Full opinion text
OPINION AND ORDER OF PARTIAL SUMMARY JUDGMENT MELINDA HARMON, District Judge. Pending before the Court in the above referenced cause, brought by Plaintiff Felicia Lopez against her employer, the Department of the Interior (“DOI”), alleging discrimination based on race (Hispanic), gender (female), national origin (Puerto Rican Hispanic), and disability (Myofascial Pain Syndrome), as well as claims of a hostile work environment and retaliation, is Plaintiff Federal Defendant’ motion for summary judgment (instrument # 34) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(c). Federal Defendant argues that this case should be dismissed with prejudice because Plaintiff failed to exhaust administrative remedies timely and/or cannot establish a prima facie case of discrimination or pretext for any of her claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., or the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. After reviewing the motion and related briefs, as well as the summary judgment evidence, the Court finds that the motion should be denied in part and granted in part. Standard of Review Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The movant has the burden to demonstrate that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If the movant succeeds, the non-movant must come forward with evidence such that a reasonable party could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant “must come forward with ‘specific facts showing there is a genuine issue for trial.’ ” Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A factual dispute is deemed ‘genuine’ if a reasonable juror could return a verdict for the nonmovant, and a fact is considered ‘material’ if it might affect the outcome of the litigation under the governing substantive law.” Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5th Cir.1993). Summary judgment is proper if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.” Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. Chevron Phillips, 570 F.3d 606, 612 n. 3 (5th Cir.2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir.1999). Although the court draws all reasonable inferences in favor of the nonmovant, the non-movant “cannot defeat summary judgment with conclusory, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Med. Center, 476 F.3d 337, 343 (5th Cir.2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir.1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). “ ‘[A] subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief.’ ” Lawrence v. Univ. of Texas Medical Branch, 163 F.3d 309, 313 (5th Cir.1999), quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir.1983). Plaintiffs Complaint Plaintiffs Third Amended Complaint (# 31), the controlling pleading, makes the following factual allegations. Because the complaint is not very detailed and somewhat disorganized, the Court fills in some gaps and dates of events with undisputed facts from the briefing and summary judgment evidence. Plaintiff began working for the United States Department of the Interior (“DOI”), Mineral Management Services (“MMS”), Offshore CAM, Houston, Texas, as a GSA-9 auditor in 1990. # 34 at Exs. 4:5-6; 6:632, 640. She became a GS-13 in 1999. # 34, Ex. 6:261. She is currently a Supervisor Auditor, GS-0511013, one of two Hispanic female supervisors in that office. Up until 2000, she states that she received numerous pay increases, promotions, and increased employment responsibilities, as well as awards and recognition from her peers and superiors, and that she was never disciplined. In 1991 Plaintiff claims that she was diagnosed with myofascial pain syndrome, a permanent disability that causes her constant pain, migraines, and other physical problems. Plaintiff complains that she was subjected to a hostile work environment from 2000 until the present. In 2000 Plaintiff asserts that she was subjected to “unwelcome remarks by a supervisor,” Michael Casias. Plaintiff alleges that Casias “put her down” during a meeting in front of her team members by saying, “Do you understand me, read my lips” and “Oh, are you sleeping, go to sleep.” Plaintiff contends that neither Casias nor her current supervisor, Gary Grant, did anything to remedy the hostile work environment after she brought it to their attention. Moreover, on November 16, 2006 Grant gave her a rating of “Fully,” based on a recommendation from Linda Moody, Plaintiffs former supervisor. Plaintiff notes that after the Equal Employment Opportunity Commission (“EEOC”) became involved, that rating was changed to “Superior.” When Plaintiff was transferred on April 18, 2004 from MMS-CAM to Royalty in Kind (“RIK”), Plaintiff claims that without her knowledge she was “demoted” from Supervisory Auditor, a management position, to a non-supervisory technical position. She claims she was treated differently from other similarly situated persons outside her protected group, specifically Gary Grant, a Caucasian male, who was also working on RIK, but whose classification as supervisory auditor was not changed. Although she was later transferred back to MMS-CAM and her demotion was reversed, the reversal only became effective as of 10/01/04 instead of 4/18/04, the date she was transferred to RIK. Plaintiff charges that Pratima Subbarao, who told Plaintiff that the personnel action had to be approved by Lonnie Kim-ball, her new supervisor in MMS-CAM, also stalled or quashed efforts by Plaintiff and her RIK manager Stacy Leyshon to reverse the demotion. Plaintiff also complains that from October 2004 through October 2005, despite excellent performance evaluations, promotions, and awards, through adverse employment decisions she was denied the opportunity to work on many projects, including supervising the Chevron residency, transportation system audits, random audit (to which she was finally assigned after complaining), and a telecommuting agreement even though she lived 78 miles from work and the stress of driving round trip each day aggravated her physical condition; she claims that management also refused to grant her promotions and pay awards. In addition, she contends that her “managers [Linda Moody and Lonnie Timball] were withholding approval and signature of engagement letters, giving her uncertain workloads to create chaos, making numerous management changes, forcing Plaintiff to perform secretarial tasks, and harassing Plaintiff in an effort to prevent her from doing her job effectively.” She also asserts very generally and without specific facts that she and her work “have been undermined in front of her peers and auditors, during supervisor meetings, and her decisions on training and telecommuting for direct reports are consistently being overturned.” Plaintiff alleges that Defendant refused to accommodate, indeed discriminated against, her, based on her disability and on her sex, race, and national origin. In particular Defendant refused her requests on October 3, 2004 and March 6, 2006, to allow her to telecommute even though similarly situated employees were approved to do so. Although her more recent application was initially approved by her supervisor Carol Green, Plaintiff asserts that Lonnie Kimball then disapproved it without giving a reasonable explanation. Plaintiff maintains that others in similar positions and circumstances were allowed to telecommute. Plaintiff also complains that around April 2006 Plaintiff was unable to use an entrance door next to her office and server. She further objects that her supervisor and others continued to “closely monitor” her. Until recently she was assigned an office at the end of the building, near the supply room, far away from her team and the other employees. The office was too small to hold meetings with her team. She also was not invited to nor included in supervisory meetings nor in the selection of new employees. On an unspecified dates, she was not given an award at the time of accomplishment, but only at a later time (in one instance, two years) in violation of DOI’s award recognition policy, while other managers recognized their employees at the time of accomplishment. She further asserts that her attempts to become a supervisory auditor, and to have any real chance for promotions, were “thwarted.” She additionally complains that at some time after October 3, 2004, her supervisors Linda Moody and Lonnie Kimball made changes to an engagement letter that she had drafted. Also at some point after that date she requested a larger office, specifically the one which housed the Chevron auditor residency, but her request was denied. Plaintiff met with EEO counselor Rosa Thomas on November 16, 2005. See # 34, Ex. 6:0300-01. Thus any charged discriminatory action must have occurred no earlier than October 2, 2005 unless limitations is equitably tolled. She filed a complaint for non-promotion effective February 27, 2005. In her Response, without providing a date, Plaintiff claims that she applied for job announcement MMSW-TL-06-MM103810, but that her application was initially denied because she purportedly did not meet the educational requirements. # 35 at 9-10 and Ex. 7. That error was corrected but she maintains that “it left a stigma in the mind of those handling the application” even though Plaintiff made the “best qualified” list. # 35 at 9. She alleges that Lonnie Kimball was involved in the drafting of the Vacancy Announcement for that job, that he deviated from the policy of doing panel interviews and instead was the sole interviewer for all the candidates, and that he failed to take notes during the interviews. Lonnie Kimball chose Caucasian male Gary Grant for the position and issued a written justification for his choice that Plaintiff asserts is a mere pretext. Id., citing Ex. 2.1. The Justification demonstrates that Kimball hired Grant for reasons not related to job description of the position in the Vacancy Announcement. Ex. 6, 8. Faye Stewart, an African American woman similarly situated to Plaintiff, was also denied the position. Faye Stewart then brought an action through the EEOC for non-promotion; Plaintiff claims that the Administrative Law Judge found that Kimball had discriminated on the basis of race and gender. Ex. 2, 9. Plaintiff maintains that after she filed a claim with the EEO against her employer for ongoing violations, Defendant retaliated and took no steps to remedy the illegal employment practices. She has received limited work assignments and her attempts to apply for promotions have been thwarted. She claims that Gary Grant unfairly gave her the “Fully” rating in reprisal on November 16, 2006. She further vaguely accuses management of “creatfing] circumstances which prevent others from wanting to work with her or under her direction,” e.g., “by the placement of her office, the projects assigned to her teams, and the inequitable treatment of her category of employees during emergency times such as hurricane Rita.” She insists that “Defendant’s treatment of Plaintiff was substantially different than its treatment of other [sic ] male and non Hispanic employees in the same or similar positions and with the same or similar experience level.” Relevant Law 1. Title VII Under section 703(a) of Title VII, it is “an unlawful employment action for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (a)(1). a. Employer Only an “employer” can be liable under the statute. Title VII defines “employer” a “a person engaged in an industry affecting commerce ... and any agent of such a person.” 42 U.S.C. § 2000e(b). Liberally construing “any agent,” the Fifth Circuit has held immediate supervisors to be employers under the statute “when delegated the employer’s traditional rights, such as hiring and firing” or if the supervisor “ ‘participated in the decisionmaking process that forms the basis of the discrimination.’ ” Harvey v. Blake, 913 F.2d 226, 227 (5th Cir.1990); Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir.1986), quoting Jones v. Metro. Denver Sewage Disposal Dist., 537 F.Supp. 966, 970 (D.Colo.1982). A court should also examine whether the supervisor was responsible for the terms and conditions of the plaintiffs employment or for the plaintiffs work assignment in the company. Garcia v. Elf Atochem North America, 28 F.3d 446, 451 (5th Cir.1994), abrogated in part by Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (holding that same-sex sexual discrimination is actionable under Title VII). The purpose of the “agent” provision in § 2000e(b) was to incorporate respondeat superior liability into Title VII. Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir.), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994). Nevertheless a supervisor or employee cannot be held liable in his individual capacity, only in his official capacity as an agent of the employer. Id. at 652-53. Similarly, a supervisor cannot be held personally liable under the ADA, which has a mirror “employer” provision. See, e.g., Jenkins v. Bd. of Educ., 937 F.Supp. 608, 612 (S.D.Tex.1996); Miller v. Giglio Distrib. Co., 899 F.Supp. 318, 319 (ED.Tex.1995). b. Exhaustion of Remedies for Federal Employees Before bringing a civil suit in federal court under Title VII, under regulations promulgated by the EEOC, federal employees must exhaust available administrative remedies. Yee v. Baldwin-Price, 325 Fed.Appx. 375, 378 (5th Cir.2009), citing Hampton v. IRS, 913 F.2d 180, 182 (5th Cir.1990). First, the federal employee must “initiate contact with [an EEO] Counselor [in the appropriate agency] within 45 days of the date of the matter alleged to be discriminatory.... ” Id., quoting 29 C.F.R. § 1614.105(a)(1). “ ‘Failure to notify the EEO counselor in [a] timely fashion may bar’ the employee’s claim.” Id., quoting Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir.1992). See also Pacheco v. Mineta, 448 F.3d 783 (5th Cir.2006) (“As a precondition to seeking ... judicial relief [from proscribed discriminatory practices in Federal District Court] complaining employees must exhaust their administrative remedies by filing a charge of discrimination with the EEO division of their agency.”). The same time limit applies to disability discrimination claims under the Rehabilitation Act by a federal employee. Doe v. Garrett, 903 F.2d 1455, 1459-60 (11th Cir.1990); Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.2008). In the federal employee context, as in the private employee context, under Title VII the purpose of the exhaustion requirements “is to provide [agencies with] an opportunity to reach a voluntary settlement of ... employment discrimination disputéis]” by means of an informal process before resorting to the formal EEO complaint process. Jasch v. Potter, 302 F.3d 1092, 1094 (9th Cir.2002); see also Brown v. Marsh, 777 F.2d 8, 14 (D.C.Cir.1985). If the matter is not resolved after the mandatory counseling period and the agency’s EEO makes a determination, the federal employee complainant has the choice of either appealing the decision to the EEOC Office of Review and Appeals or filing suit in federal district court. Tolbert v. United States, 916 F.2d 245, 248 (5th Cir.1990). If the employee chooses the former, the federal employee must file a formal written administrative complaint with the EEOC within fifteen days of the EEO counselor’s notice of final interview and right to file a formal complaint (“EEO notice”). Thereafter the federal employee may proceed to federal court and file a Title VII civil action (a) within ninety days of the notice of a final agency decision on the EEOC complaint or (b) after 180 days from the filing of the EEOC complaint if the Commission has not yet issued a decision. Tolbert, 916 F.2d at 248; Martinez v. Dep’t of U.S. Army, 317 F.3d 511, 513 (5th Cir.2003); Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir.2001), citing 42 U.S.C. § 2000e-16(c), and 29 C.F.R. §§ 1614.105(a)(1), 1614.106(a) & (b), and 1614.108(a) & (b). If the complaining employee chooses to pursue her remedies with the EEOC appeal, however, she is required to wait until that administrative remedy is exhausted, as indicated supra, before filing an action in federal district court; a premature filing in federal district court constitutes a failure to exhaust and requires dismissal of the claims. Tolbert, 916 F.2d at 249. There are conflicting panel opinions in the Fifth Circuit as to (1) whether the exhaustion requirement is simply a prerequisite to filing suit and to be treated as a statute of limitations, thus subject to equitable doctrines of waiver, tolling and estoppel, or (2) whether it is jurisdictional, the failure to perform which bars any jurisdictional review. Pacheco v. Mineta, 448 F.3d 783, 788 n. 7 (5th Cir.2006), cert. denied, 549 U.S. 888, 127 S.Ct. 299, 166 L.Ed.2d 154 (2006); Vidal v. Chertoff, 293 Fed.Appx. 325, 328 n. 1 (5th Cir.2008) (recognized conflict, concluded that although the district court had the power to toll the limitations, affirmed its refusal to do so and its dismissal of a Title VII claim for the plaintiffs failure to contact the EEO officer timely about his retaliation claim); Eberle v. Gonzales, 240 Fed.Appx. 622, 626 (5th Cir.2007) (relying on Pacheco in affirming dismissal, denying tolling, and concluding that plaintiff failed to contact EEO counselor with forty-five days to raise race and disability discrimination claims which he could have raised at the same time he raised his age discrimination claims). In Yee, a recent Fifth Circuit case, the panel stated, “The exhaustion requirement is not jurisdictional, however, and is subject to the equitable defenses of waiver, estoppel, and equitable tolling.... If informal counseling is not timely sought, ‘the plaintiff has the burden of demonstrating a factual basis to toll the period.’ ” 325 Fed.Appx. at 378, citing Pacheco, 966 F.2d at 905, and Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.1988). But see Atkins v. Kempthorne, No. 09-60401, Slip Op. at 3-4 and n. 3, 2009 WL 4158160, at *1-2 and n. 3 (5th Cir. Nov. 27, 2009) (holding that “Congress intended for the exhaustion of administrative remedies to be a jurisdictional prerequisite to filing a civil action in federal court”) (per curiam), citing Tolbert v. United States, 916 F.2d 245, 249 (5th Cir.1990) (“[ajbsent an indication of contrary congressional intent, we will not countenance circumventing the administrative process in this manner”). Filing an administrative charge of discrimination timely with the EEOC satisfies the exhaustion requirement. Id. Although courts read the EEOC charges rather broadly to determine “what EEOC investigations it can reasonably be expected to trigger,” a failure to reference a claim in that charge may defeat that claim. For example, discrimination and retaliation claims are distinct, so alleging one and not the other in an EEO charge does not exhaust a plaintiffs remedies as to the one not included. Bouvier v. Northrup Grumman Ship Systems, Inc., 350 Fed.Appx. 917, 921-22 (5th Cir.2009). The Court may, however, consider time-barred acts occurring outside the limitations period insofar as they are relevant to a Defendant’s motivation. Reyes v. Weslaco Independent School Dist., No. CIV-06-372, 2007 WL 2538804, *5 (S.D.Tex. Aug. 30, 2007), citing Morgan, 536 U.S. at 113, 122 S.Ct. 2061 (prior acts may be used as “background evidence” in support of timely employment discrimination claim), and Jute v. Hamilton Sunstrand Corp., 420 F.3d 166, 176-77 (2d Cir. 2005) (“relevant background evidence, such as statements by a decisionmaker or earlier decisions typifying the retaliation involved, may be considered to assess liability on the timely alleged act” giving rise to Title VII claim), citing Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir.2004) (characterizing “earlier promotion denials” as “relevant, background evidence”) See also Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002) (“Discriminatory incidents outside of the filing period may be relevant background information to current discriminatory acts.”), cited and quoted in Stewart, 586 F.3d at 333 (Haynes, J., concurring and dissenting) (“In Cortes v. Maxus Exploration Co., 977 F.2d 195, 199 (5th Cir.1992), we held that it was proper to consider time-barred acts of harassment in assessing timely claims.”). c. Burden of Proof in Discrimination Cases A plaintiff can prove a claim of discrimination under Title VII by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir.2000); Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.2005) (same applies to a retaliation claim under Title VII). (1.) Direct Evidence “Direct evidence proves intentional discrimination without inference or presumption when believed by the trier of fact.” Jones v. Overnite Transportation Co., 212 Fed.Appx. 268, 272 (5th Cir.2006), citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002). “In the context of Title VII, direct evidence includes any statement or written document showing a discriminatory motive on its face.” Fierros v. Texas Dept. of Health, 274 F.3d 187, 195 (5th Cir.2001), citing Portis v. National Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir.1994); Ovemite Transportation, 212 Fed.Appx. at 272. If a plaintiff produces direct evidence of discrimination, she may “bypass the McDonnell Douglas burden-shifting framework [discussed infra ] commonly applied in discrimination cases and proceed directly to the question of liability.” Moore v. U.S. Dept. of Agric., 55 F.3d 991, 995 (5th Cir.1995); Fierros v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir.2001); Stone v. Parish of East Baton Rouge, 329 Fed.Appx. 542, 545-46 (5th Cir.2009). “In such ‘direct evidence’ cases, ‘the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor.’ ” Fierros, 274 F.3d at 192, quoting Brown v. East Miss. Elec. Power Assoc., 989 F.2d 858, 861 (5th Cir.1993). “Workplace remarks may constitute direct evidence of discrimination if they are '1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the [eomplained-of adverse employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.’ ” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.1996); Patel v. Midland Memorial Hospital & Medical Center, 298 F.3d 333, 343-44 (5th Cir.2002), quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-23 (5th Cir.2001). See also Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir.2000), cert. denied, 532 U.S. 937, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001). If the comments fail to meet these criteria, e.g., if they are vague and remote in time, or the speaker has no authority or influence over the employment decisions, they are merely “stray remarks.” See, e.g., Krystek v. University of Southern Miss., 164 F.3d 251, 256 (5th Cir.1999). After the issuance of Reeves, the Fifth Circuit has continued to find that remarks may be “probative of discriminatory intent” and “are appropriately taken into account when analyzing the evidence ... even where the comment is not in the direct context of termination and even if uttered by one other than the formal decision maker, provided that the individual is in a position to influence the decision.” Palasota, 342 F.3d at 578, cited in Cervantes v. KMGP Services Co., Inc., 349 Fed. Appx. 4, 10-11 & nn. 22-27 (5th Cir.2009); see also Brauninger v. Motes, 260 Fed.Appx. 634, 640 (5th Cir.2007) (to be evidence of animus, a remark must be related to and in proximate time to a specific employment decision and the remark must be “direct and unambiguous”). Remarks reflecting discriminatory animus may be used to demonstrate pretext or as additional evidence of discrimination. Russell, 235 F.3d at 225. Where the remarks are the only evidence of pretext, however, they are not probative. Palasota, 342 F.3d at 577. (2.) Circumstantial Evidence Where the plaintiff does not have direct evidence of discrimination, her claim based on circumstantial evidence is analyzed under the burden-shifting evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). (a.) Prima Facie Case Plaintiff must initially establish a prima facie case of intentional discrimination under a disparate treatment theory by demonstrating that she “(1) is a member of a protected class; (2) was qualified for the position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, shows that other similarly situated employees [not in the protected class] were treated more favorably.” Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.2004). (i). Adverse Employment Decision or Action An “adverse employment action for Title VII discrimination claims based on race, color, religion, sex, or national origin ‘include[s] only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.’ ” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.2007), quoting Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir.2002). “Title VII was only designed to address ‘ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.’ ” Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir.1999) (emphasis in original), quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997). To be actionable, an adverse employment decision must be a “tangible employment action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). “[A] decision made by an employer that only limits an employee’s opportunities for promotion or lateral transfer does not qualify as an adverse employment action under Title VII.” Banks v. East Baton Rouge Parish School Board, 320 F.3d 570, 575 (5th Cir.2003), citing Burger, 168 F.3d at 878-80 (holding that an employer’s refusal of an employee’s request for a “purely lateral transfer” does not qualify as an adverse employment action under Title VII). See also Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995) (affirming decision that an employer’s denial of a “desk audit” to a female employee is not an adverse personnel action under Title VII, even though the employee claimed that the decision restricted her “promotional opportunities”), overruled in part on other grounds in retaliation cases only, Burlington N. and Santa Fe Ry. v. White (hereinafter “Burlington N.”), 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (rejecting limiting actionable retaliation claims to ultimate employment decisions and redefining adverse employment action in retaliation context as any action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination). By themselves, documented reprimands, though potentially affecting future employment decisions, do not qualify as adverse employment decisions. Thompson v. Exxon Mobil Corp., 344 F.Supp.2d 971, 981 (E.D.Tex.2004), citing Felton v. Polles, 315 F.3d 470, 487 (5th Cir.2002) (iabrogated on other grounds in retaliation cases only by Burlington N.), and Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 470 (5th Cir.2002). The same is true of negative performance evaluations, even if they were not deserved. Thompson, 344 F.Supp.2d at 981 (and cases cited therein). Disciplinary write-ups also fail to qualify as adverse employment actions. Id. at 982, citing Mattern, 104 F.3d at 707, and Carthon v. Johnson Controls, Inc., 100 Fed.Appx. 993, 997 (5th Cir.2004) (The employee’s “receipt of a single disciplinary warning — without an attendant change in the terms or conditions of his employment— does not qualify as an ultimate employment decision.”). See also Walker v. Thompson, 214 F.3d 615, 629 (5th Cir.2000) (employer’s decision to take away a big account from an employee after she filed an EEOC complaint did not constitute an adverse employment action even though it decreased her chances of advancement); Davis v. Miss. Transp. Commission, 618 F.Supp.2d 559, 564 (S.D.Miss.2009) (“[W]e have repeatedly held that an employment action that limits an employee’s future opportunities for promotion, but does not affect the employee’s job duties, compensation, or benefits, does not qualify as an adverse employment action.”). A transfer may or may not be the equivalent of a demotion and thus qualify as an adverse employment action. Alvarado v. Texas Rangers, 492 F.3d 605, 613-15 (5th Cir.2007). Even if a transfer does not “ ‘result in a decrease in pay, title, or grade, it can be a demotion if the new position proves objectively worse — such as being less prestigious or less interesting or providing less room for advancement.’ ” Id. at 613, quoting Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999), citing Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir., 1996); Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992); Serna v. City of San Antonio, 244 F.3d 479, 483 (5th Cir.2001); and Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir.2000) (“In a Title VII case, a transfer to a different position can be ‘adverse’ if it involves reduction in pay, prestige or responsibility.”). “Whether the new position is worse is an objective inquiry.” Alvarado, 492 F.3d at 613-14, citing Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir.2004), “‘[A] plaintiffs subjective perception that a demotion has occurred is not enough.’ ” Id. at 614, quoting Forsyth, 91 F.3d at 774, and also citing Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 n. 8 (5th Cir.2001) (“[T]he focus is on the objective qualities of the positions, rather than an employee’s subjective preference for one position over another. That subjective preference, alone, is an insufficient basis for finding an adverse employment action.”); Serna, 244 F.3d at 483 (“[I]t is insufficient for a plaintiff to show merely that he has been transferred from a job he likes to one he considers less desirable. Rather, a plaintiff must produce enough evidence to allow a reasonable trier of fact to conclude that, when viewed objectively, the transfer caused [him] harm....”). (ii.) Similarly Situated “Similarly situated” employees are employees who are treated more favorably in “nearly identical” circumstances; the Fifth Circuit defines “similarly situated” narrowly. Silva v. Chertoff, 512 F.Supp.2d 792, 803 n. 33 (W.D.Tex.2007). Similarly situated individuals must be “nearly identical” and must fall outside the plaintiffs protective class. Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir.2005). Where different decision makers or supervisors are involved, their decisions are rarely “similarly situated” in relevant ways for establishing a prima facie case. Thompson v. Exxon Mobil Corp., 344 F.Supp.2d 971 (E.D.Tex.2004), citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir.2000) for the proposition that “[a] demonstration of substantial similarity generally requires a showing that a common supervisor was involved in the decision making”). See also Perez v. Texas Dep’t of Criminal Justice, Inst’l Div., 395 F.3d 206, 213 (5th Cir.2004) (“We ... have explained consistently that for employees to be similarly situated those employees’ circumstances, including their misconduct, must have been ‘nearly identical.’ ”); Hockman v. Westward Communications, LLC, 282 F.Supp.2d 512, 527-28 (E.D.Tex.2003) (“The ‘nearly identical’ standard, when applied at the McDonnell Douglas pretext stage is a stringent standard — employees with different responsibilities, different supervisors, different capabilities, different work rule violations or different disciplinary records are not considered to be ‘nearly identical.’ ”), citing Okoye v. Univ. of Tex. Houston Health Science Center, 245 F.3d 507, 514 (5th Cir.2001) (Employees are not in nearly identical circumstances when their actions were reviewed by different supervisors; “to establish disparate treatment a plaintiff must show that the employer ‘gave preferential treatment to [ ] [another] employee under ‘nearly identical’ circumstances’ ” ...; that is “the misconduct for which [plaintiff] was discharged was nearly identical to that engaged in by ... [other] employee[s].’ ”)). (b.) Burden of Production Shifts to Employer If Plaintiff succeeds in making a prima facie case, there is a presumption of discrimination, and the burden of production shifts to the employer to “ ‘produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason’ ” for its adverse employment action. Reeves, 530 U.S. at 142, 120 S.Ct. 2097, quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). There must be no credibility assessment. Id., citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the employer meets this burden, the presumptions and burdens disappear. Id. at 143, 120 S.Ct. 2097, citing St. Mary’s Honor Center, 509 U.S. at 510, 113 S.Ct. 2742. (c.) Plaintiffs Ultimate Burden of Production and Persuasion Although the intermediate burden of production shifts back and forth under this framework, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer succeeds in demonstrating a legitimate, nondiscriminatory reason for its conduct, Plaintiff must then show, with substantial evidence, that each of the employer’s proffered justifications was mere pretext for discrimination. Reeves, 530 U.S. at 143, 120 S.Ct. 2097; Wallace v. The Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.2001), cert. denied, 535 U.S. 1078, 122 S.Ct. 1961, 152 L.Ed.2d 1022 (2002). Although the presumption of discrimination has disappeared, the trier of fact may consider evidence establishing the plaintiffs prima facie case and inferences drawn therefrom in determining whether the employer’s explanation is pretextual. Reeves, 530 U.S. at 143, 120 S.Ct. 2097. Coupled with the Plaintiffs prima facie case, the evidence of pretext usually will constitute sufficient evidence to raise an issue of material fact as to whether the employer’s reason is credible or merely a pretext for discrimination or, if its reason is true, that a discriminatory reason more likely motivated the decision to effect its adverse employment action. Reeves, 530 U.S. at 143, 147-49, 120 S.Ct. 2097. Sometimes, however, additional evidence may be required. Id. “[T]he factfinder’s rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiffs proffered reason is correct.’ In other words, ‘[i]t is not enough ... to dis believe the employer; the fact finder must believe the plaintiffs explanation of intentional discrimination.’ ” Id. at 146-47, 120 S.Ct. 2097 (emphasis in original), citing St. Mary’s Honor Center, 509 U.S. at 511, 524, 519, 113 S.Ct. 2742. “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiffs 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 on a motion for judgment as a matter of law.” Id. at 148-49, 120 S.Ct. 2097. d. Hostile Work Environment “A hostile work environment exists ‘when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Stewart v. Miss. Transp. Commission, 586 F.3d 321, 328 (5th Cir.2009), citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). To prevail on a claim of a hostile work environment under Title VII, an employee initially must make a prima facie case of the following elements: (1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome harassment; (3) that harassment was based on her membership in the protected class; (4) that the harassment affected a term, condition, or privilege of her employment, and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action. E.E.O.C. v. WC & M Enterprises, Inc., 496 F.3d 393, 399 (5th Cir.2007) (national origin and religion harassment); Johnson v. TCB Const. Co., Inc., 334 Fed.Appx. 666, 670-71 (5th Cir.2009) (racially hostile work environment); Stewart v. Miss. Transp. Commission, 586 F.3d at 330-31 (sexual harassment), citing Lauderdale v. Texas Department of Criminal Justice, Institutional Division, 512 F.3d 157, 163 (5th Cir.2007). “Hostile work environment claims based on racial harassment are viewed under the same standard as those based on sexual harassment.” Morgan, 536 U.S. at 116, n. 10, 122 S.Ct. 2061, citing Faragher v. Boca Raton, 524 U.S. 775, 786-87 and n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). If the harasser is a supervisor with authority over the employee, only the first four elements need be shown. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999). To “affect[] a term, condition, or privilege of employment,” the harassing conduct “ ‘must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” Aryain v. Wal-Mart Stores of Texas, LP, 534 F.3d 473, 479 (5th Cir.2008), quoting Lauderdale, 512 F.3d at 163. The work environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Id., quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). “ ‘Whether an environment is hostile or abusive depends on a totality of circumstances, [including] frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance.’ ” Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 655-56 (5th Cir.2002) (citation omitted); Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir.2005). See also Hockman v. Westward Communications, LLC, 407 F.3d 317, 326 (5th Cir.2004) (adding as element 5, “whether the complained-of conduct undermines the plaintiffs workplace competence.”). Indeed, “the harassment must be so ‘severe and pervasive that it destroys a protected classmember’s opportunity to succeed in the work place.’ ” Hockman, 407 F.3d at 326, quoting Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.1999). The complained-of conduct must be “more than rude or offensive comments, teasing or isolated incidents.” Id. The Supreme Court has repeatedly opined that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Id. at 328, citing inter alia Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). For allegations of a sexually hostile work place, “ ‘implicit or explicit in the sexual content [of the harassment] [must be] the message that the plaintiff is incompetent because of her sex.’ ” Id. at 326, citing Butler v. Ysleta Indep. School Dist., 161 F.3d 263, 270 (5th Cir.1998). If a plaintiff makes a prima facie ease of a hostile work environment, the employer can raise an affirmative defense to liability by demonstrating (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm or otherwise. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher, 524 U.S. at 807, 118 S.Ct. 2275. The “continuing violation” theory has been applied by the Fifth Circuit to Title VII claims of a hostile work environment, which is usually comprised of a series of separate acts that collectively constitute one unlawful employment practice. Stewart, 586 F.3d at 328. In contrast to a case alleging discrete violations, the hostile work environment doctrine “extends the limitations period on otherwise barred claims only when the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.” Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir.2004). “Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. [She] must show an organized scheme leading to and including a present violation.” Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir.1998). “[I]t is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action.” Id. Under a continuing violation exception, “a plaintiff must prove that ‘a persisting and continuing system of discriminatory practices’ produces ‘effects that may not manifest themselves as individually discriminatory except in cumulation over a period of time,’ and that one of the acts falls within the limitations period.” Merriman v. Potter, 251 Fed.Appx. 960, 964-65 (5th Cir.2007) (citations omitted). See also Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th Cir.1986) (recognizing an exception to the limitations period “[w]here the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.”). If the Plaintiff satisfies the requirement for demonstrating a continuing violation, the court may then consider all acts alleged to have contributed to the hostile work environment, even if they occurred outside” the limitations period. Ramsey, 286 F.3d at 269.; in accord. Stewart, 586 F.3d at 328, citing Morgan, 536 U.S. at 105, 122 S.Ct. 2061. The continuing violation doctrine is not applicable to discrete acts of discrimination that occur outside of the statutory time period, however. Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir.2003); Holden v. Illinois Tool Works, Inc., No. H-06-2981, 2008 WL 183334, *2 (S.D.Tex. Jan. 18, 2008). As the Supreme Court noted in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 112-13, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.’ ... [Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period [or 45 day period for consulting an EEO officer for federal employees] after the discrete discriminatory act occurred. The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.” [citations omitted]. Nevertheless, even with a continuing violation, the statutory time begins to run when “facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated.” Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir.1985). Thus, given the “[e]quitable considerations at the core of the continuing violation theory, the focus is on what incidents or events, in fairness and logic, should have placed the average lay person on notice that her rights have been violated. Id. “The mere perpetuation of the effects of time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period.” Glass, 757 F.2d at 1561, quoting Trevino v. Celanese Corp., 701 F.2d 397, 403 n. 7 (5th Cir.1983) (emphasis in the original). Id. Thus there are three restrictions on the continuing violation doctrine: plaintiff must show that (1) the different acts are related; (2) the violation must be continuing, and an intervening action by the employer will sever the prior actions from those that came after it and bar liability for prior acts outside the filing window; and (3) the court may use its equitable powers to temper the continuing violation doctrine to “honor Title VII’s remedial purpose “without negating the particular purpose of the filing requirement.’ ” Stewart, 586 F.3d at 328, citing Morgan, 536 U.S. at 120, 122 S.Ct. 2061, quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). With respect to the first prong, relatedness, various acts may be sufficiently “related” to earlier ones to constitute a single “practice” for purposes of 42 U.S.C. § 2000e-5(e)(1) if the incidents “involved the same type of harassment and were perpetrated by the same manager.” Stewart, 586 F.3d at 329, citing Morgan, 536 U.S. at 120, 122 S.Ct. 2061. With respect to the third prong, the Supreme Court has held that equitable doctrines such as waiver, estoppel and equitable tolling “are to be applied sparingly.” Id. at 113, 122 S.Ct. 2061, citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), and Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). In Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1027 (7th Cir.2003), the Seventh Circuit observed, “Morgan foreclosed the use of the continuing violation doctrine to incorporate untimely claims for discrete discriminatory actions even though they may be related to a timely claim.” e. Retaliation or Reprisal To assert a claim of retaliation under Title VII, a plaintiff with only circumstantial evidence must satisfy the burden-shifting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First the plaintiff must make a pnma facie case that meets three elements: (1) the employee engaged in an activity that is protected by Title VII; (2) the employer took an adverse employment action against the employee; and (3) there is a causal connection between the protected activity and the adverse employment action. Brazoria County, Tex. v. EEOC, 391 F.3d 685, 692 (5th Cir.2004), cited for that proposition in Cooper v. Dallas Police Assoc., 278 Fed. Appx. 318, 320 (5th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1914, 173 L.Ed.2d 1065 (2009). See also McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.2007). The statute defines “protected activity” as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding or hearing under Title VII. 42 U.S.C. § 2000e-3(a). “[T]o establish the causation prong of a retaliation claim, the employee should demonstrate that the employer knew about the employee’s protected activity.” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir.2003). The anti-retaliation provision of Title VII does not protect an employee from all retaliation, but only from retaliation that produces an injury or harm. Burlington Northern, 548 U.S. at 67, 126 S.Ct. 2405. An “adverse employment action,” for the second prong, in a retaliation claim only, is not limited to the Fifth Circuit’s previous “ultimate employment decision” standard for discrimination claims under the statute. The Supreme Court has held that “the standard for retaliation is broader than for discrimination” in that such actions are not limited to tangible employment actions. For purposes of a retaliation claim, an adverse employment action is one that “a reasonable employee would have found ... [to be] materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 68, 126 S.Ct. 2405 (2006). See also McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.2007) (same) (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). “The purpose of this objective standard is ‘to separate significant from trivial harms’ and ‘filter out complaints attacking the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing.’ ” Stewart, 586 F.3d at 331, citing Burlington N., 548 U.S. at 68, 126 S.Ct. 2405. The Fifth Circuit has held that temporal proximity between the protected activity and the alleged adverse employment action, by itself, is insufficient to create a genuine issue of material fact for the element of causation. DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed.Appx. 437, 443 (5th Cir.2007) (collecting cases on temporal proximity). See also Mayberry v. Vought Aircraft Co., 55 F.3d at 1092 (Close timing may be a significant factor, but not necessarily determinative of the relation between the protected activity and the adverse action.); McCoy, 492 F.3d at 562 (although temporal proximity between the protected activity and an adverse employment action may be enough of a “causal connection” to establish a prima facie case, “once an employer offers a legitimate, nondiseriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive.”). “ ‘Petty slights, minor annoyances, and simple lack of good manners’ ” are not actionable retaliatory conduct that would dissuade a reasonable employee from making a charge of discrimination. Stewart, 586 F.3d at 332, citing Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405. “ ‘The significance of any particular act of retaliation will often depend upon the particular circumstances. Context matters.’ ” Id. at 332, citing Burlington N., 548 U.S. at 69, 126 S.Ct. 2405. If the context shows no adverse impact as a result and no blame can be attributed to the employee that “might carry a stigma in the workplace,” an employment action is not an adverse action. Id. “ ‘[A] lateral reassignment to a position with equal pay could amount to a materially adverse action in some circumstances,”’ which should be judged from the viewpoint of a reasonable person in the plaintiffs position, considering all the circumstances: did the reassignment affect the employee’s job title, grade, duties hours, salary, or benefits or cause a diminution or increase in prestige or standing among her coworkers? Id., citing Aryain, 534 F.3d at 485. If the plaintiff succeeds in making a prima facie case of retaliation, a presumption of discrimination arises, and the burden shifts to the defendant employer, to provide a legitimate, nonretaliatory reason for the adverse employment action. Hockman v. Westward Communications LLC, 407 F.3d 317, 330 (5th Cir.2004), cited for that proposition in Cooper, 278 Fed.Appx. at 320. If the employer succeeds, under the McDonnell Douglas framework the presumption of discrimination falls away and the plaintiff must show that the employer’s articulated reason for its action is merely a pretext for retaliation, or if true, is only one reason for its conduct and another motivating factor is plaintiffs protected characteristic. Cooper, 278 Fed.Appx. at 320, citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir.2007). The plaintiff must rebut each nondiseriminatory or nonretaliatory reason articulated by the employer. McCoy, 492 F.3d at 557. The plaintiff can show pretext “by showing that the employer’s proffered explanation is false or ‘unworthy of credence.’ ” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir.2003), quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. 2097. For example, Plaintiff could show that she is clearly better qualified than the person who got the job, promotion, raise, etc., or that the employer’s articulated reason is false by showing inconsistency in the employer’s explanations at different times. Burrell, 482 F.3d at 412, citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 356-57 (5th Cir.2001), and Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir.2002) (“a factfinder may infer the ultimate fact of retaliation by the falsity of the explanation”). “[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated,” and thereby preclude summary judgment. Reeves, 530 U.S. at 148, 120 S.Ct. 2097. 2. The ADA The ADA specifically exempts the federal government as an employer from its coverage. 42 U.S.C. § 12111(5)(B)(i) (“The term ‘employer’ does not include the United States [or] a corporation wholly owned by the government of the United States. ...”). Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.2007), citing Florida East Coast Ry. Co. v. United States, 519 F.2d 1184, 1187 (5th Cir.1975). See also Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir.2003) (The ADA, 42 U.S.C. § 12111(5)(B), does not apply to the Federal government), cert. denied, 540 U.S. 1018, 124 S.Ct. 579, 157 L.Ed.2d 432 (2003). Instead, the Rehabilitation Act “constitutes the exclusive remedy for a federal employee alleging disability-based discrimination.” Dark v. Potter, 293 Fed.Appx. 254, 258 (5th Cir.2008), citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir.2007). Title VII is the exclusive remedy for federal employment discrimination claims of the kind that it expressly covers (those based on race, color, religion, sex, or national origin, and in retaliation for a protected activity). Brown v. GSA, 425 U.S. 820, 832, 834-35, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Davis v. Passman, 442 U.S. 228, 254, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Title VII prohibits discrimination against federal employees: “All personnel action affecting [federal] employees ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Title VII applies to retaliation claims brought by federal employees, which are also governed by the shifting burden framework of McDonnell Douglas. See, e.g., Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985); Brown v. Brody, 199 F.3d 446 (D.C.Cir.1999). 3. The Rehabilitation Act For a disability claim seeking monetary relief brought by a federal employee, Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, is the exclusive avenue. Calero-Cerezo v. United States Dep’t of Justice, 355 F.3d 6, 12 n. 1 (1st Cir.2004); Pinkerton v. Spellings, 529 F.3d 513, 517 (5th Cir.2008). See 29 U.S.C. § 794(d) (“No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be ... subjected to discrimination under any program or activity receiving Federal financial assistance ... or activity conducted by the United States Postal Service.”). Pursuant to Section 501(g), 29 U.S.C. § 791(g), the standards for determining a violation of the Rehabilitation Act, as amended in 1992, are the same as those for a violation of the ADA. See 42 U.S.C. § 794(d) and 42 U.S.C. § 12101, et seq.; Pinkerton v. Spellings, 529 F.3d 513, 516-17 (5th Cir.2008), citing Lane v. Pena, 518 U.S. 187, 193-94, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (Congress waived the government’s sovereign immunity from monetary claims brought under § 501, while immunity is not waived for § 504, so while federal employees may sue under both statutes, they can recover monetary relief only under § 501). Thus the Court will review the factual allegations in Plaintiffs complaint and the summary judgment submissions to determine whether her claim, if properly brought under the Rehabilitation Act, would survive. Section 12112(a) of the ADA provides that no covered entity shall “discriminate” against a “qualified individual with a disability” because of the disability of such an individual in regard to, inter alia, “the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” In addition, Section 12112(b)(5) states that the term, “discriminate,” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operations of the business of such covered entity.” Under the McDonnell Douglas framework, a plaintiff must first make a prima facie case of a Rehabilitation Act violation by establishing that (1) she has a “disability”; (2) she is “qualified” for her position; (3) she suffered an adverse employment action because of her disability or the perception of her disability; and (4) she was replaced by or treated less f