Barinaga v. ExxonMobil Chemical Company

UNITED STATES DISTRICT COURT October 01, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

ZOE MILAN BARINAGA, §

§

Plaintiff, §

§

v. § Civil Action No. 4:22-CV-03462

§

EXXONMOBIL CORPORATION, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Since 1994, Plaintiff Zoe Milan Barinaga climbed the corporate ladder at Defendant

ExxonMobil Corporation (“ExxonMobil”). Over the years, she received multiple

promotions, landed several jobs, and earned many bonuses. But like most relationships,

Barinaga’s employment relationship wasn’t perfect. She alleged that her career was

marked by years of discrimination and retaliation. So she eventually brought four claims

under Title VII of the Civil Rights Act of 1964, Section 1981, and the Texas Labor

Code: (1) race discrimination; (2) national-origin discrimination; (3) sex discrimination;

and (4) retaliation. (Dkt. No. 29 at 7–12). Now, ExxonMobil moves for summary

judgment, arguing that Barinaga’s claims come too late and lack merit. (Dkt. No. 45).

Before the Court are two motions: Defendant ExxonMobil Corporation’s Motion

for Summary Judgment, (Dkt. No. 45), and its Motion to Strike Plaintiff’s Summary

Judgment Evidence, (Dkt. No. 59). For the reasons below, the Court GRANTS the Motion

for Summary Judgment. (Dkt. No. 45). Because the Court did not consider or rely on the

challenged summary-judgment evidence, it DENIES as moot the Motion to Strike

Plaintiff’s Summary Judgment Evidence. (Dkt. No. 59).

I. BACKGROUND1

ExxonMobil hired Barinaga in 1994. (Dkt. No. 45-2 at 4). Over the next three

decades, she had a career that, on paper, looked successful. She rose through the ranks,

becoming the Global Marketing Manager in 2015, a Business Manager in Singapore in

2017, the Baytown Chemical Plant Process Manager in 2018, and the Major Growth

Ventures Planning and Prospecting Manager in 2023. (Id.).

Barinaga also ranked well compared to her peers,2 receiving the second-highest

rating (“Excellent”) multiple times and the highest rating (“Outstanding”) once. (Id. at

4–5). Her Individual Development Plan (“IDP”) and ExxonMobil’s own “Potential”

ratings3 indicated that Barinaga appeared destined for an executive-level or even a vice-

president position. (See id. at 4).

1 Except where noted, this Section contains only undisputed facts, and all facts and

reasonable inferences have been construed in favor of the nonmovant. Renfroe v. Parker, 974 F.3d

594, 599 (5th Cir. 2020). The Court has not weighed evidence or made credibility findings. Id.

2 ExxonMobil evaluates employees against their peers. (Dkt. No. 45-2 at 2). Before 2020,

the company used a Rank Group Percentile (“RGP”). (Id.). An RGP of 66 or higher placed an

employee in the top third of their assessment group. (Id.). Barinaga scored a 66 in 2017, a 61 in

2018, a 66 in 2019, and an 80 in 2020. (Id. at 4).

3 ExxonMobil gives each employee a numeric “Potential” score, which it defines as “a

long-term indicator of the highest level an employee might be able to reach near the end of their

career.” (Dkt. No. 45-2 at 3). The company uses Potential to forecast career paths and guide

staffing and business-development decisions. (Id.). An employee’s Potential score reflects their

capability, demonstrated functional and behavioral skills, mobility, business needs, and

availability of positions or opportunities. (Id.). A Potential of 30 or higher indicates that an

employee may reach an executive-level position by the end of their career. (Id.). With a Potential

of 38, Barinaga was on track to become an executive at ExxonMobil. (Id.).

Her promotions reflected that path. ExxonMobil promoted her to Classification

Level4 (“CL”) 30 on July 1, 2012, (id.), bringing her within the executive tier of employees,

(id. at 3). ExxonMobil promoted her to CL 31 on January 1, 2015; CL 32 on August 1, 2018;

and CL 33 on January 1, 2024. (Id. at 4).

But Barinaga claims that a different story is hidden behind the curtains of

promotions and high ratings—one marked by years of discrimination and retaliation.

(See Dkt. No. 29 at 2–12). This story may be divided into three chapters: (1) the 2015–2018

Chapter; (2) the 2020 Chapter; and (3) the 2023 Chapter.

A. THE 2015–2018 CHAPTER

The first chapter begins in January 2015, when Barinaga began working under

Cindy Shulman. (Dkt. No. 45-1 at 5). This marked a turning point in her career.

1. Alleged Discrimination

At this time, Shulman allegedly discriminated against Barinaga by (1) creating a

“hostile and manipulative” work environment; (2) exhibiting a volatile, confrontational

work style; (3) making threatening comments to subordinates; (4) making inappropriate

comments about employees’ ethnicity and religious beliefs; and (5) disclosing private

ranking and performance information to subordinates about their peers. (Dkt. No. 50-1

at 3) (SEALED). For example, Barinaga claims that Shulman became upset easily, raised

her voice at Barinaga, told her that she was “naïve to think that being Hispanic was not

4 At ExxonMobil, an employee’s CL number indicates the level and complexity of his or

her role in the company. (Dkt. No. 52-23 at 4). As a result, increasing an employee’s CL score is

typically regarded as a promotion. (Id.).

the reason for where she was in her career,” and once screamed at Barinaga to leave the

office and never speak to her again. (Dkt. No. 45-2 at 5). Shulman also allegedly gave

Barinaga a lower performance score than she had received in previous years. (Dkt. No.

52-1 at 2).

But Shulman was not the only problem. Barinaga describes another incident in

May 2016, when Shulman organized a team-building event at the Westin Hotel in The

Woodlands, Texas. (Dkt. No. 50-1 at 15) (SEALED). The event began with an off-site

dinner where alcohol was served. (Id.) (SEALED). Over time, the team migrated to the

hotel pool area, where several employees continued drinking. (Id.) (SEALED).

One employee, Thomas Deman, became visibly intoxicated. (Id. at 4) (SEALED);

(Dkt. No. 45-1 at 23). In fact, while he was standing behind Barinaga and another female

employee, Deman stripped down to his underwear and jumped into the pool. (Dkt. No.

50-1 at 15) (SEALED). Barinaga tried to ignore the scene and continued talking with other

coworkers. (Dkt. No. 45-1 at 23); (Dkt. No. 50-1 at 15) (SEALED).

Hotel staff attempted to remove Deman, but Shulman intervened, assuring them

that she would handle the situation and cut Deman off from more drinks. (Dkt. No. 45-

1 at 23). The hotel staff allowed Deman to stay under that condition. (Dkt. No. 50-1 at

15) (SEALED). Later, Deman got dressed again, sat beside another female coworker, and

began massaging her back, making her feel “uncomfortable and froze[n].” (Id.)

(SEALED).

After going to the bathroom, Barinaga returned to find only two people at the pool,

one of them Deman. (Dkt. No. 45-1 at 23). When no one else returned, she decided to

leave for her hotel room. (Dkt. No. 45-1 at 23); (Dkt. No. 50-1 at 16) (SEALED). As she

left, Deman asked the other individual to get him a drink. (Dkt. No. 45-1 at 23); (Dkt. No.

50-1 at 16) (SEALED). While the other person was getting the drink, Deman started

following Barinaga to the hotel elevator. (Dkt. No. 45-1 at 23); (Dkt. No. 50-1 at 16)

(SEALED). Once inside, Barinaga pressed “7” for her floor; Deman pressed “6” for his

but did not exit when the doors opened. (Dkt. No. 45-1 at 23–24); (Dkt. No. 50-1 at 16)

(SEALED).

Sensing danger, Barinaga didn’t exit the elevator on the seventh floor because she

didn’t want Deman following her to her room. (Dkt. No. 50-1 at 16) (SEALED); (Dkt. No.

45-1 at 23–24). Instead, she headed to a female coworker’s room on the ninth floor, telling

Deman that she was texting her female coworker and was going to her coworker’s room.

(Dkt. No. 50-1 at 16) (SEALED). As the elevator made its way to the ninth floor, Deman

crept closer to Barinaga, put his arm around her, and started “putting his hands” “[a]ll

over” her. (Dkt. No. 45-1 at 24). Barinaga told him to stop and tried to move away. (Dkt.

No. 50-1 at 16) (SEALED). She then exited and texted her coworker to come out of the

room. (Id.); (Dkt. No. 45-1 at 24). But her coworker never responded, and Deman

continued following her off the elevator. (Dkt. No. 50-1 at 16); (Dkt. No. 45-1 at 24).

Barinaga hopped back into the elevator, went to her floor, and tried to reach to her

room, but Deman still followed her. (Dkt. No. 50-1 at 16) (SEALED); (Dkt. No. 45-1 at 24).

When she confronted him, Deman reached around her back and tried to pull her in for a

kiss.5 (Dkt. No 50-1 at 16) (SEALED); (Dkt. No. 45-1 at 24). Barinaga pushed him away

and screamed for him to leave. (Dkt. No. 50-1 at 16) (SEALED); (Dkt. No. 45-1 at 24).

Deman stumbled backward, gestured to his cheek, and finally left. (Dkt. No. 50-1 at 16)

(SEALED); (Dkt. No. 45-1 at 24). Barinaga’s coworker then responded to her texts and

came down to Barinaga’s room, where they discussed Deman’s conduct. (Dkt. No. 50-1

at 16) (SEALED); (Dkt. No. 45-1 at 24).

Sometime later, Barinaga told Michael Zamora—one of her friends who worked

for a different part of ExxonMobil at the time—about her incident with Deman. (Dkt. No.

45-5 at 2); (Dkt. No. 45-6 at 18–19); (Dkt. No. 52-2 at 3). Barinaga asked Zamora not to

share this information with anyone else because she was just coming to him as a friend

and did not view Deman’s conduct as a policy violation. (Dkt. No. 45-5 at 2–3); (Dkt. No.

45-6 at 18–19); (Dkt. No. 52-1 at 3).

Then, in January 2017, Barinaga relocated to Singapore as a manufacturing

business manager. (Dkt. No. 52-2 at 4); (Dkt. No. 45-2 at 4). Although the position was

supposed to last four years, she returned to Houston in the summer of 2018 to become

the Baytown Chemical Plant Process Manager. (Dkt. No. 45-1 at 14–15); (Dkt. No. 45-2

at 4).

2. Barinaga’s First HR Complaint

Barinaga eventually broke her silence. In July 2018, as she transitioned from

Singapore back to Houston, Zamora urged her to report the incident with Deman to HR.

5 Deman’s lips did not physically touch hers, but he did physically touch her shoulder

and back when he tried to kiss her. (Dkt. No 50-1 at 16) (SEALED); (Dkt. No. 45-1 at 24).

(Dkt. No. 45-5 at 3); (Dkt. No. 52-2 at 5). Zamora had learned that ExxonMobil was

considering Deman for higher-level roles and believed management should know about

his conduct. (Dkt. No. 45-5 at 3).

On July 23, 2018, Barinaga submitted her first HR complaint, naming both Cindy

Shulman and Thomas Deman. (Dkt. No. 45-2 at 5). Barinaga alleged that Shulman

discriminated against her between 2015 and 2016 because of her race, national origin, sex,

and religion. (Id.). She further alleged that Shulman (1) condoned inappropriate

behavior at the May 26, 2016, team-building event; (2) told others not to disclose what

had occurred; and (3) failed to discipline the individuals involved or report the incident.

(Dkt. No. 50-1 at 3) (SEALED). As to Deman, Barinaga reported unwelcome physical

contact and other inappropriate behavior at the same 2016 event. (Dkt. No. 45-2 at 5);

(Dkt. No. 50-1 at 3) (SEALED).

3. ExxonMobil’s Investigation

ExxonMobil launched an investigation in response to Barinaga’s complaint. (Dkt.

No. 45-2 at 6). Compliance Manager Dan Whitfield and co-investigator Latasha McDade

interviewed Barinaga and 11 other employees, including Shulman and Deman. (Id.).

This investigation substantiated some of Barinaga’s allegations. The investigators

concluded that Shulman demonstrated inappropriate leadership and management

decisions. (Dkt. No. 50-1 at 4) (SEALED). The investigation confirmed that Shulman

exercised extremely poor judgment, inappropriate leadership, and a lack of

accountability at the team-building event when she encouraged consumption of alcohol

at the company-sponsored event. (Dkt. No. 45-2 at 6); (Dkt. No. 50-1 at 4) (SEALED).

Indeed, the investigation found that Shulman condoned egregious horseplay as a result

of the alcohol consumption and failed to monitor the effect of alcohol on her employees

attending the event. (Dkt. No. 45-2 at 6); (Dkt. No. 50-1 at 4) (SEALED). And the

investigation revealed that Shulman photographed Deman after he jumped into the

swimming pool undressed and failed to report or address the inappropriate behavior.

(Id.) (SEALED).

But the investigation did not corroborate Barinaga’s claims that Shulman made

comments about her race, ethnicity, or religion or that she disclosed confidential ranking

or performance information to subordinates. (Dkt. No. 45-2 at 6); (Dkt. No. 50-1 at 4)

(SEALED). Even so, ExxonMobil instructed Shulman to retire, which she did. (Dkt. No.

45-2 at 6).

As for Deman, the investigation found that he engaged in highly inappropriate

behavior. (Id.). It concluded that Deman consumed too much alcohol at the company-

sponsored event and was so drunk that he couldn’t even remember what happened.

(Dkt. No. 50-1 at 5) (SEALED). Witnesses reported that Deman stripped to his underwear

before jumping into the hotel pool and subjected several women to unwanted touching

during and after the event. (Id.) (SEALED). Investigators concluded that he followed

Barinaga to her hotel room and attempted to kiss her. (Id.) (SEALED). Deman did not

deny Barinaga’s allegations and admitted that he was so intoxicated that he could not

recall what happened. (Dkt. No. 45-2 at 6). ExxonMobil thus reprimanded Deman,

lowered his Potential from 38 to 34, barred him from near-term leadership consideration,

and reduced his 2018 compensation incentives by $200,000. (Id.).

B. THE 2020 CHAPTER

The second chapter began almost two years later, when two regional directors

retired in early June 2020. (Dkt. No. 45-8 at 3). Their departure required ExxonMobil to

choose the next plant manager for the Baytown Chemical Plant. (Id.).

1. 2020 Plant Manager Decision

Barinaga wanted the job, (Dkt. No. 52-23 at 4), but ExxonMobil was reviewing

multiple candidates, (Dkt. No. 45-8 at 3). For this decision, ExxonMobil weighed the

company’s future organizational needs, the competency of the current plant leadership,

and each candidate’s leadership capabilities, risk-management skills, and prior plant-

managing experience. (Id.); (see also Dkt. No. 45-9 at 6); (Dkt. No. 45-10 at 9).

Although ExxonMobil considered Barinaga a potential candidate for the role at

some point in the future, it concluded that she “needed more time” in her current process-

manager role and was not the best candidate at that time. (Dkt. No. 45-8 at 3). Instead,

the company chose Wim Blokker for the position, believing that he was the most qualified

candidate. (Id.).

ExxonMobil chose Blokker because of his previous role as the Rotterdam Chemical

Plant Operations Manager and then-current position as the Mont Belvieu Plant Manager,

both of which gave him plant-leadership and operations-management experience. (Id. at

3–4). ExxonMobil noted that Blokker had “performed well, demonstrated leadership

acumen and strong strategic thinking, and shown he could lead a site reorganization and

integration of multiple facilities” in these roles. (Id. at 3).

Barinaga, by contrast, had never been a plant manager or operations manager.

(Id.). While her Singapore business-manager role included oversight of some

manufacturing operations, ExxonMobil considered that experience less relevant because

the plant managers who had reported to her were not executive-level employees and the

plants she oversaw were smaller and less complex than those under Blokker’s

supervision. (Id.).

2. Barinaga’s Second HR Complaint

Barinaga disagreed with ExxonMobil’s decision. On November 20, 2020, she

complained to HR, alleging that ExxonMobil passed over her in retaliation for her earlier

report. (Dkt. No. 45-2 at 6). ExxonMobil investigated and concluded that there was no

retaliation. (Id.). The company pointed to her improved performance rankings,

unchanged Potential score, and an IDP that continued to identify her as a future plant-

manager candidate. (Id.).

3. First EEOC Charge

Still dissatisfied, Barinaga filed a charge of discrimination with the EEOC on April

1, 2021. (Dkt. No. 52-20). She alleged that ExxonMobil discriminated against her because

of her national origin, religion, and sex, and that ExxonMobil retaliated against her for

her 2018 complaint about Deman and Shulman by denying her the plant-manager

position in 2020. (Id. at 3–4).

4. This Lawsuit

On August 22, 2022, Barinaga sued ExxonMobil in Texas state court for race

discrimination, sex discrimination, national-origin discrimination, religious

discrimination, and retaliation under federal and state law. (Dkt. No. 1-4). ExxonMobil

removed the case to this Court. (Dkt. No. 1).

C. THE 2023 CHAPTER

Barinaga’s story continued even after the lawsuit was filed. Soon after the second

chapter ended, the third began when ExxonMobil merged its Chemicals and Fuels &

Lubricants divisions in 2022 to create ExxonMobil Product Solutions. (Dkt. No. 45-2 at

6). The reorganization consolidated several positions and reduced the number of high-

level positions in the new division, including cutting regional director positions down to

three. (Id.).

1. 2023 Major Growth Venture Decision

Because of this reorganization, ExxonMobil considered Barinaga for several other

roles, including one in Major Growth Ventures. (Id. at 6–7). Major Growth Ventures, a

hybrid organization within the Product Solutions division, (id.), manages large projects

that drive company growth, (Dkt. No. 45-4 at 3). The team integrates business operations,

capital projects, and new-business development, bridging ExxonMobil’s operations and

business-and-projects units. (Id.).

ExxonMobil considered Barinaga for a position in Major Growth Ventures because

her background combined both operational and business experience, the two skill sets

Major Growth Ventures required. (Id. at 16). The company viewed her as bringing

operational knowledge, strong business acumen, and the ability to develop new growth

opportunities for product solutions. (Id.)

While Barinaga still wanted the plant-manager position at the Baytown Chemical

Plant, (Dkt. No. 45-4 at 6, 11); (Dkt. No. 52-23 at 3), ExxonMobil allegedly didn’t consider

her competitive for plant-manager roles on the manufacturing side because she lacked

refinery experience. (Dkt. No. 45-5 at 3). With the merger shrinking the number of

leadership positions, ExxonMobil sought candidates with experience in both chemicals

and refining for regional-director positions and other high-level roles. (Id. at 4); (Dkt. No.

45-12 at 3). ExxonMobil aimed “to cross-pollinate perspectives and practices” by having

employees with refinery experience bring their experiences and ideas to chemical plants,

and vice-versa. (Dkt. No. 45-12 at 3).

This increased competitiveness allegedly made it less likely for Barinaga to reach

a regional-director position even if she became a plant manager. (Id.). ExxonMobil

concluded that placing her in the Baytown plant-manager role would have decreased her

ability to reach a role that met Potential 38. (Dkt. No. 45-5 at 3–4). Purportedly believing

that Major Growth Ventures offered her “a credible path” to a vice-president role on the

ventures side, ExxonMobil selected her for the position. (Id. at 4). On May 18, 2023, the

company named her the next Major Growth Ventures Planning and Prospecting

Manager, with a scheduled start date of June 1, 2023. (Dkt. No. 45-2 at 7).

2. 2023 Plant Manger Decision

Six days later, Blokker informed ExxonMobil that he needed to work from home

temporarily because of a medical issue. (Id.). Without Blokker onsite, ExxonMobil

postponed Barinaga’s transition to Major Growth Ventures until August 2023, when

Blokker was expected to return. (Id.).

By August 2023, Blokker’s condition had not improved, and he required medical

leave through the end of 2023. (Id.). ExxonMobil decided to replace him with a new plant

manager. (Id.). Barinaga was a potential candidate, but ExxonMobil ultimately did not

revisit its earlier decision to transition her to Major Growth Ventures. (Dkt. No. 45-4 at

13).

Instead, ExxonMobil considered two candidates: Glenn Hayes and Rohan Davis.

(Id.); (Dkt. No. 45-10 at 7). Davis had previously managed the Baytown and Sarnia

refineries, (Dkt. No. 45-10 at 7), while Hayes had served as the Sarnia Refinery Manager

and helped integrate the Sarnia Refinery and Sarnia Chemical Plant into the Sarnia

Integrated Complex, (Dkt. No. 45-12 at 3).

Seeking to “cross-pollinate” refinery and chemicals experience, ExxonMobil chose

Hayes, (Dkt. No. 45-5 at 4), citing his refinery experience, his work integrating the refining

and chemical operations in Sarnia, (Dkt. No. 45-12 at 3), and his ability to handle fast-

paced sites, (Dkt. No. 45-5 at 4).

On September 1, 2023, Hayes became the next Baytown Chemical Plant Manager.

(Dkt. No. 45-2 at 7). He did not receive a CL promotion with the role. (Dkt. No. 42-18 at

9) (SEALED).

3. Second EEOC Charge

Barinaga viewed her reassignment to Major Growth Ventures and Hayes’s

selection as plant manager as additional acts of retaliation and discrimination. (See Dkt.

No. 45-1 at 61). On September 1, 2023, she filed a second EEOC charge claiming that

ExxonMobil retaliated and discriminated against her by moving her to a new division

and denying her the Baytown plant-manager position. (Id. at 59–61).

D. RECENT PROCEDURAL HISTORY

After filing her second EEOC charge, Barinaga amended her complaint to address

the recent employment actions. (Dkt. No. 29). In her Second Amended Complaint, she

asserted four claims under Title VII of the Civil Rights Act of 1964 and the Texas

Commission on Human Rights Act: (1) race discrimination; (2) national-origin

discrimination; (3) sex discrimination; and (4) retaliation.6 (Id. at 7–12).

ExxonMobil answered and raised several affirmative defenses. (Dkt. No. 31). It

moved for summary judgment after discovery. (Dkt. No. 45). Barinaga responded, (Dkt.

No. 52), and ExxonMobil replied, (Dkt. No. 58). ExxonMobil also moved to strike one of

Barinaga’s summary-judgment exhibits. (Dkt. No. 59). Barinaga responded, (Dkt. No.

64), and ExxonMobil replied, (Dkt. No. 65).

6 Barinaga’s live pleading could be construed as asserting what some courts call

“intersectional claims.” See, e.g., Thomas v. Cook Children’s Health Care Sys., No. 4:20-CV-01272,

2021 WL 4796679, at *7 (N.D. Tex. July 28, 2021), aff’d, No. 22-10535, 2023 WL 5972048 (5th Cir.

Sept. 14, 2023). These claims “are like those based on race but with the added component of sex.”

Id. (first citing Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971)

(per curiam); then citing Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir.

1980); and then citing EEOC v. DynMcDermott Petroleum Operations Co., 537 F.App’x 437, 466 (5th

Cir. 2013) (per curiam)). They arise from “the theory that an employer cannot evade Title VII

liability for discrimination” against a Black woman by showing that it does not discriminate

against Black men or white women. Id. (citing Jefferies, 615 F.2d at 1032).

The Court need not decide whether Barinaga’s allegations qualify as intersectional claims

because they require the plaintiff to prove “both race and sex discrimination.” Id. (emphasis

added) (citing Leah, 731 F.3d at 414–15). And as discussed below, Barinaga has shown neither.

See infra Section III(B).

II. LEGAL STANDARD

Summary judgment is appropriate when there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A fact is material if it could affect the suit’s outcome under governing law. Renwick

v. PNK Lake Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). And “[a] dispute about

a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” TIG Ins. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.

2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). The moving party “always

bears the initial responsibility of informing the district court of the basis for its motion”

and identifying the record evidence that “it believes demonstrate[s] the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2553, 91 L.Ed.2d 265 (1986). “If the moving party fails to meet [its] initial burden, the

motion [for summary judgment] must be denied, regardless of the nonmovant’s

response.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per

curiam).

If the movant meets this burden, the nonmovant must come forward with specific

facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c); see also Matsushita Elec. Indus.

v. Zenith Radio Corp., 475 U.S. 574, 585–87, 106 S.Ct. 1348, 1355–56, 89 L.Ed.2d 538 (1986).

The nonmovant must “go beyond the pleadings and by [the nonmovant’s] own affidavits,

or by the depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Nola Spice Designs, LLC v.

Haydel Enters., 783 F.3d 527, 536 (5th Cir. 2015) (quoting EEOC v. LHC Grp., Inc., 773 F.3d

688, 694 (5th Cir. 2014)). “The nonmovant must ‘identify specific evidence in the record

and . . . articulate the precise manner in which that evidence supports his or her claim.’”

Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (per curiam) (quoting

Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). If evidence is merely

colorable or not significantly probative, summary judgment is appropriate. Parrish v.

Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (citing Anderson, 477 U.S.

at 249–50, 106 S.Ct. at 2511).

In reviewing a motion for summary judgment, the district court views the

evidence in the light most favorable to the nonmovant. Carr, 866 F.3d at 601. This means

that courts must resolve factual controversies in the nonmovant’s favor, “but only

when . . . both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at

1075.

III. DISCUSSION

ExxonMobil argues that summary judgment is appropriate for two

reasons: (1) several of Barinaga’s claims are untimely and unexhausted, (Dkt. No. 45 at

20–22); and (2) all of her claims fail on the merits, (id. at 22–34). The Court address each

argument in turn.

A. TIMELINESS OF BARINAGA’S CLAIMS

ExxonMobil first contends that many of Barinaga’s claims are time-barred. (Id. at

20–22). After addressing the federal and state claims separately, the Court agrees.

1. Federal Claims

To begin, ExxonMobil argues that several of Barinaga’s federal claims are

untimely. (Id.). It contends that many of the actions included in her Title VII claims fall

outside the statutory filing period, (id.), and that portions of her claims under 42 U.S.C.

§ 1981 are also time-barred, (id. at 21 n.3). The Court addresses the Title VII claims first.

a. Title VII Claims

ExxonMobil maintains that much of the conduct Barinaga cites under Title VII

occurred outside the limitations period for filing an EEOC charge. (See id. at 20–22).

Specifically, it argues that her first EEOC charge covers actions by Shulman or Deman

that are untimely, and that for her second EEOC charge, any employment action before

November 5, 2022, falls outside the limitations period. (Id. at 20–21). By ExxonMobil’s

account, the only conduct within Title VII’s statutory period includes (1) its 2020 decision

to hire Blokker instead of Barinaga as Baytown plant manager; (2) its 2023 transfer of

Barinaga to Major Growth Ventures and selection of Hayes as plant manager; and (3) any

decision not to promote Barinaga after November 5, 2022. (Id. at 21).

The Court agrees. “Under Title VII, a plaintiff normally has 180 days after an

alleged violation to file a charge with the EEOC.” Sanders v. Univ. of Tex. Pan Am., 776

F.App’x 835, 837 (5th Cir. 2019) (per curiam). In a deferral state, like Texas, that provides

a state or local administrative mechanism to address complaints of employment

discrimination, a Title VII plaintiff must file a charge of discrimination with the EEOC

within 300 days after learning of the conduct alleged. Wells v. Texas Tech Univ., 2025 WL

673439, at *3 (5th Cir. Mar. 3, 2025) (citing Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir.

1998)). If “discrete acts of discrimination or retaliation . . . occur outside the statutory

time period,” Title VII precludes recovery for them. Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 105, 122 S.Ct. 2061, 2068, 153 L.Ed.2d 106 (2002).

Barinaga filed her first EEOC charge on April 1, 2021, (Dkt. No. 52-20), and 300

days before that is June 5, 2020. Her allegations about Deman and Shulman involve

conduct from 2015 and 2016, (Dkt. No. 52-20 at 3), well outside of the statutory window.

Baringa attempts to avoid this by arguing that the Lilly Ledbetter Fair Pay Act of

2009 extends the statutory time period for her allegations involving Shulman because the

negative reviews given by Shulman were “discriminatory compensation decision[s]” that

affected her “each time wages . . . [were] paid.” (Dkt. No. 52 at 30) (quoting 42 U.S.C.

§ 2000-5(3)(A)).

This argument fails. The Fifth Circuit has held that “the Ledbetter Act does not

apply to ‘discrete acts’ by employers such as ‘termination, failure to promote, denial of

transfer, and refusal to hire’” even if they touch on pay. Niwayama v. Tex. Tech Univ., 590

F.App’x 351, 356 (5th Cir. 2014) (per curiam) (quoting Tillman v. S. Wood Preserving of

Hattiesburg, Inc., 377 F.App’x 346, 349–50 n.2 (5th Cir. 2010) (per curiam)). This reasoning

is in line with several other circuits. See Daniels v. United Parcel Serv., Inc., 701 F.3d 620,

630–31 (10th Cir. 2012) (“[The Ledbetter Act] did not create a ‘limitations revolution for

any claim somehow touching on pay’”); Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d

370, 374 (D.C. Cir. 2010) (“[T]he phrase ‘discrimination in compensation’ means paying

different wages or providing different benefits to similarly situated employees, not

promoting one employee but not another to a more remunerative position.”); Noel v. The

Boeing Co., 622 F.3d 266, 275 (3rd Cir. 2010).

Shulman’s conduct was the kind of “discrete act” discussed in Niwayama that,

while potentially touching on pay, was not a “discriminatory compensation decision.”

Any claims based on Deman and Shulman’s conduct from 2015 and 2016 are untimely

under Title VII.

Barinaga’s first charge also challenged ExxonMobil’s late-2020 decision to not hire

her for the Baytown plant-manager position. (Id. at 4). Because that decision occurred

sometime around August7—within the 300-day window that started on June 5, 2020—

those claims are timely.

Barinaga filed her second EEOC charge on September 1, 2023. (Dkt. No. 45-1 at

59–61). Using the 300-day measure, the window for that charge opens on November 5,

2022. Any portion of the second charge challenging conduct before that date—such as

her allegations about the lack of promotions or CL increases since 2018, (see id. at 60–61)—

is untimely. But her allegations about her 2023 transfer to Major Growth Ventures and

Hayes’s selection as the new plant manager fall within the period and are timely. (Id.).

In sum, the only timely actions for Barinaga’s Title VII claims are (1) the 2020 plant-

manager decision; (2) any employment actions after November 5, 2022; and (3) Barinaga’s

7 The Parties’ summary-judgment briefs suggest that ExxonMobil decided to hire Blokker

sometime in October 2020. (Dkt. No. 45 at 32); (Dkt. No. 52 at 19). The summary-judgment

evidence does not support that timeline. Barinaga’s deposition testimony and the testimony of

an ExxonMobil employee indicate that the decision occurred around August 2020. (Dkt. No. 45-

1 at 38); (see Dkt. No. 45-9 at 15).

transition to Major Growth Ventures and Hayes’s selection as the new plant manager in

2023. The Court therefore excludes as untimely all other actions from its Title VII merits

analysis below. See infra Section III(B).

b. Section 1981 Claims

Turning to Section 1981, ExxonMobil argues that some of the actions challenged

in Barinaga’s race-discrimination claims are untimely. (Dkt. No. 45 at 21 n.3). The Court

again agrees.

Section 1981 does not contain a statute of limitations, so courts apply a catchall

four-year statute of limitations under 28 U.S.C. § 1658. Belton v. GEO Grp., Inc., No. 21-

30144, 2021 WL 5832953, at *4 (5th Cir. Dec. 8, 2021) (per curiam). This four-year period

applies to claims based on conduct occurring after the formation of the contract. Nicholson

v. W.L. York, Inc., No. 23-20440, 2024 WL 913378, at *3 (5th Cir. Mar. 4, 2024) (per curiam)

(first citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 1845, 158

L.Ed.2d 645 (2004); and then citing Mitchell v. Crescent River Port Pilots Ass’n, 265 F.App’x

363, 367 (5th Cir. 2008) (per curiam)). In the employment context, any alleged racial

discrimination that takes place during the plaintiff’s employment occurs after the

formation of the contract, thus subjecting it to the four-year statute of limitations. Belton,

2021 WL 5832953, at *4.

Barinaga sued ExxonMobil on August 22, 2022. (Dkt. No. 1-4). Four years before

that date is August 22, 2018, meaning that anything beforehand is untimely. Some of

Barinaga’s allegations, however, predate that deadline. One example is when Barinaga

claims that Shulman discriminated against her “because she was Hispanic,” threatening

to ruin Barinaga’s career, interfering with her evaluations and promotions, and creating

a hostile work environment. (Dkt. No. 29 at 2–3). These allegations concern actions in

2015, years before the deadline, and thus cannot form the basis for Barinaga’s Section

1981 claims.

But the remaining employment actions that Barinaga challenges did take place

within the four-year window. For instance, ExxonMobil decided to hire Blokker over

Barinaga in August 2020, (see Dkt. No. 45-1 at 38); (Dkt. No. 45-9 at 15), and ExxonMobil

allegedly denied her promotions, raises, and employment assignments after August 2018,

(Dkt. No. 29 at 10) (alleging that “[e]ach pay period, bonus assessment, raise evaluation,

and advancement consideration (or lack thereof) constitutes an unlawful act and

continues the adverse effects of the discrimination”). Thus, to the extent she challenges

the August 2020 plant-manager decision and the lack of promotions or CL increases after

August 22, 2018, those claims are timely.

Accordingly, Barinaga’s Section 1981 claims against Shulman are untimely and do

not survive summary judgment. Instead, the Court will only consider allegations about

actions occurring after August 22, 2018, when addressing the merits of Barinaga’s Section

1981 claims. See infra Section III(B).

2. State Claims

In addition to her federal claims under Title VII and Section 1981, Barinaga

brought claims under the Texas Labor Code. (See Dkt. No. 29 at 7–9). These state-law

claims are also untimely and suffer the same fate as Barinaga’s federal claims.

Like Title VII, “the Texas Labor Code requires those claiming employment

discrimination to file an administrative complaint with the [Texas Workforce

Commission] before filing an action in court.” Hinkley v. Envoy Air, Inc., 968 F.3d 544, 552

(5th Cir. 2020) (first citing Tex. Lab. Code §§ 21.201(a), .252(a), .254; and then citing

Gorman v. Verizon Wireless Tex., LLC, 753 F.3d 165, 169 (5th Cir. 2014)). A plaintiff seeking

relief under the Texas Labor Code must also file an administrative complaint within 180

days from “the date the alleged unlawful employment practice occurred.” Tex. Lab.

Code §§ 21.202(a). But while “a plaintiff must file a charge of discrimination with the

EEOC or the TCHR within 180 days of the discriminatory act,” that timeframe is extended

to 300 days “[i]f the plaintiff has initially instituted proceedings with a State or local

agency such as the Texas Workforce Commission.” Frausto v. Sw. Airlines, No. 4:19-CV-

04718, 2020 WL 4060309, at *8 (S.D. Tex. June 26, 2020) (citing Pegram v. Honeywell, Inc.,

361 F.3d 272, 278–79 (5th Cir. 2004)), report and recommendation adopted, No. 4:19-CV-04718,

2020 WL 4059855 (S.D. Tex. July 18, 2020).

Barinaga filed her first EEOC charge on April 1, 2021, (Dkt. No. 52-20), so 300 days

before that would be June 5, 2020. But Barinaga complains about Deman and Shulman’s

conduct from 2015 and 2016, (Dkt. No. 52-20 at 3), which is far outside the statutory

period. Her allegations based on that conduct are therefore untimely under Texas law.

But her retaliation-claim allegations about the 2020 plant-manager decision, (Dkt.

No. 52-20 at 4), are timely. ExxonMobil’s decision to hire Blokker and not Barinaga

occurred in August 2020, (Dkt. No. 45-1 at 38); (Dkt. No. 45-9 at 15), roughly a month after

the June 5, 2020, cutoff. Thus, her state-law claims predicated on that decision are timely.

Barinaga’s second EEOC charge, filed on September 1, 2023, also complains of

missed promotions or CL increases dating back to 2018. (Dkt. No. 45-1 at 59–61). But 300

days before the date of her second charge would be November 5, 2022. Allegations of

missed promotions or CL increases dating back to 2018, (id. at 60–61), fall outside that

window to the extent they relate to promotions or CL increased before November 5, 2022.

Any allegations predating November 5, 2022, are thus untimely. Her transition to Major

Growth Ventures and Hayes’s selection as the new plant manager, however, are timely

because both occurred after November 5, 2022. (See id.).

In short, the only timely actions for Barinaga’s state-law claims are (1) any

employment actions after November 5, 2022, and (2) Barinaga’s transition to Major

Growth Ventures and Hayes’s selection as the new plant manager in 2023. All other

actions are untimely and excluded from the Court’s merits analysis of Barinaga’s state-

law claims.

B. MERITS OF BARINAGA’S CLAIMS

With timeliness resolved, the Court turns to the merits. ExxonMobil challenges all

of Barinaga’s claims: race-discrimination, national-origin discrimination, sex-

discrimination, and retaliation claims under federal and state law. (Dkt. No. 45 at 22–34).

The Court considers each in turn.

1. Race-Discrimination & National-Origin Discrimination Claims

Barinaga brings her race and national-origin discrimination claims under three

statutes: (1) Title VII of the Civil Rights Act of 1964; (2) 42 U.S.C. § 1981; and (3) Chapter

21 of the Texas Labor Code. (See Dkt. No. 29 at 7–9). Although distinct, all three prohibit

the same basic behavior. Title VII prohibits an employer from discriminating “with

respect to [an employee’s] compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a). Section 1981 guarantees all persons in the United States the “same

right . . . to make and enforce contracts” and “the full and equal benefit of all laws . . . as

is enjoyed by white citizens.” 42 U.S.C. § 1981(a). And the Texas Labor Code forbids

employment discrimination “because of race, color, disability, religion, sex, national

origin, or age.” Tex. Labor Code § 21.051.

Because these claims effectively cover the same conduct, courts analyze race-

discrimination claims “under Title VII, the Texas Labor Code, and Section 1981 . . . under

the same Title VII framework.” Wallace v. Seton Fam. of Hosps., 777 F.App’x 83, 87 (5th

Cir. 2019) (per curiam) (first citing Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010)

(Title VII and 42 U.S.C. § 1981); and then citing M.D. Anderson Hosp. & Tumor Inst. v.

Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (Texas Labor Code)).8 And “[b]ecause courts follow

Title VII jurisprudence when analyzing discrimination claims under the Texas Labor

Code and § 1981,” race-discrimination claims brought under all three statutes are

8 See also Dunn v. Hunting Energy Servs., 288 F.Supp.3d 749, 768 (S.D. Tex. 2017) (“Courts

in the Fifth Circuit ‘evaluate claims of race discrimination under § 1981 using the same analysis

as those under Title VII.’” (quoting Bright v. GB Bioscience Inc., 305 F.App’x 197, 201 n.3 (5th Cir.

2008) (per curiam))); Mott v. Schneider Elec. Sys., USA, Inc., No. 4:24-CV-03084, 2025 WL 1549461,

at *2 (S.D. Tex. May 30, 2025) (“Courts apply the same standards when analyzing claims under

Title VII and Chapter 21 of the Texas Labor Code.” (citing Pineda v. United Parcel Serv., Inc., 360

F.3d 483, 487 (5th Cir. 2004))); Tex. Lab. Code § 21.001(1) (stating one of the “general purposes of

this chapter” is to “provide for the execution of the policies of Title VII of the Civil Rights Act of

1964”); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001) (holding that the claim for

racial discrimination under the Texas Labor Code is interpreted the same as the federal law).

typically analyzed in the same analysis. Brown v. S.A. Food Bank, No. 23-50564, 2024 WL

1300286, at *2 n.7 (5th Cir. Mar. 27, 2024) (first citing Owens v. Circassia Pharms., Inc., 33

F.4th 814, 825 (5th Cir. 2022); and then citing Ross v. Judson Indep. Sch. Dist., 993 F.3d 315,

321 (5th Cir. 2021)).

A plaintiff’s national-origin discrimination claim under Title VII is also subject to

the same analysis as a race-discrimination claim under Title VII. Toro v. Fed. Express Corp.,

No. 4:15-CV-01448, 2016 WL 4800900, at *4 (S.D. Tex. Sept. 14, 2016). As a result, courts

also analyze race-discrimination and national-origin discrimination claims together to

“avoid redundancy.” Wheeler v. Amazon Web Servs., No. 4:22-CV-00370, 2024 WL 4253098,

at *4 n.5 (S.D. Tex. July 12, 2024) (citing cases), report and recommendation adopted, No. 4:22-

CV-00370, 2024 WL 4256436 (S.D. Tex. Sept. 18, 2024).

The Court therefore considers Barinaga’s race and national-origin discrimination

claims together under the Title VII framework. Under that framework, a plaintiff may

establish a prima facie case of discrimination using either direct or circumstantial

evidence. Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 778 F.3d 473, 475 (5th Cir.

2015); Portis v. First Nat. Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994) (citing U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3, 103 S.Ct. 1478, 1481 n.3, 75

L.Ed.2d 403 (1983)), as amended on denial of reh’g (Nov. 10, 1994). “If the plaintiff presents

only circumstantial evidence, then she must prove discrimination inferentially using

‘[t]he three-step McDonnell Douglas-Burdine “minuet.”’” Etienne, 778 F.3d at 475 (quoting

Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994) (per curiam)). But if “the

plaintiff presents direct evidence of discrimination, ‘the burden of proof shifts to the

employer to establish by a preponderance of the evidence that the same decision would

have been made regardless of the forbidden factor.’” Id. (quoting Brown v. E. Miss. Elec.

Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)). And “if a plaintiff is able to produce direct

evidence of discrimination, he may prevail without proving all the elements of a prima

facie case.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 997, 152 L.Ed.2d

1 (2002) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621–

22, 83 L.Ed.2d 523 (1985)).

Barinaga argues that she has presented direct evidence of racial and national-

origin discrimination based on Shulman’s 2015 statement that she was “naïve to think

that her being Hispanic was not the reason for where she was in her career.” (Dkt. No.

52 at 24); (Dkt. No. 45-2 at 5). But as discussed above, see supra Section III(A), any

complaints about Shulman’s conduct are untimely and therefore excluded from the

Court’s merits analysis.9

9 Even if the Court considered Shulman’s alleged statement, it would not constitute direct

evidence. Direct evidence is “rare” and must, if believed, prove discrimination “without

inference or presumption.” Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 579 (5th Cir. 2020) (first

quoting Portis, 34 F.3d at 328; and then quoting Brown, 989 F.2d at 861). It must show “on its face

that an improper criterion served as a basis . . . for the adverse employment action.” Herster v.

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

Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005)). The Fifth Circuit evaluates such comments under

four factors: (1) relation to the plaintiff’s protected characteristic; (2) proximity in time to the

challenged decision; (3) whether made by a decisionmaker; and (4) whether connected to the

adverse action. Wilkinson v. Pinnacle Lodging, LLC, No. 22-30556, 2023 WL 6518142, at *3 (5th Cir.

Oct. 5, 2023) (quoting Etienne, 778 F.3d at 476). Remarks failing these criteria are treated as “stray”

and cannot alone defeat summary judgment. Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380

(5th Cir. 2010) (quoting Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)).

Although Shulman’s comment implicates Barinaga’s protected characteristic, (see Dkt. No.

45-2 at 5), it allegedly occurred in 2015 and is far removed from any employment decision the

Court has deemed timely. Barinaga has not shown that it was connected to or proximate in time

(continue)

Apart from Shulman’s statement, Barinaga relies on indirect evidence to support

her race and national-origin discrimination claims. (See Dkt. No. 52 at 26). She must

therefore prove discrimination inferentially under the McDonnell Douglas-Burdine

paradigm. Etienne, 778 F.3d at 475 (quoting Davis, 14 F.3d at 1087). First, Barinaga “must

establish a prima facie case of discrimination.” Belton, 2021 WL 5832953, at *4. Second, if

Barinaga meets her burden, ExxonMobil “must offer a legitimate, non-discriminatory

reason for its actions.” Id. (citing Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.

2007)). And third, Barinaga must “rebut the [ExxonMobil’s] stated reasons and show that

they are ‘merely pretextual.’” Id. (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 922

(5th Cir. 2010)).

a. Prima facie case

At the prima facie stage, Barinaga bears the “initial burden” to establish a “prima

facie claim for race discrimination” and national-origin discrimination by showing four

elements: (1) she “is a member of a protected group”; (2) she “was qualified for the

position at issue”; (3) she suffered some adverse employment action by the employer”;

and (4) she “was replaced by someone outside h[er] protected group or was treated less

favorably than other similarly situated employees outside the protected group.” Ernst v.

Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (quoting Stroy v. Gibson ex rel. Dep’t of

Veteran Affs., 896 F.3d 693, 698 (5th Cir. 2018)).

to ExxonMobil’s employment decisions. Standing alone, the remark lacks the required “nexus”

between the statement and the alleged adverse employment actions. See Pete v. City of Houston,

719 F.App’x 334, 338 (5th Cir. 2018) (per curiam) (quoting Fabela v. Socorro Indep. Sch. Dist., 329

F.3d 409, 416 (5th Cir. 2003)). It is therefore a stray remark, not direct evidence. See id.

ExxonMobil only challenges the fourth element, arguing that Barinaga has no

evidence of ExxonMobil treating similarly situated white employees better than her

under nearly identical circumstances. (Dkt. No. 45 at 23–24). The fourth element requires

a Title VII claimant to identify at least one coworker outside of his protected class who

was treated more favorably “under nearly identical circumstances.” Alkhawaldeh v. Dow

Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (quoting Lee v. Kansas City S. Ry. Co., 574 F.3d

253, 259 (5th Cir. 2009)). More specifically, a plaintiff must identify a comparator who

shares (1) the same job or the same job responsibilities as her; (2) the same supervisor as

her; and (3) a similar history of violations or infringements, if any. Id. Put simply,

“[e]mployees with different supervisors, who work for different divisions of a company

or who were the subject of adverse employment actions too remote in time from that

taken against the plaintiff generally will not be deemed similarly situated.” Lee, 574 F.3d

at 259.

At this stage, ExxonMobil addresses only the alleged lack of CL promotions. (See

Dkt. No. 45 at 23–24). As to Barinaga’s other complaints, like her allegations about the

plant-manager decisions, ExxonMobil assumes that she can establish her prima facie

case—at least for summary-judgment purposes. (Id. at 24 n.5). The Court accordingly

limits its analysis at this stage to Barinaga’s complaints about the alleged lack of CL

promotions that are timely. See supra Section III(A).

Addressing these claims, the Court agrees that Barinaga has not provided

adequate comparator evidence and thus cannot meet her prima facie burden. Barinaga

does not identify another similarly situated non-Hispanic employee who received a CL

increase in late 2022 or early 2023 when she didn’t.10 On the contrary, the record shows

that several other high-level employees did not receive CL promotions for the time period

in question, including white male employees. (Dkt. No. 45-2 at 4). For instance, after

reviewing the CLs of several executives, ExxonMobil decided not to promote Barinaga or

two plant managers. (Dkt. No. 45-12 at 3).

And while Barinaga complained that she “ha[d] not received a CL increase in over

five years and three months” and had been denied CL increases, (Dkt. No. 29 at 5–7), CL

promotions are not guaranteed to happen at a particular time, (Dkt. No. 45-5 at 4); (Dkt.

No. 45-8 at 4). As a result, “two and a half years without a CL increase was [not]

exceptionally slow.” (Dkt. No. 45-9 at 20). In fact, there are other examples of employees

going five to six years without a CL increase. (See, e.g., Dkt. No. 45-4 at 9).

Thus, Barinaga’s duration at the CL 32 level was not unusual. (Dkt. No. 45-2 at 4);

(Dkt. No. 45-5 at 4); (Dkt. No. 45-8 at 4). This is especially true, given that Barinaga’s CL

shows that she was (and still is) in the top percentage of ExxonMobil executives. (Dkt.

No. 45-5 at 4). She was even ahead of pace and had a higher CL than some vice presidents

and some plant managers, including her direct supervisor who was the Baytown

10 Barinaga cites a couple of her exhibits for the proposition that “very many non-Hispanic,

male employees were receiving increases, sometimes in years back-to-back.” (Dkt. No. 52 at 25)

(referencing Dkt. Nos. 50-4, 50-5). But one exhibit doesn’t even discuss race or ethnicity, (see Dkt.

No. 50-5) (SEALED), and the other exhibit also shows Hispanic, Asian, and American Indian

employees receiving promotions on similar timeframes as white employees, (see Dkt. No. 50-4)

(SEALED). More importantly, nowhere does Barinaga (or her summary-judgment evidence)

establish the responsibilities, experiences, qualifications, or other information of these alleged

comparators. (See Dkt. No. 52 at 25–26); (Dkt. Nos. 50-4, 50-5). Barinaga’s comparator argument

thus falls flat.

Chemical Plant Manager. (Dkt. No. 45-2 at 4); (Dkt. No. 45-8 at 4); (Dkt. No. 45-13 at 3).

And as a CL 33 now, Barinaga continues to have the same or higher CL than some plant

managers and Vice Presidents. (Dkt. No. 45-2 at 4).

Without adequate comparator evidence, the Court finds that Barinaga has not met

her prima facie burden on her racial-discrimination and national-origin discrimination

claims based on the alleged lack of CL promotions. Accordingly, those claims fail as a

matter of law.11

b. Legitimate, nondiscriminatory reasons

The Court now considers Barinaga’s race and national-origin claims concerning

the 2020 and 2023 plant-manager decisions. ExxonMobil assumes that Barinaga has

established her prima facie case for these claims. (Dkt. No. 45 at 24 n.5). Therefore, the

Court begins by assessing whether ExxonMobil’s stated reasons for its actions (or

11 Even if Barinaga’s CL-promotion claims survived the prima facie stage, they would still

fail under the remainder of the McDonnell Douglas analysis. ExxonMobil offered legitimate,

nondiscriminatory reasons for the lack of CL increases, including that Barinaga did not receive

“Outstanding” performance assessments, did not stand out from her peers, and that her CL was

already ahead of pace and higher than some plant managers and vice presidents. (Dkt. No. 45 at

18, 27 & 27 n.6); see Young v. Houston Lighting & Power Co., 11 F.Supp.2d 921, 930 (S.D. Tex. 1998)

(“Basing a promotion decision on an assessment of qualifications qualifies as a legitimate,

nondiscriminatory reason.”); Ricketts v. Champion Chevrolet, 2005 WL 1924372, at *5 (S.D. Tex. Aug.

11, 2005) (“An employee’s failure to meet performance criteria is a legitimate, non-discriminatory

explanation for an employment decision.”).

While Barinaga points to others who received CL increases without “Outstanding” ratings,

(Dkt. No. 52 at 29) (referencing Dkt. Nos. 50-4, 50-5), she fails to show how those employees were

similarly situated. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (noting employee may

show pretext “through evidence of disparate treatment”). This failure is particularly significant

given that several other high-level employees—including white male employees—also did not

receive CL promotions during the relevant period. (Dkt. No. 45-2 at 4).

inactions) underlying Barinaga’s racial and national-origin discrimination claims are

legitimate and nondiscriminatory.

First, as to the 2020 plant-manager decision, ExxonMobil claims that it decided to

hire Blokker instead of Barinaga because Blokker was “the most qualified candidate” and

“clearly better qualified” than Barinaga. (Dkt. No. 45 at 25). “Selection of a more

qualified applicant is a legitimate and nondiscriminatory reason for preferring one

candidate over another.” Sabzevari v. Reliable Life Ins. Co., 264 F.App’x 392, 395 (5th Cir.

2008) (per curiam) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 251–53, 101

S.Ct. 1089, 1092–94, 67 L.Ed.2d 207 (1981)); Caldwell v. Univ. of Hou. Sys., 520 F.App’x 289,

294 (5th Cir. 2013) (per curiam) (“[C]hoosing the best-qualified candidate ‘constitutes a

legitimate, non-discriminatory justification for its failure to promote [an employee].’”

(quoting Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881–82 (5th Cir. 2003)));

Wagenfuhr v. BP Prods. N. Am., Inc., No. 3:11-CV-00135, 2012 WL 2568143, at *3 (S.D. Tex.

June 29, 2012) (“Courts have repeatedly held that hiring a more qualified applicant is a

legitimate, nondiscriminatory reason for not hiring a particular, less qualified applicant.”

(citing cases)), aff’d, No. 12-40783, 2013 WL 1245324 (5th Cir. Mar. 8, 2013). Thus,

ExxonMobil’s belief that Blokker was “the most qualified candidate” and “clearly better

qualified” than Barinaga is a legitimate, nondiscriminatory reason for its 2020 plant-

manager decision.

Second, as to the 2023 plant-manager decision, ExxonMobil offers several

reasons: (1) Hayes was a stronger candidate because he could cross-pollinate refinery

experience with chemicals experience; (2) Barinaga had already been selected and

approved for a different position; (3) Barinaga’s new position gave her a better chance of

reaching her full potential in the company; and (4) Barinaga had no refining experience

and had not shown that she could make fast-paced risk-management decisions. (Dkt.

No. 45 at 25–26). These reasons are sufficient. Again, “[s]election of a more qualified

applicant is a legitimate and nondiscriminatory reason for preferring one candidate over

another.” Sabzevari, 264 F.App’x at 395. Indeed, the legitimacy of ExxonMobil’s stated

reasons becomes even clearer in light of ExxonMobil’s explanation that Barinaga had

already been selected and approved for a different position that gave her a better chance

of reaching her full potential in the company. (Dkt. No. 45 at 25–26). Accordingly,

ExxonMobil has offered legitimate, nondiscriminatory reasons for its 2023 plant-manager

decision.

In sum, as to Barinaga’s racial-discrimination and national-origin discrimination

claims, ExxonMobil has provided legitimate, nondiscriminatory reasons for the 2020 and

2023 plant-manager decisions.

c. Pretext

Because ExxonMobil has provided legitimate, nondiscriminatory reasons, the

burden now shifts to Barinaga to “rebut [ExxonMobil’s] stated reasons and show that

they are ‘merely pretextual.’” Belton, 2021 WL 5832953, at *4 (quoting Moss, 610 F.3d at

922). “Pretext can be proven by any evidence that casts doubt on the credence of the

employer’s proffered justification for the adverse employment action.” Harris v. FedEx

Corp. Servs., Inc., 92 F.4th 286, 297 (5th Cir. 2024). “An explanation is false or unworthy

of credence if it is not the real reason for the adverse employment action.” Laxton v. Gap

Inc., 333 F.3d 572, 578 (5th Cir. 2003). Apart from credence, however, an employee can

also show pretext “by providing evidence that similarly situated employees were treated

more favorably.” Harris, 92 F.4th at 297.

Barinaga claims that ExxonMobil’s reasons for the 2020 and 2023 plant-manager

decisions were pretextual.12 (Dkt. No. 52 at 27–29). As to the plant-manager decisions,

Barinaga argues that ExxonMobil’s reasons were pretextual because (1) Barinaga was just

as qualified as Blokker at the time of the 2020 plant-manager decision; (2) Barinaga was a

better candidate than Hayes for the 2023 plant-manager decision because she had higher

performance ratings and a higher CL level than Hayes; and (3) the timing of Barinaga’s

transfer and Hayes’s selection makes the decision to hire Hayes “not credible.” (Id.).

Barinaga’s arguments fail to establish pretext. Most of Barinaga’s allegations are

not supported by any evidence. (See id. at 27–28). And without any evidence, Barinaga

is “[s]imply disputing the underlying facts of an employer’s decision,” which “is not

sufficient to create an issue of pretext.” LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d

383, 391 (5th Cir. 2007). More is therefore required at this pretext stage, such as showing

that employer (1) gave false explanations; (2) changed their explanations; (3) limited and

segregated the employee in a way that adversely impacted the employee’s performance;

12 It is unclear whether Barinaga asserts these pretext arguments in support of her race- or

national-origin-discrimination claims. Her brief’s discussion of pretext appears to omit any

arguments related to race or national origin. (See Dkt. No. 52 at 27–29). For the sake of analysis,

the Court assumes that her pretext arguments extend to her race- and national-origin

discrimination claims.

or (4) failed to give the employee the same opportunities as other employees. See, e.g.,

Caldwell v. KHOU-TV, 850 F.3d 237, 242–44, 246 (5th Cir. 2017).

But Barinaga has not provided more. As to ExxonMobil’s reasons for the plant-

manager decisions, Barinaga continues to assert that she was just as qualified and maybe

more qualified than the individuals that ExxonMobil chose for those position. (Dkt. No.

52 at 27–29). But merely “showing that two candidates are similarly qualified does not

establish pretext.” Dixon v. Comal County, 447 F.App’x 638, 641 (5th Cir. 2011) (per

curiam) (quoting Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002)).

Without more, Barinaga’s pretext arguments as to the plant-manager decisions

fail. After all, her subjective belief that she suffered discrimination because of her race or

national origin is insufficient to survive summary judgment. See Byers v. Dall. Morning

News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). And because she fails to show pretext, she

has not shown a genuine issue of fact on her race-discrimination and national-origin

discrimination claims. Those claims therefore fail.

2. Sex-Discrimination Claims

Apart from race-discrimination and national-origin discrimination claims,

Barinaga also brings sex-discrimination claims under Title VII and Chapter 21 of the

Texas Labor Code. (Dkt. No. 29 at 10–12). Courts “evaluate sex-discrimination claims

under Texas state law and Title VII similarly.” Sacchetti v. Optiv Sec., Inc., 819 F.App’x

251, 253 (5th Cir. 2020) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,

633–34 (Tex. 2012); see also Shackelford v. Deloitte & Touche, L.L.P., 190 F.3d 398, 403 n.2 (5th

Cir. 1999) (“[T]he law governing claims under the TCHRA and Title VII is identical.”);

Bramlett v. Tarrant County, No. 4:23-CV-00203, 2023 WL 11667632, at *3 n.3 (N.D. Tex.

Nov. 27, 2023) (“Courts analyze Title VII and parallel claims under the Texas Labor Code

identically. ‘Because [the Texas Labor Code] is intended to correlate with Title VII, the

same analysis is applied for each claim.’” (quoting Allen v. Radio One of Tex. II, LLC, 515

F.App’x 295, 297 (5th Cir. 2013) (per curiam))), report and recommendation adopted as

modified sub nom. Bramlett v. Tarrant County, No. 4:23-CV-00203, 2024 WL 1464064 (N.D.

Tex. Apr. 4, 2024); Drerup v. Consol. Nuclear Sec., LLC, No. 2:19-CV-00106, 2021 WL

2425257, at *13 n.6 (N.D. Tex. May 14, 2021) (“TCHRA sex discrimination claims are

analyzed under the same standard as Title VII sex discrimination claims.” (citing Dudik

v. Mesquite Rodeo, No. 3:03-CV-00178, 2004 WL 524947, at *5 n.3 (N.D. Tex. Mar. 12,

2004))), aff’d sub nom. Drerup v. Consol. Nuclear Sec., LLC, No. 21-10600, 2022 WL 3335780

(5th Cir. Aug. 12, 2022); Teague v. Williamson County, No. 1:18-CV-01098, 2020 WL

2542869, at *5 n.4 (W.D. Tex. May 19, 2020) (“Sex discrimination claims brought under

both the Title VII and the Texas Labor Code are evaluated using the same analytical

framework.” (first citing Allen, 515 F.App’x at 297; and then citing Shackelford, 190 F.3d at

403 n.2)).

Because the same standards apply to Barinaga’s sex-discrimination claims, the

Court simultaneously addresses them under the Title VII framework. And because

Barinaga does not offer direct evidence of sex discrimination, the Court applies the

familiar McDonnell Douglas burden-shifting framework. See Wallace v. Performance

Contractors, Inc., 57 F.4th 209, 219–20 (5th Cir. 2023).

a. Prima facie case

To make a prima facie of sex-discrimination case, Barinaga “must show ‘(1) that

she is a member of a protected class; (2) that she was qualified for the position sought;

(3) she was subject to an adverse employment action; and (4) she was replaced by

someone outside her protected class or was treated less favorably than other similarly

situated employees outside her class.’” Newbury v. City of Windcrest, 991 F.3d 672, 679

(5th Cir. 2021) (quoting Haire v. Bd. of Supervisors of La. State Univ., 719 F.3d 356, 363 (5th

Cir. 2013)).

ExxonMobil challenges only the fourth element, arguing that Barinaga has no

evidence of ExxonMobil treating similarly situated male employees better than her under

nearly identical circumstances. (Dkt. No. 45 at 22–24). “To satisfy the ‘similarly situated’

prong, the employee carries out a comparator analysis.” Saketkoo v. Adm’rs of Tulane Educ.

Fund, 31 F.4th 990, 998 (5th Cir. 2022) (citing Lee, 574 F.3d at 259). “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.” Id. (citing Lee,

574 F.3d at 259–60). “[N]early identical” does not mean strictly identical. Id. (citing Lee,

574 F.3d at 260 n.25). Instead, to determine if a comparator is sufficiently similar, courts

consider “[a] variety of factors . . . when determining whether a comparator is similarly

situated, including job responsibility, experience, and qualifications.” Id. (quoting Herster

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

Like the race-discrimination and national-origin claims, ExxonMobil assumes that

Barinaga can establish her prima facie case for sex discrimination in the plant-manager

decisions. (Dkt. No. 45 at 24 n.5). So the Court limits its analysis to Barinaga’s complaints

about the alleged lack of CL promotions that are still timely. See supra Section III(A).

As to these CL claims, Barinaga argues that “comparators have not been passed

over for promotion as many times as Barinaga has.” (Dkt. No. 52 at 25). She further

contends that all the men who received a recommendation for promotion were actually

promoted, and “[t]he only two people who were denied a promotion after HR

recommended one were women.” (Id. at 25–26).

But while the exhibit Barinaga references does indicate the position of the

comparator employees, (Dkt. No. 50-4) (SEALED), nowhere does Barinaga explain the

responsibilities, experiences, qualifications, or other information of these alleged

comparators, (see Dkt. No. 52 at 25–26). She thus fails to identify another similarly

situated male employee who received a CL increase in the period in question.

In fact, the evidence cuts the other way. Like Barinaga, other employees (both

male and female) went five to six years without a CL increase. (See, e.g., Dkt. No. 45-4 at

9) (testimony about one female employee going six years without a CL increase and a

male employee going five years without one). And several other high-level male

employees did not receive CL promotions for the time period in question. (Dkt. No. 45-

2 at 4). Moreover, Barinaga’s duration at the CL 32 level was not unusual compared to

other male and female employees, (Dkt. No. 45-2 at 4); (Dkt. No. 45-5 at 4); (Dkt. No. 45-

8 at 4), especially when Barinaga’s CL shows that she was (and still is) in the top

percentage of ExxonMobil executives, (Dkt. No. 45-5 at 4), and was ahead of pace and

had (and continues to have) a higher CL than some vice presidents and some plant

managers, (Dkt. No. 45-2 at 4); (Dkt. No. 45-8 at 4); (Dkt. No. 45-13 at 3).

Because Barinaga has not offered adequate comparator evidence, she cannot meet

her prima facie burden on her sex-discrimination claims that relate to the alleged lack of

CL promotions. Accordingly, those claims fail.13

b. Legitimate, nondiscriminatory reasons

Barinaga’s remaining sex-discrimination claims—those related to the 2020 and

2023 plant-manager decisions—fail for the same reasons that her race and national-origin

claims failed: ExxonMobil has proffered legitimate, nondiscriminatory reasons for its

conduct, which Barinaga has not shown are a pretext for sex discrimination.

To rebut Barinaga’s sex-discrimination claims, ExxonMobil offers the same

legitimate, nondiscriminatory reasons for its plant-manager decisions as it did for her

race and national-origin discrimination claims. See supra Section III(B)(1)(b). Specifically,

ExxonMobil asserts that it selected Blokker in 2020 and Hayes in 2023 because each was

considered the most qualified candidate for the position, (Dkt. No. 45 at 25–26), and it

13 And as with her race and national-origin claims based on a lack of CL promotions, even

if Barinaga’s sex-discrimination claim on this ground did not fail at the prima facie stage, it would

not survive the remainder of the McDonnell Douglas analysis. See supra Section III(B)(1)(a).

ExxonMobil provided legitimate, nondiscriminatory reasons for the absence of CL increases,

including that Barinaga did not earn “Outstanding” performance assessments and did not stand

out from her peers. (Dkt. No. 45 at 27 & 27 n.6); see Young, 11 F.Supp.2d at 930; Ricketts, 2005 WL

1924372, at *5. And Barinaga has not shown that those reasons are a pretext for sex

discrimination. She points to other employees who received CL promotions, (Dkt. No. 52 at 29)

(referencing Dkt. Nos. 50-4, 50-5), but does not show how those individuals were similarly

situated to her, see Laxton, 333 F.3d at 578. This failure is particularly significant given that several

other high-level male employees also did not receive CL promotions during the relevant period.

(Dkt. No. 45-2 at 4).

further explains that Hayes’s selection was based on his cross-functional experience, (Dkt.

No. 45-5 at 4), as well as other nondiscriminatory considerations regarding Barinaga’s

experience and assignments, (see Dkt. No. 45 at 25–26). Courts have recognized that

hiring a more qualified applicant is a legitimate, nondiscriminatory reason for not

promoting another candidate. See Caldwell, 520 F.App’x at 294; Sabzevari, 264 F.App’x at

395; Wagenfuhr, 2012 WL 2568143, at *3. Therefore, ExxonMobil has provided legitimate,

nondiscriminatory reasons for the 2020 and 2023 plant-manager decisions.

c. Pretext

As before, the burden shifts to Barinaga to show that those reasons are merely a

pretext for sex discrimination. See Saketkoo, 31 F.4th at 999. Barinaga’s pretext arguments

reprise the same contentions she made with respect to her race and national-origin

discrimination claims. See supra Section III(B)(1)(c).

Barinaga contends that ExxonMobil’s reasons for the 2020 and 2023 plant-manager

selections are a pretext for discrimination. (Dkt. No. 52 at 27–29). She argues that she

was just as qualified as—or more qualified than—the selected candidates, and points to

the timing of certain transfers, alleged inconsistencies in the selection process, and

broader claims of gender bias. (Id.).

These arguments fail for the same reasons as her prior claims. See supra Section

III(B)(1)(c). Barinaga offers no evidence that she was more qualified than Blokker or

Hayes, nor does she substantiate her assertion that ExxonMobil prioritized male

employees’ careers at the expense of female employees. (See Dkt. No. 52 at 27–29). Her

briefing largely lacks citations to any admissible evidence supporting these claims. (See

id. at 27–28). Absent other evidence, Barinaga offers nothing more than her subjective

belief that ExxonMobil’s reasons were pretextual, and her belief that she suffered

discrimination because of her sex is insufficient to survive summary judgment. See

Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985); LeMaire, 480 F.3d at 391 (“Simply

disputing the underlying facts of an employer’s decision is not sufficient to create an issue

of pretext.”).

And even if Barinaga had shown she was similarly qualified to the successful

candidates, “showing that two candidates are similarly qualified does not establish

pretext.” Dixon, 447 F.App’x at 641 (quoting Price, 283 F.3d at 723). Accordingly,

Barinaga’s pretext arguments do not raise a genuine issue for trial. Therefore, as with her

race-discrimination and national-origin claims, see supra Section III(B)(1)(c), Barinaga

failed to prove pretext as to her sex-discrimination claims. Her sex-discrimination claims

thus fail.

3. Retaliation Claims

Finally, Barinaga brings retaliation claims under Title VII and the Texas Labor

Code. (Dkt. No. 29 at 12). “[T]he law governing claims under the TCHRA and Title VII

is identical.” Shackelford, 190 F.3d at 403 n.2; Bramlett, 2023 WL 11667632, at *3 n.3

(“Courts analyze Title VII and parallel claims under the Texas Labor Code identically.”

‘Because [the Texas Labor Code] is intended to correlate with Title VII, the same analysis

is applied for each claim.’” (quoting Allen, 515 F.App’x at 297); Mott v. Schneider Elec. Sys.,

USA, Inc., No. 4:24-CV-03084, 2025 WL 1549461, at *2 (S.D. Tex. May 30, 2025) (“Courts

apply the same standards when analyzing claims under Title VII and Chapter 21 of the

Texas Labor Code.” (citing Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir.

2004))).

The Court addresses both retaliation claims under the Title VII framework because

the same standards apply to both. And because Barinaga does not offer direct evidence

of retaliation, the Court applies the McDonnell Douglas burden-shifting framework. See

Saketkoo, 31 F.4th at 999–1000 (first citing Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385

(5th Cir. 2003); and then citing Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d 702, 705 (5th

Cir. 2016)).

Beginning with her prima face case, Barinaga “must show [that] ‘(1) she engaged

in a protected activity; (2) she suffered an adverse employment action; and (3) a causal

connection exists between the protected activity and the adverse employment action.’”

Id. at 1000 (some internal quotations omitted) (quoting Brown v. Wal-Mart Stores E., L.P.,

969 F.3d 571, 577 (5th Cir. 2020)).

ExxonMobil argues that Barinaga cannot satisfy her prima facie burden on her

retaliation claims because she cannot show the third element: causation. (Dkt. No. 45 at

33). Generally, “to establish the causation prong of a retaliation claim, the employee

should demonstrate that the employer knew about the employee’s protected activity.”

Briceno-Belmontes v. Coastal Bend Coll., No. 2:20-CV-00114, 2022 WL 673854, at *6 (S.D. Tex.

Mar. 5, 2022) (quoting Manning, 332 F.3d at 883). “This is because ‘quite logically, if an

employer is unaware of an employee’s protected conduct at the time of the adverse

employment action, the employer plainly could not have retaliated against the employee

based on that conduct.’” Id. (quoting Wright v. Union Pac. R.R. Co., 990 F.3d 428, 434 (5th

Cir. 2021)).

Otherwise, “Title VII retaliation claims must be proved according to traditional

principles of but-for causation.” Brown, 969 F.3d at 577 (quoting Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013)). “[T]he but-

for standard does not apply at the prima facie case stage,” however. Id. (citing Garcia v.

Prof’l Cont. Servs., Inc., 938 F.3d 236, 242 (5th Cir. 2019)). “Instead, ‘[a]t the prima facie

case [stage], a plaintiff can meet his burden of causation simply by showing close enough

timing between his protected activity and his adverse employment action.’” Id. (quoting

Garcia, 938 F.3d at 243). But “[t]he protected act and the adverse employment action must

be very close in time to establish causation by timing alone.” Id. at 578 (quoting Porter v.

Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948–49 (5th Cir. 2015)). For

this type of causal connection, the Fifth Circuit has held a period of two-and-a-half

months, two months, and six-and-a-half weeks to be close enough timing. Id. (citing

cases). But “[t]he Fifth Circuit has indicated that a four-month gap, alone, is too long to

permit an inference of causation, even at the prima facie stage.” Briceno-Belmontes v.

Coastal Bend Coll., No. 2:20-CV-0014, 2022 WL 912785, at *8 (S.D. Tex. Mar. 29, 2022) (italics

omitted) (citing Alkhawaldeh, 851 F.3d at 428 n.23).

Barinaga cannot establish causation here. While Barinaga submitted her first

complaint on July 23, 2018, (Dkt. No. 45-2 at 5), it wasn’t until around two years later that

ExxonMobil selected Blokker for the plant-manager position, (Dkt. No. 45-8 at 3).

Likewise, Barinaga submitted her second complaint on November 20, 2020, (Dkt. No. 45-

2 at 6), and filed her first EEOC charge on April 1, 2021, (Dkt. No. 52-20). Yet, it wasn’t

until September 1, 2023—almost three years after Barinaga’s second HR complaint and

over two years after her first EEOC charge—that Hayes became the next Baytown

Chemical Plant Manager. (Dkt. No. 45-2 at 7).

And as to the CL promotions, the only timely CL actions (or inactions) would be

after November 5, 2022, for Barinaga’s Title VII claims and after March 5, 2023, for her

state-law claims. See supra Sections III(A)(1)(a), (2). So the next denial of a CL promotion

that would still be timely would have taken place in late 2022 or early 2023. (Dkt. No. 45-

12 at 3). But late 2022 or early 2023 is over a year after Barinaga filed her first EEOC

charge on April 1, 2021. (Dkt. No. 52-20).

Thus, for both the plant-manager decisions and the CL promotions, these time

gaps clearly fall outside the two-and-a-half-month, two-month, and six-and-a-half-week

periods that have been close enough for the Fifth Circuit. See Brown, 969 F.3d at 578. And

this amount of time even exceeds the four-month gap that “[t]he Fifth Circuit has

indicated . . . is too long to permit an inference of causation, even at the prima facie

stage.” Briceno-Belmontes, 2022 WL 912785, at *8 (citing Alkhawaldeh, 851 F.3d at 428 n.23).

Because Barinaga cannot even raise an inference of causation for her retaliation claims,

she cannot satisfy her prima face burden for those claims. Her retaliation claims therefore

fail.

Even if Barinaga were able to satisfy the prima facie burden for her retaliation

claims, they again would fail because ExxonMobil has offered legitimate,

nondiscriminatory reasons that Barinaga has not shown are pretextual. See Saketkoo, 31

F.4th at 1000. For the same reasons discussed above, see supra Sections III(B)(1)(b), (2)(b),

ExxonMobil’s proffered reasons for the 2020 plant-manager decision, 2023 plant-manager

decision, and the alleged lack of CL promotions are legitimate and nondiscriminatory.

And Barinaga’s pretext arguments for her retaliation claims — also the same for her

other claims, (see Dkt. No. 52 at 27-29) — similarly fail for the reasons discussed above, see

supra Sections III(B)(1)(b)-(c), (2)(b)-(c). Without sufficient evidence of pretext,

Barinaga’s retaliation claims do not survive summary judgment.

IV. CONCLUSION

For the reasons above, the Court GRANTS Defendant ExxonMobil’s Motion for

Summary Judgment, (Dkt. No. 45), and DENIES as moot Defendant ExxonMobil’s

Motion to Strike Plaintiff's Summary Judgment Evidence, (Dkt. No. 59). Barinaga’s

claims are therefore DISMISSED WITH PREJUDICE.

It is SO ORDERED.

Signed on September 30, 2025.

R J □

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

44