Case 5:15-cv-00297-FB Document 90 Filed 03/27/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MARY ELLEN JOHNSON, §

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Plaintiff, §
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VS. § CIVIL ACTION NO. SA-15-CA-297-FB
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SOUTHWEST RESEARCH INSTITUTE, §
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Defendant. §

ORDER ACCEPTING REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is the Report and Recommendation of the United States Magistrate Judge filed

in the above styled and numbered cause on August 17, 2017 (docket #84); Defendant Southwest

Research Institute’s Objections to the Report and Recommendation of the United States Magistrate

Judge filed September 1, 2017 (docket #86); Plaintiff’s Response to Defendant’s Objections to the

Magistrate Judge’s Report and Recommendation filed September 14, 2017 (docket #88); and Defendant

Southwest Research Institute’s Reply to Plaintiff’s Response to Defendant’s Objections to the Report

and Recommendation of the United States Magistrate Judge filed September 21, 2017 (docket #89).

Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court

need not conduct a de novo review of them. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall

make a de novo determination of those portions of the report or specified proposed findings and

recommendations to which objection is made."). In such cases, the Court need only review the Report

and Recommendation and determine whether they are either clearly erroneous or contrary to law.

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).

On the other hand, any Report or Recommendation to which there are objections requires de

novo review by the Court. Such a review means that the Court will examine the entire record, and will
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make an independent assessment of the law. The Court need not, however, conduct a de novo review

when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole

Commission, 834 F.2d 419, 421 (5th Cir. 1987).

As set forth in the Report and Recommendation, this is a Title VII case against the defendant

for allegations of sex discrimination and retaliation. Plaintiff began working for the defendant in April

of 2000 and was terminated on August 15, 2012, twelve days after filing a complaint with the Equal

Employment Opportunity Commission. Plaintiff states she was informed the termination decision was

based on “repeated violations of [defendant’s] timekeeping operating policies and procedures, which

has resulted in serious doubts as to [her] trustworthiness,” - claims which plaintiff denies are true.

Based on the evidence considered, Magistrate Judge Bemporad recommends that defendant’s motion

for summary judgment be denied as to: (1) plaintiff’s retaliation claim -- as not barred by the Egan

doctrine and Title VII’s national security exception, because the retaliation claim can be considered by

the Court without having to consider an Executive Branch security-related decision, and the totality of

the evidence raises a genuine issue of whether plaintiff was terminated for violations of timekeeping

policies and for lack of trustworthiness or if these reasons were a pretext for retaliation for engaging in

a protected activity; and (2) plaintiff’s claims of sex discrimination based on unequal pay and unequal

tuition reimbursement because here too, plaintiff has presented evidence sufficient to raise a genuine

issue about whether the defendant’s stated reasons for termination were pretextual. Magistrate Judge

Bemporad recommends further that defendant’s motion to strike be denied as moot because the objected

to declarations were not considered in the determination of the summary judgment motion. It is also

recommended that defendant’s motion for summary judgment be granted as to plaintiff’s claim of

discrimination based on the failure to promote to which no objection has been received.

The Court has reviewed the objections to the Report and Recommendation, has conducted a de

novo review of the Magistrate Judge's Report and Recommendation and finds the objections to the

Magistrate Judge's Recommendation without merit. Accordingly, the Court hereby accepts, approves,

and adopts the Magistrate Judge's factual findings and legal conclusions contained in the Report and

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Recommendation (docket #84) and agrees genuine issues of material fact exist at this time which

preclude summary judgment as to plaintiff’s retaliation claim and claims for sex discrimination based

on unequal pay and unequal tuition reimbursement. Therefore, the Report and Recommendation shall

be accepted pursuant to 28 U.S.C. § 636(b)(1) such that Defendant Southwest Research Institute’s

Motion for Summary Judgment (docket #68) shall be GRANTED in part such that plaintiff’s claim for

sex discrimination based on the failure to promote shall be DISMISSED, and DENIED in part as to

plaintiff’s claims for retaliation and sex discrimination based on unequal pay and unequal tuition

reimbursement. Defendant’s Motion to Strike Portions of Declarations Submitted in Support of

Plaintiff’s Response Opposing Defendant’s Motion for Summary Judgment (docket #78) shall be

DENIED AS MOOT as the these portions were not considered by Magistrate Judge Bemporad in

issuing his recommendation or by this Court in its de novo review.

Accordingly, it is hereby ORDERED that the Recommendation of the United States Magistrate

Judge filed on August 17, 2017 (docket #84) is ACCEPTED such that Defendant Southwest Research

Institute’s Motion for Summary Judgment (docket #68) is GRANTED IN PART such that plaintiff’s

claim for sex discrimination based on the failure to promote is DISMISSED, and DENIED IN PART

as to plaintiff’s remaining claims for retaliation and sex discrimination based on unequal pay and

unequal tuition. IT IS FURTHER ORDERED that Defendant’s Motion to Strike Portions of

Declarations Submitted in Support of Plaintiff’s Response Opposing Defendant’s Motion for Summary

Judgment (docket #78) is DENIED AS MOOT as the objected to portions were not considered by

Magistrate Judge Bemporad or this Court in granting in part and denying in part the motion for

summary judgment.

Having disposed of all pending motions in this case and finding that all Scheduling Order

deadlines have expired, as Magistrate Judge Bemporad has returned the case to this Court (docket #85),

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IT IS HEREBY ORDERED that the parties file a joint advisory with the Court on or before April 17,

2018, advising of the status of the case including whether the parties are trying to resolve their

differences short of trial by mediation or other ADR methods. If the matter is ready for trial, the parties

shall include in their advisory the estimated length of time required for trial and possible trial dates.

In addition, the possibility of consenting to trial before Magistrate Judge Bemporad is still an option

should the parties wish to obtain a date certain for trial.

It is so ORDERED.

SIGNED this 27th day of March, 2018.

_________________________________________________
FRED BIERY
UNITED STATES DISTRICT JUDGE

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