Brenyah v. Columbia Hospital Corporation of Bay Area

□ Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT March 17, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

BRENDA BRENYAH, §

§

Plaintiff, §

V. § CIVIL ACTION NO. 2:21-CV-00087

§

COLUMBIA HOSPITAL CORPORATION OF §

BAY AREA, ef al., §

§

Defendants. §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION

Before the Court is Magistrate Judge Julie Hampton’s Memorandum and Recommendation

(“M&R”). (D.E. 151). The M&R recommends that the Court:

(1) Overrule in part and sustain in part Plaintiff's evidentiary objections;

(2) Grant Defendant Corpus Christi Medical Center’s (“Defendant”) motion for summary

judgment, (D.E. 104);

(3) Deny as moot Defendant’s motion to strike, (D.E. 118).

(D.E. 151, p. 2). Plaintiff has filed written objections to the M&R. (D.E. 154).!

After review, the Court OVERRULES Plaintiff's objections, (D.E. 154), and ADOPTS the

findings and conclusions of the M&R. (D.E. 151).

I. Law

When a party objects to the findings and recommendations of a magistrate judge, the district

judge “shall make a de novo determination of those portions of the report or specified proposed

' The Court granted Plaintiff an extension of the deadline to file objections. (D.E. 153). In its order, the

Court instructed the parties to comply with the page limits contained in the scheduling order. Jd. at 2.

Plaintiffs objections nominally comply with the page limit, but the Court notes that it appears that Plaintiff

manipulated or condensed the typeface to fit within twenty-five pages—in a way that her other briefings

do not. Compare (D.E. 154), with (D.E. 152; D.E. 156). Although the scheduling order does not explicitly

prohibit this maneuver, it certainly goes against the spirit of the scheduling order’s instruction not to

circumvent the page limit with formatting alterations. See (D.E. 80, p. 3).

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findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). A party must

point out with particularity any alleged errors in the magistrate judge’s analysis. Pelko v. Perales, No.

2:23-CV-00339, 2024 WL 1972896, at *] (S.D. Tex. May 3, 2024) (Ramos, J.). Objections that merely

re-urge arguments contained in the original briefing are not proper and will not be considered. See

Edmond y. Collins, 8 F.3d 290, 293 n.7 (Sth Cir. 1993). Moreover, “[f]rivolous, conclusive or general

objections need not be considered by the district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n.8

(Sth Cir. 1982) (en banc), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1416 (Sth Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.

§ 636(b)(1).

As to any portion for which no objection is filed, a district court reviews for clearly erroneous

factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989)

(per curiam).

II. Objections

Plaintiff has raised numerous objections to the M&R. See generally (D.E. 154). The Court

addresses each in turn.’

A. Evidentiary Objections

Plaintiff objects to the M&R’s recommendation that her spoliation objection be overruled with

respect to the video. (D.E. 154, p. 2, 25). The M&R recommends that Plaintiff's spoliation objection

be overruled because Plaintiff has failed to allege that Defendant acted in bad faith. (D.E. 151, p. □□□□

14). The M&R explains that “[e]ven considering [Plaintiff]’s argument that [Defendant] erred in

allowing security footage to be destroyed—trather than intentionally destroying evidence—the

argument fails. . . . [Defendant] preserved, and provided to [Plaintiff], a large portion of the . . . video.”

Td. (citations omitted).

* The Court OVERRRULES any objection not explicitly discussed as lacking sufficient particularity.

Pelko, 2024 WL 1972896, at *1.

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In her objections, Plaintiff argues that she demonstrated Defendant’s bad faith in the form of

evidence (1) showing Defendant consciously allowed the video to be deleted; and (2) contradicting

testimony that the video was not saved (i.e., testimony that the video was saved). (D.E. 154, p. 2).

Neither argument is sufficient to establish bad faith. Bad faith here “generally means destruction for

the purpose of hiding adverse evidence.” (D.E. 151, p. 12-13) (quoting Van Winkle v. Rogers, 82 F.4th

370, 375 (Sth Cir. 2023)). With respect to Plaintiff's first argument, the M&R correctly explains that

Plaintiff's argument—that Defendant allowed the video to be destroyed—does not establish that

Defendant intentionally destroyed the evidence. /d. at 13. And the same is true regarding Plaintiff's

second argument: even assuming Plaintiff's testimony is correct and the video was saved, such still

does not show that the video was “[destroyed] for the purpose of hiding adverse evidence.” Van Winkle,

82 F.4th at 375 (quoting Guzman v. Jones, 804 F.3d 707, 713 (Sth Cir. 2015)). Plaintiff also argues

that the M&R failed to consider that Defendant “did not produce contemporaneous documentation of

the investigation” into Plaintiff's discrimination allegations. (D.E. 154, p. 25). Again, failure to

produce does not demonstrate destruction for the purpose of hiding adverse evidence, and nothing in

this objection shows bad faith or conduct on Defendant’s part. See Guzman, 804 F.3d at 713.

Accordingly, the Court OVERRULES this objection.

Plaintiff next objects to the M&R’s recommendation that her objection to Defendant’s Exhibit

LL be overruled. (D.E. 154, p. 2). In support of this objection, Plaintiff reasserts the argument raised

in her previous briefing and fails to point with specificity to any alleged error in the M&R’s analysis.

Id. Accordingly, the Court OVERRULES this objection. See Edmond, 8 F.3d at 293 n.7 (no re-urging

arguments contained in original briefing).

B. Omitted Facts and Factual Errors Objections

i. Discrimination, Retaliation, and Hostile Work Environment Prima Facie Case

Plaintiff objects that the M&R ignored numerous facts showing temporal proximity between

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her protected activity and the alleged retaliatory acts, and supporting that Plaintiff engaged in protected

activity. See (D.E. 154, p. 3-6). The M&R recommends granting summary judgment on Plaintiff's

retaliation claim on the ground that she failed to establish that she suffered a materially adverse

employment action, and, alternatively, that she failed to rebut Defendant’s legitimate, nonretaliatory

reason. (D.E. 151, p. 75-76). Because the M&R does not address temporal proximity or protected

activity in its analysis, Plaintiff's objection fails to point out with particularity any errors in the analysis,

and the Court OVERRULES this objection. Pelko, 2024 WL 1972896, at *1.

Plaintiff objects that the M&R omitted facts that show Defendant did not take appropriate

remedial action in response to Plaintiff's report of discrimination. (D.E. 154, p. 4, 7-8). The M&R

recommends summary judgment on Plaintiff's hostile-work-environment claim on the grounds that

she failed to show she suffered harassment so severe or pervasive that it altered the conditions of her

employment and affected a term, condition, or privilege of her employment. (D.E. 151, p. 66). Whether

or not Defendant took prompt remedial action does not change the fact that Plaintiff fails to show a

genuine dispute of material fact as to her claim for hostile work environment. See Johnson v. PRIDE

Indus., Inc., 7 F.4th 392, 399-400 (Sth Cir. 2021) (citing Ramsey v. Henderson, 286 F.3d, 264, 268

(Sth Cir. 2002)) (explaining that a plaintiff must prove five elements to establish a claim of hostile

work environment). The Court OVERRULES this objection.

Plaintiff objects to the M&R’s omission of facts regarding Defendant’s harassment policies.

(D.E. 154, p. 7, 20). She argues that Defendant’s failure to follow its own policy negates a Faragher

defense. Jd. Plaintiff fails to explain how this relates to the M&R’s analysis regarding retaliation and

harassment, which does not mention the Faragher defense. The Court OVERRULES this objection.

Plaintiff objects to the exclusion of evidence that a co-worker (“Dike”), of the same race, also

found the working environment abusive. (D.E. 154, p. 20-21). However, she fails to explain how this

fact affects the M&R’s analysis or alters its conclusion regarding her hostile-work-environment claim.

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Indeed, Plaintiff later argued that the facts in Dike’s case “are not comparable.” (D.E. 156, p. 6); see

also (D.E. 151, p. 66) (noting that “Dike suffered more severe harassment”). The Court OVERRULES

this objection.

Plaintiff objects to the omission of facts regarding the treatment of her co-worker Dike,

including his reassignment based on race and the use of the N-word by patients. (D.E. 154, p. 21).

Plaintiff argues that, because she was likewise subjected to the same racial-reassignment policy, she

was subjected to a hostile work environment. /d. But Plaintiff cites no evidence to support that she was

subject to the racial-reassignment policy. In her summary-judgment briefing, Plaintiff makes the same

conclusory assertion that “the discriminatory policy directly impacted [her] work” without citing to

any competent summary-judgment evidence in support. (D.E. 107, p. 25). The Court does not have a

duty to sift through the record to find such evidence. Stults v. Conoco, Inc., 76 F.3d 651, 657 (Sth Cir.

1996) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (Sth Cir. 1994)). And, unsupported assertions

do not defeat summary judgment. Shahrashoob v. Texas A&M Univ., 125 F.4th 641, 648 (Sth Cir.

2025) (citing Batiste v. Lewis, 976 F.3d 493, 500 (Sth Cir. 2020)). The Court OVERRULES this

objection.

Plaintiff objects to the M&R’s omission of facts showing that another co-worker (who is

Hispanic) unhooked an IV but was not subsequently coached. (D.E. 154, p. 21). Plaintiff argues

that this evidence supports disparate treatment and temporal proximity. Jd. However, Plaintiff fails

to explain how the evidence would alter the M&R’s conclusion that she failed to show pretext.

(D.E. 151, p. 61, 76). The Court OVERRULES this objection.

Plaintiff objects that the M&R omitted facts showing that Plaintiff reported problems with

the investigation and retaliation, and made complaints about a hostile work environment. (D.E.

154, p. 21). Plaintiff argues that this shows temporal proximity for retaliation. /d. Plaintiff fails to

explain how this materially alters the M&R’s retaliation analysis, which found that she had not

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suffered a materially adverse employment action. (D.E. 151, p. 75). The Court OVERRULES this

objection.

Plaintiff objects to the M&R’s failure to consider that she grieved the August 10 write up

on the grounds that it shows temporal proximity for retaliation. (D.E. 154, p. 23). Again, Plaintiff

fails to explain how this materially alters the M&R’s retaliation analysis. (D.E. 151, p. 75). The

Court OVERRULES this objection.

Plaintiff objects that the M&R did “not consider the ‘totality of the employment

circumstances’ to determine if [Plaintiff] was subjected to a hostile work environment.” (D.E. 154,

p. 24). Specifically, Plaintiff argues the M&R failed to consider that Plaintiff was subjected to the

racially discriminatory policy requiring Dike to stand twelve feet away. /d. In Plaintiff's summary-

judgment briefing, however, she does not argue that she was also subjected to the policy. See (D.E.

107, p. 3-4). And, assuming arguendo that the “policy” was indeed a policy, and its application

would create a hostile work environment, the summary-judgment evidence cited by Plaintiff does

not create a genuine dispute of material fact that she was subjected to the policy (i.e., that she, too,

was instructed to stay twelve feet away). See (D.E. 140-2, p. 2) (stating Dike was asked to stand

twelve feet away); (D.E. 140-7, p. 115) (same). Accordingly, the Cour’ OVERRULES this

objection.

ii. Defendant's Legitimate, Non-discriminatory and Non-retaliatory Reason

Plaintiff next objects that the M&R omitted facts that show Defendant’s legitimate reason for

its actions is pretextual. (D.E. 154, p. 4). The M&R found that Plaintiff failed to establish that

Defendant’s legitimate, non-discriminatory reason—‘bad time management’—is pretextual. (D.E.

151, p. 61). Plaintiff asserts that the M&R omitted evidence contradicting Defendant’s account of the

heart-monitor incident, and this evidence negates Defendant’s “legitimate reason for the action.”

(D.E. 154, p. 4). As the M&R explained, Defendant’s proffered legitimate, nondiscriminatory, and

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nonretaliatory reason for its actions is Plaintiff's poor time management skills. (D.E. 151, p. 61, 76).

Whether or not Defendant’s account of the heart-monitor incident is true does not bear on pretext

because it does not relate to Plaintiff's poor time management skills. Plaintiff also asserts that another

nurse was actually the one who failed to attach the heart monitor, but she was not subsequently

coached. (D.E. 154, p. 4). Although a plaintiff can establish pretext by showing disparate treatment,

the M&R correctly concluded that Plaintiff has not met her burden under this theory because she “has

not submitted any evidence of an employee with a comparable [shift-extension] record who was treated

differently.” (D.E. 151, p. 62)°. Indeed, her other comparators with shift-extension records both have

less than Plaintiff. See id. (noting that two other employees who extended their shifts did so much less

frequently than Plaintiff). Thus, Plaintiff fails again to present evidence that the other nurse, who

caused a heart-monitor incident, is a sufficient comparator. Neither does the Court have a duty to sift

through the record to find such evidence. Stults, 76 F.3d at 657 (quoting Forsyth, 19 F.3d at 1537).

Accordingly, the Court OVERRULES this objection.

Similarly, Plaintiff objects that the M&R did not consider Plaintiff's evidence “relevant to a

dressing change.” (D.E. 154, p. 5). She asserts that her evidence contradicts Defendant’s and “[n]o one

addressed this issue with [Plaintiff].” /d. Plaintiff asserts, in conclusory fashion, that this “supports the

action was not legitimate.” See id. Again, Plaintiff does not specify how this relates to Defendant’s

proffered reason of poor time management. The Court OVERRULES this objection. See Pelko, 2024

WL 1972896, at *1.

Plaintiff next objects that the M&R omitted facts showing Defendant failed to address

Plaintiff's various performance issues. (D.E. 154, p. 6-7, 9, 21-22). Plaintiff asserts, again in

conclusory fashion, that these facts demonstrate pretext. /d. Plaintiff does not explain how the facts

3 The M&R explains that Plaintiff “extended her shift by at least an hour on 44 of 45 shifts.” (D.E. 151, p.

62) (citing D.E. 104-19, p. 2-5). On the other hand, the nurses she offers as comparators only extended

their combined shifts by at least one hour on 11 of 68 shifts. /d. (citing D.E. 142-24, p. 2-4).

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relate to her time management skills or how they demonstrate pretext. See id. And, as the M&R

demonstrates, although “[a]n employer’s lack of contemporaneous documentation of alleged work

deficiencies can be sufficient to show that the non-discriminatory reason is pretextual[,]” the record

here contains contemporaneous documentation of Plaintiff's work deficiencies. See (D.E. 151, p. 58 □

(citing Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 239 (Sth Cir. 2015)); id. at 61-62. And,

to the extent that a lack of awareness of performance issues could establish pretext (a legal proposition

for which Plaintiff offers no supporting authority), the record also contains evidence that Defendant

informed Plaintiff of the time management issues. (D.E. 104-18, p. 2). Plaintiff's unsubstantiated

assertion that Defendant failed to address performance issues with her cannot, on its own, create a

genuine issue of material fact. See Favela v. Collier, 91 F.4th 1210, 1213 (Sth Cir. 2024) (citing

Freeman v. TDCJ, 369 F.3d 854, 860 (Sth Cir. 2004) (noting conclusory allegations “cannot on their

own create a genuine issue of material fact). The Court OVERRULES this objection.

Plaintiff objects on the grounds that “evidence contradicts [Defendant]’s legitimate demotion

of [Plaintiff] from a regular nurse to a probationary nurse when he purportedly extended her probation

thereby violating the CBA.” (D.E. 154, p. 6). Violation of internal policies does not alone suffice to

show pretext. See E.E.O.C. v. Texas Instruments Inc., 100 F.3d 1173, 1182-83 (Sth Cir. 1996) (holding

that disregard of internal hiring policies does not conclusively establish discrimination). The Court

OVERRULES this objection.

Plaintiff objects that, where supervisors admitted that she was a good nurse and offered her a

transfer to a higher acuity unit, such demonstrates pretext. (D.E. 154, p. 7-8). Plaintiff does not explain

why it shows that Defendant’s proffered reason is pretextual. /d. It is possible that Defendant thought

Plaintiff had poor time management skills, but was still a good nurse and might be able to perform the

duties required in a higher acuity unit. And, in any event, the fact that an employer previously stated it

was satisfied with an employee does not alone suffice to establish pretext. See Little v. Republic

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Refining Co., Ltd., 924 F.2d 93, 97 (Sth Cir. 1991) (citing Bienkowski v. Am. Airlines, Inc., 851 F.2d

1503, 1507 (Sth Cir. 1988)) (“The existence of competing evidence about the objective correctness of

a fact underlying a defendant's proffered explanation does not in itself make reasonable an inference

that the defendant was not truly motivated by its proffered justification.”). The Court OVERRULES

this objection.

Plaintiff objects that the M&R omitted facts surrounding written discipline she received for

allegedly being rude to a patient. (D.E. 154, p. 21-23). She argues that this evidence shows that the

“write-up was not legitimate” and negates that Defendant “acted for legitimate purposes.” /d. at 21,

23. Defendant’s proffered legitimate reason for its actions was Plaintiff's poor time management skills.

(D.E. 151, p. 53, 61). Yet, Plaintiff fails to explain how the legitimacy of a write-up for rudeness relates

to her time-management skills. The Court OVERRULES this objection.

Plaintiff objects that the M&R failed to consider evidence showing that Defendant’s reasons

for their actions shifted, which demonstrates pretext. (D.E. 154, p. 23). Plaintiff points to Jason

Sewell’s change in position as factual support for this argument. /d. On July 6, 2017, Sewell gave

Plaintiff a disciplinary citation for “demonstrat[ing] a lack of care, [and] an inability to prioritize or

effectively care for a patient.” /d. (quoting D.E. 107, p. 10). Plaintiff then argues that Sewell changed

the reason for this disciplinary action during the course of this litigation to “being rude to that patient

and for no other reason.” /d. (citing D.E. 107, p. 10).

Plaintiff correctly notes that evidence of inconsistent reasons can demonstrate pretext. See

Burell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 415 (Sth Cir. 2007) (citing Gee v.

Principi, 289 F.3d 342, 347-48 (Sth Cir. 2002)) (finding that a reasonable jury could conclude

“unexplained inconsistency” in reasoning as pretextual). However, Plaintiff has not presented evidence

that Defendant’s reason for the alleged adverse employment action (i.e., the extension of the

probationary period or her purported termination) has shifted. If anything, Plaintiff's evidence

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demonstrates that Defendant’s reason, poor time-management skills, is otherwise consistent with the

disciplinary action that Sewell issued on July 6, 2017. See (D.E. 107, p. 9-10) (explaining that citation

noted Plaintiff's inability to prioritize or effectively care for patient). And, unlike the defendant in

Burell who offered one reason to the EEOC, another reason to the District Court, and a third reason to

the Fifth Circuit, 482 F.3d at 415, Defendant’s reason has remained consistent throughout this

litigation. Accordingly, the Court OVERRULES this objection.

ili. Doctors Regional Incident

Plaintiff objects that the M&R failed to consider evidence showing that she was instructed to

go to Doctors Regional for physical therapy. (D.E. 154, p. 13). Plaintiff states that “these facts explain

[Plaintiff]’s legitimate reason for being at Doctors Regional.” /d. Plaintiff fails to explain how this

affects the M&R’s analysis. Accordingly, the Court OVERRULES this objection.

Plaintiff objects to the omission of facts showing that “she was seeking medical care

specifically for her disabilities and [Defendant] used security and police to remove her from the

premises and they denied her treatment for her disabilities.” /d. at 13-14. Plaintiff fails to cite to any

record evidence to support her factual assertion that she was denied treatment. And she fails to explain

how these facts alter the M&R’s conclusion that the incident at Doctors Regional was not an adverse

employment action for purposes of her discrimination and retaliation claims. (D.E. 151, p. 75-76). The

Court OVERRULES this objection.

Plaintiff objects to the omission of various facts relating to her purported removal from Doctors

Regional. (D.E. 154, p. 14-16). In conclusory fashion she states that “[t]hese inaccuracies and

inconsistencies in this evidence supports pretext for security and CCPD discriminating, harassing and

retaliating against [Plaintiff] ....° at 16. Plaintiff fails to specify how these relate to the M&R’s

conclusion that the incident at Doctors Regional did not objectively worsen her working conditions

and was therefore not an adverse employment action for purposes of her discrimination and retaliation

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claims. (D.E. 151, p. 75). And, regarding the harassment claim, Plaintiff fails to explain how this

evidence demonstrates that, contrary to the M&R’s conclusion, the incident occurred at Plaintiff's

workplace and in her capacity as an employee, or that it affected a term, condition, or privilege of her

employment. Jd. at 66. The Cour. OVERRULES this objection.

Plaintiff objects to the exclusion of evidence that other non-Black people were not escorted off

the premises at Doctor’s Regional. (D.E. 154, p. 16-17). She argues that this evidence shows disparate

treatment. /d. at 17. Again, Plaintiff fails to show how this alters the M&R’s conclusion that the

incident at Doctors Regional was not an adverse employment action for purposes of her discrimination

and retaliation claims. (D.E. 151, p. 75). The Court OVERRULES this objection.

Plaintiff objects to the exclusion of evidence relating to correspondence following the incident

at Doctors Regional. (D.E. 154, p. 17). Plaintiff asserts that “‘[t]hese facts further support [Plaintiff]’s

claim of race, national origin, disability discrimination, harassment and retaliation. It was error not to

consider them... .” /d. at 17-18. Plaintiff fails to explain how the evidence would alter the M&R’s

analysis and fails to explain how the facts support her claims. Accordingly, the Court OVERRULES

this objection. See Pelko, 2024 WL 1972896, at *1 (holding that objections must point out an error in

the M&R’s analysis); Shahrashoob, 125 F.4th at 648 (quoting Batiste, 976 F.3d at 500) (finding that

conclusory allegations cannot defeat summary judgment).

iv. Miscellaneous

Plaintiff objects to the omission of her testimony that a policy adversely affected her working

environment. (D.E. 154, p. 6). Plaintiff does not explain how this testimony would have altered the

M&R’s analysis regarding adverse employment actions. See id. And a party cannot defeat summary

judgment with conclusory allegations. Shahrashoob, 125 F.4th at 648 (quoting Batiste, 976 F.3d

at 500). The Court OVERRULES this objection.

Plaintiff also objects that the evidence showing she was offered a transfer demonstrates a

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materially adverse employment action for purposes of her retaliation claim. (D.E. 154, p. 8). This does

not affect the M&R’s resolution of Plaintiff's retaliation claim on the grounds that she has failed to

rebut Defendant’s legitimate, non-retaliatory reason. (D.E. 151, p. 75-76). The Court OVERRULES

this objection.

Plaintiff objects that the M&R omitted facts that show Defendant did not take appropriate

remedial action in response to Plaintiff's report of discrimination. (D.E. 154, p. 4, 7-8). The M&R

recommends summary judgment on Plaintiff's hostile-work-environment claim on the grounds that

she failed to show that she suffered from harassment so severe or pervasive that it altered the conditions

of her employment and affected a term, condition, or privilege of her employment. (D.E. 151, p. 66).

Whether or not Defendant took prompt remedial action does not change the fact that Plaintiff fails to

make out a claim for hostile work environment. See Johnson, 7 F.4th at 399-400 (explaining that a

plaintiff must prove three elements to establish a claim of hostile work environment). The Court

OVERRULES this objection.

Plaintiff objects that the M&R erred in its calculation of how many times Plaintiff extended

her shift. (D.E. 154, p. 10). Plaintiff fails to explain how this method of calculation resulted in an error

inthe M&R’s analysis. See id. Accordingly, the Court OVERRULES this objection. Pelko, 2024 WL

1972896, at *1.

Plaintiff objects to the omission of facts relating to D.G., a witness who Plaintiff alleges saw

the incident at Doctors Regional. (D.E. 154, p. 17). Plaintiff asserts that Defendant’s failure to identify

D.G. “creates a fact issue whether [Defendant] had the information and allowed it to be deleted as

hospitals are required to maintain patient records for 10 years.” /d. Plaintiff fails to explain how this

would alter the M&R’s analysis regarding spoliation. The Court OVERRULES this objection.

Plaintiff objects to the M&R’s omission of evidence that Defendant recognized its employee’s

statement (“the union knows Brenda is nuts”) was inappropriate. (D.E. 154, p. 23). Plaintiff fails to

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explain how this relates to the M&R’s analysis. The Court OVERRULES this objection. See Pelko,

2024 WL 1972896, at *1.

Plaintiff objects on the grounds that the M&R “did not address that Plaintiff was replaced by

Sheila Collado, a Filipina.” (D.E. 154, p. 11). Plaintiff is correct that the M&R did not address her

replacement theory under Title VII discrimination, but that does not change the M&R’s

recommendation. Even if Plaintiff could make out a prima facie case of discrimination vis-a-vis

replacement theory, she still fails to show pretext. (D.E. 151, p. 61, 76). The Court OVERRULES this

objection.

Plaintiff objects that the M&R did not consider facts showing that Defendant failed to engage

in a good-faith interactive process in violation of the ADA. (D.E. 154, p. 12). As support for that

assertion, Plaintiff points to evidence that Sewell did not ask Plaintiff about her restrictions. Jd. Once

an employee has requested an accommodation, the ADA requires that “the appropriate reasonable

accommodation be determined through a flexible, interactive process that involves both the employer

and the qualified individual with a disability.” Cutrera v. Bd. of Sup’rs of Louisiana State Univ., 429

F.3d 108, 112 (Sth Cir. 2005) (quoting 29 C.F.R. § 1630.9, App. (1995)) (cleaned up). Plaintiff's

objection and proffered evidence fail to create a genuine dispute of material fact regarding whether

Defendant engaged in the interactive process. Although Plaintiff points to Sewell’s failure to ask about

Plaintiff's restriction, Sewell is only one employee. And Defendant has presented uncontested evidence

that Sewell was not responsible for assessing an employee’s restrictions and the available

accommodations. See (D.E. 104-6, 165:10—16). Moreover, as the M&R correctly explained, “Plaintiff

has not established that she could complete the essential functions of her jobs given her injuries, with

or without an accommodation.” (D.E. 151, p. 70). She therefore is not a qualified person for purposes

of the ADA. See Burch v. City of Nacogdoches, 174 F.3d 615, 619 (Sth Cir. 1999) (citing Turco v.

Hoechst Celanese Corp., 101 F.3d 1090, 1093 (Sth Cir. 1996) (per curiam)) (explaining that a qualified

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person is “one who is able to meet all of the program’s requirements in spite [their] handicap.”). The

Court OVERRULES this objection.

C. McDonnell Douglas Objection

Plaintiff objects to the M&R’s reliance on the McDonnell Douglas framework. (D.E. 154,

p. 10). In the Fifth Circuit, when “a plaintiff relies on circumstantial evidence to prove her Title VII

discrimination case, the McDonnell Douglas burden-shifting framework applies.” Shahrashoob,

125 F.4th at 648-49 (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (Sth Cir. 2003)). Because Plaintiff

relies on circumstantial rather than direct evidence, the Court OVERRULES this objection.

D. Adverse Employment Action Objections

Plaintiff objects on the grounds that the extension of her probationary period was a demotion

constituting an adverse employment action for purposes of both her discrimination and retaliation

claims. (D.E. 154, p. 8). The M&R recognized that the probationary period extension could qualify as

an adverse action. (D.E. 151, p. 61, 76). Nevertheless, the M&R explained that Plaintiff's claims still

fail because she failed to show that Defendant’s legitimate, nondiscriminatory reason for the

extension—poor time management—is pretextual. Jd. Accordingly, Plaintiff's objection does not

materially alter the M&R’s recommendation. The Court OVERRULES the objection.

Plaintiff also asserts that the M&R “is in error because evidence supports [that] the extension

of [Plaintiff]’s probationary period by [Defendant] was directly connected to her race and national

origin, and in retaliation for her reports of discrimination.” (D.E. 154, p. 9). Again, the M&R

recommended summary judgment with respect to both Plaintiff's discrimination and retaliation claims

on the grounds that she failed to show pretext. (D.E. 151, p. 61, 76). As Plaintiff's objection does not

materially alter the M&R’s recommendation, the Court OVERRULES this objection.

Plaintiff objects that the M&R applied the incorrect legal standard to find that she had not

suffered a materially adverse employment action for purposes of her retaliation claim. (D.E. 154,

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p. 19). As an initial matter, the M&R applied the correct legal standard in analyzing Plaintiff's

retaliation claim. See (D.E. 151, p. 74-76) (articulating and applying Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006)). And, even if this were not the correct standard, Plaintiff has not

explained how this purported error would alter the M&R’s conclusion that, even if she established a

materially adverse employment action, she has not shown that Defendant’s legitimate, nonretaliatory

reason for its actions is pretextual. /d. at 76. The Court OVERRULES this objection.

Plaintiff objects that the M&R erred by concluding that retaliatory action must worsen working

conditions. (D.E. 154, p. 19-20). Plaintiff is correct in arguing that, under Burlington, retaliation

outside of work is actionable. /d; see Burlington, 548 U.S. at 63-64. However, Plaintiff's position does

not contradict the M&R’s analysis and conclusion. Although the retaliatory action may occur outside

of work or pertain to activities unrelated to employment, it still must impact the conditions of work.

See Burlington, 548 U.S. at 69 (distinguishing a supervisor’s refusal to invite an employee to lunch as

non-actionable, from the exclusion from a weekly training lunch that “contributes significantly to the

employee’s professional advancement” as actionable); see also Hudson v. Lincare, Inc., 58 F 4th 222,

232 (5th Cir. 2023) (citing Wheat v. Fla. Par. Juv. Just. Comm'n, 811 F.3d 702, 709 (Sth Cir. 2016))

(“An employment decision is not an adverse action if it does not objectively worsen the employee's

working conditions.”). Indeed, the M&R correctly applied this nuance when it found that the incident

at Doctors Regional did not constitute a materially adverse employment action. (D.E. 151, p. 75).

Although the M&R noted that the incident did not occur at Plaintiff's workplace, it did not apply that

fact as an ipso facto bar to relief for retaliation. See id. Instead, it used that fact as support for its

conclusion that the incident did not objectively worsen Plaintiff's working conditions as required by

binding Fifth Circuit precedent. See id.; see also Lincare, F.4th at 232. Accordingly, the Court

OVERRULES this objection.

Plaintiff objects that it was error for the M&R “to find that not returning [her] to work was not

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a materially adverse employment action.” (D.E. 154, p. 12). However, as explained above, this does

not materially alter the M&R’s conclusion because even if the failure to return her to work was an

adverse employment action, Plaintiff fails to show pretext. (D.E. 151, p. 61, 76). Accordingly, the

Court OVERRULES this objection.

Plaintiff objects that the M&R was wrong to conclude that the denial of care at Doctors

Regional in August 2017 did not constitute an adverse employment action. (D.E. 154, p. 13). The M&R

correctly explains that the denial of medical care is not an adverse employment action because the

denial did not objectively worsen Plaintiff's working conditions. (D.E. 151, p. 75). Plaintiff argues that

the denial of the full use of health insurance, which is a privilege of employment, is an adverse

employment action because it affects a privilege of employment. (D.E. 154, p. 13). Even assuming

Plaintiff is correct, her argument does not create a genuine dispute of material fact. Plaintiff has

presented no evidence that Defendant denied her the full use of her health insurance. She has not

produced evidence that Defendant prevented her from providing her health insurance information or

otherwise filing a claim. That is because Plaintiff's argument conflates the healthcare workers at

Doctor’s Regional with the Defendant as her employer without any factual support. Moreover, an

employer’s provision of health insurance neither guarantees to an employee that all of their medical

care will be covered, nor promises they will receive individually satisfactory’ medical care each visit.

The Court OVERRULES this objection.

E. Denial of Light Duty Objection

Plaintiff objects that the M&R did not follow clearly established law when it recommended

granting summary judgment because Defendant, in denying Plaintiff light duty, did not show that

accommodating Plaintiff with such would be an undue hardship. (D.E. 154, p. 11). As the M&R

As the M&R notes, Plaintiff “was seen in the emergency room” and “given a prescription for medication”

and materials regarding how to treat her pain. (D.E. 151, p. 62-63). Accordingly, “[Plaintiff] has not

established a genuine issue of material fact that she was prevented, as opposed to merely deterred, from

obtaining service.” Jd. at 63.

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correctly explained, an employer is not required to create a light duty position to accommodate an

employee. (D.E. 151, p. 70) (citing Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809 (Sth Cir.

1997)); see also Burch, 174 F.3d at 621 (explaining that ADA does not require employer to modify

job duties). The Court OVERRULES this objection.

F. Constructive Discharge Objections

Plaintiff objects that “[b]ecause there is sufficient evidence to support a constructive discharge,

the Recommendation is in error.” (D.E. 154, p. 19). The M&R concluded that Plaintiff failed to

establish a genuine issue of material fact as to her constructive discharge because “the evidence shows,

at most, that both parties were slow to come to terms on [Plaintiff]’s return, but does not show that

[Defendant] refused to return her to work.” (D.E. 151, p. 61). And, “[a]s to [Plaintiff]’s argument that

her other discrimination allegations constitute constructive discharge, she has shown only mere

harassment, which is insufficient to establish constructive discharge.” /d. (citing Hockman v. Westward

Commc'ns, 407 F.3d 317, 331-32 (Sth Cir. 2004)).

The facts marshalled by Plaintiff in support of this objection do not alter the M&R’s analysis.

The conditions of her workplace at best amount to harassment, which is insufficient to establish

constructive discharge. See Hockman, 407 F.3d at 331-32 (citing Barrow v. New Orleans S.S. Ass’n,

10 F.3d 292, 297 (Sth Cir. 1994) (explaining that a plaintiff must show “aggravating factors,” not just

harassment, to make out a case for constructive discharge), abrogated on other grounds by Royal v.

CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 402 (Sth Cir. 2013). And regarding the failure to return

her to work, Plaintiff has not shown a genuine dispute of material fact regarding whether Defendant

refused to return her. As the M&R correctly explained, the evidence at best shows that the parties were

slow to come to terms on Plaintiff's return. (D.E. 151, p. 61). Indeed, the final communication to

Plaintiff was a text telling her that the hospital needed her to return. /d. (citing D.E. 104-35, p. 4).° The

> Plaintiff points to Diflorio v. Kleckner in support of her case to no avail. No. CIV.A. 11-4405, 2012 WL

748910 (E.D. Pa. Mar. 7, 2012) (Savage, J.); (D.E. 154, p. 18). There, the plaintiff created a genuine dispute

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Court OVERRULES this objection.

G. Improper Summary Judgment Objection

Plaintiff objects to the M&R’s recommendation that summary judgment be granted on

Plaintiff's § 1981 claim for discriminatory and retaliatory treatment based upon her status as a patient,

and on her ADAA interference claim. (D.E. 154, p. 25). Plaintiff made these same arguments in her

summary-judgment briefing. (D.E. 107, p. 32, 35). Objections that merely re-urge arguments contained

in the original briefing are not proper and will not be considered. See Edmond, 8 F.3d at 293 n.7.

Moreover, “district courts are widely acknowledged to possess the power to enter summary judgments

sua sponte, so long as the losing party was on notice that she had to come forward with all of her

evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (citations omitted). Here, Plaintiff was

on notice that her interference and § 1981 claims were subject to dismissal given that (1) she was the

party to first raise the issue; (2) in response to her raising the issue, Defendant provided substantive

arguments regarding those claims, (D.E. 116, p. 3-7, 9-10); and (3) the M&R engaged with

Defendant’s substantive arguments regarding those claims, (D.E. 151, p. 54, 68). Indeed, Plaintiff

engaged with the substance of Defendant’s argument in her reply in support of her objections. (D.E.

156, p. 9-10). Plaintiff argues that the M&R erred in concluding that her § 1981 claim in her capacity

as a patient fails because she received treatment. Jd. at 9. As the M&R correctly explained, a § 198]

claim must allege that the plaintiff was actually prevented, and not merely deterred, from receiving

of material fact regarding retaliation by testifying that, after calling his supervisor four times, his supervisor

told him that “scheduling was out [of the supervisor’s] hands.” /d. at *10. In other words, the supervisor

had given up trying to schedule the plaintiff and constructively discharged him. Jd. Here, Plaintiff has not

rebutted Defendant’s evidence that Defendant tried to work with Plaintiff regarding scheduling. See (D.E.

154, p. 18-19). Rather, Plaintiff states in conclusory fashion that “[Plaintiff] made numerous attempts to

be placed back on the schedule, but [Defendant] never returned her to work.” (D.E. 154, p. 18). She is

correct that Defendant did not place her back on the schedule. However, Plaintiff fails to present evidence

contradicting Defendant’s evidence that any delay in scheduling was due to her failure to complete required

training courses, (D.E. 104-32, p. 3-4), and the ultimate failure to place her on the schedule was due to her

submitting a resignation letter after Defendant communicated that the hospital needed her to return, (D.E.

104-35, p. 4).

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service after attempting to do so. (D.E. 151, p. 59) (citing Arguello v. Conoco, Inc., 330 F.3d 355, □□□□

59 (Sth Cir. 2003)). Plaintiff has not created a genuine dispute of material fact regarding whether she

was actually prevented from being treated. Indeed, the evidence shows that she was treated. Supra note

3. The Court OVERRULES this objection.

V. Conclusion

Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable

law, and having made a de novo review of the portions of the M&R to which Plaintiff objected,

28 U.S.C. § 636(b)(1)(C), the Court OVERRULES Plaintiff's objections, (D.E. 154), and ADOPTS

the finding and conclusions of the M&R, (D.E. 151).

The Court OVERRULES in part and SUSTAINS in part Plaintiff's evidentiary objections.

The Court GRANTS Defendant’s motion for summary judgment. (D.E. 104). Finally, the Court

DENIES Defendant’s motion to strike as moot. (D.E. 118).

The Court will enter a final judgment separately.

SO ORDERED.

DA . MORALES

UNITED STATES DISTRICT JUDGE

Signed: Corpus Cliristi, Texas

March [743025

® The Fifth Circuit’s decision in Abdallah v. Mesa Air Group, Inc. is inapposite. 83 F.4th 1006 (5th Cir.

2023). There, the plaintiff was denied service (a flight). /d. at 1011. The defendant argued that there was

no discrimination because everyone was in some way denied service (the flight was eventually cancelled).

Id. at 1014. Here, in contrast, Plaintiff was not denied service. Supra note 3. Accordingly, evidence that

other non-Black patrons of the emergency room received service does not show a genuine dispute of

material fact regarding whether Plaintiff experienced discrimination. If anything, it shows that Plaintiff was

treated similarly to the other, non-Black patrons.

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