Spann v. FedEx Freight

Case: 24-60318 Document: 57-1 Page: 1 Date Filed: 07/15/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 24-60318

July 15, 2025

____________

Lyle W. Cayce

Gwendolyn Spann, Clerk

Plaintiff —Appellant,

versus

Fedex Freight, Incorporated,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:23-cv-00399

______________________________

Before Elrod, Chief Judge, Engelhardt, Circuit Judge, and Guidry,

District Judge. *

Greg Gerard Guidry, District Judge: **

Plaintiff-Appellant Gwendolyn Spann sued her employer, Defendant-

Appellee FedEx Freight, Incorporated (“FedEx”), alleging race- and

gender-based discrimination and retaliation claims arising out of three

incidents at her workplace. The district court granted Defendant’s Motion

_____________________

*

United States District Judge for the Eastern District of Louisiana, sitting by

designation.

**

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-60318 Document: 57-1 Page: 2 Date Filed: 07/15/2025

No. 24-60318

for Summary Judgment and dismissed all claims. Having reviewed the

motion de novo, we find no error in the district court’s grant of summary

judgment and AFFIRM.

I.

Gwendolyn Spann has worked at FedEx’s Richland, Mississippi,

trucking terminal since March of 2017. On June 23, 2023, she filed suit

against FedEx asserting (1) race and sex discrimination in the form of dis-

parate treatment and hostile work environment, in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2) race discrimina-

tion under 42 U.S.C. § 1981; (3) retaliation under Title VII and § 1981; and

(4) “intentional infliction of emotional distress pursuant to § 28 U.S.C.

1343(a)(4) and 28 U.S.C. 1331.” 1 Spann points to three allegedly racist or

discriminatory acts that occurred at the terminal.

The first occurred on October 1, 2021. According to her deposition

testimony, while Spann was operating her forklift going in and out of a

trailer to pick up a skid, fellow dockworker, Christopher Williams, ran into

her forklift with his forklift. 2 Spann reported the incident to Manager Rob-

ert Mason and then went home.

FedEx conducted an investigation and took written statements.

_____________________

1

Spann has attempted to base an intentional infliction of emotional distress

(“IIED”) claim on either 28 U.S.C. § 1343(a)(4) or 28 U.S.C. § 1331. However, 28 U.S.C.

§ 1343(a)(4) allows a party to “seek relief under any Act of Congress providing for the

protection of civil rights, including the right to vote.” And 28 U.S.C. § 1331 concerns

federal question jurisdiction. Neither independently supports an IIED claim arising under

federal law.

2

In her written statement given on the day of the incident, Spann said that she was

backing out of a tractor-trailer as Williams was approaching, that she came to a complete

stop, and that Williams hit her forklift. In her Complaint, she alleges that she was coming

out of a trailer when Williams struck her with his forklift.

2

Case: 24-60318 Document: 57-1 Page: 3 Date Filed: 07/15/2025

No. 24-60318

Williams claimed that Spann backed into him. Spann claimed that Williams

hit her forklift after she came to a complete stop. Dockworker Cornelius

Jenkins contradicted Williams, stating that Spann came to a stop and that

Williams had time to stop but did not.

FedEx issued a “Critical Written Warning” to Williams for unsafe

driving, putting him on notice that any future unsafe driving incidents would

result in “the next step of corrective action, up to termination.” A Critical

Written Warning is the third step in FedEx’s four-step progressive discipli-

nary policy, with the fourth step being termination. Williams was also re-

quired to complete a forklift recertification.

Spann maintains she was severely injured during the accident and

underwent surgery to her neck, but the surgery did not relieve the pain to

her arm and back. She received worker’s compensation benefits, and her

medical bills were paid by FedEx. She returned to work without restrictions

and was determined to be at Maximum Medical Improvement (“MMI”) on

May 12, 2022. 3

Spann alleges FedEx intentionally treated her differently as an in-

jured employee because she was female and black, when FedEx allowed its

white male manager to ignore her injury. As a result of the differential treat-

ment, she claims that she was “foreseeably harmed in her neck, arm and

back” and that, “since 01/17/2023[,] new pains and the extension of that

pain is now present within her body with painful reoccurring headaches and

shoulder pain.”

_____________________

3

Spann argues that no medical doctor signed off on whether she had reached MMI

because the information was provided by a third-party administrator. The document relied

upon by FedEx and the district court to find Spann had reached MMI, though apparently

provided by a third party, does include a medical diagnosis signed by a health care provider

but the provider’s name is not printed.

3

Case: 24-60318 Document: 57-1 Page: 4 Date Filed: 07/15/2025

No. 24-60318

The second act allegedly occurred in December of 2022. Spann claims

she was required to give a written witness statement about “yet another

separate racist employment discriminatory act.” Two white male employees,

Admiral Cranfield and possibly his son, purportedly used profanity and

yelled at a supervisor when they were asked to perform certain duties. Spann

asserts these white male employees were allowed to return to work the next

day, and FedEx did nothing to deter future hostile work conditions that she,

as a black female employee, was placed under by the white supervisor. Spann

says she was required to write a report on the incident the same day and

alleges this was discriminatory. Spann avers that the “sex and racial

discriminatory conduct is bluntly open and intentional.” However,

FedEx’s Employee Relations Advisor, John Hodge, stated that Admiral

Cranfield was issued a Critical Written Warning, dated December 30, 2022.

The third act occurred in January of 2023. Spann alleges FedEx

retaliated against her and denied her request for light duty work, despite her

“complaining of the new and extended pains after being struck by a forklift.”

Spann provided a doctor’s note in support of her request, directing her to

“[a]void overhead work, no lifting greater than 30 pounds,” and that if no

such work was available, she should be “off work.” Spann avers she was

denied light duty work, even though a white female, Donna Walters, was

granted light work duties as the result of a work-related injury but had not

had any surgeries. Spann claims the difference in outcomes is due to race.

Hodge, the Employee Relations Advisor, stated there were “issues”

with Spann’s Early Return to Work (“ERTW”) request that prevented

FedEx from immediately granting it, namely: whether she had reached

MMI and whether appropriate light-duty work was available. According to

FedEx’s records, Spann had returned to work in May of 2022 without re-

strictions and was at MMI. Because she was at MMI, she was not eligible

for ERTW. Hodge stated that the doctor’s note did not include any

4

Case: 24-60318 Document: 57-1 Page: 5 Date Filed: 07/15/2025

No. 24-60318

information about the source of the injury, but her medical records indi-

cated she had suffered a “flareup” of her October 1, 2021 injury while doing

some overhead work and lifting. According to Hodge, while the third-party

administrator reached out to Spann’s doctor for more information, FedEx,

despite initially believing no appropriate work was available, nevertheless

found available light-duty work by checking with another shift manager.

Spann’s ERTW was thus granted on January 26, 2023.

In comparison, Hodge stated Walters was granted ERTW on De-

cember 6, 2022, for a work-related injury she suffered in September of

2022. At the time of Walters’s request, she was not at MMI and there was

light duty work available.

Spann filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on May 31, 2023. In her charge, she

alleged:

I was discriminated at FedEx and retaliated

against. A FedEx employee by the name of

Christopher Williams was allowed to remain on

an ungoverned forklift that he ran over me with

and injured me because I was a woman. FedEx

did not make him take a drug test or alcohol test

as I would have. FedEx has failed to follow their

rules for recertification before allowing Christo-

pher Williams to resume driving the forklift.

FedEx also retaliated against me on January 17,

2023, by denying my request for light duties af-

ter I was injured as they did for another em-

ployee name Donna Walters, who is a white fe-

male, when her injuries did not require for her

to have surgery.

The EEOC issued a Right to Sue Letter on June 13, 2023. Thereafter,

Spann filed the instant Complaint. FedEx moved for summary judgment on

5

Case: 24-60318 Document: 57-1 Page: 6 Date Filed: 07/15/2025

No. 24-60318

all of Spann’s claims pursuant to Rule 56 of the Federal Rules of Civil Pro-

cedure. The district court granted FedEx’s motion and dismissed Spann’s

claims with prejudice. Spann timely appealed. 4

II.

This Court reviews the district court’s grant of summary judgment de

novo, applying the same standards as the district court. Brandon v. Sage Corp.,

808 F.3d 266, 269 (5th Cir. 2015) (citations omitted). A party is entitled to

summary judgment if it can demonstrate that there is no genuine dispute of

material fact and that it is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once a

movant who does not have the burden of proof at trial makes a properly sup-

ported motion, the burden shifts to the nonmovant to show that summary

judgment should not be granted. See, e.g., Morris v. Covan World Wide Mov-

ing, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing such a summary

judgment motion may not rest upon mere allegations contained in the plead-

ings but must set forth and support by summary judgment evidence specific

facts showing the existence of a genuine dispute for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255–57 (1986).

When ruling on a motion for summary judgment, “the inferences to

be drawn from the underlying facts . . . must be viewed in the light most fa-

vorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zen-

ith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold,

_____________________

4

Spann’s opening brief does not address or assign error to the district court’s

dismissal of her claims for intentional infliction of emotional distress, retaliation under

Title VII or § 1981, or the district court’s dismissal of various alleged acts of discrimination

that were not asserted in the underlying Complaint. These issues are, therefore, not before

the Court. Centurytel of Chatham, LLC v. Sprint Communs. Co., L.P., 861 F.3d 566, 573 (5th

Cir. 2017) (“An appellant abandons all issues not raised and argued in its initial brief on

appeal.” (emphasis removed)).

6

Case: 24-60318 Document: 57-1 Page: 7 Date Filed: 07/15/2025

No. 24-60318

Inc., 369 U.S. 654, 655 (1962)). Unsubstantiated assertions are not competent

summary judgment evidence. See Celotex, 477 U.S. at 324. The party oppos-

ing summary judgment is required to identify specific evidence in the record

and to articulate the precise way that evidence supports his or her claim. See

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).

With this standard of review in mind, we turn to the issues presented

in Spann’s appeal to this court.

A. Whether the District Court erred in dismissing Spann’s Forklift

Accident-Related Title VII Claim.

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),

and prohibits retaliation against individuals for reporting or complaining

about such discrimination, id. § 2000e-3(a). Title VII requires a plaintiff to

exhaust administrative remedies by filing a Charge of Discrimination with

the EEOC “within [180] days after the alleged unlawful employment

practice occurred.” 42 U.S.C. § 2000e-5(e)(1); see Ernst v. Methodist Hosp.

Sys., 1 F.4th 333, 337 (5th Cir. 2021).

The district court dismissed Spann’s Title VII claim on the basis that

it was time-barred. The forklift accident occurred on October 1, 2021, and

the EEOC Charge was filed on May 31, 2023, well beyond the 180-day

deadline to file a Charge. The district court further held that Spann failed

to demonstrate that the “forklift incident caused her to suffer any harm

respecting an identifiable term or condition of employment,” other than

frustration over the perceived inadequacy of FedEx’s response to the

incident.

Spann argues the district court erred by dismissing her forklift-

related Title VII claims as untimely, because she did not have “sufficient

knowledge” of the basis for her claim until 180 days prior to filing her EEOC

7

Case: 24-60318 Document: 57-1 Page: 8 Date Filed: 07/15/2025

No. 24-60318

Charge, or even until the Charge itself was filed. She contends she never

claimed that discrimination based on race or gender began on October 1,

2021, only that she had given the date as when the incident happened. She

asserts the EEOC “ratified” her Charge when it issued the right to sue

notice. Id. Spann cites to Hardy v. Nissan N. Am., Inc., 2021 WL 6803235

(S.D. Miss. Sept. 16, 2021), presumably for the proposition that the 180-day

limitation does not commence until the employee has sufficient knowledge

of her claim. 5 She thus maintains she did not have the requisite knowledge

of her claims stemming from the forklift incident until some later time,

perhaps as late as when the EEOC Charge was filed.

However, this court has made clear that the 180-day period com-

mences from the alleged discriminatory act, not when a plaintiff later per-

ceives discrimination. See Merrill v. S. Methodist Univ., 806 F.2d 600, 605

(5th Cir. 1986) (“This Circuit has … consistently focused on the date that

plaintiff knew of the discriminatory act.” (emphasis in original)). Addition-

ally, we have explained that the 180-day limitation period for Title VII

claims “begin[s] to accrue ‘when the plaintiff knows or reasonably should

know that the discriminatory act has occurred.’” Cervantes v. Imco Halli-

burton Servs., 724 F.2d 511, 513 (5th Cir. 1984) (quoting McWilliams v. Es-

cambia Cty Sch. Bd., 658 F.2d 326, 330 (5th Cir. 1981)). Although Spann

asserts for the first time in this court that she did not know she had a claim

until the EEOC Charge was filed, or within 180 days thereof, she does not

_____________________

5

Hardy is not necessarily helpful to Spann’s case. There, the district court

discussed and rejected the plaintiff’s “continuing violations theory” under which he had

alleged the events, including those outside the 180-day period, were all part of the same

unlawful employment practice. Other than citing Hardy, Spann does not make such a

continuing violations argument. See Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003)

(explaining that the continuing violations doctrine is equitable in nature and extends the

limitations period on otherwise time barred claims only when the unlawful employment

practice manifests itself over time, rather than as a series of discrete acts).

8

Case: 24-60318 Document: 57-1 Page: 9 Date Filed: 07/15/2025

No. 24-60318

identify any supporting evidence showing (1) what led to her belief that she

may have been subject to race or sex discrimination, (2) when she arrived at

this belief, or (3) why until the filing of the EEOC Charge did she not know

that she had a claim of race or sex discrimination.

Instead, Spann cites to Occidental Life Insurance Co. of California v.

EEOC, 432 U.S. 355 (1977), for the proposition that “once the right to sue

letter is issued by the EEOC and the charging party files suit within the 90

days, then there is no limitation period for claims sought.” Spann seems to

believe that the right to sue letter allows her to assert any claims in a timely-

filed suit without regard to the 180-day rule. But this argument is unavailing.

Occidental addressed only the time limitation imposed on the EEOC’s

power to bring suit under Title VII, not the time limitation imposed on the

claimant. Id.

Spann’s Title VII claim is clearly time-barred. She filed her EEOC

charge more than 180 days from the date of the forklift accident. “Title VII

requires employees to exhaust their administrative remedies before seeking

judicial relief.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir.

2008). The EEOC charge must be filed “within [180] days after the alleged

unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1).

The 180-day time limit commenced immediately after the incident.

Spann’s charge merely states that Williams was not required to undergo a

drug and alcohol test or to be forklift recertified, but he was instead allowed

to continue working on a forklift following the October 1, 2021 incident. She

was thus clearly aware of these allegations immediately after the incident,

which commenced the 180-day period.

Additionally, Spann has failed to establish a prima facie case of

9

Case: 24-60318 Document: 57-1 Page: 10 Date Filed: 07/15/2025

No. 24-60318

discrimination. 6 She alleges FedEx discriminated against her (1) by not re-

quiring Williams to undergo drug and alcohol testing or a re-entry program

before being allowed to return to work and (2) by not immediately investi-

gating the accident and providing Spann with the findings. The record be-

fore us belies her allegations. Williams was required to undergo recertifica-

tion before returning to work, FedEx investigated the incident, and Wil-

liams was cited for his unsafe driving. Spann has identified no evidence to

show that FedEx’s actions following the forklift incident caused her to suf-

fer an adverse employment action, that is, “some harm respecting an iden-

tifiable term or condition of employment.” See Muldrow v. City of St. Louis,

Mo., 601 U.S. 346, 355 (2024).

_____________________

6

A plaintiff may establish discrimination directly or indirectly. Where the plaintiff

brings only circumstantial evidence of discrimination, we rely on the three-step process

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pursuant to this

framework, the initial burden rests with the employee to produce evidence that he: (1) is a

member of a protected class, (2) was qualified for the position that he held, (3) was subject

to an adverse employment action, and (4) was treated less favorably than others similarly

situated outside of his protected class. Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426

(5th Cir. 2017); Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). An adverse

employment action was evaluated in a recent Supreme Court decision as follows: to

establish a discrimination claim, an employee “must show some harm respecting an

identifiable term or condition of employment,” but the employee need not show “that the

harm incurred was ‘significant.’ Or serious, or substantial, or any similar adjective

suggesting that the disadvantage to the employee must exceed a heightened bar.” Muldrow

v. City of St. Louis, Mo., 601 U.S. 346, 355 (2024) (citation omitted). Once the plaintiff has

established her prima facie case of discrimination, the burden shifts to the employer to show

“a legitimate, nondiscriminatory reason for the adverse employment action.” Alkhawaldeh,

851 F.3d at 426. “If the employer is able to articulate a legitimate, non-discriminatory

reason for the adverse employment action, the burden shifts back to the employee to

demonstrate that the employer’s proffered reason is a pretext for discrimination.” Id.

10

Case: 24-60318 Document: 57-1 Page: 11 Date Filed: 07/15/2025

No. 24-60318

B. Whether the District Court erred in dismissing Spann’s Title VII

and § 1981 Hostile-Work-Environment claims.

“A hostile work environment claim is composed of a series of separate

acts that collectively constitute one unlawful employment practice.” Wantou

v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 433 (5th Cir. 2022) (citation

and internal quotation marks omitted). To succeed, the plaintiff must show

that (1) the employee belonged to a protected class; (2) the employee was

subject to unwelcome harassment; (3) the harassment was based on the

protected class; (4) the harassment affected a “term, condition, or privilege”

of employment; and (5) the employer knew or should have known of the

harassment and failed to take prompt remedial action. Clark v. City of

Alexandria, 116 F.4th 472, 479 (5th Cir. 2022) (citations omitted).

Harassment generally takes the form of “discriminatory intimidation,

ridicule, and insult” that rises to the level of “hostile or abusive.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993) (quoting Meritor Savings Bank,

FSB v. Vinson, 477 U.S. 57, 65 (1986)). “For harassment to affect a term,

condition, or privilege of employment, it ‘must be sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.’” Wantou, 23 F.4th at 433 (citations omitted).

The plaintiff must show subjective awareness of the hostility or abusiveness

and that her awareness is objectively reasonable. Clark, 116 F.4th at 479.

The district court initially observed that Spann’s Complaint

contained “scattered references to a hostile work environment . . ..” The

district court found that Spann had “not clearly alleged that she was

subjected to a hostile work environment based on her race, sex or retaliation,

or all or some combination of the three.”

Nevertheless, to the extent Spann was asserting a Title VII claim of

hostile work environment based on race or sex, the district court dismissed

11

Case: 24-60318 Document: 57-1 Page: 12 Date Filed: 07/15/2025

No. 24-60318

such a claim as time-barred based on her failure to exhaust administrative

remedies. The district court reasoned that there was no reference to a hostile

work environment in Spann’s EEOC Charge and no hint of any facts in the

Charge that might arguably support such a claim. The district court held that

Spann was foreclosed from pursuing a hostile work environment claim under

Title VII. See Walton-Lentz v. Innophos, Inc., 476 F. App’x 566, 570 (5th Cir.

2012) (claim of hostile work environment could not “reasonably be expected

to grow out of” EEOC charge that did not mention hostile work environment

or allege facts to support such claim). 7

As to Spann’s § 1981 hostile work-environment claims, they, too,

were dismissed because the district court found she failed to allege or to

produce evidence that the “alleged misconduct was directed toward plaintiff

or motivated in any part by her female gender (or by her race).” The district

court thus concluded that “[i]t may have been a hostile, and perhaps even

dangerous and frightening work environment; but it was not a sexually or

racially hostile work environment.”

Spann now says the district court erred, somewhat confusingly

arguing that a work environment under § 1981 need only be hostile in general,

not “sexual[ly] or racially hostile.” She points to the Admiral Cranfield

incident, as well another incident in which an angry employee allegedly made

reference to a firearm in his vehicle, as evidence of a generally hostile work

environment. But a necessary element of her claim is that the harassment be

based on a protected characteristic. See Johnson v. PRIDE Indus., Inc., 7 F.4th

_____________________

7

The district court correctly noted: Whether a plaintiff has exhausted her

administrative remedies as to a claim is determined “not solely by the scope of the

administrative charge itself, but by the scope of the EEOC investigation which ‘can

reasonably be expected to grow out of the charge of discrimination.’” Pacheco v. Mineta,

448 F.3d 783, 789 (5th Cir. 2006) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455,

463 (5th Cir. 1970)).

12

Case: 24-60318 Document: 57-1 Page: 13 Date Filed: 07/15/2025

No. 24-60318

392, 399 (5th Cir. 2021). The “critical issue” in determining whether

workplace activities constitute harassment based on sex is “whether

members of one sex are exposed to disadvantageous terms or conditions of

employment to which members of the other sex are not exposed.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (citation omitted).

“Title VII is not a shield against harsh treatment at the workplace; it protects

only in instances of harshness disparately distributed.” Jackson v. City of

Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981). Spann has made no showing of

disparately distributed harshness and has thus failed to establish a hostile

work environment based on her race or gender.

C. Whether the District Court erred in dismissing Spann’s Delayed

Light-Duty Approval Claim.

To establish a prima facie case of race or sex discrimination based on

disparate treatment in the Fifth Circuit, an employee generally must

demonstrate that “1) is a member of a protected class; 2) was qualified for

her position; 3) was subjected to an adverse employment action; and 4) was

replaced by someone outside the protected class, or that other similarly

situated persons were treated more favorably.” Septimus v. Univ. of Houston,

399 F.3d 601, 609 (5th Cir. 2005). To satisfy the “similarly situated” prong,

the employee performs a comparator analysis. See Lee v. Kan. City S. Ry. Co.,

574 F.3d 253 (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. See

id. at 259–61 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)). The similarly situated employee is known as a comparator. Saketkoo

v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022). “A variety

of factors are considered when determining whether a comparator is similarly

situated, including job responsibility, experience, and qualifications.” Herster

v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th Cir. 2018). The

13

Case: 24-60318 Document: 57-1 Page: 14 Date Filed: 07/15/2025

No. 24-60318

employee must establish that the comparator's conduct is “nearly identical,”

though not strictly identical. Lee, 574 F.3d at 260 n.25.

The district court held that Spann failed to demonstrate a prima facie

case of discrimination because she could not point to a similarly situated

comparator of a different race who was treated differently under nearly

identical circumstances. Spann seems to argue primarily that the district

court misread the record because her January 2023 injury claims were both

new and extended from the October 1, 2021 incident. As noted previously,

she states that no medical doctor ever determined that she had reached MMI,

and thus she was in a similar position as Donna Walters, who had also not

reached MMI. Presumably, Spann is attempting to establish a genuine

dispute as to a material fact, that is, whether she had reached MMI either

from the October 1, 2021 forklift accident or the most recent claim of injuries

in January 2023. But even if her MMI status is or was unclear, that fact does

not defeat summary judgment. Rather it supports the reasoning of the district

court.

The record supports a finding that there were no apparent issues

regarding Walters’s eligibility for the ERTW program. Despite Spann’s

arguments to the contrary, a legitimate question existed as to whether Spann

was eligible to participate in the program. Although the records available to

FedEx showed that she had reached MMI, the more recent physician’s note

gave no indication as to the source of her injuries. FedEx reasonably decided

to investigate further by reviewing Spann’s medical records. Thus, Spann

was not similarly situated to Walters, because the latter had clearly not

reached MMI and her eligibility was therefore apparent on the face of her

request. The district court correctly determined that Spann failed to show

she was treated differently than a similarly situated employee under “nearly

identical circumstances.” Saketkoo, 31 F.4th at 998.

14

Case: 24-60318 Document: 57-1 Page: 15 Date Filed: 07/15/2025

No. 24-60318

III.

For the foregoing reasons, we conclude Spann has failed to show any

error in the district court’s grant of summary judgment in favor of FedEx

based on a misreading of the record before it. After de novo review, we AF-

FIRM.

15