United States District Court, S.D. Mississippi, Northern Division
CYNTHIA L. GARLAND PLAINTIFF
TRUSTMARK NATIONAL BANK DEFENDANTS
MEMORANDUM OPINION AND ORDER
Lee, UNITED STATES DISTRICT JUDGE
cause is before the court on the motion of Trustmark National
Bank (Trustmark) for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Plaintiff Cynthia L.
Garland has responded in opposition to the motion. The court,
having considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes that the
motion is well-taken and should be granted.
became employed by Trustmark in its Mortgage Loan Department
in August 2011 as a mortgage loan originator (MLO). In
October 2014, she filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC), claiming
discrimination based on her national origin
(Asian). Plaintiff alleges that after filing the
EEOC charge, Trustmark “blatantly retaliated against
[her] ... creating a hostile work environment.”
Plaintiff alleged that as a result of this continuous
discrimination and retaliation, she was constructively
discharged effective July 27, 2015.
March 22, 2016, the EEOC issued its determination (finding no
evidence of discrimination) and notice of right to sue. On
June 16, 2016, plaintiff filed the present action against
Trustmark, asserting claims under Title VII, 42 U.S.C. §
2000e et seq. for race and national origin
discrimination and retaliation. In response to
Trustmark's summary judgment motion, she has conceded her
claims for race and national origin discrimination, leaving
only her claim that Trustmark unlawfully retaliated against
her by subjecting her to a hostile work environment after she
filed her EEOC charge. Trustmark seeks summary judgment on
plaintiff's retaliation claim, contending the alleged
retaliatory actions she has identified do not rise to the
level of materially adverse employment actions.
anti-retaliation provision of Title VII forbids employers
from discriminating against a job applicant because she has
“‘made a charge, testified, assisted, or
participated in' a Title VII ‘investigation,
proceeding, or hearing.'” Burlington N. &
Sante Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct.
2405, 165 L.Ed.2d 345 (2006) (quoting 42 U.S.C. §
2000e-3(a)). Under the McDonnell Douglas
burden-shifting framework, which applies to Title VII
retaliation claims in the absence of direct evidence of
retaliation, the plaintiff must first show a prima facie case
of retaliation. Standley v. Rogers, No. 16-51092,
2017 WL 958318, at *1 (5th Cir. Mar. 10, 2017). If she
establishes her prima facie case, the burden of production
then shifts to the defendant employer to articulate a
legitimate, nondiscriminatory or non-retaliatory reason for
the employment action at issue. See id. If
it satisfies its burden, the burden then shifts back to the
plaintiff to offer evidence that the employer's stated
reason was only pretext for retaliation.
establish a prima facie case of retaliation, the plaintiff
must establish the following elements: “(1) she
participated in an activity protected by Title VII; (2) her
employer took an adverse employment action against her; and
(3) a causal connection exists between the protected activity
and the materially adverse action.” Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
2008). To rise to the level of an adverse employment action
for the purposes of a prima facie case of retaliation,
there must be a “materially adverse” action that
is “harmful to the point that [it] could well dissuade
a reasonable worker from making or supporting a charge of
discrimination.” Porter v. Houma Terrebonne Hous.
Auth. Bd. of Comm'rs, 810 F.3d 940, 945 (5th Cir.
2015) (quoting White, 548 U.S. at 57, 126 S.Ct.
2405). This requirement of materiality is intended to
“separate significant from trivial harms.”
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484
(5th Cir. 2008) (quoting White, 548 U.S. at 68, 126
S.Ct. 2405). Accordingly, this standard does not encompass
the “‘petty slights, minor annoyances, and simple
lack of good manners' that employees regularly encounter
in the workplace.” Id. at 485 (quoting
White, 548 U.S. at 68, 126 S.Ct. 2405). To determine
whether an action is materially adverse, we look to indicia
such as whether the action affected “job title, grade,
hours, salary, or benefits” or caused “a
diminution in prestige or change in standing among ...
co-workers.” Stewart v. Miss. Transp.
Comm'n, 586 F.3d 321, 332 (5th Cir. 2009).
Paul v. Elayn Hunt Corr. Ctr., 666 F.App'x 342,
346 (5th Cir. 2016).
court's first task in this case is to identify the
alleged retaliatory actions. In her complaint and amended
complaint, plaintiff alleged generally that after she filed
her EEOC charge, Trustmark “blatantly retaliated
against [her] ... creating a hostile work environment.”
More specifically, she charged that Trustmark retaliated
against her by “denying her a promotion or even
discussions of a promotion.” Plaintiff has apparently
abandoned her claim that she was denied a promotion in
retaliation for her EEOC charge and has now identified the
following actions which she contends were retaliatory and
constitute materially adverse employment actions: (1) in
October 2014, her loan processor was assigned to assist other
MLOs; (2) Trustmark declined to correct a November 2014 mass
marketing mail-out which incorrectly indicated that she was
still working at the Key Drive Trustmark location in Madison
when she had in fact moved to a new location; (3) in March
2015, she was required to take a new marketing photograph,
which resulted in a a delay of a month in the processing of
her order for new business cards; and (4) her 2014 Annual
Review, which was supposed to be issued in March 2015, was
not issued until June 2015. These allegations, considered
individually or collectively, do not rise to the level of
materially adverse employment actions.
respect to the loan processor charge, plaintiff contends that
in October 2014, shortly after she filed her EEOC charge, her
supervisor began assigning plaintiff's loan processor to
perform work for other MLOs. Plaintiff thought it unfair that
her processor, who worked part-time, was assigned to help
others, when another MLO's full-time loan processor was
not assigned to help other MLOs. Plaintiff claims that while
her processor “was not as busy during that time, having
[her processor] assigned to others caused delay on processing
[plaintiff's] loans when [she] did have loans to
process.” While plaintiff may have found this situation
unfair, there is no evidence to suggest that it was other
than marginally inconvenient, at worst. There is no evidence
to show that it adversely affected her “job title,
grade, hours, salary, or benefits” or caused “a
diminution in prestige or change in standing among ...
co-workers.” Stewart, 586 F.3d at
November 2014, Trustmark closed its Key Drive location in
Madison. Plaintiff, who had been assigned to that location,
was moved to the Trustmark branch on Highway 463 in Madison.
Trustmark's Corporate Communications Department sent out
a bulk mailing concerning the status of the Key Drive
location which, according to plaintiff, incorrectly stated
that a MLO, i.e., plaintiff, was still present at the Key
Drive location. Plaintiff states that she learned in January
2015 that her customers thought she was still at the Key
Drive location and were unaware of her move to the Highway
463 location. Plaintiff asked her supervisor, Paula Warren,
to issue a new mass mailing to advise her customers of her
move, but “Ms. Warren said they would not do that,
” and suggested that plaintiff could contact her own
individual clients to inform them of her new location. In her
response, plaintiff does not explain how the mail-out itself
was retaliatory; she does not claim that Trustmark
intentionally included incorrect information about her
location in the mail-out or that the error was anything other
than inadvertent. Perhaps she claims that Warren's
refusal to reissue the mail-out was retaliatory. But she does
not explain in what way this was materially adverse. She does
not argue, and has offered no evidence, that she was unable
to contact her customers; and in fact, Warren's affidavit
explains that she suggested that plaintiff could have the
bank send out a direct mailing notifying plaintiff's
customers of her relocation. Moreover, she makes no claim
that her customers were unable to find her or that she lost
any business as a result of the mistaken mail-out.
further allegations regarding Trustmark's requiring her
to take a new marketing photograph and the resulting delay in
the processing of her order for new business cards falls
squarely in the category of petty slights and minor
annoyances, as does her complaint that her 2014 performance
evaluation was not issued in a timely manner. Plaintiff notes
that while her original marketing photograph may not have
complied with Trustmark's Dress Guidelines - which is the
reason Trustmark gave for requiring a new photograph - that
original photograph had been approved by the Human Resources
Department and there was accordingly no need for her to have
her take a new marketing photograph. Whether or not there was
a need, however, merely requiring her to have a photograph
taken can hardly be characterized as materially adverse.
Likewise, while her order for business cards was delayed, she
offers no facts to suggest how she was adversely affected by
this delay. Finally, Trustmark's delay in issuing her
performance evaluation obviously does not rise to the level
of a materially adverse employment action.
plaintiff has failed to identify a single act that would
arguably qualify as a materially adverse employment action.
It follows that she cannot establish a prima facie case of
retaliation and ...