4:24-cv-00032•Rodgers v. Harris County Hospital District et al
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Rheavia Rodgers, Plaintiff, v. Harris County Hospital District d/b/a Harris Health System, Yolanda Wall, Kimberly Ellison, Omar Reid, Jamie Lard, Defendants. § § § § § § § § § § Civil Action H-24-0032 MEMORANDUM AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS This case has been referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 31. Pending before the court is Defendants’ Motion for Summary Judgment. ECF No. 27. The court recommends that the Motion be GRANTED. Also pending within Defendants’ reply brief is an objection to Plaintiff’s Exhibit U (ECF No. 29-21). ECF No. 30 at 4, 9. Because the court’s conclusions and recommendation are not impacted by consideration of Exhibit U, Defendants’ objection is DENIED as MOOT. 1. Background and Procedural Posture This case involves a First Amendment retaliation claim under 42 U.S.C. § 1983 against public employees in their individual capacities. A. Factual Background From July 5, 2011, until she was terminated on March 21, 2023, Rheavia Rodgers was employed by Defendant Harris County Hospital District, doing business as Harris Health System United States District Court Southern District of Texas ENTERED February 27, 2026 Nathan Ochsner, Clerk Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 1 of 20
2 (Harris Health). ECF No. 29-1 (Rodgers Dep.) at 9:9-24, 12:24–13:4. For the last five years of her employment at Harris Health, Rodgers was an Infection Prevention (IP) Resource Nurse at Lyndon B. Johnson (LBJ) Hospital. Rodgers Dep. at 12:24–13:4. In that role, Rodgers’s responsibilities included collecting and compiling surveillance data regarding infections and outbreaks; investigating, identifying, and classifying patient events and outcomes; conducting outbreak investigations; and participating in identifying reportable infections. ECF No. 29- 25 (Rodgers Decl.) ¶ 5. From 2019 until October 2022, Rodgers reported to Yolanda Wall, the Administrative Director of IP. ECF No. 29- 4 (Wall Dep.) at 12:24–13:20; Rodgers Dep. at 14:12-14. On Rodgers’s final annual evaluation in April 2022, Wall gave her a rating of 4.01— “above expectations.” ECF No. 29-6 at 11. Midway through 2022, Wall introduced a new policy that altered Harris Health’s reporting criteria for surgical-site infections (SSI). ECF Nos. 29 at 2–3; 29-7 at 3. Rodgers was concerned about the legality of the new policy. Rodgers first shared her concerns with Wall and, eventually, Rodgers escalated those concerns within Harris Health. Id.; ECF Nos. 29- 10 at 8; 29-8. Meanwhile, in October 2022, Kimberly Ellison was hired as IP Manager and became Rodgers’s direct supervisor. ECF No. 29-5 (Ellison Dep.) at 8:8-11; Rodgers Dep. at 14:12–15:20. Rodgers objected to Ellison’s hiring. Ellison does not have a nursing degree, but she is certified in epidemiology by the Board of Epidemiology. Ellison Dep. at 61:16- 18, 62:13- 16. Rodgers believed that it was a violation of the Texas Nursing Act for Ellison, a non-nurse, to serve as her supervisor. Rodgers Dep. at 101:14-21, 102:2–103:8. Additionally, Rodgers had twice applied and been passed over for the IP Manager role—an action she perceived as retaliatory. Id. at 60:16–62:24, 63:10-24. Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 2 of 20
3 Ellison’s hiring kicked off “several months of disciplinary action” and “conversations with Ms. Rodgers . . . concerning her performance.” ECF No. 29-12 at 52. In December 2022, Ellison filed a complaint with Wall and Human Resources (HR), in which she alleged that Rodgers was creating a hostile work environment. Ellison Dep. at 100:20–101:8. Ellison explained that Rodgers repeatedly asked her about her qualifications, “challenged her openly on calls,” locked her out of the office, and told other staff members “not to complete tasks that [Ellison] had assigned . . . .” Id. at 102:7-20. Ellison had trouble “getting [Rodgers] to complete assigned tasks” within her job responsibilities, including attending meetings, completing surveillance, and completing reports for meetings. Id. at 104:3-21. As a result of Ellison’s report, Rodgers was given a “warning” and “told . . . to refrain from what she was doing[.]” Id. at 101:15-18. In January 2023, Rodgers met with Jamie Lard, the Administrative Director of Employee Relations, to discuss her concerns about Ellison’s ability to supervise her under the Texas Nursing Act. ECF No. 29-29. In the same meeting, Rodgers alleged that Ellison was retaliating against her. Id. Lard explained to Rodgers that, at that time, Rodgers had not been subject to any adverse or corrective action, so there was no basis—other than Rodgers’s own perception—for her allegations of retaliation. Id. Ellison issued the first formal corrective action against Rodgers on February 27, 2023. ECF Nos. 29 at 5; 29-16; Ellison Dep. at 112:1- 3. On March 2, 2023, “Rodgers was counseled and received written warning for several instances of insubordination, lack of job performance, lack of effective communication, and passive-aggressive behavior.” ECF No. 27-7 (Termination Report) at 1. Rodgers reviewed the report and corrective action but refused to acknowledge or otherwise respond to it. Id. Four days later, Rodgers emailed Lard and Omar Reid, the Executive Vice Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 3 of 20
4 President and Chief People Officer, to report a “new incident of retaliation.” ECF Nos. 29- 32 at 2; 29- 2 (Reid Dep.) at 59:12- 21. Rodgers told Lard and Reid that she had been “written up by a non-licensed individual and the report [was] inconsistent with what actually happened.” Reid Dep. at 59:12- 21. Reid reported that he and his team “worked to resolve [Rodgers’s] issues,” but that “[s]he continued to act up with the leadership team.” ECF No. 29-12 at 51. Reid said that he “had many conversations with [Rodgers] and it became unsustainable.” Id. From Wall’s perspective, Rodgers had “be[en] acting out[] and became very insubordinate.” Id. On March 17, 2023, Harris Health decided to terminate Rodgers. Termination Report at 2; Ellison Dep. at 116:11-13. Rodgers was informed that she had been terminated for “unsatisfactory performance” on March 21, 2023. Termination Report at 1; ECF No. 29- 32 at 1. The Termination Report narrative explains that “Rodgers has continued to demonstrate behaviors that undermine the effective communication needed for the success of the IP team,” and that she “continues to demonstrate passive-aggressive behavior towards her leadership, which further hinders effective communication and contributes to an environment where others are not treated with respect.” Termination Report at 1. The narrative provides descriptions of several incidents that led to the decision to terminate Rodgers’s employment. Id. at 1–2. At the time of Rodgers’s termination, her internal reports about the SSI-reporting policy remained under investigation. ECF No. 29 at 5. On April 18, 2023, almost a month after her termination, Rodgers filed a complaint with the Texas Board of Nursing about those same concerns. ECF No. 29-10. Approximately one week later, the Texas Board of Nursing Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 4 of 20
5 forwarded Rodgers’s complaint to the Texas Department of Health and Human Services. ECF No. 29-12 at 5. A surveyor from the Texas Department of Health and Human Services made an unannounced visit to Harris Health’s LBJ Hospital on June 14, 2023, to investigate Rodgers’s concerns. ECF No. 29-11 at 1; 29-12 at 39, 49. Over the course of the investigation, the surveyor interviewed twenty Harris Health employees, including Lard, Reid, and Wall. ECF No. 29- 12 at 42. The surveyor’s report shows that Wall, Reid, and Lard were aware of the allegations that prompted the investigation, including the fact that Rodgers filed the report. Id. at 49, 51–52; see also ECF No. 29-3 (Lard Dep.) at 77:4–79:12 (“The surveyor is interviewing me regarding Rheavia Rodgers’ termination. Apparently she filed a complaint with the Department of [Health and Human Services].”). Ellison, however, was on leave during the investigation, and she maintains that she was never made aware of Rodgers’s reports or the investigation. Ellison Dep. at 123:1-7, 127:27–128:16. As a result of the investigation, “[t]he surveyor did not find that the rules or regulations governing the hospital were violated.” ECF No. 29-12 at 39. In 2023, Harris Health allowed terminated employees to file a grievance contesting their termination. Rodgers submitted her grievance on March 27, 2023—approximately a week after her termination and a few weeks before making her complaint with the Texas Board of Nursing. ECF No. 29-32. She alleged that she was wrongfully terminated in retaliation for her complaints to HR. Id. On July 17, 2023, about one month after the Texas Health and Human Services investigation into Rodgers’s complaints, the Grievance Administrator (Administrator) announced her decision to rescind Rodgers’s termination. ECF No. 29- 16 at 2. The Administrator explained, “After reviewing the first written counseling from Feb.[] 2023[,] I did not see any plan for Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 5 of 20
6 improvement . . . . I also think some of the behaviors that were documented may have been subjective.” Id. at 1. The Administrator’s decision meant that pursuant to Harris Health Policy 6.08, Rodgers was “eligible to be reinstated to an available position for which she is qualified.” ECF No. 29- 18 at 1. The HR Department—which included Reid and Lard—was tasked with reinstating Rodgers. ECF Nos. 29 at 6–7; Reid Dep. at 91:9-18, 125:3- 5. Reid insists that HR evaluated all possible options for Rodgers’s reinstatement. Reid Dep. at 122:9-24. Lard emailed Rodgers’s resume and cover letter to a talent and acquisition professional in Harris Health’s Correctional Health Department. ECF No. 29-17; Lard Dep. at 105:2-14. In the same email, Lard stated that she would “look into the opening at Ben Taub,” which, according to Rodgers, referred to an upcoming, but not yet publicly posted, IP Resource Nurse position. Id.; Rodgers Decl. ¶ 15. Rodgers asserts that the Ben Taub position was one of “multiple IP Resource Nurse positions” open at Harris Health around the time of her reinstatement. Rodgers Decl. ¶ 15. Between July and December 2023, Rodgers asserts that Harris Health posted six different job announcements for IP Resource Nurse positions. Id. On July 24, 2023, acting through the Harris County Attorney’s Office, Harris Health offered Rodgers a role as Nurse Clinician II – Infection Prevention in its Department of Correctional Health. ECF No. 29-18 at 1. The position carried a salary of $124,238.40, which is equivalent to what Rodgers was making prior to her termination. Id.; Reid Dep. at 122:1- 3. Reid maintains that the role offered was comparable to Rodgers’s previous position. Reid Dep. at 125:22-25. But Rodgers argues that she was effectively denied reinstatement. Rodgers rejected the offered position on the basis that it constituted “a demotion” to a non-leadership position involving “direct patient care . . . in a Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 6 of 20
7 correctional facility, with a lower pay grade than” her previous position with Harris Health. ECF No. 29- 18 at 2; see also Rodgers Decl. ¶ 6 (stating Rodgers’s prior role had a pay grade of 15R and the Nurse Clinician II role had a pay grade of 14R). Rodgers asserts that the position offered would set her back in her career, as it would give her the level of responsibility that she held nine years prior. Rodgers Decl. ¶ 7. Rodgers requested to be reinstated in her pre-termination role or a similar position. ECF No. 29- 18 at 2. Harris Health did not offer to reinstate Rodgers in her pre-termination role—at least, in part—because of the concern that doing so might cause conflict in the workplace on account of Rodgers’s prior complaints about her leadership. Reid Dep. at 128:18-21, 129:16–130:6. Lard stated that Rodgers’s prior department would not have been an appropriate placement, as Rodgers “had previously indicated that she did not believe she should report to her manager,” and Rodgers told Lard that “she didn’t want to work for Kimberly Ellison.” Lard Dep. at 107:15-22, 116:7-13. Rodgers asserts, however, that she would have been willing to return to her prior role under Ellison. Rodgers Decl. ¶ 14. It does not appear that Ellison or Wall were involved in the reinstatement process. Lard Dep. at 116:3-13; Wall Dep. at 110:9- 14 (stating that Wall was not aware of any offers to reinstate Rodgers or place her “in other IP positions”). But Ellison admitted that she would not have wanted Rodgers to return to a position under her management because Rodgers was “unmanageable.” Ellison Dep. at 132:19–133:9. It is not clear to the court that Rodgers’s pre-termination position was available at the time of Rodgers’s reinstatement, as her prior job responsibilities had been redistributed amongst three employees. Ellison Dep. at 138:11-17. Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 7 of 20
8 Rodgers continued to apply for positions at Harris Health throughout 2024, but she was never hired or given the opportunity to interview. Rodgers Decl. ¶ 16. Rodgers “believe[s] that the reason for [her] continuing to be refused consideration for any position at Harris Health is continued retaliation and blacklisting from Ms. Wall, Ms. Ellison, Ms. Lard, and Mr. Reid.” Id. Ellison admitted that she would not have been willing to rehire Rodgers for a position in the IP Department at LBJ Hospital. Ellison Dep. at 134:6-8. However, Ellison denied ever learning that Rodgers had re-applied to work at Harris Health. Id. Ellison stated that she never directed others not to hire Rodgers, and she did not block Rodgers from being re-hired. Id. at 158:5- 11. Wall stated that when she receives an application from an internal candidate, it is her “general practice to ask their previous manager for information about them” and that other hiring managers tend to do the same. Wall Dep. at 72:11-24. Wall testified that she only remembers one instance of another supervisor asking her about Rodgers. Id. at 73:10-15. Reid denied taking any action to prevent Rodgers from being rehired. Reid Dep. at 178:15-24. At the time of his deposition, Reid asserted that he was unaware that Rodgers had continued to apply for jobs at Harris Health. Id. at 179:10-14. Lard, however, appears to have been aware. In late July 2024, Lard received a text message from Monica Marshall, Harris Health’s Director of Employee Relations, informing her that “Rodgers has [been] applying to several jobs . . . .” Lard Dep. at 101:3-19; ECF No. 29- 11 at 11. Rodgers also asserts that her internal HR record prevented her from being rehired. After Rodgers’s successful grievance, her internal HR record continued to show that she had been terminated for unsatisfactory performance. ECF No. 29-23 at 3; Rodgers Decl. ¶ 16. To support the assertion that such a designation left her automatically ineligible for re-hire, Rodgers Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 8 of 20
9 points to a June 2024 email in which a Harris Health employee asked Monica Marshall about Rodgers’s rehire eligibility. ECF No. 29-23. Marshall stated that “because [Rodgers] ha[d] been out of [Harris Health’s] system for at least 12 months, she [was] eligible to apply and be considered for positions.” Id. at 1. When questioned about Marshall’s statement, Reid admitted that no eligibility bars should have applied to Rodgers because her termination had been rescinded through the grievance process. Reid Dep. at 153:8-14. B. Procedural History On September 15, 2023, Rodgers sued Harris Health in the 333rd District Court of Harris County, Texas. ECF No. 1-2. Her Original Petition asserted a single claim against Harris Health for violations of the Texas Health and Safety Code. Id. On December 6, 2023, Rodgers amended her petition to add a claim for First Amendment retaliation under 42 U.S.C. § 1983, which she asserted against Harris Health, as well as Wall, Ellison, Reid, and Lard, in their individual and official capacities. ECF No. 1-3. On January 4, 2024, the named defendants removed the case to federal court on the basis of federal question jurisdiction. ECF No. 1. Rodgers then filed her Amended Complaint, from which she dismissed the claim against Harris Health for violations of the Texas Health and Safety Code. ECF No. 7. The named defendants moved to dismiss Rodgers’s Amended Complaint in its entirety for failure to state a claim, and the individual defendants asserted that they were entitled to qualified immunity. ECF No. 9. In September 2024, based upon the allegations in Rodgers’s Amended Complaint, Judge Bennett granted the Motion to Dismiss in part. ECF No. 18. Judge Bennett dismissed Rodgers’s Monell claim against Harris Health for failure to state a claim. Id. at 19. However, Judge Bennett denied the motion to dismiss the Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 9 of 20
10 First Amendment retaliation claim against the individual defendants, to the extent that the claim was based on Rodgers’s communications with the Texas Board of Nursing. Id. at 16–17. Judge Bennett granted the motion to dismiss to the extent that Rodgers’s claims were based on her pre-termination complaints with Harris Health and the complaints to the Texas Board of Nursing about Ellison’s supervisory authority. Id. at 12–13. In opposition to the motion to dismiss, Rodgers argued that her reports to the Texas Board of Nursing and her internal complaints at Harris Health were both protected speech. ECF No. 18 at 9. Judge Bennett disagreed. He determined that Rodgers’s reports to the Texas Board of Nursing regarding Harris Health’s SSI-reporting policies were protected. Id. at 12. However, Judge Bennett held that Rodgers could not base her claims on the “internal complaints she made up the chain of command at Harris Health.” Id. at 13. Additionally, Judge Bennett held that Rodgers’s complaints to the Texas Board of Nursing about Ellison’s supervisory authority did not involve a matter of public concern and were thus not protected speech. Id. The individual defendants’ qualified immunity arguments at the motion to dismiss stage focused on whether Rodgers’s speech was protected and whether it was made pursuant to her job duties. ECF No. 18 at 16. Judge Bennett rejected the individual defendants’ qualified immunity defense. Id. at 13. He found that Rodgers “plead[ed] sufficient facts showing that the Individual Defendants violated her constitutional rights by retaliating against her for exercising her First Amendment right to free speech.” Id. Judge Bennett also found that Rodgers had sufficiently pleaded that the Defendants violated clearly established law and that their conduct was objectively unreasonable. Id. at 16. Judge Bennett determined that it is “clearly established that an employee’s speech is protected, even Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 10 of 20
11 when that speech relates to her job duties, when the employee communicates outside of her chain of command and such communications are not in the course of her ordinary job responsibilities.” Id. at 15 (citing Garcetti v. Ceballos, 547 U.S. 410 (2006); Lane v. Franks, 573 U.S. 228 (2014); Anderson v. Valdez, 845 F.3d 580 (5th Cir. 2016); Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008)). Following Judge Bennett’s decision, Rodgers filed her Second Amended Complaint, which is the live pleading in this case. ECF No. 22-1. Rodgers asserts a claim for First Amendment retaliation, under 42 U.S.C. § 1983, against Wall, Ellison, Reid, and Lard (collectively, Defendants), in their individual capacities. Id. at 1. Rodgers’s claim is based on two alleged adverse actions. Id. at 9. First, Rodgers asserts that, in retaliation for her protected speech, Defendants effectively denied her reinstatement by offering her a position that she viewed as a “demotion.” Id. Second, Rodgers asserts that “Defendants acted to deny Rodgers rehire at Harris Health in continued retaliation” for her protected speech. ECF No. 29 at 1. Defendants moved for summary judgment. ECF No. 27. They assert that there is no genuine dispute as to any material fact and maintain that, even if there were, they are entitled to qualified immunity on Rodgers’s claim. Before addressing the instant motion, it is important to note that Judge Bennett’s decision on the Motion to Dismiss was premised, appropriately, on the allegations contained in Rodgers’s Amended Complaint. ECF No. 7. Because of this, the court accepted as fact that Rodgers made her protected report to the Texas Board of Nursing, informed Reid and Lard of her protected report on the same day and was subsequently fired. ECF No. 18 at 4. The court stated: Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 11 of 20
12 On January 26, 2023, Plaintiff reported her suspicions that Harris Health was violating the law to the Texas Board of Nursing . . . . That same day, Plaintiff also informed Reid and Lard that she contacted the Texas Board of Nursing . . . . On March 21, 2023, Harris Health terminated Plaintiff. Id. This version of events is undermined by the undisputed evidence now before the court. The evidence establishes a different timeline. Rodgers was terminated from Harris Health on March 21, 2023. She filed her grievance on March 27, 2023. Rodgers made her protected report to the Texas Board of Nursing on April 18, 2023. The Texas Department of Health and Human Services investigated Rodgers report on June 14, 2023, which is the date that the Defendants became aware of Rodgers protected report. Rodgers was ordered reinstated on July 17, 2023, and was offered the role of Nurse Clinician II on July 24, 2023. Rodgers does not dispute this timeline. 2. Legal Standards Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the nonmovant, ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Davenport v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact exists if a rational jury could not find for the nonmoving party based on the complete record. McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Initially, “[t]he movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 12 of 20
13 477 U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant must then “go beyond the pleadings,” using competent summary judgment evidence to cite “specific facts” showing a genuine issue for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The court reviews all evidence and reasonable inferences in the light most favorable to the nonmoving party. See Tolan v. Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). The court, however, does not have a duty “to search the record for material fact issues.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports [the] claim.”). Although the court needs to consider only the cited evidence, it is allowed to consider other materials in the summary judgment record. Fed. R. Civ. P. 56(c)(3). “[C]onclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence’” are not enough to defeat a properly supported motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). “[T]here must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). When a government official raises qualified immunity on summary judgment, the plaintiff must show that the defense does not apply. Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020). The plaintiff must meet a two-pronged test, showing “(1) that the official violated a statutory or constitutional right[] and (2) that the right was clearly established at the time of the challenged conduct.” Shaw v. Villanueva, 918 F.3d 414, 417 (5th Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 13 of 20
14 Cir. 2019) (quoting Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)). Courts “can analyze the prongs in either order or resolve the case on a single prong.” Perry v. Mendoza, 83 F.4th 313, 317 (5th Cir. 2023). 3. Rodgers’s claim fails because she has not refuted Defendants’ lawful, non-retaliatory reason for taking the alleged adverse action against her. Rodgers asserts that Defendants violated her First Amendment rights by retaliating against her. To establish a First Amendment retaliation claim in the public employment context, a plaintiff must show (1) that she suffered an adverse employment action; (2) that the plaintiff spoke as a citizen on a matter of public concern; (3) that the plaintiff’s interest in speech outweighs the government’s interest in the efficient provision of public services; and (4) that the plaintiff’s speech motivated the adverse employment action. Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001) (citation omitted). Once the plaintiff has made a prima facie showing of their claim, the defendant may rebut the plaintiff’s presumption of retaliation by showing “by a preponderance of the evidence that they would have come to the same conclusion in the absence of the protected conduct.” Beattie, 254 F.3d at 601 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). If the defendant meets their burden and rebuts the presumption, the plaintiff may refute the defendant’s rebuttal by showing that their explanation is merely pretextual. Clark v. City of Alexandria, 116 F.4th 472, 483 (5th Cir. 2024) (citing Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991)). The second and third elements of Rodgers’s claim are not contested. Judge Bennett’s earlier decision on the motion to dismiss established that Rodgers’s April 2023 report to the Texas Board of Nursing regarding Harris Health’s SSI-reporting policy Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 14 of 20
15 was protected speech. Judge Bennett found that Rodgers made the report as a citizen—not as an employee—on a matter of public concern. The parties contest the first and fourth elements, that is, whether Rodgers has shown that she suffered an adverse employment action, and whether Rodgers demonstrated that her protected report was the cause of that action. Rodgers’s claim for First Amendment retaliation stems from two alleged adverse employment actions: (1) the reinstatement offer, which Rodgers considered a “demotion,” and (2) Harris Health’s refusal to rehire Rodgers. “Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998) (quoting Pierce v. Tex. Dep’t of Crim. J., Inst. Div., 37 F.3d 1146, 1149 (5th Cir. 1994)). A transfer or change in position “can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.” Thompson v. City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014). Rodgers has raised at least a question of fact as to whether Defendants’ decision to offer her a position with a lower pay grade and reduced responsibility constituted a “demotion.” See Reid Dep. 141:25–142:4 (admitting that it was “fair to say that most Harris Health employees would view [a position two pay grades down] as a demotion”). Rodgers has also shown that she has been unable to obtain re-employment with Harris Health since her termination. Accordingly, Rodgers’s claim withstands summary judgment on the “adverse action” element. As to causation, the parties dispute whether the alleged adverse actions occurred because of Rodgers’s protected speech, as Rodgers argues, or because of the behaviors and events that initially led to her termination, as Defendants argue. To support a Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 15 of 20
16 claim for First Amendment retaliation, the plaintiff must show that their protected speech was a “substantial or motivating factor” behind the adverse action. Winn v. City of New Orleans, 620 F. App’x 270, (5th Cir. 2015). A plausible inference of causation is established if the plaintiff can prove that the defendant knew of the plaintiff’s protected report prior to taking adverse action against them. See Clark, 116 F.4th at 482 (citing Brady v. Hous. Indep. Sch. Dist., 113 F.3d 1419, 1424 (5th Cir. 1997); Mooney v. Lafayette Cnty. Sch. Dist., 538 F. App’x 447, 454–55 (5th Cir. 2013)) (finding a plausible inference of causation where plaintiff made a protected report and a retaliatory investigation began the next month). The evidence shows that Defendants were aware of Rodgers’s protected report prior to the decision to reinstate her, and thus, prior to the alleged refusal to rehire. Rodgers made her protected report to the Texas Board of Nursing on April 18, 2023. Wall, Reid, and Lard were made aware of Rodgers’s protected reports on June 14, 2023, when the Texas Department of Health and Human Services investigated Rodgers’s concerns. Rodgers was offered the reinstated position just over one month after the investigation. Based on these facts, a reasonable jury may conclude that the Defendants knew about Rodgers’s protected report when she was offered reinstatement. As further evidence of causation, Rodgers points to Reid’s deposition testimony on cross- examination by Rodgers’s counsel, Ms. Vandenberg-Rodes, in which Reid admits that Rodgers’s “complaints about her leadership” were part of the reason that Harris Health chose not to reinstate Rodgers in her pre-termination position or to explore additional positions within the IP Department. Reid Dep. 128:12– 129:3, 129:17–130:6. Defendants’ knowledge of Rodgers’s protected report and Reid’s admission that Rodgers’s complaints motivated Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 16 of 20
17 in part the decision on Rodgers’s reinstatement raise a plausible inference of causation. However, Defendants assert that they would have taken the same “adverse actions” in the absence of Rodgers’s protected conduct. Defendants assert that reinstating Rodgers in her pre- termination position would have been “untenable.” ECF No. 27 at 6. Reinstating Rodgers in her pre-termination role would have placed her back under Ellison’s supervision. Rodgers believed that Ellison’s supervisory role over her violated the Texas Nursing Act. Rodgers Dep. at 101:14-21, 102:2–103:8. Ellison did not want Rodgers back under her leadership. Ellison Dep. at 132:19–133:2. Ellison believed that Rodgers was “unmanageable” and that Rodgers had “made it clear that she did not want [Ellison] as her manager.” Id. at 133:4-9. Reid testified that it is an HR best practice “not to put people back or put situations back, if we can avoid them, in areas where there might have been conflict.” Reid Dep. at 129:24–130:1. Lard also explained that she would not have placed Rodgers back into her former department because of the pre-existing conflicts between Rodgers and her management. Lard Dep. at 107:15-22, 116:7-13. Further, the fact that Rodgers was ordered to be reinstated did not change the reasons she was originally terminated. Defendants terminated Rodgers prior to the time that she made the protected report. Defendants have established that the reasons they did not want to place Rodgers in her pre-termination position were the same reasons that drove Rodgers’s termination. Those reasons did not include the protected report. If those reasons were enough to terminate her, then they were obviously enough to refuse to reinstate her. Rodgers has not presented evidence to the contrary. The Administrator’s order to reinstate Rodgers did not absolve her of her prior disciplinary record or clear the reasons Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 17 of 20
18 that she was terminated. And the fact that Rodgers made a protected report after her termination, but prior to her reinstatement, had no bearing on the reasons that Rodgers was originally terminated. Those reasons still existed—and those reasons did not include her protected report. Therefore, Defendants’ rationale sufficiently establishes, by a preponderance of the evidence, that even in the absence of Rodgers’s protected conduct, Defendants would have taken the same “adverse actions” against Rodgers. Rodgers argues that Defendants’ rebuttal is pretextual. To show pretext, a plaintiff must offer “more than a mere refutation” of the defendant’s rationale. Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 369 (5th Cir. 2021). They must provide “substantial evidence of pretext” for each reason the defendant provides. Id. at 368–69. “A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003) (internal quotation and citation omitted). As evidence of pretext, a plaintiff may point to “similarly situated” employees who “engaged in similar conduct without being disciplined.” United Steel, Paper, & Forestry, Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Anderson, 9 F.4th 328, 333 (5th Cir. 2021). However, in doing so, the plaintiff must present evidence that those employees were truly similarly situated—e.g., that they “had disciplinary histories as bad as [the plaintiff’s own]” and a similar role or level of experience. Id.; cf. Jordan v. Ector Cnty., 516 F.3d 290, 300 (5th Cir. 2008) (finding a showing of pretext where the prior employee that held plaintiff’s role “engaged in similar conduct without being disciplined”). Rodgers has not established that Defendants’ rationale is mere pretext. Rodgers does not assert that the underlying reasons Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 18 of 20
19 for her termination were somehow cleansed by the reinstatement, and she does not attempt to explain why Defendants should have merely ignored the prior behaviors that led to her termination. Instead, Rodgers points to fifteen other employees who were reinstated by Harris Health. ECF No. 29 at 16. She argues that thirteen of those employees were “reinstated in the same department/location that they had been terminated from.” Id. Rodgers asserts that this demonstrates that it was Harris Health’s “consistent and universal practice to reinstate successful grievants to their previous position.” ECF No. 29 at 7. Defendants dispute that such a practice exists. They assert that under Harris Health Policy 6.08, Harris Health must offer a reinstated employee “an available position for which [they are] qualified.” ECF No. 29-18 at 1. Ellison’s testimony supports Defendants’ assertion. She stated that her “understand[ing] of the grievance process is if you are reinstated, you don’t go to your same position.” Ellison Dep. at 134:8-10. Even if Harris Health violated its own policy in implementing the order for Rodgers’s reinstatement, that fact would be insufficient to establish that Defendant’s lawful non- retaliatory reason was pretextual. There is no question that Defendants fired Rogers before her protected speech took place and there is no question that Defendants did not want her back. Moreover, Rodgers has not shown that the thirteen other reinstated employees engaged in similar conduct without being subject to the same adverse actions. The evidence does not show that the thirteen employees had ongoing and unresolved conflicts with their former supervisors. It does not show they had been written up for insubordination and counseled on their performance. It does not show that they had a history of challenging their immediate supervisors. And it does not show that Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 19 of 20
20 HR officials believed that such conflicts and disputes made their reinstatement into their pre-termination position “untenable.” For these reasons, Rodgers has not shown that Defendants’ rebuttal is merely pretext. Defendants are entitled to summary judgment on Rodgers’s First Amendment retaliation claim. 4. Conclusion For these reasons, the court recommends that Defendants’ Motion to Dismiss, ECF No. 27, be GRANTED. The parties have fourteen days from service of this Memorandum and Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file objections will preclude appellate review of factual findings or legal conclusions, except for plain error. See Thomas v. Arn, 474 U.S. 140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988). Signed at Houston, Texas, on February 27, 2026. ______________________________________ Peter Bray United States Magistrate Judge Case 4:24-cv-00032 Document 36 Filed 02/27/26 in TXSD Page 20 of 20
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