Summary
stating that employers routinely restrict the timing of employees' vacations based on the needs of the business and concluding that denial of employee's vacation request does not constitute an adverse employment action
Summary of this case from Powell v. Freedom Fin. NetworkOpinion
Civil Action No. 3: 99-CV-2681-L
May 18, 2001
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion for Summary Judgment, filed September 5, 2000. After careful consideration of the motion, response, reply, briefs, evidence submitted by the parties, and applicable law, the court grants the motion.
I. Factual and Procedural Background
The facts contained herein are either undisputed or, where they are disputed, presented in the light most favorable to Plaintiff as the nonmovant.
Plaintiff Elizabeth Paniagua ("Paniagua") has been employed by Defendant Texas Department of Criminal Justice ("TDCJ") for over eight years in various administrative positions, including as a clerk and a word processor in the Human Resources department. She is an Hispanic female over the age of 40. In July of 1998, the supervisor's position (Human Resource Specialist 1, or "HRS1") in her department became open. She had previously performed the duties of the position, from December 1995 through March 1996, during an extended absence of her supervisor at the time, Kim Starling ("Starling"). Paniagua applied for promotion to the position when it became open, but another candidate, Laura Renee Banks ("Banks"), who is Caucasian and under the age of 40, was selected by Patricia Nickleberry ("Nickleberry"), to whom the HRS1 position reported. Approximately a year later, Banks left TDCJ and Paniagua was selected to replace her.
Paniagua filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that: 1) she was denied the promotion in July of 1998 because of her national origin and her age, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and 2) she was retaliated against, for complaining about the promotion decision and filing the EEOC complaint, by various acts of harassment including issuance of a letter of instruction/reprimand. TDCJ responded that it did not select Paniagua for the promotion in July of 1998 because she was not the best qualified candidate, citing her lack of a degree, a lack of management experience, and an unfavorable recommendation from her last supervisor.
The EEOC issued a Determination on May 19, 1999, concluding that there was reasonable cause to believe that the charges of retaliation and of discrimination based on race and age were true, and a "right to sue" letter on September 11, 1999. Paniagua filed this suit on November 24, 1999, asserting claims for racial discrimination in the denial of promotion and for retaliation, pursuant to Title VII. She alleges "extreme emotional stress and physical suffering requiring medical attention," Complaint ¶ 19, and seeks declaratory judgment, back pay, salary adjustment, fringe benefits, and compensatory and punitive damages. TDCJ filed the instant motion for summary judgment on September 5, 2000, arguing that: 1) the failure to promote claim must fail because Paniagua was not clearly better qualified than Banks; and 2) the retaliation claim must fail because Paniagua has not shown an adverse employment action.
The Determination refers to discrimination based on national origin while Paniagua's First Amended Complaint ("Complaint") refers to racial discrimination. TDCJ does not argue, however, that Paniagua has failed to exhaust her administrative remedies with respect to racial discrimination. In any event, in some contexts national origin and racial discrimination are "so closely related . . . as to be indistinguishable." Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981). Discrimination against Hispanics is often referred to interchangeably under both of these categories. Cf., e.g., Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894, 895-96 (5th Cir. 1997) (claim under 42 U.S.C. § 1981). There is no difference in Title VII provisions, other than minor distinctions not relevant here, between discrimination based on race and discrimination based on national origin. The court hereinafter refers to this claim as the Complaint does, as one of racial discrimination.
The Complaint refers to Title VII, but not the ADEA. In its assertions with respect to the EEOC "right to sue" letter, the Complaint refers to "the racial discrimination and retaliation claim" without mentioning age discrimination. Although the claim filed with the EEOC alleged age discrimination, the Complaint's failure to cite the ADEA and the apparent limited interpretation Paniagua placed on the "right to sue" letter convinces the court that the Complaint does not state a claim for age discrimination.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id., see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis A. Failure to Promote Claim
The standard for a motion for summary judgment concerning a failure to promote claim under Title VII follows the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pratt v. City of Houston, Tex., ___ F.3d ___, 2001 WL 327165, at *3 (5th Cir. Apr. 19, 2001). First, Paniagua must "establish a prima facie case of discrimination by a preponderance of the evidence." Id. This creates a "presumption of discrimination" and TDCJ must then "articulate some legitimate, non-discriminatory reason for the challenged employment action." Id. If both parties meet these initial requirements, the case reaches the "pretext stage," and "the question for summary judgment is whether a rational fact finder could find that the employer discriminated against the plaintiffs on the basis of race." Id.
Ordinarily a plaintiff need only establish a genuine issue of material fact as to her prima facie case, rather than prove it by the preponderance of the evidence, to survive summary judgment. In the employment discrimination context, however, the prima facie case is easily established. For her failure to promote claim, Paniagua need only show "that (1) [she] is a member of a protected class; (2) [she] was qualified for the position; (3) [she] was not promoted; and (4) either the position was filled by someone not in the protected class, or the person was not promoted because of [her] race." Pratt, 2001 WL 327165, at *3 n. 2. "Given these minimal requirements, the failure to establish a prima facie case generally means that there are no material facts at issue." Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 641 n. 9 (5th Cir. 1985) (ADEA case, involving dismissal), impliedly overruled on other grounds, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
"[S]ummary judgment is inappropriate if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that race was a determinative factor in the actions of which plaintiff complains." Id. (internal quotation marks, brackets, and citation omitted). A employee may in some instances survive summary judgment with as little as her prima facie case of discrimination plus evidence contradicting the non-discriminatory reason asserted by the employer, but that is not always enough. Id. (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)). The factors to be considered in determining whether a plaintiff has established a genuine issue of material fact with respect to pretext include "`the strength of the prima facie case, the probative value of the proof that the employer's explanation is false and any other evidence that supports the employer's case and that properly may be considered.'" Id. (quoting Reeves).
Neither party contests the first two stages of the McDonnell Douglas framework, and the summary judgment record indicates that both have been satisfied. E.g., Plaintiff's Appendix, Exhibit D (EEOC Determination). Paniagua offers as evidence of pretext: 1) that she was better qualified than Banks; and 2) discrepancies concerning a reference check that Nickleberry conducted with Paniagua's then-supervisor, Starling.
Paniagua also notes that Banks received several letters of instruction (in effect, reprimands) during her tenure, and that Paniagua was selected to replace Banks when she left. Other than demonstrating that Paniagua met the minimal qualifications for the position, which TDCJ does not contest, all of these events occurring after the promotion decision constitute hindsight and therefore are irrelevant to the court's evaluation of the failure to promote claim.
Evidence that a plaintiff was clearly better qualified than the person receiving the promotion would establish a genuine issue of material fact with respect to pretext. Cf. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996) (ADEA case involving reduction in force). Evidence that a plaintiff was "merely better or as qualified" would not suffice, however. A court's evaluation is inherently less reliable than that by those charged with evaluating candidates, and an inference of pretext therefore is inappropriate unless the difference in qualifications (as evaluated by the court) is great. Cf. EEOC v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1444-45 (5th Cir. 1995) (ADEA case). The court concludes that, leaving aside for the moment the discrepancies concerning the reference check, Paniagua has not established a genuine issue of material fact concerning whether she was "clearly better qualified" than Banks. The summary judgment record indicates three significant distinctions between the two candidates: 1) education; 2) knowledge of TDCJ human resources policies and procedures; and 3) supervisory experience.
Evidence that Paniagua is "clearly better qualified" is not, as TDCJ asserts, an absolute requirement to survive summary judgment. The standard is as stated in Pratt, and the "clearly better qualified" standard is merely one way that a plaintiff can attempt to meet that standard. That is, evidence that the plaintiff is "clearly better qualified" is sufficient, but not (as TDCJ contends) necessary.
This arose in the context of a district court's post-trial order entering judgment as a matter of law The standards applied by the court in evaluating a motion for summary judgment are the same as those applied in evaluating a motion for judgment as a matter of law. Pratt, 2001 WL 327165, at *3 n. 3.
Paniagua had completed thirteen semester hours of college, Plaintiff's Appendix, Exhibit B (Paniagua Application), while Banks had received an Associate's Degree (in Marketing) and was scheduled to receive a Bachelor of Arts degree (in Management) the month following her application, id., Exhibit C (Banks Application). TDCJ identified this difference in education as part of the reason for concluding that Banks was better qualified, id., Exhibit D (EEOC Determination), although the position description for HRS1 only requires, as a minimal qualification, "[g]raduation from an accredited senior high school or GED equivalent," Defendant's Appendix at 4, with no explicit mention of any preference for post-secondary education. A degree in management, however, could reasonably be seen as indicating knowledge of "human resources management methods and techniques" and "office management methods and procedures," both of which are indicated as minimal qualifications for the position. Id. Although there is some ambiguity, the court concludes that a Bachelor of Arts degree in management could be useful for an individual in the HRS1 position and that this factor at least arguably counted in Banks' favor.
The other two qualifications — knowledge of TDCJ human resources policies and procedures and supervisory experience — are both indicated on the position description, as "preferred" rather than required. Id. Paniagua was superior in the former, as she had been employed in the Human Resources department of TDCJ for over nineteen months (since December 1, 1996), while none of Banks' experience was with TDCJ. Plaintiff's Appendix, Exhibits B and C. Banks had superior supervisory experience, as she had approximately nine years of part time experience (or four and a half years full time equivalent experience) supervising up to twenty employees in her position with The Limited, Inc.; Paniagua's supervisory experience consisted of from three to six months (the record is not clear) as acting supervisor in Starling's absence. Id.
Paniagua provides no evidence to the effect that, for the HRS1 position, knowledge of TDCJ human resources policies and procedures was more important and should be given more weight than supervisory experience. Although TDCJ could choose such a balancing of factors, the court sees no basis from which to conclude that it must (or did) do so. A stronger preference for supervisory experience than the preference for knowledge of agency specific policies and procedures certainly would not be unreasonable in evaluating candidates for a supervisory position; development and enhancement of supervisory skills is often a slower process than gaining knowledge of employer-specific policies and procedures. Given the relative qualifications of the candidates in these two aspects, and Banks' relative advantage in education, the court simply cannot conclude that Paniagua was "clearly more qualified" than Banks for the HRS1 position.
There remains Paniagua's assertion that discrepancies in the reference check constitute evidence of pretext. Nickleberry, in documenting the reference check of Paniagua, attributed to Starling comments, among others, that Paniagua: 1) was an average worker with close supervision; 2) was unable to take responsibility; 3) would sign supervisor's names without authorization; and 4) was untruthful. Id., Exhibit E (Paniagua reference check). Starling denied saying those things about Paniagua. Id., Exhibit A (Starling deposition) at 14-16. Nickleberry, on the other hand, maintains that Starling did make those comments. Id., Exhibit F (Nickleberry deposition) at 26. Paniagua contends that "the only way to reconcile these two statements is that one of them is a lie." Plaintiff's Brief in Response at 5. Paniagua argues that a genuine issue of material fact exists because "credibility is at issue" and summary judgment is therefore inappropriate. The court disagrees.
To begin with, the court notes that other performance deficiencies documented on the form were confirmed by Starling at her deposition. For example, the form notes that "[a]ll of her work must be checked and approved." Plaintiff's Appendix, Exhibit E. Starling denied expressing it that way but confirmed that she checked and approved all staff work in her department. Id., Exhibit A at 14. Nickleberry also noted on the form that "Huntsville data services requested someone else to work with on the computers. They had difficulty getting her to understand or do as they ask." Id., Exhibit E. Starling seems to have confirmed that deficiency as well, stating in her deposition that Paniagua "didn't fully understand" and "Huntsville had a hard time explaining it to her." Id., Exhibit A at 14. Of specific performance problems noted on the form, therefore, Starling disavowed some but confirmed others.
The most notable thing about the reference check form, however, is what Paniagua does not challenge. She addresses only specific comments about performance deficiencies, and only those that Starling disavowed. In the court's opinion, the most important information on the form was not the specific deficiencies noted, but the overall conclusion/recommendation. The form included two specific questions to be asked of the applicant's reference: "Based on [her] employment with you, would you recommend this individual for this type of position?" and "If you were hiring for a position similar to this one, would you hire [Paniagua]?" Starling's apparent answer to both questions, as documented by Nickleberry, was "No." Id., Exhibit E. The specific performance deficiencies noted were merely background information to these conclusions.
The court is thus presented with evidence that, whatever the truth about the specific alleged deficiencies noted above, Starling clearly and unequivocally recommended to Nickleberry that Paniagua not be hired for the HRS1 position. There is nothing in the record to contradict this. At her deposition, Starling was not specifically asked about whether the reference check accurately reflected her overall recommendation as to Paniagua's suitability for the position. She was, however, asked "Can you tell me which things you did state and which things are inaccurate?" but made no mention either way of the overall recommendation. Id., Exhibit A at 14. The natural and uncontradicted interpretation is that, although Starling may not have made all of the specific negative comments documented by Nickleberry on the form, Starling did recommend against promoting Paniagua.
There were positive indications about Paniagua's performance — Starling's disavowal of specific negative comments attributed to her, other positive comments (for example, that Paniagua "was a good worker" with "a lot of initiative" who "would volunteer to help out other departments," Plaintiff's Appendix, Exhibit A at 12), and positive performance evaluations, id., Exhibit L. These positive indications, however, concern her performance in her clerk or word processor positions. Excellent performance in a staff position creates no automatic presumption that the individual would also perform well in a supervisory position. The workplace is full of those who can do their jobs quite effectively but cannot manage and lead others. These positive indications as to Paniagua's performance are therefore not inconsistent with a conclusion by Starling that Paniagua should not be promoted.
Even assuming arguendo that Paniagua has established a genuine issue of material fact as to whether Nickleberry accurately documented Starling's assertions concerning some of the specific deficiencies, this does not necessarily establish a genuine issue of material fact as to whether the articulated reason for Banks' selection was merely a pretext for discrimination. First, as noted above, Paniagua fails to address the most important part of the reference check form — the overall negative recommendation, which was uncontradicted by the summary judgment evidence. Second, the negative recommendation by Starling was only one of the factors cited for Nickleberry's conclusion that Paniagua was not the best qualified applicant. Paniagua has not shown that even a strong positive recommendation by Starling would have made Paniagua objectively "clearly better qualified" for the HRS1 position.
Paniagua offers a deposition by a friend to whom Nickleberry allegedly stated that Paniagua "was not selected due to this bad reference." Plaintiff's Brief in Response at 2. That overstates the evidence submitted. The deposition shows that Nickleberry's alleged statement was that "one of the reasons" was the bad reference and that Nickleberry also indicated that Banks was more qualified. Plaintiff's Appendix, Exhibit G (deposition of Cuauhtemoc Munoz) at 44. The court assumes arguendo that Nickleberry's alleged statement qualifies as non-hearsay pursuant to Fed.R.Evid. 801(d)(2), but even so it does not suffice to demonstrate that the bad reference was the determinative factor.
Finally, the discrepancy related to the reference check does not by itself create "a reasonable inference that [race] was a determinative factor in the actions of which plaintiff complains." Pratt, 2001 WL 327165, at *3. In Pratt, the court found a question of fact with respect to a failure to promote based on, among other things, "evidence that the City did not give [the plaintiffs] the opportunity to complete the hiring process," "the better resumes of the plaintiffs, the special treatment [the successful applicant] received, and the allegations that [the selecting supervisor] discriminated in favor of white applicants on other occasions." Id. (emphasis added). That is not this case. Not only was Paniagua not clearly better qualified than Banks, there is no evidence of any other racially motivated discrimination by Nickleberry. The court concludes that the evidence does not support an inference that race, as opposed to other factors, was the determinative factor here. Indeed, Paniagua herself expressed an opinion that Banks was selected not because of her race but because she was a friend of Nickleberry's assistant. Defendant's Appendix at 46 (Paniagua deposition).
Her opinion apparently satisfies the standard of Fed.R.Evid. 701, as it seems to be based on her perceptions, is helpful to the determination of a fact at issue, and is not based on any specialized knowledge within the scope of Fed.R.Evid. 702.
The court concludes that Paniagua has not met the standard stated in Pratt. Accordingly, she has not established a genuine issue of material fact as to her claim that TDCJ's asserted reason for the promotion decision was a pretext for racial discrimination. TDCJ therefore is entitled to judgment as a matter of law with respect to the failure to promote claim.
B. Retaliation Claim
"[T]he standard for evaluating a Title VII retaliation claim in a summary judgment context" requires the plaintiff to "first prove by preponderance of the evidence (1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action." Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir. 2001) (citation and internal quotation marks omitted). In this instance, the court need not reach the "pretext stage" of the McDonnell Douglas burden-shifting framework, as TDCJ argues that Paniagua has not demonstrated her prima facie case. Specifically, TDCJ asserts that Paniagua has submitted no evidence of an adverse employment action.
The Complaint asserts that Paniagua "was retaliated against through daily harassment and was given a letter of instruction/reprimand because she questioned the Defendant's discriminatory practices and had filed her EEOC Complaint." Complaint, ¶ 17. The alleged harassment included searching her desk and removing items, subjecting her to "increased undue scrutiny in her duties after her complaint," and accusing her of stealing documents. Plaintiff's Brief in Response at 6. In her response, Paniagua also mentions another action taken against her — that Nickleberry denied Paniagua's request to take her two week vacation during December of 1998 to visit her sick mother in Costa Rica. Id.; Plaintiff's Appendix, Exhibit J (Paniagua deposition) at 199-201.
"Title VII's anti-retaliation provision refers to ultimate employment decisions," such as "hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, 522 U.S. 932 (1997). Harassment and reprimands do not rise to the level of ultimate employment decisions, and thus cannot form the basis of a Title VII retaliation claim. Id. at 707-09. The first two "retaliatory" actions asserted by Paniagua, and the only ones specified in her Complaint, therefore do not constitute "retaliation" as a matter of law. Paniagua is left with the incident concerning her request to take her vacation during December, which was denied by Nickleberry. Paniagua asserts that this relates to "granting leave," which Mattern included in a list of adverse employment actions.
Reprimands are "adverse employment actions" for purposes of a retaliation claim under 42 U.S.C. § 1983, for violations of constitutional rights, but not for a Title VII retaliation claim. Sharp v. City of Houston, 164 F.3d 923, 933 n. 21 (5th Cir. 1999).
Because Paniagua had already purchased plane tickets for the trip to Costa Rica, Nickleberry apparently offered to approve the vacation request if Paniagua showed her the tickets, but Paniagua refused to do so. Plaintiff's Appendix, Exhibit J (Paniagua deposition) at 200. The court does not share Paniagua's conclusion that the request to see the plane tickets before approving vacation was so inherently unreasonable that it should be refused. This is the type of minor inconvenience common to bureaucratic organizations, but which should not burden the federal courts. In colloquial terms, "don't make a federal case out of it."
The court disagrees. Mattern contrasted actions which "`discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment,'" id. at 708 (quoting 42 U.S.C. § 2000e-2(a)(1)), with limitations which "deprive or `would tend to deprive' the employee of `opportunities' or `adversely affect his status,'" id. at 709 (quoting 42 U.S.C. § 2000e-2(a)(2)). The former, but not the latter, are included in "adverse employment actions" for purposes of Title VII's retaliation provision. Id. In that context, the court construes Mattern's reference to "granting leave" as referring to an entitlement determination (how much vacation an employee can take) rather than a scheduling decision (whether she may take it at a particular time). Employers routinely restrict the timing of employees' vacations based on the needs of the business. The court concludes that such scheduling decisions are closer to depriving an employee of "opportunities" rather than changing the "conditions or privileges of employment." As such, Nickleberry's denial of Paniagua's request to take her vacation during December does not constitute an adverse employment action and cannot form the basis of a Title VII retaliation claim.
For example, TDCJ's policy was that " holiday leave is gathered and forwarded to Ms. Nickleberry for review and approval" and "during the holiday period Huntsville is the final approval authority on all leave." Plaintiff's Appendix, Exhibit N (memo from Banks to Paniagua concerning leave request) (emphasis added).
Even if prohibiting an employee from taking her vacation at a particular time were an adverse employment action for purposes of a Title VII retaliation claim, Nickleberry's denial of Paniagua's request did not actually prohibit her from taking the time off. Paniagua subsequently requested leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and her FMLA request was approved. Plaintiff's Appendix, Exhibit J (Paniagua deposition) at 199-201; Defendant's Supplemental Appendix (Paniagua deposition) at 214-215. Paniagua expressed a desire to use her accrued vacation rather than FMLA leave, id. at 215, but does not explain how using FMLA leave disadvantaged her. FMLA provides that, at her election (or if required by TDCJ), she can "substitute any of the accrued paid vacation leave . . . for any part of the 12-week period" of unpaid leave provided by FMLA. 29 U.S.C. § 2612(d)(2)(A). By electing substitution of vacation leave for unpaid FMLA leave, she would be in essentially the same position as if her original vacation request were approved, that is, she could take two weeks off for which she would be paid. Forcing her to use FMLA leave, with the option at her election to take paid leave rather than unpaid leave, would only disadvantage her (compared to her original vacation request) if she subsequently needed to take the full twelve weeks of unpaid leave in addition to two weeks of paid leave. Theoretically, forcing her to apply for FMLA leave to visit her mother could have left her with insufficient FMLA unpaid leave entitlement later in the twelve month period, but Paniagua offers no evidence that this occurred. Other than the inconvenience of having to fill out the FMLA request, therefore, Paniagua apparently suffered no negative consequences as a result of this incident, let alone an "adverse employment action."
Substituted paid leave counts against the twelve week FMLA entitlement; paid leave that is not designated as substituted does not. Cf. 29 C.F.R. § 825.700(a) ("If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement."). Designating her paid leave as FMLA leave thus would allow her a total of two weeks paid leave plus ten weeks of unpaid leave, instead of two weeks paid leave (not counted as part of the FMLA entitlement) plus twelve weeks of unpaid leave.
Because Paniagua has not demonstrated that she suffered an adverse employment action subsequent to her complaints about not being promoted, she has not demonstrated a prima facie Title VII retaliation case. Accordingly, she has not established a genuine issue of material fact with respect to her retaliation claim. TDCJ therefore is entitled to judgment as a matter of law on this claim.
IV. Conclusion
For the above-stated reasons, Paniagua has not established a genuine issue of material fact as to either of her claims against TDCJ, and TDCJ is entitled to judgment as a matter of law as to all claims. Defendant TDCJ's Motion for Summary Judgment is therefore granted. All of Paniagua's claims are hereby dismissed with prejudice. The court's scheduling order of November 2, 2000 is hereby vacated. Judgment will issue by separate document.
It is so ordered.