Velasco

UNITED STATES DISTRICT COURT January 28, 2026

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

MCALLEN DIVISION

Analicia Velasco, §

Plaintiff, §

§

v. § Civil Action M-23-0323

§

IAS Logistics DFW, LLC d/b/a §

Pinnacle Logistics, §

Defendant. §

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 is Defendant’s Motion for Summary Judgment, ECF

No. 23. The court recommends that the motion be GRANTED.

1. Background

Plaintiff Analicia Velasco worked as a Terminal Manager for

Defendant, IAS Logistics DFW d/b/a Pinnacle Logistics (Pinnacle),

for approximately five months from November 2021, until her

termination in April 2022. Velasco Dep.,1 ECF No. 23-4 at 6:3–9,

24:6–14. Velasco alleges in her Second Amended Petition that

Pinnacle wrongfully terminated her employment, discriminated

against her based on her age and gender, subjected her to sexual

harassment, retaliated against her for reporting harassment, and

violated her right to privacy. ECF No. 1-6 at 4–7.

Velasco supervised approximately nine employees in her role

at Pinnacle. ECF No. 23-4 at 7:24–8:10. By December 2021, after

Velasco had been working for about a month, multiple employees

had complained about Velasco’s managerial style. ECF No. 23-1

1 Because multiple exhibits include unnumbered pages, the court cites to page

numbers as provided in the ECF banner, not the original pagination.

at 7. Velasco’s supervisor, Canny Millan, disciplined Velasco with

a verbal warning for improper conduct and substandard work. Id.

According to the disciplinary report,2 employees complained that

Velasco would yell at them and speak to them in an accusatory

manner. Id. The report states that consequences for a failure to

improve would include possible suspension or termination. Id.

Millan commented in the report that “[t]his is a learning curve”

since Velasco was new to the team. Id.

Around December 16, 2021, Velasco was suspended from

work after disciplining an employee. ECF No. 24-1 at 2. On

December 18, Velasco contacted Millan for an update on her

suspension. Id. Millan informed Velasco that there was no

investigation into the incident, that Human Resources was not

notified, and that Velasco should return to work the following

Monday. Id.

In January 2022, Velasco felt responsible for improving the

terminal where her team was based. ECF No. 23-4 at 25:3–6.

Velasco explains that she told her team, around January 3, 2022:3

[W]e have to clean, clean the bathrooms, clean -- this

is our home away from home. So I said, we’re gonna --

the cabinets outside in the warehouse, ‘cause we had

cabinets where the [truck] drivers did their, you know,

their write-ups, their manifest, or whatever they may

be, I said, I’m gonna clean it, . . . if you have any

2 In response to Pinnacle’s Motion for Summary Judgment, Velasco argues in one

sentence that the disciplinary reports were “manufactured.” ECF No. 24 at 15. To

support her argument, Velasco notes that she did not sign any of the disciplinary

reports. Id. Velasco did not move to strike the reports or otherwise argue that they

were inadmissible. Thus, the court considers them as competent summary judgment

evidence.

3 Velasco’s briefing includes dates that are unsupported by the evidence. Compare

ECF No. 24 at 2 (“on February 3rd, 2022, while the Plaintiff was cleaning the driver's

area, she found . . .”), with ECF No. 23-5 at 8 (stating that Velasco cleaned the

warehouse cabinet on January 3, 2022). The court relies on the dates supported by the

evidence.

personal items that are around there, take them home.

So the drivers take off and they go out to the routes

and I go out to the warehouse and I start cleaning the

area. [| I open the cabinet door and I saw a 22-inch

dildo, really nasty and dirty. Immediately, I took a

picture of it and I text the picture to Canny [Millan.]

Id. at 25:7-24. The text exchange between Velasco and Millan

proceeded as follows:

Velasco: [image]

Should I put on group and ask whom ever it

belongs to to take it home

Millan: What is that?...

Velasco: Grozzzzzz_

Nasty

limage]

Look again

Millan: “www

Let’s throw that away..

Velasco: Ma’am!!!!!

ECF No. 23-5 at 4—5. Velasco ignored Millan’s suggestion to throw

the item away, closed the cabinet door, and left the item there.

ECF No. 23-4 at 25:23-26:17. Later, Velasco asked another

employee to throw the item away. Id. at 26:2-17. The employee

threw it away, and Velasco never saw it again. Id.

On January 138, 2022, Millan again issued a verbal warning

to Velasco and disciplined Velasco for improper conduct and

improper or substandard work. ECF No. 23-1 at 11. According to

the report, employees complained about Velasco withholding toilet

paper to save money for the end of year bonus. Id. The report also

states that employees complained about Velasco’s poor

communication and that she changed employee schedules without

notice. Id.

At one point, Millan and Millan’s supervisor had a meeting

with Velasco and told Velasco that the truck drivers were having

conflicts, that Velasco needed to be nicer to them, and that Velasco

needed to let the drivers do their work. ECF No. 23-4 at 16:12–25.

Velasco stated in her sworn Charge of Discrimination to the

Texas Workforce Commission that the drivers “harassed her about

the sex toy” for a few weeks after she found it. ECF No. 24-1 at 2.

In the Charge, Velasco states that, around March 13, 2022, she

emailed the Safety Director for Pinnacle and told him that she felt

sexually harassed by the drivers and that Millan created a hostile

work environment. Id.

Another disciplinary report, dated March 14, 2022, states

that on March 11, 2022, Velasco violated company safety guidance

and mismanaged a driver breakdown situation. ECF No. 23-1

at 37–38. The report states that Velasco’s mismanagement

resulted in several hours of lost work for multiple drivers. Id. at 37.

The disciplinary action recommended in the report is termination.

Id.

Finally, on March 15, 2022, Millan disciplined Velasco for

improper conduct and improper or substandard work.4 ECF

No. 23-1 at 9. The disciplinary report again states that several

employees complained about Velasco’s management. Id.

Employees stated that they could not comfortably work “with the

constant yelling, being talked down to or ignored[,]” and lack of

communication. Id. The employees reported “a hostile

environment that delays or prevents regular functions[.]” Id.

4 There are two disciplinary reports, one dated March 3, 2022 and another March 15,

2022, that appear to be identical except for their dates. Compare ECF No. 23-1 at 9–

10 with ECF No. 23-1 at 13–14. Since both reports are dated March 2022 and since

Millan later stated in an email that she only spoke to Velasco about the complaints

once in March, on March 15, ECF No. 23-1 at 16, the court construes the two March

reports together.

Millan wrote in the comments of the report that this was the third

time that the employees raised concerns to her about Velasco’s

management style. Id.

On March 28, 2022, the Safety and Compliance Manager at

Pinnacle sent an email regarding questions about whether

Pinnacle was “covered on our basis for terminating a terminal

manager.” ECF No. 23-1 at 18. The next day, Millan stated in an

email that she needed to dismiss Velasco. Id. at 17.

On March 30, 2022, Millan stated in another email that

Velasco had received many employment complaints and had not

met the company’s expectations for her position. ECF No. 23-1

at 16. In the email, Millan explained that Velasco’s “lack of

knowledge of the daily operation is not only jeopardizing the

operation, but affecting the safety of drivers and straining the

relationship of the biggest customers for the MFE terminal.

[Velasco] is insubordinate, does not follow instructions, misses

regular work and meetings.” Id.

On March 31, 2022, Velasco was “held out of service”

(suspended) due to the March 11 incident. ECF No. 23-1 at 15. On

April 5, Velasco’s suspension was extended until April 7 at 3 pm.

ECF No. 23-1 at 40.

On April 6, 2022, Velasco emailed Ms. Birdow and Mr.

Coleman, both of whom worked for Pinnacle HR, and explained

that she found a sex toy in January. ECF No. 23-5 at 8–9. Velasco

also stated in the email that three drivers “would smile with a

smirk, laugh at me as i [sic] conducted meetings and when ever i

[sic] walked by them.” Id.

On April 7, 2022, Velasco was terminated. ECF No. 23-4

at 24:6–25, 33:12–34:6; ECF No. 23-9 ¶ 16.

Velasco now alleges multiple causes of action under the

Texas Commission on Human Rights Act (TCHRA) for

discrimination based on her gender and age, retaliation, and

harassment. ECF No. 1-6 at 4–6. Velasco also alleges a cause of

action under Texas law for invasion of privacy.

2. Legal 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

v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th 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 (5th 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.” RSR 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)(3).

“[C]onclusory 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. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

“[T]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).

3. Analysis

As the court stated above, it is Velasco’s burden to “go

beyond the pleadings,” and cite “specific facts” showing a genuine

issue for trial. McCarty, 864 F.3d at 357. The court does not have

a duty to search the record for material fact issues, and conclusory

allegations or unsubstantiated assertions are not enough to defeat

a properly supported motion for summary judgment. RSR Corp.,

612 F.3d at 857; Turner, 476 F.3d at 343.

Velasco has not met her burden. Velasco’s arguments related

to multiple causes of action (e.g., harassment and invasion of

privacy) do not cite any evidence. To the extent that Velasco

attempted to incorporate her entire deposition into the record

without citations, see ECF No. 24 at 3, Velasco did not clearly

identify in her response specific evidence in the record nor

articulate precisely how that evidence supports her claim. Even so,

the court has considered all of the cited evidence as well as other

evidence not specifically cited in the parties’ briefs. The court turns

to Velasco’s claims.

Velasco alleges causes of action under the TCHRA for

discrimination based on her gender and age, retaliation, and

harassment. ECF No. 1-6 at 4–6. Velasco also alleges a cause of

action for invasion of privacy.

TCHRA claims based on gender and age are analyzed under

the analogous federal precedents interpreting Title VII of the Civil

Rights Act of 1964 (Title VII) and the Age Discrimination in

Employment Act of 1967 (ADEA). See Prairie View A & M Univ. v.

Chatha, 381 S.W.3d 500, 505 (Tex. 2012) (“we have looked to

federal law for guidance in situations where the TCHRA and Title

VII contain analogous statutory language”); Smith v. AT&T

Mobility Servs., L.L.C., No. 21-20366, 2022 WL 1551838, at *2 (5th

Cir. May 17, 2022) (analyzing ADEA and TCHRA age-

discrimination claims together under federal law).

Direct evidence of discriminatory or retaliatory intent is

rare. See Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.

2005). 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).

Here, there is no direct evidence of discrimination or

retaliation. Thus, the court applies the McDonnell Douglas

burden-shifting framework to Velasco’s claims of discrimination

and retaliation. The burden-shifting approach places the initial

burden on the plaintiff to establish a prima facie case of

discrimination or retaliation. See 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. Id.

If the defendant meets its burden, the plaintiff must produce

evidence showing that the proffered reason is pretextual. Id.

A. Discrimination

To establish a prima facie case of discrimination based on

gender and age, Velasco must show that she (1) was a member of

a protected group, (2) was qualified for her position, (3) was subject

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

treated less favorably than other similarly situated employees

outside her protected group. Ernst v. Methodist Hosp. Sys., 1 F.4th

333, 339 (5th Cir. 2021); Saketkoo, 31 F.4th at 997–98; Awe v.

Harris Health Sys., No. 25-20144, 2026 WL 83762, at *2 (5th Cir.

Jan. 12, 2026) (stating that the fourth element in an age

discrimination claim requires a plaintiff to show that they were

“treated less favorably than similarly situated younger employees

(i.e., suffered from disparate treatment because of membership in

the protected class)”).

Velasco belongs to protected groups based on her gender and

age as a woman who was older than 40 at the time of the adverse

employment action. See 29 U.S.C. § 631 (stating that the ADEA’s

prohibitions are “limited to individuals who are at least 40 years

of age”).

Pinnacle argues that Velasco cannot establish her prima face

case for gender or age discrimination because her claims are based

entirely on her own subjective belief that she was discriminated

against. ECF No. 23 at 15. Pinnacle also argues that, because

Velasco’s ultimate replacement was a woman who was older than

40 when she was hired, there is no evidence that Velasco was

replaced by or treated less favorably than other similarly situated

employees outside her protected groups. Id.

Velasco has not met her burden to show her prima facie case

for gender discrimination. Velasco argues, and the evidence shows,

that she was replaced by a woman. ECF No. 24 at 12; ECF No. 23-

9 ¶ 20. Velasco does not argue or provide evidence showing that

she was treated less favorably than someone outside her protected

group. ECF No. 24 at 12. Thus, Velasco has not established the

prima facie case for her gender discrimination claim. That claim

should be dismissed.

The court turns to the prima facie case for Velasco’s age

discrimination claim. Velasco was 58 years old when she was

terminated, and she was replaced by a woman who was 41 years

old at the time she was hired. ECF No. 24-1 at 4; ECF No. 23-9

¶ 20. “[A] plaintiff’s replacement must be ‘substantially younger’

to create an inference of discrimination.” Flanner v. Chase Inv.

Services Corp., 600 F. App’x 914, 918 (5th Cir. 2015). The court

need not decide whether Velasco demonstrated a fact question as

to the prima facie case for her age discrimination claim because,

even if she did, she has not shown that Pinnacle’s reason for her

termination is pretextual.

If Velasco had met her initial burden to establish her prima

facie case of discrimination based on her age or gender, the burden

would shift to Pinnacle to provide a legitimate, nondiscriminatory

reason for Velasco’s termination. Pinnacle states that, after an

investigation into Velasco’s management of the March 11 incident,

Velasco was terminated because of her poor performance. ECF

No. 23-1 at 16–18 (describing complaints against Velasco and

Velasco’s poor performance and asking whether Pinnacle is

“covered on our basis for terminating” Velasco); ECF No. 23-4

at 24:15–25 (stating that after completing the investigation into

the March 11 incident, Pinnacle decided to terminate Velasco);

ECF No. 23-1 at 37–38 (disciplinary report stating that Velasco

would be terminated for the March 11 incident). Poor performance

is a legitimate, nondiscriminatory reason for termination. Owens

v. Circassia Pharm., Inc., 33 F.4th 814, 826 (5th Cir. 2022).

Accordingly, the burden then shifts back to Velasco to

present evidence sufficient to establish a genuine issue of material

fact about whether Pinnacle’s asserted reason for termination is

pretext. Owens, 33 F.4th at 826. The evidence must allow fair-

minded factfinders to reach different conclusions about whether

Pinnacle’s proffered reason was, in fact, the reason for Velasco’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. Id. 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. Id. (citing Crawford v. Formosa Plastics Corp., La.,

234 F.3d 899, 902 (5th Cir. 2000)).

Velasco has not met her burden to raise a material fact

dispute as to pretext for her gender or age-based discrimination

claims. Velasco argues that “her performance was perfectly

satisfactory” and that the multiple disciplinary reports against her

were “manufactured.” ECF No. 24 at 15. Velasco does not cite any

evidence to support her arguments aside from pointing out that

she did not sign the disciplinary reports. Id. She also claims that

she did not see the disciplinary reports prior to this litigation, and

she stated during her deposition that her performance issues were

never brought to her attention during the time of her employment.

ECF No. 23-4 at 9:13–10:23, 18:25–19:24.

Velasco’s laudatory opinion of her own work performance

and apparent ignorance of her disciplinary issues is not sufficient

to defeat summary judgment. Velasco admits that there were

numerous incidents for which she was disciplined. ECF No. 23-4

at 9:1–6. She does not deny that employees complained about her

management style. Id. at 17:6–12. She does not deny that she was

withholding toilet paper. See id. at 16:12–25. She does not deny

that she was suspended pending an investigation into the

March 11 situation, which appears to have been the final

infraction that led to her being terminated. Id. at 22:5–25. Velasco

presents no evidence to demonstrate that the incidents leading to

her discipline did not take place. The evidence shows that Velasco’s

employment with Pinnacle was rife with complaints. Velasco

presents no evidence from which the court can infer that Pinnacle’s

proffered reasons for firing her are pretextual. There is no evidence

that would allow fair-minded factfinders to reach different

conclusions about whether Pinnacle’s proffered reason was, in fact,

the reason for Velasco’s termination.

Pinnacle’s motion as to Velasco’s gender and age

discrimination claims should be granted.

B. Retaliation

To establish her prima facie case for retaliation, Velasco

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. Saketkoo, 31 F.4th at 998–1000.

Pinnacle disputes the first and third elements of Velasco’s

retaliation claim. ECF No. 23 at 16–17.

The court first considers whether Velasco provided evidence

that she engaged in a protected activity. “A general allegation of

hostility is not enough.” Saketkoo, 31 F.4th at 1000 (“an employee

must at least have referred to conduct that could plausibly be

considered discriminatory in intent or effect, thereby alerting the

employer of its discriminatory practices”). Even where a plaintiff

complains of unfair treatment, a plaintiff must “demonstrate[] that

she put the employer on notice that her complaint was based on []

discrimination.” Harris-Childs v. Medco Health Sols., Inc., 169 F.

App’x 913, 916 (5th Cir. 2006).

Velasco’s conclusory statement in her Charge of

Discrimination that she reported sexual harassment to Pinnacle’s

Safety Director in an email on March 13 is insufficient.5 ECF

No. 24-1 at 2. That email does not mention harassment based on

any protected characteristic under the TCHRA. See ECF No. 23-5

at 3. Velasco testified that she was not sure whether she referenced

sexual harassment when she reported harassment. ECF No. 24-2

at 59:9–25 (“I used, bullying, I used, toxic environment, toxic work

environment, but . . . I cannot guarantee that I used the word, sex,

but overall I meant everything, harass [sic]”). However, on the eve

of her termination, Velasco reported finding the sex toy, ECF

No. 23-5 at 8, and stated that she believed it was an act of

harassment against her. The court continues its analysis

assuming, without deciding, that there is a fact question as to

whether Velasco engaged in a protected activity.

“To demonstrate that a causal link exists between the

protected activity and the adverse employment action at the prima

facie stage, an employee can show close enough timing [that is,

temporal proximity,] between her protected activity and the

adverse employment action.” Saketkoo, 31 F.4th at 1001. Velasco

states that she reported sexual harassment around March 13. ECF

No. 24-1 at 2. Velasco emailed HR about finding the sex toy on

April 6. ECF No. 23-5 at 8. She was suspended on March 31, and

terminated on April 7, 2022. ECF No. 23-9 ¶¶ 13, 16. There is

sufficient temporal proximity to create a fact question as to a

causal connection at the prima facie stage. See Garcia v. Pro.

Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (“a period

of two months is close enough to show a causal connection”).

Thus, the burden shifts to Pinnacle to provide a legitimate,

nonretaliatory reason for Velasco’s termination. The court has

5 The email discusses a dispute between Velasco and Millan about cleaning the

bathroom. ECF No. 23-5 at 3. Velasco mentions that Millan often tried to intimidate

Velasco, and that Velasco felt that the workplace was hostile, but Velasco does not

raise any concerns that relate to a protected characteristic under the TCHRA.

already found that Pinnacle’s purported reason for Velasco’s

termination—poor performance—is a legitimate reason for

termination.

Thus, the burden shifts back to Velasco to show that

Pinnacle’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, 33 F.4th at 835 (citing Long

v. Eastfield 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. Owens, 33 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 v. Wal-Mart

Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020), as revised (Aug.

14, 2020).

Velasco argues generally, without citing evidence or

providing specific examples, that there is a causal connection

between her complaints of harassment and her termination. ECF

No. 24 at 14–15. Other than temporal proximity, however, Velasco

does not provide any evidence to demonstrate that she was fired

because of her complaints to management or that she would not

have been fired in any event due to her performance issues. Again,

as discussed above, Velasco admits that she was disciplined on

numerous occasions. ECF No. 23-4 at 9:1–6. There is no dispute

that Velasco was disciplined for mishandling the March 11

situation. Id. at 22:4–25. There is no evidence indicating that

Velasco’s April 6 email was a but-for cause of her termination. In

fact, the evidence shows that Pinnacle had contemplated Velasco’s

termination several days before Velasco’s April 6 email. Velasco

did not identify any evidence that would support a rational

inference that her termination was based on retaliation.

Accordingly, Pinnacle’s motion as to Velasco’s retaliation claim

should be granted.

C. Harassment

Sexual harassment is a recognized cause of action under the

TCHRA, and courts look to analogous federal law, here, Title VII,

in applying the state Act. Tex. Lab. Code §§ 21.142, 21.051; Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). Texas

recognizes two general types of sexual harassment: (1) quid pro

quo, in which employment benefits are conditioned on sexual

favors, and (2) harassment that creates a hostile or offensive work

environment. Id.; see also Hoffmann-La Roche Inc. v. Zeltwanger,

144 S.W.3d 438, 445 n.5 (Tex. 2004).

Velasco does not state which form of harassment she

endured. However, Velasco does not allege, argue, or provide any

evidence that she underwent quid pro quo harassment. Thus, the

court construes Velasco’s sexual harassment claim as harassment

that created a hostile or offensive work environment.

“A hostile work environment exists when the workplace is

permeated with discriminatory intimidation, ridicule, and insult,

that is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.”

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)

(omitting internal quotation marks). To establish a prima facie

case for a hostile work environment, Velasco 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.6 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th

Cir. 2012).

Pinnacle argues that Velasco cannot show the fourth or fifth

elements of her harassment claim because: the harassment was

not severe or pervasive, Velasco was not offended by the

harassment, and Pinnacle did not fail to take remedial action. ECF

No. 23 at 11–14. In response, Velasco merely argues, without citing

any evidence, that Pinnacle created a hostile environment that

interfered with Velasco’s work performance and that was

“extremely detrimental” to Velasco’s emotional and physical

health. ECF No. 24 at 12–13.

The court first considers whether Velasco identified evidence

that the harassment affected a term, condition, or privilege of her

employment. 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 Servs. Org., Inc., 498 F. App’x 391, 394 (5th Cir. 2012).

“This element is disjunctive—if a single instance of the conduct . . .

was severe enough on its own to create a hostile work environment,

then it need not have been pervasive for this element to be

satisfied.” Abbt v. City of Houston, 28 F.4th 601, 608 (5th Cir.

2022).

The environment must be “both objectively and subjectively

offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so.”

6 Stated another way, the Supreme Court of Texas has held that a hostile work

environment claim for sexual harassment under the TCHRA arises when “(1) an

employee was subjected to unwelcome sexual harassment, (2) the employee was

harassed because of his or her sex, (3) the harassment was so severe or pervasive as

to alter the conditions of employment and create a hostile work environment, and (4)

some basis exists for holding the employer liable.” Fossil Group, Inc. v. Harris, 691

S.W.3d 874, 881 (Tex. 2024).

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

2022) (citation omitted). To determine whether an environment is

objectively hostile, courts consider the totality of the

circumstances, including the conduct’s frequency, severity,

whether it is physically threatening, and whether it interferes

with the employee’s work performance. Id. “[S]imple 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).

Velasco did not cite any evidence to show that the

harassment she endured affected a term, condition, or privilege of

her employment. In her argument supporting her harassment

claim, Velasco does not cite any evidence or supporting case law.

She states that, for a few weeks after she attempted to clean the

cabinets in the drivers’ area, “the drivers harassed [her] about the

sex toy.” ECF No. 24-1. Velasco argues that her work environment

harmed her emotional and physical health, but she does not

provide any evidence to support her argument. Velasco does not

say what the drivers said to her. She does not identify the language

used or the context in which it was used.

The court went well beyond Velasco’s briefing and scoured

the record for evidence that could possibly support Velasco’s claim.

Velasco testified that the drivers made vulgar, sexually explicit

comments to her. ECF No. 23-4 at 29:2–30:2; ECF No. 24-2 at 66:5–

24 (stating that three employees made sexually explicit

comments). Velasco also found a sex toy while cleaning, which she

interpreted as harassing. Velasco also testified that someone at

Pinnacle put a dead rat on her desk, slashed her tires, and scraped

her car with keys. ECF No. 23-4 at 30:1–19. On the one hand,

many of these things have nothing to do with Velasco’s gender.

They could just as easily be interpreted to be something of a

mutiny against an unpopular boss. On the other hand, even a

single instance of sufficiently severe conduct can create a hostile

work environment. Abbt, 28 F.4th at 608. Because it is a close

question, the court assumes for the sake of discussion that Velasco

endured actionable harassment and turns to the other elements of

her claim.

There is not a fact question as to the fifth element of

Velasco’s claim. That is, there is no evidence that Pinnacle knew

or should have known of the harassment and failed to take prompt

remedial action. If an employer knew of harassment and took

prompt remedial action that was reasonably calculated to halt the

harassment, it can avoid liability for a hostile work environment.

Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 640 (5th

Cir. 2014). “An employer is put on notice of harassment when a

person within the organization who has the authority to address

the harassment problem or an affirmative duty to report

harassment learns of the harassment in question.” Fossil Group,

691 S.W.3d at 884–85 (internal quotations omitted). An employer

may have constructive knowledge of harassment if the harassment

was “so open and pervasive that the appropriate persons should

have known of it had the employer opened its corporate eyes.” Id.

at 885–86 (internal quotations omitted).

Velasco’s conclusory statement in her Charge of

Discrimination that she reported, in a March 13 email, feeling

sexually harassed by the drivers is insufficient. See ECF No. 24-1

at 2. As the court stated above, Velasco’s March 13 email does not

address sexual harassment. Velasco merely states in the email

that she felt that the workplace was hostile, but Velasco does not

raise any concerns that relate to a protected characteristic under

the TCHRA. ECF No. 23-5 at 3.

Velasco testified that she talked to HR (Ms. Birdow and Mr.

Coleman) about general harassment, but she never told them

about the sexually explicit comments the drivers made or the sex

toy. ECF No. 23-4 at 31:2–32:8; 28:1–25. Velasco testified that she

was not sure whether she referenced sexual harassment when she

reported harassment. ECF No. 24-2 at 59:9–25 (“I used, bullying,

I used, toxic environment, toxic work environment, but . . . I

cannot guarantee that I used the word, sex, but overall I meant

everything, harass [sic]”). The court has not identified any

evidence in the record that Velasco reported that her tires were

slashed or that someone keyed her car.

As to Velasco’s April 6 email, Pinnacle did not have an

opportunity to take remedial action prior to Velasco’s termination

because, at the time Velasco sent the email, she was suspended.

Velasco was terminated the next day.

Velasco’s argument that she reported harassment by

sending a photo of the sex toy to Millan when she found it is

unpersuasive. Velasco’s text stated, “Should I put on group and ask

whom ever it belongs to to take it home[?]” ECF No. 23-5 at 4.

Millan responded “What is that?...” then, after Velasco sent

another photo, Millan replied with several laughing emojis and

stated, “Let’s throw that away.” Id. at 4–5. There is no indication

that throwing away the item would not remediate the issue. At the

time that Velasco found the item and texted Millan about it, it was

an isolated incident. There is no evidence that any further

remedial action was necessary, or if it was, what could have been

done.

There is insufficient evidence before the court to create a fact

dispute as to whether Pinnacle knew or should have known of the

harassing conduct that Velasco has cited and that the court has

found on its own. See, e.g., Arredondo v. Elwood Staffing Servs.,

Inc., 81 F.4th 419, 435–36 (5th Cir. 2023) (finding that the

employer did not have knowledge of the hostile work environment

where plaintiff did not report the abuse she experienced). Velasco

has not shown that Pinnacle knew or should have known of the

harassment and failed to take prompt remedial action.

Because Velasco has not identified any evidence in the

record to support her claim and because the court has not

identified any such evidence, Pinnacle’s motion should be granted

as to Velasco’s harassment claim.

D. Invasion of privacy

Texas recognizes multiple types of claims related to invasion

of privacy. Moore v. Bushman, 559 S.W.3d 645, 649 n.2 (Tex.

App.—Houston [14th Dist.] 2018, no pet.). The parties appear to

agree that Velasco alleges an “intrusion-upon-seclusion” invasion

of privacy. See ECF No. 24 at 16 (citing elements of an intrusion-

upon-seclusion cause of action); ECF No. 23 at 19–20 (same). “This

type of invasion of privacy includes a physical invasion of a

person’s property as well as eavesdropping upon private

conversations with the aid of wiretaps or microphones, or spying.”

Moore, 559 S.W.3d at 649. To establish a cause of action for an

invasion of privacy, a plaintiff must show “(1) an intentional

intrusion, physically or otherwise, upon another’s solitude,

seclusion, or private affairs or concerns, which (2) would be highly

offensive to a reasonable person.” Amin v. United Parcel Serv., Inc.,

66 F.4th 568, 576 (5th Cir. 2023) (citing Valenzuela v. Aquino, 853

S.W.2d 512, 513 (Tex. 1993)).

Pinnacle argues that Velasco’s allegations do not rise to the

level of an invasion of privacy. ECF No. 23 at 19–20. Velasco

responds, again without citing any evidence, by arguing that

“placing the 22-inch sex toy, in the area Plaintiff Analicia Velasco

would find it is an intentional intrusion upon another’s solitude

which would be highly offense to a reasonable person and as such

plaintiffs claims rise to the level of actionable invasion pf [sic]

privacy.” ECF No. 24 at 16.

Velasco has not met her burden. There is no evidence that

anyone placed the item intentionally for Velasco to find. In any

event, an invasion of privacy claim cannot succeed in a public

space. See Trusty v. Walmart Inc., No. CV H-20-235, 2020 WL

2497733, at *2 (S.D. Tex. May 13, 2020) (citing Vaughn v. Drennon,

202 S.W.3d 308, 320 (Tex. App.—Tyler 2006, pet. denied). The

evidence shows that Velasco found the item in a cabinet in the

drivers’ area of her workplace. ECF No. 24-1 at 2. There is no

evidence showing that Velasco, or any other person at Pinnacle,

had a private domain or expectation of privacy in the drivers’ area

of the workplace. See id. (stating that the core of the tort is the

offense of prying into the private domain of another).

Also, allegations of sexual harassment, offensive comments,

and inappropriate advances are not cognizable as a cause of action

for invasion of privacy under Texas law. Cornhill Ins. PLC v.

Valsamis, Inc., 106 F.3d 80, 85 (5th Cir. 1997); Sacks v. Tex. S.

Univ., No. CV H-18-3563, 2019 WL 13043644, at *10 (S.D. Tex.

Aug. 29, 2019). Texas courts have required a “physical invasion of

a person’s property or eavesdropping” to sufficiently establish an

invasion of privacy claim. Clayton v. Wisener, 190 S.W.3d 685, 696

(Tex. App.—Tyler 2005, pet. denied); Sacks, 2019 WL 13043644,

at *10. Velasco’s claim does not meet this standard, and Pinnacle’s

motion as to Velasco’s invasion of privacy claim should be granted.

4. Conclusion

The court recommends that Defendant’s Motion for

Summary Judgment, ECF No. 23, be GRANTED.

The parties have fourteen days from service of this

Memorandum and Recommendation to file written objections. 28

U.S.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 January __2_7__, 2026.

______________________________________

Peter Bray

United States Magistrate Judge