26 (quoting Dkt. No. 37-1 at 26). He also
contends that JangDhari’s letter misstated that the AIB found that the plaintiff had violated
the VA’s harassment policy. Id. According to the plaintiff, these discrepancies render the
defendant’s proffered reasons for demotion “unworthy of credence.” Id. (citation omitted).
In fact, the plaintiff is correct that the AIB report did not make a finding that the
plaintiff’s mannerisms were “gruff, hard[-]handed, bully-like, autocratic, arrogant, abrasive,
ugly, [dictatorial], and demeaning that degraded staff and morale,” but instead stated that
the plaintiff’s leadership style “was described” by his coworkers using these adjectives. Dkt.
No. 29-3 at 31, 34. The report also stated that the plaintiff’s leadership style in conjunction
with “his lack of emotional intelligence has created an uncomfortable working relationship
with many of the employees . . . .” Id. at 34. JangDhari’s demotion letter, on the other
hand, stated that the AIB “found that [the plaintiff’s] actions contributed to the
establishment of a hostile work environment” and “found that [the plaintiff’s] mannerism
was gruff, hard[-]handed, bully-like, autocratic, arrogant, abrasive, ugly, [dictatorial], and
demeaning, which degraded staff and moral[e].” Dkt. No. 29-3 at 81. Then, JangDhari
stated that the plaintiff’s conduct violated the workplace harassment policy. Id. She did
not, contrary to the plaintiff’s assertion, state that the AIB found such policy violation. Id.
“Generally, ‘an employer’s inconsistent explanations for its employment decisions at
different times permits a jury to infer that the employer’s proffered reasons are pretextual.’”
Squyres, 782 F.3d at 234 (quoting Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d
408, 412 n.11 (5th Cir.2007)). For example, in Burton, the Fifth Circuit found that a fact
issue remained as to pretext because there was conflicting evidence as to whether the
individual who made the adverse employment decision had knowledge of the proffered
reason for the decision. 798 F.3d at 236. Similarly, in Gee v. Principi, 289 F.3d 342 (5th Cir.
2002), the Fifth Circuit found an issue of fact as to the truthfulness of the proffered reasons
for a plaintiff’s discharge when a decisionmaker’s testimony—given twice at different
times—conflicted as to the participants and issues involved in a meeting about the plaintiff’s
discharge. Id. at 347–48. And in Burrell, the Fifth Circuit found possible pretext when an
employer, at different times over the course of the case, proffered two different areas of
deficiency in the plaintiff’s performance as reasons for failing to promote the plaintiff. 482
F.3d at 415.
However, in this case, “when the alleged inconsistent statements are considered in
their full context, the inconsistencies disappear.” Squyres, 782 F.3d at 234. The Court finds
that there is no fact issue as to whether the defendant’s proffered reasons are a pretext for
discrimination because, unlike Burton, Gee, and Burrell, “[t]he statements are not so
inconsistent as to raise a question of fact as to whether the reasons [the defendant] has
offered are worthy of credence.” Squyres v. Heico Cos., No. 3:12-CV-2348-B, 2013 WL
6027387, at *10 (N.D. Tex. Nov. 13, 2013), aff’d, 782 F.3d 224 (5th Cir. 2015). In short, the
defendant’s reasons given for the demotion have not changed and are well-supported by the
record. First, Hastings, who initially proposed the demotion, made almost identical
misstatements of the AIB’s findings in his proposal. Compare Dkt. No. 37-1 at 23 with id. at
26. And in his interrogatory responses in the administrative process, Hastings stated that
“[the] proposed demotion was due to the AIB results showing evidence of bullying and
harassing behavior by the [plaintiff] to his direct reports and to others in the facility.” Dkt.
No. 38-2 at 13. Likewise, his declaration and deposition testimony, both in this case and
the administrative case, state similar reasons for the demotion. See Dkt. No. 29-6 at 6–9;
29-7 at 23–24; 29-8 at 88–89. Hastings also testified that, in his opinion, an “uncomfortable
working relationship” could also qualify as a “hostile work environment.” Dkt. No. 29-8 at
71. Likewise, JangDhari’s deposition testimony, declaration, and answers to interrogatories
support her contention that the plaintiff was demoted because she found, in part based on
the AIB report, that his interactions with his coworkers contributed to a hostile work
environment. See Dkt. No. 29-9 at 9, 13–15; 29-10 at 83, 85–86, 95; 29-11 at 55–58; 38-2 at
24.
That Hastings and JangDhari categorized the AIB’s description of the plaintiff’s
leadership style as a “finding” and used the ostensibly harsher term “hostile work
environment” does not change that the defendant has consistently stated that the plaintiff
was demoted based on his leadership style and interactions with his coworkers that, in their
determination, contributed to a hostile work environment. In sum, “statements [in the AIB
report] do conflict slightly with [JangDhari’s and Hastings’s demotion letters], but not
enough to raise a question as to mendacity or fabrication” of the reasons given for the
plaintiff’s demotion. Squyres, 2013 WL 6027387, at *10. Thus, the plaintiff has failed to
show a genuine issue of material fact as to whether the defendant’s proffered reasons for
demotion are true based on the alleged misrepresentations in her letter of demotion.
b. The defendant did not violate the West Texas VA’s
disciplinary procedures.
The plaintiff next contends that JangDhari inappropriately demoted the plaintiff
before employing lesser disciplinary actions in violation of the VA’s procedures. Dkt. No.
43 at 26. The VA’s disciplinary policy states that, “[d]isciplinary or major adverse actions
will be taken when it is evident that other supervisory techniques have failed to correct a
given problem[] or would be inappropriate.” Dkt. No. 38-2 at 57. It also defines various
disciplinary actions, such as admonishment and reprimand, as distinguished from major
adverse actions, such as demotion. Id. at 57–58. However, nothing in the policy requires an
employee be given a lesser disciplinary action prior to implementing a major adverse action.
See id. at 56–67. Instead, the policy requires that the VA take “prompt and appropriate[]
disciplinary or major adverse action” depending on what the circumstances merit. Id. at 57.
And here, JangDhari testified that she believed lesser disciplinary measures would be
insufficient because the plaintiff’s area of oversight had been failing for several years under
the plaintiff’s leadership. Dkt. No. 29-9 at 15.
And even if JangDhari had failed to follow the disciplinary procedures, the Fifth
Circuit “does not find discriminatory motive merely because an employer misapplies
a . . . policy.” McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 460
(5th Cir. 2019) (collecting cases). Even a showing that an employer intentionally failed to
follow its own disciplinary procedures is not enough to show that the employer’s proffered
nondiscriminatory reasons are a pretext for discrimination. Id. Thus, even accepting the
plaintiff’s contention that the defendant failed to follow its own disciplinary procedures fails
to create a fact issue as to whether the defendant’s legitimate, nondiscriminatory reasons for
his demotion are true.
c. The subjective beliefs of the plaintiff’s coworkers are
insufficient to establish pretext.
Finally, the plaintiff attempts to establish pretext by offering an email and the
interrogatory responses of two coworkers, Mancha and Grant. Dkt. No. 43 at 27–29.
Mancha stated that she “believe[s] that [the plaintiff] has been treated unfairly because of his
race and gender.” Dkt. No. 38-2 at 36. Mancha also provides the following examples that
support her belief: (1) the plaintiff was “interrupted and cut off” in a meeting by Chitwood
and JangDhari,6 id. at 33; (2) the plaintiff was admonished for failing to recall information
in a meeting and the Acting Chief of Staff (presumably Chitwood) was not, id.; (3) the
6 Mancha refers to the “Director” and “Acting Chief of Staff, Ambulatory Service” in her
interrogatory responses, created in June 2019. Dkt. No. 38-2 at 33. At that time, JangDhari was
the Director and Chitwood was the Acting Chief of Staff, Ambulatory Service. See Dkt. Nos. 38-1
at 22–23; 38-2 at 17.
plaintiff was blamed by the Director for inadequate staff when Chitwood was not, id. at 33,
36; (4) the Chief of Pharmacy and Group Practice Manager blamed the plaintiff for the lack
of physicians, id. at 33; (5) the plaintiff’s request to add a cardiology clinic was denied but
implemented under a different Chief of Staff, id.; and (6) she believes the different treatment
of Chitwood and the plaintiff “could be [based on] racial bias,” id. at 36. Another
employee, Grant, stated that JangDhari treated the plaintiff and Chitwood “quite different”
with respect to “leave requests, job duties, . . . [and] extra duties and expectations.” Id. at 5.
But she also stated that she “does not know if it is because of his skin color or because he is
a man.” Id.
In short, the plaintiff has presented no evidence “beyond his own speculation and
that of [his coworkers]” that the alleged mistreatment of the plaintiff was motivated by his
race or gender. Price v. Valvoline, L.L.C., 88 F.4th 1062, 1067 (5th Cir. 2023); see also Crabb v.
Wal-Mart Stores, Inc., No. 1:11CV44-SA-DAS, 2012 WL 4092427, at *9 (N.D. Miss.
Sept. 17, 2012) (“[I]ndividual testimony that they were treated differently based on their
race is unavailing as the court has held such hollow assertions are insufficient[.]”). “And
[Fifth Circuit] caselaw is clear that ‘subjective belief of racial motivation, without more, is
not sufficient.’” Price, 88 F.4th at 1067 (quoting Cavalier v. Clearlake Rehab. Hosp., Inc., 306
F. App’x 104, 106–07 (5th Cir. 2009)). Moreover, whether the beliefs belong to someone
other than the plaintiff is inconsequential. Martin v. Kroger Co., 65 F. Supp. 2d 516, 553
(S.D. Tex. 1999), aff’d, 224 F.3d 765 (5th Cir. 2000). “When, as here, an employee does not
adduce objective evidence refuting the rational reasons articulated by the employer, pretext
cannot be established by subjective beliefs that discrimination motivated the employer’s
actions.” Id. at 553–54.
Thus, because this evidence amounts only to the plaintiff’s coworkers’ subjective
beliefs of what “could” be racial or gender bias, see Dkt. No. 38-2 at 5, 36, Mancha’s and
Grant’s statements are insufficient to create a genuine issue of material fact as to whether
the defendant’s proffered reasons for the plaintiff’s demotion are true.
* * *
In sum, the plaintiff has failed to present evidence that creates a genuine issue of
material fact as to whether the defendant’s demotion was motivated by his race, color,
national origin, gender, or age. Accordingly, because the claims ultimately fail at the
pretext stage, the Court grants summary judgment in favor of the defendant on the plaintiff’s
discrimination claims under Title VII and the ADEA.
B. The Court grants summary judgment on the plaintiff’s harassment (hostile
work environment) claims.
With respect to his harassment claim, the plaintiff asserts that the defendant
“subjected [the] plaintiff to an unmerited fact-finding investigation and otherwise harassed
the plaintiff” based on his race, color, national origin, gender, and age, and in retaliation for
engaging in a protected activity. Dkt. No. 1 ¶¶ 2, 33. The defendant argues that the plaintiff
has not established a prima facie case for a hostile work environment claim under either
Title VII or the ADEA. See generally Dkt. No. 33 at 39–47. According to the defendant, the
plaintiff’s contentions that the defendant investigated the allegations of sexual harassment
made against the plaintiff, demoted the plaintiff, and engaged in rude and belittling behavior
towards the plaintiff, even if taken as true, are not enough to create a hostile work
environment as a matter of law. See id.
In his response, the plaintiff directly addresses only his discrimination and retaliation
claims, and he does not respond to the defendant’s arguments regarding a hostile work
environment claim. See generally Dkt. No. 43. In fact, the only references to harassment in
the plaintiff’s response are general allegations that “discrimination, harassment, and/or
retaliation occurred on March 5, 2018.” Id. at 21. In support, the plaintiff cites to the letter
informing him of the AIB investigation, Dkt. No. 37-1 at 2, and the EEO complaint that the
defendant contends was never formally filed, which states that JangDhari harassed him by
“contradicting” the “work direction” given by another supervisor and making it
“unbearable” to come to work on a “daily basis,” see id. at 4; see also Dkt. No. 43 at 21.
The plaintiff also cites to the comments by Grant and Mancha—who allegedly
believed that the plaintiff had been harassed by JangDhari and/or Chitwood. Dkt. No. 43
at 27–29. Grant stated that she witnessed JangDhari yelling at Sotonwa after a meeting and
noticed that JangDhari treated Sotonwa “quite different[ly]” from Chitwood. Dkt. No. 38-2
at 4–5. But, as noted supra, Analysis § 3.A.iii.c., within the same document that contains
these written statements, Grant noted that she “do[es] not know if [this alleged treatment of
the plaintiff] is because of his skin color or because he is a man.” Id. at 5. And Mancha
stated she believed that the disparate treatment of Sotonwa could be due to race and gender.
Dkt. No. 38-2 at 36. However, the instances she gave of disparate treatment are JangDhari
and Chitwood interrupting, blaming, and “chatis[ing]” the plaintiff, and declining to adopt
one of the plaintiff’s business proposals. See id. at 33–34, 36.
Based on these allegations, the Court finds that the plaintiff fails to raise a genuine
issue of material fact to prove a harassment claim for a hostile work environment under
either Title VII or the ADEA. To establish a hostile work environment under Title VII, a
plaintiff must show, among other elements, that “[he] was subjected to unwelcome
harassment” and “the harassment complained of was based on [his membership in the
protected class].” Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 433 (5th Cir. 2023)
(quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). “Only ‘sufficiently severe
or pervasive’ behavior that ‘alter[s] the conditions of the victim’s employment and create[s]
an abusive environment’ constitutes a . . . hostile working environment under Title VII.” Id.
(alterations in original) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)). Additionally,
the environment must be both subjectively and objectively hostile to be actionable. Id.
Similarly, to establish a hostile work environment claim under the ADEA, the plaintiff must
prove that “the employee was subjected to harassment, either through words or actions,
based on age” and “the nature of the harassment was such that it created an objectively
intimidating, hostile, or offensive work environment.” Dediol v. Best Chevrolet, Inc., 655 F.3d
435, 441 (5th Cir. 2011).
When determining whether a plaintiff has established a hostile work environment,
courts look to the totality of the circumstances. Harris, 510 U.S. at 23. These circumstances
“may include 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.” Id. The Fifth Circuit
“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, “[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.
Here, the plaintiff has not provided competent evidence that the alleged harassment
was severe or pervasive enough to raise a genuine issue of fact that would meet the Fifth
Circuit standard. With respect to the severity of treatment by coworkers or supervisors, the
Fifth Circuit has held that, in a hostile work environment claim, “[a]llegations of unpleasant
work meetings, verbal reprimands, improper work requests, and unfair treatment do not
constitute actionable adverse employment actions as discrimination or retaliation.” Bye v.
MGM Resorts Int’l, Inc., 49 F.4th 918, 923 (5th Cir. 2022), cert. dismissed, 143 S. Ct. 1102
(2023) (quoting Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir. 2019)).
Moreover, the Fifth Circuit has rejected a comparable claim where a supervisor interrupted
the plaintiff when speaking and yelled degrading and chastising comments at her. Saketkoo,
31 F.4th at 1003–04. Thus, the plaintiff’s and other employees’ complaints that JangDhari
and Chitwood yelled at, berated, blamed, and unfairly treated the plaintiff do not rise to the
required level of severity. These alleged incidents fall well short of the Fifth Circuit’s
standard. Cf. Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 400–04 (5th Cir. 2021) (finding a
genuine issue of fact as to whether harassment was sufficiently severe when a plaintiff
offered evidence that coworkers periodically called him “deeply degrading racial epithets,”
hid his applications for a promotion, and gave him less-desirable work assignments).
With respect to pervasiveness, the plaintiff’s allegation of harassment on “an almost
daily basis” is wholly conclusory, and the plaintiff’s coworkers are no more specific as to the
frequency of such conduct. See Dkt. Nos. 37-1 at 4; 38-2 at 4–5, 36. In Saketkoo, Fifth
Circuit found that the “sporadic and abrasive” conduct of a supervisor who irregularly
yelled at the plaintiff was not pervasive enough to evidence a hostile work environment.
31 F.4th at 1003–04. In doing so, the Fifth Circuit cited to a district court case (also
affirmed by the Fifth Circuit) that “[held that the] plaintiff failed to establish a hostile work
environment where the employer was ‘always hostile [and] threatening,’ screamed at [the]
plaintiff, and violated [the] plaintiff’s space by slamming files and doors.” Saketkoo, 31 F.4th
at 1004 n.9 (citing Pennington v. Tex. Dep’t of Fam. & Protective Servs., No. A-09-CA-287-SS,
2010 WL 11519268, at *10 (W.D. Tex. Nov. 23, 2010), aff’d, 469 F. App’x 332 (5th Cir.
2012)). Thus, the plaintiff’s allegations of “similarly sporadic and abrasive conduct” are not
sufficient summary judgment evidence that would show the frequency of the alleged
harassment rose to the level of pervasive. Saketkoo, 31 F.4th at 1004; see also Dkt. Nos. 29-4
at 3; 38-2 at 4–5, 36.
Finally, with respect to all incidents of alleged harassment, “[the p]laintiff fails to
argue or reference any evidence of how any of this alleged harassment was connected to,
based on, or related to” his membership in any protected class. Smith v. Home Depot U.S.A.,
Inc., 102 F. Supp. 3d 867, 883 (E.D. La. 2015); see also Saketkoo, 31 F.4th at 1004. Although
the plaintiff’s demotion clearly altered the conditions of his employment, there is no
evidence—other than subjective beliefs—that the demotion was in any way motivated by
the plaintiff’s race, color, national origin, gender, or age. See supra Analysis § 3.A.iii.c.
Furthermore, the AIB investigation was in response to employee complaints of sexual
harassment against the plaintiff, and there is no evidence that anything other than the
defendant’s duty to investigate the allegations motivated the inquiry.7 Thus, even if the
evidence could raise an issue of severe or pervasive behavior, the harassment claim still fails
for this independent reason.
7 Furthermore, had the defendant failed to take “prompt remedial action” upon notice of the
harassment allegations against the plaintiff, it could have risked a harassment claim from the
employees making the allegations. See Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 640
(5th Cir. 2014) (quoting Hernandez, 670 F.3d at 651).
In sum, the plaintiff failed to address any harassment claim in his response to the
motion for summary judgment, and the complaint and evidence contain only conclusory
allegations of sporadic and relatively mild allegations of harassment and no evidence that
the alleged conduct was discriminatory. Thus, the Court finds that there is no genuine issue
of material fact as to whether the plaintiff was harassed based on his race, color, national
original, gender, or age to the extent that it created a hostile work environment. The Court
grants summary judgment on any harassment claims.
C. The Court grants summary judgment on the plaintiff’s retaliation claims.
Finally, to establish a prima facie case for retaliation, the plaintiff must show that
“(1) [he] engaged in a protected activity; (2) [he] suffered an adverse employment action;
and (3) a causal connection exists between the protected activity and the adverse
employment action.” Johnson v. Bd. of Supervisors, 90 F.4th 449, 460 (5th Cir. 2024) (quoting
Saketkoo, 31 F.4th at 1000). Because the plaintiff has no direct evidence of retaliation and
attempts instead to prove causation using circumstantial evidence, the McDonnell-Douglas
burden-shifting framework applies. Id.
The parties dispute whether the plaintiff can establish the third element of a prima
facie case. Dkt. Nos. 33 at 48–50; 43 at 20–23. In brief, the parties disagree as to whether:
(1) the plaintiff engaged in a protected activity in March 2018 at or near the time of the
investigation and his demotion; and (2) whether his first EEO complaint in 2017 or the
alleged complaint in 2018 was temporally close enough to the investigation and demotion to
establish a causal connection. Id. The plaintiff contends that he filed a formal EEO
complaint in March 2018—the same month the AIB investigation began and he was
temporarily removed from his position. Dkt. Nos. 37-1 at 4; 43 at 22. The defendant’s
EEO agency contends that, other than the 2017 complaint about the plaintiff’s pay
differential, the plaintiff did not file any complaint—formal or informal—until February
2019, after the investigation and his demotion. Dkt. Nos. 33 at 49 n.21; 29-5 at 2–3. But
the Court need not resolve whether the plaintiff satisfies the causal-connection element of
his prima facie case because he cannot ultimately prevail at the pretext stage of the analysis.
At the pretext stage of the McDonnell-Douglas framework, the plaintiff must show
more than the causal connection required for the prima facie case. He must show that his
protected activity “was a ‘but for’ cause of the adverse employment decision.” Owens v.
Circassia Pharms., Inc., 33 F.4th 814, 835 (5th Cir. 2022) (quoting Long v. Eastfield Coll., 88
F.3d 300, 305 n.4 (5th Cir. 1996)). That is, a plaintiff must show that “a discriminatory
motive more likely motivated [the] employer’s decision” than the stated legitimate,
nondiscriminatory reason. Saketkoo, 31 F.4th at 1002 (quoting Brown v. Wal-Mart Stores E.,
L.P., 969 F.3d 571, 577 (5th Cir. 2020)). “A ‘combination of suspicious timing with other
significant evidence of pretext can be sufficient to survive summary judgment’” in a
retaliation action. Id. at 1003 (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
409 (5th Cir. 1999)).
However, mere speculation is not evidence of pretext. See Johnson, 90 F.4th at 461
(“Speculation that she could have been assigned another room, however, does not
demonstrate that [the employer’s] reasons for assigning [the plaintiff to work in] the storage
room were pretextual.”). The parties dispute whether JangDhari considered the plaintiff’s
complaints of discrimination or harassment at the time she decided to approve Hastings’s
recommendation to permanently demote the plaintiff. Dkt. Nos. 33 at 51; 43 at 22–23.
However, the plaintiff only speculates that JangDhari recalled and considered his prior
complaints at the time of her decision and provides no competent summary judgment
evidence to support this proposition. In contrast, the undisputed evidence shows that:
(1) the initial recommendation to demote the plaintiff was made by Hastings, who was not
aware that the plaintiff had ever engaged in a protected activity, Dkt. No. 29-6 at 9;
(2) JangDhari testified that she did not recall knowing about the plaintiff’s 2017 EEO
complaint, Dkt. No. 29-9 at 16; and (3) even if she were aware, it had “no bearing” on her
decision to sustain the proposed demotion. Id. And both Hastings and JangDhari
repeatedly and consistently state that the proposed demotion was based on the results of the
AIB’s report and the determination that the plaintiff’s conduct violated the workplace
harassment policy. See Analysis § 3.A.iii.a.
Therefore, regardless of whether the plaintiff filed the 2018 EEO complaint, the 2017
and 2018 complaints were temporally close enough to the investigation and demotion to
establish a prima facie case, or JangDhari had knowledge of the plaintiff’s complaints, the
evidence cannot support the conclusion that the plaintiff’s demotion was retaliatory. First,
“close temporal proximity [alone] is insufficient to establish pretext.” Moore v. Brennan, 794
F. App’x 374, 379 (5th Cir. 2019) (citing Garcia v. Prof. Contract Servs., Inc., 938 F.3d 236,
243–44 (5th Cir. 2019)). The plaintiff has provided no “significant evidence of pretext” in
addition to any close temporal proximity, and therefore he cannot clear the pretext hurdle.
Saketkoo, 31 F.4th at 1003; cf. Moore, 194 F. App’x at 380 (“Although [the plaintiff]
speculates that his managers . . . may have possessed retaliatory animus, his only evidence
of this is that they knew of his EEO claims.”). Accordingly, the plaintiff has not raised a
genuine issue of fact that, but for his protected activity, he would not have been investigated
or demoted, and the plaintiff's retaliation claims fail as a matter of law. The Court grants
summary judgment on the plaintiff's Title VII and ADEA retaliation claims.
4. Conclusion
In sum, the Court grants summary judgment on the plaintiff's claims. The plaintiff
cannot establish a prima facie case for harassment that constituted a hostile work
environment because he cannot establish that the harassment was severe or pervasive, or
that he was harassed because of his race, color, national origin, age, or in retaliation for
engaging in a protected activity. And even if the plaintiff could establish a prima facie case
of discrimination or retaliation, he has not presented evidence that creates a genuine issue of
material fact as to whether the defendant's proffered reasons for the investigation into his
conduct and his eventual demotion were a pretext for discrimination or retaliation.
So ordered on October 28, 2024.
WU. 4
ene Ul Hokey
UNITED STATES DISTRICT JUDGE
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