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Baig v. McDonald

United States District Court, S.D. Texas, Houston Division

November 16, 2017

MIRZA M BAIG, Plaintiff,
v.
ROBERT A. MCDONALD SECRETARY OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM

          Kenneth M. Hoyt, United States District Judge.

         I.

         Before the Court is the defendant's, David J. Shulkin, Secretary of Veterans Affairs (“VA”), motion for summary judgment pursuant to Fed. R. Civ. P., Rule 56(a). [DE# 21]. The plaintiff, Mirza M. Baig has filed a response [DE# 24] and the matter is fully before the Court. The Court is of the opinion that the motion is meritorious and should be granted.

         II.

         The plaintiff is a long term employee with the Michael E. DeBakey Veterans Affairs Medical Center. He filed this suit in May 2016, asserting discrimination from August 2104 through June 2015 based on race, national origin, religion and age. He also alleges that his supervisors retaliated against him after he filed a charge of discrimination with the Equal Employment Opportunity Council in November 2014 and November 2015.

         The latest suit[1] appears to arise from a written reprimand that the plaintiff received for unsatisfactory performance and reporting to work late and leaving early. The plaintiff also points to an event that occurred at his cubicle between himself and his supervisor, Lenamond where Lenamond “yelled” at him in front of coworkers. He also asserts that Lenamond made false statements about his work habits, sent an email proposing a written reprimand; and in addition, that he was harassed by a coworker who made the statement, “ISIS is here”, denied a religious accommodation, received an unsatisfactory performance review, but was not given the opportunity to respond; and, had a stroke as a result of hostile activities in the office.

         The defendant disputes the plaintiff's contentions, asserting that: (1) the reprimand was not an “ultimate employment decision for purposes of Title VII discrimination; (2) the plaintiff's claim that his laptop was taken away and that he was denied light duty assignments following his stroke lack merit; the lack of an investigation concerning fellow employee remarks is not an ultimate employment decision; and that there is no evidence that the plaintiff's observance of fasting during Ramadan conflicted with his tour of duty or that his age, race, national origin or any other protected activity.

         III.

         Summary judgment is proper "if 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). "The [movant] bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact." Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex v. Catrett, 477 U.S. 317, 322-325 (1986)).

         IV.

         At the outset, the Court finds that it lacks jurisdiction over the plaintiff's claims that are unrelated to the three claims presented to the EEO for investigation. As a precondition to filing suit in federal court, Title VII requires a claimant to exhaust his administrative remedies. Randal v. United States Dep't of Navy, 157 F.3d 392, 395 (5th Cir. 1998). When a claimant fails to comply with this requirement, a court is deprived of jurisdiction over the claim. Id.

         In three claims, the plaintiff contends that he was discriminated against based on: (a) national origin based on a hostile workplace environment; (b) religion when he was denied a religious accommodation during the month of Ramadan; and (c) retaliation for filing an EEO complaints. The plaintiff abandoned a claim for age discrimination.

         Unlawful discrimination under Title VII can be established through either direct or circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). Because the plaintiff sets forth no direct evidence of disparate treatment, his claim is analyzed using the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). Under this test, a plaintiff must initially create a presumption of ...


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