United States District Court, S.D. Texas, Houston Division
Kenneth M. Hoyt, United States District Judge.
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.
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
latest suit 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.
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
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
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.
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.
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 ...