Browning

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

AIRIA BROWNING, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-18-D

)

MHM SUPPORT SERVICES, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Motion for Summary Judgment [Doc. No. 40].

Plaintiff, Airia Browning, filed a response [Doc. No. 44], to which Defendant replied [Doc.

No. 45]. The matter is fully briefed and at issue.

PROCEDURAL BACKGROUND

Plaintiff was employed by Defendant, MHM Support Services (MHM), as a

Medical Assistant I from approximately November 2021 until June 2023. Plaintiff filed

suit against Defendant in Oklahoma County state court on November 13, 2023 [Doc. No.

1-1], and the case was removed to this Court on January 8, 2024 [Doc. No. 1]. Defendant

seeks summary judgment in its favor with respect to Plaintiff’s claims of discrimination

based on race under Title VII, violation of the Oklahoma Anti-Discrimination Act (OADA),

retaliation, and hostile working environment.

UNDISPUTED MATERIAL FACTS

In November 2021, Plaintiff began his employment with MHM at a primary care

clinic as a Medical Assistant I [Doc. No. 40, Def.’s UMF No. 1]. Plaintiff reported to his

supervisor, Zach Green, until Mr. Green’s departure in early 2022. Id. at Def.’s UMF Nos.

4, 5. Plaintiff continued to work for MHM but was transferred to another location—the

Edmond I-35 location—in August 2022. Id. at Def.’s UMF No. 6.

Lauren Gierat was Plaintiff’s supervisor at the Edmond I-35 location until she

departed from MHM on March 27, 2023, due to issues related to pay and her control over

certain decisions. Id. at Def.’s UMF No. 7. During the time Plaintiff and Ms. Gierat worked

together, they had a conversation about a possible pay raise for Plaintiff, but this never

came to fruition. Id. at Def.’s UMF No. 9.

After Ms. Gierat left, Mr. Green began his employment at the Edmond I-35 location.

Id. at Def.’s UMF No. 8. Plaintiff and Mr. Green worked together at this location for

approximately two-and-a-half months, and, at some point during this time period, they also

had a conversation about a possible raise and promotion for Plaintiff. Id. at Def.’s UMF

Nos. 10, 16. While they worked together, the two consistently exchanged text messages.

Id. at Def.’s UMF No. 17. In support of his claims, Plaintiff points to three specific, alleged

comments that Mr. Green made to him. Id. at Def.’s UMF No. 20. But Plaintiff alleges that

he experienced continuous harassment from Mr. Green throughout their time working

together [Doc. No. 44, Pl.’s UMF No. 10].

Jacquayla McGlothin was also a coworker of Plaintiff’s at the Edmond I-35 location

[Doc. No. 40, Def.’s UMF No. 23]. Plaintiff alleges that Ms. McGlothin made several

advances towards him, and when he did not reciprocate, she pulled him aside and asked if

he was gay. Id. at Def.’s UMF No. 24. Further, Plaintiff alleges that Ms. McGlothin sent

him a text message about having sex on May 31, 2023. Id. After Plaintiff rejected Ms.

McGlothin’s advances, they went back to being “cordial” coworkers. Id. at Def.’s UMF

No. 25.

Plaintiff was denied a raise in early May 2023, and was told that it was because he

did not have a valid certification for a promotion from Medical Assistant I to Medical

Assistant II. Id. at Def.’s UMF No. 26. On June 21, 2023, Plaintiff sent a text message to

Mr. Green containing a draft of a resignation letter that he planned to submit at a later time.

Id. at Def.’s UMF No. 27. Mr. Green stated that MHM would accept that as his resignation

and he did not need to return to work [Doc. No. 44, Pl.’s UMF No. 18]. Plaintiff then

immediately attempted to reverse the impact of the letter [Doc. No. 40, Def.’s UMF No.

28].

During his employment with MHM, Plaintiff performed his duties satisfactorily

[Doc. No. 44, Pl.’s UMF No. 1]. He was also the only African American employee and the

only male employee in his position at both MHM locations. Id. at Pl.’s UMF No. 2.

STANDARD OF DECISION

Summary judgment is proper “if 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 material fact is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

genuine if the facts and evidence are such that a reasonable juror could return a verdict for

either party. Id. All facts and reasonable inferences must be viewed in the light most

favorable to the nonmovant. Id. at 255.

A movant bears the initial burden of demonstrating the absence of a dispute of

material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). If the movant carries this burden, the nonmovant must then go beyond the

pleadings and “set forth specific facts” that would be admissible in evidence and that show

a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324. “To

accomplish this, the facts must be identified by reference to affidavits, deposition

transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 671 (10th Cir. 1998); see also FED. R. CIV. P. 56(c)(1)(A). The inquiry is whether

the facts and evidence identified by the parties present “a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Anderson, 477 U.S. at 251-52.

In evaluating a motion for summary judgment, a district court must consider the

evidence in the light most favorable to the nonmoving party and draw all reasonable

inferences in favor of that party. See Sylvia v. Wisler, 875 F.3d 1307, 1328 (10th Cir. 2017).

DISCUSSION

I. Plaintiff’s allegations predating October 14, 2022, may be used only in

assessing his hostile work environment claim.

“Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that ‘specifies with

precision’ the prerequisites that a plaintiff must satisfy before filing suit.” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (quoting Alexander v. Gardner-

Denver Co., 415 U.S. 36, 47 (1974)). “Title VII requires a litigant to file a claim within

300 days of the alleged discriminatory conduct.” Duncan v. Manager, Dep’t of Safety, City

& Cnty. of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005) (citing 42 U.S.C. § 2000(e)-

5(e)(1)). “A plaintiff normally may not bring a Title VII action based upon claims that were

not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue-

letter.” Id. (quoting Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004)).

“[E]ach discrete incident of [discriminatory or retaliatory] treatment constitutes its

own ‘unlawful employment practice’ for which administrative remedies must be

exhausted.” Id. (quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2004)). “[T]he

Supreme Court has generally rejected the continuing violation theory—a theory under

which a plaintiff’s belated EEOC charge is timely with respect to discrete incidents of

discrimination or retaliation that occur more than 300 days before the charge on the ground

that several discrete incidents are all part of a continual pattern of discrimination.” Id.

(citing Morgan, 536 U.S. at 110). “But hostile work environment claims are different.”

Hansen v. SkyWest Airlines, 844 F.3d 914, 923 (10th Cir. 2016).

“A hostile work environment claim is composed of a series of separate acts that

collectively constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at 115

(citing 42 U.S.C. § 2000e-5(e)(1)). An unlawful employment practice does not take place

on one specific day. Hansen, 844 F.3d at 923. “Rather, it takes place over time, ‘and, in

direct contrast to discrete acts, a single act of harassment may not be actionable on its

own.’” Id. (quoting Morgan, 536 U.S. at 115). Therefore, “it does not matter that some of

the component acts fall outside the statutory time period.” Morgan, 536 U.S. at 103. As

long as “an act contributing to the claim occurs within the filing period, the entire time

period of the hostile environment may be considered for the purposes of determining

liability.” Id. “[A] court’s task is to determine whether the acts about which an employee

complains are part of the same actionable hostile work environment practice, and if so,

whether any act falls within the statutory time period.” Id.

In determining whether the acts are part of the same hostile work environment

practice, the Tenth Circuit has recognized several, non-exclusive factors. Hansen, 844 F.3d

at 923. One factor the Circuit has considered is “whether the pre- and post-limitations

period acts were ‘related by type, frequency, and perpetrator.’” Id. (quoting Duncan, 397

F.3d at 1309). Another factor to be considered is “whether the acts occurred when the

employee ‘was working in the same place.’” Id. (quoting Tademy v. Union Pac. Corp., 614

F.3d 1132, 1138 (10th Cir. 2008)).

Plaintiff filed his EEOC charge on August 10, 2023; 300 days prior to that was

October 14, 2022. Defendant asserts that any allegations against it made by Plaintiff

predating October 14, 2022, are time-barred because Plaintiff failed to exhaust them before

the EEOC. Plaintiff does not dispute the dates set forth above, but does assert that any

allegations that occurred prior to October 14, 2022, can be used to assess whether a hostile

work environment was present.

Specifically, Defendant argues that Paragraphs 9-11 in Plaintiff’s amended

complaint are time-barred. These Paragraphs allege sexual harassment claims against two

of Plaintiff’s coworkers stemming back to early 2022. The majority of Plaintiff’s claims in

this case are against these two coworkers while they all worked at MHM. Clearly, these

acts “are part of the same actionable hostile work environment practice.” Morgan, 536 U.S.

at 103. Accordingly, the Court agrees with Plaintiff that allegations predating October 14,

2022, may be used to analyze his hostile work environment claim, but not in assessing

Plaintiff’s claims of racial discrimination and retaliation.

II. Defendant is entitled to summary judgment on Plaintiff’s retaliation and

discrimination claims.

A. The Court applies the McDonnell Douglas burden-shifting framework.

As a threshold issue, Plaintiff argues that the Court should not apply the McDonnell

Douglas burden-shifting framework to Plaintiff’s retaliation and discrimination claims,

because “many courts[] . . . are questioning the use of the framework and finding that it has

been misapplied” [Doc. No. 44, at 15]. Plaintiff advocates for the use of the standard Rule

56 summary judgment analysis here. The Tenth Circuit has repeatedly upheld the use of

the McDonnell Douglas framework. See Markley v. U.S. Bank Nat’l Ass’n, 59 F.4th 1072

(10th Cir. 2023) (affirming the district court’s grant of summary judgment using the

McDonnell Douglas framework). The Court rejects Plaintiff’s argument and will apply the

McDonnell Douglas framework to both Plaintiff’s racial discrimination claim and

retaliation claim.

The McDonnell Douglas framework involves three steps:

(1) the plaintiff must establish a prima facie case of discrimination or

retaliation; (2) the defendant employer must offer a legitimate

non-discriminatory reason for the adverse employment action; and (3) the

plaintiff must show there is at least a genuine issue of material fact as to

whether the employer’s proffered legitimate reason is genuine or pretextual.

Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014) (citing MacKenzie v.

City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) abrogated on other grounds

by, Lincoln v. BNSF Ry. Comp., 900 F.3d 1166 (10th Cir. 2018)).

B. Plaintiff’s Title VII racial discrimination claim and claim under the OADA

fail as a matter of law.

“To establish a prima facie case of Title VII discrimination, a plaintiff who is a

member of a protected class must show that she experienced an adverse employment action

‘under circumstances which give rise to an inference of unlawful discrimination.’”

Walkingstick Dixon v. Okla. ex rel. Reg’l Univ. Sys. of Okla. Bd. of Regents, 125 F.4th 1321,

1334 (10th Cir. 2025) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,

1227 (10th Cir. 2000)). “An adverse employment action constitutes ‘a significant change

in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.’” Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004) (quoting

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

Defendant asserts that Plaintiff cannot establish a prima facie case because he cannot

show an adverse employment action. Further, Defendant argues that even if Plaintiff can

establish a prima facie case, Plaintiff did not meet the requirements for a raise and

promotion from Medical Assistant I to Medical Assistant II which is a nondiscriminatory

reason for the adverse employment action.

The Court assumes, without deciding, that Plaintiff has satisfied his prima facie

burden for his Title VII discrimination claim. It does so because even if Plaintiff has

established a prima facie case under Title VII, he has failed to identify evidence that

Defendant’s reason for its employment action was a pretext for discrimination. See Hiatt v.

Colo. Seminary, 858 F.3d 1307, 1317 n.10 (10th Cir. 2017) (“[The Tenth Circuit has]

previously affirmed a grant of summary judgment on the basis of failure to show pretext

after assuming without deciding that an employee has stated a prima facie case.”).

Because the Court assumes that Plaintiff has satisfied his prima facie burden for his

racial discrimination claim, the burden shifts to Defendant to proffer a legitimate, non-

discriminatory reason for its employment decision. See MacKenzie, 414 F.3d at 1274.

Defendant asserts that Plaintiff’s lack of proper certification for promotion from

Medical Assistant I to Medical Assistant II was the reason for its decision. Plaintiff claims

that he was eligible for the promotion, but Defendant asserts that Plaintiff did not have the

requisite certification. The Court finds Defendant’s proffered reason to be legitimate and

nondiscriminatory. Thus, the burden shifts back to Plaintiff to show that Defendant’s reason

is pretextual. See MacKenzie, 414 F.3d at 1274.

“A plaintiff may show pretext by demonstrating ‘such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted non-discriminatory

reasons.’” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citation

omitted). In determining pretext, it is not for the Court to decide whether Defendant’s

reasons for its decision were “wise, fair, or even correct,” so long as they were truly the

reasons for the decision. Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1083 (10th Cir.

1999) (quoting Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 411 (7th

Cir. 1997)). The Court’s role is “to prevent unlawful hiring practices, not to act as a super

personnel department that second guesses employers’ business judgments.” Kendrick, 220

F.3d at 1233 (quotation and citation omitted). “[A] challenge of pretext requires [courts] to

look at the facts as they appear to the person making the decision to terminate [a] plaintiff.”

Id. at 1231. “Mere conjecture that the employer’s explanation is pretext is insufficient to

defeat summary judgment.” Anderson, 181 F.3d at 1179 (citing Morgan, 108 F.3d at 1323).

Plaintiff’s argument regarding pretext is limited to: (1) a conclusory statement that

“[t]he reasons given by Defendant for firing Plaintiff are a pretext for the discrimination

and retaliation for complaining of the discrimination” [Doc. No. 44, at 26]; (2) a definition

of the word “pretext” from the Tenth Circuit; and (3) a contention that “the self-serving

declaration of Zachary Green (Def.’s Ex. 4) should be given no weight” [Doc. No. 44, at

26-27]. Viewing these assertions in the light most favorable to Plaintiff, Plaintiff still fails

to show pretext.

The Tenth Circuit has made clear that “mere conjecture” that a defendant’s reasons

for its decision are pretextual is insufficient to defeat summary judgment. See Anderson,

181 F.3d 1171. The court of appeals has explained that a plaintiff may establish pretext by

pointing to a weakness, implausibility, inconsistency, incoherency, or contradiction in the

employer’s reason. Plaintiff fails to do so. Here, Plaintiff does not even mention what

Defendant’s proffered reason was, much less attempt to argue that the employment decision

was pretextual. Rather, Plaintiff attempts to argue pretext by solely using conclusory

statements that do not rise past mere conjecture.

Accordingly, Defendant is entitled to summary judgment on Plaintiff’s racial

discrimination claim.1

C. Plaintiff’s retaliation claim fails as a matter of law.

“To state a prima facie case of retaliation, [Plaintiff] must demonstrate that: (1) [he]

engaged in protected opposition to discrimination; (2) [Defendant] took an adverse

employment action against [him]; and (3) there exists a causal connection between the

protected activity and the adverse action.” Stover v. Martinez, 382 F.3d 1064, 1071 (10th

Cir. 2004) (citing Jones v. Barnhart, 349 F.3d 1260, 1269 (10th Cir. 2003); Kendrick, 220

F.3d 1220).

Defendant asserts that Plaintiff cannot establish a claim of retaliation because there

is no evidence that Plaintiff ever complained to anyone about the alleged harassment or

discrimination, he resigned his employment, and there is no activity by MHM that would

have dissuaded a reasonable worker from making a complaint. Plaintiff’s only response to

Defendant’s argument is that Plaintiff engaged in protected activity by complaining to Mr.

Green’s supervisor several times. But in this portion of his argument, he proceeds by

discussing his hostile work environment claim rather than retaliation. Plaintiff wholly fails

1 Defendant also moves for summary judgment on Plaintiff’s claim under the OADA. “This

Court has held that ‘claims under the OADA are evaluated using the same standards as

claims under Title VII, and a claim that fails under Title VII will also fail under the

OADA.’” Bacy v. Chickasaw Nation Indus., Inc., No. CIV-19-512-G, 2020 WL 2225365,

at *8 (W.D. Okla. May 7, 2020) (quoting Cunninham v. Skilled Trade Servs., Inc., No. CIV-

15-803-D, 2015 WL 6442826, at *3 (W.D. Okla. Oct. 23, 2015)). For the same reasons

stated above, Defendant is entitled to summary judgment on this claim.

to effectively respond to Defendant’s motion for summary judgment on the retaliation

claim.

Similar to Plaintiff’s racial discrimination claim, the Court assumes, without

deciding, that Plaintiff has satisfied his prima facie burden for his retaliation claim. Because

the Court assumes that Plaintiff has satisfied his prima facie burden for his retaliation claim,

the burden shifts to Defendant to proffer a legitimate, non-discriminatory reason for its

employment decision. See MacKenzie, 414 F.3d at 1274.

Defendant asserts that the reason for its decision was that Plaintiff did not meet the

requirements for promotion from Medical Assistant I to Medical Assistant II. Additionally,

Mr. Green did not have the ability or authority to provide Plaintiff with a raise and a

promotion. Like Plaintiff’s racial discrimination claim, the Court finds Defendant’s

proffered reason to be legitimate and nondiscriminatory. Thus, the burden shifts back to

Plaintiff to show that Defendant’s reason is pretextual. See MacKenzie, 414 F.3d at 1274.

Plaintiff addresses pretext for his racial discrimination and retaliation claims

together. For the same reasons as stated above, Plaintiff fails to establish pretext here.

Rather than point to a specific reason Defendant’s employment decision constitutes pretext,

Plaintiff asserts conclusory statements. The Tenth Circuit has explicitly stated such mere

conjecture is insufficient to establish pretext. See Anderson, 181 F.3d 1171.

Accordingly, Defendant is entitled to summary judgment on Plaintiff’s retaliation

claim.

III. Defendant is not entitled to summary judgment on Plaintiff’s hostile work

environment claim.

“For a hostile environment claim to survive a summary judgment motion, ‘a plaintiff

must show that a rational jury could find that the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working

environment.’” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.

1998) (quoting Davis v. U.S. Postal Servs., 142 F.3d 1334, 1341 (10th Cir. 1998)).

Defendant contends that Plaintiff’s hostile work environment claim fails because he

can only point to several comments made by Ms. McGlothin, and their relationship became

“cordial” after Plaintiff confronted her about these comments. Further, Defendant claims

that Plaintiff can only point to three comments made by Mr. Green to Plaintiff, and a review

of the text messages shows that the comments were not harassing. In response, Plaintiff

points out that the Court is to look at the cumulative effect of the individuals’ conduct

toward Plaintiff.

“[T]he severity and pervasiveness evaluation [of a hostile work environment claim]

is particularly unsuited for summary judgment because it is quintessentially a question of

fact.” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 958 (10th Cir. 2012) (citation

omitted). Further, “[t]he dispositive question is whether there was sufficient evidence of

pervasiveness on this record such that the district court should have given a jury ‘the

opportunity to evaluate the evidence, demeanor, and candor of witnesses’ and make the

ultimate determination.” Id. (citing Tademy, 614 F.3d at 1146).

Plaintiff asserts that this harassment began nearly as soon as he started his

employment with MHM and would occur at least multiple times each week [Doc. No. 44-

1, at 113-14]. It is undisputed that there are three specific comments that Plaintiff can

remember Mr. Green making to him: “a verbal comment about oral sex after Plaintiff had

a tonsillectomy,” “a text message wherein Green told Plaintiff that Plaintiff would have sex

with Green if Green was dressed in drag,” and “a verbal comment by Green asking what

Plaintiff was ‘willing to do for it’ in response to Plaintiff asking for a raise” [Doc. No. 40,

Def.’s UMF No. 21].

However, Plaintiff testifies at length in his deposition as to the extent of the

harassment. For example, he estimates that Mr. Green made several hundred comments on

his skin tone and approximately fifty comments regarding the size of his penis [Doc. No.

44-1, at 122-23]. Specifically, he alleges that Mr. Green told Plaintiff he needed to get

larger scrub pants, insinuating that he could see the outline of Plaintiff’s penis in his pants.

Id. at 123. When Plaintiff did so, Mr. Green commented that the pants were “[b]etter, but

the print is still there.” Id.

Plaintiff further alleges that his wife overheard “one conversation where Green

commented on her husband’s penis and its size” and “a conversation where a nurse and a

doctor were talking about their newborn daughter and how she loved ‘brown’ babies” [Doc.

No. 44, Pl.’s UMF Nos. 11, 12]. Defendant objects to the second comment asserting that it

is irrelevant and cannot be considered as part of the hostile work environment comments.

Pursuant to the Court’s discussion of the EEOC charge above, these statements may be

considered in looking at the overall work environment.

The Court, viewing the summary judgment record in the light most favorable to

Plaintiff, finds that Plaintiff has alleged minimally sufficient facts establishing triable

issues for jury determination on whether his “workplace [was] permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working

environment.” Penry, 155 F.3d at 1261.

Defendant is not entitled to summary judgment on Plaintiff’s hostile work

environment claim.

CONCLUSION

For the reasons explained above, Defendant’s Motion for Summary Judgment [Doc.

No. 40] is GRANTED in part and DENIED in part.

IT IS SO ORDERED this 9" day of March, 2026.

\ ° oN 5

Nd Ost

TIMOTHY D. DeGIUSTI

Chief United States District Judge

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