Giovanni Filardo v. Baylor Scott and White Health

Affirm and Opinion Filed August 18, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01066-CV
GIOVANNI FILARDO, Appellant
V.
BAYLOR SCOTT AND WHITE HEALTH, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-18611
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Reichek
Opinion by Chief Justice Burns
Giovani Filardo appeals a summary judgment disposing of his claims against
his former employer Baylor Scott & White Health for discrimination, retaliation, and
hostile work environment. We affirm.
I. BACKGROUND1
Dr. Filardo is an Italian-born American. After obtaining a Ph.D. at Yale
University, Dr. Filardo was hired at Baylor Scott & White Health in 2004 as an
1
Writing this opinion presents an unusual problem because in this appeal from a summary
judgment, most of the summary judgment record is under a sealing order that we must respect. Kartsotis
v. Bloch, 503 S.W.3d 506, 510 (Tex. App.—Dallas 2016, pet. denied). However, we also must hand down
epidemiologist. In 2008, he helped found Baylor Health’s epidemiology department
and was appointed director of the department. In 2013, he was again promoted, this
time to an endowed chair position for cardiovascular epidemiology.
In 2017, Dr. Filardo successfully secured a $12.8 million grant from the
National Institute of Health for Baylor Health to enroll participants in a nationwide,
multiyear study called “All of Us.” Externally, Baylor Health was to coordinate its
efforts as part of a consortium of four healthcare networks that spanned seven states,
and the leader of this consortium was Henry Ford Health System. Internally, Dr.
Filardo’s efforts were to be coordinated with Baylor Scott & White Research
Institute. Dr. Filardo was appointed as Baylor Health’s principal investigator for the
study.
It is undisputed that under Dr. Filardo’s leadership, Baylor Health’s
enrollment efforts thrived. Dr. Filardo established numerous sites for the study
across Texas. Baylor Health recruited far more participants than other members of
the consortium and was in the top 5% of all participating groups in the country.
There was also evidence that Dr. Filardo devised innovative staffing methods to
which the success was partially attributable.
a public opinion explaining our decisions based on the record. See TEX. R. APP. P. 47.1, 47.3. Accordingly,
we have attempted to preserve the confidentiality of the information and have made some references
deliberately vague to avoid disclosing confidential details. See MasterGuard, L.P. v. Eco Techs. Int’l LLC,
441 S.W.3d 367, 371 (Tex. App.—Dallas 2013, no pet.).
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However, internally, there were complaints about Dr. Filardo’s management
style. Dr. Filardo was described by both his peers and subordinates as territorial,
aggressive, and unprofessional. According to Baylor Research’s COO Jaime
Walkowiak, there were also reports of deviations from study protocol.
In one complaint from 2016, a subordinate raised a number of red flags about
Dr. Filardo’s management, saying he often berated, threatened, and retaliated against
staff to the point that they quit or requested transfers, he handled performance
evaluations arbitrarily, and he compensated for a lack of personal diligence by
making unreasonable demands of his staff. We detail this complaint more fully
below. This employee requested a transfer away from Dr. Filardo’s team.
In November 2017, Dr. Filardo’s immediate supervisor, Dr. Andrew Masica,
counseled him about his manner. According to Dr. Masica’s memo from the
meeting, Dr. Filardo defended his style, saying that a certain level of assertiveness
was necessary to keep the study on track. Dr. Masica reminded him that conducting
research as the principal investigator was a privilege conditioned on professional,
collaborative behavior and cautioned Dr. Filardo that he needed to avoid negative
interactions with his colleagues.
In December 2017 and January 2018, Baylor Health management received
two more complaints concerning Dr. Filardo’s behavior. In one, another of Dr.
Filardo’s employees criticized his unprofessional, rude, and demeaning behavior and
relayed an anecdote in which a doctor had advised Dr. Filardo to go easier on his
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team, but Dr. Filardo demurred, saying aggression was simply a byproduct of his
personality and was a necessary expedient to success in the study. Another
complaint came from the CFO of Baylor Health, who narrated how when she had
attempted to talk to Dr. Filardo about regulatory compliance problems that could
have jeopardized funding for the study, Dr. Filardo reacted in an angry and
unprofessional fashion.
On February 1, 2018, Dr. Masica and Walkowiak held a meeting with Dr.
Filardo to address the complaints. Dr. Filardo reacted on February 4, 2018, by
sending a strongly worded email to Baylor Health’s human resources department in
which he objected to Baylor Research’s interference with his efforts on the study.
He also protested what he viewed as unfair and vague accusations of bad behavior,
saying these accusations were likely rooted in prejudice against and stereotypes
about Italian men, especially since Dr. Masica had made what Dr. Filardo described
as “light hearted” jokes about Italians in the past.
On February 7, 2018, Dr. Masica again met with Dr. Filardo to discuss his
management, including what Dr. Masica described as his aggressive interaction
style, his refusal to comply with policy, and his efforts to prevent any other managers
or departments from shaping the study except himself. When pressed about his
behavior, Dr. Filardo again stated that this was simply his personality and that he
was reluctant to change because he was concerned it would compromise the project’s
success.
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The reports concerning Dr. Filardo subsided until an April 2019 conference
call, when he reportedly yelled threats that he would fire whomever had reported an
issue concerning documentation. The call led to a human resources investigation, in
which three out of the eight witnesses to the call confirmed accusations regarding
Dr. Filardo’s hostility on the call and his general pattern of behavior, though five
witnesses reported that the call was normal.
Another of Dr. Filardo’s subordinates filed a complaint in May 2019. She
reported being asked to manage ten worksites at once, and thus business at the sites
was handled primarily by poorly trained interns without supervision, and the interns
did not seem to understand the importance of following study protocol. This
employee took issue with Dr. Filardo’s harshness, saying team members were afraid
to bring issues to him for fear of retaliation, and he was “constantly pointing fingers.”
She requested transfer to another department.
Later in May 2019, Dr. Masica again met with Dr. Filardo to counsel him. In
a June 2019 performance review, Dr. Masica praised Dr. Filardo’s enrollment efforts
and ability to innovate, though he rated Dr. Filardo three out of five in most other
categories and again noted his “intense and difficult” interactions with others.
According to Dr. Masica,, in November 2019 Baylor Health management
informed him of a plan to execute a strategic reorganization eliminating his entire
department, and the positions held by Dr. Filardo, Dr. Masica and his second in
command for the study, Teresa Phan. The vice president of Baylor Health’s human
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resources department testified the decision to dissolve the department was not made
by Dr. Masica, but by another member of Baylor Health’s executive team, Dr. Alex
Arroliga.
However, Dr. Masica and others testified Baylor Health put this
reorganization plan on hold when, later in November 2019, Henry Ford Health
System sent Baylor Health a formal notice to suspend work on the study.
Apparently, NIH received reports of protocol deviations in Baylor Health’s work,
and asked Henry Ford Health System to investigate. According to Baylor Health’s
evidence, Dr. Filardo’s cooperation was needed for the investigation, so it delayed
the decision to dissolve the department.
On December 20, 2019, Henry Ford Health System formally completed its
investigation and issued recommendations. Among its recommendations were the
appointment of a co-principal investigator alongside Dr. Filardo, retraining Baylor
Health staff assigned to the study, and direct oversight of Baylor Health’s handling
of the study by Henry Ford Health System.
On January 8, 2020, executives from Henry Ford Health System reportedly
met with Walkowiak and privately relayed additional findings learned during their
investigation but had not included in their formal recommendations: study staff felt
they could not bring issues forward for fear of retaliation by Dr. Filardo, whom they
described as a “tyrant.”
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On January 16, 2020, Dr. Filardo wrote an email to Walkowiak and others in
Baylor Health and Research’s management in which he categorically refused to
consider the appointment of a co-principal investigator and protested that Henry
Ford Health System had improperly conducted its investigation. Meanwhile, Dr.
Masica accepted a position with another hospital system and gave his resignation
notice to Baylor Health.
On January 23, 2020, Dr. Filardo wrote to the NIH to directly share concerns
about Baylor Health’s and Research’s mismanagement of the study.
On January 30, 2019, Dr. Masica told Dr. Filardo his position was terminated.
As Dr. Masica averred in his affidavit, “I was tasked with delivering the termination
message, although I had no role in deciding when it would be delivered.”
On March 12, 2020, Dr. Filardo filed charges of discrimination, retaliation,
and hostile work environment with the Texas Workforce Commission.2 He alleged
that Dr. Masica and Walkowiak had targeted him due to their animus against his
national origin and in retaliation for his disclosures about Baylor Health’s
mismanagement.
In December 2020, Dr. Filardo filed this lawsuit against Baylor Health. He
alleged discrimination and hostile work environment on the basis of his race, sex,
2
Filardo also reportedly filed similar charges with the Equal Employment Opportunity
Commission, though this charge does not appear in our record and is not relevant to this appeal. For
simplicity, we refer to the Texas charge as the sole charge for purposes of our discussion.
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and national origin, as well as retaliation, in violation of the Texas Commission on
Human Rights Act (TCHRA).
Baylor Health moved for traditional summary judgment, attacking Dr.
Filardo’s claims on many fronts. Dr. Filardo responded with evidence including his
own declaration and the February 4, 2019 email he sent to human resources
regarding, inter alia, Dr. Masica’s Italian jokes and attempts to counsel Dr. Filardo
for behavior, which Dr. Filardo viewed as a form of discrimination. Baylor Health
moved to strike several portions of Dr. Filardo’s declaration, and the trial court
granted the motion and struck the majority of the declaration. The trial court also
entered an agreed order that sealed Baylor Health’s half of the summary judgment
record, and granted summary judgment disposing of all Dr. Filardo’s claims. This
appeal followed.
II. SUMMARY JUDGMENT STANDARD
We review a grant of summary judgment de novo. Trial v. Dragon, 593
S.W.3d 313, 316 (Tex. 2019). If no grounds are specified for the ruling, we must
affirm if any of the grounds on which judgment is sought are meritorious. Merriman
v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). We credit evidence
favorable to the nonmovant if reasonable jurors could, and we disregard evidence
contrary to the nonmovant unless reasonable jurors could not. Timpte Indus. v. Gish,
286 S.W.3d 306, 310 (Tex. 2009).
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In a traditional motion, the movant has the burden to show there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law.
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018). A defendant
is entitled to summary judgment if it conclusively negates at least one element of the
plaintiff’s claim. Id.III. THE SEALING ORDER, CONTEMPT, AND OTHER INITIAL MATTERS
Baylor Health notes that in Dr. Filardo’s brief, he regularly cites to the
portions of his declaration that were struck by the trial court, though he does not
challenge the order striking this testimony. We do not consider this proof; evidence
that has been excluded by written order of the trial court is not part of the summary
judgment evidence to be considered. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294
(Tex. App.—Dallas 2009, no pet.).
Next, Baylor Health argues (1) Dr. Filardo inadequately briefed his issues due
to the scarcity of record citations in his brief and (2) he failed to preserve several of
the arguments he makes in support of his issues on appeal. We rule against Baylor
Health on both arguments. Our appellate rules are designed to resolve appeals on
the merits, and we liberally interpret and apply them whenever possible to achieve
that aim. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.
2005). In view of said preference, we hold Dr. Filardo’s appellate arguments are not
so fatally deficient they are inadequately briefed and not so devoid of a foundation
in the record they are unpreserved. See TEX. R. APP. P. 33.1; Li v. Pemberton Park
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Cmty. Ass’n, 631 S.W.3d 701, 704 (Tex. 2021) (party sufficiently preserves an issue
by arguing issue’s substance and party may construct new argument on appeal to
support an issue raised below).
Finally, Baylor Health observes Dr. Filardo attached two sealed documents to
his brief, and Baylor Health asks, without citation to authority, for Dr. Filardo to be
held in contempt for violation of the trial court’s sealing order. We struck Dr.
Filardo’s brief and ordered him to refile the brief without any sealed content in the
appendix. Dr. Filardo complied with the Court’s order, and we decline to hold him
in contempt.
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
In Dr. Filardo’s first issue, he contests the summary disposal of his claims for
hostile work environment in connection with his national origin, race, and sex. In
the trial court, Baylor Health argued that Dr. Filardo had failed to exhaust his
administrative remedies to the extent that he claimed hostile work environment
based on race and sex; Baylor Health did not deny that Dr. Filardo had exhausted
remedies as to his claim for hostile work environment based on national origin. The
trial court granted summary judgment disposing of all three hostile work
environment claims without stating grounds. Dr. Filardo argues on appeal that the
trial court erred to the extent that it disposed of any of his hostile work environment
claims due to failure to exhaust the administrative process.
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In his charge with the Texas Workforce Commission, Dr. Filardo alleged
hostile work environment, but he attributed the hostility only to his national origin.
He checked the charge’s boxes indicating that he faced discrimination on the basis
of his national origin, as retaliation, and “other,” below which he wrote “harassment
and hostile work environment”; he left the boxes for race and sex discrimination
empty. When asked to state the particulars of his complaint, Dr. Filardo wrote he
“was discriminated against, harassed, retaliated against and subjected to a hostile
environment based upon Claimant’s national origin, Italian . . . .” Left entirely
unmentioned in the factual portion of the charge were race and sex.
The exhaustion of administrative remedies is a prerequisite to filing suit under
the TCHRA. City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008); Hoffmann-
La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004). “The universe of
claims” a plaintiff may pursue in a TCHRA suit is defined “by the contours of the
administrative process.” See Stingley v. Watson Quality Ford, Jackson, MS, 836
Fed. App’x 286, 291 (5th Cir. 2020). “Courts should not condone lawsuits that
exceed the scope of . . . exhaustion, because doing so would thwart the administrative
process and peremptorily substitute litigation for conciliation.” Id. Thus, the charge
“must contain a sufficient factual basis to put the employer on notice of the existence
and nature of the charges.” Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 475
(Tex. App.—El Paso 2013, pet. denied).
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“That said, courts considering the scope of [a charge] should not be stingy
when assessing the litigable claims it encompasses.” Stingley, 836 Fed. App’x at
291. We construe the charge liberally and not solely by the scope of the charge
itself, but by the scope of the investigation that can reasonably be expected to grow
out of the charge. Melgar v. T.B. Butler Publ’g Co., Inc., 931 F.3d 375, 379 (5th
Cir. 2019); accord Alief Indep. Sch. Dist. v. Brantley, 558 S.W.3d 747, 756 (Tex.
App.—Houston [14th Dist.] 2018, pet. denied) (prescribing the “utmost liberality”
in reviewing charge allegations for exhaustion so long as a factual basis is provided).
The required factual basis might be supplied “either by checking the appropriate box
or otherwise describing the alleged discriminatory conduct in the narrative section
of their charge.” Jefferson v. Christus St. Joseph Hosp., 374 Fed. App’x 485, 490
(5th Cir. 2010); accord Anderson v. Venture Express, 694 Fed. App’x 243, 247 (5th
Cir. 2017). Failure to fill in the appropriate box in the charge warrants summary
judgment on exhaustion grounds only when coupled with a failure to describe the
general nature of the claim in the charge’s narrative section. Williams v. Tarrant
Cnty. Coll. Dist., 717 Fed. App’x 440, 445 (5th Cir. 2018).
We agree Dr. Filardo exhausted his administrative remedies for his national
origin hostile work environment claims. Dr. Filardo complained of hostile work
environment and tied that complaint to national origin both by checking the “national
origin” box and alleging he was “subjected to a hostile environment based upon
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Claimant’s national origin, Italian.” To that extent, we sustain Dr. Filardo’s first
issue.
However, Dr. Filardo did not check the boxes on the charge that could have
indicated his claims had a race- or sex-oriented dimension. Further, the narrative
portion of his charge did not associate the hostility he faced with his race or sex—it
said nothing about those traits. The charge solely mentioned hostile work
environment on the basis of national origin, and thus only that claim was exhausted.
See Cross v. Napolitano, No. CIV.A. H-08-0910, 2009 WL 3246611, at *1 (S.D.
Tex. Oct. 5, 2009) (“Although Cross did administratively assert a race-based hostile
environment claim, he never claimed a hostile work environment based on age or
gender as currently alleged in his Complaint. Thus[,] there is no subject matter
jurisdiction over such claims in this court.”).
Because nothing in Dr. Filardo’s charge could have apprised Baylor Health of
an allegation it had subjected him to hostility on the basis of race or sex, he failed as
a matter of law to exhaust his administrative remedies for his race- and sex-based
hostile work environment claims. The trial court was correct to grant summary
judgment on those claims. To that extent, we overrule Dr. Filardo’s first issue.
V. DISCRIMINATION AND RETALIATION
In his second and fourth issues, Dr. Filardo appeals the summary judgment
disposing of his claims for discrimination and retaliation under the TCHRA. Dr.
Filardo argues that he satisfied his burden with respect to all elements of the prima
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facie case for both claims and also produced evidence that Baylor Health’s reasons
for its adverse actions were pretextual.
With respect to his discrimination and retaliation claims, although Dr. Filardo
complains of several employment actions, only one was adverse, his termination.
As to his termination, Dr. Filardo failed to rebut Baylor’s legitimate, non-
discriminatory reason for his discharge. As to his claim of hostile work
environment, Dr. Filardo failed to produce evidence that his treatment was based on
a protected characteristic. Consequently, the trial court was correct to summarily
dispose of both claims.
A. General Applicable Law
The TCHRA “is a comprehensive fair employment practices act and remedial
scheme, modeled after Title VII of the federal Civil Rights Act of 1964 (Title VII)
that provides the framework for employment discrimination claims in Texas.”
Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 502–03 (Tex. 2012) (footnote
omitted). The TCHRA “was enacted to address the specific evil of discrimination
and retaliation in the workplace,” and was designed to “conform with parallel federal
employment discrimination laws.” Lopez, 259 S.W.3d at 153–54. While we
consider the TCHRA’s plain language and state precedent in interpreting the statute,
we also look to federal law for interpretive guidance about whether the TCHRA
satisfies its legislative mandates executing the policies of Title VII and subsequent
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amendments. Crutcher v. Dall. Indep. Sch. Dist., 410 S.W.3d 487, 492 (Tex. App.—
Dallas 2013, no pet.) (quoting TEX. LABOR CODE § 21.001(1)).
While a retaliation claim may be proved through direct or circumstantial
evidence, “motives are often more covert than overt, making direct evidence of
forbidden animus hard to come by.” Mission Consol. Indep. Sch. Dist. v. Garcia,
372 S.W.3d 629, 634 (Tex. 2012). In the absence of direct evidence of
discrimination, the employee may rely on the McDonnell Douglas burden-shifting
analysis to prove his case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
05 (1973). Under this framework, the plaintiff is entitled to a presumption of
discrimination if he meets the minimal initial burden of establishing a prima facie
case of discrimination. Garcia, 372 S.W.3d at 634. To make out a prima facie case
for discriminatory termination, the plaintiff must show he or she was (1) a member
of the class protected by the TCHRA, (2) qualified for his or her employment
position, (3) terminated by the employer, and (4) treated less favorably than similarly
situated members of the class. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.
2008).
Once a prima facie case is established, the burden then shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the adverse employment
action. Crutcher, 410 S.W.3d at 493. If the employer does so, the burden shifts
back to the plaintiff to demonstrate the employer’s reason is a pretext for
discrimination. Id. To carry this burden, the plaintiff must rebut each
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nondiscriminatory or nonretaliatory reason articulated by the employer. Id. (quoting
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)).
The same burden-shifting analysis used in discrimination claims is also used
in a retaliation claim. McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 555 (Tex.
App.—Dallas 2006, no pet.). To establish a prima facie case of retaliation, a plaintiff
must show that (1) he or she engaged in an activity protected by the TCHRA, (2) he
or she experienced a material adverse employment action, and (3) a causal link exists
between the protected activity and the adverse action. Alamo Heights Indep. Sch.
Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018). If the plaintiff meets his or her
burden to establish a prima facie case of retaliation, the burden shifts to the defendant
to demonstrate a legitimate, nonretaliatory purpose for the adverse employment
action. Id. The plaintiff then assumes the burden to present proof that the stated
reason was pretextual. Id.B. Adverse Employment Action
To evaluate Dr. Filardo’s case on pretext for discrimination and retaliation, it
is necessary to explore the adverse employment aspect of Dr. Filardo’s prima facie
case because he alleges there were three such actions, and Baylor Health’s reasons
for taking each action vary. We begin by determining which, if any, of these actions
constituted adverse employment action.
The TCHRA does not protect employees from all adverse employment action,
only from actions that are “materially adverse.” Alamo Heights, 544 S.W.3d at 788..
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Materially adverse “means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. “This objective materiality
requirement is necessary to separate significant from trivial harms.” Id. (internal
quotation omitted).
According to Dr. Filardo, the first adverse employment action he suffered was
Baylor Health’s refusal to investigate the complaints of discrimination, harassment,
and retaliation that he filed with human resources. He refers to an email he sent to
the head of Baylor Health’s human resources department on February 4, 2018. The
main themes of this email were to protest his conflict with Baylor Health leadership,
their interference with his management of the study, and their unfair criticism of his
behavior, which Dr. Filardo attributed to his national origin.
We note Dr. Filardo produced no evidence that Baylor Health refused to
investigate these complaints. Regardless, viewing matters in the light most
favorable to Dr. Filardo, we assume for discussion this email reflects a complaint of
discrimination that Baylor Health refused to investigate. But, it is well established
in Texas federal courts that a failure to investigate an employee’s complaint is not
an adverse employment action for purposes of either a discrimination or retaliation
claim. See Butler v. Collins, No. 3:18-CV-00037-E, 2023 WL 318472, at *14 (N.D.
Tex. Jan. 19, 2023); Gibson v. Hoshizaki Am., Inc., No. 4:20-CV-046-A, 2021 WL
200523, at *6 n.7 (N.D. Tex. Jan. 20, 2021); Leckemby v. Greystar Mgmt. Servs.,
LP, No. 1:13-CV-873-DAE, 2015 WL 3408667, at *7 (W.D. Tex. May 26, 2015).
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One outlier from this general rule appears to be Marshall v. McDonough, a case in
which a magistrate judge reasoned a failure to investigate a claim was potentially
actionable when the failure was concretely identified as the catalyst for the plaintiff’s
termination, but said circumstance is not present in this case. No. 2:20-CV-215-M-
BR, 2021 WL 3917001, at *7 (N.D. Tex. July 15, 2021), report & rec. adopted, No.
2:20-CV-215-M-BR, 2021 WL 3912804 (N.D. Tex. Sept. 1, 2021). We agree with
Butler, Gibson, and Leckemby and apply their holdings here: the failure to
investigate Dr. Filardo’s complaint was not actionable as adverse employment
action.
Next, Dr. Filardo argues that Baylor Health’s appointment of a coequal
principal investigator for the study constituted an adverse employment action.
However, Dr. Filardo produced no admissible evidence to show that Baylor Health
did indeed appoint another principal investigator alongside him before his position
was terminated. We therefore do not consider whether this move might have
constituted an adverse employment action.
Finally, Dr. Filardo submits that his termination constituted an adverse
employment action. “Termination is unquestionably a materially adverse
employment action.” Clark, 544 S.W.3d at 788–89.
We conclude that Dr. Filardo faced only one adverse employment action in
the form of his termination.
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C. Legitimate, Nondiscriminatory, and Nonretaliatory Reasons for the
Termination
We assume arguendo Dr. Filardo produced evidence sufficient to establish the
remainder of his prima facie case. Under this assumption, the burden shifted to
Baylor Health to produce evidence of a legitimate, nondiscriminatory, and
nonretaliatory reason for the termination.
“[I]t is relatively easy . . . for a defendant to articulate legitimate,
nondiscriminatory reasons for his decision . . . .” Amburgey v. Corhart Refractories
Corp., 936 F.2d 805, 811 (5th Cir. 1991). To satisfy its burden, “[t]he employer
need only articulate a lawful reason, regardless of what its persuasiveness may or
may not be.” Bodenheimer v. PPG Indus., Inc. 5 F.3d 955, 958 (5th Cir. 1993). The
burden of production determination necessarily precedes the creditability-
assessment stage, which occurs later. Id.Baylor Health offered two reasons for its decision to terminate Dr. Filardo.
The first was his pattern of behavior—namely, his domineering, aggressive, and
unprofessional manner and his tendency to berate subordinates and retaliate against
those who questioned his methods. Despite multiple attempts to counsel Dr. Filardo,
there was evidence he continued this pattern of behavior until his termination. When
confronted about his behavior, Dr. Filardo explained his temperament simply
represented his personality and he was reluctant to change his management style for
fear of undercutting his efficacy. In the end, this behavior resulted in multiple
documented internal complaints and requests to transfer away from Dr. Filardo’s
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department, and still other concerning reports from staff that were relayed to Baylor
Health by the consortium lead of the study, Henry Ford Health System, following
its investigation into Dr. Filardo’s management. Dr. Filardo’s pattern of behavior
constituted a legitimate, nondiscriminatory, and nonretaliatory reason for the firing.
See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010) (citing
confirmed reports of unprofessional behavior by a manager as a nondiscriminatory
reason); see also Gill v. DIRTT Env’t Sols., Inc., 790 Fed. App’x 601, 605 (5th Cir.
2019) (same as to “numerous complaints from [the plaintiff’s] colleagues regarding
her unprofessional behavior”); Gudger v. CITGO Petro. Corp., 574 Fed. App’x 493,
497 (5th Cir. 2014) (same as to “escalating communication and behavioral
problems”); Barrera v. Worldwide Flight Servs., Inc., 220 Fed. App’x 253, 254 (5th
Cir. 2007) (same as to “harassing and intimidating behavior”).
As another reason for the termination, Baylor cites its decision to eliminate
Dr. Masica’s and Dr. Filardo’s entire department as part of a system-wide
reorganization, for which Dr. Masica was not the decisionmaker. It is undisputed
that the department was indeed liquidated and that Dr. Masica himself, whom Dr.
Filardo charged with discriminatory intent, found a position with a different hospital
system in the leadup to Dr. Filardo’s termination. It is also undisputed Dr. Filardo’s
number two in command for the study, Phan, was also fired immediately after Dr.
Filardo’s termination. A reduction-in-force is a legitimate, nondiscriminatory, and
nonretaliatory reason for an employee’s termination. City of Dallas v. Siaw-Afriyie,
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No. 05-19-00244-CV, 2020 WL 5834335, at *10 (Tex. App.—Dallas Oct. 1, 2020,
no pet.) (mem. op.); McCoy, 183 S.W.3d at 556.
We conclude Baylor Health produced two legitimate, nondiscriminatory, and
nonretaliatory reasons for Dr. Filardo’s termination.
D. Pretext
The burden then shifted back to Dr. Filardo to present evidence creating a
genuine fact issue as to whether the reasons stated by Baylor Health were not its true
reasons, but instead were pretextual or not credible. Crutcher, 410 S.W.3d at 497.
An employer is entitled to judgment as a matter of law if the record conclusively
establishes some other permissible reason for the employer’s decision, or if the
plaintiff creates only a weak issue of fact as to whether the employer’s reason was
untrue and there was abundant and uncontroverted independent evidence that no
discrimination or retaliation had occurred. See id. (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)). The issue at the pretext stage is
not whether the employer made an erroneous decision; it is whether the decision,
even if incorrect, was the real reason for the employment determination. Id. The
employer is entitled to be unreasonable so long as it does not act with prohibited
animus. Id. (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.
2002)).
Dr. Filardo failed to meet this burden. Indeed, this case lacks any of the
typical forms of pretext evidence. Instead, the available record evidence suggests
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the nondiscriminatory and nonretaliatory reasons Baylor Health proposed—Dr.
Filardo’s unprofessional behavior and a system-wide reorganization that liquidated
his entire department—were its actual motivation to terminate Dr. Filardo.
Apparent inconsistencies between the explanations an employer has offered
may be useful evidence on pretext, but here were no such inconsistencies. Nasti v.
CIBA Specialty Chems. Corp., 492 F.3d 589, 594 (5th Cir. 2007); see Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 413 (5th Cir. 2007). Rather,
Baylor Health’s explanation appears to have remained consistent over time: before
the firing, Baylor Health repeatedly counseled Dr. Filardo on his aggressive manner,
and since the firing, Baylor Health has continued to offer the same two reasons for
its decision as it does on appeal.
Failure to follow established policy and law may also contribute toward a
pretext fact issue. See Smith v. Xerox Corp., 371 Fed. App’x 514, 517 (5th Cir.
2010) (“What was not disputed, however, was that Xerox’s policies generally state
that counseling and coaching of employees should occur prior to the issuance of
formal warning letters, yet Xerox offered no documentation supporting Jankowski’s
claim that he did counsel Smith before placing her on probation.”). Here, however,
there was no evidence that Baylor Health deviated from policy or this state’s at-will
employment laws by ending Dr. Filardo’s employment.
And lack of documentation otherwise regularly kept may tend to show pretext.
See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015)
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(citing Laxton v. Gap Inc., 333 F.3d 572, 580 (5th Cir. 2003), and Evans v. City of
Houston, 246 F.3d 344, 355–56 (5th Cir. 2001)) (“Here, as in Laxton and Evans, we
face a lack of contemporaneous documentation coupled with evidence that such
documentation should exist. As in Evans, such documentation was created after
Burton came within the protections of the ADA and after the termination decision.
Under the circumstances, this is additional circumstantial evidence of pretext.”). But
the record contains no shortage of contemporaneous documentation about Dr.
Filardo’s behavior, requests to transfer out of his department, an outside health
system’s investigation that confirmed the complaints and yielded still others, and
management’s attempts to adjust his course—during which Dr. Filardo seemed to
dismiss the complaints. These documented complaints and their confirmation
through a good faith investigation directly supported Baylor Health’s stated concerns
about Dr. Filardo’s behavior. See Gudger, 574 Fed. App’x at 497–98 (citing number
of behavior complaints and good faith investigation thereof as evidence that cut
against pretext); Barrera, 220 Fed. App’x at 254 (same).
As for the other reason Baylor Health offered for the termination—its decision
to downsize the entire department—Dr. Filardo relies on his outstanding
performance metrics and qualifications as a means of establishing this reason was
pretext. See, e.g., Kanen v. DeWolff, Boberg & Assocs., Inc., No. 05-20-00126-CV,
2022 WL 152527, at *4 (Tex. App.—Dallas Jan. 18, 2022, pet. denied) (mem. op.).
However, “[i]n many reduction in force cases, the plaintiff’s qualifications for his
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job are less relevant since some employees will have to be let go despite competent
performance.” Walther v. Lone Star Gas Co., 952 F.2d 119, 124 (5th Cir. 1992).
Dr. Filardo produced no evidence other, less qualified employees were spared from
the department’s liquidation—and again, an apparent cause of the liquidation was
Dr. Masica himself, whom Dr. Filardo alleged to be one of the two actors guilty of
discrimination and retaliation. See id.Inculpatory comments not amounting to direct evidence of animus may still
potentially be considered as circumstantial evidence of pretext if certain conditions
are met, see Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 475–76 (5th Cir.
2015), and nonverbal expressions of animus may serve the same function under
certain circumstances, see Khalfani v. Balfour Beatty Comtys., L.L.C., 595 Fed.
App’x 363, 366 (5th Cir. 2014). In this case, though, the only evidence of
communication in this vein is Dr. Filardo’s own self-serving proof, in which he
objected to Dr. Masica making jokes about Italians that Dr. Filardo himself described
as “light-hearted.” See Jackson, 602 F.3d at 379–80 (concluding that self-serving
testimony and a “stray remark” with a discriminatory overtone were insufficient to
create a fact issue on pretext). Moreover, in his declaration, Dr. Masica denied
making “any jokes, light-hearted or otherwise, about Italians to Dr. Filardo,” and
there was testimony that Dr. Masica was not the ultimate decisionmaker in Dr.
Filardo’s termination. See Goudeau, 793 F.3d at 475–76 (explaining that for an off-
base comment to be a circumstantial “ingredient in the overall evidentiary mix,” they
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must show animus “on the part of a person that is either primarily responsible for
the challenged employment action or by a person with influence or leverage over the
relevant decisionmaker”). These alleged jokes are no evidence of pretext.
There was also no pattern and practice evidence that Baylor Health had
discriminated or retaliated against anyone else. “[C]ircumstantial proof of
discrimination typically includes unflattering testimony about the employer’s
history and work practices—evidence which in other kinds of cases may well
unfairly prejudice the jury against the defendant.” Kelly v. Boeing Petro. Servs.,
Inc., 61 F.3d 350, 360 (5th Cir. 1995). “In discrimination cases, however, such
background evidence may be critical for the jury’s assessment of whether a given
employer was more likely than not to have acted from an unlawful motive.” Id. This
critical evidence is lacking in our record.
In sum, Dr. Filardo failed to produce any admissible evidence to create a fact
issue on pretext, and Baylor Health conclusively established the credibility of its
stated reasons. Baylor Health was therefore entitled to summary judgment on Dr.
Filardo’s discrimination and retaliation claims. We overrule Dr. Filardo’s second
and fourth issues.
VI. HOSTILE WORK ENVIRONMENT
In his third issue, Dr. Filardo contests summary judgment on his national
origin hostile work environment claim. We conclude Baylor Health conclusively
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established the alleged harassment Dr. Filardo faced was not driven by prohibited
animus but by Baylor Health’s legitimate business needs.
A hostile work environment claim entails ongoing harassment, based on the
plaintiff’s protected characteristic, so severe or pervasive it alters the conditions of
employment and creates an abusive working environment. In re Parkland Health &
Hosp. Sys. Litig., No. 05-17-00670-CV, 2018 WL 2473852, at *8 (Tex. App.—
Dallas June 4, 2018, no pet.) (mem. op.); Anderson v. Houston Cmty. Coll. Sys., 458
S.W.3d 633, 646 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The elements of
a prima facie case of hostile work environment are (1) the employee belongs to a
protected group; (2) the employee was subjected to unwelcome harassment; (3) the
harassment complained of was based on the protected characteristic; (4) the
harassment complained of affected a term, condition, or privilege of employment;
and (5) the employer knew or should have known of the harassment and failed to
take prompt remedial action. Parkland, 2018 WL 2473852, at *8; Anderson, 458
S.W.3d at 646. An employee complaining of harassment by a supervisor need only
show the first four elements. Parkland, 2018 WL 2473852, at *8.
According to Dr. Filardo, the harassment consisted of the following:
 Dr. Masica occasionally made what Dr. Filardo described as “light-
hearted” Italian jokes, but after Dr. Masica counseled Dr. Filardo on his
behavior, Dr. Filardo came to view these jokes as discriminatory;
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 Baylor Research attempted to assert control over the study “as if the
responsibility of the execution of the study has been awarded to them”;
 Dr. Masica told Dr. Filardo that he could be removed as the principal
investigator if he were not careful;
 Dr. Filardo experienced months of “aggressive back and forth” when
negotiating the contracts for the study, whereas all other institutions
participating in the study completed similar negotiations in just a few
weeks;
 Baylor Health delayed payments for some expenditures that Dr. Filardo
requested, such as phlebotomy training for his staff;
 When he had marketing materials printed for the study, he initially put
Baylor Health’s logo on the materials; Baylor Research intervened in the
second run of printing, paused the process, and instructed that Baylor
Research’s logo should be included instead; and
 On February 1, 2018, Walkowiak and Dr. Masica had a meeting with Dr.
Filardo to counsel him concerning his behavior.
Even assuming these incidents represented severe and pervasive harassment,
Baylor Health has established as a matter of law these incidents had nothing to do
with Dr. Filardo’s nationality. To be actionable, the harassment must be based on a
protected characteristic—here, national origin. Id. The Fifth Circuit has held that
harassment motivated by something other than a plaintiff’s membership in a
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protected class lies beyond the scope of our discrimination laws. Stingley, 836 Fed.
App’x at 289. “It is not enough to establish that a plaintiff is a member of a protected
class and that he has been harassed—the plaintiff must show that he was harassed
because of his membership in a protected class.” Id. at 288 (cleaned up); see Clark
v. Champion Nat’l Sec., Inc., 952 F.3d 570, 586 (5th Cir. 2020). Applying similar
thinking, one Texas district court granted summary judgment on a hostile work
environment claim because the alleged acts of harassment were “not facially racial”
and the plaintiff had offered no evidence to “link[]” the acts “to her race.” Daniels
v. BASF Corp., 270 F. Supp. 2d 847, 855 (S.D. Tex. 2003); see Barnes v. Prairie
View A & M Univ., No. 14-15-01094-CV, 2017 WL 2602723, at *4 (Tex. App.—
Houston [14th Dist.] June 15, 2017, pet. denied) (mem. op.) (“As to Barnes’s other
allegations of harassing conduct, which primarily involved her supervisor, she does
not point to any evidence that they were racially motivated or part of a pattern of
race-based harassment.”).
Other federal courts of appeal have evaluated hostile work environment
claims under the same rubric. See, e.g., Williams v. CSX Transp. Co., 643 F.3d 502,
511–12 (6th Cir. 2011); Wood v. Univ. of Pittsburgh, 395 Fed. App’x 810, 815 (3d
Cir. 2010); Enwonwu v. Fulton-Dekalb Hosp. Auth., 286 Fed. App’x 586, 602 (11th
Cir. 2008). “Everyone can be characterized by sex, race, ethnicity, or (real or
perceived) disability; and many bosses are harsh, unjust, and rude.” Alfano v.
Costello, 294 F.3d 365, 377 (2d Cir. 2002). “It is therefore important in hostile work
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environment cases to exclude from consideration personnel decisions that lack a
linkage or correlation to the claimed ground of discrimination.” Id. Otherwise, we
risk becoming “a court of personnel appeals.” Id.“To support a hostile work environment claim, the plaintiff need not show
that the complained-of conduct was explicitly racial, but must show it had a racial
character or purpose.” Paschall v. Tube Processing Corp., 28 F.4th 805, 814 (7th
Cir. 2022). “Although a connection between the harassment and the plaintiff’s
protected class need not be explicit, there must be some connection, for not every
perceived unfairness in the workplace may be ascribed to discriminatory motivation
merely because the complaining employee belongs to a racial minority.” Id.(internal quotation omitted). “Nevertheless, forms of harassment that might seem
neutral in terms of race can contribute to a hostile work environment claim if other
evidence supports a reasonable inference tying the harassment to the plaintiff’s
protected status.” Id. (cleaned up); O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d
1093, 1097 (10th Cir. 1999) (“Facially neutral abusive conduct can support a finding
of gender animus sufficient to sustain a hostile work environment claim when that
conduct is viewed in the context of other, overtly gender-discriminatory conduct.”).
Applying these principles, Dr. Filardo’s hostile work environment claim fails
as a matter of law. Dr. Filardo produced no evidence of animus that might fuel a
hostile work environment claim except Italian jokes made by his supervisor prior to
2018. But Dr. Filardo himself described these jokes as “light hearted,” and we have
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already determined that these jokes were not circumstantial evidence of animus. By
contrast, the six other forms of alleged harassment by Baylor Health’s upper
management—which consisted of attempting to assert control over the study’s
financing, marketing, personnel, and contractual foundations—were facially neutral
and free from prohibited animus. Dr. Filardo offered nothing to show that these
seemingly legitimate business moves were “infected by discriminatory animus.” See
Alfano, 294 F.3d at 377; cf. Melvin v. Barr Roofing Co., 806 Fed. App’x 301, 309
(5th Cir. 2020) (“Consistent racial slurs are certainly based on race.”); Henry v.
CorpCar Servs. Hous., Ltd., 625 Fed. App’x 607, 612 (5th Cir. 2015) (collecting
cases in which overt discriminatory overtones surrounding the harassment were held
sufficient to establish a basis in a protected trait).
Conversely, Baylor Health offered proof showing its actions were unrelated
to Dr. Filardo’s Italian heritage and were made to bring the study and Dr. Filardo’s
management methods back into balance. This evidence included the numerous
complaints, the attempts to correct his behavior, and the investigation that halted
Baylor Health’s participation in the study. For instance, in a complaint from August
2016, one of Dr. Filardo’s subordinates requested a transfer away from his
department because:
 he often berated staff, causing several of the interns who executed the study
to quit or request transfers;
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 the subordinate was reluctant to go to human resources because she feared
retaliation since Dr. Filardo had threatened to fire them or strip their
bonuses;
 Dr. Filardo rationed and arbitrarily assigned good performance ratings
using a random number generator;
 her original supervisor transferred out of the department after negative
interactions with Dr. Filardo;
 Dr. Filardo and others in the study team’s management routinely arrived
at the office as late as 10 a.m. or 1 p.m. and left as early 3 or 4 p.m.;
 Dr. Filardo frequently failed to communicate with the lower-tiered
employees, yet asked them to be available by phone 24/7, leading to calls
after midnight;
 Dr. Filardo took six months of combined sick leave and vacation in the
early part of one year, and authorized three months of leave for one team
manager below him and a month off for another manager, yet denied
lower-tiered staff any vacation at all over the summer or Christmas; and
 during their frequent absences, the study team’s management shifted the
bulk of their work onto the person requesting the transfer while offering
her no additional compensation.
Following this report, Dr. Masica documented a private meeting in which he
counseled Dr. Filardo on his behavior, but Dr. Filardo dismissed the feedback,
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saying that his methods were necessary to keep the study on track. And during the
term of the study from 2017 through 2019, there were many similar grievances and
attempts to correct Dr. Filardo’s behavior, but Dr. Filardo summarily dismissed both
the complaints and the counseling. Even viewing matters in the light most favorable
to Dr. Filardo, each of the forms of “harassment” that Dr. Filardo faced represented
no more than an attempt to correct the employment problems that these grievances
reflected, none of which had an apparent connection to animus against a protected
trait. It is not within the letter or purpose of our discrimination laws to prevent an
employer from taking corrective action to address grievances of this kind unless
prohibited animus is what motivates them. See Stingley, 836 Fed. App’x at 289.
Because Baylor Health conclusively proved the alleged harassment was not
driven by prohibited animus but by the health system’s legitimate business needs, it
was entitled to summary judgment on Dr. Filardo’s hostile work environment claim
on the basis of national origin. We overrule Dr. Filardo’s third issue.
We affirm the trial court’s summary judgment.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
211066F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GIOVANNI FILARDO, Appellant On Appeal from the 116th Judicial
District Court, Dallas County, Texas
No. 05-21-01066-CV V. Trial Court Cause No. DC-20-18611.
Opinion delivered by Chief Justice
BAYLOR SCOTT AND WHITE Burns. Justices Molberg and Reichek
HEALTH, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee BAYLOR SCOTT AND WHITE HEALTH
recover its costs of this appeal from appellant GIOVANNI FILARDO.
Judgment entered this 18th day of August 2023.
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