English v. Christus Spohn Health System Corporation

1 / 33
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CRYSTAL M. ENGLISH,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:24-CV-00133
CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION,
Defendant.
MEMORANDUM AND RECOMMEDATION
This is an employment discrimination case brought by Crystal M. English against
her former employer Christus Spohn Health System Corporation (“Spohn”). Pending is
Defendant’s Motion for Summary Judgment, Plaintiff’s Response,1 and Defendant’s
Reply. (D.E. 32, D.E. 36; D.E. 38). For the reasons set forth below, it is respectfully
recommended Defendant’s Motion for Summary Judgment be GRANTED in part and
DENIED in Part. Specifically, the undersigned RECOMMENDS the Court:
• GRANT Defendant’s Motion for Summary Judgement as to Plaintiff’s
claims for employment discrimination based on race and color, and
DISMISS these claims;
1 Plaintiff is now proceeding pro se, however, her previous lawyer filed a response (D.E. 36) before
being granted leave to withdraw (D.E. 44).
United States District Court
Southern District of Texas
ENTERED
January 30, 2026
Nathan Ochsner, Clerk
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 1 of 33

2 / 33
• GRANT Defendant’s Motion for Summary Judgment as to Plaintiff’s
claims for retaliation, and DISMISS these claims; and
• DENY Defendant’s Motion for Summary Judgment as to Plaintiff’s hostile
work environment claim.
I. JURISDICTION
Plaintiff originally filed this case in state court, but Defendant removed the case to
this Court on June 7, 2024, based on federal question jurisdiction. 28 U.S.C. § 1331. (D.E.
1, D.E. 5, D.E. 6). The case has been referred to the undersigned magistrate judge for case
management, including making recommendations on all dispositive motions in accordance
with 28 U.S.C. § 636. (D.E. 18).
II. PROCEDURAL BACKGROUND
On May 24, 2024, Plaintiff filed this action in the 347th Judicial District Court of
Nueces County, Texas. (D.E. 1-1, p. 4). On June 7, 2024, Defendant removed the case to
this Court based on federal question jurisdiction. (D.E. 1). Defendant filed an Answer in
this Court after being granted an extension. (D.E. 8, D.E. 10). The Court entered a
scheduling order on September 12, 2024 (D.E. 13) and referred the case to the undersigned
on June 12, 2025 (D.E. 18). On June 8, 2025, a month after the pleading deadline, Plaintiff
filed an opposed motion to amend (D.E. 17). The undersigned recently granted the motion
to amend, largely because the motion to amend did not add new causes of action but rather
provided additional facts of which Defendant became aware prior to taking Plaintiff’s
deposition or filing its motion for summary judgment. (D.E. 70). On August 1, 2025,
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 2 of 33

3 / 33
Defendant filed the instant motion for summary judgment which addresses Plaintiff’s
claims in her Second Amended Complaint. (D.E. 32). Plaintiff’s live pleading is her Second
Amended Complaint. (D.E. 71).
III. PLAINTIFF’S ALLEGATIONS2 AND CLAIMS
A. Factual Background
Plaintiff is a black female and former employee of Spohn. Spohn hired Plaintiff on
about August 5, 2019, to work as a Medical Staff Coordinator. Plaintiff’s responsibilities
2 Plaintiff’s Second Amended Complaint (D.E. 71) sets forth her allegations in a relatively simple,
straight forward, statement of the facts. However, Plaintiff’s Response to the summary judgment
is not well drafted. Plaintiff’s factual allegations are repeated, and the chronology of events is often
unclear. Further, some of the facts alleged in the complaint are not referenced in Plaintiff’s
response. For example, Plaintiff alleges in her Amended Complaint that Norma Salinas slammed
Plaintiff’s office door after uttering “pinche mayate” which Plaintiff alleges translates to “f…king
n…ger.” (D.E. 71, p. 6). Plaintiff’s Response does not mention this or cite to competent summary
judgment evidence about the incident. The Court has found some reference to the incident in
Plaintiff’s exhibits, where Plaintiff reported the incident to management shortly before being
terminated. (D.E. 36-9, p. 3). Additionally, Plaintiff alleges Jane Lozano, in February 2021, “rolled
her eyes at Plaintiff and said, ‘you people make me sick.’” (D.E. 71, p. 6). However, Plaintiff’s
Response does not reference the incident or cite to the summary judgment evidence. The
undersigned has done his best to read and consider Plaintiff’s summary judgment evidence, but
Plaintiff has not made this task easy on the Court. On occasion, the undersigned has cited to
Plaintiff’s Second Amended Complaint because Plaintiff has not cited or presented summary
judgment evidence on the matter. The undersigned is aware Plaintiff’s complaint is not competent
summary judgment evidence. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). The
undersigned separately ordered Plaintiff to submit the entire transcript of her deposition to make
sure the Court has an accurate account of Plaintiff’s summary judgment evidence. Plaintiff
complied and the transcript of Plaintiff’s deposition is now included in the attachments to docket
entry 74. (D.E. 74-1; D.E. 74-2). The Court does not routinely direct parties to submit additional
summary judgment evidence. However, in this instance, Plaintiff’s response was filed by her
previous lawyer, and she is now appearing pro se. Therefore, the undersigned has taken measures
to ensure Plaintiff has had a full opportunity to present her summary judgment evidence.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 3 of 33

4 / 33
included coordinating and managing credentialing files for hospital medical providers.3
Plaintiff had various other responsibilities including guiding medical staff with the
credentialing process, scheduling and hosting department meetings, managing mailing
lists, writing board approval letters, creating facility access badges, storing staff
credentialing records and other administrative responsibilities. (D.E. 32-2, pp. 1-4).
Plaintiff alleges she was treated differently from other employees from the early
days of her employment with Spohn. For example, she alleges on August 8, 2019, coworker
Claire Araiza “stood in the doorway and let out a loud shrill.” (D.E. 36-1, p. 1). Plaintiff
alleges Ms. Araiza whistled at Plaintiff on a nearly daily basis for a period of years between
August 2019 and July 2022 and also barked at her. (D.E. 36-1, p. 1). Plaintiff alleges she
complained to a manager, Katie Stone, in October 2019, but corrective action was not
taken. (D.E. 36-1, p. 1). Plaintiff complained again to Stone in January 2022, but again no
corrective action was taken. (D.E. 36-1, p. 1). In February 2021, and on prior unidentified
dates, Plaintiff reported Araiza’s conduct to Spohn Interim Medical Staff Director Tammy
Gerberding. (D.E. 36-1, p. 1). Ms. Gerberding told Plaintiff Araiza was just trying to get
under Plaintiff’s skin, Plaintiff should consider responding in kind, and that Gerberding
did not want to get involved. (D.E. 36-1, p. 1). On at least one occasion, the whistling by
3 Defendant’s Motion for Summary Judgment provides a detailed description of Plaintiff’s job
responsibilities which is consistent with Plaintiff’s description and is supported by competent
summary judgment evidence. (D.E. 32, pp. 2-3).
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 4 of 33

5 / 33
Araiza occurred in front of a witness, that is, Anna Tucker at the Medical Staffing Office.
(D.E. 36-1, p. 2).
Plaintiff also alleges manager Gloria Alvarado instructed Plaintiff to leave work an
hour before the end of her shift without explanation.4 (D.E. 36-1, p. 2). Ms. Alvarado told
Plaintiff, “I don’t want you here.” (D.E. 36-1, p. 1). While Plaintiff’s summary judgment
evidence is not a model of clarity as to the relevant factual circumstances, it appears
Plaintiff was written up “for not being a team player and not assisting others at their work
posts.” (D.E. 36-1, p. 2). Plaintiff received a “Correction Action Form” on September 30,
2020. (D.E. 36-1, p. 2). Plaintiff avers the form was blank, but she was forced to sign it
anyway when she was told if she did not sign the form, things would get worse for her.
(D.E. 74-2, p. 45). During Ms. Stone’s review with Plaintiff of the Correction Action Form,
Ms. Stone asked Plaintiff if she was ready to “jump ship yet.” (D.E. 36-1, p. 3).
Beginning on May 11, 2022, Plaintiff began receiving counseling or corrections
concerning performance deficiencies in her communication, time management, teamwork
and accuracy. (D.E. 36-1, p. 1). Plaintiff had never before received similar negative
counseling. (D.E. 36-1, p. 1). After being furloughed between April 2020 and July 2020
due to the COVID crisis, Plaintiff returned to work and was assigned to a different
department under a different manager, Reyann Ali. (D.E. 36-1, p. 1).
4 Plaintiff’s Second Amended Complaint alleges this occurred in September 2020 (D.E. 71);
however, her summary judgment evidence does not include a date.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 5 of 33

6 / 33
Plaintiff alleges on March 29, 2022, supervisor Regina Munoz told Plaintiff she
should work in another department where she would be appreciated indicating to Plaintiff
her being black was a problem. (D.E. 74-2, pp. 9-10). Also, Emily Lopez, an HR director,
told Plaintiff she needed to change her voice and appearance because Plaintiff was too
excitable and to make others more comfortable. (D.E. 71, p. 7; D.E. 74-2, p. 10). Plaintiff
testified Ms. Lopez did not want Plaintiff to sound black or look black. (D.E. 74-2, p. 10).
Having previously been suspended, Plaintiff testified Ms. Lopez made this comment after
Plaintiff’s suspension. (D.E. 74-2, p. 11).
Less than two months later, on May 13, 2022, Plaintiff alleges she was falsely
accused by Regina Munoz of yelling at her. Plaintiff maintains a recording of the
conversation demonstrates Plaintiff did not yell.
Plaintiff alleges she was frequently blamed for problems or mistakes at work that
were not committed by her. Plaintiff cites one instance when a Zoom meeting Plaintiff was
responsible for failed to function properly. Plaintiff testified computer records
demonstrated Plaintiff was not responsible for the error, but no one investigated. (D.E. 74-
1, p. 140).
Plaintiff alleges she was treated differently than her Hispanic co-workers in regard
to the type and amount of assignments she received. For example, Plaintiff alleges she was
assigned the additional duty of researching 367 physicians’ files but was the only Medical
Staff Coordinator to perform this task and while Plaintiff was often directed to assist other
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 6 of 33

7 / 33
employees, Plaintiff did not receive assistance with her extra duty. (D.E. 71, p. 7). The
allegation about this extra duty is not referenced in Plaintiff’s Response.
On May 11, 2022, Plaintiff received a Performance Improvement Plan. (D.E. 74-2,
p. 48). Plaintiff testified she debunked each of the deficiencies. (D.E. 74-2, p. 49).
Plaintiff testified she reported racial slurs that were made against her. (D.E. 74-2, p.
17). Plaintiff testified that while she may not have reported all incidents to HR when they
occurred, she did report the incidents to her “direct reports.” (D.E. 74-2, p. 16). Plaintiff
alleges she was subjected to retaliation in the form of being suspended and terminated from
her employment with Defendant. (D.E. 74-2, p. 18). Plaintiff also testified she was
subjected to retaliation when she received a negative performance evaluation. (D.E. 74-2,
p. 23).
Plaintiff alleges she was forced to work outside normal work hours. 5 On one such
occasion, on May 24, 2022, Plaintiff’s 15-year-old son observed a co-worker of Plaintiff
having sex with a doctor at work, on Defendant’s property. Plaintiff reported the incident
and believes her reporting the incident was among the reasons she was retaliated against.
(D.E. 71, p. 8; D.E. 74-1, pp. 130-135).
5 During May 2022, Plaintiff alleges she was “forced to work outside normal work hours and bring
her children to work.” (D.E. 71, p. 8). Plaintiff alleges on this day, her co-worker was supposed to
be working, but rather than working, the co-worker was having sex with a doctor on the Spohn
premises, the incident was observed by Plaintiff’s 15-year-old son, and Plaintiff reported the
incident. (D.E. 71, p. 8). However, Plaintiff does not reference the incident in her Response.
Defendant references the incident in its motion (D.E. 32, pp 8-9; D.E. 33-1), but Plaintiff fails to
present any reason as to why that issue is related to the instant employment discrimination case.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 7 of 33

8 / 33
On July 26, 2022, Plaintiff was suspended for five days and placed on a final
warning. (D.E. 71, pp. 8-9).6
On September 15, 2022, Plaintiff reported by email to Lopez that a co-worker had
called Plaintiff a racial slur. (D.E. 36-9).
On October 5, 2022, Plaintiff was terminated. (D.E. 71, p. 9).
Plaintiff alleges her poor performance, if any, was due to her receiving additional
duties outside her area of responsibility or job description and that she did not receive any
training for the additional responsibilities. (D.E. 36-1, p. 3).
B. Plaintiff’s Claims
On October 21, 2022, Plaintiff filed a written charge of discrimination with the U.S.
Equal Employment Opportunity Commission (EEOC) based on race and retaliation. (D.E.
71, p. 3). On January 30, 2024, the EEOC sent Plaintiff a Determination and Notice of
Rights. (D.E. 71, p. 3). On March 28, 2024, Plaintiff requested the right to sue from the
Texas Workforce Commission Civil Rights Division (TWCCRD). (D.E. 71, p. 3). In
Plaintiff’s Second Amended Complaint she alleges she was subjected to race
discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act
6Plaintiff references the suspension in her amended complaint, but her Response does not provide
any information about the suspension. However, the Defendant has presented evidence concerning
the circumstances of Plaintiff’s adverse employment actions. Those will be discussed below.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 8 of 33

9 / 33
of 1964, 42 U.S.C. § 2000e et seq. In paragraphs V-XIII, Plaintiff alleges the following
nine causes of action:
1. Discrimination based on race in connection with an adverse employment action
(D.E. 71, pp. 9-10);
2. Discrimination based on color in connection with an adverse employment action
(D.E. 71, pp. 9-10);
3. Retaliation based on Plaintiff engaging in protected activity or conduct involving
a discriminatory practice (D.E. 71, p. 10):
4. Harassment based on race (D.E. 71, pp. 10-11);
5. Adverse action based on protected activity or conduct involving a discriminatory
practice (D.E. 71, p. 11);
6. Hostile work environment based on Plaintiff’s race (D.E. 71, pp. 11-12);
7. Plaintiff was denied her right to make and enforce contracts and full and equal
benefits as contemplated under 42 U.S.C. § 1981 (D.E. 71, p. 12);
8. Retaliation based on protected activity (D.E. 71, p. 12-13); and
9. Hostile work environment based on race in violation of 42 U.S.C. § 1981 (D.E.
71, pp. 12-13).
Plaintiff does not separately provide a factual explanation for any of her causes of
action. Rather, for each cause of action, she refers generally to the first 31 paragraphs of
her Second Amended Complaint. Plaintiff’s manner of presenting her claims in nine
separate causes of action is unnecessarily repetitious and confusing. The undersigned finds
Plaintiff’s complaint alleges Plaintiff is a black female who was subjected to employment
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 9 of 33

10 / 33
discrimination based on race and color. The discrimination is alleged to have been
Plaintiff’s termination (an adverse employment action) and her suspension, harassment or
a hostile work environment and retaliation for reporting racial discrimination. Plaintiff’s
employment discrimination claims arise under the provisions of Title VII but also under
Section 1981 which prohibits race discrimination in contractual relationships.
IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A. Summary of Argument and Statement of Facts
Defendant maintains summary judgment should be granted in its favor because
Plaintiff’s employment was terminated due to her repeated errors, lack of preparation for
meetings, unprofessional communications towards a coworker and managers, and
persistent attendance problems, all in violation of Defendant’s employment policies.
Defendant argues the undisputed material facts establish Plaintiff was not subjected to
discrimination based on race or color and there was no retaliation or actionable hostile
work environment. (D.E. 31, p. 1).
Defendant has submitted the following summary judgment evidence:
• Declaration of Emily Lopez with additional sub-attachments of Defendant’s
employment policies, written admonishments, counseling, and warnings to
Plaintiff, Plaintiff’s notice of termination, and other documentation
concerning Plaintiff’s employment. (D.E. 32-2);
• Declaration of Katie Stone (D.E. 32-3);
• Declaration of Regina Munoz (D.E. 32-4);
• Declaration of Reyaan Ali (D.E. 32-5);
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 10 of 33

11 / 33
• Declaration of Tammy Gerberding (D.E. 32-6);
• Declaration of Catherine Webb (D.E. 32-7);
• Declaration of Kathy Acuna with additional attachments, including her HR
investigation notes, and information concerning the termination of another
employee. (D.E. 32-8);
• Excerpts from Plaintiff’s deposition (D.E. 32-9); and
• Documents filed under seal related to Defendant’s discipline of Defendant’s
co-workers and other matters. (D.E. 33; D.E. 33-1; D.E. 33-2).
Defendant’s summary judgment evidence includes the following evidence related
to Plaintiff’s job performance and other relevant facts:
• Emily Stone was a Credentialing Coordinator for Defendant from 2002 to
July 2020. From July 2020 until her resignation on December 31, 2021, Stone
was the manager of Medical Staff Services for Defendant. (D.E. 32-3, ¶ 1).
Stone noted Plaintiff’s repeated tardiness, excessive personal-cell phone use
during work hours and incomplete credentialing tasks from the start of
Plaintiff’s employment. Plaintiff frequently blamed childcare closures, but
on at least one occasion, Stone called Plaintiff’s childcare facility and found
it to be open. (D.E. 32-3, ¶ 3).
• Despite being counseled by Stone, Plaintiff continued to use her cell phone
during work hours and used her work computer to watch shows. When
confronted, Plaintiff deflected responsibility, blamed others or claimed
inadequate training, despite receiving proper training. (D.E. 32-3, ¶ 4).
• On September 30, 2020, H.R. Director Lopez and Stone issued Plaintiff an
Associate Corrective Action Form (“CAF”). The CAF documented
Plaintiff’s violations of Defendant’s policies regarding attendance, cell
phone usage and behavioral policies. (D.E. 32-3, ¶ 7).
• Despite counseling and additional training, Plaintiff continued to miss
credentialing deadlines; closed her office door and ignored colleagues; left
data fields blank or entered incorrect information in Meditech and used her
phone during work hours. (D.E. 32-3, ¶ 9).
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 11 of 33

12 / 33
• Stone resigned on December 31, 2021, in part because of ongoing challenges
managing Plaintiff. (D.E. 32-3, ¶ 10).
• Regina Munoz was Plaintiff’s immediate supervisor from late 2021 until
Munoz’s resignation on August 29, 2022. (D.E. 32-4, ¶ 2). Munoz observed
Plaintiff’s performance decline sharply in early 2022, noting Plaintiff arrived
late, left early and made numerous data entry errors which delayed physician
billing. Munoz had to triple check Plaintiff’s work. When Munoz attempted
to counsel Plaintiff, Plaintiff became hostile. (D.E. 32-4, ¶ 4).
• On May 11, 2022, Munoz and H.R. Director Lopez presented Plaintiff with
a Personal Improvement Plan (“PIP”). The PIP was revised on May 13, 2022,
after considering Plaintiff’s input. The revised PIP contained four core
unrefuted deficiencies of Plaintiff: (1) repeated data entry errors, (2) delayed
preparation for meetings, (3) unprofessional tone, and (4) persistent
attendance problems. During the revised PIP meeting, Plaintiff refused to
sign the PIP, became argumentative, began recording the conversation
without Munoz’s consent, and followed Munoz to Munoz’s office while
continuing to record the interaction all in a way Munoz found intimidating.
(D.E. 32-4, ¶¶ 6-7).
• During follow-up counseling sessions between Plaintiff and Munoz, Plaintiff
deflected responsibility and claimed her work had been sabotaged by a co-
worker. However, the password protected login system demonstrated the
errors were made under Plaintiff’s credentials. Plaintiff was unable to
present documents of any sabotage, claiming she had shredded the
documents. (D.E. 32-4, ¶ 9).
• Plaintiff’s poor performance continued after receiving the PIP. (D.E. 32-4, ¶
10).
• In July 2022, in connection with a survey, Munoz assigned Plaintiff a project
to verify the credentialing status of 367 radiology providers. The task took
Plaintiff substantially longer than expected and Plaintiff required multiple
reminders to complete the assignment. (D.E. 32-4, ¶ 11).
• Even though Plaintiff was provided step-by-step instructions, Plaintiff failed
to update credentialing and billing systems consistently and omitted
necessary information. (D.E. 32-4, ¶¶ 12-13).
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 12 of 33

13 / 33
• Plaintiff worked on a team that collaborated closely; however, Plaintiff
routinely isolated herself, by closing her door and covering her window.
When approached for assistance or corrections, Plaintiff often responded
with a raised voice or refused to engage unless a representative from HR was
present. (D.E. 32-4, ¶ 14).
• Reyaan Ali is the current Chief Operating Officer for Defendant. During the
time Plaintiff was employed by Defendant, Ali was the Executive Director
of Patient Access and Logistics for Defendant. In 2020, when Plaintiff
worked as a COVID screener, Ali observed Plaintiff frequently leave her post
without coverage and wander off to use her cell phone and she was difficult
to locate. Ali verbally counseled Plaintiff to notify someone and arrange for
coverage before leaving her post. (D.E. 32-5).
• Tammy Gerberding worked for Defendant from 2007 until separating in
March 2023 for health reasons. Gerberding, a registered nurse, held a variety
of positions during her employment with Defendant. On January 2, 2021,
Gerberding was promoted to Regional Director of Medical Staff Services,
overseeing six Defendant hospitals. She actively served as Director until
April 29, 2022. Thereafter, Gerberding was on periodic medical leave. From
January 2021 to April 2022, Plaintiff reported directly to Gerberding. During
this period, Plaintiff frequently sent Gerberding text messages, often just
before her shift, reporting that Plaintiff would be late or absent due to
childcare disruptions, elevated blood pressure or vehicle issues. On July 28,
2021, Gerberding heard Jane Lozano tell Plaintiff, “You make me sick.”
Gerberding reported the incident to HR and Lozano was disciplined. (D.E.
32-6).
• Catherine Webb was a contractor assigned to Defendant who held the
position of Regional Director of Quality, Risk Management, and Infection
Control from March 28 to May 2022. From May 2022 to September 2022,
Webb, Plaintiff and the other Medical Staff Coordinators reported to Webb.
Plaintiff was already on a PIP plan when Webb assumed responsibility for
Medical Staff Services. Webb participated in Plaintiff’s counseling. Plaintiff
had performance deficiencies which were not disputed by Plaintiff, including
inaccurate data entry, late meeting preparation, untimely minutes, and poor
attendance. Plaintiff’s performance did not improve during Webb’s tenure.
For the period of January 1, 2022, through June 30, 2022, Webb rated
Plaintiff as “At Risk” on Plaintiff’s performance evaluation. (D.E. 32-7, ¶ 4).
“The evaluation cited ongoing credentialing errors, missed deadlines for
meeting agendas and minutes, and complaints from other department leaders
that Plaintiff arrived unprepared for meetings. The evaluation also cited
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 13 of 33

14 / 33
multiple instances where Plaintiff was counseled for her tone and volume,
explaining that her interactions created anxiety among team members,
disrupted collaboration, and caused colleagues to recheck her work due to
frequent quality issues— ultimately increasing the department’s workload.”
(D.E. 32-7, ¶¶ 1-4).
• Webb issued Plaintiff a final written warning on July 20, 2022, for continued
performance deficiencies and suspended Plaintiff without pay for three days,
consistent with Defendant’s Progressive Discipline Policy. The Corrective
Action Form identified seven areas of concern, including Plaintiff’s
aggressive and loud tone toward Webb, repeated credentialing and spelling
errors, incomplete appointment files, and inadequate PTO notice. The form
also referenced complaints by physicians against Plaintiff. Because of
Plaintiff’s continued errors, unprofessional conduct, and failure to meet her
PIP goals, Webb recommended Plaintiff’s termination on September 15,
2022. The termination decision was approved by HR and Plaintiff was
terminated on October 5, 2022. (D.E. 32-7, ¶¶ 5-12).
• Kathy Acuna was the Vice President of Human Resources for Defendant
from January 2021 until June 2024. In this position, Acuna was responsible
for employee related investigations and other HR related matters. Acuna was
aware of Plaintiff’s performance issues and Plaintiff’s performance
improvement plan. Prior to Plaintiff serving a three-day suspension in July
2022, Acuna received an email from Plaintiff. Acuna met with Plaintiff in
July 2022 and considered Plaintiff’s complaints regarding her performance
plan and other matters. Acuna investigated and determined that, after
considering Plaintiff’s input, four of Plaintiff’s performance deficiencies
were substantiated and that the counseling and discipline of Plaintiff was
warranted. (D.E. 32-8).
B. Defendant’s Summary Judgment Arguments
1. Plaintiff’s race and color discrimination claims under Title VII and
Section 1981
Defendant argues Plaintiff does not meet her prima facia burden because she was
not qualified for her position. Defendant maintains the evidence establishes Plaintiff was
counseled several times for unsatisfactory performance, was placed on a PIP, suspended,
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 14 of 33

15 / 33
and ultimately issued a final warning. (D.E. 32, p. 13). Despite being counseled, Plaintiff
continued to commit critical errors and failed to meet the basic expectations of her
employment. (D.E. 32, p. 13). Defendant also argues Plaintiff lacks comparator evidence
showing similarly situated non-black employees were treated more favorably. Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (requiring strict comparator
evidence: employees must have engaged in similar misconduct and share comparable roles,
supervisors, and disciplinary histories without being terminated).
Defendant further argues that even if the Court were to find Plaintiff has established
a prima facie case of discrimination, Defendant has articulated a legitimate
nondiscriminatory basis for her termination. (D.E. 32, p. 14). Thus, the burden shifts back
to Plaintiff to produce substantial evidence Defendant’s proffered legitimate,
nondiscriminatory reasons were a pretext for discrimination. (D.E. 32, p. 14); Watkins v.
Tregre, 997 F.3d 275, 282 (5th Cir. 2021). Defendant argues Plaintiff has done nothing
to show Defendant’s treatment of Plaintiff was false or based on race or color. At most,
Plaintiff has expressed disagreement with Defendant’s decisions, but she has submitted no
evidence those decisions were based on race or color discrimination.
2. Plaintiff’s hostile work environment claims under Title VII and
Section 1981
Defendant argues there was no harassment of Plaintiff sufficiently severe or
pervasive to alter the conditions of her employment or create an abusive working
environment. (D.E. 32, pp. 15-16). Regarding Araiza’s whistling and barking at Plaintiff,
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 15 of 33

16 / 33
Defendant argues the incidents were not sufficiently severe to interfere with Plaintiff’s
work performance. Plaintiff’s other complaints amount to single incidents that do not
amount to pervasive harassment and there is no evidence that any of Plaintiff’s alleged
harassment was based on race or color. Additionally, Defendant argues Plaintiff cannot
demonstrate Defendant knew or should have known of racial harassment or failed to take
prompt remedial action. For the complaints made known to Defendant, Defendant
maintains it promptly investigated and took appropriate action. For example, the racial slur
allegedly used by Salinas against Plaintiff was not substantiated, but Defendant determined
Salinas exhibited unprofessional conduct which led to Salinas being counseled. (D.E. 32-
2, ¶¶ 22, 23, 25).
3. Plaintiff’s retaliation claims under Title VII and Section 1981
Plaintiff alleges she was suspended and terminated due to Plaintiff complaining
about the alleged racial slur and a co-worker’s sexual encounter with a physician.
Defendant submits that its evidence indicates only Webb was involved in the decision to
suspend Plaintiff. (D.E. 32, p. 21; D.E. 32-7, ¶ 5). Defendant further submits that only Diaz,
Webb, and Dr. Muder Alkrisat, Associate Vice President, were involved in the decision to
terminate Plaintiff. (D.E. 32, p. 21; D.E. 32-7, ¶ 11; D.E. 32-2, ¶ 28). Defendant argues the
people about which Plaintiff complained or reported were not involved in the relevant
employment decisions relating to Plaintiff. Thus, Defendant argues Plaintiff has not shown
any causal connection between her complaints and any adverse action. Finally, Defendant
argues it has established non-discriminatory reasons for the adverse employment decisions
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 16 of 33

17 / 33
against Plaintiff and even if Plaintiff presented a prima facia claim of retaliation, she has
not rebutted the evidence based non-retaliatory reason for its employment actions. (D.E.
32, pp. 22-23).
V. PLAINTIFF’S RESPONSE
The first eleven pages of Plaintiff’s Response are comprised of objections to
Defendant’s summary judgment evidence. (D.E. 36, pp. 1-11). Plaintiff objects to portions
of almost all of Defendant’s declarations being conclusory. Plaintiff also objects to
portions of the declarations as being hearsay, improper opinion testimony or being
otherwise inadmissible. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (Mere
conclusory allegations are not competent summary judgment evidence and thus are
insufficient to defeat a motion for summary judgment); Forsyth v. Barr, 19 F.3d 1527,
1533 (5th Cir. 1994) (Unsubstantiated assertions, improbable inferences, and unsupported
speculation are not competent summary judgment evidence). Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986) (Content of proffered summary judgment evidence must be
admissible).
The undersigned agrees that some of the information in the declarations may be
inadmissible or otherwise objectionable. For example, the declaration of Ms. Lopez that
Defendant makes all its employment decisions without regard to race or color, (D.E. 32-2,
p. 1), is overly broad and conclusory. While Ms. Lopez could very well testify about the
employment policies and practices of Defendant, self-serving, sweeping and conclusory
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 17 of 33

18 / 33
statements regarding liability would probably be excluded by the Court and have not been
considered by the undersigned.
Additionally, some of the affidavits may contain information that is either hearsay
or not based on personal knowledge, such as Ms. Lopez’s declaration regarding her
summary or restatement of Plaintiff’s misconduct or poor work performance that were
observed by other employees. However, much of that information is supported by
declarations from witnesses who observed the relevant conduct and the context of the
declarations indicates most of the testimony in Defendant’s witnesses’ declarations is based
on personal knowledge. Additionally, some testimony may not be submitted or offered for
the truth of the matter asserted, but rather to show that Plaintiff’s supervisors had non-
discriminatory or non-retaliatory reasons for their decisions regarding Plaintiff’s
employment. For example, Ms. Stone averred in response to one of Plaintiff’s frequent
absences purportedly due to lack of childcare, she called Plaintiff’s childcare facility and
was told the facility was open, contradicting Plaintiff’s excuse it was closed causing her to
be absent that day. The truth of the matter asserted by the declarant with whom Stone
spoke is that the childcare facility was closed. That is hearsay. See F.R.E. 801, 802.
However, portions of the affidavit have non-hearsay purposes, such as the extent of
Plaintiff’s frequent absences were so severe Stone had to personally investigate.
Additionally, whether the childcare was open or closed, Stone had a non-discriminatory
reason to believe Plaintiff was malingering and dishonest.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 18 of 33

19 / 33
Overall, Defendant’s summary judgment testimony is competent. To the extent
there are portions of the evidence which are inadmissible, the undersigned has not
considered it in this recommendation. Therefore, the undersigned recommends Plaintiff’s
objections to Defendant’s summary judgment evidence be denied as moot.
The remaining portion of Plaintiff’s Response to Defendant’s summary judgment
evidence is a restatement of facts from Plaintiff’s perspective that is largely set forth in
Section III of this recommendation above.
VI. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A genuine
issue exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
must examine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Id. at 251–52. In making this determination, the Court must consider the record as a
whole by reviewing all pleadings, depositions, affidavits, and admissions on file, and
drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen.
Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
The Court may not weigh the evidence or evaluate the credibility of witnesses. Id.
Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 19 of 33

20 / 33
to testify to the matters stated therein.” Fed. R. Civ. P. 56; see also Cormier v. Pennzoil
Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (Refusing to consider
affidavits that relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc., 819
F.2d 547, 549 (5th Cir. 1987) (Stating that courts cannot consider hearsay evidence in
affidavits and depositions). Unauthenticated and unverified documents do not constitute
proper summary judgment evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
The moving party bears the initial burden of showing the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidence must
be evaluated under the summary judgment standard to determine whether the moving party
has shown the absence of a genuine issue of material fact. “[T]he substantive law will
identify which facts are material. Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248. If the moving party demonstrates an absence of evidence
supporting the nonmoving party’s case, then the burden shifts to the nonmoving party to
come forward with specific facts showing that a genuine issue for trial does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
To sustain this burden, the nonmoving party cannot rest on the mere allegations of
the pleadings. Fed. R. Civ. P. 56; Anderson, 477 U.S. at 248. The nonmovant may not rely
merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue
exists, but must set forth specific facts showing the existence of a genuine issue of material
fact concerning every element of its cause(s) of action. Morris v. Covan World Wide
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 20 of 33

21 / 33
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). “After the nonmovant has been given an
opportunity to raise a genuine factual issue, if no reasonable juror could find for the
nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451.
VII. ANALYSIS
A. Plaintiff’s Race and Color Discrimination Claims
Title VII prohibits discriminatory employment practices based on an individual’s
race, color, religion, or national origin. 42 U.S.C. § 2000e–2(a). Title 42 U.S.C. § 1981
provides in pertinent part: “All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as is
enjoyed by white citizens. . . .” Section 1981 affords a federal remedy against
discrimination in private employment on the basis of race. McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 285 (1976) (citations omitted). “Employment discrimination
claims brought under 42 U.S.C. § 1981 ... are analyzed under the evidentiary framework
applicable to claims arising under Title VII.” Eyob v. Mitsubishi Caterpillar Forklift Am.,
Inc., 745 F. App’x 209, 210 (5th Cir. 2018), as revised (Aug. 10, 2018) (quoting Lawrence
v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311 (5th Cir. 1999)).
To prevail on her discrimination claims, a plaintiff may present a case of
discriminatory intent by direct or circumstantial evidence, or both. Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). “Direct evidence is evidence that, if
believed, proves the fact of discriminatory animus without inference or presumption.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citation omitted). If
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 21 of 33

22 / 33
direct evidence of discrimination exists, no further evidence is required. Kelly v. Costco
Wholesale Corp., 632 F. App’x 779, 782 (5th Cir. 2015) (citation omitted). If a Plaintiff
produces only circumstantial evidence to prove discrimination, her claim is analyzed under
the burden-shifting framework outlined in McDonnell Douglas v. Green, 411 U.S. 792
(1973).
Absent direct evidence, the McDonnell Douglas analysis proceeds through three,
burden shifting steps. Ray v. United Parcel Serv., 587 F. App’x 182, 188-89 (5th Cir.
2014). To establish a prima facie case of race discrimination, the plaintiff must show: (1)
she belongs to a protected class; (2) she was qualified for her position; (3) she suffered an
adverse employment action; and (4) she was replaced by someone outside the protected
class, or that other similarly situated persons were treated more favorably. Alvarado v.
Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007); see also Wesley v. Gen. Drivers,
Warehousemen and Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011).
If Plaintiff successfully establishes a prima facie case of discrimination, a
presumption of discrimination arises and the burden shifts to the Defendant to articulate a
legitimate, nondiscriminatory reason for the employment action taken against the Plaintiff.
See Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002) (citing McDonnell
Douglas, 411 U.S. at 802). The burden on the employer at this stage is one of production,
not persuasion and does not involve a credibility assessment. Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 142 (2000); see also Alvarado, 492 F.3d at 611.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 22 of 33

23 / 33
If Defendant satisfies this burden, the burden shifts back to the Plaintiff who must
prove “the legitimate reasons offered by the Defendant were not its true reasons, but were
a pretext for discrimination” or, alternatively, that the Defendant’s reason, while true, is
not the only reason for its conduct, and another “motivating factor” is the Plaintiff’s
protected characteristic. Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th
Cir. 2000) (citing Reeves, 530 U.S. at 139); Machinchick v. PB Power, Inc., 398 F.3d 345,
350 (5th Cir. 2005); see also McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir.
2007). “[T]he plaintiff must rebut each nondiscriminatory or nonretaliatory reason
articulated by the employer.” Id.
In the present case, Plaintiff has not presented direct evidence of racial
discrimination, therefore the claim is analyzed under the burden-shifting framework
outlined in McDonnell Douglas. Plaintiff is black, and although disputed by Defendant,
there is evidence before the Court that Plaintiff was qualified for her position. Plaintiff
avers she met performance standards and Gerberding’s declaration indicates Plaintiff
received a “Solid” rating for her performance between July 2, 2021, and December 31,
2021. (D.E. 36-1; D.E. 36-2, ¶ 13). Plaintiff has also established she suffered an adverse
employment action as she was fired. Thus, for purposes of raising a prima facia case,
Plaintiff has established the first three elements. However, Plaintiff has not presented any
competent summary judgment evidence she was replaced by someone outside the protected
class or that other similarly situated persons were treated more favorably.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 23 of 33

24 / 33
Similarly situated employees are defined narrowly in this context. “[A]n employee
who proffers a fellow employee as a comparator [must] demonstrate that the employment
actions at issue were taken ‘under nearly identical circumstances.’” Eyob, 745 F. App’x at
213;see also Perez v. Tex. Dep’t of Criminal Justice, Inst’l Div., 395 F.3d 206, 213 (5th
Cir. 2004) (“[F]or employees to be similarly situated those employees’ circumstances,
including their misconduct, must have been ‘nearly identical.’”). Nearly identical
circumstances exist “where the employees being compared held the same job or
responsibilities, shared the same supervisor or had their employment status determined by
the same person, and have essentially comparable violation histories.” Lee, 574 F.3d at
260. In the present case, Plaintiff has not presented any comparator. Plaintiff’s complaint
alleges the other two persons who held her position were Hispanic. However, her
allegations that these Hispanic employees were treated differently than Plaintiff is
conclusory and is not supported by summary judgement evidence.
The Fifth Circuit “has consistently held that an employee’s ‘subjective belief of
discrimination’ alone is not sufficient to warrant judicial relief.” Auguster v. Vermilion
Parish Sch. Bd., 249 F.3d 400, 403 (5th Cir. 2001) (citation omitted). Plaintiff must show
her race was a motivating factor in an employment decision. Easterling v. Tensas Parish
Sch. Bd., No. 16-30532, 2017 WL 1065531, at *3-4 (5th Cir. Mar. 20, 2017); see also Smith
v. City of St. Martinville, 575 F. App’x 435, 439 (5th Cir. 2014) (citations omitted). Bare
allegations of race discrimination, without more, are insufficient to create a genuine dispute
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 24 of 33

25 / 33
as to a material fact. Smith, 575 F. App’x at 439 (citing Giles v. City of Dallas, 539 F.
App’x 537, 545 (5th Cir. 2013)).
However, even if the Court were to find that Plaintiff has established a prima facia
case of race or color discrimination, Plaintiff’s claims do not survive the burden shifting
analysis because Defendant has established legitimate, nondiscriminatory reasons for the
employment action taken against Plaintiff. Those reasons are supported by competent
summary judgment evidence and include, but are not limited to: (1) repeated data entry
errors, (2) delayed preparation for meetings, (3) unprofessional tone, and (4) persistent
attendance problems. Defendant has submitted additional instances of unsatisfactory
performance or conduct by Plaintiff which also support Defendant’s position, but these
four reasons were not contested by Plaintiff in her revised performance evaluation plan.
The summary judgment evidence indicates Plaintiff received warnings, counseling and was
placed on a performance improvement plan. Plaintiff did not improve, and the undisputed
summary judgment evidence is that Plaintiff was fired for legitimate non-discriminatory
reasons. The evidence before the Court is simply that Plaintiff was a poor performer who
was also difficult to work with and supervise. Plaintiff has not presented any evidence to
indicate Defendant’s employment decisions as to Plaintiff were pretextual. Thus, the Court
should grant Defendant’s Motion for Summary Judgment as to Plaintiff’s race and color
discrimination claims.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 25 of 33

26 / 33
B. Plaintiff’s Hostile Work Environment Claim
“A hostile work environment exists when the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive work environment.”
Hanna v. Cangshan Cutlery Co., 767 F. Supp. 3d 384, 389 (W.D. Tex. 2025) (quoting
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)). “In order to state a
hostile work environment claim, a plaintiff must plead facts showing that: (1) she belongs
to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment
was based on her protected status; (4) the harassment affected a term, condition, or
privilege of employment; and (5) defendant knew or should have known about the
harassment and failed to take remedial action.” Hanna, 767 F. Supp. 3d at 389 (citing
Hackett v. United Parcel Serv., 736 F. App’x 444, 450 (5th Cir. 2018)).
The mere utterance of an epithet which engenders offensive feelings in an employee
does not sufficiently affect the conditions of employment to implicate Title VII. Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Such claims are based on the cumulative
effect of individual acts. In determining whether an actionable hostile work environment
claim exists, the Court looks to “all the circumstances,” including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Natl R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)
(quoting Harris, 501 U.S. at 23).
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 26 of 33

27 / 33
Plaintiff has presented evidence she is a member of a protected group and there is
some evidence she was subjected to unwelcome harassment. That harassment includes
Claire Araiza whistling and barking at Plaintiff on a nearly daily basis for years. (D.E. 36-
1). In isolation, such conduct could be attributed to merely being inappropriate and not
based on race. However, the evidence of other race-based hostility toward Plaintiff is more
direct and presents strong circumstantial evidence that Plaintiff was subjected to a
persistently hostile environment based on her race and color. This conduct included Norma
Salinas using the racially offensive term “pinche mayate” in Plaintiff’s presence. (D.E. 36-
9).7 This occurred outside of Plaintiff’s office and in common areas. Additionally, other
employees told Plaintiff words to the effect, “I don’t want you here” and “you make me
sick” or words to that effect. (D.E. 36-9, p. 3).
Plaintiff alleges on March 29, 2022, supervisor Regina Munoz told Plaintiff she
should work in another department where she would be appreciated indicating to Plaintiff
her being black was a problem. (D.E. 74-2, p. 9-10). Also, Emily Lopez told Plaintiff she
needed to change her voice and appearance because Plaintiff was too excitable. (D.E. 74-
7 Plaintiff has done a poor job of presenting summary judgment evidence of Ms. Salinas using the
words “pinche mayate” directed to Plaintiff. However, the summary judgment record is sufficient
for the Court to find Plaintiff will be able to present admissible evidence of these matters at trial,
because she will certainly testify in person about these incidents to the jury. Additionally, Plaintiff
is now proceeding pro se, and the Court should not dismiss Plaintiff’s hostile work environment
claim on the poor briefing of her previous lawyer when the record indicates there will be admissible
evidence of these incidents. The undersigned ordered Plaintiff to file the complete transcript of her
deposition with the Court. Plaintiff complied. (D.E. 74-1; D.E. 74-2). Upon review, Plaintiff
testified about the pinche mayate racial slur in her deposition. (D.E. 74-1, pp. 142-145; D.E. 74-2,
pp. 1-5).
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 27 of 33

28 / 33
2, p. 10). Plaintiff testified Ms. Lopez did not want Plaintiff to sound black or look black.
(D.E. 74-2, p. 10). Plaintiff also testified Ms. Lopez made this comment after Plaintiff was
removed from her suspension. (D.E. 74-2, p. 10). Plaintiff has presented evidence that she
reported these instances of racial hostility to her supervisors, but Defendant took no action.
(D.E. 36-9, D.E. 36-1).
The undersigned recognizes Defendant disputes these incidents occurred, or that
Plaintiff has misconstrued incidents that were not racially motivated, and Defendant
maintains it had no knowledge of the incidents alleged to create a hostile work
environment, with a few exceptions. Defendant submits evidence that Ms. Gerberding
heard Ms. Lozano tell Plaintiff “you make me sick” but that Ms. Gerberding reported the
incident to HR which took disciplinary action against Lozano. Defendant also submits
evidence it investigated the alleged racial slur used by Salinas, and while finding it was not
corroborated, the investigation substantiated that Salinas exhibited unprofessional conduct
and Salinas was counseled. (D.E. 33-1). Defendant’s evidence on this matter cuts both
ways, it supports Defendant’s position that on a few occasions managers took corrective
action considering the hostile environment, but it also corroborates Plaintiff’s allegations.
Plaintiff explains in her affidavit she suffered harassment on a nearly daily basis and she
reported all instances of harassment to supervisors. (D.E. 36-1). Plaintiff testified in her
deposition she made complaints about racial harassment to Ms. Gerberding in person in
February 2021. (D.E. 74-2, p. 13). Plaintiff further testified “my leaders didn’t care.” (D.E.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 28 of 33

29 / 33
74-2, p. 16). While Defendant may have taken some measures to correct the hostile
environment, a question of fact exists as to whether Defendant did enough.
Additionally, there is evidence the harassment affected Plaintiff’s job performance.
Defendant’s own evidence is that Plaintiff isolated herself, closed her door and separated
herself from others. Plaintiff also testified she suffered crying spells several times a week,
felt anxiety amongst her peers, she could not function properly and she was withdrawn.
(D.E. 74-2, p. 33). Plaintiff also testified the racial harassment caused her to make errors
and be forgetful because she was constantly being mistreated. (D.E. 74-2, p. 34). Plaintiff
testified it was hard to focus when someone is constantly whistling at you, barking and
slamming the door. (D.E. 74-2, p 34). Plaintiff’s self-imposed separation is what you
would expect an employee to do who is subjected to racial harassment and is therefore
supportive and corroborative of Plaintiff’s hostile work environment claims. A sufficient
factual dispute exists to warrant the denial of Defendant’s motion for summary judgment
as to Plaintiff’s hostile work environment claim.
C. Plaintiff’s Retaliation Claims
To establish a prima facie case of retaliation under Title VII, a plaintiff must show
that: (1) she engaged in activity protected under the statute, (2) her employer took an
adverse employment action against her, and (3) a causal connection exists between the
protected activity and the adverse action. Feist v. La. Dep’t of Just., 730 F.3d 450, 454 (5th
Cir. 2013). “Protected activity is defined as opposition to any practice rendered unlawful
by Title VII, including making a charge, testifying, assisting, or participating in any
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 29 of 33

30 / 33
investigation, proceeding, or hearing under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339
F.3d 376, 385 (5th Cir. 2003). “To establish a causal link, a plaintiff must produce evidence
demonstrating that the materially adverse action was taken at least in part on the knowledge
of the plaintiff’s [protected] activity. But ‘mere knowledge’ is not sufficient alone to
establish a prima facie case for retaliation.” Standley v. Rogers, 202 F. Supp. 3d 655, 670
(W.D. Tex. 2016) (internal citations omitted), aff'd, 680 F. App’x 326 (5th Cir. 2017). “In
evaluating a Title VII retaliation claim, ‘we ... look to who actually made the decision or
caused the decision to be made...’” Yancy v. U.S. Airways, Inc., 469 F. App’x 339, 344 (5th
Cir. 2012) (citation omitted).
There is no dispute that Plaintiff reporting racial discrimination is protected activity.
It is not entirely clear whether Plaintiff is also attempting to raise a claim of retaliation for
reporting a doctor having sex with a co-worker. Nevertheless, the undersigned will
consider Plaintiff reporting the inappropriate consensual encounter as a claim for purposes
of the pending Motion.
The Court should grant Defendant’s Motion for Summary Judgment as to Plaintiff’s
retaliation claims because Plaintiff has not established a causal connection between the
protected activity and the adverse action. The evidence establishes Plaintiff’s employment
was terminated for legitimate non-discriminatory reasons discussed above. Plaintiff’s
claims of retaliation are conclusory and are not supported by summary judgment evidence.
Webb made the decision to suspend Plaintiff. (D.E. 32-7, ¶ 5). Only Diaz, Webb, and Dr.
Alkrisat were involved in the decision to terminate Plaintiff’s employment. (D.E. 32-7, ¶
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 30 of 33

31 / 33
11; D.E. 32-2, ¶ 28). The other individuals to which Plaintiff complained were not decision
makers and therefore Plaintiff has not established a causal connection between the
protected activity and the adverse actions. Further, even if the Court were to find Plaintiff
had established a prima facia claim for retaliation, as discussed above, Defendant has
presented substantial, legitimate non-retaliatory reasons for its decisions. Plaintiff has not
presented any evidence that Defendant’s adverse employment actions against her were
pretextual.
VIII. RECOMMENDATION
For the reasons set forth above, it is respectfully recommended that Defendant’s
Motion for Summary Judgment be GRANTED in part and DENIED in Part.
Specifically, the undersigned RECOMMENDS the Court:
• GRANT Defendant’s Motion for Summary Judgement as to Plaintiff’s
claims for employment discrimination based on race and color, and
DISMISS these claims;
• GRANT Defendant’s Motion for Summary Judgment as to Plaintiff’s
claims for retaliation, and DISMISS these claims; and
• DENY Defendant’s Motion for Summary Judgment as to Plaintiff’s hostile
work environment claim.
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 31 of 33

32 / 33
Respectfully submitted on January 30, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 32 of 33

33 / 33
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
Case 2:24-cv-00133 Document 75 Filed 01/30/26 in TXSD Page 33 of 33