United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-40813 

____________ 

Rosandra Daywalker, 

Plaintiff—Appellant, 

versus

UTMB at Galveston; MD Ben Raimer, In His Official Capacity, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 3:20-CV-99 

______________________________ 

Before Richman, Chief Judge, Stewart, Circuit Judge, and Scholer, 

District Judge.

†

Per Curiam:*

Rosandra Daywalker appeals the district court’s discovery decisions, 

denial of her motion for sanctions, grant of summary judgment, and dismissal 

of her Title VII, Rehabilitation Act, and Family and Medical Leave Act 

_____________________ 

† United States District Judge for the Northern District of Texas, sitting by designation.

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

January 9, 2024 

Lyle W. Cayce 

Clerk 

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(“FMLA”) discrimination claims against her former employer. Because we 

find no error, we AFFIRM. 

I. Factual Background

In June 2015, Daywalker, a Black woman, graduated with honors from 

her medical school and matched to the five-year Otolaryngology residency 

program at the University of Texas Medical Branch at Galveston 

(“UTMB”). In a residency program, medical school graduates pursue 

advanced certifications in specialized fields of medicine while training under 

the supervision of a faculty of experienced doctors. Otolaryngology is the 

medical specialty involving the surgical and medical management of head and 

neck conditions. Daywalker was the only Black resident in UTMB’s 2015–

2020 Otolaryngology program class. 

Otolaryngology residents at UTMB cycle through medical rotations 

in different specialty departments, attend lectures, and participate in didactic 

exercises. UTMB’s program is structured so that a resident is provided with 

greater responsibilities and expected to exhibit core clinical competencies as 

they progress through their post-graduate years. A typical post-graduate year 

in the program begins in July and runs through the following June. To aid 

residents progressing through the program, UTMB’s Clinical Competency 

Committee discusses residents’ progress and development of core 

competencies. The Committee also imposes discipline and improvement 

plans, if necessary. 

During her first two years at UTMB, Daywalker was supervised by 

Dr. Susan McCammon, a white woman. Within her first year in the program, 

she received good evaluations for her positive energy and “ability [to] 

communicate well with patients and families as well as nursing staff.” 

However, some of her supervisors also reported that she had failed to timely 

complete medical documentation and had problems with unexcused 

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tardiness and absences in some clinical rotations. While Daywalker’s clinical 

skills improved in her second year, some of her supervisors noted that she 

still needed to be more efficient in producing clinical documentation.

In April 2017, towards the end of Daywalker’s second year, Dr. 

McCammon was replaced by Dr. Wasyl Szeremeta, a white man, as director 

of the program. In her end of second-year evaluations, Dr. Szeremeta noted 

that Daywalker needed to improve her clinical documentation and 

interpersonal communication skills. In August 2017, Dr. Szeremeta and the 

assistant program director, Dr. Farrah Siddiqui, met with Daywalker to 

discuss the importance of efficiency and accuracy in completing clinical 

documentation. Some of her supervisors reported that she displayed 

improvements after the meeting, as her first third-year evaluations provided 

that her “[r]enewed energy and positive, confident attitude have improved 

[her] clinical efficiency/documentation.” However, other supervisors 

reported that her core competencies lagged behind her peers based on her 

clinical inefficiency and slow documentation. 

In May 2018, UTMB conducted a routine audit of the department’s 

medical documentation. The audit revealed that Daywalker had not 

completed records for five patients dating back to June 2017. Dr. Szeremeta 

questioned her about these records, and Daywalker responded that the 

patients “[l]eft without being seen” and should have been removed from the 

schedule. Upon further review, Dr. Szeremeta learned that Daywalker did 

see the five patients, and he became concerned that Daywalker 

“subsequently created notes and ‘documentation’” to cover up her 

omissions. He believed that Daywalker had copied and pasted prior notes 

from other doctors without making any significant edits. His concerns about 

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Daywalker’s clinical inefficiency led UTMB to place her on a remediation 

program.1

On May 30, 2018, Dr. Szeremeta notified Daywalker of her 

remediation plan and explained that her “lapses in professional behavior” 

have created difficulties for the faculty to trust in her competency. According 

to her evaluations for the first half of 2018, Daywalker scored a near eight out 

of ten for professionalism. On June 1, 2018, she submitted an internal 

complaint against Dr. Szeremeta, asserting that he created a hostile work 

environment and discriminated against her based on her race and sex. In her 

complaint, she alleged that Dr. Szeremeta made numerous disparaging 

comments during working hours in the UTMB emergency room, at public 

meetings among program residents, and at conferences that she attended. 

She further asserted that Dr. Szeremeta became fixated on her, consistently 

staring at her during working hours and consistently interrupting her work to 

give her negative feedback in full view of other employees and residents. 

Ultimately, Dr. Szeremeta was removed as her supervisor and replaced by 

Dr. Siddiqui. 

Later that summer, she reached out to Dr. Vicente Resto, the 

department chair, to discuss being removed from the remediation plan. Due 

to personal conflicts with Dr. Siddiqui, Dr. Resto assigned her another 

supervisor to “help her pass the remediation and graduate from the residency 

program.” In early August, Daywalker requested a four month “leave of 

absence.” On August 8, 2018, UTMB sent her a letter approving her request 

and informing her that she would return to the program as a third-year 

_____________________ 

1

 UTMB describes remediation programs as a performance improvement plan 

“provid[ing] tailored assistance, training, and/or supervision to residents who need 

additional support to meet expectations” and not “formal discipline” or “report[ed] . . . 

to future employers.” 

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resident upon the expiration of her leave. Dr. Harold Pine, a program faculty 

member, delivered the letter to Daywalker and informed her of additional 

concerns expressed by faculty members. The following day, Daywalker 

engaged counsel to submit a letter to request conversion of her “leave of 

absence” into protected leave under the Family and Medical Leave Act 

(“FMLA”). UTMB granted her FMLA leave the following week. 

While on FMLA leave, Daywalker obtained records from the 

American Board of Otolaryngology which stated that UTMB reported she 

was a fourth-year resident on course to complete her residency in June 2020.

She also consulted an attorney and requested disability accommodations 

upon her return to UTMB in November 2018. On November 6, 2018, her 

first day back, she met with Dr. Szeremeta and other program staff to discuss 

her status. Dr. Szeremeta informed her that she would have to repeat her 

third year during the 2018–2019 program year. Daywalker resigned that same 

day.

A few months later, Daywalker filed suit against UTMB and its thenpresident, Dr. Ben Raimer, in federal court. She alleged race- and genderbased discrimination claims under Title VII, FMLA, and the Rehabilitation 

Act. During discovery, Daywalker served UTMB with several discovery 

requests seeking comparator evidence, or information about the performance 

and discipline of the program’s other residents. UTMB objected to those 

requests pursuant to the Federal Education Rights Privacy Act (“FERPA”). 

The district court then referred the request to compel to the magistrate 

judge. The magistrate judge determined that FERPA applied to UTMB’s 

other residents because medical residency was “undoubtedly an academic 

undertaking that allows doctors to further their education and training in the 

medical field.” However, the magistrate judge allowed the disclosure of 

residents’ records, subject to the individual residents’ objections. The 

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district court then issued an order directing the redaction of all identifying 

information and limiting the documents to counsel’s eyes only. 

Under the district court’s directive, the parties submitted dispute 

letters addressing one of Daywalker’s requests for production. Daywalker 

asserted that her request for production governed relevant comparator 

evidence from two program residents outside of her protected class, residents 

anonymously numbered three (“Resident Three”) and sixteen (“Resident 

Sixteen”). UTMB argued that the requests did not encompass Resident 

Three’s and Resident Sixteen’s performance records. The magistrate judge 

received the letters after the final discovery deadline passed. Her request was 

denied because its language did not encapsulate the records of Resident 

Three and Resident Sixteen as the dates listed did not precisely match their 

program years. Thus, Daywalker proceeded with limited comparator 

information about only one other resident. 

Upon UTMB’s and Raimer’s motion for summary judgment, the 

district court dismissed Daywalker’s Title VII claims because (1) she failed 

to provide comparator evidence showing that another resident outside her 

protected class was treated more favorably;2

 (2) she provided insufficient 

evidence to show that her internal complaint of discrimination caused the 

program staff to hold her back; and (3) binding precedent required a greater 

degree of harassment beyond the insensitive remarks and microaggressions 

she alleged to prove a hostile work environment claim. The district court then 

dismissed her FMLA and Rehabilitation Act claims because she had not 

offered evidence of the causal links between (1) her request for FMLA leave 

_____________________ 

2

 The district court held that the other resident she pointed to was not similarly 

situated because he had different disciplinary issues and was in a different stage of the 

program’s disciplinary process.

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and informing UTMB of her disability status and (2) the decision to retain 

her as a third-year resident. 

Additionally, the district court denied Daywalker’s motion for 

sanctions based on spoliation of evidence and opposing counsel’s conduct at 

depositions. She alleged that an internal investigator for UTMB deleted 

relevant notes and electronic recordings of meetings. The district court 

reasoned that there was no prejudice from the loss of the documents because 

UTMB produced the same material via another method and provided her 

with the minutes for the relevant meetings. The district court further 

concluded that “none of [her other claims] amount[ed] to sanctionable 

conduct.” Daywalker timely appealed the magistrate judge’s evidentiary 

decisions and the district court’s order granting summary judgment in favor 

of UTMB and Dr. Raimer and denying her motion for sanctions. 

II. Discussion

 On appeal, Daywalker contests the magistrate judge’s determination 

that the program’s residents were covered under FERPA and his denials of 

Daywalker’s motion to compel, and the district court’s denial of her motion 

for sanctions and grant of summary judgment in favor of UTMB. We address 

each challenge in turn. 

A. FERPA Order

 We begin by discussing the magistrate judge’s FERPA order 

determining that medical residents are students protected by the Act. 

“Issues of statutory interpretation are reviewed de novo.” Matter of Lopez, 

897 F.3d 663, 668 (5th Cir. 2018).

Daywalker avers that the magistrate judge “erroneously expanded 

FERPA to medical residents.” She contends that “nothing in the limited 

legislative history of FERPA[] created rights for medical resident[s].” She 

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points out that the U.S. Department of Education (“DOE”) has held that 

medical residents are not students covered by FERPA in a 1995 guidance 

letter.3

 Alternatively, she argues that the comparator documents she sought 

are not “‘educational records’ as defined by FERPA” because UTMB 

operates its residency programs independent of its medical and graduate 

schools as its records are not maintained like an educational institution. She 

further asserts that the FERPA order improperly creates new precedent 

citing unpublished and unpersuasive district court opinions in cases either 

not involving medical residents or cases where the resident did not argue that 

FERPA was inapplicable. 

 We disagree and hold that the magistrate judge did not err in applying 

FERPA to UTMB’s medical residents. He began his analysis by stating that 

“[t]he scope of the term ‘student’ must be considered within the context of 

the specific [] statute before the court.” Univ. of Tex. Sys. v. United States, 

759 F.3d 437, 444 (5th Cir. 2014). He then noted that FERPA defines 

“education records” as “records, files, documents, and other materials 

which (i) contain information directly related to a student; and (ii) are 

maintained by an educational agency or institution or by a person acting for 

such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). The Act defines a 

student as “any person with respect to whom an educational agency or 

institution maintains education records or personally identifiable 

information.” Id. § 1232g(a)(6). FERPA defines an educational agency or 

institution as any entity that receives funds from any DOE program. Id. § 

1232g(a)(3). The magistrate judge squarely addressed this issue and reasoned 

that UTMB’s medical residents are students subject to FERPA’s protections 

_____________________ 

3

 The DOE guidance letter provides that “[a] medical resident who works at a 

hospital is not a ‘student’ as that term is defined in FERPA” because they have achieved a 

terminal degree in their field and merely seek advanced certification. 

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because UTMB receives DOE funding and keeps personal records of their 

performance as they engage in practical educational curricula in pursuit of 

receiving a specialized certification.4

 The magistrate judge noted that although this court has previously 

recognized that medical residents are classified as employees with respect to 

Social Security, Medicare, and federal payroll taxes, we have consistently 

maintained that those determinations were based on the government 

regulations or statutes at issue in those cases. See, e.g., Univ. of Tex. Sys., 759 

F.3d at 444. The magistrate judge concluded that “medical residents are 

students for purposes of FERPA” because “a medical residency is 

undoubtedly an academic undertaking that allows doctors to further their 

education and training in the medical field.” He also pointed out that several 

district courts have held the same, and thus there was “no reason to chart a 

new course” by holding opposite. Regardless of his construction of the 

statute, the magistrate judge’s FERPA order did not impact Daywalker’s 

access to the comparator information she needed to establish her 

discrimination claims. See 20 U.S.C. § 1232g(b)(2)(B); 34 C.F.R. § 

99.31(a)(9)(i). The magistrate judge stated that her “requests for production 

and interrogatories seeking comparator information [were] directly relevant 

to her claims of discrimination” and that “it [was] appropriate to allow the 

disclosure of such material.” FERPA merely imposes additional protection 

of students’ records, allowing disclosure if made to comply with a court 

order. 20 U.S.C. § 1232g(b)(2)(B). Thus, we find no reversible error in the 

magistrate judge’s FERPA order. 

_____________________ 

4

 UTMB stores and reports such information pertaining to its residents to the 

American Board of Otolaryngology. Shortly after completing the program, residents 

desiring to continue in the field must take and pass both written and oral exams. See 

https://www.abohns.org/about-our-certifications/our-assessment-programs. 

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B. Discovery Determinations

 Having addressed the FERPA issue, we now turn to the magistrate 

judge’s denials of Daywalker’s request to compel and the protective order 

restricting the produced records to “counsel’s eyes only.” We review a 

district court’s discovery decisions for abuse of discretion. Williams v. Boeing 

Co., 23 F.4th 507, 514 (5th Cir. 2022). We “will reverse a discovery ruling 

only if it is ‘arbitrary or clearly unreasonable,’ and the complaining party 

demonstrates that it was prejudiced by the ruling.” HC Gun & Knife Shows, 

Inc. v. City of Houston, 201 F.3d 544, 549 (5th Cir. 2000) (quoting Mayo v. 

Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986)). We hold that the 

record does not support a determination that the magistrate judge and district 

court abused their discretion either by (1) construing Daywalker’s contested 

request to not describe the records of two of UTMB’s residents with 

reasonable particularity or (2) by ordering that only her counsel could review 

the produced records in a modifiable protective order. 

 We begin with the magistrate judge’s denial of her request for UTMB 

to produce comparator evidence. Daywalker asserts that the magistrate judge 

abused his discretion in denying her request for UTMB to produce 

comparator documents for two other residents in her class, Resident Three 

and Resident Sixteen.5

 Daywalker contends that we should not uphold the 

district court’s decision because it failed to adhere to the liberal spirit of the 

Federal Rules of Civil Procedure and caused fundamental unfairness. UTMB 

counters that the magistrate judge reasonably construed the contested 

request for production and held that it could not be read to encompass the 

_____________________ 

5

 She avers that the abuse of discretion is facially apparent because the magistrate 

judge’s FERPA order states that the records of other residents were “directly relevant to 

her claims of discrimination” such that it was appropriate to allow her to access other 

residents’ records. 

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records for Residents Three and Sixteen because their class years did not 

match the requested years. 

 We hold that the magistrate judge reasonably construed the contested 

discovery request. The record shows that the district court reviewed the 

parties’ position letters6

 and determined that although the information 

Daywalker sought may have been relevant to her claim, no request for 

production at issue encompassed the contested records for Residents Three 

and Sixteen. She requested all records of third-year residents from 2016 to 

2017 and fourth-year residents from 2017 to 2018. UTMB posited that the 

contested information did not fall within the relevant period because 

Residents Three and Sixteen were third-year residents from 2017 to 2018. 

The magistrate judge and district court agreed. So do we. 

 We hold that the magistrate judge’s interpretation of Daywalker’s 

request for production was not arbitrary or clearly unreasonable. The 

magistrate judge noted that it was counsel’s “obligation to make document 

requests that define[d] specifically what [Daywalker was] looking for” and 

rejected any “insinuation that this [determination was] somehow an effort to 

cut off [Daywalker]’s ability to proceed with her case” as “flat out 

incorrect.” While courts have encouraged the liberal application of the 

Federal Rules of Civil Procedure in the interest of maintaining fairness to 

litigants,7

 the Rules also require parties to identify the documents they 

request with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1)(A). In 

cases where we have admonished a district court for failing to order a party 

to produce comparator evidence, the error occurred from a failure to compel 

_____________________ 

6

 The parties submitted position letters describing the production dispute pursuant 

to the district court’s directive. 

7 See Hickman v. Taylor, 329 U.S. 495, 506 (1947). 

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documents governed by or subject to a valid request for production. See 

Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991). For instance, in Coughlin 

v. Lee, the district court declined to compel an employer to produce relevant 

personnel records in a wrongful termination case based on the plaintiffs’ 

exercise of protected speech. Id. at 1158–59. The plaintiffs requested 

production of all personnel files for the relevant period of their discharges. 

Id. at 1158. Thus, we held that the district court’s decision limiting discovery 

based on its determination of relevance constituted an abuse of discretion. Id. 

at 1159–60. 

Coughlin is distinguishable, however, because the trial court’s error 

there flowed from its refusal to compel the production of documents 

encompassed by the plaintiffs’ requests without substantial consideration. Id.

at 1160 (“The district court appears to have limited discovery because it 

considered these files irrelevant to the plaintiffs’ freedom of speech case.”). 

Here, there was no request encompassing the information and the district 

court provided a reasonable justification for its interpretation of the 

contested request. At the hearing, Daywalker argued that a denial of her 

request would allow UTMB to evade liability “because of some technical 

reading of” her request for production. To the contrary, the record shows 

that the shortcoming in Daywalker’s case results from the imprecision with 

which the contested request was drafted, not the result of a mere technicality. 

 As written, Daywalker’s requests could not be construed to 

incorporate the records of Residents Three and Sixteen because they were 

not third-year residents during the program year spanning from 2016 to 2017. 

And because they were not third-year residents from 2016 to 2017, it follows 

that they were not fourth-year residents from 2017 to 2018. For Daywalker 

to receive those documents, the magistrate judge would have had to re-write 

her document requests. On appeal, Daywalker cites no binding Fifth Circuit 

precedent for the proposition that a district court is obligated to reform a 

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party’s discovery requests to encapsulate desired, relevant information. 

Thus, we hold that the magistrate judge and district court did not commit 

reversible error by denying her request for production, and subsequently 

denying her motion for reconsideration. 

 With respect to the district court’s standing order, Daywalker’s 

arguments also fail to demonstrate an abuse of discretion. She argues that the 

district court unfairly prevented her from reviewing the produced records of 

the other residents by limiting access to her counsel’s eyes only. UTMB 

counters that Daywalker’s substantial rights were not affected by the 

imposition of a standard protective order limiting access to confidential and 

sensitive information. It further argues that nothing in the disclosed 

performance records necessitated a medical degree or insider institutional 

knowledge to interpret them and that Daywalker “does not explain why it 

would take a medical doctor to ascertain whether the documents contained 

useful comparator information, and none is apparent from the record.” 

 We again agree and find no reversible error. As aggrieved as 

Daywalker may feel from the dismissal of her claims against her employer, 

the record does not demonstrate that the district court abused its discretion 

by requiring her to abide by a protective order. She did not move to modify 

the order to assist her counsel, nor does she demonstrate that she could not 

sufficiently explain UTMB’s performance standards and scoring data to her 

counsel to supplement her search for comparator evidence. Thus, we hold 

that the magistrate judge’s and district court’s discovery determinations did 

not constitute abuses of discretion. See Williams, 23 F.4th at 514. 

C. Motion for Sanctions

 “We review a court’s granting or denial of a motion for sanctions 

under an abuse of discretion standard.” Haase v. Countrywide Home Loans, 

Inc., 748 F.3d 624, 630 (5th Cir. 2014). We have consistently held that this 

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standard of review is “necessarily very deferential.” Jenkins v. Methodist 

Hosps. of Dall., 478 F.3d 255, 264 (5th Cir. 2007). Daywalker contends that 

the district court abused its discretion when it denied her motion for 

sanctions against UTMB and its counsel for the alleged spoliation of evidence 

and its counsel’s alleged misconduct during depositions. Beyond referencing 

the allegations she made to the district court, Daywalker improperly attempts 

to incorporate the law and facts raised in her motion for sanctions by 

reference “[d]ue to word limitation[s] and the number of issues briefed in 

this case.”

As a preliminary matter, we hold that the district court did not abuse 

its discretion in denying Daywalker’s motion for sanctions. The district court 

concluded that any deleted records relevant to her claims were cured through 

the production of other evidence, such as the Committee’s meeting minutes 

where the committee members discussed Daywalker. Furthermore, 

Daywalker did not brief the issue before the court in spite of our consistent 

holdings that a party must brief issues before us and cannot simply 

incorporate by reference their positions taken in district court.8 See, e.g., Peel 

& Co., Inc. v. The Rug Market, 238 F.3d 391, 398–99 (5th Cir. 2001). 

Nevertheless, even if we ignored her abandonment of the issue, there is no 

basis for reversal of the district court’s determination. In line with our 

_____________________ 

8

 In her reply, Daywalker argues that incorporation by reference is permissible 

because “[t]here is no case law forbidding a party from citeimg [sic] or incorporating 

arguments already briefed and referenced in ROA [sic].” This ignores the Federal Rules of 

Appellate Procedure, Fifth Circuit rules, and our consistent and longstanding precedent 

that parties must brief their issues on appeal to obtain relief from this court. See Yohey v. 

Collins, 985 F.3d 222, 224–25 (5th Cir. 1993). Notably, Daywalker’s counsel had other 

options. In accordance with the Federal Rules of Appellate Procedure and Fifth Circuit 

rules, counsel could have moved to file a brief in excess of the page or word-volume 

limitations to ensure adequate space to explain her arguments that sanctions are 

appropriate. See Fed. R. App. P. 32; 5th Cir. R. 32.4. 

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established principle to defer to a district court’s denial to impose sanctions, 

we decline to reverse the district court’s decision in this case. See Jenkins, 

478 F.3d at 264. 

D. UTMB’s Motion for Summary Judgment 

 We now turn to Daywalker’s challenge to the district court’s 

summary judgment to her Title VII, FMLA, and Rehabilitation Act claims. 

A district court’s summary judgment is subject to de novo review. Williams, 

23 F.4th at 512. We begin with Daywalker’s claims that UTMB unlawfully 

retaliated against her for taking protected actions under Title VII, the FMLA, 

and the Rehabilitation Act, as they are reviewed under the same burdenshifting framework. 

 i. Title VII Race Discrimination in Advancement Claim 

 Title VII prohibits an employer from “fail[ing] to or refus[ing] to hire 

or to discharge any individual, or otherwise to discriminate against any 

individual with respect to his [or her] compensation, terms, conditions, or 

privileges of employment, because of such individual’s race, color, religion, 

sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Our en banc court has 

recently made clear that a plaintiff is not required to suffer a permanent 

adverse employment decision to maintain a Title VII claim. Hamilton v. 

Dallas County, 79 F.4th 494, 502 (5th Cir. 2023) (en banc).9

 However, to 

establish a prima facie case of racial discrimination under Title VII, a plaintiff 

must demonstrate that she was “treated less favorably because of [her] 

membership in [a] protected class than were other similarly situated 

_____________________ 

9

 While the district court also held that Daywalker could not sustain her claim 

because no adverse employment action occurred, we note that she has preserved her claim 

of error in the district court and on appeal. Thus, Daywalker is entitled to the benefit of the 

substantive change of our Title VII jurisprudence that is congruent with her claim of error. 

See Harrison v. Brookhaven Sch. Dist., 82 F.4th 427, 428 (5th Cir. 2023). 

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employees who were not members of the protected class, under nearly 

identical circumstances.” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th 

Cir. 2009). 

 Where a plaintiff establishes less favorable treatment, an inference of 

racial discrimination is raised, and the burden then shifts to the employer to 

offer a legitimate nondiscriminatory explanation. Id. (citing McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the employer provides 

such an explanation, “the burden shifts back to the [plaintiff] to demonstrate 

that the employer’s explanation is merely a pretext for racial bias.” Id. 

Daywalker’s Title VII claims fail to surpass the first hurdle, 

establishing a prima facie case of discrimination. To survive summary 

judgment, she must show that she was treated less favorably than similarly 

situated employees who were not members of her protected class, under 

nearly identical circumstances. Paske v. Fitzgerald, 785 F.3d 977, 985 (5th Cir. 

2015). We have clarified that an appropriate comparator is an employee 

treated more favorably under the same circumstances or with “essentially 

comparable violation histories.” Lee, 574 F.3d at 260. This court has 

consistently rejected arguments that proffered comparators need not be 

nearly identical, that is, need not share similar attributes or responsibilities to 

sustain a claim. See Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 

177, 185 (5th Cir. 2018). 

 For instance, in Saketkoo v. Administrators of Tulane Educational Fund, 

we held that the plaintiff, a female physician, failed to establish a prima facie 

case for gender discrimination where she did not “present evidence that any 

male physicians shared her research responsibilities, section assignments, 

historical performances, or other attributes that would render them similarly 

situated.” 31 F.4th 990, 998 (5th Cir. 2022). The Saketkoo panel determined 

that the standard to show discrimination is not met where a plaintiff offers no 

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explanation as to why the individuals are appropriate comparators. Id.at 999. 

The panel concluded that while she did identify that other male physicians, 

like herself, were not generating revenue from their practice, that alone was 

insufficient to render their experiences “nearly identical” in the field of 

academic medicine. Id. at 998–99. 

 Just like in Saketkoo, Daywalker cannot establish a prima facie case of 

discrimination by merely pointing to other residents that UTMB’s faculty 

expressed concerns about. She has failed to show how their experiences in 

the field of practical medicine in Otolaryngology were “nearly identical.” See 

id. Furthermore, her arguments on appeal offer little to no explanation as to 

how Resident Three is an appropriate comparator. See id. at 999. Daywalker 

asserts that Resident Three is similarly situated because UTMB “would have 

provided Resident [Three]’s records if this were not the case.” She further 

asserts that “[i]t cannot be disputed in good faith that Daywalker has not met 

all elements of her race discrimination on her demotion and discharge 

claims.” UTMB counters that the record shows that Resident Three’s 

disciplinary history governed a vastly different faculty concern that she 

“[m]ay be having depth or eye/hand issues with endoscopic cases.” In other 

words, Resident Three has a disciplinary history with no similarity to 

Daywalker’s. 

We hold that summary judgment was appropriate as to Daywalker’s 

Title VII claims because she has not proven her prima facie case to raise the 

inference of racial discrimination. The district court noted that Resident 

Three did not have issues with the accuracy and punctuality of recording 

medical notes and “was in a different stage of the disciplinary process.” 

Beyond making the bare assertion that Resident Three is an appropriate 

comparator, Daywalker offers no explanation of how Resident Three is 

similarly situated to her. See Saketkoo, 31 F.4th at 999; see also Turner v. Baylor 

Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (“[A] party cannot 

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defeat summary judgment with conclusory allegations, unsubstantiated 

assertions, or ‘only a scintilla of evidence.’”). Setting aside any possible 

issues of abandonment due to the limited discussion of this issue in her 

briefs,10 we hold that Daywalker failed to adduce evidence of a comparator 

with comparable violation histories to raise an inference of racial 

discrimination. See Saketkoo, 31 F.4th at 999–1000. Ordinarily, the Title VII 

inquiry ends here because a plaintiff’s “Title VII claims fail[] as a matter of 

law” where they are unable to prove a prima facie case of discrimination. See 

Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017). 

 In the interest of completeness, however, we evaluate Daywalker’s 

assertion that she has proven that UTMB’s non-discriminatory justification 

was a pretext for racial discrimination. Assuming arguendo that her Title VII 

claims present a prima facie case of racial discrimination, her claims fail 

because she cannot demonstrate that UTMB’s alleged non-discriminatory 

ground for termination—her untimely clinical notetaking—is merely 

pretextual. After presenting a prima facie case of discrimination, a defendant 

must offer a legitimate, non-discriminatory justification for the alleged 

discriminatory conditions. See Septimus v. Univ. of Hous., 399 F.3d 601, 609 

(5th Cir. 2005). In that case, summary judgment is appropriate unless the 

plaintiff demonstrates that a genuine issue of material fact exists as to 

whether the proffered legitimate reasons are a pretext for discrimination. Id.

Even if an employer’s stated non-discriminatory justification lacks support, 

it does not violate Title VII if it acted on a reasonably held belief. Dickerson v. 

_____________________ 

10 Federal Rule of Appellate Procedure 28(a)(4) requires that an “appellant’s 

argument contain the reasons [she] deserves the requested relief with citation to the 

authorities, statutes and parts of the record relied on.” Weaver v. Puckett, 896 F.2d 126, 128 

(5th Cir. 1990) (internal quotations omitted). We have deemed arguments containing mere 

conclusory assertions without sufficient support from caselaw or the record abandoned. See 

Yohey v. Collins, 985 F.3d 222, 224–25 (5th Cir. 1993). 

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Metropolitan Dade County, 659 F.2d 574, 581 (5th Cir. Unit B 1981) (“Even if 

[the employer] w[as] wrong in its evaluation of the [employee’s 

performance], it did not violate Title VII if it acted on a reasonable belief 

about [the conduct].”). 

On appeal, Daywalker asserts that she demonstrated pretext because 

(1) Dr. Resto admitted to her in a meeting in the summer of 2018 that “there 

was no validity to the remediation”; (2) she invalidated the reasons offered 

in Dr. Szeremeta’s remediation memo with her own recounting of the events; 

and (3) Dr. Resto and Dr. Siddiqui said she was “passing” her remediation 

plan in July 2018. UTMB argues that any comment about the “validity” of 

the remediation plan does not establish a fact issue as to pretext because “the 

remediation and UTMB’s decision to retain her as a [third-year resident] 

were separate acts, even if based on some of the same underlying conduct.” 

UTMB further contends that no “fundamentally different” rationales exist 

to establish pretext through inconsistency and that Dr. Resto’s comments 

“do not disprove that the faculty was concerned that ‘her notes were 

untimely and inaccurate.’” 

We conclude on these facts that the district court appropriately 

determined that Daywalker did not create a fact issue as to pretext. UTMB 

supervisors’ comments on Daywalker’s progress on her clinical charting 

skills during her first three years of residency are a mixed bag. Numerous 

comments for years two and three show that she did extremely well in certain 

rotations. However, the record also shows that numerous supervisors 

throughout the entirety of her time at UTMB commented on her need to 

improve her clinical notetaking skills and timeliness in recording patient 

notes. Daywalker admitted in her opposition to summary judgment that she 

did not complete some of the patient notes in a timely manner. In a July 2018 

meeting with Dr. Siddiqui and Dr. Resto, Dr. Siddiqui informed Daywalker 

that she “continued to have lapses in documentation, [] was late on a call 

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note,” and that her clinical efficiency skills lagged behind what was expected 

for a resident of her experience. Notably, UTMB’s program requires senior 

residents to exhibit higher levels of clinical competency such that select 

positive reviews from years one and two cannot be said to be an accurate 

determinator that Daywalker would consistently meet expectations as she 

gained more responsibility. Numerous documents in the record support 

UTMB’s stated justification that Daywalker had difficulties with the timely 

charting of patient notes. 

Daywalker does not attack UTMB’s reliance on its justification as 

unreasonable, which only further supports this conclusion. See Baker v. Exxon 

Chem. Americas, 68 F.3d 467 (5th Cir. 1995) (per curiam) (noting plaintiff’s 

failure to show pretext or disprove reasonable reliance on stated justification 

for failure-to-promote claim did not merit reversal). Thus, summary 

judgment was appropriate as to her Title VII claims because she did not 

provide evidence creating a fact dispute as to pretext. 

 ii. Title VII Hostile Work Environment Claim

 Title VII also makes it unlawful to subject employees “to work in a 

discriminatorily hostile or abusive environment.” Gardner v. CLC of 

Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019). To bring a hostile work 

environment claim, a plaintiff must show that they were harassed based on 

their status within a protected class in such a pervasive and severe manner to 

affect a term, condition, or privilege of employment. See, e.g., West v. City of 

Houston, 960 F.3d 736, 741 (5th Cir. 2020). A court must look at the totality 

of the circumstances to determine whether the alleged discriminatory 

conduct unreasonably interferes with an employee’s performance, including 

the severity and frequency of the conduct and whether it is comprised of 

physical threats or humiliation, or are merely offensive utterances. See Harris 

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v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993). The alleged hostile environment 

must be both objectively and subjectively offensive. Id. at 21–22. 

 Here, the objectively offensive requirement is determinative of 

Daywalker’s claim. We have held that “[d]iscriminatory verbal intimidation, 

ridicule, and insults may be sufficiently severe or pervasive to alter the 

conditions” of employment and “create an abusive working environment 

that violates Title VII.” Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1049 n.9 

(5th Cir. 1996) (citation omitted). One instance where the racially 

discriminatory remarks and intimidation crossed the line occurred in Walker 

v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000), abrogated on other grounds by 

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006). The district 

court in Walker granted summary judgment as to a Black employee’s hostile 

work environment claims because it concluded that none of the comments 

were physically threatening or humiliating. Id. at 625–26. This court reversed 

because the district court ignored substantial evidence creating a fact dispute 

as to the severity and pervasiveness of the consistent use of racial epithets 

and derisive remarks against Black employees in the workplace over a period 

of three years.11 Id. at 626. 

_____________________ 

11 The panel summarized some of the evidence of the pervasive discriminatory 

animus as follows: 

The offensive remarks began in 1994, shortly after [plaintiff] was hired and 

had not ceased the week prior to the appellants’ resignations in May of 

1997. While working for [her employer], the [Black employees] at various 

times were subjected to: comparisons to slaves and monkeys, derisive 

remarks regarding their African heritage, patently offensive remarks 

regarding the hair of African–Americans, and conversations in which a coworker and supervisor used the word “n*gger.” The office manager also 

informed them that the vice-president did not want the African–American 

women to talk to each other. 

Id.

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 Based on the evidence adduced at the district court, this is not such a 

case where the district court ignored years of derisive comments and 

intimidating behavior to grant summary judgment in UTMB’s favor. The 

evidence presented in cases like Walker goes far beyond the conduct alleged 

here. At most, Daywalker has shown that Dr. Szeremeta made a handful of 

statements offensive to employees of color over the span of a few years. The 

insensitive statements are separated by months, and most involve instances 

where Dr. Szeremeta gave feedback or criticism about Daywalker’s 

performance. However, the course of alleged racially insensitive treatment is 

less prolonged and pervasive than other cases where we determined that the 

plaintiff failed to show that they suffered from extraordinarily pervasive 

discriminatory conduct. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 

337, 347–48 (5th Cir. 2007) (determining that no reasonable jury could find 

that the employer’s consistent comments on “ghetto children” and Black 

employees’ spending habits and family structure were sufficiently pervasive 

to create a hostile work environment). Therefore, we hold that summary 

judgment was appropriate as to Daywalker’s Title VII hostile work 

environment claim. 

 iii. Title VII Constructive Discharge Claim

 A resignation is actionable under Title VII where it constitutes a 

constructive discharge. Brown v. Kinney Show Corp., 237 F.3d 556, 566 (5th 

Cir. 2001). To prove constructive discharge, the plaintiff must demonstrate 

that their “working conditions were so intolerable that a reasonable employee 

would feel compelled to resign.” Faruki v. Parson, S.I.P., Inc., 123 F.3d 315, 

319 (5th Cir. 1997). We have accepted certain events—demotions, 

reductions in salary or responsibilities, assignment to degrading work, 

badgering or harassment by an employer to encourage resignation, and offers 

to place them on early retirement—are evidence of circumstances where a 

reasonable employee would feel compelled to resign. Brown v. Bunge Corp., 

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207 F.3d 776, 782 (5th Cir. 2000). “Constructive discharge requires a greater 

degree of harassment than that required by a hostile environment claim.” 

Kinney Shoe, 237 F.3d at 566. Based on our constructive discharge 

jurisprudence and the reasons given above, we hold that Daywalker’s 

constructive discharge claim also fails. See id. 

 Even absent our jurisprudence’s ascription of a higher degree of 

harassment to maintain a constructive discharge claim, Daywalker’s claim 

would nonetheless fail to survive summary judgment. For instance, in 

Lauderdale v. Texas Department of Criminal Justice, a female correctional 

officer alleged that her supervisor sexually harassed her over a period of four 

months while she worked in a state facility. 512 F.3d 157, 161 (5th Cir. 2007). 

The district court denied her constructive discharge claim because she did 

not present evidence that the sexual harassment was calculated to encourage 

her resignation or evidence of intentional animus to “create or perpetuate 

the intolerable conditions compelling resignation.” Id. at 167 (quoting Haley 

v. Alliance Compressor, 391 F.3d 644, 650 (5th Cir. 2004)). The panel 

determined that the plaintiff “merely reiterated the facts that constituted 

harassment” and that her “failure to [adequately] brief and to correctly 

distinguish constructive discharge from her harassment claim [meant that] 

she ha[d] failed to create a genuine issue of material fact that a reasonable 

employee would have felt compelled to resign under the same 

circumstances.” Id. 

Daywalker’s case is strikingly similar in terms of its deficiencies to the 

plaintiff’s in Lauderdale. However, she asserts in her brief that hostile work 

environment claims and constructive discharge claims are functionally 

coextensive without noting the distinctions established by our jurisprudence. 

Her analysis, however, misses the mark. For these reasons, we hold that 

summary judgment in favor of UTMB as to Daywalker’s constructive 

discharge claim was appropriate. Id. at 167. 

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 iv. Title VII Retaliation Claim 

 Daywalker’s Title VII, FMLA, and Rehabilitation Act retaliation 

claims also fail here. We evaluate each of these claims under functionally 

similar structures based on the same McDonnell Douglas burden-shifting 

framework. See, e.g., Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 469 (5th 

Cir. 2021); Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 n.3 (5th Cir. 2007). 

To survive summary judgment, a plaintiff must demonstrate that “a causal 

link exists between the protected activity” and the complained of 

discriminatory “terms, conditions, or privileges of employment” or adverse 

employment action. See Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 

165, 170 (5th Cir. 2014); Hamilton, 79 F.4th at 499–506 (eliminating the 

adverse employment action requirement from a prima facie case). Plaintiffs 

must prove their claims “according to traditional principles of but-for 

causation.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). 

 On appeal, Daywalker argues that the close proximity of time between 

her internal discrimination complaint and the August 8, 2018 letter is 

evidence of a causal link between her protected activity and UTMB’s 

discriminatory terms, conditions, and privileges of employment. She further 

asserts that Dr. Pine spoke to her as a representative of the Committee and 

faculty when he told Daywalker that she would never be an Otolaryngologist 

if she did not sign the remediation plan and that “a sizeable group in the 

faculty” thought she would not finish the program. She contends that 

because Dr. Pine made these comments during the pending investigations 

against Dr. Szeremeta and Dr. Siddiqui, “they are evidence a [sic] retaliatory 

animus of the faculty.” 

 Daywalker brings a “cat’s paw” argument, a theory of proving 

causation in discrimination cases by asserting that an individual with racially 

discriminatory animus infected the decision-making process. EEOC v. 

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Emcare, Inc., 857 F.3d 678, 684 & n.3 (5th Cir. 2017). Here, she argues that 

Dr. Pine and Dr. Szeremeta asserted influence over the rest of the faculty to 

hold her back as a third-year resident. However, merely asserting a theory is 

not enough. We have held that a plaintiff pursuing this theory of causation 

must demonstrate that individuals with discriminatory animus “had 

influence or leverage over the official decisionmaker.” Russell v. McKinney 

Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). Beyond making these 

unsubstantiated allegations, Daywalker points to no specific evidence 

showing how Dr. Szeremeta and Dr. Pine tainted the deliberative process or 

had “influence or leverage” over the entire faculty. See id.

 In fact, she does not include more than conclusory allegations that the 

evidence and allegations presented at the district court even satisfy the 

relevant standards. Therefore, we hold that summary judgment was 

appropriate to Daywalker’s Title VII retaliation claim. Nassar, 570 U.S. at 

360. 

 v. FMLA Retaliation Claim 

Daywalker also brings a retaliation claim under the FMLA. The 

FMLA prohibits retaliation against employees that exercise their FMLA 

rights. Campos v. Steves & Sons, Inc., 10 F.4th 515, 527 (5th Cir. 2021). In her 

prima facie case, a plaintiff is required to demonstrate that she was treated 

less favorably than an employee who had not requested leave under the 

FMLA or that she suffered from discriminatory conditions of employment 

because she sought protection under the FMLA. See id. A plaintiff must 

provide evidence of a causal link, and her claim is subject to the McDonnell 

Douglas burden-shifting framework. See Caldwell v. KHOU-TV, 850 F.3d 

237, 245–46 (5th Cir. 2017) (“[E]ven if the plaintiff makes out a prima facie 

case, he may not overcome a motion for summary judgment if the employer 

articulates a legitimate non-discriminatory reason for the employment action 

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at issue.”). A plaintiff may use retaliatory comments to establish causation. 

See Saketkoo, 31 F.4th at 1001. 

The reasons articulated in our analysis of her other claims 

demonstrate that Daywalker’s FMLA claim also fails under the burdenshifting framework. Caldwell, 850 F.3d at 245. But in the interest of 

completeness and because the district court addressed these claims, we 

endeavor to address her arguments as to her FMLA retaliation claim.12

Because she has not pointed to comparator evidence on her FMLA claim, we 

look to her other offered circumstantial evidence of causation. See Saketkoo, 

31 F.4th at 1001. One of her primary arguments is that a short temporal link 

of a few months existed between her putting Dr. Resto on notice of her 

disabilities and the cause for her FMLA leave in a meeting in June 2018 and 

again in October 2018. She maintains that UTMB “did not notify [her that] 

she had been demoted until she returned from FMLA leave on November 6, 

2018.” She alternatively contends that Dr. Pine’s statements made on 

August 8, 2018 that she would likely not finish the program if she did not 

agree to repeat select third-year rotations demonstrates retaliatory animus. 

Thus, she concludes that her proffered evidence in addition to the underlying 

“falsity of the remediation” plan is sufficient to establish a prima facie case. 

We disagree. The record contains numerous sources that provide that 

UTMB’s faculty decided to have Daywalker repeat certain third-year 

rotations before her request to convert her personal leave to FMLA leave was 

received. For instance, the Committee’s August 6, 2018 meeting minutes 

show that the committee discussed holding Daywalker back as a third-year 

resident after she returned from leave. The August 8, 2018 letter was 

_____________________ 

12 In her brief, Daywalker admits that the analyses for all of her retaliation claims 

are closely related and essentially advances the same arguments as to the causal link 

required to prove her prima facie case. 

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delivered on that date and stated that her leave was not considered FMLA. It 

follows that the letter explicitly stated so because the program staff did not 

know she sought FMLA leave. 

UTMB points out that an employee is required to “provide at least 

verbal notice sufficient to make the employer aware that the employee needs 

FMLA-qualifying leave, and the anticipated timing and duration of the 

leave.” Daywalker’s statement that she “thought [she] might qualify for 

FMLA” leave made to UTMB’s administration in early August thus cannot 

be interpreted as sufficient verbal notice to trigger FMLA protection predating the August 8, 2018 letter. Furthermore, Daywalker’s exact words in 

her August 1, 2018 email requesting leave stated that “I would like to inform 

the [Graduate Medical Education] Office of my official request to take a leave 

of absence.” Looking to her complaint, Daywalker averred that she engaged 

counsel to “draft[] a letter requesting FMLA [leave], among other things” 

after she received the August 8, 2018 letter. Thus, we hold that the record 

demonstrates that summary judgment in favor of UTMB was appropriate as 

to Daywalker’s FMLA retaliation claim because she did not create a fact issue 

as to the causal link between her protected activity and the alleged 

discriminatory terms, conditions, or privileges of employment. See Saketkoo, 

31 F.4th at 1001.

 vi. Rehabilitation Act Retaliation Claim 

The Rehabilitation Act prohibits discrimination based solely on 

account of a person’s disability. 29 U.S.C. § 794(a). Under the Rehabilitation 

Act, unlike Title VII, liability arises “only if the discrimination occurred 

‘solely by reason of [plaintiff’s] disability,’ not when it is simply a ‘motivating 

factor.’” See Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 585 (5th Cir. 2021) 

(quoting Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 505 (5th Cir. 

2002)). Rehabilitation Act claims are also evaluated under the McDonnell 

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Douglas burden-shifting framework. See id. Because we have held that 

Daywalker has failed to show that UTMB’s proffered non-discriminatory 

reasons for its decision were pretextual, her Rehabilitation Act claim also 

fails. See id. at 586 (denying Rehabilitation Act claim for the same reasons the 

plaintiff’s FMLA claims were rejected because she incorporated her 

arguments together and admitted they were “intimately connected”). 

Notably, Daywalker’s arguments that UTMB had notice of her disability as 

early as June 2018 do not square with the record or our caselaw. See, e.g., 

Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997); Soledad, 304 F.3d 

at 505. Throughout her brief, Daywalker offers only conclusory assertions 

that UTMB’s conduct, whether it be through Dr. Pine, Dr. Szeremeta, the 

Committee, or the faculty at large demonstrates that her disability was the 

sole reason for her alleged discrimination. Thus, we hold that summary 

judgment was appropriate as to her Rehabilitation Act claim because she has 

not provided sufficient evidence of a causal link between the alleged 

discrimination and her disability status.

III. Conclusion 

 In sum, we hold that (1) UTMB’s medical residents are students 

covered by FERPA; (2) the district court did not abuse its discretion in 

making any discovery decisions in this case and in denying Daywalker’s 

motion for sanctions; and (3) summary judgment was appropriate because 

Daywalker could not provide sufficient evidence to create a material fact 

dispute as to her Title VII, FMLA, and Rehabilitation Act claims. Thus, we 

AFFIRM. 

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