Haas v. Mayorkas

UNITED STATES DISTRICT COURT February 19, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

GEORGE HAAS, §

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Plaintiff, §

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VS. § CIVIL ACTION NO. 4:22-CV-4235

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ALEJANDRO MAYORKAS, §

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Defendant. §

MEMORANDUM & ORDER

Before the Court is a Report and Recommendation (“R&R”) submitted by United States

Magistrate Judge Dena Hanovice Palermo. ECF No. 32. The R&R addresses Defendant Alejandro

Mayorkas’s Motion for Summary Judgment. ECF No. 25. Defendant Mayorkas filed timely

objections to the R&R. ECF No. 39. For the reasons that follow, the Court OVERRULES the

objections and ADOPTS the R&R. The Court GRANTS IN PART and DENIES IN PART

Defendant’s Motion for Summary Judgment.

I. BACKGROUND

The R&R provides a comprehensive review of the facts of the case, ECF No. 32 at 2-6, so

the Court will limit itself to briefly summarizing the procedural history. Plaintiff George Haas

served as a Customs and Border Protection (CBP) officer in Houston, and he was removed from

federal service on April 7, 2017. On December 7, 2022, Plaintiff brought this employment

discrimination case against Defendant Alejandro Mayorkas, Director of Homeland Security, in his

official capacity, alleging that he “removed him from the federal service without just cause and

that he was subjected to a hostile work environment.” ECF No. 2 ¶ 1. On December 13, 2023,

Defendant filed his first Motion for Summary Judgment. ECF No. 14. At a motion hearing on

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February 20, 2024, the Court dismissed Plaintiff’s claims for race, national origin, and religious

discrimination and ordered Plaintiff to respond to Defendant’s discovery requests. After the

ordered discovery was complete, Defendant filed an Amended Motion for Summary Judgment.

ECF No. 25. The Court referred the Motion to Magistrate Judge Palermo. ECF No. 31.

Judge Palermo issued an R&R recommending that Defendant’s Motion be granted in part

and denied in part. ECF No. 32. Judge Palermo recommended that summary judgment be granted

on Plaintiff’s claim for review of the Merit Systems Protection Board’s (MSPB) decision affirming

his termination because Plaintiff had not shown that the decision was arbitrary and capricious of

unsupported by substantial evidence. Id. at 8-12. Judge Palermo then recommended that summary

judgment be denied on Plaintiff’s Title VII retaliation claim because Plaintiff had stated a prima

facie case of retaliation and there were genuine disputes of material fact that precluded summary

judgment. ECF No. 12-18. Finally, Judge Palermo found that Plaintiff’s claims for disability

discrimination and hostile work environment remained for trial despite Defendant’s arguments

that the claims had been dropped. Id. at 18-22.

Defendant filed objections to the R&R, ECF No. 39, and Plaintiff responded. ECF No. 42.

II. STANDARD OF REVIEW

A party may file written objections to a proposed R&R within 14 days of being served with

a copy. 28 U.S.C. § 636. If such objections are timely filed, a district court “shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations

to which objection is made.” Id. “A judge of the court may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge.” Id. However, if no timely

objection is made, the court need only review the R&R to determine whether it is “clearly

erroneous or contrary to law.” Garcia v. Sessions, 2018 WL 6732889, at *1 (S.D. Tex. Nov. 7,

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2018) (citing Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir. 2017)). Because Defendant has filed

timely objections, the Court reviews de novo the objected-to portions of the R&R.

Summary judgment under Rule 56 “is proper ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A

genuine issue as to a material fact arises “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court must draw all “reasonable inferences . . . in favor of the nonmoving party, but the

nonmoving party ‘cannot defeat summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence.’” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)

(quoting Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)).

III. ANALYSIS

a. Objection 1: This Court already dismissed the national origin, race, and

religious discrimination claims.

Defendant asserts that Plaintiff’s national origin, race, and religious discrimination claims

were dismissed at this Court’s February 20, 2024 hearing and “should therefore remain dismissed

and should not continue past summary judgment.” ECF No. 39 at 10. Plaintiff agrees that those

claims were withdrawn at the hearing and does not oppose the objection. ECF No. 42 at 2.

Judge Palermo’s R&R recognized that the national origin, race, and religious

discrimination claims had previously been dismissed. ECF No. 32 at 21 (“Then, at the motion

hearing before Judge Ellison on February 20, 2024, Plaintiff agreed to dismiss his ‘claims for race,

national origin, and religious discrimination.’ Feb. 21, 2024, Minute Order; see also ECF No. 15

at 2 (agreeing to withdraw race, religion, and national origin discrimination claims)). Judge

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Palermo also noted that Plaintiff’s remaining claims were limited to “retaliation, disability

discrimination, and hostile work environment.” Id. at 22. Since the R&R correctly stated that

Plaintiff’s national origin, race, and religious discrimination claims were dismissed, Defendant’s

objection is moot and overruled.

b. Objection 2: Plaintiff did not plead a disability or hostile work environment

claim.

Defendant argues that Plaintiff “failed to plead a disability discrimination or hostile work

environment claim; therefore, these claims should be dismissed.” ECF No. 39 at 10. Judge Palermo

found that, “Viewing the language of the complaint in its entirety, it is evident that Plaintiff

intended to assert claims for hostile work environment, disability discrimination, and violations of

due process in addition to his MSPB and retaliation claims. Although Plaintiff did not frame those

claims as separate ‘counts’ in the complaint, see ECF No. 2 ¶¶ 54-67, Plaintiff’s fact allegations,

citations to the ADA and Rehabilitation Act, and statements of disability discrimination elsewhere

within the complaint are sufficient to put Defendant on notice.” ECF No. 32 at 20 (footnotes

omitted). Because Defendant has timely filed an objection, this issue is reviewed de novo.

In his complaint, Plaintiff explicitly brought five claims for (1) race discrimination, (2)

religious discrimination, (3) national origin discrimination, (4) retaliation, and (5) Plaintiff’s

termination does not promote the efficiency of the federal service. Outside of the express counts,

Plaintiff alleged that “Defendants subjected him to a hostile work environment and terminated his

employment on the bases of his disability and reprisal for prior EEO activity in violation of Title

VII, 42 USCA §§ 2000e-2(a), 2000e-2(b), 2000e-3(a), and 2000e-16(a), violation of the

Rehabilitation Act of 1973 as amended, U.S.C. §12101 et. Seq. and 29 U.S.C. §791.” ECF No. 2

¶ 12. Plaintiff further stated that “Jurisdiction over Plaintiff’s claims of disability discrimination

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in employment is invoked pursuant to 28 USCA § 1343, 42 USCA § 2000e-16, 5 USCA § 7702,

and 5 USCA § 7703.” Id. ¶ 15.

The Court finds that Plaintiff sufficiently pled claims for hostile work environment and

disability discrimination even though those claims were not pled as distinct counts. The Court

agrees with Judge Palermo that Plaintiff’s fact allegations, citations to the ADA and Rehabilitation

Act, and statements of disability discrimination elsewhere within the complaint were sufficient to

put Defendant on notice of these claims. Defendant’s objection is overruled.

c. Objection 3: Plaintiff did not exhaust his administrative remedies for a

disparate treatment disability discrimination or a hostile work environment

claim.

Defendant next objects that Plaintiff did not exhaust his administrative remedies for a

disparate treatment disability discrimination or a hostile work environment claim. Before suing for

employment discrimination, an employee must exhaust administrative remedies. See Davis v. Fort

Bend Cnty., Tex., 893 F.3d 300, 303 (5th Cir. 2018), aff’d sub nom. Fort Bend Cnty., Tex. v. Davis,

139 S.Ct. 1843 (2019). A federal employee may either (1) bring a mixed complaint before the EEO

or (2) bring a mixed appeal before the MSPB. 29 C.F.R. § 1614.302(a); 5 U.S.C. § 7702. The EEO

or the MSPB will decide both the issues of discrimination and the adverse employment action. 29

C.F.R. § 1614.302; 5 C.F.R. §1201.156. Once the employee who initiates either of these procedural

paths receives a final determination, the employee may pursue judicial review of the final

determination. 29 C.F.R. §1614.310; 5 U.S.C. §7703(a)(1) & (b)(1)-(2). Cases of discrimination

subject to provisions of section 7702 “shall be filed under section 717(c) of the Civil Rights Act

of 1964 (42 U.S.C. 2000e-16) [or] section 15(c) of the Age Discrimination in Employment Act of

1967 (29 U.S.C. 633a(c)) . . ..” 5 U.S.C. § 7703(b)(2). These provisions require exhaustion of

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administrative remedies before the federal court may have jurisdiction. Smith v. Potter, 400 Fed.

Appx. 806, 812 (5th Cir. 2010).

The parties agree that Plaintiff filed a mixed case complaint before the MSPB. Defendant

argues that Plaintiff’s MSPB “complaint for age and disability discrimination for denial of a

reasonable accommodation, and retaliation” did not “make any claims of disparate treatment, nor

hostile work environment.” ECF No. 39 at 13. However, Defendant himself stated in his Amended

Motion for Summary Judgment that “Plaintiff pursued his claims through the MSPB where he

alleged that CBP discriminated against him based on his age and mental disability, a hostile work

environment, and retaliation for prior Equal Employment Opportunity (EEO) activity. Ex. A at 2.”

ECF No. 25 at 2 (emphasis added). Further, Plaintiff points to Appellant’s Response to Order

Regarding Affirmative Defenses in which he asserted claims for disparate treatment and denial of

reasonable accommodation. ECF No. 15-3. Therefore, Plaintiff did exhaust the administrative

remedies for claims of disparate treatment and hostile work environment by bringing the claims in

his mixed case before the MSPB. Defendant’s objection is overruled.

d. Objection 4: Even if the disability and hostile work environment claims were

properly pled, Plaintiff’s claims fail as a prima facie case and under the

McDonnell Douglas framework.

Defendant’s fourth objection is that Plaintiff’s disability discrimination, reasonable

accommodation, and hostile work environment claims fail as a matter of law. However, Defendant

did not raise this argument before the Magistrate Judge, and it was not addressed in the R&R.

Although Plaintiff’s complaint put Defendant on notice of his hostile work environment and

disability discrimination claims, Defendant did not move for summary judgment on these grounds.

Instead, Defendant argued only that “Plaintiff dropped all claims but their retaliation claim

and…the MSPB claims.” ECF No. 25 at 7. This argument was correctly rejected by Judge Palermo

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who found that the hostile work environment and disability discrimination claims remained for

trial. ECF No. 32 at 21-22.

Since Defendant did not move for summary judgment on these grounds before the

Magistrate Judge, the Court declines to reach those new arguments. The Fifth Circuit has held that

arguments which could have been raised before the Magistrate Judge but are raised for the first

time in objections before the District Court, are waived. See Cupit v. Whitley, 28 F.3d 532, 535

(5th Cir.1994) (holding party who waited until after Magistrate Judge issued recommendation to

raise defenses of procedural default and failure to exhaust administrative remedies waived those

defenses). Defendant’s fourth objection raises three substantive new arguments that could have

been raised before Judge Palermo, so the objection is overruled.

e. Objection 5: Plaintiff’s retaliation claim fails as a prima facie case and under

the McDonnell Douglas framework.

Next, Defendant argues that Plaintiff’s retaliation claim fails as a prima facie case and

under the McDonnell Douglas framework. Judge Palermo found that Defendant was not entitled

to summary judgment on Plaintiff’s retaliation claim, ECF No. 32 at 12-18. Because Defendant

has timely filed an objection to this ruling, this issue is reviewed de novo.

i. Prima Facie Case of Retaliation

To establish a prima facie case of retaliation, a plaintiff must show (1) participation in an

activity protected by Title VII, (2) adverse employment action, and (3) a causal connection

between the two. Newbury v. City of Windcrest, 991 F.3d 672, 678 (5th Cir. 2021). An adverse

employment action is one that is “materially adverse, such that it would dissuade a reasonable

employee from making a discrimination complaint.” Id.

Defendant objects that Plaintiff did not establish a prima facie case for retaliation because

he failed to state an adverse employment action and causation between his protected activity and

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alleged adverse employment actions. As the R&R notes, Plaintiff identified a “series of adverse

employment actions leading up to his removal, including the revocation of his right to carry and

reassignment to administrative duties on May 29, 2015, and the [fitness for duty examination]

ordered on August 8, 2015.” ECF No. 32 at 15. Judge Palermo refrained from deciding whether

those qualified as adverse employment actions because the question was unbriefed. Id. at 15 n.12.

Judge Palermo then concluded that summary judgment on causation was “premature” since

Defendant was not seeking summary judgment on all the alleged acts of retaliation. Id. at 15.

Now, Defendant argues that the alleged adverse employment actions do not qualify as such

and should not be considered for the causation analysis. When determining whether an allegedly

retaliatory action is materially adverse, courts “‘look to indicia such as whether the action affected

‘job title, grade, hours, salary, or benefits’ or caused ‘a diminution in prestige or change in standing

among co-workers.’” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 827 (5th Cir. 2019)

(citing Paul v. Elayn Hunt Corr. Ctr., 666 F. App’x 342, 346 (5th Cir. 2016). A reasonable jury

could conclude that, in the context of the case, the revocation of the right to carry, reassignment to

administrative duties, and order to undergo a fitness for duty examination were materially adverse

employment actions. See, e.g., Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 827 (5th Cir.

2015) (affirming district court ruling that placement on administrative duty and lost overtime

eligibility was materially adverse employment action); Moore v. Napolitano, No. CIV.A.07-2666,

2010 WL 2671850, at *7 (E.D. La. June 29, 2010) (denying summary judgment because order to

attend fitness for duty examination could be seen as materially adverse employment action).

Particularly because of the limited briefing on this point, the Court concludes that there remains a

genuine factual dispute over whether these actions were materially adverse in Plaintiff’s case.

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Thus, the Court must consider the allegedly adverse actions in the causation analysis as

well. “A plaintiff alleging retaliation may satisfy the causal connection element by showing close

timing between an employee’s protected activity and an adverse action against him.” Feist v. La,

Dep’t of Justice, Office of the Att’y. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (cleaned up). Plaintiff

suffered the first alleged adverse employment action on May 29, 2015, less than a month after he

requested reasonable accommodation on May 6, 2015. When the agency decisionmaker responded

to Plaintiff’s request, he also initiated the alleged adverse actions by revoking Plaintiff’s right to

carry and reassigning him to administrative duties. ECF No. 27 at 6-7. The short period and direct

connection between the request and adverse actions establishes temporal proximity and implied

causation. Therefore, Plaintiff has established a prima facie case of retaliation, and Defendant’s

objection is overruled.

ii. McDonnell Douglas framework

Defendant’s next argument for summary judgment on Plaintiff’s retaliation claim is that it

fails under the McDonnell Douglas framework. The R&R concluded that “Defendant has met its

burden to articulate a legitimate, nonretaliatory reason for Plaintiff’s removal.” ECF No. 32 at 16.

However, the R&R denied summary judgment because Defendant failed to state “a legitimate,

nondiscriminatory reason that explains both the adverse action and the timing” for each of the

alleged adverse actions other than removal. Id. (quoting McCoy, 492 F.3d at 562).

Defendant objects that he “cannot be justified in [Plaintiff’s] removal, and yet be

unjustified in all the steps leading up to Plaintiff’s removal.” ECF No. 39 at 29. Defendant argues

that the same legitimate, nondiscriminatory reason for removing Plaintiff also justifies the previous

steps taken. Id. In support of this argument, Defendant states that “Plaintiff informed Defendant

that he was unable to perform essential functions of the job and could not work in stressful

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environments” which led Defendant to request a fitness for duty examination “which concluded

that Plaintiff was unstable and could have an unexpected flare up that would endanger other

employees and civilians.” Id. As a result, “Defendant had to remove Plaintiff’s federal firearm,

and reassigned Plaintiff to an administrative position while they looked for another position for

which Plaintiff was qualified.” Id. Therefore, Defendant asks the Court to conclude that the alleged

adverse actions were all taken for the legitimate, nondiscriminatory reason that Plaintiff could not

perform the essential functions of the job.

However, Defendant’s argument obscures the timeline of events. Plaintiff suffered the

revocation of his right to carry and reassignment to administrative duties on May 29, 2015, shortly

after his request for reasonable accommodation and long before the fitness for duty exam

concluded that Plaintiff could not continue in his position. The evidence that Defendant points the

Court to itself states that “On May 29, 2015, the Agency requested that you submit administratively

acceptable medical documentation to enable management to make an informed decision about

your employment situation and your ability to fully perform the duties of your position.” ECF No.

25-2 at 1 (emphasis added). It is not clear from the evidence that Defendant took the alleged

adverse actions on May 29, 2015 because Plaintiff could not perform the essential functions of the

job. Instead, Defendant’s own evidence says that the agency had only begun the process of making

that determination. Plaintiff meanwhile argues that the adverse employment actions were

retaliation for his request for accommodation.

Defendant has still failed to state a legitimate, nondiscriminatory reason that explains both

the action and the timing for each of the alleged adverse actions, the Court must assume that the

actions were taken with retaliatory intent in recognition of Plaintiff’s unrebutted prima facie case.

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The Court therefore agrees with Judge Palermo’s R&R that summary judgment is premature at

this stage and overrules Defendant’s objection.

f. Objection 6: Plaintiff failed to produce any evidence that creates a fact issue.

Finally, Defendant argues that Plaintiff never produced any evidence to create a fact issue.

In support of this argument, Defendant cites to statements in the R&R such as “Plaintiff does not

cite or attach specific evidence supporting these allegations” and “Plaintiff offers no actual

evidence of retaliatory intent.” ECF No. 32 at 14.11, 18 n.13. Defendant concludes that summary

judgment should be granted because “Plaintiff lacks the evidence to support any of his claims.”

ECF No. 39 at 22.

While the Court agrees with Judge Palermo that many of Plaintiff’s citations were unclear

or inadequate, Defendant is not entitled to summary judgment on those grounds. When the cited

statements are viewed in context, they explain that Defendant either did not dispute Plaintiff's

uncorroborated allegations or did not overcome an inference in Plaintiffs favor. Defendant cannot

point to these statements as a standalone basis for summary judgment. Therefore, Defendant’s

objection is overruled.

IV. CONCLUSION

The Court hereby ADOPTS the R&R. Defendant’s Motion for Summary Judgment, ECF

No. 25, is GRANTED IN PART and DENIED IN PART. Summary judgment is GRANTED on

Plaintiffs claim for review of the MSPB decision and DENIED on all other claims.

IT IS SO ORDERED.

SIGNED at Houston, Texas on this the 19th day of February, 2025.

YS P CL Sn

ITH P. ELLISON

UNITED STATES DISTRICT JUDGE

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