Gordon

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT November 24, 2026

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

Tremaine Gordon and §

Cynthia L. Covington §

Plaintiffs, §

Vv. Civil Action H-22-4109

Lowe’s Home Centers,

LLC, et al. §

Defendants. §

MEMORANDUM AND RECOMMENDATION

This case has been referred to the undersigned magistrate

judge pursuant to 28 U.S.C. § 636(b)(1), ECF No. 3. Pending before

the court are: Defendant Lowe’s Home Centers, LLC’s (Lowe’s)

Motion for Summary Judgment on Tremaine Gordon’s Claims,

ECF No. 108; Defendant Thomas Willitrout’s Motion for Summary

Judgment on Tremaine Gordon’s Claims, ECF No. 104;

Defendants’ Motion to Sever Plaintiffs’ Claims, ECF No. 105; and

Defendants’ Objections to Gordon’s Declaration, ECF No. 117.

The court recommends that Lowe’s and Wiilltrout’s summary

judgment motions, ECF Nos. 108 and 104, be GRANTED. Because

the court’s conclusions are not impacted by consideration of

Plaintiffs summary judgment evidence, Defendant’s objections are

DENIED as MOOT. The Motion to Sever is also DENIED as

MOOT.

i. Background

Plaintiff Tremaine Gordon filed suit against Lowe’s, Thomas

Willtrout, and Goldie Nickelson on November 27, 2022. ECE No. 1.

Gordon alleged many causes of action related to disability, race,

and gender discrimination and interference with leave under

various statutes. fd. On Motions for Summary Judgment, the court

previously considered each of Gordon’s claims. ECF No. 96. The

court issued a Memorandum and Recommendation (M&R)

recommending that Lowe’s and Willtrout’s Motions for Summary

Judgment be granted as to all of Gordon’s claims. Id. Gordon filed

objections to the M&R raising new arguments that were not

previously raised before the undersigned. ECF No. 98. Judge

Tipton adopted the portions of the M&R to which no objections

were made, ECF No. 100 at 2-3, Judge Tipton did not consider new

arguments or evidence raised for the first time in the objections

and ordered that “Defendants shall... refile any motions for

summary judgment to address the arguments and claims

addressed in Plaintiffs objections.” Id. at 8. Thus, Gordon’s only

remaining claims are those under the Families First Coronavirus

Response Act (FFCRA, Pub. L. No. 116-127 (2020)), and 42 U.S.C.

§ 1981. Id. at 3 (terminating without prejudice the summary

judgment motions as to Gordon’s FFCRA and § 1981 claims).

The court briefly restates the relevant background here.

Gordon began working for Lowe’s in 2000. Gordon’s First Decl.,

ECF No. 81-32 2. In 2020, Gordon was a Department Manager

for Install Services. Id. § 3. Goldie Nickelson was Gordon’s direct

supervisor, and Thomas “Trey” Willtrout was the Store Manager.

Id. 447, 9.

Gordon states in a declaration that Nickelson was

disrespectful to her, that he deliberately ignored her medical

concerns, and that he would scream at her in public. ECF No. 111-

1 {| 7. An employee told Lowe’s Associate Relations that Nickelson

acted “ugly in general” and that he was “rude for no reason,” ECF

No. 81-35 at 20-21. Another employee stated that Nickelson was

arrogant and ran the team like a dictatorship. Jd. at 24. That

employee stated that if anyone spoke up, they became Nickelson’s

target. Id.

Gordon states that Nickelson showed disdain for women and

people with disabilities. ECF No. 81-32 §| 7-8. Gordon observed

Nickelson treat Black women worse than he treated other

employees. ECF No. 111-1 {/{[ 5-6. Gordon states that she observed

Nickelson treat “Terrell Ringer, Cynthia Covington, Tonya, and

Tasha worse than he treated other employees who were not Black

women.” fd. § 6. Gordon explains that Nickelson targeted Black

women for mistreatment, “bossed around” Black women, and

seemingly “did not like for Black women to have a voice or

authority.” Id. 4 8.

In March and April 2020, during the COVID-19 pandemic,

Gordon did not feel comfortable in a cashier position at Lowe’s

because she was at high risk for serious illness based on her high

blood pressure and diabetes. Id. {4] 138-14.

On March 24, 2020, Nickelson asked Gordon to work the

front register, and Gordon “told him [she’d] rather not given [she]

was practicing social distancing due to the pandemic.” ECF No. 81-

32 9 16. Nickelson insisted, and Gordon asked how long she would

need to work the register. Id. Nickelson told Gordon to stay there

“until he said so.” Id.

Gordon spoke with Twila Bradford in Lowe’s Human

Resources about the incident with Nickelson. ECF No. 81-32 4 17.

Gordon “specifically told Ms. Bradford that [she] believed Mr.

Nickelson was treating [her] worse because [she] was a black

woman.” ECF No. 111-1 4 10. Bradford informed the Store

Manager, Willtrout, about the incident, and Willtrout told Gordon

to take her lunch break instead of working the register, ECF

No. 81-32 17.

Nickelson later confronted Gordon about her complaint. ECF

No. 81-82 § 18. Nickelson showed Gordon that a complaint had

been made against him and told Gordon that he knew she had

“called in” against him. Id.

Soon after the March incident, Gordon spoke with the

Lowe’s District Manager about her health concerns, and he

suggested she talk with Willtrout about taking medical leave. ECF

No. 81-32 § 19. Gordon testified that she tried to talk to Willtrout

about taking leave on multiple occasions over a few days. ECF

No. 81-88 at 160:3-24. Willtrout responded multiple times by

saying, “Okay. I’m going to talk to you.” Jd. Instead, Willtrout

never followed up with Gordon and “fiJt was kind of like he was

avoiding [Gordon] for a long period of time[.|” fd, at 160:21—22.

According to Gordon, Willtrout intentionally avoided her “so

that he would not have to hear and handle [her] accommodations

request.” ECF No. 81-32 4 20. Gordon stated that she could never

submit an emergency paid leave request to Lowe’s because Lowe’s

required Gordon to obtain Willtrout’s approval prior to submitting

the online form. ECF No. 81-38 at 162:21-25. Gordon also stated

that Willtrout told staffin a morning meeting that “If you're trying

to take a leave, you’re not going to get approved because it has to

go through me. You're not going to get paid, if you are trying to

take a leave.” Jd. at 166:18-22.

The court notes that Lowe’s Emergency Paid Leave

Procedure, which Gordon submitted to the court, stated that if an

employee was unable to access the online HR portal to request

emergency paid leave, they could call the Associate Care Center to

request emergency paid leave. ECF No. 1038-5 at 6.

On April 2, 2020, a different manager asked Gordon to work

the cash registers. ECF No. 81-32 22. Gordon refused. Id. After

this refusal, the District Manager, who was in the store that day,

recommended that Gordon be terminated for insubordination.

ECF No. 81-31 at 210:21-212:6. According to the District Manager,

Gordon refused to work the register and, despite management's

attempt to “get everyone we can to cashier|,|” Gordon stated that

she “was not going to the front[.]” ECF No. 81-35 at 25.

Willtrout supported the recommendation that Gordon be

terminated. ECF No. 81-31 at 210:21-212:6. Nickelson wrote the

recommendation and sent it to Associate Relations, and Courtney

Fuller in Associate Relations approved the termination. Jd, Gordon

was terminated on April 7, 2020. ECF No, 81-32 { 23.

Lowe’s and Willtrout now move for summary judgment on

the remaining claims against them. Lowe’s Mot. Summ. J., ECF

No. 103; Willtrout’s Mot. Summ. J., ECF No. 104. Gordon filed

three documents in response to Lowe’s and Willtrout’s motions.

ECF Nos. 111, 113, and 114. The documents appear to be identical.

For clarity, the court refers only to the first-filed response, ECF

No. 111.

2. Evidentiary Objections

On summary judgment, a party may object to exhibits that

“cannot be presented in a form that would be admissible in

evidence.” Fed. R. Civ. P. 56(c)(2); LSR Consulting, LLC v. Wells

Fargo Bank, N.A., 885 F.3d 530, 534 (5th Cir. 2016) (quoting Fed.

R. Civ. P. 56(c)(2)). Declarations are competent summary

judgment evidence if they are “made on personal knowledge, set

out facts that would be admissible in evidence, and show that the

_.. declarant is competent to testify on the matters stated.” Fed.

R. Civ. P. 56(c)(4).

Lowe's and Willtrout object to Gordon’s Declarations. ECF

No. 117. Even considering all of Gordon’s evidence, the court

recommends that Lowe’s and Willtrout’s Motions for Summary

Judgment be granted. Accordingly, Lowe’s objections are DENIED

as MOOT.

3. Summary Judgment Standard

“Summary judgment is appropriate only if, viewing the

evidence in the light most favorable to the nonmovant, ‘the movant

shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Davenport

re

v. Edward D. Jones & Co., 891 F.8d 162, 167 (th Cir. 2018)

(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact

exists if a rational jury could not find for the nonmoving party

based on the complete record. McMichael v. Transocean Offshore

Deepwater Drilling, Inc., 934 F.3d 447, 455 (6th Cir. 2019) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).

Initially, “[t]he movant bears the burden of identifying those

portions of the record it believes demonstrate the absence of a

genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401

F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322-25 (1986)). If this burden is met, the nonmovant

must then “go beyond the pleadings,” using competent summary

judgment evidence to cite “specific facts” showing a genuine issue

for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357

(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d

536, 540 (5th Cir. 2005)).

The court reviews all evidence and reasonable inferences in

the light most favorable to the nonmoving party. See Tolan v.

Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &

Co,, 398 U.S. 144, 157 (1970)). The court, however, does not have

a duty “to search the record for material fact issues.” RSA Corp. v.

Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) “Rather, the party

opposing the summary judgment is required to identify specific

evidence in the record and to articulate precisely how this evidence

supports [the] claim.”), Although the court needs to consider only

the cited evidence, it is allowed to consider other materials in the

summary judgment record. Fed. R. Civ. P. 56(c)(8).

“TClonclusory allegations, unsubstantiated assertions, or

‘only a scintilla of evidence” are not enough to defeat a properly

supported motion for summary judgment. Turner v. Baylor

Richardson Med. Cir., 476 F.3d 387, 348 (5th Civ. 2007) (quoting

Little v. Liquid Air Corp., 387 F.8d 1069, 1075 (th Cir. 1994)),

“IT|here must be evidence on which the jury could reasonably find

for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986),

4, Summary Judgment Analysis

A, FFCRA

The Emergency Paid Sick Leave Act (EPSLA, Division E of

the FFCRA), Pub. L. 116-127, 184 Stat 195 (2020), § 5101, et seq.,

is part of the FFCRA. The EPSLA requires employers to provide

employees with paid sick time in certain circumstances related to

COVID-19. FFCRA § 5102(a). An employer who violates § 5102 is

considered to have failed to pay minimum wages in violation of

Section 6 of the Fair Labor Standards Act (FLSA, 29 U.S.C. § 206)

and is subject to the penalties in 29 U.S.C. §§ 216 and 217, FFCRA

§ 5105.

The EPSLA also prohibits employers from discharging,

disciplining, or otherwise discriminating against an employee who

takes leave in accordance with the EPSLA and has filed a

complaint related to the EPSLA. FFCRA § 5104. An employer who

willfully violates § 5104 is considered in violation of the FLSA,

29 U.S.C. § 215(a)(3), and is subject to the penalties in 29 U.S.C.

§§ 216 and 217.

Lowe’s and Willtrout argue that Gordon’s claims under the

FFCRA are time-barred.! ECF No. 108 at 5-8; ECF No. 104 at 4—

7. Courts rely on the FLSA to interpret the EPSLA and its

remedies. Wilson v. Marshall Shredding LLC, 616 F. Supp. 3d 6383,

640 (W.D. Tex. 2022), aff'd, No. 22-50709, 2023 WL 3151078 (Sth

Cir. Apr. 28, 2023). The EPSLA does not include its own statute of

1 Defendants mistakenly refer to the Family Medical Leave Act, which is relevant to

a separate part of the FFCRA, but not directly relevant to the EPSLA. See, e.g., HCI’ No. 108

at 5-6.

limitations, but at least one court has applied the statute of

limitations under the FLSA to claims under the EPSLA. Cruz v.

Antezana & Antezana, LLC, No, CV 28-8409, 2024 WL 3570372 (D.

Md. July 25, 2024) (holding that the EPSLA incorporates the

statute of limitations under the FLSA); see also Stacey v. ValCap

Group LLC, No. 3:21-CV-01831, 2021 WL 6135486, at *2 (N.D.

Tex. Dec. 27, 2021) (“the EPSLA incorporates the FLSA’s private

right of action, such that violations of the EPSLA are considered

to be violations of the FLSA”).

The FLSA imposes a two-year statute of imitations for non-

willful violations of the FLSA. 29 U.S.C. § 255(a), “If a plaintiff can

demonstrate that a defendant’s violation of the FLSA was willful,

then the limitations period is extended from two to three years.”

Dacar v. Saybolt, L.P., 914 F.8d 917, 926 (5th Cir. 2018), as

amended on denial of reh’g and reh’g en banc (Feb. 1, 2019); 29

U.S.C. § 255(a). Gordon brought her claims after the two-year, but

before the three-year limitation period expired. ECF No. 81-32

{ 23 (stating that Gordon was terminated April 7, 2020); Original

Compl., ECF No. 1 (filed November 27, 2022, approximately two

years and seven months after Gordon’s termination). Thus,

Gordon’s claims are barred unless they meet the willful violation

standard.

A violation of the FLSA is willful when the employer “either

knew or showed reckless disregard for the matter of whether its

conduct was prohibited.” Dacar, 914 F.8d at 926 (citing

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 184 (1988)).

Evidence that a defendant was merely negligent regarding FFCRA

requirements is insufficient to show willfulness. Dacar, 914 F.3d

at 926; Mohammadi v. Nwabuisi, 605 F. App’x 329, 332 (5th Cir.

2015) (“Neither knowledge of the [statute’s] potential applicability

nor negligent or unreasonable conduct necessarily establishes

willfulness.”).

Gordon argues that her FFCRA claim is not barred because

Defendants’ actions were a willful violation of the FFCRA. ECF

No. 111 at 15-17. The court previously found that Willtrout’s

actions did not constitute a willful violation of the Family and

Medical Leave Act. ECF No. 96 at 10-12. Gordon argues that the

willfulness analysis under the FLSA is different from the

willfulness analysis that the court already applied under the

FMLA because, to obtain HPSLA leave, employees were required

to obtain approval from their manager. ECF No. 111 at 14-15.

Gordon argues that an employee in Gordon’s circumstances could

not submit a request online without prior manager approval.? Id.

Taking as true Gordon’s argument that Willtrout’s approval

was necessary to obtain EPSLA leave, Gordon has not met her

burden to show a willful violation of the FFCRA. Gordon testified

that she tried to talk te Willtrout about taking leave on multiple

occasions over a few days. ECF No. 81-88 at 160:3-24. Willtrout

responded multiple times by saying, “Okay. ’m going to talk to

you.” Id, Willtrout never followed up with Gordon and “[ijt was

kind of like he was avoiding [Gordon] for a long period of time[.]”

Td. at 160:21-22; ECF No. 81-32 § 20. Gordon stated that she could

never actually submit an emergency paid leave request to Lowe's

because Willtrout would not talk with her about it, which Gordon

asserts Lowe’s required prior to submitting the form. /d. at 162:21—

25.

Viewed in the light most favorable to Gordon, the evidence

does not demonstrate that Willtrout willfully violated the HPSLA.

At most, it appears that Willtrout ignored Gordon for a few days

2 The evidence does not support Gordon’s argument. Lowe’s imergency Paid Leave

Procedure stated that, if an employee was unable to access the online HR portal to request

emergency paid leave, they could call the Associate Care Center to request emergency paid

leave. ECF No. 103-5 at 6. No party addressed this alternative in the briefing before the court.

Thus, the court does not rely on this evidence to reach its conclusion.

and delayed attending to her request. There is no evidence that

Willtrout actually refused Gordon’s request. Although Willtrout’s

actions might have been negligent or irresponsible, there is

insufficient evidence to support a finding that he recklessly or

knowingly violated the EPSLA. Again, negligence is insufficient to

satisfy Gordon’s burden of proof at this stage. Gordon’s subjective

belief that Willtrout’s intent was to unlawfully deny her leave is

insufficient. Lowe’s and Willtrout’s motions should be granted as

to Gordon’s FFCRA claims.

B, Section 1981

Gordon alleges claims of race discrimination, retaliation,

and harassment and hostile work environment in violation of

42 U.S.C. § 1981, ECF No. 28 at 15. Gordon states that she does

not oppose Willtrout’s motion as to her § 1981 claims. ECF No. 111

at 7 n.1. Thus, as to those claims, Willtrout’s motion should be

granted.

The court turns to Gordon’s § 1981 claims as to Lowe’s. The

analysis of Gordon’s alleged claims under § 1981 is the same as the

analysis for those claims under Title VII of the Civil Rights Act of

1964. Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399 (6th Cir.

2021).

When based on circumstantial evidence, claims for

discrimination and retaliation are analyzed under the burden-

shifting approach outlined in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Saketkoo v. Adm’rs. of Tulane Educ. Fund,

31 F.4th 990, 997, 1000 (5th Cir, 2022) (applying the burden-

shifting approach to retaliation and discrimination claims).

The burden-shifting approach places the initial burden on

the plaintiff to establish a prima facie case of discrimination or

retaliation. Saketkoo, 31 F.4th at 999. If the plaintiff meets the

initial burden, the defendant must respond by providing a

legitimate, nondiscriminatory reason for its action. Jd. If the

1n

defendant meets its burden, the employee must produce evidence

showing that the proffered reason is pretextual. fd.

i. Retaliation

“A plaintiffs ultimate burden in the retaliation context 1s to

prove that but-for the employer’s improper retaliatory motive, the

allegedly retaliatory employment action would not have occurred.”

Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 F.

App’x 484, 488 (5th Cir. 2013). A plaintiff can discharge this

burden with direct or circumstantial evidence. Manaway v. Med.

Ctr. of Se. Tex., 480 F. App’x 317, 324 (5th Cir. 2011).

Gordon does not provide any direct evidence of retaliation.

Thus, the court applies the McDonnell Douglas framework. See

Johnson, 7 F.4th at 407. To establish her prima facie case of

retaliation, Gordon must show that: (1) she engaged in a protected

activity, (2) she suffered an adverse employment action, and (3)

there is a causal connection between the two. Jd. at 407-08;

Saketkoo, 31 F.4th at 998-1000.

Lowe’s argues that Gordon cannot show that she engaged in

a protected activity. ECF No. 103 at 18-19; ECF No. 104 at 17-18.

Engaging in a protected activity includes opposing any practice

made unlawful by § 1981, as well as making a charge, testifying,

assisting, or participating in an investigation, proceeding, or

hearing under § 1981. Anderson v. La. Dep’t of Transp, & Dev., 836

F. App’x 304, 807 (5th Cir. 2020). Stating a belief that

discrimination has occurred is almost always opposition. Wallace

v. Performance Contractors, Inc., 57 F.4th 209, 224 (5th Cir. 2023).

Gordon states in her Second Declaration that she

“specifically told” HR that she believed Nickelson treated her

worse because she was a Black woman. ECF No. 111-1 { 10.

Gordon also stated that she “told [HR] that Mr. Nickelson did not

treat the other associates the same way that he treated the black

17

women|,]” Jd. { 11. Taking Gordon’s statement as true,? Gordon

engaged in a protected activity. Lowe’s did not argue that Gordon

cannot present her prima facie case of retaliation as to any other

element,

Thus, the burden shifts to Lowe’s to provide a legitimate,

nonretaliatory reason for Gordon’s termination. Lowe’s presents

evidence that Gordon was terminated because she was

insubordinate when she refused to work at the front cash registers

on multiple occasions. ECF No. 103-7 (Lowe’s “Termination

Conduct” form stating that Gordon was insubordinate and refused

to work at the registers). Insubordination is a_ legitimate,

nonretaliatory reason for termination. Goudeau v. Natl Oilwell

Varco, L.P., 793 F.3d 470, 476 (5th Cir. 2015).

Thus, the burden shifts back to Gordon to show that Lowe’s

proffered reason for her termination is a pretext for retaliation. In

the context of a retaliation claim, pretext turns on whether the

protected conduct was the “but for’ cause of the adverse

employment decision.” Owens v. Circassia Pharm., Inc., 33 F.4th

814, 835 (5th Cir. 2022) (citing Long v. Hastfield Coll., 88 F.3d 300,

305 n.4 (5th Cir. 1996)). “[E]ven if a plaintiff's protected conduct is

a substantial element in a defendant’s [adverse employment

action], no liability for unlawful retaliation arises if the employee

would have [undergone that action] even in the absence of the

protected conduct.” Long, 88 F.3d at 305 n.4 (citation omitted). A

plaintiff may meet their burden to show pretext by combining

suspicious timing with other significant evidence of pretext.

3 Lowe's objects to this portion of Gordon’s Second Declaration because Gordon never

mentioned complaining about mistreatment based on race in her deposition, First

Declaration, or in any contemporaneous reports. ECF No. 117 at 6-7, The court agrees that

Gordon’s insertion of this issue into her Second Declaration is concerning. But, as stated

above, the court need not reach Lowe’s objection because even considering the Second

Declaration in full, Lowe’s motion should be granted. Thus, the objection is moot.

13

Owens, 38 F.4th at 835. The court must consider whether a

plaintiff's evidence is sufficient for a reasonable jury to find but-for

causation. Brown uv. Wal-Mart Stores E., [.P., 969 F.3d 571, 578

(5th Cir. 2020), as revised (Aug. 14, 2020).

Gordon argues that Lowe’s reason for her termination is

pretext for retaliation. ECF No. 111 at 25-29. In support, Gordon

argues that (1) her reluctance to work the cash register was

justified, (2) Nickelson engaged in threatening and intimidating

conduct demonstrating that he intended to retaliate against

Gordon for her complaint, (3) Lowe’s did not follow its progressive

discipline policy, and (4) Gordon’s termination occurred abruptly

after nearly twenty years of positive performance and within

weeks of her protected activity. Id.

Taken together, Gordon’s evidence does not raise a material

fact dispute as to whether her protected conduct was a but-for

cause of her termination. There is no evidence that would support

a rational inference that Gordon’s termination was based on

retaliation.

Gordon argues that “[a] reasonable juror could determine

that Gordon’s concerns about working the register were justified.”

ECF No. 111 at 26. Even if Gordon’s reasons for declining to work

at the register were “justified,” she nonetheless told multiple

managers that she would not perform the work they asked of her.

Gordon’s belief as to why she refused to work the registers does not

affect whether Lowe’s reason for terminating her lacked substance

or credibility.

Gordon argues that Nickelson acted in a manner that was

probative of his retaliatory intent. ECF No. 111 at 27. Gordon

states in her declaration that, after she reported Nickelson,

Nickelson confronted Gordon about her complaint, ECF No. 81-32

4 18. Nickelson showed Gordon that a complaint had been made

against him and told Gordon that he knew she had “called in”

, 13

against him, fd, The evidence does not show that Nickelson’s

knowledge of Gordon’s complaint played any role in Gordon’s

termination. Willtrout testified that the District Manager, Danny

Pavelka, recommended that Gordon be terminated after she stated

multiple times that she would not work the registers. ECF No. 81-

31 at 210:21-212:6. Willtrout supported the recommendation. Jd.

Then, Nickelson wrote the recommendation and sent it to

Associate Relations, and Courtney Fuller in Associate Relations

approved the termination. Id.

Gordon does not argue or identify any evidence showing that

Pavelka or Fuller knew of Gordon’s protected activity prior to her

termination. There is no evidence that Nickelson’s knowledge of

Gordon’s protected activity affected Pavelka or Fuller’s decisions.

Gordon does present evidence of which relevant decisionmakers

knew of her protected activity when she was terminated. If an

employer is unaware of an employee’s protected conduct at the

time of the adverse action, the employer could not have retaliated

against the employee based on that conduct. Cephus v. Tex. Health

& Human Services Comm’n, 146 F. Supp. 3d 818, 834-85 (8.D.

Tex, 2015). “[E]vidence of generalized discussions between a

decisionmaker and someone with knowledge of the plaintiffs

protected activity creates only a speculative inference regarding

the decisionmaker’s awareness.” Equal Employment Opportunity

Comm’n v. EmCare, Inc., 857 F.3d 678, 683 (5th Cir. 2017).

Gordon’s argument that Lowe’s failure to follow its

progressive discipline policy is evidence of pretext is not

persuasive. “[W]hen an employer opts to have a disciplinary

system that involves warnings, failure to follow that system may

give rise to inferences of pretext.” Goudeau v. Natl Orlwell Varco,

L.P., 798 F.3d 470, 477 (6th Cir. 2015). However, failing to follow

discretionary discipline policies does not provide relevant

information about pretext. Salazar v. Lubbock Cnty. Hosp. Dist.,

14.

982 F.3d 386, 391 (5th Cir, 2020) (stating that “digression from the

terms of its [discretionary| policy is therefore of little value to our

analysis”); see also Taylor v. Peerless Indus. Inc., 8322 F. App’x 355,

367 (6th Cir. 2009).

Lowe’s Corrective Action Procedure provides for the use of

discretion. It states that “Progressive disciplinary action at Lowe’s

is normally administered in four steps: Initial, Written, Final, and

Termination. A step in the process may be skipped depending on

the nature and severity of the situation.” ECF No. 81-80 at 1. It

goes on to state that “[t]he matrix below should be used as a guide

to determine the appropriate level of discipline. Corrective action

may be administered at any level depending on the circumstances,

nature, and severity of the situation.” Id. at 2.

The Fifth Circuit has found that similar language provides

for the use of discretion and stated that “digression from the terms

of [the] policy is therefore of little value to our analysis.” Salazar,

982 F.3d at 391 (finding that a progressive discipline policy was

discretionary where it stated that levels of discipline were

recommendations and allowed management to impose the level of

discipline deemed appropriate under specific sets of

circumstances).

Willtrout testified that Gordon’s termination occurred

without prior corrective action because of how she refused to work

at the registers. ECF No. 81-81 at 213:10-24. According to

Willtrout, if a manager had asked Gordon to go work a register and

Gordon failed to do so, “that would be different.” Jd. Instead,

Willtrout testified that Gordon “blankly just told managers that

she wasn’t doing it,” which is why her discipline “turned into

immediate termination.” Jd. Gordon’s flat refusal to complete a

task on multiple occasions led the District Manager to recommend

that Gordon be terminated. ECF No. 81-31 at 211:20-212.

15

Here, as in Salazar, Lowe’s failure to implement the first

three steps of disciplinary action prior to Gordon’s termination

does not demonstrate pretext. The evidence shows that Gordon

refused to work at the cash registers when she was asked to. ECF

No. 81-32 { 22. Lowe’s termination was within its business

discretion.

Gordon’s “termination in context” argument is insufficient to

raise a fact issue as to pretext. Gordon argues that her long

“history of positive performance was erased” when she engaged in

a protected activity. However, “[t]Jemporal proximity combined

with positive performance reviews prior to the protected activity is

insufficient [to survive a motion for summary judgment].” Brown,

969 F.3d at 581. In context, Gordon had an issue with working the

registers, which led to her making a complaint about Nickelson’s

racial bias. She then refused again to work the registers, and the

District Manager had her terminated. There is no connection at all

between her complaint and her termination.

The evidence, viewed together and in the light most

favorable to Gordon, would not allow a reasonable jury to find that

but-for Gordon’s protected activity, she would not have been

terminated. Accordingly, Lowe’s motion as to Gordon’s retaliation

claim should be granted.

ii. Discrimination

Gordon does not present any direct evidence of

discrimination based on her race. Thus, the court applies the

McDonnell Douglas framework. See Ernst v. Methodist Hosp. Sys.,

1 F.4th 383, 389 (5th Cir. 2021).

To establish a prima facie case of race discrimination with

circumstantial evidence, Gordon must show that she (1) is a

member of a protected group, (2) was qualified for her position, (8)

was subject to an adverse employment action, and (4) was replaced

by someone outside her protected group or was treated less

14a

favorably than other similarly situated employees outside her

protected group. Ernst, 1 F.4th at 339.

Lowe’s argues that “to succeed on a § 1981 discrimination

claim, intentional discrimination must be demonstrated.” KCF

No, 108 at 18-14. It is not clear which elements of Gordon’s prima

facie case Lowe’s takes issue with. Thus, assuming that Gordon

met her burden to establish her prima facie case, the burden shifts

to Lowe’s to present a legitimate, nondiscriminatory reason for

Gordon’s termination.4

As the court already found, Lowe’s presented evidence that

Gordon was terminated due to insubordination, which is a

legitimate, nondiscriminatory reason for Gordon’s termination.

Goudeau v, Natl Oilwell Varco, L.P., 793 F.3d 470, 476 (Sth Cir.

2015); see ECF No. 108-7 (Lowe’s “Termination Conduct” form).

Thus, the burden shifts back to Gordon to present evidence

sufficient to establish a genuine issue of material fact about

whether Lowe’s asserted reason for termination is pretext. Owens,

38 F 4th at 826. The evidence must allow fair-minded factfinders

to reach different conclusions about whether Lowe’s proffered

reason was, in fact, the reason for Gordon’s termination. Id. A

plaintiff can meet her burden to show pretext with circumstantial

evidence, including evidence of disparate treatment or evidence

tending to show that the employer’s explanation is unworthy of

credence. /d. But the ultimate determination is whether, viewing

all of the evidence in a light most favorable to the plaintiff, a

reasonable factfinder could infer discrimination. Jd. (citing

Crawford v. Formosa Plastics Corp., La., 234 F.8d 899, 902 th

Cir. 2000)).

4 The parties de not argue that Gordon was subject to any adverse employment action

other than her termination.

17

In her pretext arguments as to discrimination, Gordon

incorporates by reference her pretext arguments as to retaliation.

The entirety of Gordon’s pretext argument as to discrimination is

as follows:

For the same reasons discussed in the context of

Gordon’s retaliation claim above, there are also

disputes of fact concerning ultimate causation in the

context of Gordon’s disparate treatment claim,

including whether Lowe’s explanation is pretextual,

which a jury must resolve.

ECF No. 111 at 31. The court has already analyzed Gordon’s

pretext arguments as to retaliation and found that Gordon did not

meet her burden to establish a fact question. The same is true here.

The court will not duplicate the same analysis here.

For a discrimination claim, the ultimate determination is

whether a reasonable factfinder could infer discrimination. The

evidence is insufficient to create a fact question about whether

Lowe’s reason for terminating Gordon was pretext. No reasonable

factfinder could infer that Gordon’s termination was based on

discrimination. Thus, Lowe’s motion should be granted as to

Gordon’s discrimination claim.

iii. Hostile Work Environment

To establish the prima facie case for a hostile work

environment, Gordon must show that she (1) is a member of a

protected group; (2) suffered unwelcome harassment; (3) the

harassment was based on her membership in the protected group;

(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.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (th Cir.

2012).

Lowe’s argues that Gordon cannot establish her prima facie

case of a hostile work environment. In its motion and reply, Lowe’s

18

does not clarify which elements of the hostile work environment

claim are at issue. ECF No. 118 at 7-10. In response to Lowe’s

motion, Gordon argues that “[t]he only element of Gordon’s claim

on which Lowe’s conceivably moved is the based on race element.”

HGF No. 111 at 29. The court agrees, Lowe’s cites generally to the

law regarding a hostile work environment, but it appears that

Lowe’s only takes issue with the third element—that harassment

was based on Gordon’s race. See ECF No. 108 at 12-14.

Gordon, for her part, does not clearly identify which acts she

contends constitute harassment. Neither party addresses the

issue. It is very difficult for the court to analyze whether

harassment was based on race without Plaintiff first identifying

what harassment she endured. The court understands that

Gordon described the harassment, at least in part, as follows:

[Nickelson] would talk down or be disrespectful to me.

He would get mad at me. He would make me get him

his lunch or try to get me to do his assignments, and if

I didn’t do them, he would get mad and punish me. He

deliberately ignored my medical concerns. He would

scream at me in public. He would tell me: “you do as I

say so,”

HCF No, 111-1 { 7. The court is skeptical that this type of conduct

constitutes harassment sufficient to create a hostile work

environment. It also does not appear that any harassment affected

a term, condition, or privilege of Gordon’s employment.

5 For harassment to affect a term, condition, or privilege of employment, it must be

“sufficiently severe or pervasive” and create an abusive working environment. Gibson v.

Verizon Services Org., Inc., 498 F. App’x 891, 894 (6th Cir, 2012). This is an objective

standard, and it requires that a reasonable person would find the environment hostile or

abusive. Harris v. Forklift Sys. Inc, 510 U.S. 17, 21 4998). “[Slimple teasing, offhand

comments, and isolated incidents (unless extremely serious)’ are not enough to alter the

terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)

(citation and internal quotation marks omitted).

10

Assuming, without deciding, that the identified conduct

rises to the level of harassment, the court turns to whether Gordon □

has presented evidence that the harassment she endured was

based on her race.

To survive Lowe’s motion for summary judgment, Gordon

must show that her harassment was based on race. Hernandez,

670 F.3d at 661. The summary judgment evidence must

“reasonably support an inference that [plaintiff] was subjected to

harassment based on [her] membership in a protected group.”

Chen v. Ochsner Clinic Found., 680 F. App’x 218, 224-25 (5th Cir.

2015). Harassment motivated by something other than a plaintiffs

race lies beyond the scope of § 1981. See Stingley v. Watson Quality

Ford, Jackson, MS, 836 F. App’x 286, 289 (5th Cir. 2020). “Poor

treatment without more is not sufficient to show harassment based

on race, even if [the plaintiff] believes race to be the motivating

factor for the poor treatment.” HKaton-Stephens v. Grapevine

Colleyville Indep. Sch. Dist., 715 F, App’x 351, 356 (6th Cir. 2017).

The basis of harassment may be established through concrete

examples of racial discrimination or animus. Hamsey v.

Henderson, 286 F.8d 264, 269 (5th Cir. 2002); see also Melvin v.

Barr Roofing Co., 806 F. App’x 301 (5th Cir. 2020) (racial slurs

are certainly based on race”). Facts may also allow a reasonable

inference that plaintiff was harassed because of their race based

on the context of the harassment. E.E.O.C, v. WC&M Enterprises,

Inc., 496 F.3d 398, 898-99 (5th Cir. 2007).

Gordon does not connect her harassment to her race.

Gordon’s subjective belief that the harassment was based on her

race is not sufficient to defeat a motion for summary judgment. It

is not enough to establish that Gordon is a member of a protected

group and that she has been harassed. Stingley, 836 F. App’x

at 288-89 (citing Byrnes v. City of Hatttesburg, No. 15-CV-19, 2016

WL 1090613, at *2 (S.D. Miss. Mar. 18, 2016), aff'd, 662 F. App’x

on

288 (5th Cir. 2016)). Gordon must show that she was harassed

because of her membership in a protected class. Id. (emphasis in

original). The incidents Gordon alleges have no connection to her

race. See Chen, 6380 F. App’x at 224-25. Aside from very general

assertions, Gordon does not demonstrate how the context of her

harassment shows that her harassment was based on race.

On March 24, the day that Nickelson told Gordon to work

the registers, Gordon reported to Associate Relations that

Nickelson acted in an unprofessional manner and that he would

get upset and yell at associates. ECF No. 81-85 at 2. The report

does not mention race.

In May 2020, Associate Relations interviewed witnesses

about Gordon’s complaint and termination. ECF No 81-35 at 20—

21. One witness stated that Nickelson acted “ugly in general’ and

that he was “rude for no reason.” Jd. Another witness stated that

Nickelson was arrogant and ran the team like a dictatorship. Jd.

at 24. That witness stated that if anyone spoke up, they became a

target. Id. The witnesses did not tie the mistreatment to race.

Gordon stated in her first declaration that Nickelson showed

disdain for women and people with disabilities. ECF No. 81-32

q{ 7-8. She stated “I believe | was unlawfully discriminated

against based on my race, gender and disability status.” Id. | 25.

Gordon testified in her deposition that she could not recall

anyone at Lowe’s ever making any negative remarks regarding her

race. ECF No. 81-38 at 177:6-10. Gordon also stated in her

deposition that Nickelson “targeted a lot of females, Black

females|.]” Id. at 172:3-10.

Gordon states in her second declaration that she observed

Nickelson treat Black women worse than he treated other

employees. ECF No. 111-1 {[{] 5-6. Gordon explains that Nickelson

targeted Black women for mistreatment, “bossed around” Black

94

women, and seemingly “did not like for Black women to have a

voice or authority.” Jd. { 8.

The evidence falls short of creating a fact issue as to whether

Gordon’s harassment was based on her race, The Fifth Circuit has

affirmed summary judgment on a hostile work environment claim

where Plaintiffs testified that Black employees were treated

differently than non-Black employees and that managers were

manipulative, condescending, and would bully Black employees.

Yarbrough v. SlashSupport, Inc., 152 F.4th 658, 665 (5th Cir.

2025). The court found that “the only links to race were conclusory

assertions that [Defendant] singled out black employees for

enforcement.” Id. Thus, the Fifth Circuit held that Plaintiffs had

offered no competent summary judgment evidence that any

harassment was based on race. Id.

The Fifth Circuit has also held that summary judgment is

proper where “the incidents alleged by [Plaintiff] had no clear

connection to |] race” and did not “reasonably support an inference

that [Plaintiff] was subjected to harassment based on |]

membership in a protected group.” Chen v. Ochsner Clinic Found.,

630 F. App’x 218, 224-25 (th Cir. 2015).

The general harassment that Gordon identifies is in no way

tied to her race aside from Gordon’s subjective belief that her race

motivated Nickelson. Gordon’s testimony is that Nickelson treated

her and other Black women worse than other employees. This

general statement, however, does not create a fact issue as to

Gordon’s harassment. It appears that Nickelson was rude and

unprofessional to many employees and may have harassed many

of them for various reasons. Gordon does not provide any concrete

examples of Nickelson’s racial discrimination or animus. She does

not provide context that would allow a reasonable inference that

she was harassed because of her race. Gordon’s belief that her race

was the motivating factor for her poor treatment does not create a

fact question as to whether her harassment was based on race,

Eaton-Stephens, 715 F. App’x at 356.

The evidence supports a finding that Nickelson may have

harassed several Lowe’s employees. However, “[hlostile work

environment claims are not intended to function as a ‘general

civility code.” Allen v. Our Lady of the Lake Hosp., Inc., No. 22-

30546, 20238 WL 3267840, at *4 (5th Cir. May 5, 2023). Gordon has

not presented evidence that would allow a reasonable inference

that her harassment was based on her race. Because the evidence

does not raise genuine fact issue as to Gordon’s hostile work

environment claim, Lowe’s motion should be granted.

5. Motion to Sever

Lowe’s and Willtrout filed a motion asking the court to sever

Gordon’s claims from her co-plaintiffs claims. Because the court

recommends that Lowe’s and Willtrout’s motions be granted, the

Motion to Sever is DENIED as MOOT without prejudice.

6. Conclusion

The summary judgment record does not raise a genuine

issue of material fact as to any of Gordon’s remaining claims. The

court recommends that Lowe’s and Willtrout’s summary judgment

motions, ECF Nos. 108 and 104, be GRANTED. Because the

court’s conclusions are not impacted by consideration of Plaintiffs

summary judgment evidence, Defendant’s objections are DENIED

as MOOT. The Motion to Sever is also DENIED as MOOT.

99

The parties have fourteen days from service of this

Memorandum and Recommendation to file written objections. 28

ULS.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file

objections will preclude appellate review of factual findings or legal

conclusions, except for plain error. See Thomas v. Arn, 474 U.S.

140, 147-49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

Signed at Houston, Texas on November 24, 2025.

Peter Bray//

United States Magistrate Judge

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