# 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 dist rict court’s discovery decisions, denial of her motion for sanctions, gr ant of summary judgment, and dismissal of her Title VII, Rehabilitation Act, and Family and Medical Leave Act

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† 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 Case: 22-40813 Document: 00517026797 Page: 1 Date Filed: 01/09/2024No. 22-40813

2 (“FMLA”) discrimination claims agai nst 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 th e five-year Otolaryngology residency program at the University of Te xas 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 experien ced doctors. Otolaryngology is the medical specialty involvin g the surgical and medica l management of head and neck conditions. Daywalker was the on ly 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-graduat e years. A typical post-graduate year in the program begins in July and runs through the following June. To aid residents progressing through the prog ram, 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 UT MB, Daywalker was supervised by Dr. Susan McCammon, a white woman. With in her first year in the program, she received good evaluations for he r positive energy and “ability [to] communicate well with patients and families as well as nursing staff.” However, some of her supervisors also re ported that she had failed to timely complete medical documentation and had problems with unexcused Case: 22-40813 Document: 00517026797 Page: 2 Date Filed: 01/09/2024No. 22-40813

3 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 wh ite man, as director of the program. In her end of second-y ear evaluations, Dr. Szeremeta noted that Daywalker needed to improv e her clinical documentation and interpersonal communication skills. In August 2017, Dr. Szeremeta and the assistant program director, Dr. Farr ah Siddiqui, met with Daywalker to discuss the importance of efficiency an d accuracy in completing clinical documentation. Some of her supervisor s reported that she displayed improvements after the meeting, as her fi rst third-year evaluations provided that her “[r]enewed energy and positi ve, confident attitude have improved [her] clinical efficiency/documenta tion.” 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 ro utine audit of the department’s medical documentation. The audit re vealed that Daywalker had not completed records for five patients da ting 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. Szeremet a learned that Daywalker did see the five patients, and he be came concerned that Daywalker “subsequently created notes and ‘documentation’” to cover up her omissions. He believed that Daywalke r had copied and pasted prior notes from other doctors without making any significant edits. His concerns about Case: 22-40813 Document: 00517026797 Page: 3 Date Filed: 01/09/2024No. 22-40813

4 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 he r “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, assert ing that he created a hostile work environment and discriminated against he r based on her race and sex. In her complaint, she alleged that Dr. Szeremeta made numerous disparaging comments during working hours in th e 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 ou t to Dr. Vicente Resto, the department chair, to discuss being removed from the remediation plan. Due to personal conflicts wi th Dr. Siddiqui, Dr. Resto assigned her another supervisor to “help her pass the remedia tion 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 le tter approving her request and informing her that she would return to the program as a third-year

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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.” Case: 22-40813 Document: 00517026797 Page: 4 Date Filed: 01/09/2024No. 22-40813

5 resident upon the expiration of her leav e. Dr. Harold Pine, a program faculty member, delivered the letter to Daywal ker and informed her of additional concerns expressed by faculty member s. 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, Daywalke r obtained records from the American Board of Otolaryngology wh ich 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. Szeremet a 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 progra m year. Daywalker resigned that same day. A few months later, Daywalker file d suit against UTMB and its thenpresident, Dr. Ben Raimer, in federal court. She alleged race- and genderbased discrimination claims under Ti tle VII, FMLA, and the Rehabilitation Act. During discovery, Daywalker se rved 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 Educ ation Rights Privacy Act (“FERPA”). The district court then referred the re quest to compel to the magistrate judge. The magistrate judge determin ed that FERPA applied to UTMB’s other residents because medical resi dency was “undoubt edly an academic undertaking that allows doctors to furt her their education and training in the medical field.” However, the magistra te judge allowed the disclosure of residents’ records, subject to the in dividual residents’ objections. The Case: 22-40813 Document: 00517026797 Page: 5 Date Filed: 01/09/2024No. 22-40813

6 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 directiv e, the parties submitted dispute letters addressing one of Daywalker’s requests for production. Daywalker asserted that her request for produc tion governed rele vant comparator evidence from two program residents ou tside of her protected class, residents anonymously numbered three (“Resident Three”) and sixteen (“Resident Sixteen”). UTMB argued that the re quests did not encompass Resident Three’s and Resident Sixteen’s perfor mance records. The magistrate judge received the letters after the final di scovery deadline pass ed. 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 moti on for summary judgment, the district court dismissed Daywalker’s Title VII claims because (1) she failed to provide comparator ev idence 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 insens itive remarks and microaggressions she alleged to prove a hostile work envi ronment claim. The district court then dismissed her FMLA and Rehabilitatio n Act claims because she had not offered evidence of the causal links be tween (1) her request for FMLA leave

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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. Case: 22-40813 Document: 00517026797 Page: 6 Date Filed: 01/09/2024No. 22-40813

7 and informing UTMB of her disability stat us 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 eviden ce and opposing counsel’s conduct at depositions. She alleged that an inte rnal investigator for UTMB deleted relevant notes and electronic record ings of meetings. The district court reasoned that there was no prejudice from the loss of the documents because UTMB produced the same material vi a 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 orde r granting summary judgment in favor of UTMB and Dr. Raimer and deny ing her motion for sanctions.

II. Discussion On appeal, Daywalker contests th e magistrate judge’s determination that the program’s residents were co vered under FERPA and his denials of Daywalker’s motion to compel, and the di strict court’s denial of her motion for sanctions and grant of summary judg ment 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 interpretati on are reviewed de novo.” Matter of Lopez , 897 F.3d 663, 668 (5th Cir. 2018). Daywalker avers that the magistra te judge “erroneously expanded FERPA to medical residents.” She cont ends that “nothing in the limited legislative history of FERPA[] created rights for medical resident[s].” She Case: 22-40813 Document: 00517026797 Page: 7 Date Filed: 01/09/2024No. 22-40813

8 points out that the U.S. Departmentof Education (“DOE”) has held that medical residents are not students cove red 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 inde pendent 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 magi strate 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’ mustbe 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, f iles, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educationa l agency or institution orby a person acting for such agency or institutio n.” 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 reco rds or personally identifiable information.” Id. § 1232g(a)(6). FERPA defines an educational agency or institution as any entity that rece ives funds from any DOE program. Id. § 1232g(a)(3). The magistrate judge square ly addressed this issue and reasoned that UTMB’s medical residents are st udents subject to FERPA’s protections

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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. Case: 22-40813 Document: 00517026797 Page: 8 Date Filed: 01/09/2024No. 22-40813

9 because UTMB receives DOE funding and keeps personal records of their performance as they engage in practica l educational curricu la in pursuit of receiving a specialized certification. 4 The magistrate judge noted that al though this court has previously recognized that medical residents are cl assified 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 co ncluded that “medical residents are students for purposes of FERPA” because “a medical residency is undoubtedly an academic undertaking th at allows doctors to further their education and training in the medical fi eld.” 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 informat ion 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 stat ed that her “requests for production and interrogatories seeking comparator information [were] directly relevant to her claims of discrimination” and th at “it [was] appropriate to allow the disclosure of such material.” FERPA merely imposes additi onal protection of students’ records, allowing disclosu re if made to co mply with a court order. 20 U.S.C. § 1232g(b)(2)(B). Thus , we find no revers ible error in the magistrate judge’s FERPA order.

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4 UTMB stores and reports such informat ion 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

. Case: 22-40813 Document: 00517026797 Page: 9 Date Filed: 01/09/2024No. 22-40813

10 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 “c ounsel’s eyes only.” We review a district court’s discovery deci sions 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 th e 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 orderi ng 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 evid ence. Daywalker asserts th at the magistrate judge abused his discretion in denying her request for UTMB to produce comparator documents for two other resi dents in her class, Resident Three and Resident Sixteen. 5 Daywalker contends that we should not uphold the district court’s decision because it faile d to adhere to the liberal spirit of the Federal Rules of Civil Procedure and ca used fundamental unfairness. UTMB counters that the magistrate judge reasonably construed the contested request for production and held that itcould not be read to encompass the

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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. Case: 22-40813 Document: 00517026797 Page: 10 Date Filed: 01/09/2024No. 22-40813

11 records for Residents Three and Sixteen because their class years did not match the requested years. We hold that the magistrate judg e reasonably construed the contested discovery request. The re cord shows that the district court reviewed the parties’ position letters 6 and determined that although the information Daywalker sought may have been releva nt 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 20 17 to 2018. UTMB posited that the contested information did not fall wi thin the relevant period because Residents Three and Sixteen were third- year residents from 2017 to 2018. The magistrate judge and distri ct 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 co unsel’s “obligation to make document requests that define[d] specifically what [Daywalker was] looking for” and rejected any “insinuation that this [d etermination was] somehow an effort to cut off [Daywalker] ’s ability to proceed with her case” as “flat out incorrect.” While courts have encour aged the liberal application of the Federal Rules of Civil Procedure in th e 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 admoni shed a district court for failing to order a party to produce comparator evidence, the e rror occurred from a failure to compel

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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). Case: 22-40813 Document: 00517026797 Page: 11 Date Filed: 01/09/2024No. 22-40813

12 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 comp el 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 th e relevant period of their discharges. Id. at 1158. Thus, we held that the dist rict court’s decision limiting discovery based on its determination of relevanc e constituted an ab use 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 th e plaintiffs’ freedom of speech case.”). Here, there was no request encompassi ng the information and the district court provided a reasonable justific ation for its interpretation of the contested request. At the hearing, Daywalker argued that a denial of her request would allow UTMB to evade liability “bec ause of some technical reading of” her request for production. To the contrary, the record shows that the shortcoming in Daywalker’s ca se 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 Th ree 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 re sidents from 2016 to 2017, it follows that they were not fourth-year reside nts from 2017 to 2018. For Daywalker to receive those documents, the magistra te judge would have had to re-write her document requests. On appeal, Dayw alker cites no binding Fifth Circuit precedent for the proposition that a di strict court is obligated to reform a Case: 22-40813 Document: 00517026797 Page: 12 Date Filed: 01/09/2024No. 22-40813

13 party’s discovery requests to encapsulate desired, relevant information. Thus, we hold that the magistrate ju dge and district court did not commit reversible error by denying her requ est for production, and subsequently denying her motion for reconsideration. With respect to the district co urt’s standing order, Daywalker’s arguments also fail to demonstrate an abus e of discretion. She argues that the district court unfairly prevented her fr om reviewing the produced records of the other residents by limiting access to her counsel’s eyes only. UTMB counters that Daywalker’s substantia l rights were not affected by the imposition of a standard protective orde r limiting access to confidential and sensitive information. It further argu es 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 asce rtain whether the documents contained useful comparator information, and no ne 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 th e 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 performanc e standards and scoring data to her counsel to supplement her search for comparator ev idence. Thus, we hold that the magistrate judge’s and districtcourt’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 Case: 22-40813 Document: 00517026797 Page: 13 Date Filed: 01/09/2024No. 22-40813

14 standard of review is “nec essarily very deferential.” Jenkins v. Methodist Hosps. of Dall. , 478 F.3d 255, 264 (5th Cir. 2007). Daywalker contends that the district court abused its discreti on when it denied her motion for sanctions against UTMB and its counsel for the alleged spoliation of evidence and its counsel’s alleged misconduct du ring depositions. Beyond referencing the allegations she made to the districtcourt, 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 th at the district court did not abuse its discretion in denying Daywalker’s motion for sanc tions. The district court concluded that any deleted records releva nt to her claims were cured through the production of other evidence, su ch as the Committee’s meeting minutes where the committee members discus sed 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 co urt’s determination. In line with our

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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 RO A [sic].” This ignores the Federal Rules of Appellate Procedure, Fifth Circuit rules, an d 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. Case: 22-40813 Document: 00517026797 Page: 14 Date Filed: 01/09/2024No. 22-40813

15 established principle to defer to a distri ct court’s denial to impose sanctions, we decline to reverse the districtcourt’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 Dayw alker’s claims that UTMB unlawfully retaliated against her for taking protec ted 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 ot herwise 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 “tre ated less favorably because of [her] membership in [a] protected class th an were other similarly situated

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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). Case: 22-40813 Document: 00517026797 Page: 15 Date Filed: 01/09/2024No. 22-40813

16 employees who were not members of th e 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 fa vorable treatment, an inference of racial discrimination is raised, and the burden then shifts to the employer to offer a legitimate nondiscr iminatory 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 memb ers 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 sh e did not “present evidence that any male physicians shared her research responsibilities, section assignments, historical performances, or other attrib utes that would rend er 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 Case: 22-40813 Document: 00517026797 Page: 16 Date Filed: 01/09/2024No. 22-40813

17 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 experience s “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 faile d to show how their experiences in the field of practical medicine in Ot olaryngology 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 similarl y 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 discriminati on on her demotion and discharge claims.” UTMB counters that the re cord 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 en doscopic cases.” In other words, Resident Three has a disciplin ary 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 prov en her prima facie case to raise the inference of racial discrimination. Th e district court noted that Resident Three did not have issues with the accuracy and punctuality of recording medical notes and “was in a differen t stage of the disciplinary process.” Beyond making the bare assertion thatResident Three is an appropriate comparator, Daywalker offe rs 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 Ci r. 2007) (“[A] party cannot Case: 22-40813 Document: 00517026797 Page: 17 Date Filed: 01/09/2024No. 22-40813

18 defeat summary judgment with conclu sory allegations, unsubstantiated assertions, or ‘only a scintilla of ev idence.’”). 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 historie s 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 UT MB’s non-discriminatory justification was a pretext for racial discrimination. Assuming arguendothat her Title VII claims present a prima facie case of ra cial discrimination, her claims fail because she cannot demonstrate that UTMB’s alleged non-discriminatory ground for termination—her untimel y clinical notetaking—is merely pretextual. After presenting a prima fa cie 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, summa ry judgment is appropriate unless the plaintiff demonstrates that a genuine issue of material fact exists as to whether the proffered legitimate reason s are a pretext for discrimination. Id. Even if an employer’s stated non-discri minatory justification lacks support, it does not violate Title VII if it acted on a reasonably held belief. Dickerson v.

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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 suppo rt from caselaw or the record abandoned. See Yohey v. Collins , 985 F.3d 222, 224–25 (5th Cir. 1993). Case: 22-40813 Document: 00517026797 Page: 18 Date Filed: 01/09/2024No. 22-40813

19 Metropolitan Dade County , 659 F.2d 574, 581 (5th Ci r. Unit B 1981) (“Even if [the employer] w[as] wrong in it s evaluation of the [employee’s performance], it did not violate Title VI I 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 meetin g 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 wi th 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 an y 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 re tain her as a [third-year resident] were separate acts, even if based on some of the same underlying conduct.” UTMB further contends that no “fun damentally different” rationales exist to establish pretext through inconsis tency and that Dr. Resto’s comments “do not disprove that the faculty wa s 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 th at she did extremely well in certain rotations. However, the record al so 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 oppo sition to summary judgment that she did not complete some of the patient note s in a timely manner. In a July 2018 meeting with Dr. Siddiqui and Dr. Re sto, Dr. Siddiqui informed Daywalker that she “continued to have lapses in documentation, [] was late on a call Case: 22-40813 Document: 00517026797 Page: 19 Date Filed: 01/09/2024No. 22-40813

20 note,” and that her clinical efficiencyskills lagged behind what was expected for a resident of her experience. Notably, UTMB’s program requires senior residents to exhibit higher levels of c linical competency such that select positive reviews from years one and tw o cannot be said to be an accurate determinator that Daywal ker would consistently meet expectations as she gained more responsibility. Numerou s documents in the record support UTMB’s stated justification that Dayw alker 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 rea sonable reliance on stated justification for failure-to-promote claim did not merit reversal). Thus, summary judgment was appropriate as to her Ti tle VII claims because she did not provide evidence creating a fa ct 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 sh ow that they were harassed based on their status within a protected class in such a pervasive and severe manner to affect a term, condition, orprivilege 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, orare merely offensive utterances. See Harris Case: 22-40813 Document: 00517026797 Page: 20 Date Filed: 01/09/2024No. 22-40813

21 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 “creat e 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 intimida tion 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 empl oyees in the workplace over a period of three years. 11 Id. at 626.

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11 The panel summarized some of the evidence of the pervasive discriminatory animus as follows: The offensive remarks began in 1994, sh ortly 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–American s, 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. Case: 22-40813 Document: 00517026797 Page: 21 Date Filed: 01/09/2024No. 22-40813

22 Based on the evidence adduced at the district court, this is not such a case where the district court igno red years of derisive comments and intimidating behavior to grant summa ry judgment in UTMB’s favor. The evidence presented in cases like Walker goes far beyond the conduct alleged here. At most, Daywalker has shown th at 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 alle ged racially insensitive treatment is less prolonged and pervasiv e 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 commen ts 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 Da ywalker’s Title VII hostile work environment claim.

iii. Title VII Constr uctive 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 disc harge, 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 a ccepted certain events—demotions, reductions in salary or responsib ilities, assignment to degrading work, badgering or harassment by an employer to encourage resignation, and offers to place them on early retirement—ar e evidence of circumstances where a reasonable employee would feel compelled to resign. Brown v. Bunge Corp. , Case: 22-40813 Document: 00517026797 Page: 22 Date Filed: 01/09/2024No. 22-40813

23 207 F.3d 776, 782 (5th Cir. 2000). “Con structive discharge requires a greater degree of harassment than that requir ed 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 sexua lly 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 construc tive discharge claim because she did not present evidence that the sexual harassment was calculated to encourage her resignation or evidence of intentio nal 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 harass ment claim [meant that] she ha[d] failed to create a genuine issu e 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 distinctio ns 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. Case: 22-40813 Document: 00517026797 Page: 23 Date Filed: 01/09/2024No. 22-40813

24 iv. Title VII Retaliation Claim Daywalker’s Title VII, FMLA, an d 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 judgmen t, a plaintiff must demonstrate that “a causal link exists between the protected activity” and the complained of discriminatory “terms, conditions, orprivileges 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 fr om 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 thatthe 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 sh e 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 asse rting that an individual with racially discriminatory animus infected the decision-making process. EEOC v. Case: 22-40813 Document: 00517026797 Page: 24 Date Filed: 01/09/2024No. 22-40813

25 Emcare, Inc. , 857 F.3d 678, 684 & n.3 (5th Cir. 2017). Here, she argues that Dr. Pine and Dr. Szeremeta asserted infl uence over the rest of the faculty to hold her back as a third-year resident . However, merely asse rting 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 sp ecific 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 retalia tion 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-discrimina tory reason for the employment action Case: 22-40813 Document: 00517026797 Page: 25 Date Filed: 01/09/2024No. 22-40813

26 at issue.”). A plaintiff may use retalia tory comments to establish causation. See Saketkoo , 31 F.4th at 1001. The reasons articulated in our analysis of her other claimsdemonstrate 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 comparat or evidence on her FMLA claim, we look to her other offered circumst antial 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 pu tting 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 th at 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 rota tions demonstrates retaliatory animus. Thus, she concludes that her proffered ev idence in addition to the underlying “falsity of the remediation” plan is suffi cient 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 hold ing Daywalker back as a third-year resident after she returned from le ave. The August 8, 2018 letter was

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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. Case: 22-40813 Document: 00517026797 Page: 26 Date Filed: 01/09/2024No. 22-40813

27 delivered on that date and stated thather leave was not considered FMLA. It follows that the letter explicitly stat ed so because the pr ogram 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 sh e “thought [she] might qualify for FMLA” leave made to UTMB’s administ ration in early August thus cannot be interpreted as sufficient verbal no tice to trigger FMLA protection predating the August 8, 2018 letter. Furthermore, Daywalker’s exact words in her August 1, 2018 email requesting leav e 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 le tter. Thus, we hold that the record demonstrates that summary judgment in favor of UTMB was appropriate as to Daywalker’s FMLA retaliation claim be cause she did not create a fact issue as to the causal link between her protected activity and the alleged discriminatory terms, conditio ns, or privileges of employment. See Saketkoo , 31 F.4th at 1001.

vi. Rehabilitation Act Retaliation Claim The Rehabilitation Act prohibits di scrimination based solely on account of a person’s disab ility. 29 U.S.C. § 794(a). Under the Rehabilitation Act, unlike Title VII, lia bility arises “only if th e discrimination occurred ‘solely by reason of [plainti ff’s] disability,’ not when itis 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 Case: 22-40813 Document: 00517026797 Page: 27 Date Filed: 01/09/2024No. 22-40813

28 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 reje cted 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 re cord 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, Daywal ker offers only conclusory assertions that UTMB’s conduct, whether it be through Dr. Pine, Dr. Szeremeta, the Committee, or the faculty at large demo nstrates that her disability was the sole reason for her alleged discrimina tion. 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 co urt did not abuse its discretion in making any discovery decisions in th is case and in denying Daywalker’s motion for sanctions; and (3) summa ry judgment was appropriate because Daywalker could not provide sufficient evidence to create a material fact dispute as to her Title VII, FMLA, and Rehabilitat ion Act claims. Thus, we AFFIRM

. Case: 22-40813 Document: 00517026797 Page: 28 Date Filed: 01/09/2024