Quintero v. State of Texas ( 2023 )

Case: 22-50916 Document: 00516858124 Page: 1 Date Filed: 08/15/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 15, 2023
No. 22-50916 Lyle W. Cayce
____________ Clerk
Vanessa Quintero,
Plaintiff—Appellant,
versus
State of Texas - Health and Human Services
Commission,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CV-251
______________________________
Before Duncan and Wilson, Circuit Judges, and Schroeder, District
Judge. *
Per Curiam: †
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
†
This opinion is not designated for publication. See 5TH CIR. R. 47.5.
Case: 22-50916 Document: 00516858124 Page: 2 Date Filed: 08/15/2023
No. 22-50916
I. Background
A. Factual Background
Appellee-Defendant State of Texas – Health and Human Services
Commission (“HHSC”) hired Appellant-Plaintiff Vanessa Quintero as a
pharmacy technician in January 2019. Appellant was pregnant at the time
she was hired—she chose to disclose her pregnancy to her supervisor, Patty
Dominguez, a few weeks into her new job. Quintero alleges Dominguez
began harassing her because of her pregnancy. Eventually, Quintero was
terminated from HHSC for failure to follow instructions and
insubordination.
B. Procedural Background
Quintero brought Title VII and Pregnancy Discrimination Act claims
of pregnancy discrimination, hostile work environment, and retaliation
against HHSC. HHSC moved for summary judgment on these three claims.
The magistrate judge recommended granting HHSC’s motion, Quintero did
not object to the report and recommendation, and the district judge adopted
the magistrate judge’s findings in their entirety. Quintero timely appealed.
II. Jurisdiction
We have jurisdiction because Quintero challenges a final judgment. 28
U.S.C. § 1291.
III. Discussion
A. Standard of Review
Quintero argues the grant of summary judgment should be reviewed
de novo because the district court conducted “an independent review of the
record” to determine whether the findings of the report and
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recommendation were correct. HHSC argues the grant of summary
judgment should be reviewed for plain error because Quintero filed no
objections to the report and recommendation and the district court explicitly
stated it reviewed the report and recommendation for plain error.
Although a grant of summary judgment is typically reviewed de novo,
plain error review applies where “a party did not object to a magistrate
judge’s findings of fact, conclusions of law, or recommendation to the district
court” despite being “served with notice of the consequences of failing to
object.” Valentine v. Varco, 712 F. App’x 347, 349 (5th Cir. 2017) (per
curiam) (citations omitted) (unpublished); see Ortiz v. City of San Antonio
Fire Dep’t, 806 F.3d 822, 825–26 (5th Cir. 2015) (applying plain error review
to a grant of summary judgment when the appellant did not object to the
magistrate’s report and recommendation); Douglass v. United Servs. Auto
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc) (creating the rule that bars
a party from appellate review, except upon grounds of plain error, of
“unobjected-to proposed findings and conclusions” by the magistrate judge
that have been accepted by the district court if a party “has been served with
notice that such consequences will result from a failure to object”),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the
time to file objections from 10 to 14 days).
A de novo review may be appropriate in limited cases, such as when a
district court engages in an independent evaluation of the record despite the
failure of a party to object to the report and recommendation. See Guillory v.
PPG Indus., Inc., 434 F.3d 303, 308 & n.5 (5th Cir. 2005). In Guillory, the
district court’s order did not state that it conducted a plain error review when
it accepted the magistrate judge’s report and recommendation based on an
“independent review of the record.” See Guillory v. PPG Industries, Inc., Civ.
2:03-cv-882-JTT-APW, No. 53 (W.D. La. Sept. 22, 2004). That is not the
case here. Here, the district court explicitly stated it conducted a plain error
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review of the report and recommendation before unequivocally adopting the
magistrate’s report and recommendation. Accordingly, we review for plain
error. See Ortiz, 806 F.3d at 825–26.
Summary 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.” Fed. R. Civ. P. 56(a). “A factual issue is
genuine if the evidence is sufficient for a reasonable jury to return a verdict
for the non-moving party, and material if its resolution could affect the
outcome of the action.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222,
226 (5th Cir. 2015) (citations and internal quotations omitted). “Courts
must view the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party’s favor.” Cadena v. El Paso
Cnty., 946 F.3d 717, 723 (5th Cir. 2020).
B. Quintero’s Title VII Pregnancy Discrimination Claim
A plaintiff asserting a Title VII discrimination claim carries the initial
burden of establishing a prima facie case of pregnancy discrimination. Young
v. United Parcel Serv., Inc., 575 U.S. 206, 228 (2015) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Quintero relies on
statements made by Dominguez after the disclosure of her pregnancy,
including statements made during the hiring of new staff to satisfy this
burden. Accordingly, we agree with the district court’s finding that this
evidence sufficiently carried Quintero’s initial burden of showing pregnancy
discrimination.
After the plaintiff establishes a prima facie case of discrimination, the
burden shifts to the employer “to articulate some legitimate, non-
discriminatory reason[s] for” the adverse employment action against the
plaintiff. Young, 575 U.S. at 213 (citing McDonnell Douglas, 411 U.S. at 802).
Appellee argues it dismissed Quintero because of her alleged insubordination
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and failure to follow directions, identifying incidents such as Quintero’s
failure to speak to a nurse and complete an assigned presentation.
Accordingly, we agree with the district court’s finding that this proffered
evidence was sufficient to show that HHSC had a legitimate, non-
discriminatory reason for Quintero’s dismissal.
Whether Quintero proffered substantial evidence to show pretext is a
much closer question. Quintero failed to clearly articulate pretext arguments
before the district court. In the district court, Quintero argued (1) she was
not notified of the reason for her termination upon her dismissal, (2) the
specific incidents of insubordination and failure to follow directions raised by
Appellee did not occur or were not reasons for dismissal because there was
no documentation or corrective action, and (3) the temporal proximity
between the protected activity and her dismissal showed pretext. On appeal,
Quintero has offered new theories of pretext. These new allegations of
pretext will not be considered because Quintero did not articulate these
theories before the district court. See, e.g., Intercity Ambulance Emergency
Med. Technicians, LLC v. City of Brownsville, Texas, 655 F. App’x 1005, 1008
(5th Cir. 2016) (per curiam).
First, there is no genuine dispute that Quintero was dismissed during
her probationary period, and her termination letter identified
insubordination and failure to follow directions as the reason for her
dismissal. Second, Quintero admitted she committed the incidents HHSC
complained of, such as forgetting to prepare an assigned presentation and not
following instructions. In light of these admissions, 1 Quintero does not offer
evidence sufficient to show Appellee’s reasons for dismissal lack truth or
_____________________
1
While before the district court, Appellant argued there was a “dearth” of
evidence about the alleged insubordination and failure to follow instructions. Her own
admission that these acts occurred renders the lack of documentation irrelevant.
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credence. See e.g., Collier v. Dallas Cnty. Hosp. Dist., 827 F. App’x 373, 376
(5th Cir. 2020) (per curiam), cert. denied, 141 S. Ct. 2657 (2021) (finding
appellant did not meet his burden when there was no dispute that certain
insubordinate acts occurred, and no other evidence of pretext was offered).
Finally, Quintero’s argument that the timing of her dismissal demonstrates
pretext fails because Quintero has not shown she engaged in a protected
activity. See infra, Section III.D.
Accordingly, Quintero failed to show pretext before the district court,
and we affirm its ruling regarding pretext at the motion for summary
judgment phase.
C. Quintero’s Title VII Retaliation Claim
Quintero argues that she presented sufficient evidence to support a
retaliation claim because she “was retaliated against when [she] complained
about the unfair treatment. . . because of my pregnancy.” Quintero also
characterizes her termination as retaliation in response to her pregnancy.
We affirm the district court’s finding that the retaliation claim should
be dismissed. “An employee has engaged in protected activity when [she]
has (1) ‘opposed any practice made an unlawful employment practice’ by
Title VII [opposition clause] or (2) ‘made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing’ under
Title VII [participation clause].” Riley v. Napolitano, 537 F. App’x 391, 392
(5th Cir. 2013) (per curiam) (alterations in original, citations omitted).
Quintero’s disclosure of her pregnancy does not rise to the level of a
protected activity for the purposes of a Title VII retaliation claim because a
disclosure of this type does not fall under the opposition or participation
clause. Similarly, Quintero’s general complaint about Dominguez’s “unfair
treatment” and “rude behavior” does not rise to the level of making a charge
of discrimination. Making a general complaint about mistreatment or
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“hostile work environments” does not qualify as a protected activity under
Title VII. Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 493 (5th Cir.
2011) (per curiam) (collecting cases to support a finding that a complaint
about a “hostile work environment” did not comprise a “protected activity”
under Title VII).
Accordingly, Quintero has not raised sufficient facts to show she
engaged in a protected activity.
D. Quintero’s Title VII Hostile Work Environment Claim
Quintero argues there was a hostile environment because Dominguez
yelled at Quintero, changed Quintero’s shifts at the last minute and without
notice, and falsely accused Quintero of being inflexible, insubordinate, and
unable to follow instructions after Dominguez discovered Quintero’s
pregnancy. Appellee argues that Dominguez is “a demanding supervisor and
tough on everybody.” Appellee argues that even though the workplace may
have been uncivil, Quintero did not show this lack of civility was based on
Quintero’s status as a pregnant woman.
The district court found that Quintero only offered unsubstantiated
accusations and conclusory allegations that the alleged harassment occurred
because of Quintero’s protected status. But “[w]hether [Quintero’s]
allegations are too vague to ultimately carry the day is a credibility
determination, or requires weighing the evidence, both of which are more
appropriately done by the trier of fact.” Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 436 (5th Cir. 2005). There is evidence on both sides
as to whether Dominguez treated Quintero differently, and more harshly,
than other employees, including the testimony of other employees. Similarly,
there is evidence on both sides as to Dominguez’s motivation for the
allegedly hostile conduct.
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However, after reviewing the relevant evidence and drawing all
reasonable inferences in Quintero’s favor without making any credibility
determinations, we agree with the district court’s assessment that the
conduct alleged by Quintero was not sufficiently severe or pervasive to affect
a term or condition of her employment. Title VII is not a “general civility
code” and the conduct Quintero complains of, even when taken as true,
comprises “the ordinary tribulations of the workplace, such as the sporadic
use of abusive language,” poor communication, and scheduling issues.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The conduct at issue
here does not rise to the level of “extreme” that amounts to a change in the
terms and conditions of employment. Id. At most, Quintero’s evidence,
when taken as true, shows that the work environment was uncomfortable—
but an uncomfortable workplace is not sufficient to sustain a claim of hostile
work environment under Title VII. See, e.g., Kumar v. Shinseki, 495 F. App’x
541, 543 (5th Cir. 2012) (per curiam).
For these reasons, we AFFIRM the district court’s ruling on
summary judgment.
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