# Gordon

> District Court, S.D. Texas · November 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11231282

## Case

- **Full name:** Tremaine Gordon and Cynthia L. Covington v. Lowe’s Home Centers, LLC, et al.
- **Court:** District Court, S.D. Texas
- **Decided:** November 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11231282

## How later opinions describe it (automated extraction)

- stating that “digression from the terms of its [discretionary| policy is therefore of little value to our analysis”
- 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
- applying the burden- shifting approach to retaliation and discrimination claims
- applying the burden- shifting approach to retaliation and discrimination claims

## Opinion text

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

9A

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11231282. Public record. Not legal advice.