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Guajardo v. The University of Texas Medical Branch At Galveston

Court of Appeals of Texas, First District

May 3, 2018


          On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 15-CV-1036

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.



         This is an appeal from an order granting a combined plea to the jurisdiction and motion for summary judgment and dismissing claims asserted under the Texas Commission on Human Rights Act.[1] The University of Texas Medical Branch at Galveston hired Alicia Guajardo to work as a clinic nurse. UTMB later promoted Guajardo to nurse supervisor. While working as nurse supervisor, Guajardo received a written reprimand for failing to properly dispose of expired medication, and she was eventually demoted back to nurse after receiving a poor annual evaluation from her immediate supervisor, Samantha McBroom. Guajardo, who is Hispanic, sued UTMB for discrimination based on disparate discipline, alleging that similarly-situated non-Hispanic employees only received verbal warnings for failing to dispose of expired medication. She also sued UTMB for retaliation, alleging that UTMB demoted her in retaliation for her reporting the alleged discrimination.

         We hold that Guajardo failed to establish a prima facie case of discrimination because she failed to show that she received less favorable treatment than a similarly-situated non-Hispanic employee. We further hold that Guajardo failed to establish a prima facie case of retaliation because she failed to show that she participated in a protected activity causally connected to her demotion. Therefore, we affirm.

         Factual Background

         UTMB hires Guajardo and later promotes her to nurse supervisor

         Alicia Guajardo is a registered nurse. In 2000, she was hired by UTMB to work as a nurse at a League City clinic. The clinic operated under a "parallel" management structure. The physicians were managed by the medical director, Dr. Jean McAtee. The nurses were supervised by a nurse supervisor, who, in turn, was supervised by a nurse manager. Each clinic's nurse manager was supervised by UTMB's Chief Nursing Officer, Cheryl Bryant.

         In 2009, Guajardo was promoted to nurse supervisor. Three years later, in 2012, Samantha McBroom was hired as the clinic's new nurse manager.

         "From the very beginning, " Guajardo testified, she "was just overwhelmed" by McBroom. Guajardo had worked under three previous nurse managers, none of whom had been critical of her job performance. Guajardo testified that McBroom was the first nurse manager to supervise her who was herself a nurse by training, and she had "high expectations" for Guajardo and the rest of the nursing staff. Guajardo believed McBroom was "singling [her] out, " though she did not believe it had "anything to do with race." Instead, Guajardo testified, McBroom seemed displeased with her performance: Guajardo "was just doing [her] job, " like she had "always done, " but McBroom "didn't like how [she] did it."

         McBroom formally criticizes Guajardo's performance

         In July 2012, Guajardo received her first annual evaluation from McBroom. For the category of leadership, McBroom gave Guajardo the second-to-lowest rating: "Occasionally Meets" expectations.[2] At the end in the evaluation, in the box for supervisor comments, McBroom noted that Guajardo had never received any "leadership training" but had done "the best she could to figure things out." McBroom stated that she would "work closely" with Guajardo throughout the year to help her "to develop her leadership abilities."

         Over the following twelve months, McBroom worked with Guajardo to develop her leadership abilities. McBroom placed Guajardo on a leadership development plan and began having weekly one-on-one meetings with Guajardo to provide her with direction and guidance. But there continued to be issues with Guajardo's performance.

         Guajardo experienced difficulty managing the clinic's inventory and staffing resources. On multiple occasions, the League City clinic ran out of supplies Guajardo was responsible for ordering.[3] On one occasion, Guajardo scheduled a staffing agency to provide the clinic with an unnecessary extra nurse.

         In January 2013, McBroom made Guajardo responsible for ensuring that the clinic's medications were not expired, and Guajardo did not delegate the responsibility to a nurse. Several months later, Guajardo completed an internal audit of the clinic's pharmacy and verified that there were no expired medications. The very next day, however, UTMB pharmacy personnel conducted their own audit and found expired medications. As a result, McBroom issued Guajardo a "written reminder" for her "failure to follow instructions." The written reminder stated that Guajardo had "the right to file a grievance" to complain about the discipline. Guajardo did not file a grievance or otherwise complain about the written reminder at that time.

         Guajardo admitted in her deposition that, at the time of the audit, there was a "heightened sensitivity to the issue of expired medication" because the previous year the Joint Commission had visited the clinic and found "a lot of expired medications."[4] Guajardo explained that it was a "very serious issue" and that a repeat incident could result in serious consequences, including the clinic's closure.

         In early June 2013, McBroom placed Guajardo on a performance management plan. The plan identified areas in which Guajardo had demonstrated a need for improvement, including (1) delegating tasks, (2) communicating with McBroom, and (3) completing monthly pharmacy audits. After placing Guajardo on the plan, McBroom scheduled a follow-up meeting for late July to discuss Guajardo's progress. Guajardo failed to attend the meeting or notify McBroom that she would not attend.

         Guajardo complains to Dr. McAtee about her written reminder

         On July 19, Guajardo learned that a non-Hispanic nurse supervisor at a different clinic, LaToyia Beard, did not receive a written reminder from her nurse manager when expired medication was found in Beard's clinic. Instead, she received a "'stern' coaching" over the phone from UTMB's Chief Nursing Officer, Bryant. Guajardo "immediately formed" the opinion that she "had been discriminated against." She testified that she believed that Bryant had treated Beard more favorably because she and Bryant were both black. Upon learning that Beard had not received a written reminder, Guajardo complained to her clinic's medical director, Dr. Jean McAtee. According to Guajardo, she told Dr. McAtee that she believed she had received the written reminder because she was Hispanic.[5]

         McBroom gives Guajardo a negative review due to her failure to improve her leadership skills

         On July 29, 2013, Guajardo received her second annual evaluation from McBroom. For leadership, McBroom gave Guajardo the lowest rating: "Did Not Meet" expectations.[6] In the comments box, McBroom wrote:

Alicia is a caring nurse, but is unable to keep up with the nursing supervisor responsibilities of a growing clinic. During the past year, the [nurse manager] has met with Alicia weekly to provide direction and guidance. Alicia has also been on a Leadership development plan and action plan this year and has not been able to demonstrate sustained improvement.

         Guajardo responded in the box for employee comments:

I do not agree with this evaluation. I have been singled out and discriminated. We have been understaffed and management has not been supportive at all. Always out. Management never shares information re: nursing, etc. The morale and staff are very unhappy with management here in clinic. Staffing came to tell me re: management and their concerns. We did speak to Medical Director. Staff afraid of Retaliation from Practice Management.

         Guajardo files an internal grievance letter

         Three days later, Guajardo filed an internal grievance letter with UTMB's human resources department. In the letter, Guajardo accused McBroom of "bullying, singling out, retaliation, and discrimination" but did not allege that any mistreatment was based on her race or national origin. Instead, the letter focused on her poor review. She argued that it was unfair to give her a poor review because the clinic had grown but not hired additional staff:

Over the last two years, our clinic has expanded with more doctors but our staffing has remained the same nursing ratio which makes it more challenging for me to do my supervisor duties. Now am I not only doing my supervisor duties but I am also staffing the floor where needed on an everyday basis without any assistance from my practice manager who has only assisted a handful of times in her two years of managing the clinic.

         She complained that McBroom had misled her by giving her "positive feedback" throughout the year. She further complained that McBroom never met with her to discuss her various performance issues, and she argued that the review itself was completely subjective:

I received "occasionally meets/does not meet" in [various performance categories]. In all these categories throughout the entire year Samantha McBroom never met with me regarding my performance. I never received any verbal or written reprimands regarding "occasionally meeting" or "not meeting" any of my performances. I was not aware that I was not meeting her expectations and I was completely blind-sided when I received my evaluation. This evaluation is completely subjective and unfair of my job performance. I disagree with my evaluation and the only reason I signed it was because of intimidation and as she stated before "It is what it is and it will not change."

         The only differential treatment Guajardo complained about was her written reminder. She wrote that Bryant had stated that there would be "zero tolerance for expired medications and that all nurse managers, nurse supervisors, and nurses would be written up for this violation." But, Guajardo continued, when expired medication was found at Beard's clinic, she only received a verbal warning. Guajardo wrote:

When I learned of [Beard's] verbal disciplinary action compared to my written reprimand for the same exact violation, I knew I had been discriminated and singled out.

         Toward the end of the letter, Guajardo explained that she was filing the grievance not only for herself but on behalf of the other nurses as well: "I have stepped forward on behalf of the nurses and their needs . . . because I am the nurse supervisor." Guajardo stated that the nurses had "advised" her that McBroom was "never in the office, " could "never be found, " and left "at her own leisure." But, Guajardo continued, the nurses did not want to complain about McBroom's frequent absence out of fear of retaliation. Guajardo stated that the nursing staff was "overworked, " had "low morale, " and could "no longer work" under such conditions.

         Guajardo concluded her grievance by requesting that she be "shielded" from McBroom and Bryant and that her "last two evaluations be resubmitted" to "a nonbiased supervisor in order to get a ...

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