The Surreply is limited to a response of Defendant’s discussion of Burlington Northern & Santa Fe 1

Railway Co. v. White, 548 U.S. ----, 126 S. Ct. 2405 (June 22, 2006). The Supreme Court issued the Burlington

opinion after Plaintiff’s Response was filed with this Court, thus it is reasonable to allow a surreply to discuss the

case.

Memorandum Opinion and Order

3:05-CV-0931-P

Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

§ 

PENELOPE LYNCH, §

§

Plaintiff, § CIVIL ACTION NO.

§ 3:05-CV-0931-P

v. §

§

BAYLOR UNIVERSITY MEDICAL §

CENTER, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Presently pending before the Court is Defendant’s Motion for Summary Judgment, filed

May 24, 2006. Plaintiff filed a Response on June 13, 2006, and Defendant submitted a Reply on

June 26, 2006. Also pending before the Court is Plaintiff’s Motion for Leave to file Surreply,

filed July 5, 2006. Defendant did not indicate that it was opposed to this motion. Furthermore,

the Court finds the motion is well taken, thus Plaintiff’s Motion for Leave to file Surreply is

1

hereby GRANTED. After a thorough review of the parties’ arguments, the pleadings, and the

applicable law, the Court hereby GRANTS Defendant’s Motion for Summary Judgment.

 

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Walthall’s version of the relevant events is somewhat different, but for the purposes of summary judgment 2

the Court must resolve all factual disputes in favor of Plaintiff, the non-movant. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150-51 (2000). However, the basic chain of events does not differ significantly in Lynch

or Walthall’s deposition testimony.

Memorandum Opinion and Order

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I. Introduction

This employment discrimination case stems from Baylor University Medical Center’s

(“Defendant” or “Baylor”) decision to terminate Penelope Lynch (“Plaintiff” or “Lynch”) after

nearly twenty years of employment. 

Lynch was originally hired by Baylor as a staff nurse in December of 1984. Two years

later, Plaintiff was promoted to the position of weekend nurse supervisor. (Def.’s App. at 20.)

Plaintiff continued to work as a weekend nurse supervisor until her termination on June 15,

2004. (Def.’s Mot. at 3.) Plaintiff is a lesbian, and claims that her beliefs about gender and

religion conflicted with the beliefs of a subordinate, registered nurse Rhonda Walthall

(“Walthall”), and such beliefs caused her termination. According to Plaintiff, her ultimate demise

was precipitated by a confrontation she had with Walthall on or about May 30, 2004. On that

date, Plaintiff and Walthall were both working their normal weekend shifts. According to

Lynch’s deposition testimony, she was on the phone at the nurse’s station in the presence of 2

Walthall and Dr. Brennan, a doctor in the psychiatry division. After ending the phone

conversation, Plaintiff remarked that the caller “had a nice voice.” (Def.’s App. at 30.) Plaintiff

and Dr. Brennan then exchanged joking comments with an admittedly sexual undertone. (Id.)

Walthall then became uncomfortable with the conversation and, according to her own

deposition, said “Can I barf now?” (Pl.’s App. at 36.) In response, Plaintiff states that she tried to

shift the subject of the conversation “to make everybody comfortable” by making a joke about

 

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gay marriage in Massachusetts. (Def.’s App. at 33.) Walthall further expressed her disgust with

the topic of conversation. At this point, Plaintiff testifies that she became offended and felt

Walthall was making “a very obvious statement about the wrongness of gay marriage.” (Id. at

35.) After this brief episode, Plaintiff states that all employees dispersed back to their work. (Id.

at 36.) 

Later that day, Plaintiff approached Walthall to apologize, clarify the previous

confrontation, and restore a professional working relationship. (Id. at 37.) In an attempt to

diffuse the situation, Plaintiff asked Walthall what it was about the earlier situation that upset

her. Walthall then shared some of her religious beliefs and past experiences. Walthall stated that,

in college, a female friend tried to force her into an unwanted sexual situation and that such

event somewhat colored her opinion of homosexuals, causing her to react adversely to the

situation at the nurse’s station. (Id. at 40.) In response to Lynch sharing her views on religion,

Walthall further stated that her religious beliefs led her to believe that Lynch was not following

God’s plan.

Soon after this incident, Walthall called the ethics hotline to voice her concerns. (Pl.’s

App. at 14.) According to the deposition of Wendie Carlson, the director of human resources at

Baylor, Walthall called to give her account of the confrontation because she feared retaliation

from Plaintiff, her supervisor. (Id.) Walthall’s call triggered an investigation of Plaintiff. (Id. at

15-16.) Such investigation revealed numerous instances of unacceptable behavior that indicated

an overall failure to perform duties as a supervisor. (Def.’s App. at 54-55.) The investigation

resulted in Plaintiff’s termination on June 15, 2004. (Id. at 19.) 

 

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Thereafter, on June 28, 2004, Plaintiff filed a complaint of discrimination with the City of

Dallas Fair Housing Office. On the same day, Plaintiff requested a grievance committee review

under Defendant’s internal grievance procedure, the Fair Treatment Policy. On July 13, 2004,

Defendant denied this request. As a result, Plaintiff brings the instant action. Plaintiff claims that

she was fired because of the gender stereotypes and religious bias of her subordinate Walthall.

Plaintiff further asserts a claim for retaliation, contending that she was denied the opportunity to

participate in an internal grievance procedure because she had filed complaints with the Dallas

Fair Housing Office. Defendants now move for summary judgment, arguing that Plaintiff fails to

establish a prima facie case on any of her claims.

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to

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

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the

reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the

party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving

party bears the burden of informing the district court of the basis for its belief that there is an

absence of a genuine issue for trial, and of identifying those portions of the record that

demonstrate such an absence. Celotex, 477 U.S. at 323.

Once the moving party has made an initial showing, the party opposing the motion must

come forward with competent summary judgment evidence of the existence of a genuine fact

 

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issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The

party defending against the motion for summary judgment cannot defeat the motion unless she

provides specific facts that show the case presents a genuine issue of material fact, such that a

reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not

prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir.

1993). In other words, conclusory statements, speculation and unsubstantiated assertions will

not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to her case, and on which she bears

the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas

Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). 

III. Analysis

Plaintiff initially argues that Walthall’s beliefs and comments in the workplace constitute

direct evidence of discrimination based on gender and religion. In particular, Plaintiff asserts that

Walthall openly discussed her faith, admitted that she had to pray before accepting a position

working for a lesbian supervisor, and stated her belief that being gay was not part of God’s plan

for Plaintiff’s life. (Pl.’s Resp. at 21.) Plaintiff further cites to deposition testimony and claims

that Walthall’s call to the ethics hotline after the confrontation at the nurses’ station was the

“triggering event” that led to Plaintiff’s termination. (Id.) 

 

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Most of these comments were made during a private conversation after the incident at the nurses’ station.

3

(App. Def.’s Mot. at 38-45.) Walthall explained that she was shaken up over the confrontation because she had had a

traumatic experience in college when one of her female friends tried to force her into a sexual situation. Only after

revealing these issues from her past did Walthall admit that she had to pray about working for a lesbian supervisor. 

Memorandum Opinion and Order

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Page 6 of 19

“Direct evidence of discrimination is evidence which, if believed, would prove the

existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions.”

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996) (emphasis in original)

(citations omitted). Even assuming the above comments are true, they do not definitively prove

that Plaintiff was terminated because of her gender or religion. All the comments conclusively

show is that Plaintiff and Walthall, her subordinate, had differing opinions on certain matters.

Viewed in the context in which they were spoken, Walthall’s comments are even more

innocuous. Furthermore, the deposition testimony cited by Plaintiff does not indicate that

3

Walthall’s call to the ethics hotline necessarily caused Plaintiff’s termination. Instead, Plaintiff’s

manager Connie Bowling states that the incident with Walthall at the nurses’ station was the

triggering event for her investigation. (Pl.’s App. at 26.) Only with the use of inference could one

conclude that the phone call triggered the termination. As Plaintiff’s evidence is insufficient to

establish, without any inferences, that a protected category was a factor in Baylor’s decision to

terminate her, Plaintiff cannot proceed under the direct evidence analysis.

Absent direct evidence of discrimination, as in the present case, Plaintiff’s employment

discrimination claims are analyzed under the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973). Russell v. McKinney Hosp. Venture, 235 F.3d

219, 222 (5th Cir. 2000). Under the McDonnell Douglas framework, Plaintiff must first

establish, by a preponderance of the evidence, a prima facie case of discrimination in order to

 

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survive Defendant’s Motion for Summary Judgment. The prima facie case, once established,

raises a presumption of discrimination which the Defendant must rebut by articulating a

legitimate, nondiscriminatory reason for the adverse employment action. Medina v. Ramsey Steel

Co., 238 F.3d 674, 680 (5th Cir. 2001). This burden on the employer is only one of production,

not persuasion, involving no credibility assessments. Russell, 235 F.3d at 222. If the employer

carries its burden, the mandatory inference of discrimination created by the prima facie case

disappears. Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). In order to

survive summary judgment, a plaintiff must then raise a genuine issue of material fact as to

whether the employer’s proffered reason was merely pretext for discrimination. See id.; Sandstad

v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). Plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s asserted justifications are false,

may show pretext and permit the trier of fact to find the employer unlawfully discriminated.

Machinchick, 398 F.3d at 351; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142

(2000).

a. Gender Discrimination

To survive summary judgment on her gender- based termination claim, Plaintiff must

first establish a prima facie case. To meet the prima facie case, Plaintiff must show that: (1) she

is a member of a protected class, (2) she was qualified for her position, (3) she suffered an

adverse employment action, and (4) she was replaced by someone outside the protected class, or,

that others similarly situated were treated more favorably. Septimus v. Univ. of Houston, 399

F.3d 601, 609 (5th Cir. 2005). When the employer does not replace the plaintiff, the fourth

 

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As will be discussed in more detail later, Plaintiff’s gender discrimination claim actually appears to be a 4

discrimination claim based on sexual orientation. Thus, Plaintiff cannot satisfy the first element of the prima facie

case because Title VII does not recognize homosexuals as a protected class. E.g., Dawson v. Bumble & Bumble, 398

F.3d 211, 218 (2d Cir. 2005). 

Memorandum Opinion and Order

3:05-CV-0931-P

Page 8 of 19

element requires the plaintiff to show that others who are not in the protected class remained in

similar positions. Bauer v. Abemarle, 169 F.3d 962, 966 (5th Cir. 1999).

Defendant does not dispute that Plaintiff can meet the first three elements of a prima facie

case: she is a female, she was qualified to be a nurse’s supervisor, and she was terminated from 4

this position. In its motion for summary judgment, Defendant claims that Plaintiff cannot

demonstrate that she was replaced by someone outside the protected class or that others similarly

situated were treated more favorably. Plaintiff does not respond to this argument. In her

complaint, Plaintiff claims that “[s]imilarly situated employees who were not judged by gender

stereotypes were more favorably treated,” but fails to offer any evidence in support of this fourth

element. (Compl. at 8, ¶¶ 17.) In response to Defendant’s motion for summary judgment,

Plaintiff claims that Walthall’s comments constitute direct evidence, thereby foregoing any

argument relating to circumstantial evidence. As noted above, the Court finds that Walthall’s

comments cannot be considered direct evidence. Thus, Plaintiff has failed to present evidence on

each element of her prima facie case. When the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to her case, and on which she bears

the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. 

Even if the Court were to assume that Plaintiff could meet the prima facie case, Plaintiff

ultimately fails to allege that discrimination occurred “because of . . . sex.” 42 U.S.C. § 2000e2(a)(1); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (“Whatever

 

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evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at

issue was not merely tinged with offensive sexual connotations, but actually constituted

‘discrimina[tion] . . . because of . . .sex.’”). Plaintiff’s gender discrimination claim is initially

weakened by the fact that she was hired and fired solely by females. Plaintiff was hired by

Connie Bowling, a female. During her entire tenure, Plaintiff worked under the supervision of

Ms. Bowling, and on at least one occasion was promoted by her. (Def.’s App. at 20.) In affidavit

testimony, Bowling states that she made the decision to terminate Plaintiff. (Id. at 55.) Plaintiff

disputes this assertion, and provides deposition testimony indicating that the decision to

terminate Plaintiff was not unilaterally made by Bowling; rather it was a joint decision made by

Bowling, Wendie Carlson, and Sue Sayers based on the complaints of Walthall. (Pl.’s App. at

16, 17.) But this point is immaterial; under either scenario the decision to terminate Plaintiff was

made solely by females- persons within Plaintiff’s protected class. The fact that the actors

involved in the decision to hire and terminate were all members of the protected class “enhances

the inference” that gender discrimination was not the motive behind the termination. See Brown

v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (citing LeBlanc v. Great American Ins. Co.,

6 F.3d 836, 847 (1st Cir. 1993)). 

But it appears that Plaintiff is attempting to proceed on the theory that she was

discriminated against because of gender stereotypes. (See Compl. at 7, ¶ 16.) (“Baylor

terminated Ms. Lynch because of Ms. Walthall’s gender stereotypes regarding femininity.”)

After the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), courts

have regularly recognized a cause of action under Title VII based on discrimination for failure to

 

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conform to gender stereotypes. E.g., Schroer v. Billington, 424 F. Supp. 2d 203, 208 (D. D.C.

2006) (citing cases). In Price Waterhouse, the Court held that the plaintiff was not discriminated

against merely for being a woman, but for failing to act like a woman. See Price Waterhouse,

490 U.S. at 235 (finding discrimination under Title VII where employer told plaintiff she could

improve her chances of making partner if she would “walk more femininely, talk more

femininely, dress more femininely, have her hair styled, and wear jewelry”). The Court found

that, in enacting Title VII, “Congress intended to strike at the entire spectrum of disparate

treatment of men and women resulting from sex stereotypes,” thus Title VII encompassed

protections against gender stereotypes. Id. at 228. But courts have cautioned that “the actual

holding of Price Waterhouse is considerably more narrow than its sweeping language suggests.”

Schroer, 424 F. Supp. 2d at 209. For example, the holding of Price Waterhouse did not create a

protected class under Title VII for sexual orientation. The law is well-settled in every circuit to

have addressed the issue- Title VII does not recognize a cause of action for discrimination based

on sexual orientation. Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2nd Cir. 2005); see also

Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979). As such, when an admitted

homosexual brings suit under a gender stereotype theory, courts scrutinize such claim to ensure

that it is not “used to bootstrap protection for sexual orientation into Title VII.” Dawson, 398

F.3d at 218. 

At a minimum, courts require that a victim of gender stereotyping allege facts

demonstrating that they were discriminated against for their failure to conform to gender

stereotypes. “Generally speaking, one can fail to conform to gender stereotypes in two ways: (1)

 

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Plaintiff’s only attempt to provide evidence on this point is the allegation that Walthall considered 5

Plaintiff to be more “masculine.” But this evidence is insufficient for numerous reasons. First, Plaintiff has failed to

convince the court that Walthall, as a subordinate, played a prominent role in the decision to terminate her.

Walthall’s call to the ethics hotline triggered an investigation. It was the resulting investigation and findings of

Connie Bowling, Sue Sayers, and Wendie Carlson that caused the termination. Second, Walthall’s statement in

deposition that Plaintiff was more “masculine” was in response to the question “was [Plaintiff] more masculine or

was she more feminine in her mannerisms?” (App. Pl.’s Resp. at 38.) Walthall answered: “She was probably more

masculine.” (Id.) It was simply an answer to a specific question at a deposition. The fact that she answered

“masculine” rather than “feminine” does not support an inference that Walthall made the call to the ethics hotline

because Plaintiff did not conform to gender stereotypes. In fact, counsel for Plaintiff asked Walthall if she had a

problem with Plaintiff being masculine. (Id.) Walthall stated that it “wasn’t my business.” (Id.) 

Memorandum Opinion and Order

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through behavior or (2) through appearance.” Dawson, 398 F.3d at 221; see also Smith v. City of

Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004) (finding plaintiff had stated valid claim of gender

stereotype discrimination when complaint alleged that the defendants’ discrimination was

motivated by his appearance and mannerisms). In the instant case, Plaintiff has made no showing

that her non-conforming appearance or behavior impacted the decision to terminate her. There is

no allegation and no evidence that Plaintiff was subject to discrimination for failing to dress,

behave, or “act” like a woman. Defendant knew Plaintiff was a lesbian for the majority of the 5

twenty years she was employed. During this time, Plaintiff received a promotion and was

granted a favorable lateral transfer; there is no evidence that her employer expected her to

conform to any gender stereotype. Rather, the evidence shows that an investigation was triggered

when Plaintiff failed to meet Defendant’s expectations for a supervisor. The events that

precipitated her termination had nothing to do with gender; she was investigated because of

coarse sexual joking and the manner in which she handled the incident following the

confrontation with Walthall. Plaintiff’s actions made subordinates uncomfortable and created

tension in the workplace. There is no evidence that male supervisors or more feminine-acting

supervisors were treated any differently.

 

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Furthermore, Plaintiff alleges that she was terminated because of a subordinate’s gender

stereotypes. But there is no evidence that Walthall influenced or had any leverage on the

decision to terminate Plaintiff. Plaintiff strenuously argues that Walthall exerted influence over

the decision-makers, but offers nothing more than her own allegations to support this argument.

In such cases, “courts will not blindly accept the titular decisionmaker as the true decisionmaker

. . . [but instead will] look to who actually made the decision or caused the decision to be made.”

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000). In the present case,

however, Plaintiff has introduced no evidence that would suggest Walthall was the informal

decisionmaker or contributed in any significant way to the termination. It is undisputed that

Walthall called in to the ethics hotline. But this call alone is insufficient to raise an issue as to

Walthall’s influence over the termination. Rather, her call merely led to an investigation. The

evidence is clear that it was the results of the investigation, not the initial call, that caused

Plaintiff’s termination.

In sum, the motivation behind the termination does “not rely upon her gender and, as

such, [is] not within the ambit of Title VII’s protections.” Ellert v. Univ. of Texas at Dallas, 52

F.3d 543, 546 (5th Cir. 1995). Plaintiff’s failure to allege any facts or provide any argument

regarding her non-conformance with her employer’s expectations leads the Court to believe that

her actual claim is for discrimination based on sexual orientation. As sexual orientation is not a

protected class under Title VII, Plaintiff fails to meet the first element of a prima facie case.

 

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To the extent Plaintiff attempts to bring a discrimination claim based on her employer’s failure to 6

accommodate her religious beliefs, Plaintiff fails to satisfy the prima facie case. Under this formulation, “[t]o

establish a prima facie case of religious discrimination under Title VII, a plaintiff must establish that [s]he had a

bona fide religious belief that conflicted with an employment requirement, that [s]he informed the employer of h[er]

belief, and that [s]he was discharged for failing to comply with the conflicting employment requirement.” Weber v.

Roadway Exp., Inc., 199 F.3d 270, 273 (5th Cir. 2000). Plaintiff has not presented evidence on any of these

elements.

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b. Religious Discrimination

As the Court finds that Plaintiff has not presented direct evidence of religious

discrimination, Plaintiff’s claims are likewise analyzed under the McDonnell Douglas approach

and Plaintiff must first establish a prima facie case. A prima facie case may be established by a

showing that the plaintiff was (1) a member of an identifiable religion; (2) that she was qualified

for the position; (3) that she suffered an adverse employment decision; and (4) that the adverse

employment decision was differentially applied to plaintiff. See Rubinstein v. Adm’rs of Tulane 6

Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000). 

In its summary judgment briefing, Defendant asserts that Plaintiff has produced no

evidence on the fourth element. Like her gender discrimination claims, Plaintiff argues that she

has shown direct evidence of discrimination and does not respond to Defendant’s argument. In

her complaint, Plaintiff claims that “[s]imilarly situated employees who did not hold Ms.

Lynch’s religious beliefs were treated more favorably.” (Compl. at 8, ¶¶ 21.) But in her summary

judgment briefing, Plaintiff does not identify any evidence in the record that would show

differential treatment. Plaintiff does not identify a single employee, other than Walthall, who was

treated more favorably. But Walthall is Plaintiff’s subordinate; in order to raise an inference of

discrimination and meet the fourth prong of the prima facie case, Plaintiff must show that

 

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preferential treatment was given to similarly situated employees in “nearly identical”

circumstances. Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).

Defendant has submitted evidence demonstrating, inter alia, that Plaintiff had poor personal

boundaries with subordinates, engaged in inappropriate sexual discussions in the workplace,

abused her position of authority by making jokes about a subordinate, asked subordinates to

falsify documents, and generally failed to perform her duties as a supervisor. (Def.’s App. at 54-

55.) Plaintiff has failed in her burden of showing “that the misconduct for which the plaintiff was

discharged was nearly identical to that engaged in by other employees.” Okoye v. Univ. of Tex.

Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (citations omitted). There is no

evidence that would suggest Walthall would have received different treatment had she been a

supervisor engaged in similar activities. Thus, Plaintiff cannot meet her prima facie case. 

In addition, as Plaintiff’s religious discrimination claims are admittedly based on the

religious beliefs of a subordinate, Plaintiff must demonstrate that her subordinate had some type

of influence or leverage over the decisionmaker. As noted above, the Court finds that Plaintiff

fails to show how Walthall exerted any influence over the ultimate decisionmakers. Walthall

merely made a call to the ethics hotline, and such call led to an investigation of Plaintiff. Based

on the evidence submitted by Plaintiff, no reasonable juror could find that Walthall’s religious

beliefs affected the decision to terminate Plaintiff.

Even if the Court were to assume that Plaintiff could establish a prima facie case,

Defendant has articulated a host of legitimate, non-discriminatory reasons for the termination.

(See Def.’s App. at 54-55.) As such, the burden shifts to Plaintiff to present evidence that such

 

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reasons are merely pretext for the genuine discriminatory reason. Plaintiff argues that her

performance reviews consistently showed that she “meets expectations,” yet the results of the

investigation showed multiple deficiencies that were previously undocumented. Plaintiff asserts

that such a disparity in rankings demonstrates pretext. But after review of the record, it appears

that most of the issues that contributed to Plaintiff’s termination were not discovered until the

investigation. In affidavit, Bowling states that she discovered Plaintiff was not properly

supervising Edward Flynn because he had a close relationship with Plaintiff. (Def.’s App. at 53.)

Bowling further states that several nurses informed her that Plaintiff had asked them to falsify

certain patient charts. (Id. at 53-54.) According to Bowling, the interviews she conducted during

the investigation also corroborated Walthall’s version of the confrontation. In addition, Plaintiff

had received verbal warnings in the past regarding her use of profanity in the workplace. (Id. at

52-53.) As a result of all these factors, Bowling believed that Plaintiff had displayed poor

management over her subordinates on several occasions. There is no evidence that suggests any

of Plaintiff’s subordinates had made previous complaints, thus the fact that these issues were not

recognized by earlier performance reviews does not support a finding of pretext. As such,

summary judgment is proper.

c. Retaliation

Plaintiff also claims that Defendant retaliated against her in violation of Title VII by

refusing her request to participate in Defendant’s internal grievance procedure. Plaintiff was

terminated on June 15, 2004. Thereafter, on June 28, 2004, Plaintiff filed a complaint of

discrimination with the City of Dallas Fair Housing Office. On the same day, Plaintiff requested

 

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a grievance committee review under Defendant’s internal grievance procedure, the Fair

Treatment Policy. On July 13, 2004, Defendant denied this request. Counsel for Defendant stated

that, because Plaintiff had filed a complaint with the City of Dallas Fair Housing Office,

Defendant declined Plaintiff’s request to access to the Fair Treatment Policy. (Pl.’s App. at 39-

40.) 

The Fair Treatment Policy is Defendant’s informal method of resolving employment

disputes. The goal of the Fair Treatment Policy is to provide employees an avenue to have

“employment concerns reviewed and answered in a timely manner.” (Pl.’s App. at 41.) The Fair

Treatment Policy allows an employee to have an employment decision reviewed by a panel of

three hospital employees. The review generally consists of a four hour hearing whereby the

aggrieved employee and the other party to the dispute can present their cases, call witnesses, and

submit relevant documents to the panel. (Pl.’s Resp. at 6.) After the hearing, the panel has the

authority to recommend that the employment action taken be reversed or upheld. (Pl.’s App. at

42.) This recommendation is given to the CEO of Baylor, who will make a final, binding

decision. The Fair Treatment Policy is available to all employees, however, no employee has a

contractual right to such grievance proceeding. (Def.’s App. at 49.)

To establish a prima facie case of retaliation under Title VII, Plaintiff must demonstrate

that she: (1) engaged in a protected activity; (2) that an adverse employment action occurred; and

(3) that a causal link exists between the protected activity and the adverse employment action.

Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). Defendant asserts

that Plaintiff cannot establish a retaliation claim, as the denial of the internal grievance procedure

 

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Plaintiff’s retaliation claim is premised solely on Defendant’s refusal to grant her access to its internal 7

grievance procedure. (Def.’s App. at 48.)

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Page 17 of 19

was not an adverse employment action. According to the Supreme Court’s recent holding in 7

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. ----, 126 S. Ct. 2405 (June 22,

2006), a materially adverse employment action is any action which “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” White, 126 S. Ct. at

2415 (citations omitted). The Supreme Court stated that it “phrase[d] the standard in general

terms because the significance of any given act of retaliation will often depend on the particular

circumstances.” Id. Plaintiff argues that the denial of her right to an internal grievance procedure

significantly alters the terms and conditions of her employment such that it rises to the level of

an adverse employment action.

But after consideration of the circumstances surrounding the instant case, the Court is not

persuaded that Baylor’s actions constitute retaliation. The Court finds the facts of the present

case analogous to the situation presented in United States v. New York City Transit Authority, 97

F.3d 672 (2d Cir. 1996). In New York City Transit Authority, the employer had an internal Equal

Employment Opportunity Division (“EEO Division”) that handled employee discrimination

complaints through informal mediation and settlement proceedings. 97 F.3d at 674. However,

once an employee filed a complaint with an external anti-discrimination agency, the EEO

Division refused to intervene and the complaint was referred to the Transit Authority’s legal

department. Id. The United States Equal Employment Opportunity Commission (“EEOC”)

became aware of this policy and brought suit, alleging that the policy was a form of retaliation in

violation of Title VII. Id. 

 

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While not squarely addressed by the Fifth Circuit, several decisions indicate that the denial of an internal 8

grievance procedure does not constitute an adverse employment action. See, e.g., Gregory v. Texas Youth

Commission, 111 Fed. Appx. 719, 721 (5th Cir. 2004); Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997); Dupre v.

Harris County Hosp. Dist., 8 F. Supp. 2d 908, 924-25 (S.D. Tex. 1998).

Memorandum Opinion and Order

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Page 18 of 19

After review, the Second Circuit characterized the Transit Authority’s policy as a

“reasonable defensive measure” that did not violate the anti-retaliation provisions of Title VII.

Id. at 677. The court found that holding otherwise would force an employer to litigate in

“parallel and duplicative proceedings.” Id. Furthermore, it could impair an employer’s ability to

defend itself in a claim of discrimination, as findings in an internal proceeding could prejudice it

in external proceedings. Id. at 678. Ultimately, the court found that the differential treatment of

employees who had filed an external complaint was not retaliation in violation of Title VII, but a

logical shift in dispute resolution tactics. Id. Legitimate business reasons supported the policy.

The same reasoning applies to the instant case. Defendant’s decision not to allow

Plaintiff to participate in the internal grievance proceedings was not a retaliatory action because

it would not have dissuaded a reasonable employee from making a charge of discrimination.8

Rather, it was a reasonable defensive measure and an attempt to avoid parallel and duplicative

proceedings. Baylor’s policy of not allowing a dispute to proceed simultaneously in two different

forums does not operate to prevent the filing of discrimination complaints. It simply requires an

employee to use the proceedings sequentially rather than simultaneously. The policy is further

supported by legitimate business reasons. If an employee elected to utilize Defendant’s internal

grievance procedure and obtained the desired relief, there would be no need for further

proceedings or investigations by an outside agency. If, however, an employee did not obtain the

 

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In addition, Plaintiff did not have a contractual right to the internal grievance procedure. The New York 9

City Transit Authority court distinguished Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991), a case cited by Plaintiff,

on this particular point. In Johnson, the court held that the abandonment of a grievance that the union has a

contractual responsibility to pursue on the employee’s behalf amounts to an adverse employment action. New York

City Transit Authority, 97 F.3d at 678 (citing Johnson, 931 F.2d at 207.). But where an employer is not contractually

bound to offer internal grievance procedures, it “is free under Title VII to decide for itself how it will address or

resolve employee complaints of discrimination.” New York City Transit Authority, 97 F.3d at 678. 

Memorandum Opinion and Order

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Page 19 of 19

requested relief through the internal grievance proceedings, the employee could still file an

EEOC complaint.

9

Additionally, the Supreme Court held that “[t]he anti-retaliation provision protects an

individual not from all retaliation, but from retaliation that produces an injury or harm.” White,

126 S. Ct. at 2414. Plaintiff suffered no harm from her inability to use Defendant’s internal

grievance procedure. By filing an EEOC complaint, Plaintiff could secure all the relief available

from the internal grievance plus additional relief not available through Defendant’s procedure. 

For all these reasons, Plaintiff is unable to sustain her claim of retaliation and summary judgment

is proper. 

IV. Conclusion

For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment.

It is so ordered.

Signed this 23 day of August 2006. rd

_________________________________

JORGE A. SOLIS

UNITED STATES DISTRICT JUDGE

 

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