Rodgers v. Harris County Hospital District et al

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