Brown v. Covenant Dove Corp.

          MEMORANDUM OPINION

          SHARION AYCOCCK UNITED STATES DISTRICT COURT JUDGE.

         After filing a charge of discrimination with the Equal Employment Opportunity Commission and receiving a right to sue letter, Loretha Brown filed this case against her former employer Covenant Dove. In her pro se Complaint [1], Brown alleges that Covenant Dove refused to promote her, retaliated against her, and harassed her because of her race, sex, and age. Covenant Dove filed a Motion for Summary Judgment [29] requesting judgment in its favor on all of Brown's claims. Brown did not file any response.

         Factual and Procedural

         Background

         Brown started working part time as a licensed practical nurse for health care provider Covenant Dove in September of 2014. In January of 2015, Brown moved into a full time position.^[1]Covenant Dove operates three shifts for nurses: 7:00 am to 3:00 pm, 3:00 pm to 11:00 pm, and 11:00 pm to 7:00 am. When she moved to full time, Brown worked the 11:00 pm to 7:00 am shift. Brown requested a move to the 7:00 am to 3:00 pm shift several times over the next few months. On September 1, 2015, Covenant Dove informed Brown that she could move shifts once they found someone to fill her place. On September 11, 2015, Covenant Dove moved Brown to her requested shift, 7:00 am to 3:00 pm.

         In February of 2016, Covenant Dove informed Brown that she was moving back to the later 11:00 pm to 7:00 am shift. According to Covenant Dove, a few schedule reassignments were necessary to provide adequate staffing on all of the shifts, and management made the reassignments based on seniority. Brown was unhappy with the change and filed a written grievance. Before Brown started her new shift assignment, she took one week of sick leave. Covenant Dove subsequently terminated Brown; however, her termination and the surrounding circumstances are not at issue in this case. Brown alleges that Covenant Dove discriminated against her based on her race, gender, and age when it refused to promote her to the shift assignment she wanted. Brown is an African American female and was approximately 47 years old at the relevant time. Brown also alleges that Covenant Dove subjected her to a hostile work environment.

         Standard of Review

         Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is warranted when the evidence reveals no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         In reviewing the evidence, factual controversies are to be resolved in favor of the non-movant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the Court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

         The moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324, 106 S.Ct. 2548 (citation omitted). This Court has no duty to “sift through the record in search of evidence to support” the nonmovant's opposition to summary judgment. Edwards v. Cont'l Cas. Co., 841 F.3d 360, 363 (5th Cir. 2016) (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).

         Adverse Employment Action

         To establish a claim under Title VII, 42 U.S.C. §§ 2000e, et seq., for discrimination based on race, gender, or retaliation a plaintiff must first establish a prima facie case under the familiar McDonnell Douglas burden-shifting framework. See, i.e., Heggemeier v. Caldwell Cty., Texas, 826 F.3d 861, 867-69 (5th Cir. 2016); Haire v. Bd. of Sup'rs of Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013). The same is true for age discrimination claims brought under the Age Discrimination in Employment Act 29 U.S.C. § 621, et seq.; see also Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013). It is well established that an adverse employment action is an essential element of the prima facie case for each of these claims. See Heggemeier, 826 F.3d at 867-69; Leal, 731 F.3d at 410; Haire, 719 F.3d at 363. Thus, in order to establish a prima facie case of discrimination based on race, gender, retaliation, or age, Brown must establish that she was subjected to an adverse employment action. See id.

         Brown alleges that she suffered an adverse action when Covenant Dove moved her back to the later shift, and then refused to keep her on her desired shift when she complained. Covenant Dove argues that the shift change was not an adverse action, and that Brown has not brought forth any evidence to the contrary.

         While the denial of a promotion can be an actionable adverse employment action, it is “well established that the denial of a purely lateral transfer is not an adverse employment action redressible under Title VII.” Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th Cir. 2007) (citing Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (“Refusing an employee's request for a purely lateral transfer does not qualify as an ultimate employment decision”); see also Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 ...