RICHARD B. FARRER, Magistrate Judge.
This Report and Recommendation concerns the Motion for Summary Judgment filed by Defendant Edgewood Independent School District. Dkt No. 32 All pretrial matters have been referred to the undersigned for disposition, pursuant to Rules CV-72 and 1 to Appendix C of the Local Rules for the United States District Court for the Western District of Texas. Dkt. No. 26. The Court has federal question jurisdiction; at issue are claims under the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. See 28 U.S.C. § 1331. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons discussed below, Edgewood's Motion for Summary Judgment, Dkt. No. 32, should be
Howard, a former Edgewood teacher, sues Edgewood for discrimination and retaliation. Edgewood first hired Howard as a "classroom teacher," on a 10-month probationary basis, for the 2012-13 school year. Ex. A-1 Mot.;
Edgewood renewed Howard's contract for the 2013-14 school year, Compl. ¶ 10, and she resumed her roles coaching girls track and cross country, receiving the same amount in stipends, Ex. A-3 to Mot. In addition to her coaching duties and role as a health and physical education teacher, Howard began teaching two special elective courses at the start of the 2014 Spring semester. Howard Decl. ¶ 3.
Over the course of the 2013-14 academic year, members of Edgewood's executive team began meeting to discuss a course plan for the following school year in light of new graduation requirements set forth in House Bill 5. See Miller-Baker Dep. 16:22-22:10 (Ex. B-3 to Mot.); Mrozenski-Nieto Dep. 20:11-21:7; 22:5-23:5; 26:14-27:5 (Ex. C to 1st Am. Resp.) Although the State of Texas had eliminated health as a graduation requirement before the enactment of House Bill 5, Edgewood had continued to offer the course in previous years. See Miller-Baker Dep. 21:21-22:3; Mrozenski-Nieto Dep. 23:9-15. With the passage of House Bill 5, however, Edgewood's executive team determined that health should no longer be offered at Edgewood. See Miller-Baker Dep. 22:4-10; 27:2-21; 29:17-25 54:24-55:14; Mrozenski-Nieto Dep. 39:5-40:25; Nanez Dep. (Ex. B-2 to Mot.) 25:1-26:21; 28:8-14; 29:10-16. Due to this program change and the high number of physical education teachers employed at the secondary level, a recommendation was made to Edgewood's Board of Trustees that all health and health/physical education staff positions be eliminated. See Miller-Baker Dep. 22:11-25:16; 30:5-14; 32:8-33:25; Ex. A-8 to Mot.; Ninez Dep. 20:22-11; Walheim Dep. 17:19-22 (Ex. H to 1st Am. Resp.); Ex. F to 1st Am. Resp.; Ex. D to 1st Am. Resp. at 4. There is differing testimony regarding who exactly was involved with this recommendation and how it was eventually presented to the Board. It appears, however, that by mid to late February 2014, Howard's supervisor, Athletic Director Robert Gomez, knew of an anticipated reduction in force. See Gomez Dep. 55:19-56:11 (Ex. E to 1st Am. Resp.); Ex. G to Resp; Miller-Baker Dep. 30:3-10.
Unaware of the anticipated program change, Howard and coworker Jessica Forshee met with Gomez on February 6, 2014, to complain about perceived sex discrimination by Campus Athletic Coordinator R. Cerda. See Howard Decl. ¶¶ 5, 8; Exs. I & J to 1st Am. Resp. According to Howard, "[d]uring and immediately after that meeting, [she] felt a change in Mr. Gomez's attitude toward [her]." Howard Decl. ¶ 5. Specifically, Howard complains that Gomez tried to immediately "pit" the two women against each other by informing Forshee of complaints Howard had previously made about Forshee's work habits. Id. On February 11, 2014, Cerda addressed with Howard concerns he had regarding Howard's withdrawal of the girl's track team from a varsity meet, the low numbers of participants on the team as a whole, and the poor daily attendance for practices. Ex. M to 1st Am. Resp. Howard, believing she "was being and would continue to be a target for retaliation," Howard Decl. ¶ 5, filed with the U.S. Equal Employment Opportunity Commission (EEOC) a Charge of discrimination on February 12, 2014, complaining of race and sex discrimination and retaliation. Ex. K to 1st Am. Resp. Cerda's concerns were memorialized in a February 19, 2014 memo. Ex. M to 1st Am. Resp.
On or about February 21, 2014, Forshee left Edgewood. Howard Decl. ¶ 6. Howard was subsequently removed from teaching two special elective courses so that she could cover Forshee's two health classes. Id. ¶¶ 6, 9.
On April 7, 2014, Edgewood's Board of Trustees voted to adopt the superintendent's recommendation that all "Secondary Health Teachers" and "Secondary Physical Education/Health Teachers" be released from employment for the 2014-15 academic year due to the House Bill 5 program change. Ex. F to 1st Am. Resp. at 1, 4. Howard, along with nine other Edgewood employees—four males and six females—were included in this reduction in force. Id. at 4-5.
On October 22, 2014, Howard amended her previously filed EEOC Charge to complain that Edgewood terminated her from her position as a coach due to race and sex discrimination and retaliation. Ex. A-14 to Mot.
Howard filed the instant action on September 28, 2016. She alleges she received less money in coaching stipends than comparator male coaches. She also complains that male coaches enjoyed better offices, facilities, equipment (e.g., computers, phones, printers), and uniforms, and that male coaches were provided more autonomy than female coaches. See Compl. ¶¶ 13-41, 43-44. Howard alleges that she was selected for the reduction in force due to her sex. Id. ¶¶ 37-38. Finally, Howard claims that Edgewood committed the following retaliatory acts after she filed her EEOC Charge: (1) formally reprimanding her on February 19, 2014; (2) "significantly increasing" her job responsibilities; and (3) failing to renew her contract for the 2014-15 academic year. Id. ¶¶ 32-33, 42. Howard raises claims under both the Equal Pay Act and Title VII.
Summary judgment is appropriate only "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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Catrett, 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
"After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted." Westphal, 230 F.3d at 174. If, however, the party moving for summary judgment fails to satisfy its initial burden of demonstrating the absence of a genuine issue of material fact, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The Equal Pay Act Claim is Barred. The Equal Pay Act typically provides a two-year limitations period. 29 U.S.C. § 255(a). But if a willful violation is involved the limitations period extends to three years. Id.; see also Hill v. J. C. Penney Co., Inc., 688 F.2d 370, 374 (5th Cir. 1982). As discussed next, Howard's Equal Pay Act claim does not satisfy a two-year limitations period; she may therefore only assert an Equal Pay Act claim if she can sufficiently demonstrate willfulness. See Ikossi-Anastasiou v. Bd. of Supervisors of La. State. Univ., 579 F.3d 546, 552 (5th Cir. 2009). This she also fails to do.
"A[n] [Equal Pay Act] cause of action accrues at each regular payday immediately following the work period during which the services were rendered for which the wage or overtime compensation is claimed." Judy Chou Chiung-Yu Wang v. Prudential Ins. Co. of Am., 439 Fed. App'x 359, 365 n.3 (5th Cir. 2011) (quotation omitted). Here, the undisputed evidence reflects that Howard filed this action more than two years after she received her last paycheck. See Exs. A-13 to Mot. (reflecting that Plaintiff was terminated on June 6, 2014) & A-17 to Mot. (reflecting that Plaintiff's last payday was August 30, 2014). Accordingly, Howard's claim falls outside a two-year limitations period.
There is no Triable Issue as to Willfulness. Edgewood disputes that it acted willfully, and it argues there is no genuine fact dispute concerning willfulness. See Mot. at 7-8. Howard has the burden to demonstrate willfulness for the three-year limitations period to apply. See Steele v. Leasing Enters., 826 F.3d 237, 248 (5th Cir. 2016). And to survive summary judgment on the issue, Howard must point to a genuine fact dispute concerning whether Edgewood "knew or showed reckless disregard" for the Equal Pay Act's mandate of equal pay for equal work at the time Edgewood allegedly violated the mandate. See Ikossi-Anastasiou, 579 F.3d at 552, 553 & n.24.
All that Howard has invoked on willfulness regards her alleged receipt of smaller stipends than those received by male coaches, Ex. BB to 1st Am. Resp., and her complaints about "sex discrimination on [] campus," see Ex. A to 1st Am. Resp., that presumably included complaints of sex-based pay disparities, see 1st Am. Resp. at 20-23. But without more, the facts that Howard "was paid less than many of her male colleagues and that [Edgewood] knew she was dissatisfied with this difference are not enough to raise a fact question as to whether [Edgewood] knew or recklessly disregarded that its pay scale was prohibited by the [Equal Pay Act]." Ikossi-Anastasiou, 579 F.3d at 553. "[Howard] has not provided evidence that [Edgewood] actually knew that the pay structure violated the [Equal Pay Act], or that [Edgewood] ignored or failed to investigate [Howard's] complaints." Id. Accordingly, Howard's allegations of willfulness cannot survive summary judgment. See id.; see also Zannikos v. Oil Inspections (U.S.A.) Inc., No. CV 12-2508, 2014 WL 12771511, at *12 (S.D. Tex. Jan. 30, 2014) ("While willfulness is typically a question of fact for the jury, where the plaintiff introduces no evidence sufficient to support a finding of willfulness, summary judgment in favor of the defendant is appropriate.").
Howard alternatively and unconvincingly argues that "should the Court rule that [she] bear[s] the burden of showing willfulness, [she] pray[s] that the court defer and allow time for [her] to seek by declaration and motion to compel evidence that no investigation was undertaken." 1st Am. Resp. at 22. According to Howard, "[t]he undisputed evidence shows a complaint was made," and because she sought through discovery "all complaints and investigations and [has] not received any," it is appropriate to conclude that "Defendant must have failed to investigate or ignored plaintiff's complaints." Id. Thus, Howard continues, "[a]t the very least, there exist[s] a genuine issue of material fact." Id. This argument is too strained.
To reflect a triable question on whether no investigation at all was ever conducted, Howard needs some evidence—any evidence—reflecting a genuine dispute on the issue. See Ikossi-Anastasiou, 579 F.3d at 553 (noting no evidence of a failure to investigate). She points to no statement, document, or any other indication in the record to show that no investigation was conducted; she instead relies only on the fact that she has not seen positive evidence confirming an investigation was conducted. But the mere absence of documentary evidence in the record confirming an investigation into Howard's complaint is not enough to satisfy her burden in these circumstances. Id.
Howard's request for the Court to defer ruling on Edgewood's motion to permit her additional time for further discovery on willfulness is similarly unfounded. This case has been on file for over two years, and the discovery deadline expired over a month and a half before Howard filed her response requesting this relief. Although Howard asserts that she requested, but did not obtain, documentation of investigations of complaints filed by her and other similarly situated individuals, she failed to timely move to compel production of the requested information. Moreover, she points to no evidence in the summary judgment record indicating that her attorney attempted to depose Edgewood employees on the investigation issue. Accordingly, Howard has not established that she "diligently pursue[d] [the] relevant discovery" such that a Rule 56 continuance would be appropriate. See Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992) (explaining that Rule 56(f), which is now Rule 56(d), requires that "the non-movant must diligently pursue relevant discovery—the trial court need not aid non-movants who have occasioned their own predicament").
Because Howard filed suit after the two-year statute of limitations expired and has failed to introduce any evidence suggesting a genuine dispute concerning a willful violation, summary judgment for Edgewood on this claim should be granted. Accordingly, the undersigned need not address Edgewood's other argument in favor of summary judgment on Howard's Equal Pay Act claim.
The Title VII Claims. Howard asserts claims of unlawful sex discrimination and retaliation under Title VII. Because the summary judgment record contains no direct evidence of sex discrimination or retaliation, the McDonnell Douglas burden-shifting framework applies. See Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 593 (5th Cir. 2007) (applying McDonnell Douglas framework to sex-discrimination claims); McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (applying framework to claims of Title VII retaliation). Under this framework, the initial burden of establishing a prima facie case of discrimination or retaliation rests with the plaintiff. Nasti, 492 F.3d at 593; McCoy, 492 F.3d at 556-57. Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to show a legitimate, non-discriminatory or non-retaliatory reason for its actions. Nasti, 492 F.3d at 593; McCoy, 492 F.3d at 557. At this stage, "[t]he employer's burden is only one of production, not persuasion, and involves no credibility assessment." McCoy, 492 F.3d at 557; see also Nasti, 492 F.3d at 593. If the employer offers such a reason, the burden then shifts back to the plaintiff to show the justification is merely pretext for discrimination or retaliation. Nasti, 492 F.3d at 593; McCoy, 492 F.3d at 557.
A.
1.
Nor can Howard base her discrimination claim on allegations, raised for the first time in her response, that the relevant adverse employment action was the failure to transfer her into either of two available positions for which she applied. Any such claim, even if it had been raised in her Complaint, would be unexhausted and subject to dismissal.
Howard's Complaint also does not allege that Edgewood discriminated against her by failing to transfer her. This provides a second basis to decline relief on any such newly raised claim. See Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005) (noting that claim not raised in the complaint cannot properly be raised in summary judgment response); see also Green v. SHA, L.L.C., No. 5:09-CV-202-C, 2011 WL 13228989, at *5 (N.D. Tex. Jan. 14, 2011) (same). Howard, however, can rely on these allegations in aid of her prima facie case of discrimination in the reduction-in-force context, where termination absent any transfer to an available position can under certain circumstances serve as a basis to infer discrimination. But for the reasons discussed below, doing so here is unavailing.
2.
Howard argues unsuccessfully, first, that because she was teaching two special elective courses she was "not exactly" a health teacher, and therefore did not meet the reduction-in-force criteria until Gomez reassigned her to cover Forshee's two health classes on or about February 21, 2014. Because Gomez allegedly knew of the reduction-in-force criteria by this date, Howard argues that this reassignment reflects discriminatory (or retaliatory) animus. See 1st Am. Resp. at 6-8. But Howard's own pleadings and evidence indicate that she in fact met Edgewood's reduction-in-force criteria. This blunts any supposed inference of discrimination attributable to Howard's inclusion in the reduction-in-force
According to Howard's summary judgment evidence, all Health and Health/PE (Physical Education) teachers were eliminated as part of the reduction in force. See Walheim Dep. 17:19-22 (Ex. H to Resp). Although Howard now attempts to argue she did not fit this criterion because she was "not exactly" a health teacher, she specifically identifies herself as a "Physical Education and Health teacher" in her Complaint, as well as in the evidence she submits. See Compl. ¶ 10 ("[T]he District employed Ms. Howard as a Physical Education and Health teacher and coach."); Ex. U to 1st Am. Resp. ("I was hired to teach both PE and Health."). Further, Howard was apparently identified by Edgewood as a health teacher several weeks before Gomez reassigned her to cover Forshee's two health classes, and before Gomez allegedly knew of the reduction-in-force criteria. Compare Ex. L to 1st Am. Resp. (identifying Howard as a health teacher on January 23, 2014) with 1st Am. Resp. at 3 (citing Exs. G and H to 1st Am. Resp.) (stating that by mid-February 2014, Gomez likely knew of the employment areas affected by the proposed reduction-in-force). Finally, by Howard's own admission, several other Edgewood employees who were "not exactly" health teachers were also selected for termination by way of the reduction in force, including a male. See 1st Am. Resp. at 7 (explaining that Manual Torres and Wanda Johnston, two individuals who were identified for termination resulting from the reduction-in-force, were "C&T Health Science teachers, not exactly Health teachers").
Second, Howard argues that because she was replaced by a male coach, David Castillo, there is sufficient evidence of intentional discrimination. Id. at 14. This argument also fails because Howard has failed to sufficiently show that Castillo actually replaced her.
According to Howard, for the school year after Howard's contract non-renewal, Castillo—a "new" employee to the district and campus—coached girls' track and co-ed crosscountry as the head varsity coach, just like Howard did before her non-renewal. 1st Am. Resp. at 14 (citing Ex. S). But, as Howard's probationary contract with Edgewood makes clear, Howard was hired as a "classroom teacher," not just as a coach. See Ex. B to 1st Am. Resp. Thus, it appears that Howard's coaching duties were ancillary to her teaching position. Howard has failed to produce any evidence suggesting Castillo was hired also to assume Howard's duties as a classroom health and physical education teacher, or that he was hired to perform the work of other employees who replaced Howard in that role. "[A] person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties."). Pilcher v. Cont'l Elecs. Corp., 121 F.3d 703 (5th Cir. 1997).
Third, Howard argues she was "treated less favorably that [sic] other similarly situated employees" in that other Edgewood employees who were "not exactly" health teachers were not selected for termination in the reduction-in-force. Id. To the same end, Howard then argues that while Gomez "fought" for one male employee, Robert Escobedo, who was proposed for termination in the reduction-in-force but ultimately remained employed by Edgewood, Gomez did not similarly fight for her. Id. These arguments also fail to show sufficient evidence from which a fact finder may reasonably conclude that Edgewood intended to discriminate in reaching the adverse employment action.
Howard fails to produce any evidence that she was treated less favorably than other similarly situated employees outside her protected class. In attempting to do so, she points to Karen Ellis and Lanay Balli, both of whom also taught health, and Mike Inco, who taught physical education exclusively, and complains that all of them were not included in the reduction in force. But Ellis and Balli are female. Edgewood's failure to include them in the reduction in force suggests it was not motivated by an intent to discriminate against females. And Inco allegedly taught physical education exclusively, as opposed to both physical education and health, which means he would not have been met the reduction-in-force criteria. Accordingly, Howard's arguments do not support any inference of discrimination. Cf. Easterling v. Young Men's Christian Ass'n. of Metro. Dallas, No. CIV.A. 3:01-CV-0299M, 2002 WL 31245420, at *3 (N.D. Tex. Oct. 2, 2002) (explaining that plaintiff may establish this fourth element by showing that others similarly situated but not of his sex remained in similar positions).
Howard's argument based on a contention that Gomez fought for one male employee but not for her also fails. According to Howard's evidence, Gomez informed her that he would ensure she had a coaching position, provided Edgewood renewed her contract. See Gomez Dep. 105:19-23 (Ex. E to Resp.). Howard appears to argue that Gomez should have provided her with a position as a physical education teacher, as he allegedly did with Clayton Clark. 1st Am. Resp. at 14. But as Gomez explained, whether Howard was permitted to stay employed by Edgewood was not his decision, see Gomez Dep. 105:24-106:1, and Howard has not introduced any evidence to question that explanation. Moreover, Clark did not remain employed by Edgewood after the reduction in force—he retired. Id. 106:12-20.
Finally, Howard is not assisted by her contention that a male employee, Robert Escobedo, was proposed for termination in the reduction in force but was ultimately transferred instead. See 1st Am. Resp. at 14 (citing Ex. A-15 to Mot.). Of the ten Edgewood employees who were proposed for termination, four were male. See Ex. F to 1st Am. Resp. at 4-5. Further, of the ten Edgewood employees who were proposed for termination, four successfully secured a transfer to another position for the 2014-2015 school, two males and two females. Ex. A-15 to Mot. Accordingly, Howard's arguments and evidence simply do not support an inference of sex discrimination.
3.
4.
Because Edgewood has come forward with a legitimate nondiscriminatory reason for Howard's contract non-renewal, Howard may only avoid summary judgment if she introduces sufficient evidence to demonstrate a genuine issue of material fact whether the legitimate reason proffered by Edgewood is a pretext for discrimination. See Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005). Howard "may show [a genuine issue of material fact regarding] pretext either through evidence of disparate treatment or by showing that [Edgewood's] proffered explanation is false or unworthy of credence." Palacios v. City of Crystal City, Tex., 634 F. App'x 399, 402 (5th Cir. 2015); see also Britt v. Grocers Supply Co., 978 F.2d 1441, 1450 (5th Cir. 1992) ("In the context of summary judgment . . . the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext").
Howard's various attempts to show a genuine issue of material fact regarding pretext fail. "`Evidence that the proffered reason is unworthy of credence must be enough to support a reasonable inference that the proffered reason is false; a mere shadow of doubt is insufficient.'" (quoting E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1443-44 (5th Cir.1995)). Howard points only to shadows, not legitimate reasons to question the proffered justification for the employment action. See Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir.1999); Bourgeois, 507 Fed. App'x at 388-89 (finding that the "mere fact" that Defendant's officer was unaware of the reason why other recommended budgetary reductions were not implemented "does not show that the proffered explanation for [plaintiff's] dismissal was false or unworthy of credence").
The fact that the Edgewood failed to follow its own policies by not placing Howard "into the many vacancies that existed after the exodus of female coaches," 1st Amend. Resp. at 18, also fails as a basis to indicate pretext. A mere alleged failure to follow internal policies is insufficient on its own to show pretext. Howard must also point to evidence that she was treated differently than similarly situated male employees, or she must show a nexus between Edgewood's procedural departure and her status as a female.
In sum, Howard's assertion of pretext rests on speculation and her subjective belief that her inclusion in the reduction in force resulted from sex discrimination. Without sufficient evidence to create a genuine issue of material fact regarding pretext, Howard cannot survive summary judgment. See, e.g., Britt v. Grocers Supply Co., 978 F.2d 1441, 1451 (5th Cir. 1992) (noting, "speculation and belief" are "insufficient to create a fact issue as to pretext"); EEOC v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir. 1984) (noting, "pretext cannot be established by mere `conclusory statements' of a plaintiff who feels he has been discriminated against") (quoting Elliott v. Grp. Medical & Surgical Serv., 714 F.2d 556, 566 (5th Cir. 1983)); Robbins v. Brennan, No. CV H-14-2625, 2016 WL 6248311, at *6 (S.D. Tex. Oct. 26, 2016) ("A plaintiff's subjective speculation that he was fired because of his protected status is not evidence that the true reason for his discharge was discrimination.")
5.
Moreover, Edgewood has asserted a legitimate nondiscriminatory reason for the stipend differential. According to Edgewood, the stipends were based on the sport coached and what was required to fulfill those specific coaching duties, not the coach's sex. 1st Am. Resp. at 21. Howard nevertheless argues that this reason is actually a pretext for sex discrimination because during the 2016-17 academic year Mike Guyer received $3,000 more in stipends than Howard received for coaching cross-country. 1st Am. Resp. at 22. But nowhere in the record does either party supply the stipend amounts for the 2016-17 year, and according to the evidence presented by Howard, Guyer only coached football and soccer, not cross-country. See Exs. S, BB, & CC to 1st Am. Resp.
Howard's arguments and evidence also actually support Edgewood's proffered nondiscriminatory reason for the stipend differential. According to Howard, Edgewood paid male and female tennis coaches the same amount ($6,500). See 1st Am. Resp. at 21. And the evidence reveals that Howard's stipends varied with the sport she coached. She received $3,500 as head cross-country coach and $6,500 as head track coach. Ex. BB to 1st Am. Resp. Howard also admitted during her deposition that she felt the position of cross country coach was discriminated against with respect to stipends but that she did not believe that she herself was discriminated against in stipend pay. See Howard Dep. 75:13-19 (Ex. B-1 to Mot.).
B.
1.
In addition to her contract nonrenewal, Howard invokes various actions and occurrences as materially adverse actions. None of these suffices under Burlington Northern. Accordingly, Howard cannot make out a prima facie case of retaliation based on Gomez's alleged failure to invite her to an end-of-year athletics picnic award ceremony or his alleged decision to ignore her and begin documenting "things he thought were negative about [her]." 1st Am. Resp. at 16-17. These are "`petty slights, minor annoyances, and simple lack of good manners' that employees regularly encounter in the workplace, and which the Supreme Court has recognized are not actionable retaliatory conduct." Aryain, 534 F.3d at 485.
Much the same is true of the fact that Gomez reassigned Howard to cover Forshee's health classes and at the same time "refused to find subs to cover [her] classes and ordered her [to] essentially perform the duties of three coaches." 1st Am. Resp. at 17; Howard Decl. ¶ 5. "Whether a particular [lateral] reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Burlington N., 548 U.S. at 71. There is no evidence that Howard's reassignment or alleged increased workload affected her job title, overall work hours, salary, or benefits. Id. Nor is there any evidence that Howard "suffered a diminution in prestige or change in standing among her co-workers. Id. Accordingly, neither Howard's reassignment to cover Forshee's health classes nor her alleged increased workload constitutes a materially adverse employment action. See Stewart, 586 F.3d at332 (rejecting similar complaint where plaintiff's position, pay, hours, and duties remained unchanged and there was no evidence she suffered a diminution in prestige or change in standing among her coworkers); Ellis v. Compass Group USA, Inc., 426 Fed. App'x 292, 297 (5th Cir. May 20, 2011) (similar holding); Obondi v. UT Sw. Med. Ctr., No. 3:15-CV-2022-B, 2017 WL 2729965, at *14 (N.D. Tex. Jun. 23, 2017) (similar holding).
Finally, Howard invokes a reprimand she received after sending an allegedly inappropriate email. But "[a] written reprimand, without evidence of consequences, does not constitute an adverse employment action." Thibodeaux-Woody v. Houston Cmty. Coll., 593 Fed. App'x 280, 286 (5th Cir. Nov. 14, 2014) (citations omitted). Here, the written reprimand simply directed Howard to "work on" several matters so that the Girl's Track Program could be successful. See Ex. M to 1st Am. Resp. It does not reference any adverse consequences nor has Howard introduced any such evidence.
Accordingly, only Howard's contract non-renewal is at issue as an adverse employment action with respect to her Title VII retaliation claim.
2.
3.
Finally, for the reasons already discussed above, Howard should not be granted a Rule 56 continuance to obtain information she did not timely seek to compel.
For the reasons discussed above, the undersigned recommends that the District Court
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed