Rodriguez v. Sabre Industries, Inc. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JESSICA RODRIGUEZ,
Plaintiff,
v.
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§
§
§
§
§
§
CIVIL NO. 4:24-CV-2852
SABRE INDUSTRIES, INC., et al.,
Defendants.
JUDGE PALERMO’S
REPORT AND RECOMMENDATION
This is a sex-discrimination and sexual-assault case. Pending before the Court
is Defendants Sabre Industries Inc., Sabre Communications Corporation (“Sabre
Defendants”), and Andy Andrade’s motion for summary judgement. ECF No. 60.1
Having considered the briefing2 and applicable law, the Court recommends granting
in part and denying in part the motion.
I. BACKGROUND
Sabre Industries Inc. (“Sabre”) designs, manufactures, and services
“infrastructure for utilities, telecommunications, and other essential services.” ECF
No. 60 at 8. Plaintiff Jessica Rodriguez worked for Sabre as a human resources
specialist at its Conroe, Texas facility. ECF No. 60-2 at 27:9–29:23. Chris Brown
was Sabre’s Vice President and General Manager of the Conroe facility. ECF No. 75
1 The district judge referred all pretrial proceedings under 28 U.S.C. § 636. ECF No. 27.
2 Plaintiff responded. ECF Nos. 75, 76 (sealed). Defendants replied. ECF No. 79.
United States District Court
Southern District of Texas
ENTERED
August 03, 2026
Nathan Ochsner, Clerk
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at 7.
On June 28, 2022, Brown invited Plaintiff, HR specialist Jennifer Reidel, and
Conroe Plant Superintended Andy Andrade to an after-work dinner. ECF No. 60-2
at 71:10–21. The group ordered food and alcoholic drinks that Brown paid for with
a company credit card. ECF No. 75-4 at 93:18–24. Afterwards, the group moved to
a nearby bar for more drinks. ECF No. 60-2 at 89:18–94:16. As the evening went
on, Plaintiff began to feel unwell and called a friend to pick her up. Id. at 96:3–8.
Her friend did not pick her up. “When the group left” the bar, “Andrade got
into his truck and drove home,” confirmed by his GPS travel records. ECF No. 60
at 12; ECF No. 60-6 at 52:4–10; ECF No. 60-9. Brown offered to take Reidel and
Plaintiff home. When they arrived at Reidel’s house, Reidel got out of Brown’s
truck, opened the back door, and tried to wake Plaintiff to go inside, but she was
asleep. ECF No. 60 at 12. Reidel went inside, and Brown left to take Plaintiff home.
Id.
According to Brown, Plaintiff woke up shortly after dropping Reidel off and
crawled into the front seat. Id. He claims she then took off all her clothes and “posed”
for a nude picture. Id. at 12–13. Brown took the picture on his Sabre company phone
and texted it to his nephew, A.J. Escamilla, and friend, Chris Mosby, “to brag.” ECF
No. 75-4 at 86:6–87:1. Afterwards, he changed course to take Plaintiff to his hotel.
ECF No. 60 at 13. They got there sometime after midnight, had sex in the front seat
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of his truck, got dressed, went up to his room, and fell asleep. Id.
The next morning, Plaintiff woke up in Brown’s hotel room, unable to
remember what happened. ECF No. 60-2 at 100:11–20. They left the hotel, and
Brown drove Plaintiff to her car, which she had left at the restaurant or bar the night
before. ECF No. 60 at 13. She then drove home, got ready, and went to work. Id.
When she returned to work, her friend Juan Carlos Garcia—Sabre’s
Maintenance Lead for the Conroe facility—texted her to ask “what was going on”
and told her that rumors were swirling about last night. ECF No. 60 at 14; ECF
No. 60-2 at 136:8–137:24. Apparently, people were gossiping that both Andrade and
Brown had sex with Plaintiff. ECF No. 75 at 10. Although Plaintiff and Garcia
exchanged several texts, calls, and even an in-person conversation, Garcia “never
identified who was” spreading the rumors. ECF No. 60 at 15. Nonetheless, Plaintiff
speculated that it was Andrade or his assistant, Iris Valdez. Id.
Plaintiff called Brown to inform him about the rumors, and Brown said he
would “put a stop to it.” Id. Feeling distressed and embarrassed, she left work early
without reporting anything to anyone else. Id. at 15–16. She resigned the following
day. Id. at 16; ECF No. 60-2 at 172:9–12.
On July 31, 2024, Plaintiff filed her original complaint against Brown and
Sabre Defendants. ECF No. 1. She subsequently amended her complaint to join
Andrade, ECF No. 32, and settled with Brown, ECF No. 57. The remaining
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Defendants now move for summary judgment. ECF No. 60.
II. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is
appropriate ‘if 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.’” Ballentine v. Broxton
Grievance Dep’t Vicki Cundiff, 155 F.4th 462, 467 (5th Cir. 2025) (quoting FED. R.
CIV. P. 56(a)). A dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). “A fact is material if its resolution
in favor of one party might affect the outcome of the lawsuit under governing law.”
Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 997 (5th Cir. 2022) (internal
quotation marks omitted) (quoting Hamilton v. Segue Software Inc., 232 F.3d 473,
477 (5th Cir. 2000) (per curiam)).
The “moving party ‘always bears the initial responsibility of informing the
district court of the basis for its motion’ and pointing to record evidence
demonstrating that there is no genuine dispute of material fact.” Sweat v. Hous.
Methodist Hosp., No. CV H-24-775, 2025 WL 2697111, at *3 (S.D. Tex. Sept. 22,
2025) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When the non-
movant bears the burden of proof at trial,” the movant “may merely point to the
absence of evidence and thereby shift to the non-movant the burden of demonstrating
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by competent summary judgment proof that there is a dispute of material fact
warranting trial.” Id. (internal quotation marks omitted) (quoting MDK Sociedad De
Responsabilidad Limitada v. Proplant Inc., 25 F.4th 360, 368 (5th Cir. 2022)).
If the movant fails to meet its initial burden, the motion for summary judgment
must be denied, regardless of the non-movant’s response. See id. (citing Sanchez v.
Young Cnty., 956 F.3d 785, 791 (5th Cir. 2020)). “The nonmovant ‘must ‘go beyond
the pleadings and by [their] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is
a genuine issue for trial.’” Fiesta Mart, LLC v. Willis of Ill., Inc., 728 F. Supp. 3d
458, 465 (S.D. Tex. 2024) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters.,
Inc., 783 F.3d 527, 536 (5th Cir. 2015)). The nonmovant must “identify specific
evidence in the record” and precisely articulate how “that evidence support[s] its
claim.” Diamond Servs. Corp. v. RLB Contracting, Inc., 113 F.4th 430, 444 (5th Cir.
2024) (alteration adopted) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
1994)). This burden “will not be satisfied by some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.” Fiesta Mart, 728 F. Supp. 3d at 465 (internal quotation marks
omitted) (quoting Boudreaux, 402 F.3d at 540). A party waives an argument that it
fails to adequately brief. Wiseman v. Schlumberger Tech. Corp., No. 4:23-CV-56,
2025 WL 2612733, at *6 n.18 (S.D. Tex. Mar. 20, 2025).
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“When considering a motion for summary judgment, the court ‘must consider
all facts and evidence in the light most favorable to the nonmoving party’ and ‘must
draw all reasonable inferences in favor of the nonmoving party.’” Sweat, 2025 WL
2697111, at *3 (quoting Ion v. Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir.
2013)).
III. DEFENDANTS ARE ENTITLED TO PARTIAL SUMMARY
JUDGMENT.
Plaintiff asserts claims for hostile work environment, sex discrimination,
constructive discharge, and retaliation under both Title VII and the Texas
Employment Discrimination Act. ECF No. 32 ¶¶ 55–80. Against Andrade, she sues
for assault under three common law theories: infliction of bodily injury, threat of
bodily injury, and offensive physical contact. Id. ¶¶ 81–90.3
A. Plaintiff’s Hostile-Work-Environment Claims Survive.
“Title VII makes it unlawful for employers to require people to work in a
discriminatorily hostile or abusive environment.” Loperena v. Mayorkas, No. 1:21-
CV-59, 2023 WL 7928701, at *7 (S.D. Tex. Oct. 16, 2023) (quoting West v. City of
Hous., 960 F.3d 736, 741 (5th Cir. 2020)), adopted, No. 1:21-CV-00059, 2023 WL
7926806 (S.D. Tex. Nov. 16, 2023). “A hostile work environment claim is composed
3 Plaintiff brings claims under Texas law and federal law. The Court analyzes them “under the
Title VII framework because the same standards apply to both.” Barinaga v. Exxonmobil Corp.,
No. 4:22-CV-03462, 2025 WL 2799815, at *19 (S.D. Tex. Sept. 30, 2025).
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of a series of separate acts that collectively constitute one unlawful employment
practice.” Id. (quoting West, 960 F.3d at 741). To establish a hostile-work-
environment claim, a “plaintiff must prove that she is (1) a member of a protected
class who was (2) subject to ‘unwelcome harassment’ that was (3) based on the
plaintiff’s status as a member of a protected class (here, sex) and was (4) ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment’ and that (5) ‘the employer knew or should have
known of the harassment in question and failed to take prompt remedial
action.’”Abbt v. City of Hous., 28 F.4th 601, 607 (5th Cir. 2022) (quoting Hernandez
v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)). “When a supervisor is
the harasser, the employee need not establish the fifth element.” Loperena, 2023 WL
7928701, at *7 (quoting Wallace v. Performance Contractors, Inc., 57 F.4th 209,
221 (5th Cir. 2023)).
i. A genuine dispute exists whether the harassment altered Plaintiff’s
working conditions.
Defendants only dispute the last two elements. ECF No. 79 at 15 n.32. For the
fourth element, they argue Brown’s sexual assault cannot serve as the basis for a
hostile-work-environment claim because it did not affect her work conditions, only
the workplace rumors did. ECF No. 60 at 20. In turn, they contend the rumors alone
were not sufficiently severe or pervasive to create a hostile work environment. ECF
No. 79 at 17–18. Defendants are incorrect.
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“To affect a term, condition, or privilege of employment, the harassment must
be sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” Loperena, 2023 WL 7928701, at *8
(West, 960 F.3d at 741–42). “[T]he work environment must be both objectively and
subjectively offensive, one that a reasonable person would find hostile or abusive,
and one that the victim in fact did perceive to be so.” Id. (alteration in original)
(quoting Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)). “To
determine whether a work environment is objectively offensive, ‘courts consider the
totality of the circumstances, including (1) the frequency of the discriminatory
conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or
merely an offensive utterance; and (4) whether it interferes with an employee’s work
performance.’” Id. (quoting E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th
Cir. 2007)).
Here, Brown took a compromising nude picture of Plaintiff while she was
intoxicated and sent it to at least two people to brag. ECF No. 75-4 at 86:6–87:1. As
the Court details in a separate order, R&R, ECF No. 83, Plaintiff could not verify
whether Brown sent it to anyone else—including anyone at Sabre—because Sabre
wiped his phone data. Then Brown proceeded to allegedly assault Plaintiff. ECF
No. 60 at 13. The following day, she heard about coworkers rumormongering that
she had sex with both Brown and Andrade. ECF No. 75 at 10. Defendants try to
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analyze the assault and rumors separately, but they are inextricable. The assault fed
the workplace rumors. They in turn exacerbated the assault, culminating in a cascade
of distress and humiliation that moved Plaintiff to immediately resign. ECF No. 60
at 15–16. These were not separate events but “a series of separate acts that [may
have] collectively constitute[d]” a hostile work environment. Loperena, 2023 WL
7928701, at *7 (West, 960 F.3d at 741).
Moreover, Defendants characterize the dinner with Brown and subsequent
assault as an “off-site” interaction unrelated to the work. ECF No. 60 at 19–20. But
Plaintiff presents evidence that the dinner was a work-related event, since Brown
testified that he invited everyone out “as employees” and, as the most senior
employee present, paid for everything with a company card. ECF No. 75-4 at 93:7–
12, 18–21.
Based on these facts, a jury could conclude that Brown’s alleged sexual
assault and the subsequent salacious workplace rumors combined to constitute a
hostile work environment. Thus, a material fact issue exists with respect to the fourth
element of Plaintiff’s hostile-work-environment claim.
ii. A genuine dispute exists whether Plaintiff needs to prove the fifth
element.
Defendants next argue that they are entitled to summary judgment because
Plaintiff cannot establish the fifth element: that Sabre knew or should have known
about Brown’s assault or the rumors and subsequently failed to take prompt remedial
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action. ECF No. 60 at 20–23. Plaintiff maintains that she does not need to prove this
element because Brown was a supervisor. ECF No. 75 at 14–17.
“When a supervisor is the harasser, the employee need not establish the fifth
element.” Loperena, 2023 WL 7928701, at *7 (quoting Wallace, 57 F.4th at 221).
Here, Brown’s job description states that he had “direct reports and matrix
responsibility for other functions to include Operations, Quality, HR, and EHS” at
the Conroe facility. ECF No. 76 at 15 (emphasis in original) (quoting ECF No. 75-
12 at 2). Notably, Plaintiff worked in HR at the Conroe facility. ECF No. 60-2
at 27:9–29:23. Brown could also discipline employees and fire them, and he attended
Sabre’s sexual harassment training “for Supervisors.” ECF No. 76 at 15; ECF
No. 75-13; ECF No. 75-14. Based on these facts, a jury could conclude that Brown
was a supervisor who was empowered to tangibly affect Plaintiff’s working
conditions.
To resist this conclusion, Defendants focus on the fact that Plaintiff did not
directly report to Brown. ECF No. 79 at 12. They contend that someone else, not
Brown, “was the ultimate authority and supervisor over the Conroe HR department”
and that Brown only oversaw “the galvanizing division at the Conroe plant,” not HR.
ECF No. 79 at 12, 14. But nothing requires Brown to have been Plaintiff’s “ultimate”
supervisor, and Brown’s testimony that he oversaw only the galvanizing division
conflicts with his job description, which states he handles “direct reports and matrix
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responsibility for other functions,” including “HR.”
At sum, Defendants produce evidence that Brown was not Plaintiff’s
supervisor, and she submits evidence that he was. Thus, a fact issue exists as to
whether Plaintiff must prove the fifth element of her hostile-work-environment
claim. 
iii. A genuine dispute exists whether the Ellerth/Faragher defense
applies.
Finally, Defendants invoke the Ellerth/Faragher defense.4 ECF No. 60 at 23–
25. ““Normally, an employer is strictly liable for a supervisor’s harassment of an
individual whom he or she supervises.” Rountree v. FedEx Ground Package Sys.,
Inc., No. 3:23-CV-1089-N-BW, 2025 WL 2405210, at *21 (N.D. Tex. June 25,
2025) (quoting Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205, 209 (5th Cir. 2016)),
adopted, No. 3:23-CV-1089-N-BW, 2025 WL 2401328 (N.D. Tex. Aug. 19,
2025). “The Ellerth/Faragher affirmative defense is an exception and is available to
employers when a plaintiff alleges sexual harassment by a supervisor but does not
claim that the harassment resulted in a tangible employment action.” Id. (quoting
Pullen, 830 F.3d at 209). Thus, whether the Ellerth/Faragher defense applies
4 “Under this defense, an employer is not vicariously liable for a supervisor’s harassment if the
employer proves: ‘(a) that the employer exercised reasonable care to prevent and correct promptly
any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.’” Liu v. KCI USA, Inc., No. SA-23-CA-01230-XR, 2026 WL 475292, at *8 (W.D. Tex.
Feb. 9, 2026) (ellipsis in original) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807
(1998)).
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depends on whether Brown was Plaintiff’s supervisor. But, as explained above, there
is a fact issue about whether Brown qualifies as a supervisor.
Therefore, Defendants’ summary judgment motion should be denied with
respect to Plaintiff’s hostile-work-environment claim.
B. Sabre Is Entitled to Summary Judgment on Plaintiff’s Sex-
Discrimination Claims.
To establish a sex-discrimination claim, Plaintiff must show “(1) that she is a
member of a protected class; (2) that she was qualified for the position sought;
(3) she was subject to an adverse employment action; and (4) she was replaced by
someone outside her protected class or was treated less favorably than other similarly
situated employees outside her class.” Barinaga v. Exxonmobil Corp., No. 4:22-CV-
03462, 2025 WL 2799815, at *16 (S.D. Tex. Sept. 30, 2025) (internal quotation
marks omitted) (quoting Newbury v. City of Windcrest, 991 F.3d 672, 679 (5th Cir.
2021)). To prove an adverse employment action, she must “show[] discrimination
in hiring, firing, compensation, or in the ‘terms, conditions, or privileges’ of . . . her
employment.” Hamilton v. Dallas Cnty., 79 F.4th 494, 502–03 (5th Cir. 2023)
(quoting 42 U.S.C. § 2000e-2(a)(1)).
Here, Plaintiff fails to identify an adequate comparator. To prove less
favorable treatment, she “must ‘point to a comparator who was similarly situated
and received more favorable treatment under nearly identical circumstances.’” Clark
v. City of Alexandria, 116 F.4th 472, 486 (5th Cir. 2024) (quoting Ernst v. Methodist
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Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021)), cert. denied sub nom. Clark v. City of
Alexandria, La., 145 S. Ct. 1331 (2025) (internal quotation marks omitted).
Plaintiff contends that Reidel is a suitable comparator because she “was an
HR specialist” and “was not sexually assaulted, and accordingly, was not subjected
to the different treatment [Plaintiff] suffered.” ECF No. 76 at 28. But, as Defendants
point out, Reidel was not an HR “specialist” but rather an HR “Generalist,” which
“have more knowledge” than specialists. ECF No. 79 at 23. Reidel also worked as a
generalist for years on the front end, whereas Plaintiff worked as a specialist for
about one year “on the back end,” helping other HR employees with whatever they
needed. Id. Since comparators typically need to have “the same job or
responsibilities, share[] the same supervisor . . . , and have essentially comparable
[employment] histories,” the significant differences in Reidel’s and Plaintiff’s work
histories and responsibilities undermine their comparability. Briner v. Joshua Indep.
Sch. Dist., No. 3:24-CV-513-K, 2025 WL 3221479, at *9 (N.D. Tex. Oct. 16, 2025)
(quoting Reyna v. Donley, 479 F. App’x 609, 611–12 (5th Cir. 2012) (per curiam)),
adopted, No. 3:24-CV-513-K, 2025 WL 3218984 (N.D. Tex. Nov. 18, 2025).
More fundamentally, Plaintiff needs to point to a similarly situated male
employee who was treated more favorably in similar circumstances. See, e.g., Traudt
v. Data Recognition Corp., No. 23-10498, 2024 WL 366168, at *2 (5th Cir. Jan. 31,
2024) (explaining that to assert a prima facie Title VII sex-discrimination claim,
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plaintiff must show “the male employees with whom she compares herself are proper
comparators”); Esparza v. Advanced Network Mgmt., Inc., No. 24-50024, 2025 WL
764602, at *4 (5th Cir. Mar. 11, 2025) (analyzing sex-discrimination claim where
female plaintiff compared herself to male employees); Shahrashoob v. Tex. A&M
Univ., 125 F.4th 641, 651 (5th Cir. 2025) (explaining that Title VII race- and sex-
discrimination comparator is outside plaintiff’s protected class because the
comparator is “an Indian man” and plaintiff is an “Iranian woman”); Carter v. Local
556, Transp. Workers Union of Am., 156 F.4th 459, 482 (5th Cir. 2025) (explaining
that a supervisor telling a female bank employee “that she ‘wouldn’t be worth as
much as the men would be to the bank’ and ‘she would be paid less because she was
a woman’” constituted direct evidence of a Title VII sex-discrimination case
(quoting Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 329 (5th Cir. 1994)
(emphasis in original))); Doe v. Univ. of Tex. at Austin, No. 1:19-CV-398-LY, 2019
WL 9076003, at *3 (W.D. Tex. Nov. 8, 2019) (dismissing Title VII sex-
discrimination claims because male plaintiffs-students “fail[ed] to allege that any
individual female student ha[d] been treated more favorably under similar
circumstances”).5 Here, Reidel is a woman, and Plaintiff is a woman. Reidel is
5 See also Rodriguez v. City of Corpus Christi, No. 2:21-CV-00297, 2023 WL 6149914, at *17–
19 (S.D. Tex. Aug. 7, 2023) (analyzing Title VII sex-discrimination claim where female plaintiff
compared herself to male employee), adopted, No. 2:21-CV-00297, 2023 WL 5706253 (S.D. Tex.
Sept. 4, 2023), aff’d, 129 F.4th 890 (5th Cir. 2025); Barinaga v. Exxonmobil Corp., No. 4:22-CV-
03462, 2025 WL 2799815, at *17 (S.D. Tex. Sept. 30, 2025) (same).
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therefore not outside Plaintiff’s protected class, so she cannot be a comparator.
Because Plaintiff cannot establish disparate treatment through an adequate
comparator, Sabre is entitled to summary judgment on her sex-discrimination
claims.
C. Sabre Is Entitled to Summary Judgment on Plaintiff’s Retaliation
Claims.
To establish a retaliation claim under Title VII, Plaintiff must show that
“(1) she engaged in a protected activity; (2) she suffered an adverse employment
action; and (3) a causal connection exists between the protected activity and the
adverse employment action.” Barinaga, 2025 WL 2799815, at *19 (quoting
Saketkoo, 31 F.4th at 1000). Protected activity is either “oppos[ing] any practice
made unlawful” or “mak[ing] a charge, testify[ing], assist[ing], or participat[ing] in
any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a).
Here, Plaintiff argues that she engaged in protected activity when she called
Brown on June 29, 2022—the night after the alleged assault—and told him about
the workplace rumors. ECF No. 76 at 29.6 Even assuming that constituted a protected
activity under Title VII, she offers no evidence that Sabre retaliated against her
because of her report. The record shows that shortly after calling Brown, Plaintiff
6 Notably, she never reported the sexual assault to anyone at Sabre. ECF No. 60 at 16; ECF No. 60-
2 at 200:11–201:1, 255:23–256:1.
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left work and resigned the following day. ECF No. 60 at 15–16; ECF No. 60-2
at 172:9–12. She never interacted with Brown again, ECF No. 60-2 at 151:10–12,
and she does not allege that anyone at Sabre even knew about her call to Brown,
much less retaliated against her for it (not that they could because she resigned so
shortly after).
Based on this record, no reasonable jury could conclude that Plaintiff’s call to
Brown about the workplace rumors caused her to suffer any adverse employment
action. Thus, Sabre is entitled to summary judgment on her retaliation claims.
D. Sabre Is Entitled to Summary Judgment on Plaintiff’s
Constructive-Discharge Claims.
To prove constructive discharge, Plaintiff must show (1) she was
discriminated against by her employer to the point where a reasonable person in her
position would have felt compelled to resign and (2) she actually resigned. Sacks v.
Tex. S. Univ., 83 F.4th 340, 347 (5th Cir. 2023). Courts look to the specific events
that occurred to determine whether a reasonable person would have felt compelled
to resign, including “(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or humiliation by the
employer calculated to encourage the employee’s resignation; or (7) offers of early
retirement or continued employment on terms less favorable than the employee’s
former status.” Id. (alteration adopted) (quoting Brown v. Bunge Corp., 207 F.3d
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776, 782 (5th Cir. 2000)).
To raise a fact issue, a plaintiff must adequately distinguish her hostile-work-
environment claim from her constructive-discharge claim. For example, in
Daywalker v. UTMB at Galveston, the plaintiff asserted “that hostile work
environment claims and constructive discharge claims are functionally coextensive.”
No. 22-40813, 2024 WL 94297, at *10 (5th Cir. Jan. 19, 2024). The Fifth Circuit
disagreed, explaining that “merely reiterat[ing] the facts that constituted harassment”
and “fail[ing] to adequately brief and correctly distinguish constructive discharge
from [the] harassment claim meant that [the plaintiff] had failed to create a genuine
issue of material fact that a reasonable employee would have felt compelled to resign
under the same circumstances.” Id. (alterations adopted) (quoting Lauderdale v. Tex.
Dep’t of Crim. Just., 512 F.3d 157, 167 (5th Cir. 2007)).
Like Daywalker and Lauderdale, Plaintiff fails to adequately distinguish her
constructive-discharge claims, merely reiterating the facts that constitute her
harassment claims. See ECF No. 76 at 21 (arguing “Plaintiff was constructively
discharged precisely because she could not withstand the harassment she would face
if she returned to work at Sabre”). She presents no evidence that the alleged
harassment “was calculated to encourage her resignation or evidence of intentional
[sex-based] animus.” Daywalker, 2024 WL 94297, at *10. Nor does she show that
Sabre demoted her, reduced her pay, reduced her job responsibilities, reassigned her
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menial work, etc. That is insufficient.
Accordingly, Sabre is entitled to summary judgment on Plaintiff’s
constructive-discharge claims.
E. Andrade Is Entitled to Summary Judgment on Plaintiff’s Assault
Claims.
Finally, Andrade argues he is entitled to summary judgment on Plaintiff’s
assault claims because Plaintiff cannot show he was present at the hotel the night of
the incident. ECF No. 60 at 29–30.
In Texas, “the elements of a civil assault mirror those of a criminal assault.”
Malbrough v. Holmes, No. 3:17-CV-283, 2023 WL 3586436, at *8 (S.D. Tex. May
22, 2023) (quoting Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012)). An assault
occurs if a person “intentionally or knowingly causes physical contact with another
when the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.” Id. (quoting Loaisiga, 379 S.W.3d at 256). It
may also occur “when an individual ‘intentionally or knowingly threatens another
with imminent bodily injury.’” Gongora Hinestroza v. United States, No. 1:25-CV-
061, 2025 WL 1588349, at *11 (S.D. Tex. June 4, 2025) (quoting TEX. PENAL CODE
§ 22.01(a)(2)). Plaintiff alleges Andrade is liable for assault under three alternative
theories: (1) infliction of bodily injury; (2) threat of bodily injury; and (3) offensive
physical contact. ECF No. 32 at 14–15.
Here, Andrade went back home after the group left the bar. ECF No. 60 at 12;
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ECF No. 60-6 at 52:4–10. His GPS confirms he arrived home at 10:57 PM. ECF
No. 79 at 8; ECF No. 60-9. Plaintiff does not dispute this. Instead, she speculates
that Andrade might have gone “to the hotel after returning home[] and then left
before she regained consciousness.” ECF No. 76 at 30 (emphasis in original). Her
only basis for this theory is that “Defendants did not provide [Andrade’s] Google
timeline data beyond 10:57 P.M.,” she was assaulted sometime after 11:10 PM, and
“Andrade himself told others he had sex with [Plaintiff].” Id. Notably, Plaintiff cites
no evidence indicating that Andrade told others he had sex with her.
Plaintiff confuses the burden of proof. It is her burden to produce evidence
showing that Andrade assaulted her, not his burden to prove that he did not assault
her. As it stands, there is no evidence Andrade did anything to Plaintiff at any point.
The mere speculation that he could have possibly done something is insufficient.
Am. Auto. Ass’n, Inc. v. Saga Int’l, Inc., No. 4:24-CV-04425, 2025 WL 4350756, at
*3 (S.D. Tex. Dec. 8, 2025) (“[T]he nonmovant cannot satisfy its burden with
‘conclusory allegations, speculation, and unsubstantiated assertions which are either
entirely unsupported, or supported by a mere scintilla of evidence.’” (emphasis
added) (quoting Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010))).
Thus, Andrade is entitled to summary judgment on Plaintiff’s assault claims.
IV. CONCLUSION
The Court recommends that Defendants’ motion for summary judgment, ECF
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No. 60, be GRANTED in part and DENIED in part as follows:
• Summary judgment should be GRANTED for Sabre Defendants on
Plaintiff’s sex-discrimination, retaliation, and constructive-discharge
claims under Title VII and the Texas Employment Discrimination Act.
• Summary judgment should be DENIED for Sabre Defendants on
Plaintiff’s hostile-work-environment claims.
• Summary judgment should be GRANTED for Andrade on all Plaintiff’s
assault claims.
The Parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); FED. R.
CIV. P. 72(b). Failure to file timely objections will preclude review of factual
findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d
353, 358 (5th Cir. 2017).
IT IS SO ORDERED.
Signed at Houston, Texas, on August 3, 2026.
_____________________________
Dena Hanovice Palermo
United States Magistrate Judge
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