Baker v. McDonough

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TANYCIA L. BAKER,
Plaintiff,
v.
DENIS R. MCDONOUGH,
Secretary, U.S. Department of
Veterans Affairs,
Defendant.
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Case No. 3:24-cv-00379-G-BT
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Secretary Denis McDonough moves for summary judgment in
this civil action brought by Plaintiff Tanycia Baker arising out of her employment
with the Department of Veterans Affairs (VA). As explained below, the District
Judge should GRANT Defendant’s Motion for Summary Judgment (ECF No. 37),
DISMISS with prejudice Plaintiff’s sex discrimination, retaliatory hostile work
environment, and retaliation claims, and set Plaintiff’s remaining claims—if any—
for jury trial.1
1 It is unclear whether Plaintiff, who is now represented by counsel, has abandoned
the other claims asserted in her pro se complaint. See Pl.’s Resp. at 1 (ECF No. 40-
1) (explaining “[t]his case is based on sexual harassment and hostile work
environment faced by Plaintiff[.]”). See Shed v. Amazon, 2022 WL 4389716, at *2
(N.D. Tex. July 5, 2022) (Rutherford, J.) (“It is well established in this Circuit that
“[w]hen a plaintiff fails to defend a claim in response to . . . a summary judgment
motion, the claim is deemed abandoned.”), adopted by 2022 WL 4390444 (N.D.
Tex. Sept. 21, 2022) (Brown, J.). The undersigned attempted to clarify the nature
of Plaintiff’s claims and the scope of Defendant’s Motion at a hearing, see ECF No.
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Background
Baker worked as a Medical Support Assistant for the VA’s North Texas
Healthcare System in Dallas, Texas, from August 2020 until May 2023. After
taking a month of leave in early 2021, she returned to work and found herself at
odds with her co-workers, including Medical Support Assistant Team Lead Alvin
Williams. See Def.’s App. at 45–48 (ECF No. 39-1).
At the end of February, Baker emailed her supervisor Joseph Washington to
report that she felt Williams “had a personal vendetta against [her] because [she
has] really showed no interest in [Williams]” on a “personal level.” Id. at 46 (ECF
No. 39-1). Baker also complained about a fellow female employee and stated that
the workplace was a hostile work environment that made her feel uncomfortable.
Id. at 46–47. In response, Washington conducted a team meeting on “Conduct,
Interpersonal Relations, Breaks & Rotating in Clinics.” Id. at 49.
The friction continued into April, when Baker instant messaged Washington
about Williams, stating that she was tired of the “pettiness” and “[n]o matter what
[she does] it’s an issue[.]” Id. at 80. Baker also submitted a formal Report of
Contact (ROC) concerning Williams, stating that Williams made the workplace “a
very uncomfortable work environment and very hostile.” Id. at 86. Baker later
messaged Washington that she could provide a “witness” for how Williams
allegedly treated her. Id. at 84. In response to these messages, Washington
42, 	but 	counsel 	were 	unavailable, 	see 	ECF 	No. 	43. 	Accordingly, 	the
recommendation is limited to the arguments raised in the VA’s motion.
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informed Baker that he would address her concerns and directed Baker to “write
up the concerns you have/had and the interactions that occurred that has made
the environment uncomfortable with.” Id.
On June 1, Williams filed his own ROC about Baker, accusing Baker of being
dishonest about her work hours and leave. Id. at 97. Baker also complained about
Williams’s comments on her time and attendance. Id. at 98. Baker requested that
she be “transferred from under . . . Williams,” stating that he “attempt[ed] to
belittle” her and reiterating that Williams had a “personal vendetta” against her.
Id. Washington scheduled a meeting to address both employees’ concerns. Id. at
319–320 (ECF No. 39-3). At the end of the meeting, Washington thanked Baker
and Williams for attending the meeting and hoped that they had “come to common
ground with any concerns[.]” Id. at 320.
But on June 21, Baker completed a ROC that she did not want to work alone
with Williams due to an alleged incident on June 17 where Williams asked Baker
about her breasts and grabbed her behind while stating “everyone wants a piece
they just afraid [Baker] would tell.” Id. at 99 (ECF No. 39-1). And on July 6, Baker
completed a ROC that Williams told her to, “stand up and show me something” in
a “seductive manner.” Id. at 100. Baker also reported she told Williams that “he
needs to watch how he talks and touches [Baker] because he is going [too] far with
his sexual advances.” Id. Washington maintains that he did not receive either the
June 17 or the July 6 ROCs. Id., Decl. of Joseph Washington, at 3, ¶¶ 11, 14.
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On or about July 20, 2021, Baker took leave to cope with stress from the
assault and the alleged lack of support from management. Def.’s Br. at 7 (ECF No.
38). On July 28, Baker contacted a VA Equal Employment Opportunity (EEO)
counselor; and on October 1, she filed a formal EEO complaint alleging sex
discrimination and retaliation.2 Id. at 7, 13. The EEO assigned an investigator to
look into her claims. See Def.’s App. at 127–36 (ECF No. 39-2). And while the
investigator credited Baker’s allegations and concluded that “there seems to be
some 	harassment 	and 	hostile 	work 	environment 	issues 	that 	need 	[to 	be]
addressed,” the investigator found no independent evidence to substantiate the
claim or Baker’s other allegations. Id. Based on the investigator’s report, Williams
completed harassment training courses and accepted a relocation to another
department. Def.’s Br. at 10 (ECF No. 38).
Along 	with 	the 	EEO’s 	investigation, 	the 	VA 	conducted 	an 	internal
investigation into Baker’s allegations of sexual harassment. Def.’s App., Decl. of
Cynthia Lohner, at 15, ¶ 6 (ECF No. 39-1). Although the investigation could not
verify Baker’s allegations, the VA allowed Baker to transfer to another department
upon her return to work. Id. at 15, ¶ 7; see also id. at 126 (memorandum about
Baker’s request to temporarily relocate).
Still, Baker lodged reports against various supervisors, asserting that she
was experiencing many instances of retaliation and harassment. See id. at 120–25;
2 The summary judgment evidence reveals that Baker also reported her concerns
of retaliation to a union representative. See Def.’s App. at 91, 96 (ECF No. 39-1).
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id. at 215, 232, 235, 271–72 (ECF No. 39-2). At the core of Baker’s complaints, she
felt as though her supervisors and other members of the VA were “friends” with
Williams and were retaliating against her for her complaints of sexual harassment.
See Compl. at 2 (ECF No. 3) (referencing Williams’s “tenor within the VA Dallas
hospital”); Def.’s App. at 122, 123, 215 (stating that Williams is friends with certain
supervisors and management) (ECF Nos. 39-1 and 39-2).
Later, Baker voluntarily returned to her former department despite knowing
that Williams would be working in the same hospital. Id. at 361 (ECF No. 39-3).
Baker filed another EEO complaint in August 2022, based on an incident involving
Williams where he allegedly “pointed his finger at her, and made a mockery of her.”
Id. at 311. Baker also reported ongoing retaliation and harassment from other
supervisors. Id. at 310–17.
Baker exhausted her administrative appeals and then—proceeding pro se—
filed this lawsuit in federal court in February 2024. See Def.’s Br. at 13–16 (ECF
No. 38) (detailing administrative procedural history); Compl. at 4–23 (ECF No. 3)
(providing agency documents). In her original Complaint—which is her live
pleading—Baker asserts claims under Title VII, as well as the Rehabilitation Act,
the FMLA, and the FLSA. Compl. at 1 (ECF No. 3); see also Def.’s Answer at 1, ¶¶ 1,
2 (ECF No. 18) (“Defendant admits that Plaintiff asserts a cause of action under
Title 	VII, 	Rehabilitation 	Act 	of 	1973, 	29 	C.F.R. 	§ 825.126, 	and 	29 	U.S.C.
§ 215(a)(3).”). 	She 	alleges 	she 	endured 	“employment 	discrimination 	and
harassment based upon sex retaliation and/or sexual harassment” and that the VA
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“[failed] to keep [her] safe” and “[did] not tak[e] [her] concerns seriously.” Compl.
at 1 (ECF No. 3). She claims she was “sexual[ly] assaulted while being at work and
sexually harassed by my superior Team Lead Alvin William[s].” Id. Baker alleges
that the VA retaliated against her by withholding a performance award, denying
her telework request, charging her leave without pay, denying her overtime pay,
and failing to promote her to a supervisor position. Id. at 2–3. She also alleges that
the VA failed to “provide reasonable accommodation to the known physical or
mental limitations of a qualified individual with a disability.” Id. at 1.
The VA moved for summary judgment as to Baker’s Title VII claims of sex
discrimination, 	“retaliatory 	hostile 	work 	environment,” 	and 	retaliation. 	See
generally Def.’s Br. (ECF No. 38). Baker, represented by counsel, filed a three-page
response, ECF No. 40, arguing that a genuine fact issue precludes summary
judgment. The VA replied. The motion is ripe for determination.
Legal Standard
Summary judgment is proper when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A party seeking summary judgment bears the initial burden of
showing the absence of a genuine issue for trial. Duffy v. Leading Edge Prods.,
Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The movant’s burden can
be satisfied by showing that there is an absence of evidence to support the
nonmoving party’s case, which the nonmovant bears the burden of proving at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial
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burden, the nonmovant must show that summary judgment is improper. Duckett
v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992) (citation omitted). The
parties may satisfy their respective burdens “by tendering depositions, affidavits,
and other competent evidence.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992) (citing Int’l Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991) and
Fed. R. Civ. P. 56(e)).
All evidence must be viewed in the light most favorable to the party opposing
the summary judgment motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993)
(quoting Reid v. State Farm Mut. Auto. Ins., 784 F.2d 577, 578 (5th Cir. 1986)).
The Court cannot make a credibility determination based on conflicting evidence
or competing inferences. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). If there appears to be some support for disputed allegations, such that
“reasonable minds could differ as to the import of the evidence,” the Court must
deny the motion. Id. at 250.
Analysis
Baker’s Sex Discrimination Claim
To establish a prima facie case of sex discrimination under a hostile work
environment theory, Baker must show (1) she belongs to a protected class, (2) she
endured unwelcome sexual harassment; (3) the harassment was based on sex, (4)
the harassment affected a term, condition, or privilege of her employment, and (5)
the VA knew or should have known of the harassment and failed to take prompt
remedial action. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999); Woods v.
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Delta Bev. Grp., Inc., 274 F.3d 295, 298 (5th Cir. 2001). When the alleged harasser
is a supervisor with immediate or higher authority over the harassed employee, the
employee need only meet the first four elements of the test. Watts, 170 F.3d at 509.
In this case, there is no evidence that Williams, the alleged harasser, was
empowered to take tangible employment actions against Baker. See Rountree v.
FedEx Ground Package Sys. Inc., 2025 WL 2405210, at *19–20 (N.D. Tex. June
25, 2025) (McKay, J.) (distinguishing between a supervisor and a coworker),
adopted by 2025 WL 2401328 (N.D. Tex. Aug. 19, 2025) (Godbey, J.). Rather, the
uncontroverted summary judgment evidence establishes that Williams “did not
have the power to hire or fire or assign work to his team of [Medical Support
Assistants].” Def.’s App., Decl. of Joseph Washington, at 2, ¶ 8 (ECF No. 39-1). So
while he held the title of “Team Lead,” Williams was not Baker’s supervisor.
Rountree, 2025 WL 2405210, at *20 (explaining that leadership responsibilities
were not enough to elevate individual into a supervisory role). Thus to survive
summary judgment on her sex discrimination claim, Baker must point to evidence
sufficient to raise a genuine issue that the VA knew or should have known of the
harassment and failed to take prompt remedial action.
But, again, the uncontroverted summary judgment evidence shows that the
VA was unaware of any sexual harassment until Baker contacted the EEO in July
2021. Def.’s App., Decl. of Joseph Washington, at 2–3, ¶¶ 8–14 (ECF No. 39-1); id.
Decl. of Cynthia Lohner, at 14, ¶ 5. And once Baker reported sexual harassment to
the EEO, the VA promptly opened an investigation, required Williams to complete
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harassment training courses, and moved him to a different hospital. Id., Decl. of
Cynthia Lohner, at 14–15; Def.’s Br. at 10 (ECF No. 38); see also Montes-Saavedra
v. Charter Commc’ns LLC, 2018 WL 2244341, at *3 (N.D. Tex. May 16, 2018)
(McBryde, J.) (finding that employer took prompt remedial action because the
record 	reflected 	that 	the 	employer 	“investigated 	plaintiff’s 	allegations 	and
determined that the allegations . . . were unsubstantiated”). Washington provided
sworn testimony that Baker never told or otherwise communicated to him that she
was experiencing discrimination or harassment from Williams based on sex. Def.’s
App., Decl. of Joseph Washington, at 2–3, ¶¶ 9–14 (ECF No. 39-1). Rather,
Washington 	understood 	that 	Baker 	and 	Williams 	had 	“difficulty 	effectively
communicating 	with 	one 	another” 	and 	Baker 	felt 	Williams 	was 	being
“unnecessarily demanding and critical” regarding her attendance and her work
performance. Id. at 2, ¶ 9. Baker did not provide any evidence to rebut this
testimony or otherwise show that she reported sexual harassment to Washington,
or any other supervisor, the VA’s Human Resources Department, or the VA police
department before July 2021.
In an attempt to create a genuine fact issue, Baker cites three pieces of
evidence in the VA’s summary judgment appendix. Pl.’s Resp. at 2 (ECF No. 40-1).
The first is a sworn statement by her friend and colleague, Darlene Billiard-Lewis.
Def.’s App. at 51 (ECF No. 39-1). But this statement supports the VA’s position that
it was unaware of any alleged harassment based on sex. See id. Indeed, Billiard-
Lewis states that she never heard any comments that were sexual in nature;
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although she did witness Williams “harassing” Baker about being absent from
work due to illness. Id.
The second is a page from the VA’s investigator’s report, which stated that—
despite the absence of any corroborating evidence—the investigator believed
Baker’s report of an assault and that there was “some [harassment] and hostile
work 	environment 	issues” 	between 	Baker 	and 	Williams 	that 	needed 	to 	be
addressed. Id. at 130. The investigator made clear that while she believed Baker
presented information to her supervisor about feeling harassed and uncomfortable
working with Williams, “[t]his information did not have any specific details about
sexual harassment, but harassment about her work practices and leave.” Id.
(emphasis added).
Finally, Baker cites 	“Document 39-3”—an 86-page 	document—without
identifying a specific page “as evidence in support of her claims.” Pl.’s Br. at 2 (ECF
No. 40-1). Generally, it is “wholly insufficient for a party to cite to the record in the
most skeletal way, leaving the Court to conduct an open-ended review of each cited
document to determine whether it might contain evidence supporting the party’s
arguments.” Wimberley v. Beast Energy Servs., Inc., 2022 WL 658717, at *12 (S.D.
Tex. Mar. 4, 2022), adopted by 2022 WL 836427 (S.D. Tex. Mar. 21, 2022); see
also Ragas v. Tenn. Gas Pipeline, 136 F.3d 455, 458 (5th Cir. 1998) (“The party
opposing summary judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence supports . . . [her]
claim. Rule 56 does not impose upon the district court a duty to sift through the
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record 	in 	search 	of 	evidence 	to 	support 	a 	party’s 	opposition 	to 	summary
judgment.”) (cleaned up). Even still, upon the Court’s review, Document 39-3
largely contains documents from a lawsuit Baker filed against her former employer
(282–309) and notices of amendments to her EEO complaint (310–17). It does not
contain any evidence that Baker reported sexual harassment or that the VA knew
or should have known of any sexual harassment before July 2021.
In sum, Baker identified no evidence that the VA knew or should have known
of any sexual harassment and failed to take prompt remedial action. Therefore,
Baker failed to adduce evidence creating a genuine issue of material fact on an
essential element of her hostile work environment claim, and the VA is entitled to
summary judgment on this claim.
Retaliatory Hostile Work Environment
Although 	the 	VA 	interprets 	Baker’s 	Complaint 	to 	assert 	a 	claim 	for
“retaliatory hostile work environment,” the Fifth Circuit has declined to expressly
recognize such a cause of action. Minor v. Uni. of Tex. Sw. Med. Ctr., 2013 WL
3477223, at *6 (N.D. Tex. July 10, 2013) (Fish, J.) (citing Fallon v. Potter, 277 Fed.
App’x 422, 424 & n.3 (5th Cir. 2008) and Bryan v. Chertoff, 217 Fed. App’x 289,
293 (5th Cir. 2007)). “In the instances in which the cause of action was presented,
the Fifth Circuit declined to reach the issue whether it recognizes the validity of the
cause, itself, and each time found the plaintiff failed to establish a prima facie case
of retaliatory hostile work environment, even if such a claim existed.” McClure-
Soto v. Bexar Cnty., 2022 WL 180279, at *8 (W.D. Tex. Jan. 18, 2022) (collecting
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cases). “Recognizing this lack of clarity, trial courts have granted summary
judgment on a retaliatory hostile work environment cause of action because the
Fifth 	Circuit 	does 	not 	officially 	recognize 	the 	cause 	of 	action.” 	Green 	v.
McDonough, 2022 WL 17330852, at *4 (W.D. Tex. Nov. 28, 2022) (citing Minor,
2013 WL 3477223, at *11).
Even if a claim for a retaliatory hostile work environment is cognizable and
Baker attempted to assert such a claim in her Complaint, she abandoned this claim
by failing to defend it in her response to the VA’s Motion. Shed, 2022 WL 4389716,
at *2. Specifically, the VA argues Baker’s claim fails because she failed to adduce
evidence 	that 	she 	endured 	unwelcome 	harassment 	based 	on 	her 	protected
activity—reporting sexual harassment—or that the harassment was severe or
pervasive. Def.’s Br. at 24 (ECF No. 38). Baker completely fails to respond to this
argument. She points to no evidence that she experienced unwelcome harassment
because she reported sexual harassment—rather than harassment on some other
basis. See Obondi v. UT Sw. Med. Ctr., 2017 WL 2729965, at *13 (N.D. Tex. June
23, 2017) (Boyle, J.) (“The Fifth Circuit has made plain that ‘a vague complaint,
without any reference to an unlawful employment practice under Title VII, does
not 	constitute 	a 	protected 	activity.’ 	As 	a 	result, 	internal 	complaints 	of
discrimination or harassment in general are insufficient; an employee must
instead protest a specific form of discrimination unlawful under Title VII.”)
(quoting Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015)). The VA is thus
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entitled to summary judgment as to any retaliatory hostile work environment
claim.
Retaliation
To establish a prima facie case of unlawful retaliation, Baker must show (1)
she engaged in activity protected by Title VII, (2) an adverse employment action
occurred, and (3) a causal link existed between the protected activity and the
adverse employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.
1996). If Baker establishes a prima facie case of retaliation, the burden shifts to the
VA to proffer a legitimate, nonretaliatory reason for its actions. Gorman v. Verizon
Wireless Tex., LLC, 753 F.3d 165, 171 (5th Cir. 2014). The VA need only articulate
a lawful reason, regardless of its persuasiveness or credibility. Bodenheimer v. PPG
Indus., 5 F.3d 955, 958 (5th Cir. 1993).
If the VA meets this burden, Baker may still prevail by showing that the VA’s
reasons are pretext for retaliation. Id. “An employee seeking to show pretext must
rebut each discrete reason proffered by the employer.” Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (citing Jackson v. Watkins,
619 F.3d 463, 467 (5th Cir. 2010)).
Here, the Court need not consider whether Baker established her prima facie
case because she did not rebut the VA’s legitimate, nonretaliatory reasons for the
alleged adverse employment actions. See Johnson v. Bd. of Supervisors of La.
State Uni. and Mech. Coll., 90 F.4th 449, 461 (5th Cir. 2024) (declining to address
arguments related to the plaintiff’s prima facie case because “it is clear that
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[plaintiff] fails under the third step of the McDonnell Douglas burden-shifting
framework: [the employer] provided a legitimate, non-retaliatory reason . . . and
[plaintiff] advances no evidence of pretext to create a genuine dispute”).
Baker lists a litany of actions that she purports were retaliation for reporting
sexual 	harassment, 	including 	a 	“100 	percent” 	increase 	in 	her 	workload,
“aggressive” behavior directed towards her, being instructed to change her work
attire, being charged with absent without leave (AWOL) and leave without pay
(LWOP) status, auditing of her work product, withholding of her performance
award, denying her requests for FMLA leave and requests to telework, allowing her
alleged harasser to intimidate her, selecting another candidate for the Medical
Support Assistant Supervisor position, cancelling overtime, and general scrutiny.
See generally Compl. (ECF No. 3).
In response, the VA asserts many legitimate, nonretaliatory reasons for
these actions which are all supported by evidence. See Def.’s Br. at 29–32 (ECF No.
38). For example, the VA contends: any alleged increase in Baker’s workload “is
controlled by the needs of the hospital on any given day”; Baker’s request for
telework was denied by the VA’s Reasonable Accommodation Coordinator because
her request “was not based on a disability”; Baker’s FMLA request was denied
because she failed “to provide the necessary medical paperwork to support her
claims”; the VA investigated Baker’s complaints about Williams which “did not
substantiate Baker’s allegations”; Baker was charged with LWOP because “she had
exhausted all of her accrued leave”; Baker was not selected for the supervisor
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position because she “did not score at or near the highest rating for the position”;
Baker was not allowed overtime because she did not work in regular tour of duty;
and Baker was charged with AWOL because she did not return to work when her
physician’s note indicated. See id. And the VA offers sworn testimony from Baker’s
supervisors, including Joseph Washington and Cynthia Lohner, supporting these
legitimate, nonretaliatory reasons. See Def.’s App. at 1–4 (declaration of Joseph
Washington), 14–16 (declaration of Cynthia Lohner) (ECF No. 39-1).
In 	response, 	Baker 	simply 	states 	that 	she 	“maintains 	she 	faced
discrimination in the aftermath of reporting harassment by a team lead and
endured a hostile work environment.” Pl.’s Br. at 2, ¶ 4 (ECF No. 40-1). But
Plaintiff’s conclusory, unadorned statement that she was retaliated against and
experienced 	harassment 	is 	not 	enough 	to 	overcome 	the 	VA’s 	legitimate,
nonretaliatory reasons. See Martin v. Waring Investments Inc., 323 F. App’x 313,
317 (5th Cir. 2009) (per curiam) (“[The plaintiff] provides only conclusory
allegations and unsubstantiated assertions, which are not sufficient to defeat a
motion for summary judgment.”); Ragas, 136 F.3d at 458 (“A party opposing such
a summary judgment motion may not rest upon mere allegations contained in the
pleadings, but must set forth and support by summary judgment evidence specific
facts showing the existence of a genuine issue for trial.”) (emphasis added) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–57 (1986)).
Again, Baker relies on the same three pieces of evidence to support her claim
of retaliation. But none of these pieces of evidence rebut the VA’s legitimate,
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nonretaliatory reasons. Neither Billiard-Lewis’s statement that she witnessed
Williams “harassing [ ] and threatening” Baker, Def.’s App. at 51 (ECF No. 39-1),
nor the Fact Finding Report Form that concludes that “there seems to be some
harassment and hostile work environment issues that need [to be] addressed,”
Def.’s App. at 130 (ECF No. 39-2), have anything to do with the VA’s legitimate,
nonretaliatory reasons for the alleged adverse actions. And Document 39-3
actually supports the VA’s legitimate, nonretaliatory reasons. See Def.’s App. at 327
(explaining that Baker was charged with leave without pay because she exhausted
her leave; she was not awarded the supervisor position because she “ranked 6th
ou[t] of 9 people” and “had no previous VA supervisory or [l]ead experience”; and
she was not awarded overtime because she was on leave); 330 (explaining that
Baker’s request for telework was denied because she “did not complete her
part . . . so the case was eventually closed after several attempts were made . . . to
obtain the required documents from her”); 357 (explaining that Baker had been
AWOL “with no call for approximately 2 months”).
Baker’s response makes no attempt to rebut any of the VA’s legitimate,
nonretaliatory reasons or show how the VA’s purported reasons are merely
pretextual. “[F]ailure to rebut nondiscriminatory alternatives is fatal to her
employment discrimination claim.” Cutrer v. Tarrant Cnty. Workforce Dev. Bd.,
2020 WL 6504569, at *4 (N.D. Tex. Nov. 5, 2020) (O’Connor, J.) (citing Burton,
798 F.3d at 240); Dalton v. Kroger Tex. L.P., 2025 WL 1552810, at *5–6 (E.D. Tex.
May 16, 2025) (granting summary judgment for employer because plaintiff “made
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no attempt to rebut [the employer’s] legitimate reason for her termination,” but
asserted that her termination was “retaliatory in nature”). Therefore, even if Baker
could establish a prima facie retaliation case, she failed to raise a genuine dispute
of material fact in her response to the VA’s motion for summary judgment by
failing to rebut the VA’s legitimate, nonretaliatory reasons.
Recommendation
For the reasons stated, the District Judge should GRANT Defendant’s
Motion 	for 	Summary 	Judgment 	(ECF 	No. 	37) 	and 	dismiss 	Baker’s 	sex
discrimination, retaliatory hostile work environment, and retaliation claims with
prejudice.
SO RECOMMENDED.
March 2, 2026.
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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18
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
judge, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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