O'Brien v. Autozoners, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

T. O’BRIEN CIVIL ACTION

VERSUS NO: 23-793

AUTOZONERS, LLC d/b/a AUTOZONE SECTION: "A" (5)

ORDER AND REASONS

The following motion is before the Court: Motion for Summary Judgment (Rec. Doc. 59)

filed by Defendant, Autozoners, LLC (“AutoZone”). Plaintiff, Tiffany O’Brien, opposes the

motion. The motion, submitted for consideration on October 30, 2024, is before the Court on the

briefs without oral argument. For the following reasons, the motion is GRANTED.

I. Background

a. Factual Background

This suit arises out of alleged employment discrimination on the part of AutoZone against

the plaintiff, Tiffany O’Brien. AutoZone initially hired Plaintiff in 2016 as a delivery driver for a

“hub” store in Baton Rouge, Louisiana (“Store 4295”).1 In late 2018 or early 2019, following the

birth of her first child, Plaintiff was promoted from “hub driver” to “hub specialist.”2 Soon

thereafter, in April 2019, she transferred to a store in Kenner, Louisiana (“Store 3013”), another

hub store.3 Six months into her tenure at Store 3013, in October 2019, she began a romantic

1 Rec. Doc. 1-1, ¶ 13.

2 The parties appear to disagree on the date of Plaintiff’s promotion to hub specialist, but this is ultimately immaterial

to the Court’s analysis. See O’Brien Dep., Rec. Doc. 59-4, at 27:7-14, 40:10-23.

3 Id. at 24:2-7, 47:10-48:25. An AutoZone hub store is an AutoZone retail location (“DIY”), which handles commercial

components of the store, with a hub component, which effectively acts as warehousing for nearby DIY stores and other

hubs. Id. at 47:13-48:3.

relationship with her coworker, Clinton de Laureal (“de Laureal”).4 Despite code of conduct

provisions requiring any romantic relationship with a coworker be reported to management, neither

Plaintiff nor de Laureal informed AutoZone management of the relationship.5 In June 2020, the

couple moved in together and their child was born in December of that year.6

In connection with the birth of Plaintiff’s child, she took an approved leave of absence from

AutoZone starting in November 2020 and extending to late February 2021, but did not return to

work when her leave ended.7 AutoZone made multiple unsuccessful attempts to contact Plaintiff

between February and September 2021 regarding her employment;8 but rather than returning to

work there, she sought employment as a laboratory assistant.9 Facing COVID-19 related staffing

shortages, AutoZone contacted her again in December 2021.10 Thereafter, Plaintiff reapplied,

reinterviewed, and was rehired as a hub specialist at Store 3013—the store where Mr. de Laureal

(Plaintiff’s partner and co-parent) had been working continuously since 2017.11 During her

interview, Plaintiff did not inform AutoZone that she and Mr. de Laureal were in a relationship.12

As part of Plaintiff’s reemployment with AutoZone in January 2022, she was allegedly

4 Id. at 53:16-19.

5 Id. at 66:1-67:18; see also Rec. Doc. 59-4, at CM/ECF p. 250 (noting “If you have a conflict of interest, disclose it to

your manager immediately,” and listing “Family & Personal Relationships” as a conflict of interest category).

6 O’Brien Dep., Rec. Doc. 59-4, at 92:6-93:25.

7 Id. at 96:12-97:22, 98:8-17 (discussing Plaintiff’s decision to not return to work at AutoZone and citing COVID-19

related health concerns as the reason).

8 Id. at 98:18-105:22. AutoZone ultimately terminated her employment in 2021 because she did not return to work. Id.

at 103:12-15.

9 Id. at 103:12-15.

10 Id. at 106:2-16.

11 Id. at 106:17-110:11.

12 Id. at 108:8-13. The Court notes, however, that no evidence indicates Plaintiff was asked during the interview if she

was in a relationship with anyone at the store.

promised a promotion to a hub coordinator position when the employee who was then serving as

the hub coordinator retired.13 Although the employee was expected to retire in April 2022, he did

not do so and Plaintiff was, in turn, not promoted.14

In May 2022, Mr. Jamell Pierce, a new district manager for Store 3013, was put on notice

of Plaintiff’s relationship with Mr. de Laureal via a text message from the assistant store manager.15

After verifying Plaintiff and Mr. de Laureal were in a relationship, Mr. Pierce informed Plaintiff

that the relationship violated AutoZone’s code of conduct and later advised her that she would be

transferred to Store 4289, a “non-Hub” store, while Mr. de Laureal remained at Store 3013.16

Plaintiff objected to the transfer, arguing that, while AutoZone’s policy prohibits family

members or persons who are having a romantic relationship from being in a position where one

supervises the other, she and Mr. de Laureal maintained equal levels of responsibility and were not

positioned to supervise one another.17 In a separate conversation with Mr. James Hampton, an

AutoZone human resources manager, she complained that she was being targeted as a female

because she, and not Mr. de Laureal, was the subject of the transfer and that similar conversations

13 Id. at 115:6-116:25.

14 Id. at 116:17-25.

15 Rec. Doc. 1, ¶ 21 (noting that Mr. Pierce “claimed to have developed his suspicions about the baby’s parentage based

on an “anonymous text”). The “anonymous text” was sent to Mr. Pierce by the assistant store manager, who asked Mr.

Pierce to remain anonymous when reporting the violation. Pierce Dep., Rec. Doc. 59-6, at 21:5-17.

16 Rec. Doc. 1, ¶ 22. A non-Hub store is a retail and merchandising store, without the warehouse-style operations

mentioned supra note 3. According to Plaintiff’s deposition testimony, Mr. de Laureal did not want to transfer stores

either. O’Brien Dep., Rec. Doc 59-4, at 137:17-19.

17 Id. ¶¶ 24, 27; O’Brien Dep., Rec. Doc 59-4, at 127:21-24. Plaintiff’s characterization of the relevant code of conduct

provision is inaccurate. The full provision reads:

Referring family and friends to open positions at AutoZone is a great way to

strengthen the AutoZone team—but working with family and friends can cause a

conflict if we aren’t careful. AutoZoners should never be able to directly or

indirectly supervise or be supervised by a family member or person with whom

you have a romantic relationship.

Rec. Doc. 59-4, at CM/ECF p. 251 (emphasis added).

were not had with Mr. de Laureal.18 In response, AutoZone personnel informed Plaintiff she was

being transferred because Mr. de Laureal had superior job performance and experience at Store

3013, not because of Plaintiff’s gender.19

AutoZone personnel later testified that, because Mr. de Laureal was the most tenured hub

specialist at Store 3013, he assumed the role of hub coordinator when the hub coordinator was

absent.20 Because of this, Mr. de Laureal would, at times, “directly or indirectly” supervise

Plaintiff, which is prohibited by AutoZone’s code of conduct.21 In addition, they posited that

Plaintiff had inferior performance evaluations and was less experienced.22 Accordingly, it is

AutoZone’s position that it was in “the best interest of the business” to keep de Laureal at Store

3013.23

In June 2022, Plaintiff was formally transferred to Store 4289, which was located less than

two miles from Store 3013.24 As part of the transfer, she was promised a pay raise25 and placed in

a role that AutoZone, but not Plaintiff, considered to have “primarily the same duties she performed

18 O’Brien Dep., Rec. Doc. 59-4, at 137:1-10.

19 Pierce Dep., Rec. Doc. 59-6, at 79:16-80:2.

20 Id. at 41:3-15; see also Hampton Dep., Rec. Doc. 59-5, at 25:17-26:11,

It was a business decision . . . . [A]t the time, Clinton was an extraordinary

employee, and he was the second in command of that hub, which is a really big

part of our business. He had more tenure at the store. He knew more about the

operation.

21 See Rec. Doc. 59-4, at CM/ECF p. 251 (code of conduct).

22 Pierce Dep., Rec. Doc. 59-6, at 69:23-70:8.

23 Hampton Dep., Rec. Doc. 59-5, at 25:17-26:11.

24 O’Brien Dep., Rec. Doc. 59-4, at 128:4-8.

25 Plaintiff disputes receiving a pay raise. See Rec. Doc. 74-3, ¶ 29. AutoZone personnel contend that the pay increase

was never determined because “[they] never had a chance to actually sit down and have a conversation with her

regarding it because [they] were still trying to get past the part of her accepting the transfer.” Pierce Dep., Rec. Doc.

59-6, at 75:11-19.

at the hub.”26 She was also given a preferentially set schedule, working 9:00 a.m. to 6:00 p.m.,

Monday through Friday, which, according to AutoZone personnel, was “a better schedule than any

of the other employees at [Store] 4289.”27

Plaintiff first reported to Store 4289 on June 20 and 21 but was a “no call/no show” for at

least one of her remaining shifts that week.28 She was subsequently a no call/no show for each of

her four shifts the following week.29 On July 5, Plaintiff’s manager attempted contacting her to

confirm whether she intended to work her pre-scheduled shifts on July 5 through July 8, but

received no response for three days.30 On July 8, Plaintiff responded via text message and gave

notice that she did not intend to show up for any more shifts at Store 4289.31 The next day, July 9,

Plaintiff sent an identical text message to her district manager, Jamell Pierce.32 As of July 9,

Plaintiff had missed eleven scheduled shifts without proper notification or documentation to excuse

her absences.33

After receiving Plaintiff’s text messages, AutoZone management and human resources

26 O’Brien Dep., Rec. Doc. 59-4, at 83:13-24 (identifying her new job as “merchandiser” and discussing a two-dollar

pay raise), 127:25-128:1-3; Pierce Dep., Rec. Doc. 59-6, at 74:8-75:7 (noting that the “same duties” included “inventory

management and planograms”). Plaintiff contends that the merchandiser role was a demotion because (1) she was not

given the raise that she was promised, and (2) she no longer had certain computer access that was reserved for

management. Rec. Doc. 1, ¶ 18.

27 Pierce Dep., Rec. Doc. 59-6, at 81:11-82:6.

28 O’Brien Dep., Rec. Doc. 59-4, at 141:1-13, 143:2-7. Plaintiff claims that her supervisor approved her absence on

June 22 due to illness but admits that her absence on June 23 was unexcused. Id. at 144:1-15. When an AutoZone

employee does misses work and does not give notice, it is referred to as a “no call/no show.” Id.

29 Id. at 151:13-19. Plaintiff claims she told someone other than her manager that she was not coming in on Monday

but admits to being a no call/no show on the remaining days. Id. at 145:13-19.

30 Id. at 154:5-18, 155:3-6. Plaintiff claims she did not return her manager’s call because she was sick. Id. at 154:19-

22.

31 Id. at 156:1-13. This was Plaintiff’s first communication with AutoZone since she stopped showing up for work two

weeks prior.

32 Id. at 160:2-5.

33 Hampton Dep., Rec. Doc. 59-5, at 74:15-19 (noting that, if an employee missed eleven shifts without proper

notification or documentation, their employment at AutoZone would be terminated in most cases).

unsuccessfully attempted to make contact with her on July 8 and July 12.34 Then, on July 17,

Plaintiff sent a text message to the district manager and regional manager asking why she had not

yet been transferred back to Store 3013.35 She did not receive a response to her message and did

not return to work.36 On July 25—after a thirty day absence from work—Plaintiff was on a vacation

(which had been approved by AutoZone management months prior) when a letter was delivered to

her home indicating that, if she did not report to work by July 28, it would be assumed that she was

voluntarily resigning.37

Plaintiff returned from her vacation and saw the letter on July 31, but made no effort to

contact AutoZone until August 3.38 According to Plaintiff, James Hampton (the AutoZone human

resources manager) told her in their August 3 phone conversation “I don’t know why you are calling

because you have already been terminated as of yesterday.”39 An email sent to Plaintiff by Mr.

Hampton after their call, however, reflects he requested she call him the following day so that he

could provide her with “instructions on getting me your notes, showing that you were under doctor’s

care on the days that you missed work.”40 Plaintiff never responded to Mr. Hampton’s email and

her employment was formally terminated on August 8.41 On August 15, Mr. de Laureal was

promoted to the same hub coordinator position at Store 3013 that was allegedly promised to Plaintiff

34 See Rec. Doc. 59-4, at CM/ECF pp. 285, 288-90.

35 Id. at CM/ECF p. 291.

36 Rec. Doc. 1, ¶ 33.

37 O’Brien Dep., Rec. Doc. 59-4, at 166:10-18; Rec. Doc. 59-4, at CM/ECF p. 295.

38 O’Brien Dep., Rec. Doc. 59-4, at 170:3-25.

39 Id. at 171:7-9.

40 Rec. Doc. 59-4, at CM/ECF p. 297.

41 Id. at CM/ECF p. 298. According to Plaintiff, her employment was terminated August 13, 2024. See Rec. Doc. 74-

3, ¶ 42.

when she became reemployed by AutoZone in January 2022.42

b. Procedural Background

Three months after Plaintiff’s termination from AutoZone, she filed a Charge of

Discrimination with the New Orleans Field Office of the Equal Employment Opportunity

Commission (“EEOC”).43 On December 5, 2022, Plaintiff received a Notice of Right to Sue

(“Right to Sue”) from the EEOC, indicating that no investigation took place.44 This lawsuit was

timely filed less than ninety days after Plaintiff’s receipt of the Right to Sue letter, on March 3,

2023.45

II. Rule 56 Standard

Summary judgment is proper where there is “no genuine dispute of material fact” and “the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). That is, it is appropriate

where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,” when viewed in the light most favorable to the non-movant, “show that there

is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th

Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about

a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for

42 Rec. Doc. 1, ¶ 36.

43 Id. ¶ 10 (identifying the complaint number as 461-2023-00280).

44 Id. ¶ 11; see also Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002) (internal citations omitted),

Employment discrimination plaintiffs must exhaust administrative remedies

before pursuing claims in federal court. Exhaustion occurs when the plaintiff files

a timely charge with the EEOC and receives a statutory notice of right to sue. Title

VII provides that claimants have ninety days to file a civil action after receipt of

such a notice from the EEOC.

Evidence of Plaintiff’s Right to Sue letter is not before the Court, but this is an uncontested fact. As such, the Court

accepts it as true.

45 Rec. Doc. 1, ¶ 12.

the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable

inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the

moving party has initially shown “that there is an absence of evidence to support the non-moving

party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come

forward with “specific facts” showing a genuine factual issue for trial. Id. (citing FED. R. CIV. P.

56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional

allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and

legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for

trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).

III. Discussion

AutoZone seeks summary judgment on all Title VII causes of action which occurred before

January 5, 2022, and Plaintiff’s timely Title VII claims based on gender discrimination, retaliation,

and harassment.46 The Court addresses each argument in turn.

a. Statute of limitations

Title 42 U.S.C. § 2000e-5 contains the prerequisites that a plaintiff must satisfy before filing

a Title VII lawsuit. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). In a state like

Louisiana, a charge must be filed with the EEOC within 300 days of the adverse employment

practice. Id. In other words, the 300-day limitations period begins to run as soon as the plaintiff

46 Plaintiff’s complaint broadly alleges that AutoZone “engaged in the aforementioned practices, policies, customs,

and usages made unlawful by 42 U.S.C. § 2000e, et seq.” Rec. Doc. 1, ¶ 44. The complaint does not run afoul of Federal

Rule of Civil Procedure 8, but the Court notes that AutoZone seeks complete dismissal of this lawsuit. See McManus

v. Fleetwood Enters., Inc., 320 F.3d 545, 551 (5th Cir. 2003) (“The notice pleading requirements of [Rule 8] and case

law do not require an inordinate amount of detail or precision.”); Rec. Doc. 59-1, at 30 (praying that the Court disposes

all of Plaintiff’s claims). Because Plaintiff has not identified any legal theories that are unaddressed by AutoZone’s

motion in her response, the Court considers all legal issues in this case to be properly before it on summary judgment.

See, e.g., Rec. Doc. 65-4, at 3-4 (limiting Plaintiff’s argument to discrimination claims for failure to promote, job

transfer, demotion, and wrongful termination).

“knows or reasonably should have known that the challenged act has occurred.” Vadie v. Miss. State

Univ., 218 F.3d 365, 371 (5th Cir. 2000). A claim is time barred if it is not filed within these time

limits.47 Morgan, 536 U.S. at 109.

Here, Plaintiff filed her charge with the EEOC on November 1, 2022.48 Accordingly, any

claim regarding an alleged adverse action that occurred before January 5, 2022 is time-barred.49

Plaintiff did not oppose this argument in her response to AutoZone’s motion.

b. Discrimination

The McDonnell Douglas Framework

Title VII prohibits employment discrimination based on a person's “race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). When a plaintiff’s claims rest on circumstantial

evidence, as they do here, district courts apply a three-step, burden-shifting analysis prescribed by

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Saketkoo v. Adm'rs of Tulane

Educ. Fund, 31 F.4th 990, 997 (5th Cir. 2022). Under the McDonnell Douglas framework, a

plaintiff must first raise a genuine issue of material fact on each element of her prima facie case. Id.

at 997-98. Second, if the plaintiff presents a prima facie case, the defendant must give a legitimate,

nondiscriminatory reason for the employment decision. Id. at 999. Third, if the defendant provides

a legitimate reason, the plaintiff must raise a genuine issue of material fact that shows the

defendant's reason may be a pretext for discrimination. Id.

47 The limitations period on filing a charge of employment discrimination is subject to equitable doctrines like tolling

and estoppel, but Plaintiff does not seek relief under either doctrine. See Manning v. Chevron Chem. Co., LLC, 332

F.3d 874, 880 (5th Cir. 2003).

48 Rec. Doc. 1, ¶ 10.

49 As noted in AutoZone’s reply brief, Plaintiff does not oppose AutoZone’s statute of limitation arguments. See Rec.

Doc. 78, at 1. The facts that may give rise to a time-barred claim are listed in paragraphs 13 through 20 of the complaint.

See Rec. Doc. 1.

Step One – Establishing a prima facie case of discrimination

To establish a prima facie case of discrimination under the first step of the framework, the

plaintiff must show that “(1) she is a member of a protected class; (2) she was qualified for the

position she sought; (3) she suffered an adverse employment action; and (4) others similarly situated

but outside the protected class were treated more favorably” (hereinafter “prima facie

requirements”). Id. at 997-98. In the instant case, the only uncontested prima facie requirement is

the first requirement—Plaintiff’s status as a member of a protected class based on her gender.

To establish the second prima facie requirement—that she was qualified for the position she

sought—the plaintiff need only show that she possessed the basic skills necessary for the

performance of the job. See Johnson v. Cabot Corp., No. 6:17-cv-01656, 2019 WL 693051, at *4

(W.D. La. Feb. 19, 2019) (noting the lack of “any precedential Fifth Circuit jurisprudence

addressing this element of [the plaintiff’s] prima facie burden” and collecting cases from other

circuits).

The analysis under the third prima facie requirement—establishing the employee suffered

an adverse employment action—was recently altered by the Fifth Circuit in Hamilton v. Dallas

County, 79 F.4th 494 (5th Cir. 2023), and subsequently by the Supreme Court in Muldrow v. City

of St. Louis, 601 U.S. 346 (2024). Prior to Hamilton, only “ultimate employment decisions” could

constitute an adverse employment action giving rise to liability in the Fifth Circuit. 79 F.4th at 502-

03. The ultimate-employment-decision test restricted employer liability to decisions such as

“hiring, granting leave, discharging, promoting, or compensating.” Id. at 501. Now, “to plead an

adverse employment action, a plaintiff need only allege facts plausibly showing discrimination in

hiring, firing, compensation, or in the ‘terms, conditions, or privileges’ of his or her employment.”

Id. at 502-03. In arriving at this conclusion, the Hamilton court reasoned:

Title VII's coverage is [not] limited to economic or tangible

discrimination. This is because Section 703(a)(1) not only covers

terms and conditions in the narrow contractual sense, but evinces a

congressional intent to strike at the entire spectrum of disparate

treatment of men and women in employment.

Id. at 501 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) and Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)) (internal quotations and footnotes

omitted). Relying on the same precedent as the Fifth Circuit in Hamilton, the Muldrow Court held

(in the context of an involuntary transfer action)50 that an employee must show “some” harm with

respect to an identifiable term or condition of employment, but that the harm need not be significant,

“[o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the

employee must exceed a heightened bar.” 601 U.S. at 355-56.

To show an employee is “similarly situated” under the fourth and final prima facie

requirement, the plaintiff must conduct a “comparator analysis.” Saketkoo, 31 F.4th at 998 (citing

Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259-62 (5th Cir. 2009)).

Under this analysis, the employee must establish that she was treated

less favorably than a similarly situated employee outside of her

protected class in nearly identical circumstances. The similarly

situated employee is known as a comparator. A variety of factors are

considered when determining whether a comparator is similarly

situated, including job responsibility, experience, and qualifications.

Moreover, we require an employee to show that the comparator's

conduct is nearly identical, not strictly identical.

Id. (internal quotations and citations omitted).51 An additional consideration, which is critical in

50 Pre-Hamilton, a transfer was not an adverse action unless it could be proved that the transfer amounted to a demotion.

See, e.g., Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (“It is well settled that a ‘purely lateral

transfer’ is not an adverse employment action.”).

51 See also id. at 998 n.3 (noting that courts in the Fifth Circuit must conduct a comparator analysis).

the instant case, is whether the plaintiff and the proffered comparator have “essentially comparable

violation histories.” Lee, 574 F.3d at 260.

Step Two – Articulating a legitimate, nondiscriminatory reason for adverse action

If the plaintiff establishes a prima facie case of discrimination, she triggers the second step

of the McDonnell Douglas framework, in which the burden of production shifts to the defendant

“to articulate some legitimate, nondiscriminatory reason” for its action. McDonnell Douglas, 411

U.S. at 802. In other words, “The defendant must clearly set forth, through the introduction of

admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a

finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (cleaned up). Notably, while the burden of production shifts

to the defendant, “[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.” Id. (quoting

Tex. Dep’t Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)).

Step Three – Showing the defendant’s reason for adverse action was pretextual

If the defendant articulates a legitimate nondiscriminatory reason for its action, the burden

then shifts back to the plaintiff to prove that each proffered reason is pretextual. Id. at 804. This is

the third and final step of the framework.

To preclude summary judgment under the third step of the framework, the plaintiff must

show “there is a genuine issue of material fact as to whether [the defendant’s nondiscriminatory]

reason was pretextual.” Jackson v. Cal–Western Packaging Corp., 602 F.3d 374, 378-79 (5th Cir.

2010). A plaintiff may show pretext “either through evidence of disparate treatment or by showing

that the employer's proffered explanation is false or ‘unworthy of credence.’” Id. (quoting Laxton

v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

A showing that the unsuccessful employee was “‘clearly better qualified’ (as opposed to

merely better or as qualified) than the employees who are selected” will be sufficient to prove that

the employer's proffered reasons are pretextual. EEOC v. La. Off. of Cmty. Servs., 47 F.3d 1438,

1444 (5th Cir. 1995) (collecting cases). In other words, a complaining employee’s superior

qualifications are probative of pretext when “no reasonable person, in the exercise of impartial

judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Moss

v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010) (quoting Deines v. Tex. Dep't of Prot. &

Regul. Servs., 164 F.3d 277, 280-81 (5th Cir. 1999)).

Plaintiff’s discrimination claims

In the case at hand, Plaintiff alleges she was discriminated against under Title VII when

AutoZone: (1) transferred her from Store 3013 to Store 4289; (2) demoted her into a less prestigious,

less desirable position; (3) denied her a promised pay increase; (4) failed to promote her; and (5)

terminated her employment.52 The Court considers each individual allegation through the lens of

the above-described McDonnell Douglas framework. Because neither party contests Plaintiff’s

membership in a protected class (the first prima facie requirement) the Court limits its analysis in

the first step of the framework to the remaining three prima facie requirements.53

1. Involuntary transfer

Plaintiff has established a prima facie case for discrimination under the first step of the

McDonnell Douglas framework for the following reasons: she was qualified for the job she held at

the time of the transfer; she suffered an adverse employment action when she was transferred from

52 Rec. Doc. 65-4, at 4.

53 I.e., whether Plaintiff was qualified for the position she sought, suffered an adverse employment action, and if others

similarly situated but outside her protected class were treated more favorably. See Saketkoo, 31 F.4th at 997-98.

Store 3013 to Store 4289;54 and she was treated less favorably than Mr. de Laureal when she—not

her similarly situated male coworker, romantic partner, and father to her child—was transferred to

a different store.55 Saketkoo, 31 F.4th at 997-98.

In accordance with the second step of the framework, AutoZone must “articulate some

legitimate, nondiscriminatory reason” for its action. McDonnell Douglas, 411 U.S. at 802.

AutoZone contends it transferred Plaintiff, and not Mr. de Laureal, out of Store 3013 based on (1)

the needs of the business and (2) Mr. de Laureal’s superior qualifications,56 and supports its

contention with the following facts: (i) the relationship policy within the code of conduct prohibits

an employee from being directly or indirectly supervised by a person with whom they have a

romantic relationship; (ii) Mr. de Laureal and Plaintiff worked at the same store and held the same

position, but Mr. de Laureal sometimes held supervisory roles due to his seniority among the hub

specialists, which included supervising Plaintiff; (iii) it was discovered that Plaintiff and Mr. de

54 AutoZone argues that the involuntary transfer was not an adverse employment action because Plaintiff was not

harmed by the transfer. Rec. Doc. 59-1, at 16 (citing Muldrow, 601 U.S. at 355). In support of this argument, it directs

the Court to Maesta v. Apple, Inc., a pre-Hamilton case which stood in-part for the proposition that a transfer can only

be an adverse employment action “if the change makes the job ‘objectively worse.’” 546 F. App’x 422, 426 (5th Cir.

2013) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004)). As discussed above, courts in the Fifth

Circuit are no longer confined to considering only whether a transfer makes the job objectively worse. See Hamilton,

79 F.4th at 500 n.24, 501. The new standard is whether the employee has shown “some harm respecting an identifiable

term or condition of employment.” Muldrow, 601 U.S. at 354-55.

In the instant case, Plaintiff’s involuntary transfer amounts to an adverse employment action because it “brought about

some ‘disadvantageous’ change” in the terms, conditions, or privileges of her employment. Id. at 354; see also

Hamilton, 79 F.4th at 501. Namely, Plaintiff established that, as a result of the transfer, she no longer worked at a store

with a “hub coordinator” (the position she was promised she would be promoted to when she became reemployed in

January 2022) and she was no longer a “hub specialist,” but instead a “merchandiser.” Rec. Doc. 65-4, at 9.

55 AutoZone contends Plaintiff has not established that a similarly situated comparator was treated better. Rec. Doc.

59-1, at 17. The Court disagrees. To carry her burden, Plaintiff “must establish that she was treated less favorably than

a similarly situated employee outside of her protected class in nearly identical circumstances.” Saketkoo, 31 F.4th at

998. It is undisputed that Mr. de Laureal had similar, although not identical, “job responsibility, experience, and

qualifications.” Id. More importantly, both parties engaged in identical misconduct when they did not report their

relationship to AutoZone management. Id. As such, Mr. de Laureal is a valid comparator. The Court declines to analyze

whether other proposed comparators are valid because they are based on conclusory, unsupported, and contested

allegations. See Rec. Doc. 65-4, at 10.

56 See Rec. Doc. 78, at 2 n.3.

Laureal were in a relationship that violated the code of conduct; (iv) Mr. de Laureal had longer

tenure at Store 3013 and at AutoZone in general; and (v) Mr. de Laureal had stronger performance

reviews.57

These reasons each support a finding that unlawful discrimination was not the cause of the

employment action; rather, it was in the best interest of the business to keep Mr. de Laureal at Store

3013 because of his superior qualifications. Hicks, 509 U.S. at 507. As such, the burden shifts back

to Plaintiff to show “there is a genuine issue of material fact as to whether [the defendant’s

nondiscriminatory] reason was pretextual.” Jackson, 602 F.3d at 378-79.

To establish pretext, Plaintiff must prove by the preponderance of the evidence that the

legitimate reasons offered by AutoZone are not its true reasons. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000).58 To do so, she argues that “the jury could find that the

Defendant falsely claimed that Ms. O’Brien was being given a lateral transfer, when she was

actually being demoted to get her out of the way.”59 Her argument hinges on the following

assertions: (i) “Autozone’s human resources officials could have met with the couple and

collaboratively discussed which person would need to transfer to another department or another

store and to which department or store that person would transfer”; and (ii) “Instead, [AutoZone]

unilaterally directed Ms. O’Brien to transfer from Store 3013 and promoted Mr. de Laureal to Hub

Coordinator at that store.”60 As such, Plaintiff posits that a jury may find “it is implausible that Ms.

O’Brien’s sex was not a factor in the decision to transfer her before promoting her male

57 See Rec. Doc. 59-1, at 12-13.

58 See also Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 622 (1993) (“The burden of

showing something by a preponderance of the evidence, the most common standard in the civil law, simply requires

the trier of fact to believe that the existence of a fact is more probable than its nonexistence before he may find in favor

of the party who has the burden to persuade the judge of the fact's existence.”) (cleaned up).

59 Rec. Doc. 65-4, at 7.

60 Id.

counterpart.”61

Plaintiff has not established that AutoZone’s actions were pretextual because she failed to

respond to either of its proffered reasons for transferring her to Store 4289. These omissions are

fatal to her involuntary transfer claim, but the Court notes that Plaintiff’s argument is separately

unpersuasive for the following reasons. First, Plaintiff cites no authority, nor is the Court aware of

any authority, that requires AutoZone to meet with the plaintiff and Mr. de Laureal and

“collaboratively discuss[]” the needs of the business as it related to the interests of the individual

employees violating a code of conduct provision.62 Second, Plaintiff’s assertion that AutoZone

“unilaterally directed Ms. O’Brien to transfer from Store 3013 and promoted Mr. de Laureal to Hub

Coordinator at that store” misleadingly implies that the proximity in time between the two events

was short when, in fact, the two events occurred nearly two months apart.63 Moreover, during those

two months, Plaintiff (i) missed eleven scheduled shifts before (ii) informing AutoZone

management that she would not return to work at Store 4289.64 Third, Plaintiff may not—as she

attempts to do here—rely on “[c]onclusional allegations and denials, speculation, improbable

inferences, unsubstantiated assertions, [or] legalistic argumentation” as a substitute for specific

facts showing a genuine issue for trial. TIG Ins. Co., 276 F.3d at 759. Accordingly, the Court finds

that she has not established that a genuine issue of material fact exists as to whether AutoZone acted

with pretext.

Having considered each step of the McDonnell Douglas framework, the Court finds that (1)

Plaintiff established a prima facie case of discrimination based on the involuntary transfer, (2)

61 Id. (quoting Stennett, v. Tupelo Pub. Sch. Dist., 619 F. App’x 310, 317 (5th Cir. 2015) (per curiam)).

62 Id.

63 Id.

64 Id.; see also Rec. Doc. 65-3, ¶ 27; Rec. Doc. 59-3, ¶ 81.

AutoZone articulated a legitimate, nondiscriminatory reason for the adverse action, and (3) Plaintiff

failed to show AutoZone’s decision to transfer her out of Store 3013 was pretextual.

2. Demotion

As a threshold matter, the parties disagree as to whether Plaintiff was “demoted”—an

adverse employment action which traditionally qualified as an ultimate employment decision under

the now abrogated ultimate-employment-decision test. See Wallace v. Performance Contractors,

Inc., 57 F.4th 209, 218 n.4 (5th Cir. 2023) (applying the pre-Hamilton standard and noting “We are

bound by our circuit's precedent requiring an ‘adverse employment action’ that includes only

‘ultimate employment decisions.’”). Plaintiff argues that the involuntary transfer constituted a

demotion because it left her “objectively worse off in terms of her title, duties, benefits,

responsibility, and room for advancement.”65 AutoZone contends that Plaintiff was not demoted;

instead, she was “simply transferred to another location, where she remained a manager, had similar

duties that focused on inventory management and merchandising, was given the same or better

schedule, and had an equidistant commute to her home.”66

But courts in the Fifth Circuit are no longer required to delineate between traditional

ultimate employment decisions and other adverse employment actions. Hamilton, 79 F.4th at 502-

03. Instead, the court must simply determine if the plaintiff has plausibly shown some harm as it

relates to compensation or the terms, conditions, or privileges of her employment. Id. If so, then

she has established that she suffered an adverse employment action, sufficing the third prima facie

requirement under the first step of the McDonnell Douglas framework. Saketkoo, 31 F.4th at 997-

98.

65 Rec. Doc. 65-4, at 8-9.

66 Rec. Doc. 78, at 4.

So in circumstances like this, whether a plaintiff characterizes an alleged adverse

employment action as a “transfer” or a “demotion” is ultimately immaterial to the court’s analysis

under Hamilton and Muldrow because there is no longer a line in the sand between what were

traditionally bright-line “ultimate employment decisions” (like a demotion) and other adverse

employment actions that may have qualified as an ultimate employment decision under certain

circumstances (like a lateral transfer). Hamilton, 79 F.4th at 502-03; Wallace, 57 F.4th at 218; see

also Thompson v. City of Waco, 764 F.3d 500, 503-04 (5th Cir. 2014) (collecting cases applying

the pre-Hamilton standard and noting “Additionally, our court has held that a transfer or

reassignment can be the equivalent of a demotion, and thus constitute an adverse employment

action”)).

Here, Plaintiff makes a prima facie showing of discrimination,67 but her demotion claim is

based on the same facts as her involuntary transfer claim—namely, that “[Plaintiff’s] transfer to

Store 4289 was the equivalent to a demotion because the job at Store 4289 was not as good.”68

AutoZone’s reasons for transferring Plaintiff, and not Mr. de Laureal, to Store 4289 are likewise

the same—it was in the best interest of the business and Mr. de Laureal had superior

qualifications.69 And just as Plaintiff failed to establish by the preponderance of the evidence that

AutoZone’s decision to transfer her out of Store 3013 was pretextual, she has also failed to show

that the alleged demotion was pretextual. As such, her discrimination claim based an alleged

demotion falls short.

67 AutoZone contests Plaintiff’s prima facie showing, arguing that Plaintiff “can show no objective harm that resulted

from her transfer.” Rec. Doc. 78, at 4. For reasons already discussed, this argument is unpersuasive. Plaintiff must only

show that she suffered “some” harm, and she has done so—the alleged adverse action (regardless of whether it a

“transfer” or “demotion”) indisputably affected the “terms or conditions” of Plaintiff’s employment at AutoZone.

Hamilton, 79 F.4th at 502-03.

68 See, e.g., Rec. Doc. 65-4, at 8-10.

69 Rec. Doc. 78, at 2 n.3.

3. Denial of promised pay increase

Plaintiff next argues she was promised a pay increase with her transfer, but that it never

came to fruition.70 To support her claim, she relies solely on her own declaration, which states “On

my second day working at Store 4289, I learned that I had not received a pay raise.”71 AutoZone

does not contest that Plaintiff was promised a pay raise, but instead contends that she “only reported

to work at her new store for two days and subsequently abandoned her job before the raise was

reflected in Store 4289’s computer system.”72 Neither party disputes the first two prima facie

requirements under the first step of the McDonnell Douglas framework. Accordingly, the Court

only considers the third and fourth requirements—whether the alleged denial of a pay raise was an

adverse employment action, and whether others similarly situated but outside the protected class

were treated more favorably. Saketkoo, 31 F.4th at 997-98.

Plaintiff relies on the Fifth Circuit’s decision in Fierros v. Texas Department of Health to

support her claim that the denial of a pay increase constitutes an adverse employment action. 274

F.3d 187 (5th Cir. 2001), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003). But the issue in Fierros was retaliation, not gender discrimination. Id. at 190 (noting (i) that

the EEOC concluded the plaintiff’s gender and national origin discrimination claims were

unsupported by the evidence and (ii) the district court only considered the retaliation claims)). And,

while retaliation and gender discrimination are both actionable claims under Title VII, the text of

Title VII’s antiretaliation provision is markedly broader than its antidiscrimination counterpart.

Compare 42 U.S.C. § 2000e-2(a) (antidiscrimination provision), with 42 U.S.C. § 2000e-3(a)

(antiretaliation provision); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-62

70 Rec. Doc. 65-4, at 7-8.

71 Rec. Doc. 65-5, ¶ 22.

72 Rec. Doc. 78, at 7.

(2006) (comparing the two provisions and noting that the scope of the antidiscrimination provision

is explicitly limited “to actions that affect employment or alter the conditions of the work place”

and that “[n]o such limiting words appear in the antiretaliation provision”).73 As such, the Court

declines to consider Plaintiff’s claim through the lens of Fierros, and will instead consider the

adverse action as prescribed by the Hamilton court.

Under Hamilton, Plaintiff’s claim that she was denied a promised pay increase may have

survived a motion to dismiss, but not summary judgment. On one hand, it is undisputed that

AutoZone approved the Plaintiff’s pay raise in connection with her transfer,74 clearly establishing

that the alleged adverse employment action concerned a “term, condition, or privilege[] of

employment.” Hamilton, 79 F.4th at 502. But the Court is unconvinced that Plaintiff has established

a genuine factual issue for trial. Celotex Corp., 477 U.S. at 325.75 This is because there is nothing

in the record—other than the vague, conclusional, and unsubstantiated assertions contained in her

declaration—to suggest that she was denied a pay increase. Id.; Rec. Doc. 65-5, ¶¶ 22, 29. While

Plaintiff may rely on self-serving affidavits and declarations to overcome summary judgment, she

may not do so if “their contents [are] either conclusory, vague, or not based on personal

knowledge.” Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021); see also id. at

161 n.5 (collecting cases in support of this proposition).

73 See also Porter v. Houma Terrebonne Hous. Auth. Bd. Comm’rs, 810 F.3d 940, 945-46 (5th Cir. 2015) (internal

quotations, alterations, and footnotes omitted),

The key question is whether the challenged action is materially adverse in that it

is harmful to the point that it could well dissuade a reasonable worker from

making or supporting a charge of [retaliatory] discrimination. The standard is

objective, but the significance of any given act of retaliation will often depend

upon the particular circumstances. Context matters.

74 Rec. Doc. 59-3, ¶¶ 59, 63.

75 In its motion for summary judgment, AutoZone made a proper showing “that there is an absence of evidence to

support the non-moving party’s cause.” Celotex Corp., 477 U.S. at 325; see Rec. Doc. 59-1, at 17 n.17.

Plaintiff’s failure to set forth material facts in support of the alleged adverse employment

action is fatal to her prima facie showing. As such, her denial of a pay increase claim cannot proceed

past the first step of the McDonnell Douglas framework.

4. Failure-to-promote

Plaintiff’s failure-to-promote claim is premised on the following contentions: she sought

and was qualified for a position at Store 3013 that AutoZone was attempting to fill; despite her

qualifications, she was rejected from the role when AutoZone transferred her to Store 4289 in June

2022; and, after her rejection, AutoZone filled the position with a person outside her protected class

when it promoted Mr. de Laureal.76 At the first step of the McDonnell Douglas framework,

AutoZone only challenges whether Plaintiff was qualified for the position she sought, arguing that

she could not have been qualified for the promotion because she was no longer employed when Mr.

de Laureal was promoted to the Hub Coordinator position.77 But Plaintiff’s failure-to-promote

allegations are tied to her transfer to Store 4289, not her termination;78 and there is no dispute that

Plaintiff was qualified for the position she sought at the time of her transfer.79 Saketkoo, 31 F.4th

at 997-98. Accordingly, the Court is persuaded that Plaintiff has established a prima facie

discrimination case based on failure-to-promote.

AutoZone has likewise met its burden to articulate a legitimate, nondiscriminatory reason

for promoting Mr. de Laureal, and not Plaintiff. That is, “Mr. [de Laureal] had more tenure within

76 Rec. Doc. 65-4, at 4.

77 Rec. Doc. 59-1, at 23-24.

78 See Rec. Doc. 65-4, at 5 (“Instead of promoting both O’Brien and Clinton de Laureal . . . Defendant rejected Ms.

O’Brien by transferring her out of Store 3013 on June 20, 2022.”).

79 See Rec. Doc. 65-4, at 3-4 (noting Plaintiff was qualified for the position of Hub Coordinator because (1) the position

was promised to her when she was rehired in January 2022, and (2) she previously received satisfactory performance

appraisals); see also Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003) (noting “the employee must show that

the company had a duty or reason to consider her for the position”).

the Hub and was the better employee according to performance reviews.”80 To support its claim,

AutoZone points to the following facts: (i) at the time of the promotion, Mr. de Laureal had served

in the hub specialist position without interruption since 2017 while Plaintiff “had only served in the

Hub Specialist position since 2018, and had taken a leave of absence and voluntarily resigned from

AutoZone for a period of time in the interim”; and (ii) Mr. de Laureal’s performance reviews reflect

that he received an “exceeded expectations” score, while Plaintiff was characterized as a

“‘lackluster’ employee with inferior reviews.”81

In accordance with the third step of the McDonnell Douglas framework, Plaintiff must

establish by the preponderance of the evidence that AutoZone’s proffered reasons are pretextual.

Reeves, 530 U.S. at 143. However, just as she failed to substantively address AutoZone’s proffered

reasons in her involuntary transfer and demotion claims, she has similarly failed to address

AutoZone’s proffered reasons here. In other words, she has introduced no evidence establishing

that she was “clearly better qualified” than Mr. de Laureal. Autry v. Fort Bend Indep. Sch. Dist.,

704 F.3d 344, 347 (5th Cir. 2013). Instead, she yet again improperly relies on “[c]onclusional

allegations and denials, speculation, improbable inferences, unsubstantiated assertions, [or]

legalistic argumentation” to show a genuine issue for trial.82 TIG Ins. Co., 276 F.3d at 759.

Accordingly, the Court finds that she has not established that a genuine issue of material

fact exists as to whether AutoZone acted with pretext when it opted not to promote Plaintiff.

80 Rec. Doc. 59-1, at 13; Rec. Doc. 78, at 6.

81 Rec. Doc. 59-1, at 24.

82 See, e.g., Rec. Doc. 65-4, at 6-8 (alleging that “If the Defendant believed that Clinton de Laureal was more qualified

than Ms. O’Brien, then Defendant could have simply promoted him on that basis”; suggesting that AutoZone should

have instead “collaboratively discussed which person would need to transfer to another department”; speculating that

the “true reason for Ms. O’Brien’s transfer is a genuine issue [of disputed] material fact”).

5. Wrongful termination

Plaintiff claims she has made a prima facie showing of an adverse employment action based

on her wrongful termination because (1) she’s a member of a protected class; (2) she was qualified

for the position she lost; (3) she was discharged while on a pre-approved vacation; and (4) Mr. de

Laureal, who was on vacation with her, was not likewise discharged.83 AutoZone disputes

Plaintiff’s prima facie showing, arguing that Mr. de Laureal is not similarly situated for the purpose

of establishing the fourth prima facie requirement.84 More specifically, AutoZone contends that

Mr. de Laureal is not a valid comparator because he “had not missed ten-plus shifts in violation of

AutoZone’s Attendance Policy, had not refused to take AutoZone’s phone calls, and had not failed

to report to work, like Plaintiff, for over a month.”85

At the outset, the Court notes that there is no evidence to support Plaintiff’s argument that

she was discharged while on a pre-approved vacation. In fact, her Statement of Material Facts

indicates a discharge date of nearly two weeks after she returned from vacation.86 But putting that

discrepancy aside, Plaintiff and Mr. de Laureal are not valid comparators in the context of her

wrongful termination claim. It is her burden to establish she was treated “less favorably than a

similarly situated employee outside of her protected class in nearly identical circumstances,” and

she cannot meet this burden because (i) nothing in the record suggests that Mr. de Laureal’s

workplace violation history gave rise to a similar risk of employment termination and (ii)

AutoZone’s legitimate reasons for Plaintiff’s discharge are unrelated to her vacation with Mr. de

Laureal. Saketkoo, 31 F.4th at 998; see also Lee, 574 F.3d at 260 (“And, critically, the plaintiff's

83 Rec. Doc. 65-4, at 14.

84 Rec. Doc. 59-1, at 22-23; Rec. Doc. 78, at 13.

85 Rec. Doc. 78, at 13.

86 Rec. Doc. 65-3, ¶ 54.

conduct that drew the adverse employment decision must have been ‘nearly identical’ to that of the

proffered comparator who allegedly drew dissimilar employment decisions.”).

It is well settled in the Fifth Circuit that, under the fourth prima facie requirement, the parties

must have “essentially comparable violation histories.” Lee, 574 F.3d at 260 (citing Okoye v. Univ.

of Tex. Hous. Health Sci., 245 F.3d 507, 514 (5th Cir. 2001)).87 Here, Plaintiff and Mr. de Laureal

both violated AutoZone’s code of conduct provision regarding romantic relationships, which

prompted AutoZone’s decision to transfer Plaintiff to Store 4289; but de Laureal’s misconduct stops

there. Plaintiff, on the other hand, quit attending her scheduled shifts at Store 4289 within two days

of her transfer88 and, by the time she and Mr. de Laureal left for their pre-approved vacation, she

(i) had been absent from work for over thirty days, during which time she (ii) missed eleven

scheduled shifts,89 and (iii) sent text messages to her intermediate and upper level management

expressly stating that she would not be returning to work at Store 4289.90

Moreover, there is nothing in the record to suggest Mr. de Laureal had a comparable record

of attendance policy violations. See id. at 259-60 (explaining that “employees . . . who are subjected

to adverse employment action for dissimilar violations are not similarly situated”); Smith v. Wal-

Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990) (“[The comparator’s] conduct in no

way involved a breach of the non-fraternization policy. He was, therefore, not similarly situated to

87 See also McKinney v. JB Hunt Transp. Inc., 193 Fed. App’x 373, 374 (5th Cir. 2006) (per curiam) (plaintiff had

numerous complaints against her and instances of unprofessional conduct unlike her proffered comparator); Turner v.

Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012) (finding same and noting “The relevant perspective is that of

the employer at the time of the adverse employment decision.” (quoting Lee, 574 F.3d at 260 n.26)); Daywalker v.

UTMB Galveston, No. 22-40813, 2024 WL 94297, at *7 (5th Cir. Jan. 19, 2024) (“We have clarified that an appropriate

comparator is an employee treated more favorably under the same circumstances or with essentially comparable

violation histories.”) (internal quotations omitted)).

88 O’Brien Dep., Rec. Doc. 59-4, at 141:10-143:7.

89 AutoZone’s Store Handbook states that the failure to call in or report to work for just two consecutive days constitutes

job abandonment, which results in automatic termination. O’Brien Dep., Rec. Doc. 59-4, at CM/ECF p. 180.

90 Id. at 164:13-18; id. at CM/ECF p. 290.

Smith and no basis existed for an inference that Wal–Mart's treatment of Smith and Cudd was

disparate such as that condemned under Title VII.”).

Accordingly, Plaintiff has failed to establish a prima facie case of discrimination based on

her alleged wrongful termination because Mr. de Laureal is not a valid comparator in this context.

c. Retaliation

Having concluded that each of Plaintiff’s discrimination claims are inadequate, the Court

now turns to her retaliation claim. Plaintiff contends that she complained of the allegedly

discriminatory transfer to AutoZone management via text message but, rather than address her

complaint of sex discrimination, Defendant terminated her employment in retaliation.91

Title VII retaliation claims, like discrimination claims, are analyzed under the familiar

McDonnell Douglas burden shifting framework. Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 469

(5th Cir. 2021). To state a prima facie retaliation claim, a plaintiff must allege that (1) the employee

participated in an activity protected by Title VII; (2) the employer took an adverse employment

action against the employee; and (3) a causal connection exists between the protected activity and

the adverse employment action. Id. If the employee establishes a prima facie case of retaliation, the

employer must come forward with a legitimate, nondiscriminatory reason for its action. Lyons v.

Katy Indep. Sch. Dist., 964 F.3d 298, 304 (5th Cir. 2020). If the employer meets its burden, the

employee must then demonstrate that the proffered reason is a pretext for retaliation. Id. Ultimately,

however, “the employee must show that ‘but for’ the protected activity, the adverse employment

action would not have occurred.” Id. (quoting Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir.

1999)).

91 Rec. Doc. 65-4, at 12.

Plaintiff has made a prima facie showing of retaliation.92 Under the first prima facie

requirement, an employee has engaged in protected activity if she has “opposed any practice made

an unlawful employment practice under [42 U.S.C. § 2000e–3(a)];”93 and as Plaintiff correctly

notes, her opposition to the alleged discriminatory conduct (i.e., complaining to management via

text message that the involuntary transfer was discriminatory) is a protected activity.94 See Byers

v. Dall. Morning News, 209 F.3d 419, 428 (5th Cir. 2000) (noting that, to satisfy the opposition

requirement, Plaintiff need only show that she had a “reasonabl[e] belief that the employer was

engaged in unlawful employment practices”). Plaintiff’s claim also suffices the second prima facie

requirement—showing that AutoZone took an adverse employment action against her—because

she alleges she was discharged as a result of her opposition to the transfer. See Burlington, 548 U.S.

at 68 (“In our view, a plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”) (internal quotations

omitted)). Finally, her claim suffices the third prima facie requirement—establishing a causal

connection exists between the protected activity and the adverse employment action—because

AutoZone’s decision to terminate her was “based in part on knowledge of the employee’s protected

activity.” Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001).95

Because Plaintiff has established a prima facie case of retaliation, the burden shifts to

92 The Court notes that Plaintiff’s retaliation claim is vague and lacks legal support. See Rec. Doc. 65-4, at 11-13.

Namely, her brief does not identify the standard for a Title VII retaliation claim, nor cite any cases to support her claim.

Id. Nonetheless, the Court has drawn all justifiable inferences in her favor. TIG Ins. Co., 276 F.3d at 759.

93 42 U.S.C. § 2000e–3(a).

94 Rec. Doc. 65-4, at 11.

95 See also Saketkoo, 31 F.4th at 1001 (noting that the employer had knowledge of the protected activity when the

alleged adverse employment action was taken and that “such knowledge was ‘not wholly unrelated’ to the alleged

[adverse employment action]”).

AutoZone to provide a legitimate, nondiscriminatory reason for the alleged adverse employment

action. AutoZone meets its burden, contending that “[Plaintiff’s] termination was not motivated by

anything other than her egregious violations of AutoZone’s attendance policy.”96 In response,

Plaintiff posits that her termination was pretextual, as evidenced by the facts that (i) AutoZone

management directed AutoZone personnel to “send Ms. O’Brien a letter that could serve as a

catalyst to discharge her,” and (ii) AutoZone’s letter requiring her to report to work by July 28,

2022 was delivered while she was on a pre-planned vacation.97 Plaintiff further contends that

AutoZone “was aware of but ignored the most likely method to communicate with Ms. O’Brien

and instead chose the method least likely to effectuate communication.”98

The Court is unpersuaded by Plaintiff’s arguments for the following reasons. First, the

alleged pretextual timing of the July 22 letter does not create a genuine dispute of material fact as

to the reason AutoZone contends it sent Plaintiff the letter and ultimately terminated her

employment. In the thirty days between Plaintiff’s last shift at AutoZone and her receipt of the

letter, she: (i) was a no call/no show at work for eleven shifts—over five times the number of

consecutive absences that triggers AutoZone’s job abandonment policy;99 (ii) sent text messages

to her first and second line supervisors expressly stating “I will not be coming back to work at your

store”;100 and (iii) subsequently failed to return four separate calls from AutoZone management

regarding her text messages.101 Plaintiff provides no specific facts showing there is a genuine issue

96 Rec. Doc. 59-1, at 27.

97 Rec. Doc. 65-4, at 14-15.

98 Id. at 16.

99 Hampton Dep., Rec. Doc. 59-5, at 74:15-19 (no call/no show); O’Brien Dep., Rec. Doc. 59-4, at CM/ECF p. 180

(job abandonment policy).

100 O’Brien Dep., Rec. Doc. 59-4, at 156:1-13, 160:2-5 (referring to Store 4289).

101 Def.’s Statement of Material Facts, Rec. Doc. 59-3, ¶¶ 80-83 (noting that Plaintiff did not respond to two calls on

July 8, one call on July 12, and one call on July 17).

for trial as to her attendance violations. Celotex Corp., 477 U.S. at 324. As for her failure to return

AutoZone’s phone calls, she argues that a genuine dispute of material fact exists because AutoZone

personnel would not return her text messages.102 But the record makes clear that text messaging is

not an acceptable method of communication or notification as it relates to an AutoZone employee’s

attendance absences.103

Second, Plaintiff’s allegation that AutoZone management conspired to send the letter while

she was on vacation is wholly unsupported by the record.104 Third, despite the timing of

AutoZone’s letter and its noting that she would be considered to have voluntarily resigned if she

did not return to work by July 28, Plaintiff contacted AutoZone management on August 3 and was

given yet another chance to show she was under doctor’s care on the days she missed work.105

For the same reasons, it is also clear that Plaintiff’s attendance violations after her complaint

were the “but for” cause of her termination from AutoZone, not the complaint itself. Lyons, 964

F.3d at 304. Accordingly, her retaliation claim fails.106

d. Harassment

AutoZone moves for summary judgment on Plaintiff’s harassment allegations on the

grounds that the harassment Plaintiff complained of at Store 4289 is insufficient to state a hostile

work environment claim.107 A hostile work environment exists “when the workplace is permeated

102 Rec. Doc. 65-4, at 14 (noting AutoZone “ignored the one form of communication that it knew it would use to reach

Ms. O’Brien”).

103 See O’Brien Dep., Rec. Doc. 59-4, at CM/ECF p. 294 (internal email from James Hampton noting that “[Plaintiff]

has only been attempting to communicate via text, which is not an acceptable way to communicate [an] absence or an

injury”). The AutoZone Store Handbook expressly notes that, as it relates to attendance, “Voicemail, text messages and

emails are not acceptable methods of notification.” Id. at CM/ECF p. 179.

104 Rec. Doc. 65-4, at 15.

105 Rec. Doc. 59-4, at CM/ECF p. 297.

106 It is reply brief, AutoZone argues for the first time that Plaintiff cannot set forth a valid claim for retaliation as it

relates to the alleged denied pay raise. Rec. Doc. 78, at 9. The Court declines to consider the merits of this argument.

107 Rec. Doc. 59-1, at 28.

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.” Morgan,

536 U.S. at 116. To establish a prima facie hostile work environment claim, a plaintiff must show

“(1) membership in a protected group; (2) harassment (3) based on a factor rendered impermissible

by Title VII; (4) the harassment affected a term, condition, or privilege of employment; and (5) the

employer knew or should have known of the harassment yet failed to address it promptly.”

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012).

Plaintiff does not oppose AutoZone’s argument, but summary judgment cannot be granted

simply because there is no opposition. Day v. Wells Fargo Bank Nat’l Ass'n, 768 F.3d 435, 435 (5th

Cir. 2014) (quoting Hibernia Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d

1277, 1279 (5th Cir. 1985)). “The movant has the burden of establishing the absence of a genuine

issue of material fact and, unless he has done so, the court may not grant the motion, regardless of

whether any response was filed.” Hibernia Nat’l Bank, 776 F.2d at 1279.

Here, the Court finds that AutoZone has carried its burden. AutoZone correctly notes that

Plaintiff only complains of a single, isolated incident.108 “The Supreme Court has repeatedly stated

that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of employment.” Hockman v.

Westward Comm’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004) (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (internal quotations omitted)). Because AutoZone identified an

108 Id. at 29. The Court notes that Plaintiff’s complaint alleges a separate instance of harassment committed by the same

employee in June 2020. Rec. Doc. 1, ¶ 16. This claim arose prior to January 5, 2022, so it is time barred. But even if it

were properly before the Court, the two instances viewed together are still not sufficiently severe or pervasive to

constitute an abusive or hostile work environment. See, e.g., Fortenberry v. Texas, 75 F. App’x 924, 928 (5th Cir. 2003)

(affirming summary judgment in a case where two isolated incidents of alleged harassment occurred almost two years

apart because the long period of time was not sufficiently severe or pervasive to constitute an abusive or hostile work

environment).

absence of evidence in the record to support the severe and pervasive nature of the alleged conduct,

the burden shifts to Plaintiff to demonstrate a genuine issue of material fact. Plaintiff has not carried

this burden. See Celotex Corp., 477 U.S. at 322. Accordingly, the Court grants summary judgment

to Defendant on this issue.

IV. Conclusion

AutoZone’s motion seeks dismissal of all Plaintiff’s claims, which include a statute of

limitations argument and an argument on the merits of Plaintiff's Title VII causes of action based

on gender discrimination, retaliation, and harassment. For the foregoing reasons, any claim

regarding an alleged adverse action that occurred before January 5, 2022 is dismissed as time-

barred. Additionally, AutoZone has shown that it is entitled to summary judgment dismissal of all

remaining Title VII claims, which include Plaintiffs claims for (1) gender discrimination based on

her alleged involuntary transfer, demotion, denial of promised pay increase, failure-to-promote, and

wrongful termination; (11) retaliation; and (111) harassment.

Accordingly;

Defendant's Motion for Summary Judgment (Rec. Doc. 59) is GRANTED, and this case is

DISMISSED WITH PREJUDICE.

November 19, 2024

C . t

UNITED STATES DISTRICT JUDGE

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