# Opinion

> District Court, M.D. Louisiana · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11298164

## Case

- **Full name:** Tatonya Johnson v. SE Tylose Louisiana, LLC and SE Tylose USA, Inc.
- **Court:** District Court, M.D. Louisiana
- **Decided:** March 31, 2026
- **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/11298164

## How later opinions describe it (automated extraction)

- noting that a district court in this circuit has found that “a time lapse of up to four months has been found sufficient”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TATONYA JOHNSON CIVIL ACTION
VERSUS 23-1303-SDD-RLB
SE TYLOSE LOUISIANA, LLC
AND SE TYLOSE USA, INC.

RULING
This matter is before the Court on the Motion for Summary Judgment1 by
Defendants, SE Tylose Louisiana, LLC and SE Tylose Louisiana USA, Inc. (collectively
“SET” or “Defendants”). Plaintiff, Tatonya Johnson (“Plaintiff”), has filed an Opposition2
to this motion, to which Defendants filed a Reply.3 For the following reasons, the Court
finds that Defendants’ motion should be GRANTED.
I. FACTUAL BACKGROUND4
This case arises from an employment dispute occurring at SET, a limited liability
company that operates plants that produce cellulose ether,5 at its plant located in
Plaquemine, Louisiana.6 SET offers the following version of events.

1 Rec. Doc. 53.
2 Rec. Doc. 57.
3 Rec. Doc. 68.
4 The factual background is derived from the Parties’ Statements of Undisputed/Disputed Material Facts
(Rec. Docs. 53-1, 57-1, 65) and memoranda submitted in connection with this Motion. Statements that are
unsupported by citation to record evidence or constitute legal argument rather than a fact (or controverting
fact) will be disregarded.
When citing deposition testimony, the Court will refer to the page number of the deposition rather than the
ECF docket page number; however, when the Court is citing evidence to depositions, the Court will refer
to the ECF docket page number.
5 Rec. Doc. 29, ¶ 7.
6 Rec. Doc. 22, ¶ 10.
A. Plaintiff Supervised by Hiroshi Jomori
Plaintiff was interviewed in late 2013 by Hiroshi Jomori (“Jomori”), then-General
Manager of SET.7 Plaintiff agrees that she was treated fairly during this interview.8
Plaintiff was hired to be a Customer Service Representative, and Jimori signed Plaintiff’s
offer letter.9 Plaintiff began her employment with SET in January 2014. Plaintiff was

initially supervised by Steve O’Neill, but Jomori, who is Japanese, became her supervisor
“almost immediately” after her employment began.10 As a Customer Service
Representative (“CSR”), Plaintiff was a “contact person to customers,” and her duties
included administration of orders of SET products.11 While Plaintiff was employed at SET,
the other CSRs were Kellie Mitchell (“Mitchell”), a Caucasian female, and Shaun Morvant
(“Morvant”), a Caucasian male.12
Plaintiff claims her working relationship with Jomori was “fine” until she returned
from maternity leave in 2015.13 When she returned to work, she claims Jomori criticized
her memory saying, “you remember nothing.”14 In June 2016, Plaintiff reported via email

that her work computer was stolen from her car while staying at her mother’s home;
Jomori responded that “[i]t is unfortunate to seem that the area of your mom lives must
always require attention to safety, considering also the incident on your husband;
someone must be watching the chance.”15 In January 2019, Jomori admonished Plaintiff

7 Rec. Doc. 53-3, Plaintiff Deposition, p. 18.
8 Id. at p. 19.
9 Id. at p. 22; Exhibit C to Depo.
10 Id. at p. 26. Plaintiff inexplicably denies this statement of fact although her own testimony is that Jomori
became her supervisor “almost immediately” after her hire. Rec. Doc. 57-1, ¶ 4 (citing Johnson Depo, p.
26:6-13).
11 Id. at pp. 27-28; Rec. Doc. 53-7, Jomori Deposition, p. 86.
12 Rec. Doc. 53-3, p. 25; Rec. Doc. 53-8, Answer to Interrogatory No. 2.
13 Rec. Doc. 53-3, p. 35.
14 Id. at p. 36
15 Rec. Doc. 53-7, Exhibit 2 to Depo.
via email, stating “[a]s a profession, I would suggest not to yawn on the phone…unless it
is a cultural difference from what I think as very impolite and unprofessional.”16 Plaintiff
also claims that, when describing the shortcut she takes through what she called African-
American neighborhoods, Plaintiff contends Jomori asked her “so you have to ride
through that neighborhood” and further stated “[o]h no. I not go down by them people like

that. Too much. Need more security. Too much danger.”17 Jomori denies making these
two comments.18 At her deposition, Plaintiff was asked whether she addressed Jomori
regarding this conduct, and she testified:
A: Not in the beginning…
Q: What about eventually?
A: I did…I began to call him on things and let him know or ask him why he
would treat me or respond to me much different than he did Kellie or of
Shaun.
***
Q: Did you flat out say, is this a race thing…?
A: I did. I don’t recall the wording, but I definitely said I felt that I was being
treated differently because I was different in regard to my race…I think we
had two meetings, just [Mr. Jomori] and I. I told him that I felt I was being
treated differently, you know, because of my background…I don’t know if –
not I don’t know. I don’t think it was…because I’m Black, but I said because
of my culture or background, I feel that I am being treated differently.19

Plaintiff could not recall the dates that she believes these comments occurred.20 Plaintiff
further claims that, between 2015 and 2019, Jomori would throw things at her, like
throwing pens and papers on her desk that on one occasion “slid in her lap.”21
On December 13, 2019, Plaintiff went to lunch for her birthday, which lasted an

16 Rec. Doc. 53-3, pp. 48-49; Rec. Doc. 53-7, Exhibit 3 to Depo.
17 Rec. Doc. 53-3, pp. 46-47
18 Rec. Doc. 53-7, p. 71.
19 Rec. Doc. 53-3, pp. 47-48.
20 Id. at p. 49.
21 Id. at pp. 49, 59.
hour and a half or two hours.22 When she returned to the office, Plaintiff claims Jomori
began yelling at her and asking her who told her she could take such a long lunch.23
During this encounter, Plaintiff claims Jomori banged on her desk, said “you know
nothing,” and told her to “shut up.”24 In response, Plaintiff asked Jomori to leave her office
and advised that she used an hour of vacation leave for the lunch.25 Plaintiff admits that

she spoke to Jomori “in a high pitched voice” and that “her voice got louder and louder”
as she repeatedly told Jomori to leave.26 Plaintiff further acknowledged that she was
“aware that [her] voice possibly overpowered Mr. Jomori’s” and knew that it “carried more
so during [her] response to Mr. Jomori on December 13th.”27 At some point, a co-worker
entered the office and advised Jomori and Plaintiff to be quiet; Jomori then left.28
Following this encounter, Plaintiff called HR Representative Kristi Parnell (“Parnell”) and
asked that Jomori be told to “leave [her] alone and stop yelling at [her].”29 Parnell called
Jomori,30 and later that day, he returned to Plaintiff’s office, offered her tissues, and told
her she did not need to take vacation time because “no worries” and “nothing wrong.”31

Around December 18, 2019, Plaintiff again spoke with Parnell; however, she
cannot remember if she ever told Parnell she felt she was being treated differently
because she was Black.32 Parnell attested that Plaintiff never advised her in any

22 Id. at pp. 52-53, 55.
23 Id. at p. 55.
24 Id.
25 Id. at pp. 55-56.
26 Rec. Doc. 53-5, p. 4.
27 Id.
28 Rec. Doc. 53-3, p. 56.
29 Id. at p. 56.
30 Id.
31 Id. at p. 66.
32 Id. at p. 68.
conversation that she felt she was being treated differently because of her race.33
Around December 20, 2019, Plaintiff was issued a performance improvement plan
(“PIP”), and she met with Parnell and Dana Coody (“Coody”), another HR representative,
to review the PIP.34 Plaintiff secretly recorded this forty-eight-minute conversation;35 at no
time on this recording does Plaintiff mention race-based disparate treatment or different

treatment than the other CSRs. On December 30, 2019, Plaintiff submitted via email an
eight-page “Rebuttal to Performance Improvement Plan (PIP) and Formal Complaint.”36
Therein, Plaintiff stated that Jimori treated her differently after her pregnancy, and
“[s]everal SE Tylose employees informed HR on November 4, 2019 of the work
environment and how Mr. Jomori treats and speaks to others.”37 The “others” included
Mitchell and Morvant.38 SET emphasizes that “[n]owhere in Plaintiff’s eight-page rebuttal
does she state that Mr. Jomori treats her differently because of her race or that she felt
she was being treated differently than her two CSR counterparts.”39
During her deposition, Plaintiff was asked several questions about her rebuttal to

the PIP. She testified as follows:
Q: So I believe I’ve closely studied all eight pages of your rebuttal…Nowhere
in here do you mention that you believe [Mr. Jomori] is treating you differently
because of your race.
A: I was afraid to, but, again –
Q: But that’s true right? You don’t –
A: No. I did not say. I definitely did not say Mr. Jomori is mistreating me
because I’m black, but, again, as I’ve stated earlier, I often stated he is
treating me different than others, and I was the only Black in addition to my
two White counterparts.
Q: But even that is not included in this rebuttal, correct, that he is treating me

33 Rec. Doc. 53-5, Parnell Declaration, ¶¶ 7-8.
34 Rec. Doc. 53-3, p. 69; Exhibit F to Depo.
35 Id. at pp. 61-62, 84-85; Rec. Doc. 53-5, Parnell Declaration, ¶¶ 7-8.
36 Rec. Doc. 53-3, p. 73; Rec. Doc. 53-5, ¶ 8, Attachment 1.
37 Rec. Doc. 53-3, p. 76; Rec. Doc. 53-5, ¶ 8, Attachment 1.
38 Rec. Doc. 53-3, pp. 76-77.
39 Rec. Doc. 55, p. 5 (citing Rec. Doc. 53-3, p. 80; Rec. Doc. 53-5, Attachment 1).
differently than –
A: I would have to – it’s in the email. It is definitely in an email somewhere.

***
Q: Go ahead and look.
A: I would like to make note that I said here this is one of the reasons that
employees have not came forward with specific issues, is because I was
reprimanded as a result of being mistreated…so it really speaks to the
intimidation throughout the period. You know, me being afraid to lose my job,
but I know I put it in an email somewhere. I’d have to find it. If I don’t have it
here, I have it at home somewhere.40

Despite Plaintiff’s claims that she mentioned her belief that the differential treatment was
race-based in an email, SET notes that Plaintiff has never identified such an email, and it
has not been produced in this matter.
When questioned why, during the recorded conversation, she never referenced
race, Plaintiff testified: “The entire time – you know, one of the tactics with Jomori has
always been intimidation. I was afraid to specifically say you are treating me different
because I am Black, but, again, you know, I’ve said it several times…I would specifically
tell him you are treating me differently than Kellie and Shaun.”41 Plaintiff testified further:
Q: You are reporting that he screams at you, that he throws stuff at you, a
lot of horrible things, but you left out the major issue that you sued the
company on…If you are saying it was race discrimination, and we retaliated
against you because you report[ed] race discrimination, you have no
evidence of a report of a race complaint…Why didn’t you either put it in a
document or say it in the meeting so that the company had notice that you
were saying he was doing this because you are Black and they are White?42

A: The treatment itself is there. The difference itself is there. I may have
been afraid to say, oh, Mr. Jomori, you are doing this to me because I’m
Black. Yes…I was afraid to say that, definitely. I was afraid of the
retaliation…So…forgive me if I didn’t say you are doing this to me because
I’m Black. I didn’t know it was a requirement that I spell it out.43

40 Rec. Doc. 53-3, pp. 79-81 (emphasis added).
41 Id. at pp. 84, line 19 through 85, line 2.
42 Id. at p. 86, lines 6-18.
43 Id. at pp. 86-87.
In July 2020, Plaintiff emailed Jomori to complain that her annual raise was only
1.5%; Plaintiff felt that her “duties and responsibilities [were] far outside the scope of her
position” and that her “current salary is not aligned with similar jobs within the
market…and it is not commensurate to the responsibilities I am working on a day to day
basis.”44 Jomori responded:
The pay raise this time was based on 2019 performance (not including 2020
that so far has seen recent improvement). Evaluation is completed fairly all
performance and all surrounding conditions of company and
business…minimum duties were met that is appreciated…even with some
occasions required your boss to track and remind over weeks and that
ended with an incident that deserves incident disciplinary action.45

Plaintiff then asked for an opportunity to meet with Jomori to discuss the matter, to which
he agreed, but Plaintiff subsequently asked him to disregard her request for a phone
meeting.46
Plaintiff received a 1.5% increase in 2020, while Mitchell received a 1.8% increase,
and Morvant received a 1.6% increase.47 SET’s merit increases for year 2020 were the
lowest in many years due to uncertainty and business interruption associated with onset
of the COVID-19 pandemic.48 For every year of her employment other than 2020, Plaintiff
received a higher yearly increase than both Mitchell and Morvant.49
B. Change in Management/Plaintiff Supervised by Brad Smothers
Around the end of 2021, SET moved Jomori from Louisiana to a different role in

44 Rec. Doc. 53-7, Exhibit 4 to Depo. (ECF p. 21).
45 Id. (ECF pp. 21, 19).
46 Id. (ECF p. 17).
47 Rec. Doc. 53-5, ¶ 13.
48 Id. at ¶ 12.
49 Id. at ¶ 15.
Germany.50 Subsequently, Brad Smothers (“Smothers”) joined SET as Administrative and
Operations Manager in July 2022.51 Smothers is African American.52 Upon his hire,
Smothers began supervising the CSRs — Plaintiff, Mitchell, and Morvant.53 When he took
over from Jomori, Smothers had final authority on work from home requests.54
Prior to Smothers assuming this role at SET, SET employees were permitted to

intermittently work from home. Working from home began during the COVID 19
pandemic.55 When Plaintiff returned to work following the pandemic, she worked a hybrid
schedule whereby she arrived at work between 7:30 and 8:30 am and would leave the
office around 2:00 pm.56 Plaintiff would pick up her children from school and resume
working from home usually around 4:30 to 5:00 pm.57
On June 29, 2022, more than a month in advance, Morvant requested to work from
home for two weeks beginning on August 15, 2022 to assist his wife in recovering from a
surgical procedure.58 Morvant requested this from Jomori, who forwarded the request to
SET Human Resources for approval.59 On June 30, 2022, Morgan Voiselle, a former
member of SET’s HR department, approved Morvant’s request.60

When Smothers joined SET, he conducted an initial meeting with Plaintiff and the
other CSRs on July 21, 2022 where he announced that SET was moving away from hybrid

50 Rec. Doc. 53-3, p. 101.
51 Id.; Rec. Doc. 53-4, Smothers Deposition, p. 6.
52 Rec. Doc. 53-3, p. 124.
53 Rec. Doc. 53-4, pp. 12-13.
54 Rec. Doc. 53-4, p. 73.
55 Rec. Doc. 53-3, p. 93.
56 Id. at pp. 95-97.
57 Id. at p. 98.
58 Rec. Doc. 53-5, ¶ 9, Attachment 2 to Dec.
59 Id. at ¶ 10, Attachment 2 to Dec.
60 Id. at ¶ 11, Attachment 2 to Dec.
work schedules and everyone was expected to return to the office.61 Plaintiff was
approximately thirty minutes late to this meeting.62 During this meeting, Smothers notified
all employees that they were expected to work five eight-hour days, and remote work was
no longer permitted.63 Immediately following this meeting, Plaintiff met with Smothers and
discussed how she had prior approval from Jomori to work a split-shift partially from home,

which helped her avoid traffic and spend time with her children.64 SET contends
Smothers explored several options with Plaintiff, one of which was that Plaintiff could
arrive earlier to work – which she declined – but ultimately Smothers advised Plaintiff she
was required to be in the office to work.65 Later, Plaintiff asked Smothers if there was an
office in Baton Rouge that she could report to; Smothers responded that he would
investigate and “go out of [his] way to try and find a workable solution.”66 Plaintiff began
working the eight-hour schedule where she would arrive to work at 8:00 am and work 8
hours.67
In Smothers’ view, Plaintiff wanted a regularly scheduled, continuous work from
home hybrid work schedule.68 In efforts to accommodate Plaintiff’s needs, Smothers

spoke to Sales Managers Alysia McLeod (“McLeod”) and Sergio Hernandez
(“Hernandez”) about Plaintiff’s remote work situation.69 McLeod informed Smothers that
Plaintiff was not available to her during critical portions of the workday.70 Hernandez also

61 Rec. Doc. 53-3, p. 102, Exhibit I to Depo; Rec. Doc. 53-4, Smothers Deposition, p. 26.
62 Rec. Doc. 53-3, pp. 107-108, Exhibit J to Depo; Rec. Doc. 53-4, p. 28.
63 Rec. Doc. 53-3, pp. 103-104, Exhibit I to Depo.
64 Id. at pp. 104-105.
65 Id. at pp. 105-106; Rec. Doc. 53-4, p. 39.
66 Rec. Doc. 53-3, p. 108, Exhibit J to Depo.
67 Id. at p. 107.
68 Rec. Doc. 53-4, p. 66.
69 Id. at p. 50, Exhibit 3 to Depo.
70 Id., Exhibit 3 to Depo.
expressed that he was displeased at the level of support he received from Plaintiff and
sometimes felt “stranded.”71 Hernandez advised Smothers that Plaintiff’s unavailability
between 11:30 to 4:00 was the time he and customers needed reports and information;
he and McLeod noticed items not being handled by Plaintiff, which prompted them to offer
to shift some of Plaintiff’s customers to Mitchell, but Plaintiff declined.72

Smothers sent an email to Jomori outlining the conversations he had with McLeod
and Hernandez and advising of both Plaintiff’s positive work habits and the negatives,
which included: (1) often unresponsive to emails; (2) inconsistent work output; (3)
unhappy with office hours requirement and continues to push for remote work; (4)
complains about a heavy workload but refuses to be relieved.73 Other SET employees
expressed complaints similar to those of McLeod and Hernandez. Jomori noted that
Plaintiff sometimes “did not respond to customers by the time she is supposed to be” or
“did not reply to calls from the customers” or “about the orders we received, she did
not…act on the orders” or “during the hours she’s supposed to be working, she seemed
like she was not.”74 Coody also received complaints about Plaintiff’s unavailability and her

work not getting done; around June 21, 2022, Coody requested IT to evaluate whether
the CSRs were consistently working 40 hours per week.75 This investigation, which
factored in gate logs, the vacation/sick leave program, and VPN access which showed
remote working, revealed that Plaintiff was averaging only twenty hours of work per week,
which showed an average workday of three hours.76

71 Id. at p. 50, Exhibit 3 to Depo.
72 Id. at p. 50, 56 Exhibit 3 to Depo.
73 Id. at p. 76, Exhibit 4 to Depo.
74 Rec. Doc. 53-7, p. 26.
75 Rec. Doc. 53-6, Coody Deposition, pp. 35, 85, Exhibit 2 to Depo.
76 Id. at pp. 36, 38-39, Exhibit 2 to Depo.
Plaintiff testified that, around July 26, 2022, she, Mitchell, and Smothers had a
conversation about month-end reporting requirements.77 Mitchell and Plaintiff explained
to Smothers how their past work schedules allowed them to avoid traffic and attend their
children’s events; Smothers apologized but said they were required to work in the office.78
Plaintiff claims Mitchell “became irate” and “yelled and screamed” that her “kids are first,

and you will not get the reports,” then she slammed the door and left.79 Smothers later
spoke with Mitchell by phone, advised her that her reaction was improper, but advised
Mitchell that if she made a request, he would try to work with her to find a solution.80
Mitchell then explained to Smothers that she needed two four-hour windows when she
could attend her child’s school orientation, and Mitchell was permitted to work remotely
but limited to these two half-days in early August.81
Plaintiff claims she made a similar request, but Smothers testified that he did not
hear such a request.82 Smothers further testified that he apologized to Plaintiff if he
missed her request “because it was a couple conversations going on at one time,” and if
he missed her request “that’s not her fault in that situation.”83 Plaintiff testified that she

“vaguely remember[ed] something like that.84 Plaintiff also claims that the recorded
conversation of August 3, 2022 continued another minute or two after the recording
stopped, and in this unrecorded portion, Plaintiff accused Smothers of being dishonest.85
After this call, Smothers emailed Jomori and advised that he just had “a very hostile

77 Rec. Doc. 53-3, pp. 117-118.
78 Id. at p. 118.
79 Id. at pp. 118-119
80 Rec. Doc. 53-4, p. 69.
81 Id.; Rec. Doc. 53-8, Answer to Interrogatory No. 12.
82 Rec. Doc. 53-4, pp. 69-70
83 Id. at p. 70.
84 Rec. Doc. 53-3, p. 120.
85 Id.
and unprofessional conversation with Tatonya. Tatonya’s sole focus in every
conversation that I have had with her has been centered around the work schedule she
requires to do her job…I have asked Tatonya to try and meet me halfway on her schedule
request and she is not w[i]lling to. Tatonya is being very unrealistic of her
expectation/demands of the company...”86 Smothers testified that Plaintiff’s tone was

“combative,” he felt that Plaintiff “basically challenged” him, and this “was not a
professional conversation you have in the workplace.”87
On August 3, 2022, before her phone call with Smothers, Plaintiff emailed Jomori
advising that she had fallen behind and could not close sales on time.88 Plaintiff also
communicated that she had been sick the previous week and advised Smothers that, in
the past, she was able to work from home when sick to complete sales, but Smothers
would not permit this.89 Plaintiff asked Jomori not to forward the email because she did
not want “backlash.”90
On this same date, Smothers made the recommendation to terminate Plaintiff’s

employment due to: (1) poor work performance, including consistent unavailability during
working hours and missing critical sales deadlines; (2) her refusal and continued
resistance to follow management’s directives regarding work schedule; (3) misuse of her
company-issued iPHone that Plaintiff admitted she allowed her daughter to use; and (4)
her lack of professionalism, hostility, and temperament in communications with
management.91 The following day, August 4, 2022, Coody informed Plaintiff that she had

86 Rec. Doc. 53-4, Exhibit 5 to Depo.
87 Id. at pp. 112-114.
88 Rec. Doc. 53-3, Exhibit K to Depo (ECF p. 100).
89 Id. at p. 126, Exhibit K to Depo (ECF p. 100).
90 Id. (ECF p. 101).
91 Rec. Doc. 53-8, Answer to Interrogatory No. 3.
discussed Plaintiff’s phone call with Smothers, instructed Plaintiff to go home for the day,
and advised that she would follow up with Plaintiff on next steps.92 In response, Plaintiff
essentially accused Coody of “retaliating against [her] because [she] reported Brad.”93
Plaintiff also complained that she had asked Jomori not to forward her email because she
did not want backlash, but “that’s what [she] received immediately.”94

The next day, August 5, 2022, Coody emailed Plaintiff at 1:18 pm asking when
Plaintiff was available to talk.95 The purpose of Coody’s call was to inform Plaintiff of
SET’s decision to terminate her employment.96 Plaintiff responded to Coody at 2:06 pm
that she was at the doctor’s office but would call when she left; however, Plaintiff did not
return Coody’s call on August 5, 2022.97 Plaintiff acknowledged that the following day,
August 6, 2022, at 10:46 am, Coody emailed Plaintiff at her personal and work email
addresses and advised: “It was critical you contact me yesterday. You failed to return my
call as you stated you would. I did try you again, and the phone went to voicemail. Since
I cannot reach you, please be advised the company has made decisions on next steps. I

am sending you important information to your personal e-mail address and also priority
mailing to your home.”98 At 10:50 am, Coody sent Plaintiff a termination letter and a
severance agreement.99 Almost four hours later, Plaintiff replied to Coody via email
stating that her doctor placed her on medical stress leave.100

92 Rec. Doc. 53-3, p. 129; Rec. Doc. 53-6, pp. 47-48.
93 Rec. Doc. 53-3, p. 129
94 Rec. Doc. 53-6, Exhibit 4 to Depo (ECF p. 15).
95 Rec. Doc. 53-3, p. 134, Exhibit L to Depo (ECF p. 102).
96 Rec. Doc. 53-6, p. 95, Exhibit 5 to Depo (ECF p. 17).
97 Rec. Doc. 53-3, pp. 134-135, Exhibit L to Depo (ECF p. 102).
98 Id. at p. 135, Exhibit M to Depo (ECF p. 103).
99 Id. at pp. 135-136, Exhibit N to Depo (ECF pp. 104-106).
100 Id. at p. 140, Exhibit O to Depo (ECF p. 115).
Plaintiff does not know who was hired to replace her,101 and she has no evidence
to controvert the fact that her next two replacements were African American females.102
C. Plaintiff’s Complaints
Unsurprisingly, Plaintiff’s version of the facts differs.103 Plaintiff claims that she
was the only Black employee in the CSR department throughout her employment.104

Plaintiff claims she “developed and led”105 SET’s pharmaceutical warehouse system,
managing logistics, inventory, invoicing, and international communications.106 Even after
Mitchell and Morvant were hired, Plaintiff claims she remained responsible for the most
complex tasks, and she was not cross-trained on her colleagues’ duties even though they
were cross-trained on hers.107 Plaintiff testified that she was excluded from warehouse
tours and training sessions provided to her white co-workers.108 Plaintiff testified that
Jomori required her to continue performing work duties when she was on vacation and
out on leave.109
After returning from maternity leave in 2015, Plaintiff claims she was subjected to

criticism and demeaning comments by Jomori, including being mocked for her lack of
memory and professionalism.110 Plaintiff claims Jomori regularly referred the people in
her family and neighborhood as “you people,” or “them people,” and questioned the safety

101 Rec. Doc. 53-3, p. 142.
102 Rec. Doc. 53-9, ¶ 6.
103 Notably, many of Plaintiff’s offered “facts” (Nos. 1, 2, 3, 6, 8, 11, 12b, 18, 19, 20) are not supported by
the citation provided.
104 Rec. Doc. 61-1, p. 25:10-12. This testimony names Plaintiff’s co-CSRs but does not indicate race.
105 Rec. Doc. 57-1, ¶ 3.
106 Rec. Doc. 61-1, pp. 27-28. Plaintiff characterizes her involvement as the developer and leader of this
process; however, that is not set forth in the testimony cited.
107 Id. at p. 40:12-25.
108 Id. at p. 40:18-25. Plaintiff argues she was excluded from “key meetings,” but the cited testimony does
not support this statement.
109 Id. at p. 39:16-40:15. Plaintiff argues this requirement was not imposed on her white co-workers, but
the testimony cited does not support this.
110 Id. at pp. 35:10-36:25.
of the neighborhoods in which she and her family lived.111 In fact, Jomori attributed the
theft of her work laptop during remote work to Plaintiff’s neighborhood, about which
Jomori allegedly remarked “it was unfortunate that my mom lived in such a bad area that
require [sic] additional attention.”112 HR later acknowledged that Plaintiff was not
responsible for this theft.113

Plaintiff claims that she raised her concerns of racial discrimination both with
Jomori and HR, and she specifically alleged disparate treatment.114 Plaintiff contends HR
failed to take corrective action against Jomori despite her repeated complaints,
specifically those made on November 4, December 13, and December 18, 2019.115
Plaintiff also contends her compensation remained lower than Mitchell for the duration of
their employment.116
In December of 2019, after returning from an extended birthday lunch in her honor,
Plaintiff was publicly berated by Jomori; Plaintiff claims he yelled at her, struck her desk,
and threw papers.117 Despite Jomori’s involvement in this confrontation, only Plaintiff was
disciplined and placed on a PIP, which HR later withdrew upon Plaintiff’s objection.118

Plaintiff documented her objection to the PIP in an eight-page statement that described
the disparate treatment she alleged.119
With regard to work schedule, Plaintiff claims she requested accommodation for

111 Id. at pp. 46:3-25. Plaintiff argues these words were “racially coded language.” Rec. Doc. 57-1, ¶ 8.
112 Id. at p. 38:14-22
113 Id. at p. 39:1-9.
114 Id. at pp. 47:16-48:24; Rec. Doc. 61-25.
115 Id. at p. 73; Rec. Doc. 61-9.
116 Rec. Doc. 61-28. Plaintiff also claims she had more experience than Mitchell and a college degree;
however, the cited evidence – SET’s pay table – does not support this purported fact.
117 Rec. Doc. 61-1, pp. 55-56.
118 Rec. Doc. 61-24; Rec. Doc. 61-3, p. 16. Plaintiff claims Coody withdrew her PIP after Plaintiff threatened
to file an EEOC complaint; however, the cited evidence does not support this purported fact.
119 Rec. Doc. 61-9.
family obligations, including her mother’s dementia and her child’s school orientation, but
these requests were denied even though white co-workers were granted similar or greater
flexibility.120 Plaintiff maintains she regularly worked outside of regular work hours to meet
client demands across time zones; she states this is confirmed by “multiple” email
threads.121

Plaintiff was terminated on August 6, 2022, two days after Plaintiff claims she
raised complaints about hostile work environment and discrimination.122 Plaintiff also
claims she was under doctor’s orders not to engage in work communications due to
stress, but the cited evidence does not support this contention.123
Plaintiff filed suit asserting race discrimination claims under both Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981.124 These claims include hostile work
environment, disparate treatment, and retaliation. Plaintiff also asserts claims of
retaliation and interference under the Family and Medical Leave Act (“FMLA”). Plaintiff
asserted a Discrimination in Pay Act claim, but the Court previously dismissed this claim
under Title VII for failure to exhaust administrative remedies.125 It remains available,

however, under Section 1981. Notably, claims arising under Section 1981 “have a four-
year statute of limitations – the default period applicable to most federal claims.”126

120 Rec. Doc. 61-1, pp.121-122; Rec. Doc. 61-4, pp. 65-66.
121 Rec. Doc. 61-22. While this document does reflect that Plaintiff sent emails around 8:30 pm on two
different dates, it does not support Plaintiff’s claim that this was routine, nor it is confirmed by “multiple”
emails.
122 Rec. Doc. 61-1, pp. 134-136; Rec. Doc. 61-15. Neither of these items of evidence support Plaintiff’s
claim that she was fired two days after complaints of discrimination.
123 Plaintiff also claims she was offered a severance package by SET but she declined it to pursue an EEOC
case; however, the cited evidence (Rec. Doc. 61-1, p. 119) does not support this purported fact.
124 The Fifth Circuit “consider[s] racial discrimination and retaliation claims based on Title VII and 42 U.S.C.
§ 1981[] under the same rubric of analysis.” Johnson v. PRIDE Indus., 7 F.4th 392, 399 (5th Cir. 2021).
Thus, these claims will be analyzed together.
125 Rec. Doc. 26.
126 Hackett v. United Parcel Service, 736 F. App’x 444, 450 (citing Johnson v. Crown Enters., Inc., 398 F.3d
339, 341 (5th Cir. 2005)).
II. LAW & ANALYSIS
A. Summary Judgment
In reviewing a party’s motion for summary judgment, the Court will grant the motion
if (1) there is no genuine issue of material fact, and (2) the mover is entitled to judgment
as a matter of law.127 This determination is made “in the light most favorable to the

opposing party.”128 A party moving for summary judgment “‘must “demonstrate the
absence of a genuine issue of material fact,” but need not negate the elements of the
nonmovant’s case.’”129 If the moving party satisfies its burden, “the non-moving party must
show that summary judgment is inappropriate by setting ‘forth specific facts showing the
existence of a genuine issue concerning every essential component of its case.’”130
However, the non-moving party’s burden “‘is not satisfied with some metaphysical doubt
as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.’”131
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”132 All reasonable factual

inferences are drawn in favor of the nonmoving party.133 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely

127 FED. R. CIV. P. 56(a).
128 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (citing United States v. Diebold, Inc., 369 U.S.
654, 655 (1962); 6 V. MOORE, FEDERAL PRACTICE 56.15(3) (2d ed. 1966)).
129 Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003) (quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)); Celotex Corp. v. Catrett, 477 U.S. 317,
323-25 (1986).
130 Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
131 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).
132 Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
133 Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
how this evidence supports his claim.”134 “Conclusory allegations unsupported by specific
facts . . . will not prevent the award of summary judgment; ‘the plaintiffs [can]not rest on
his allegations . . . to get to a jury without any “significant probative evidence tending to
support the complaint.”’”135
B. Title VII Race Discrimination – Disparate Treatment

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
against any individual with respect to compensation, terms, conditions, or privileges of
employment because of the individual's race.136 Illegal discrimination is not the same as
simple unfair treatment; indeed, “it has long been the law in this circuit that Title VII ...
do[es] not protect against unfair business decisions[,] only against decisions motivated
by unlawful animus.”137 Moreover, “[m]anagement does not have to make proper
decisions, only non-discriminatory ones,”138 and Title VII is not a vehicle for judicial
second-guessing of business decisions139 because courts do not determine the validity
of an employer's good faith belief about an employee's competence. Thus, the issue is

not whether SET treated Plaintiff fairly or whether SET’s decisions were correct or
erroneous; rather, the only issue is whether SET’s decisions were racially motivated.
A plaintiff must present proof of a discriminatory motive.140 A plaintiff may prove

134 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
135 Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994)
(quoting Anderson, 477 U.S. at 249).
136 42 U.S.C. § 2000e-2(a)(1).
137 Nieto v. L&H Packing Co., 108 F.3d 621, (5th Cir. 1997) (citing Turner v. Tex. Instruments, Inc., 555
F.2d 1251, 1257 (5th Cir. 1977), overruled on other grounds by Burdine v. Tex. Dept. of Cmty. Affairs, 647
F.2d 513 (5th Cir. 1981)).
138 Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 480 (5th Cir. 2016) (citing Bryant v. Compass
Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)).
139 Bell v. Bank of Am., 171 F. App'x 442, 445 (5th Cir. 2006) (citing Walton v. Bisco Indus., Inc., 119 F.3d
368, 372 (5th Cir. 1997)); see also Armendariz, 58 F.3d at 151 n.7 (5th Cir. 1995) (holding that establishing
the employer's reason as misguided is insufficient; rather “the employee at all times has the burden of
proving ... that those reasons were a pretext for unlawful discrimination”).
140 Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) (citation omitted).
discriminatory motive through either direct or circumstantial evidence.141 Direct evidence
is a “statement or written document showing [the employer's] discriminatory motive on its
face.”142 The evidence must be direct and unambiguous, allowing for a conclusion without
any inferences or presumptions that an impermissible factor motivated the decision.143
Vague terms are insufficient to plausibly plead discriminatory intent.144 Further, a plaintiff’s

subjective belief that a vague term is discriminatory, no matter how genuine the belief,
cannot provide the basis for relief.145
To prove race discrimination under Title VII, a plaintiff must establish that she is
(1) “a member of a protected class” (2) “was qualified for the position” (3) “was subjected
to an adverse employment action”; and (4) was replaced by someone outside the
protected class, or a similarly situated co-worker outside the protected class was treated
more favorably.146 If a plaintiff establishes a prima facie case of discrimination, the burden
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse

141 Id. (citing Portis v. First Nat'l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994)).
142 Portis, 34 F.3d at 329; see also Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)
(“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or
presumption.”).
143 Moss v. BMC Software, Inc. 610 F.3d 917, 929 (5th Cir. 2010) (internal quotations omitted) (citing EEOC,
100 F.3d 1173 at 1181).
144 See, e.g., Burrell v. Lab. Ready, Inc., No. 09-227, 2012 WL 1565360, at *5 n.13 (M.D. La. Mar. 30,
2012), (stating that the phrase “you people” is not indicative of racial animus and plaintiff's subjective belief
otherwise is insufficient), R.&R. adopted, No. 09-227, 2012 WL 1565620 (M.D. La. Apr. 30, 2012); Stone
v. Par. of E. Baton Rouge, No. 06-401, 2008 WL 4534374, *7 (M.D. La. Sept. 30, 2008) (holding that that
there is nothing directly or indirectly race-based about the words “you people”), aff'd 329 F. App'x 542 (5th
Cir. 2009); Maldonado v. FirstService Residential, Inc., No. 20--1484, 2021 WL 2517542, at *7 (S.D. Tex.
June 18, 2021) (citation omitted) (finding the phrases “those people” and “these people” were insufficient
to state a § 1981 claim); Badaiki v. Schlumberger Holdings Corp., No. 4:20-CV-2216, 2021 WL 6010580,
at *6 (S.D. Tex. Aug. 23, 2021) (citations omitted), R.&R. adopted, 2021 WL 5542144 (S.D. Tex. Nov. 26,
2021), R.&R. adopted, 2021 WL 5769276 (S.D. Tex. Dec. 6, 2021); McLaurin v. Waffle House, Inc., 178 F.
Supp. 3d 536, 549 (S.D. Tex. 2016) (citation omitted); see also Spears v. Patterson UTI Drilling Co., 337
F. App'x 416, 420 (5th Cir. 2009) (finding vague comments insufficient to establish discrimination).
145 Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 369 (5th Cir. 2021) (citing Little v. Republic Refining
Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)).
146 Saketoo v. Tulane Univ. School of Medicine, 510 F.Supp.3d 376, 386 (E.D. La. 2020)(citing Alkhawaldeh
v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (quoting Lee v. Kansas City S. Ry. Co., 574 F.3d 253,
259 (5th Cir. 2009))).
actions taken. 147 If the defendant satisfies this burden of production, the burden shifts
back to the plaintiff, who must “offer sufficient evidence to create a genuine issue of
material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for
discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only
one of the reasons for its conduct, and another motivating factor is the plaintiff’s protected

characteristic (mixed-motive[s] alternative).’”148 Plaintiff proceeds under a pretext theory.
At the pretext stage, the issue is not whether the employer's reason was “correct
or fair, but whether the decisionmakers honestly believed the [stated] reason.”149 Plaintiff
must create an issue regarding whether “the employer honestly believes in the reasons it
offers, not whether [the employer] made a bad decision.”150 Title VII does not permit courts
to sit as a super-personnel department that reexamines an entity's business decisions or
the wisdom of those decisions, only to address whether those decisions are
discriminatory.151 Courts are not to weigh the wisdom of particular employment decisions
nor question every management decision and work assignment; rather, the singular issue
is whether the employer's decision was motivated by discrimination.152

If an employer satisfies its burden of production by articulating a legitimate,

147 Lee, 574 F.3d at 259.
148 Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Vaughn v. Woodforest Bank,
665 F.3d 632, 637 (5th Cir. 2011) (citing same in the context of a Title VII race discrimination case).
149 Harville v. City of Houston, 945 F.3d 870, 877 (5th Cir. 2019)(citing Sandstad v. CB Richard Ellis, Inc.,
309 F.3d 893, 899 (5th Cir. 2002) (“The issue at the pretext stage is whether Appellee's reason, even if
incorrect, was the real reason for Appellant's termination.”)); Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d
470, 476 (5th Cir. 2015) (citation omitted).
150 Harris v. Double G. Coatings, Inc., No. 96-60485, 1997 WL 255619, at *2 n.4, *7 (5th Cir. 1997) (citations
omitted).
151 Eyob v. Mitsubishi Caterpillar Forklift Am., Inc., 745 F. App'x 209, 212 (5th Cir. 2018) (citations omitted);
Harris v. Double G. Coatings, Inc., No. 96-60485, 1997 WL 255619, at *2 n.4 (5th Cir. 1997) (citing Ruby
v. Springfield R-12 Public School Dist., 76 F.3d 909, 912 n.7 (8th Cir. 1996)).
152 See McVille v. Inter-Cmty. Healthcare, Inc., 460 F. App'x 353, 355 (5th Cir. 2012) (citing Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995); Deines v. Tex. Dep't of Protective & Reg.
Servs., 164 F.3d 277, 281 (5th Cir. 1999)).
nondiscriminatory reason for its decision, the presumption of discrimination “simply drops
out of the picture,” and the plaintiff must prove that the defendant intentionally
discriminated against the plaintiff because of a protected characteristic.153 A plaintiff
satisfies this burden by establishing pretext either through evidence of disparate
treatment or by showing that the employer's proffered explanation is false or unworthy of

credence,154 i.e., that the employer's articulated reasons were not its true reasons but a
pretext for discrimination.155 A plaintiff's prima facie case, “combined with sufficient
evidence to find that the employer's asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.”156 “Even in the face of
sufficient evidence for a reasonable factfinder to find pretext and reject the
nondiscriminatory reason, if no rational factfinder could conclude that the action was
discriminatory, such as when the record conclusively reveals some other,
nondiscriminatory reason for the decision, or if the plaintiff creates only a weak issue of
fact as to whether the employer's reason was untrue and there is abundant and

uncontroverted independent evidence that no discrimination occurred, summary
judgment will be proper.”157
Plaintiff claims she was subjected to disparate treatment based on her race in three
ways: (1) SET’s denial of Plaintiff’s request to work from home; (2) Plaintiff’s alleged pay
differential; and (3) Plaintiff’s termination. It is undisputed that Plaintiff has satisfied the

153 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993) (citations omitted).
154 Harville, 945 F.3d at 879 (citation omitted).
155 Goudeau, 793 F.3d 470, 476 (5th Cir. 2015) (citing Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231
(5th Cir. 2015) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000))).
156 Reeves, 530 U.S. at 148; Williams v. Waste Mgmt., Inc., 818 F. App'x 315, 319 (5th Cir. 2020) (citation
omitted); see also St. Mary's Honor Ctr., 509 U.S. at 511.
157 Douglas v. St. John Baptist Parish Library Board of Control, No. 21-599, 2022 WL 898746 at *12 (E.D.
La. Mar. 28, 2022)(citing Harville, 945 F.3d at 876-77(citation omitted)).
first three prongs of her prima facie case, subject to SET’s challenge to Plaintiff’s work
from home claim as an adverse employment action. The Parties’ primary dispute is
whether Plaintiff has presented summary judgment evidence to satisfy the fourth prong,
which requires Plaintiff to demonstrate that she was replaced by someone outside the
protected class or that other similarly situated employees outside Plaintiff’s protected

class were treated more favorably. SET has presented uncontroverted evidence that
Plaintiff was replaced by an African American female.158 Thus, the Court must determine
if Plaintiff has established that she was treated less favorably than similarly situated
comparators under each claim.
The law is clear that, “[i]n the context of a race discrimination claim, where the
plaintiff alleges that employees who were not members of the protected class received
more [favorable treatment], the plaintiff must come forward with specific evidence of
comparators who were similarly situated.”159 Courts within the Fifth Circuit define
“similarly situated” narrowly.160 In evaluating whether an alleged comparator is similarly

situated,
“The employment actions being compared will be deemed to have been
taken under nearly identical circumstances when the employees being
compared held the same job or responsibilities, shared the same supervisor
[,] or had their employment status determined by the same person[.]”161
“Employees with different supervisors, who work for different divisions of a
company ... generally will not be deemed similarly situated.” The Fifth Circuit
has further explained, that “employees who have different work

158 Rec. Doc. 53-9, ¶ 6.
159 Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt, 816 F.Supp.2d 297, 316 (M.D. La.
2011)(citing Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009))(emphasis added).
160 See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544-SDD-EWD, 2018 WL 1997535 at *5 (M.D.
La Apr. 27, 2018)(citing Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F.Supp.2d 581, 593 (S.D.
Tex. 2012); see also Lopez v. Kempthorne, 684 F. Supp. 2d 827, 856-57 (S.D. Tex. 2010)).
161 Id. (quoting Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)(quoting Lee v. Kan. City
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009))).
responsibilities ... are not similarly situated.”162

Additionally, a proper comparator is one that shares with a plaintiff “essentially
comparable violation histories.”163 With these principles in mind, the Court turns to
Plaintiff’s disparate treatment claims.
1. Work From Home
Plaintiff complains that, during July and August 2022, she was denied the ability to
work from home while her white co-workers Mitchell and Morvant were allowed. SET
argues that the denial of access to remote work is nothing more than a de minimus harm
that does not constitute an adverse employment action, even considering that the Fifth
Circuit recently expanded the definition of an adverse employment action in Hamilton v.
Dallas Cnty.164 In response, Plaintiff ignores this argument altogether, focusing solely on
whether Mitchell and Morvant are proper comparators
In Hamilton, the Fifth Circuit overturned long-standing precedent that “adverse
employment actions consist[ed] of ultimate employment decisions such as hiring, firing,
demoting, promoting, granting leave, and compensating.”165 Since Hamilton, an “adverse

employment action” encompasses more than just ultimate employment decisions; it also
covers actions that affect the terms, conditions, or privileges of employment.166 “Hamilton
both acknowledged that Title VII ‘does not permit liability for de minimis workplace trifles,’
but also declined to address ‘the precise level of minimum workplace harm’ necessary to
sustain a discrimination claim.”167 Even so, employees must establish adversity and a

162 Id. (quoting Lee, 574 F.3d at 259 (citing Wyvill v. United Cos. Life Ins., 212 F.3d 296, 302 (5th Cir.
2000)).
163 Lee, 574 F.3d at 260 (citations and footnotes omitted).
164 79 F.4th 494, 502 (5th Cir. 2023) (en banc).
165 See Smith v. Kendall, No. 23-50713, 2024 WL 4442040, at *4-5 (5th Cir. Oct. 8, 2024) (per curiam).
166 See Hamilton, 79 F.4th at 497.
167 Smith, 2024 WL 4442040, at *5 (quoting Hamilton, 79 F.4th at 505).
non-de minimis injury.168 Subsequently, the Supreme Court has held that, while “an
employee must show some harm” from the asserted adverse employment action, “she
need not show that the injury satisfies a significance test.”169 The phrase, “terms or
conditions of employment,” requires employees to show that the asserted adverse
employment action “brought about some ‘disadvantageous’ change in an employment

term or condition.”170
In Bravo v. Kendal, the Western District of Texas, applying Hamilton, held that a
plaintiff’s “request to telework … [did] not have any [e]ffect on any condition, term, or
privilege of her employment. She was not hired to work from home. She was not hired on
a telework basis.”171 “Thus, under Hamilton and Muldrow, the denial of the request to
telework does not qualify as an adverse employment action.”172
SET cites the decision by the Western District of Louisiana in Green v. Ochsner
LSU Health Shreveport, wherein the court rejected a plaintiff’s argument that “evidence
of disparate treatment included the differential work-from-home permissions during a
pandemic based on racial makeup.”173 The Green court noted that it would not “expand

the Hamilton standard into the sphere of these workplace trifles, absent clear direction
from the Fifth Circuit. If such claims are allowed to survive at this stage, district courts
would become ‘super-personnel departments.’”174 The Green court adopted the
reasoning and analysis of the Northern District of Texas in Sambrano v. United Airlines,

168 Harrison v. Brookhaven Sch. Dist., 82 F.4th 427, 430 (5th Cir. 2023) (per curiam).
169 Muldrow v. City of St. Louis, 601 U.S. 346, 350 (2024).
170 Id. at 354.
171 No. 5:22-CV-1186-JKP, 2025 WL 965927, at *32 (W.D. Tx. Mar. 31, 2025).
172 Id.
173 No. 22-1422, 2024 WL 1057217, *8 (W.D. La. Mar. 11, 2024).
174 Id. (citing Sambrano v.United Airlines, Inc., 707 F.Supp.3d 652, 664 (N.D. Tex. 2023) (citing Eyob v.
Mitsubishi Caterpillar Forklift Am., Inc., 745 F. App'x 209, 214 (5th Cir. 2018)) (citing Riser v. Target Corp.,
458 F.3d 817, 821 (8th Cir. 2006))).
Inc., where two employees alleged that the masking and testing protocols of the company
during the COVID-19 pandemic “altered the conditions and terms of [their]
employment.”175 The Sambrano court found that these protocols were de minimis under
the new standard, noting that “[i]f the de minimis standard excludes any workplace harm,
surely it prevents judges from supervising a company's decisions regarding” the

protocols, because it described the COVID-19 pandemic as a once in a century event
which was “unprecedented in the modern era.”176
It is uncontroverted that SET allowed working from home in response to the
COVID-19 pandemic, that Plaintiff was initially allowed to return to work on a hybrid
schedule, and that in 2022, SET changed its policy to require in person work five days a
week and no longer allowed remote work on a general basis.177 Like the plaintiff in Bravo,
there is no evidence that Plaintiff was hired on a telework basis. The Court finds the facts
of the foregoing cases like those asserted here. Applying Hamilton and adopting the
reasoning and analysis from the district court cases discussed above, the Court finds that

Plaintiff’s general complaint about SET’s remote work policy and specific claim that she
was twice denied requests to work from home do not constitute an adverse employment
decision but are, rather, de minimus workplace trifles. Plaintiff failed to substantively
argue this issue, and she failed to present summary judgment evidence that shows a
genuine dispute of material fact. Accordingly, SET is entitled to summary judgment on
this claim.

175 707 F.Supp.3d at 664.
176 Id.
177 Rec. Doc. 53-3, pp. 54-55.
2. Pay Discrimination
Plaintiff also claims disparate treatment regarding her pay in the following ways:
(1) lesser 2020 yearly increase; (2) being required to work for a year before she was able
to take vacation while comparators took vacation in their first year of employment; (3) she
was required to work while on vacation and sick leave; and (4) she was not compensated

for all the roles she had to cover.178
SET cries foul at Plaintiff’s suggestion in her Opposition that her overall
compensation during her employment as compared to Mitchell is encompassed within
her pay discrimination claim: “Tatonya made less than Kellie Mitchell for the entirety of
the time that she worked at SE Tylose.”179 SET contends that Plaintiff has never alleged
a general, ongoing pay disparity claim, and she cannot assert a new legal theory or claim
in opposition to a motion for summary judgment.
SET is correct. Plaintiff’s opposition attempts to expand a discrete pay-raise claim
into a broad, employment-wide compensation discrimination theory. Courts within the

Fifth Circuit consistently refuse to consider such unpled theories raised for the first time
at the summary judgment stage.180 Because Plaintiff’s complaint challenges only a
specific raise decision, her newly asserted legal theory of ongoing pay disparity is not
properly before the Court. A similar situation arose in Loomis v. Starkville Mississippi
Public School District.181 There, the plaintiff did not plead a salary-based pay

178 Rec. Doc. 53-3, p. 46.
179 Rec. Doc. 63, p. 28.
180 See Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005)(“A claim which is not raised in the
complaint but, rather, is raised only in response to a motion for summary judgment is not properly before
the court.”); DeFranceschi v. BAC Home Loans Servicing, L.P., 477 F. App’x 200, 204 (5th Cir.
2012)([D]istrict courts do not abuse their discretion when they disregard claims or theories of liability not
present in the complaint and raised first in a motion opposing summary judgment.”).
181 150 F.Supp.3d 730 (N.D. Miss. 2015).
discrimination claim in her complaint nor was it included in her EEOC charge.182 The court
held that the plaintiff’s “complaint contains no reference to salaries apart from the
allegations related to the allegedly discriminatory raises. Even when couched in these
terms, the complaint does not refer to a difference in salary, only a difference in ‘pay
increase.’”183 Thus, the court determined that the plaintiff’s complaint failed to provide “fair

notice” to the Defendant “of a salary compensation claim apart from the specific decision
related to discriminatory pay raises.”184 The same result is warranted here. Thus, the only
pay discrimination claim properly before the Court is Plaintiff’s 2020 pay raise.185
In 2020, Plaintiff received a 1.5% increase, Mitchell received a 1.8% increase, and
Morvant received a 1.6% increase.186 SET contends the difference amounted to $188.42
annually, roughly $15 per month.187 Notably, 2020 is the only year since Mitchell was
hired in 2017 that Plaintiff did not receive a higher yearly increase than both Mitchell and
Morvant.188 SET contends that this purported “harm” is too minimal to constitute an
adverse employment action. Plaintiff does not substantively respond to or rebut SET’s

argument; rather, she shifts all argument to the unalleged pay disparity claim.
As discussed in the previous section, even after Hamilton, a plaintiff must show
more than a trivial harm, as Title VII does not reach “de minimis workplace trifles.” A pay
differential of approximately $15 per month – less than $200 annually – is precisely the
type of negligible economic impact that fails to constitute the requisite “some harm” under
Title VII. Alternatively, assuming arguendo that $15 per month is sufficiently significant

182 Id. at 745.
183 Id. at 746.
184 Id. (citations omitted).
185 Plaintiff abandoned any other pay claims by failing to substantively oppose their dismissal.
186 Rec. Doc. 53-5, ¶ 13.
187 Id. at ¶ 14.
188 Id. at ¶ 15.
to constitute an adverse employment action, Plaintiff’s claim still fails because SET has
demonstrated that Mitchell and Morvant were not proper comparators based on their work
histories in 2019, and SET has presented unrebutted legitimate, non-discriminatory
reasons for Plaintiff’s slightly lower raise in 2020.
The law requires Plaintiff to show that her circumstances based on her 2019

performance were “nearly identical” to Mitchell’s and Morvant’s. Jomori noted in 2020
that Plaintiff’s lower salary increase was based on several factors – COVID-19’s effect on
SET’s finances, Plaintiff’s mediocre work performance in 2019, and her insubordination
which he believed was deserving of an incident disciplinary action.189 Plaintiff offered no
evidence that her 2019 work performance was nearly identical to Mitchell’s or Morvant’s.
Thus, the Court finds that she has failed to establish a prima facie case of discrimination
relating to the pay raise. Even if she had, these same grounds also serve as legitimate,
non-discriminatory reasons for a lower salary increase which Plaintiff failed to rebut with
pretext evidence.190 While it is true that two of the three bases for the PIP were later

removed, the report of insubordination remained, and the record contains absolutely no
evidence – beyond Plaintiff’s speculation – that the lower salary increase for 2020 was
based on Plaintiff’s race.
SET also raised the “same actor” inference. “[T]he ‘same actor’ inference creates
a rebuttable presumption that an adverse action imposed on a plaintiff was not the result
of unlawful discrimination when the same person both hires and fires, or imposes some

189 Rec. Doc. 53-7, Exhibit 4 to Depo. (ECF pp. 17-21).
190 See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.2007) (quality and timeliness of
work, insubordination are legitimate nondiscriminatory reasons for termination); Chaney v. New Orleans
Pub. Facility Mgmt., Inc., 179 F.3d 164, 167–68 (5th Cir.1999) ( “The failure of a subordinate to follow the
direct order of a supervisor is a legitimate nondiscriminatory reason for discharging that employee.”); Little
v. Republic Refining Co., 924 F.2d 93, 96 (5th Cir.1991) (poor job performance is a legitimate
nondiscriminatory reason for termination).
other adverse action, on the plaintiff.”191 “[T]he inference is stronger when (1) there is
close temporal proximity between the favorable employment action and the adverse
action, and (2) the decision maker is in the same protected category as the plaintiff.”192
The Court finds that the same actor inference applies here. It is undisputed that
Jomori hired Plaintiff and, while her supervisor, gave Plaintiff greater salary increases

than Mitchell and Morvant every year of her employment except 2020. Nevertheless, the
Fifth Circuit has “decline[d] to establish a rule that no inference of discrimination could
arise under such circumstances.”193 In other words, the “same actor” inference is neither
mandatory nor irrebuttable. But, if “the non-moving party has otherwise failed to raise a
genuine dispute as to a material fact, the ‘same actor’ inference simply reinforces [sic]
[D]efendant’s submission with respect to [Plaintiff’s] race discrimination claim.”194
Although Plaintiff quotes the jurisprudence above regarding the same actor inference,
highlighting that it is rebuttable, she still fails to actually rebut it by stating in conclusory
fashion, “the evidence submitted by Plaintiff in support of this opposition is more than
sufficient to rebut any such inference.”195 Plaintiff fails to explain or present evidence why

Jomori would give her a lesser pay increase in 2020, based on her race, but then continue
to give her the highest salary increases among the CSRs in the subsequent years. The
Court finds that no reasonable jury could conclude from the evidence in this case that
Plaintiff’s lower salary increase in 2020 was based on her race.

191 Williams v. Louisiana, No. 14-00154-BAJ-RLB, 2015 WL 5318945, at *8 (M.D. La. Sept. 11, 2015) (citing
Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.1996) (abrogated in part on other grounds, Russell v.
McKinney Hosp. Venture, 235 F.3d 219 (5th Cir.2000)); Trevino v. City of Fort Worth, No. 4:12–CV–717–
A, 2013 WL 4516643, at *7 (N.D.Tex. Aug. 23, 2013).
192 Jones v. Wells Fargo, No. 17-8712, 2019 WL 4601602, at *12 n.24 (E.D. La. Sept. 23, 2019) (citations
omitted).
193 Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996).
194 Jones, 2019 WL 4601602, at *12.
195 Rec. Doc. 63, p. 26.
Plaintiff’s complaints about Jomori’s 2016 comments about her memory, purported
racially charged comments related to the safety of her family’s neighborhood, and
references to African Americans as “them,” or “you people,” are prescribed. These
incidents occurred prior to September 2019, and Plaintiff cannot rely on them in support
of her race discrimination claim. Alternatively, even if they were not prescribed, applicable

jurisprudence clearly forecloses such comments as a basis for Title VII race
discrimination. In Stone v. Par. of E. Baton Rouge, the Fifth Circuit held that a supervisor's
use of the terms “you people” or “your people” did not support Title VII claim based on
race discrimination.196 In Douglas v. St. John Baptist Par. Libr. Bd. of Control, the court
found that a supervisor's use of the term “you people,” standing alone, was a “race-
neutral” term that, “while Plaintiff may have subjectively felt they reflected discriminatory
animus, are not objectively race-based statements.”197 SET is entitled to summary
judgment on Plaintiff’s pay discrimination claim.
3. Termination

Plaintiff’s termination claim also fails because Plaintiff has failed to identify a
similarly situated comparator with the same work history who was not terminated. SET
provides several legitimate, non-discriminatory reasons, supported by competent
summary judgment evidence, to justify Plaintiff’s termination, including that multiple SET
employees reported that: (1) she was often unresponsive to emails; (2) had inconsistent
work output; (3) she was unhappy with office hours requirement and continuously pushed
to work remotely; and (4) she complained about a heavy workload but refused to be

196 329 F. App'x 542, 545 (5th Cir. 2009).
197 No. 21-599, 2022 WL 898746, at *19 (E.D. La. Mar. 28, 2022).
relieved.198 Jomori noted that Plaintiff sometimes “did not respond to customers by the
time she is supposed to be” or “did not reply to calls from the customers” or “about the
orders we received, she did not…act on the orders” or “during the hours she’s supposed
to be working, she seemed like she was not.”199 Coody also received complaints about
Plaintiff’s unavailability and her work not getting done which prompted Coody’s request

that IT evaluate whether the CSRs were consistently working 40 hours per week.200 This
investigation, which factored in gate logs, the vacation/sick leave program, and VPN
access which showed remote working, revealed that Plaintiff was averaging only twenty
hours of work per week, which showed an average workday of three hours.201
Further, the record contains evidence of Plaintiff’s unprofessional and
insubordinate behavior. In addition to the screaming match between Plaintiff and Jomori
after the birthday lunch, the evidence shows that Plaintiff challenged Smothers regarding
the changed work from home policy in a manner that he reported to Jomori was “very
hostile and unprofessional;”202 that Plaintiff’s tone was “combative” such that he felt

Plaintiff “basically challenged” him, and this “was not a professional conversation you
have in the workplace.”203
Smothers’ recommendation for Plaintiff’s termination was based on the following:
(1) poor work performance, including consistent unavailability during working hours and
missing critical sales deadlines; (2) her refusal and continued resistance to follow
management’s directives regarding work schedule; (3) misuse of her company-issued

198 Rec. Doc. 53-4, Exhibit 4 to Depo. (ECF pp. 31-32).
199 Rec. Doc. 53-7, p. 26.
200 Rec. Doc. 53-6, Coody Deposition, pp. 35, 85, Exhibit 2 to Depo.
201 Id. at pp. 36, 38-39, Exhibit 2 to Depo.
202 Rec. Doc. 53-4, Exhibit 5 to Depo.
203 Id. at pp. 112-114.
iPHone (that Plaintiff admitted she allowed her daughter to use); and (4) her lack of
professionalism, hostility, and temperament in communications with management.204
In responding to this argument, Plaintiff turns the law on its head and argues that
SET failed to identify a comparator who was terminated or disciplined as she was for
alleged performance or scheduling issues.205 However, this is not SET’s burden. Plaintiff

always has the burden of demonstrating a prima facie case. It is incumbent upon Plaintiff
to identify a proper comparator.
Plaintiff offers Mitchell as a comparator citing only to Mitchell being allowed to miss
work for her child’s orientation while Plaintiff was not. Even though Smothers has testified
that he misunderstood Plaintiff’s request and apologized to her later for the
misunderstanding,206 accepting this fact as true, Mitchell remains an improper
comparator. SET provided a host of reasons for Plaintiff’s dismissal, not just her
resistance to the work from home policy. Plaintiff has not identified a single comparator
with a similar work performance history that was not terminated or disciplined in the

manner she was.
To the extent Plaintiff offers Jomori as a comparator, as she has complained that
he was not disciplined for their birthday lunch confrontation even though he also violated
company policy,207 this argument is also without merit. As her supervisor, Jomori is not
a proper comparator to Plaintiff. And even if Jomori’s conduct was unprofessional and
rude, which the Court would not condone, it does not change the question before the
Court under Title VII. The law in the Fifth Circuit is clear: “A plaintiff's supervisor is not a

204 Rec. Doc. 53-8, Answer to Interrogatory No. 3.
205 Rec. Doc. 63, p. 27.
206 Plaintiff admitted these facts. Rec. Doc. 53-4, pp. 69-70.
207 Rec. Doc. 63, p. 6.
valid comparator because, by definition, a plaintiff and his supervisor do not share the
same supervisor or have their employment status determined by the same person.”208
Even when a supervisor and employee both engage in misconduct that violates company
policy, courts maintain that the supervisor cannot serve as a comparator.209
Because Plaintiff has failed to set forth a prima facie case of race discrimination in

her termination, SET is entitled to summary judgment on this claim. Even if Plaintiff had
satisfied her prima facie burden, Plaintiff has failed to rebut the legitimate non-
discriminatory reasons offered by SET. Importantly, Title VII does not require an employer
to make proper decisions, only non-discriminatory ones.210 Thus, Plaintiff must do more
than simply argue that SET made an incorrect decision in terminating her.
Plaintiff cites Coody’s Response to Plaintiff’s questions about her termination and
argues “[t]he evolving justifications for Plaintiff’s termination – ranging from vague
‘hostility,’ to email delay, to misuse of company phone – highlights SET’s lack of
consistent rationale and support Plaintiff’s claim of pretextual retaliation.”211 Plaintiff also

complains that she was never “warned” or “counseled” about her phone usage or her
work performance between 2019-2022.212 Plaintiff contends this “divergence” from SET’s
“prior practice” is a pretext for race discrimination.
Plaintiff also complains that company policy was not followed in her termination,

208 Thomas v. Cook Children’s Health Care System, No. 2022 WL 1308039, *11 (citing Crosby v. Computer
Sci. Corp., 470 F. App'x 307, 309 (5th Cir. 2012) (“[T]he district court correctly determined that Condit is
not a valid comparator because he was [Plaintiff's] supervisor (and therefore did not have the same
supervisor as [Plaintiff]).”)(original emphasis).
209 See Patrick v. Walmart, Incorp., 859 F. App’x 687 (5th Cir. 2021)(court held that supervisor who was
terminated for using the N-word at work in violation of company policy was not a proper comparator to the
employees he supervised that also used the N-word at work).
210 See Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991) (stating that “even an incorrect belief that
an employee's performance is inadequate” is a legitimate reason).
211 Rec. Doc. 63, p. 27.
212 Id.
and she was not written up, warned, or counseled about these issues until she was
“abruptly” fired.213 Plaintiff does not provide evidence of this policy or the provisions she
claims were violated. In fact, Plaintiff acknowledges in her PIP rebuttal that she
“understand[s] that management has the right to escalate or skip any and all steps for
discipline[.]”214

Plaintiff also contends Smothers had not supervised her long enough to reach this
conclusion, and he relied primarily on secondhand information to support her termination.
Plaintiff takes issue with the investigation into hours worked by CSRs – which investigated
all CSRs, not just Plaintiff – and argues that SET relied on incomplete data like gate logs
which, she argues, “did not account for Plaintiff’s after-hours and weekend work, which
she consistently performed to support international accounts.”215 Plaintiff contends she
offered emails to confirm this work outside of work hours, but they were refused by HR.216
Plaintiff cites Coody’s deposition testimony to support her position, but Coody testified
that she was unaware of any specific arrangement allowing the CSRs to regularly work
after hours to complete their work, calling it “outside of the norm.”217 She did testify that

such an arrangement may have been approved by Jomori,218 but there is no evidence
before the Court that this was allowed under the new in-office policy in place at the time
of Plaintiff’s termination. Further, even if Plaintiff was allowed to perform after-hours work,
this does not rebut the multiple complaints by SET employees that Plaintiff was hard to
reach during the workday, she was routinely unavailable when they needed her

213 Id.
214 Rec. Doc. 53-5, p. 9.
215 Rec. Doc. 63, p. 30.
216 Id.
217 Rec. Doc. 61-3, p. 32:14-15.
218 Id. at p. 32:21-25.
assistance, and she missed critical deadlines.219 Further, Plaintiff’s disagreement with
SET’s conclusions from the investigation are not actionable unless they can be tied to
Plaintiff’s race. There is absolutely no evidence to support this.
Notwithstanding Plaintiff’s inept challenge to SET’s investigation and findings
relating to her work hours, Plaintiff has failed to rebut the evidence showing that on

multiple instances she was hostile, unprofessional, and insubordinate to her superiors.
She admits that during the confrontation with Jomori after the birthday lunch, her “outburst
was unprofessional, it was also uncontrollable at the time” based on Jomori’s alleged
provocation.220 Within the Fifth Circuit, insubordination alone can be proper grounds for
termination. In Seaman v. CSPH, Inc., the Fifth Circuit held that an employee’s
termination was legitimately based on insubordination where, during a heated
confrontation with his supervisor, the employee screamed at and was verbally abusive to
his employer after being denied a vacation request.221 Indeed, “chronic insubordination is
considered a legitimate, nondiscriminatory reason for termination.”222 The Fifth Circuit’s

reasoning in Aldrup v. Caldera implies that even one act of insubordination is sufficient
for termination.223 Plaintiff has offered no evidence showing SET’s findings of general
insubordination and disrespect to management was false or pretextual. Judgment is
appropriate in favor of SET on this claim.

219 Rec. Doc. 53-4, p. 50; Exhibits 3 & 4 to Depo. (ECF pp. 29-32).
220 Rec. Doc. 53-5, Attachment #1 (ECF p. 10).
221 179 F.3d 297, 298 (5th Cir. 1999).
222 Hill v. Brown, No. 2025 WL 51574, at *3 (W.D. La. Jan 8, 2025)(citing Chaney v. New Orleans Pub.
Facility Mgmt., 179 F.3d 164, 167 (5th Cir. 1999)).
223 274 F.3d 282, 286 (5th Cir. 2001); see also Sosa v. Coastal Corp., No. 02-40639, 2002 WL 31933068,
at *3 (5th Cir. 2002) (where the defendant had a legitimate nondiscriminatory reason for terminating the
plaintiff after only one act of insubordination).
C. Title VII Hostile Work Environment
Title VII also makes it unlawful for employers to require “people to work in a
discriminatorily hostile or abusive environment.”224 “A hostile work environment claim is
composed of a series of separate acts that collectively constitute one ‘unlawful
employment practice.’”225

A race-based harassment/hostile-work environment claim requires that a plaintiff
establish a prima facie case that (1) she is a member of a protected class; (2) she was
subject to unwelcome harassment; (3) the harassment was based upon his race; (4) the
harassment affected a term or condition of her employment; and (5) the employer knew
or should have known about the harassment and failed to take prompt remedial action.226
For harassment to affect a term, condition, or privilege of employment, it must be
“sufficiently severe or pervasive to alter the conditions of [the victim's] employment and
create an abusive working environment.”227 To meet this standard, the conduct
complained of 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.”228
Critically, Title VII is not a ‘general civility code.’”229 “Simple teasing, offhand

224 Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 432–33 (5th Cir. 2022) (quoting Gardner v. CLC
of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993))).
225 Id. (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 106 (2002) (quoting 42 U.S.C. § 2000e-
5(e)(1))).
226 West v. City of Houston, 960 F.3d 736, 741 (5th Cir. 2020) (per curiam) (citation omitted).
227 Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir.2005) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
228 Aryain v. Wal–Mart Stores of Tex. LP, 534 F.3d 473, 479 (5th Cir.2008); see also Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21–22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
229 Heath v. Southern University System Foundation, 2017 WL 2972909 at *5 (quoting Faragher, 524 U.S.
at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)) (explaining that the
elements of a hostile work environment claim “are sufficiently demanding to ensure that Title VII does not
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.”230 Under federal law,
the mere utterance of ethnic or racial epithets that engender offensive feelings in an
employee, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms, conditions, and privileges of

employment.231 The Court looks to the totality of the circumstances, considering “(1) the
frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably
interferes with an employee's work performance.”232 Generally, poor performance
evaluations, “write-ups,” and work criticism, even if unjust and unfair and in front of peers,
do not rise to the level of a hostile work environment.233
Turning to the prima facie elements of a hostile work environment claim, Plaintiff
has satisfied the first two elements: she is a member of a protected class, and she was
subjected to unwelcome harassment. However, Plaintiff has failed to present sufficient

summary judgment evidence to establish elements three and four. The Court notes that
the four-year statute of limitations limits actionable conduct in this case to September

become a ‘general civility code.’”); Clark v. S. Broward Hosp. Dist., 601 Fed.Appx. 886, 900 (11th Cir. 2015)
(quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006)) (“Title VII
is not a ‘general civility code’ and does not make ‘ordinary [workplace] tribulations’ actionable, so not all
objectionable language and conduct will support a Title VII harassment claim.”) (alteration in original );
Reine v. Honeywell Int'l Inc., 362 Fed.Appx. 395, 397–98 (5th Cir. 2010) (“This high standard for judging
hostility is specifically intended to prevent Title VII from becoming a ‘general civility code’ for the
workplace.”)).
230 Faragher, 524 U.S. at 788 (internal quotation marks and citation omitted).
231 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Lauderdale v. Tex. Dep't of Criminal
Justice, Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007).
232 Rodrigue v. PTS Management Group, LLC, 550 F.Supp.3d 376, 397 (W.D. La. 2021)(quoting West v.
City of Houston, Texas, 960 F.3d 736, 742 (5th Cir. 2020); Harvill, 433 F.3d at 435).
233 See Kang v. Bd. of Supervisors, 75 Fed.Appx. 974, 975–76, 977 (5th Cir.2003).
2019, unless Plaintiff successfully establishes the continuing violation doctrine.234
1. Harassment Based on Race
It is undisputed that there is no evidence in this case of an overt pejorative
reference to Plaintiff’s race by Jomori or Smothers. Rather, Plaintiff claims the following
language and conduct by Jomori demonstrate a racial animus:235 (1) Jomori’s email to

Plaintiff expressing that she should not yawn on the phone … “unless it is a cultural
difference from what I think as very impolite and unprofessional” in January 2019; (2)
telling Plaintiff “you know nothing,” and “shut up” in December 2019; (3) throwing papers
at Plaintiff at unspecified times; (4) lowering Plaintiff’s raise after the birthday lunch
confrontation; and (5) Jomori expressing in an October 2021 email that “the business
management of subordinates requires a strong response, especially in the case of this
person.”236

234 Plaintiff has not challenged the prescriptive period asserted by SET nor has she urged that the continuing
violations doctrine applies. The continuing violations doctrine “does not automatically attach in hostile work
environment cases, and the burden remains on the employee to demonstrate an organized scheme led to
and included the present violation.” Adams v. United Ass'n of Journeymen & Apprentices of the Plumbing
& Pipefitting Indus. of the United States & Canada, AFL-CIO, Loc. 198, 469 F. Supp. 3d 615, 636 (M.D.
La.), on reconsideration in part, 495 F. Supp. 3d 392 (M.D. La. 2020) (quoting Price v. PCS Nitrogen
Fertilizer, L.P., Civ. A. No. 03-153-RET-DLD, 2010 WL 1005181, at *4 (M.D. La. Mar. 15, 2010)).
235 The Court notes that the purported references to “you people,” them people,” or the dangerousness of
Plaintiff’s mother’s neighborhood are prescribed as they occurred in 2016; alternatively, the jurisprudence
discussed herein holds that these types of references are racially neutral and not evidence of racial animus.
See, e.g., Burrell v. Lab. Ready, Inc., No. 09-227, 2012 WL 1565360, at *5 n.13 (M.D. La. Mar. 30, 2012),
(stating that the phrase “you people” is not indicative of racial animus and plaintiff's subjective belief
otherwise is insufficient), R.&R. adopted, No. 09-227, 2012 WL 1565620 (M.D. La. Apr. 30, 2012); Stone
v. Par. of E. Baton Rouge, No. 06-401, 2008 WL 4534374, *7 (M.D. La. Sept. 30, 2008) (holding that that
there is nothing directly or indirectly race-based about the words “you people”), aff'd 329 F. App'x 542 (5th
Cir. 2009); Maldonado v. FirstService Residential, Inc., No. 20--1484, 2021 WL 2517542, at *7 (S.D. Tex.
June 18, 2021) (citation omitted) (finding the phrases “those people” and “these people” were insufficient
to state a § 1981 claim); Badaiki v. Schlumberger Holdings Corp., No. 4:20-CV-2216, 2021 WL 6010580,
at *6 (S.D. Tex. Aug. 23, 2021) (citations omitted), R.&R. adopted, 2021 WL 5542144 (S.D. Tex. Nov. 26,
2021), R.&R. adopted, 2021 WL 5769276 (S.D. Tex. Dec. 6, 2021); McLaurin v. Waffle House, Inc., 178 F.
Supp. 3d 536, 549 (S.D. Tex. 2016) (citation omitted); see also Spears v. Patterson UTI Drilling Co., 337
F. App'x 416, 420 (5th Cir. 2009) (finding vague comments insufficient to establish discrimination).
236 Rec. Doc. 53-7, p. 67.
SET contends any connection these claims have to race is purely based on
Plaintiff’s subjective speculation. Moreover, SET points to Plaintiff’s 48-minute recorded
phone conversation with Parnell and her 8-page PIP rebuttal, arguing Plaintiff never
mentions a single instance of different treatment based on race. In fact, Plaintiff’s written
rebuttal undermines her race discrimination claim where advises that “[s]everal SE Tylose

employees informed HR on November 4, 2019 of the work environment and how Mr.
Jomori treats and speaks to others.”237 SET argues this comment acknowledges that
Jomori’s conduct was not directed only at Plaintiff; thus, her race was not the basis for his
conduct.
Plaintiff contends she “explicitly” told Jomori she believed his differential treatment
was based on her race. She also claims she communicated this belief to Parnell and
Coody during informal meetings and written documentation. Plaintiff claims she was too
afraid and intimidated to “use the word ‘race’ explicitly, but that she framed the issue in
terms of “background” and “culture,” which in her view essentially expresses the same

thing. Plaintiff’s argument then descends into legal conclusions unsupported by any
authority relating to proper reporting of a claim of race discrimination. But these
arguments do not address the issue at hand - whether Jomori’s comments and conduct
are race-based, not whether Plaintiff reported them as such.238 The argument that
Jomori’s conduct must have been based on race because Plaintiff was the only Black
CSR is unsustainable because a mere difference in race, “[w]ithout more, ... does not
support a finding that [plaintiff] suffered race ...-based harassment.”239

237 Rec. Doc. 53-5, p. 12
238 This issue is addressed in the fifth prong of a hostile work environment prima facie case.
239 Byrnes v. City of Hattiesburg, 662 Fed.Appx. 288, 290-91 (5th Cir. 2016) (citing Hernandez, 670 F.3d at
652).
The Court finds that the statements and conduct subjectively perceived by Plaintiff
to be race-based are unsupported by the summary judgment record and applicable
jurisprudence. A plaintiff’s subjective belief that a vague term is discriminatory, no matter
how genuine the belief, cannot provide the basis for relief.240
Considering the evidence in the light most favorable to Plaintiff, Jomori’s conduct

could be called unprofessional. Likewise, there is competent summary judgment
evidence that Jomori was quick to react, as evidenced by SET’s decision to withdraw
Plaintiff’s PIP and Jomori’s subsequent apology. But Plaintiff offers no evidence to justify
her attributing Jomori’s general hostility, rudeness, and unprofessional demeanor to
racism. And in the Fifth Circuit, “hostile work environment jurisprudence ‘does not prohibit
all verbal or physical harassment in the workplace.’”241
There are many cases where similar or far more egregious workplace conduct than
Jomori’s has been found unsustainable under Title VII because the conduct was not
connected to a protected characteristic. In Hernandez v. Yellow Transp., Inc., the Fifth

Circuit noted that the district court did not err in finding that one of the key incidents, the
plaintiff having been threatened by with a knife by a coworker, was irrelevant because
there was no evidence that the event had anything to do with race.242 Other evidence
was also rejected by the district court because, even if it reflected hostility toward one of
the plaintiffs, there was no evidence that the actions were based on race.243 Indeed, a
wide range of conduct may render a workplace uncivil, but a plaintiff must show under

240 Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 369 (5th Cir. 2021) (citing Little v. Republic Refining
Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)).
241 Arredondo v. Schlumberger Ltd., 583 F.Supp.3d 783, 803 (W.D. Tex. 2022)(quoting Dediol v. Best
Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir. 2011) (citation omitted)).
242 670 F.3d 644, 652 (5th Cir. 2012).
243 Id.
Title VII that the conduct was based on race.244
For example, in Keel v. Wal-Mart Stores, Inc., the district court, relying on
Hernandez, rejected as evidence the fact that a co-worker regularly swore at and called
the disabled plaintiff a “fat, lazy Motherf****r.”245 The court noted that there was no
evidence that the plaintiff “interpreted this comment to implicate his disability.”246

In Byrnes v. City of Hattiesburg, the Fifth Circuit affirmed summary judgment in
favor of an employer in a disability discrimination case.247 The disabled plaintiff claimed
he suffered a hostile work environment based on his race and his disability. The plaintiff
testified that a co-worker threatened to steal his car, wreck his car, threatened the
plaintiff’s father, blocked the pathway to his office and refused to leave, and on one
occasion, put his hands on the plaintiff’s chest and pushed him.248 The Fifth Circuit
affirmed summary judgment against the plaintiff, finding that he “failed to create a genuine
issue of material fact that he was harassed because of his race or disability.”249 This was
because the plaintiff admitted that the co-worker did not refer to his race or disability when
the harassing conduct occurred.250

In Clark v. City of Alexandria, the court rejected a race-based hostile work
environment claim, finding that many of the plaintiff’s allegations did “not bear any
relationship to race.”251 The plaintiff claimed that his supervisor “made intimidating and
angry faces” at him; in a group setting the supervisor looked at each person with an angry

244 Id. (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
245 No. 1:1-cv-248, 2012 WL 3263575, at *15 (E.D. Tex. July 17, 2012).
246 Id.
247 662 F. App’x 288 (5th Cir. 2016).
248 Id. at 289.
249 Id. at 291.
250 Id.
251 No. 1:20-cv-01581, 2023 WL 5970196, at *9 (W.D. La. Sept. 13, 2023).
look; screamed at the plaintiff “in a hostile and demeaning tone” in front of other
employees; and the supervisor failed to reprimand other employees who “verbally
attacked” the plaintiff.252 The court found that there was no evidence that connected this
behavior to the plaintiff’s race.253
Here, Plaintiff offers no evidence or jurisprudence that would support the finding

that her complaints about Jomori’s conduct are objectively based on race. It is undisputed
that Jomori never uttered a racially derogatory comment to Plaintiff, and he never
attributed any anger or discipline to her race. Based on the above, the Court finds that
Plaintiff has failed to satisfy a prima facie case of hostile work environment because she
has failed to present evidence that the purported harassment was based on her race.
2. Severe or Pervasive
Although Plaintiff’s failure to establish that her harassment was race-based
forecloses her hostile work environment claim, the Court notes that this claim also fails
on the requirement that the race-based harassment was so severe or pervasive as to

permeate the workplace and create an abusive and hostile working environment. The
Court looks to the totality of the circumstances, considering “(1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with

252 Id.
253 Id. (citing Brew v. Weyerhaeuser NR Co., 537 F. App'x 309, 313 n.9 (5th Cir. 2013) (“We do not consider
other incidents of alleged harassment not based on race ... because [plaintiff] has no evidence ‘that the
non-race-based harassment was part of a pattern of race-based harassment.’”); Rome-Bienemy v.
Children's Hosp., 2015 WL 8600689, at *8 (E.D. La. Dec. 14, 2015) (“Title VII does not provide a cause of
action for work environments that are simply ‘hostile.’”) (citing Hernandez v. Yellow Transp., Inc., 670 F.3d
644, 654 (5th Cir. 2012)); Russell v. Louisiana through Div. of Admin., 2006 WL 8432078, at *8 (M.D. La.
Oct. 3, 2006) (granting summary judgment where “none of the defendants made derogatory statements to
[plaintiff] regarding her race”)).
an employee's work performance.”254
Assuming arguendo that Plaintiff has presented evidence that Jomori’s harassing
conduct was frequent, Plaintiff’s evidence of severity easily fails under a wealth of
jurisprudence. In considering the severity of Title VII harassment, “[t]he Fifth Circuit has
required racial insults to be extremely severe to survive summary judgment.”255 This

requires “direct racial insults.”256 As found above, there is absolutely no evidence in this
case of direct racial insults to Plaintiff. Plaintiff testified that at times, she felt intimidated
and humiliated by Jomori’s comments and conduct; however, the behavior is not tied to
race and, as discussed below, is less severe than conduct courts have deemed
sufficiently egregious.
In Thompson v. Microsoft Corporation, the Fifth Circuit affirmed summary judgment
of an Americans with Disabilities Act (“ADA”) disability-based hostile work environment
claim where the plaintiff’s employer made insensitive comments in response to the
plaintiff’s disclosed autism.257 The plaintiff claimed that the following comments by his

supervisor constitute severe harassment: (1) the employer’s comment that the plaintiff
should “seek a different career” when the plaintiff told the employer he was autistic; and
(2) that the employer told the plaintiff he was removed from a community pool based on
his autism.258 The court found that “[t]hese insensitive statements do not give rise to a
hostile-work-environment complaint; they were no more than “a few harsh words[.]”259

254 Rodrigue v. PTS Management Group, LLC, 550 F.Supp.3d 376, 397 (W.D. La. 2021)(quoting West v.
City of Houston, Texas, 960 F.3d 736, 742 (5th Cir. 2020); Harvill, 433 F.3d at 435).
255 Daywalker v. University of Texas Medical Branch at Galveston, 641 F.Supp.3d 362, 376 (S.D. Tex.
2022)(citing e.g., E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 400 (5th Cir. 2007)).
256 Id.
257 2 F.4th 460, 471 (5th Cir. 2021).
258 Id.
259 Id.
The plaintiff also claimed as harassment the employer’s request that he prepare a
presentation and then later reported that the presentation was done poorly.260 This was
also rejected by the court: “But ‘[c]riticism of an employee's work performance ... do[es]
not satisfy the standard for a harassment claim’ where ‘the record demonstrates
deficiencies in the employee's performance that are legitimate grounds for concern or

criticism,’ as it does here.”261
In Saketoo v. Administrators of the Tulane Education Fund, the plaintiff, a female
physician, asserted a hostile work environment claim against the administrators of her
university employer, alleging they discriminated against her based on gender.262 The
plaintiff presented evidence that her superior, Dr. Lasky, demeaned her with sporadic and
abrasive conduct over the course of four years.263 The Fifth Circuit recounted plaintiff’s
evidence of “severe” harassment by Dr. Lasky:
This includes when Dr. Lasky (1) cut her off and told her it was “not her
place” to discuss the needs of the clinic; (2) flailed his arms and yelled “I'm
sick of this!” when she inquired about the use of funds; (3) hovered over her
and shouted “I already told you what it was!” while documenting heart
catheterization results; (4) mockingly asked her if she had “danced away
scleroderma,” upon which he interrupted, “We don't need you thinking! We
need you working.”; and (5) chastised her for teaching an undergraduate
class, telling her to “[s]top it now!”264

However, the Fifth Circuit noted that “we have routinely held that similarly sporadic and
abrasive conduct is neither severe nor pervasive.265 And the fact that other women at the

260 Id.
261 Id. (quoting Credeur v. La. through Off. of Att'y Gen., 860 F.3d 785, 796 (5th Cir. 2017)(citation omitted)).
262 31 F. 4th 990 (5th Cir. 2022).
263 Id. at 1003.
264 Id.
265 Id. at 1003-04 (citing Kumar v. Shinseki, 495 F. App'x 541, 543 (5th Cir. 2012) (per curiam) (affirming
summary judgment rejecting a hostile work environment claim when “alleged hostility occurred sporadically
over a 27-month period”); Williams v. U.S. Dep't of Navy, 149 F. App'x 264, 268 (5th Cir. 2005) (per curiam)
(affirming summary judgment rejecting a hostile work environment claim involving an alleged harasser
School may have experienced severe or pervasive treatment does not save Dr.
Saketkoo's claim.”266 The court further found that, even if the plaintiff had shown Dr.
Lasky’s treatment of her to be sufficiently severe to constitute harassment, her claim still
failed because:
Although she presented evidence of his tendency to degrade her, Dr.
Saketkoo did not demonstrate that his actions were based on her gender.
The record shows that Dr. Lasky treated male physicians in a similarly
abrasive manner and that they also complained about his behavior. The
consistency of Dr. Lasky's workplace demeanor is lamentable, but that
circumstance does not supplant a plaintiff's burden to satisfy each element
of a Title VII cause of action.267

Plaintiff herein has not offered a single case that would support her position that
the facts and evidence she has presented were based on race or sufficiently severe to
meet her hostile work environment prima facie burden. Accordingly, SET is entitled to
summary judgment on Plaintiff’s hostile work environment claim.268
D. Retaliation
In her Opposition, Plaintiff contends she suffered unlawful retaliation in the
following ways: (1) she was issued a PIP following her confrontation with Jomori after the
2019 birthday lunch and denied work from home flexibility provided to her white
counterparts; (2) she “and the rest of the CSR department” had their weekly work hours

“yelling and displaying anger toward [plaintiff] over fax machine toner”); see also Pennington v. Tex. Dep't
of Fam. & Protective Servs., No. A-09-CA-287-SS, 2010 WL 11519268, at *10 (W.D. Tex. Nov. 23, 2010),
aff'd, 469 F. App'x 332 (5th Cir. 2012) (holding plaintiff failed to establish a hostile work environment where
the employer was “always hostile [and] threatening,” screamed at plaintiff, and violated plaintiff's space by
slamming files and doors)).
266 Id. at 1004 (citing Septimus v. University of Houston, 399 F.3d 601, 612 (5th Cir. 2005) (observing that
alleged harassment a plaintiff did not personally experience was inadequate to render her alleged
harassment severe or pervasive)).
267 Id.
268 Because Plaintiff has failed to satisfy prongs three and four of her prima facie case, the Court need not
consider prong five – whether the employer knew or should have known of the harassment in question and
failed to take prompt remedial action. However, the notice requirement for a hostile work environment claim
is similar to the “engaged in protected activity” requirement that the Court will fully address in evaluating
Plaintiff’s retaliation claim.
audited based on “incomplete data;” and (3) she was terminated because she complained
to Jomori about Smothers’ alleged “targeting” her, telling her she “did not fit in,” and she
was being subjected to unrealistic expectations.269
To establish a prima facie case of retaliation under the traditional McDonnell
Douglas framework, “the plaintiff must establish that: (1) [s]he participated in an activity

protected by Title VII; (2) h[er] employer took an adverse employment action against h[er];
and (3) a causal connection exists between the protected activity and the adverse
employment action.”270
An employee engages in activity protected by Title VII when the employee has
“opposed any practice made an unlawful employment practice” by Title VII or “made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing” under Title VII.271 The Supreme Court has explained that, to demonstrate
retaliation, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have
‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”272

Furthermore, “opposing” a practice “only constitutes protected activity if the employer had
some notice of both the employee’s opposition and the discriminatory nature of the
conduct being opposed.”273 Filing an internal complaint can also constitute protected
activity. However, “while opposition to discrimination need not be in formal writing, internal

269 Rec. Doc. 61-1, pp. 79-80, 82-83, 111-112, 137-138; Rec. Doc. 61-19. Plaintiff operative Complaint
alleges that Jomori’s lesser pay increase in 2020 was retaliatory (Rec. Doc. 22), but she abandons this
claim by not responding to it in her Opposition. Alternatively, the Court has already held that the lesser pay
increase was not an adverse employment action.
270 McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
271 42 U.S.C. § 2000e–3(a); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
272 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, (2006) (citations omitted).
273 Henderson v. Bd. of Supervisors of S. Univ. & A&M Coll., No. CV 21-297-JWD-RLB, 2023 WL 2614620
(M.D. La. Mar. 23, 2023).
complaints must reference discrimination or other unlawful employment activity in order
to be protected.”274 Additionally, “[m]agic words are not required, but protected opposition
must at least alert an employer to the employee’s reasonable belief that unlawful
discrimination is at issue.”275
If the plaintiff establishes a prima facie case, then the employer has the burden of

production to provide “a legitimate, non-discriminatory reason” for the adverse
employment action.276 If the employer meets this burden, then the plaintiff has the burden
to prove that the proffered reason is pretextual.277 “A plaintiff may establish pretext by
showing that a discriminatory motive more likely motivated her employer's decision, such
as through evidence of disparate treatment, or that her employer's explanation is
unworthy of credence.”278 Ultimately, in order to survive a motion for summary judgment,
a plaintiff must show “a ‘conflict in substantial evidence’” on the question of whether the
employer would not have taken the adverse employment action but for the protected
activity.279 “Evidence is substantial if it is of such quality and weight that reasonable and

fair-minded [triers of fact] in the exercise of impartial judgment might reach different
conclusions.”280
As the Fifth Circuit explained in Owens v. Circassia Pharms., Inc.:
An employee can establish pretext in the context of retaliation by showing
that a discriminatory motive more likely motivated her employer's decision.
In order to survive a motion for summary judgment, the plaintiff must show

274 Allen v. Johnson, No. CIV.A. 13-503-JWDSCR, 2014 WL 7334901 (M.D. La. Dec. 19, 2014) (citing
Rodriquez v. Wal–Mart Stores, Inc., 540 Fed. Appx. 322 (5th Cir.2001)).
275 Brown v. United Parcel Serv., Inc., 406 F. App'x 837 (5th Cir. 2010).
276 Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).
277 Id.
278 Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).
279 Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019) (quoting Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 658 (5th Cir. 2012))(emphasis added).
280 Owens v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir. 2022)(citing Laxton v. Gap, Inc., 333
F.3d 572, 579 (5th Cir. 2003)).
a conflict in substantial evidence on this issue. At this juncture, we consider
numerous factors, including the strength of the plaintiff's prima facie case,
the probative value of the proof that the employer's explanation is false, and
any other evidence that supports the employer's case and that properly may
be considered.
…

This inquiry requires a greater showing than mere causal connection.
It requires that the plaintiff show that protected conduct was the
reason for the adverse action. In other words, even if a plaintiff's protected
conduct is a substantial element in a defendant's decision to terminate an
employee, no liability for unlawful retaliation arises if the employee
would have been terminated even in the absence of the protected
conduct.281

1. Adverse Employment Action
First, the Court will determine whether Plaintiff’s complaints constitute adverse
employment actions. It is undisputed that Plaintiff’s termination constitutes an adverse
employment action. However, her other claims of retaliation are questionable. Even after
Hamilton, the Fifth Circuit has confirmed that written reprimands, placement on a PIP,
and other corrective or remedial measures do not constitute adverse employment actions
unless they “affect job title, grade, hours, salary, or benefits or cause a diminution in
prestige or change in standing among coworkers.”282 This makes sense because
“immunity from criticism cannot, logically or legally, be a ‘term, condition, or privilege of
employment.’”283 Additionally, discipline that is later reversed or rescinded cannot support

281 Id. at 835 (emphasis added).
282 Lemonia v. Westlake Mgmt. Servs., Inc., No. 22-30630, 2023 WL 6878915, at *7 (5th Cir. Oct. 18, 2023)
(cleaned up) (citing Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 823, 826 (5th Cir. 2019), abrogated
on other grounds by Hamilton, 79 F.4th at 502–06); see id. at *7 (“[T]he district court did not err to the extent
the court concluded that Lemonia's placement on a PIP, without more, did not constitute an adverse
employment action.”); Moye v. Tregre, No. 22-30341, 2024 WL 65424, at *3 (5th Cir. Jan. 5, 2024) (“The
remedial training requirement is, at most, differential treatment that helps the employee.” (citation and
quotation marks omitted)).
283 Fleming v. Methodist Healthcare System of San Antoio, Ltd., LLP, 2024 WL 1055120, *13 (citing cf.
Smith v. McDonough, No. SA-22-CV-01383-JKP, 2023 WL 5918322, at *5 (W.D. Tex. Sept. 8, 2023)
(“Smith's allegations of discrimination based on criticism and scrutiny of his work and having his
telecommuting agreement revoked could potentially support a finding that he was denied the terms,
conditions, and privileges of employment.”)).
a retaliation claim.284 Thus, being placed on a PIP that was later withdrawn cannot form
the basis of a retaliation claim.
Plaintiff contends after threatening an unspecified EEOC complaint in response to
the PIP, she “experienced increased scrutiny and was denied flexible work
accommodations previously available to her and others.”285 As the Court previously

found, the change in remote working policy did not constitute more than de minimus harm
and does not qualify as an adverse employment action.286
As for the auditing of the CSR department’s working hours, Plaintiff argued that
the audit occurred based on SET’s mistaken belief that she was only working 20 hours
per week.287 But Plaintiff’s own evidence undermines this claim. Plaintiff’s notes attached
to Coody’s deposition state that, during Plaintiff’s conversation with Coody on August 4,
2022, Coody asked Plaintiff “do you know why the schedule was changed … because
your entire team has been being investigated for the last four months” because “no one
has worked 40 hours.”288 Plaintiff confirms with her own notes that the audit targeted the

entire department, including white employees, and it was not based on only one pay
period but was a four-month investigation. The audit of the entire CSR department cannot
form the basis of a retaliation claim.

284 See Willis v. W. Power Sports, Inc., No. 23-10687, 2024 WL 448354, at *2 (5th Cir. Feb. 6, 2024) (“Willis
fails to show that he suffered an adverse employment action. Willis's complaint alleges that he complained
of the discrimination on August 20 (one day after he was first fired) and was almost immediately rehired.”);
see also Brooks v. Hous. Indep. Sch. Dist., 86 F. Supp. 3d 577, 590 (S.D. Tex. 2015) (decision to terminate
employee that was later rescinded was not adverse employment action for retaliation claim: “Because the
August 2012 decision to terminate her was rescinded with no loss of pay, it is not an adverse employment
action.”).
285 Rec. Doc. 63, p. 30.
286 The claim would additionally fail the causation prong based on the lack of temporal proximity – Plaintiff
was placed on the PIP in December 2019, the change in remote work policy occurred in late 2021 after
Smothers became Plaintiff’s supervisor.
287 Rec. Doc. 63, p. 30.
288 Rec. Doc. 61-19, p. 1 (emphasis added).
A department-wide audit is not unlike a company’s reduction in force. In Baker v.
American Airlines, the plaintiff was terminated pursuant to a company-wide ten percent
reduction in force after the events of September 11, 2001.289 Although he failed to present
any supporting evidence, the plaintiff claimed that he was targeted based on his age.290
The court rejected both the discrimination and retaliation claims asserted, finding that the

plaintiff failed to submit any evidence that a company-wide reduction in force was merely
a pretext to get rid of her, specifically.291
Based on the foregoing, the Court finds that the only adverse employment action
taken against Plaintiff was her termination.
2. Protected Activity
The parties also dispute whether Plaintiff has established the first prong – that she
engaged in Title VII protected activity. In Davis v. Dallas Independent School Dist.,292 the
Fifth Circuit shed light on the specificity required to demonstrate engagement in a Title
VII protected activity:

We have consistently held that a vague complaint, without any reference to
an unlawful employment practice under Title VII, does not constitute
protected activity. See, e.g., Tratree v. BP N. Am. Pipelines, Inc., 277 Fed.
Appx. 390, 395 (5th Cir. 2008) (“Complaining about unfair treatment
without specifying why the treatment is unfair ... is not protected
activity.”); Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx.
913, 916 (5th Cir. 2006) (affirming summary judgment on retaliation claim
where plaintiff never “specifically complained of racial or sexual
harassment, only harassment”); Moore v. United Parcel Serv., Inc., 150
Fed. Appx. 315, 319 (5th Cir. 2005) (“Moore ... was not engaged in a
protected activity, as his grievance did not oppose or protest racial
discrimination or any other unlawful employment practice under Title VII.”);
see also Evans v. Tex. Dep't of Transp., 547 F. Supp. 2d 626, 654 (E.D.
Tex. 2007) (“Plaintiff has not shown that she engaged in a statutorily

289 430 F.3d 750, 754 (5th Cir. 2005).
290 Id.
291 Id.
292 448 F. App’x 485 (5th Cir. 2011).
protected activity. Specifically, although Evans complained of a purportedly
hostile work environment, at no time did she suggest that [the conduct at
issue] was related to Evan's race, sex, ... or other characteristic protected
by Title VII.”).293

In Davis, when the plaintiff stated in a meeting that a supervisor “created a ‘hostile
work environment,” the Fifth Circuit found that did “not itself constitute ‘protected activity’
within the meaning of Title VII, as this complaint lacked a racial or gender basis.”294
There is absolutely no record evidence that Plaintiff ever indicated that the alleged
hostile environment she suffered was based on the protected status of her race. The
written rebuttal to the PIP mentions the words hostile environment but never specifically
connects the claim to race. The purported threat to file an EEOC complaint, made to
Coody295 and noted by Parnell in her 2019 birthday lunch incident Notes,296 does not
indicate that Plaintiff advised that the nature of any potential EEOC complaint was based
on Plaintiff’s race. In reference to Coody’s notes, Coody testified: “I think at the end of the
conversation, I wanted – I don’t know if she had made a comment to the EEOC at some
point, but I advised her that she – I asked her if she had filed a complaint, she said no. I
told her she had a right to do that if she wanted, but I wanted her to understand if she had
any further complaints, she could come to me. So we documented that at the end of the
sheet.”297 Coody further testified that Plaintiff never made a complaint of discrimination
after she received the PIP.298 Plaintiff admitted she cannot remember if she ever reported
race discrimination to Parnell.299

293 Id. at 493.
294 Id. (citing 42 U.S.C. § 2000e-3(a)).
295 Rec. Doc. 61-16, p. 1 (“EEOC comment =>gave employee avenue to report properly to HR.”).
296 Rec. Doc. 61-25, p. 2 (Plaintiff “said she know she could have gone and filed an EEOC but she loves
the company.”).
297 Rec. Doc. 61-3, pp. 18-19.
298 Id. at p. 27.
299 Rec. Doc. 61-1, p. 68.
Plaintiff has also contradicted her own testimony regarding whether she expressly
reported race as a basis for alleged discrimination. In her deposition, Plaintiff testified
that she could not recall the wording she used, but she “definitely” said she was being
“treated differently because I was different in regard to my race,” although in the same
sentence she said her statement to Jomori was not that she was being treated differently

because she is Black, but because of her “culture and background.”300 When questioned
about the PIP rebuttal, Plaintiff stated: “I definitely did not say Mr. Jomori is mistreating
me because I’m black.”301 But then Plaintiff testified that “she know[s] [she] put [a race
complaint] in an email somewhere,” but she would have to find it.302 No such email was
submitted in this matter. When pressed further on why Plaintiff never specifically
referenced her race as the reason for discrimination, Plaintiff testified: “I may have been
afraid to say, oh, Mr. Jomori, you are doing this to me because I’m Black. Yes … I was
afraid to say that, definitely … So … forgive me if I didn’t say you are doing this to me
because I’m Black. I didn’t know it was a requirement that I spell it out.”303 As discussed

above, it is, indeed, a requirement that Plaintiff “spell it out.”
Regarding Plaintiff’s termination, which is the only adverse employment action for
purposes of her retaliation claim, Plaintiff claims that she was terminated in retaliation for
reporting Smothers to Jomori.304 SET contends Plaintiff has failed to demonstrate how
reporting Smothers to Jomori constitutes protected activity. She relayed to Jomori, her
alleged former harasser, that she was “confused and uncomfortable” about who she

300 Rec. Doc. 53-3, pp. 47-48.
301 Id. at p. 80
302 Id. at pp. 81-83.
303 Id. at pp. 86-87.
304 Rec. Doc. 53-3, pp. 137-138; Ex. 4 to Depo.
reports to, she complained about the remote work policy, and she complained about a
conversation between herself and Smothers wherein she claims Smothers was
“completely dishonest” about her ability to work from home.305 Ironically, she indicates
she would rather her work instructions come from Jomori than Smothers because
Smothers “is a dishonest person” that she does “not trust.”306 Nowhere in this email does

Plaintiff attribute Smothers’ treatment of her to her race, which makes sense because
Smothers is also African-American.
Plaintiff responds claiming that in this email to Jomori, she describes being told
she was “not a good fit,” she felt targeted, and she felt she was being subjected to
unrealistic expectations.307 For context, Plaintiff wrote “I was told by Brad that maybe I
am no longer a good fit for this company and maybe other alternatives should be
considered by myself because the schedule will not be altered[.]”308 The context of Brad
advising Plaintiff that she might no longer “be a good fit” for the company was in relation
to her repeated complaints about the remote work schedule, not about Plaintiff’s race.

None of Plaintiff’s complaints about Smothers to Jomori constitute Plaintiff’s “opposition
to any practice made unlawful by Title VII” or constitute making “a charge, testified,
assisted, or participated in a Title VII proceeding or investigation.”309 Accordingly, Plaintiff
has failed to show that she engaged in protected activity under Title VII, and SET is
entitled to summary judgment on this claim.

305 Rec. Doc. 53-3, Ex. K to Depo (ECF p. 99).
306 Id.
307 Id. (ECF p. 101).
308 Id.
309 Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 576-77 (5th Cir. 2020)(internal quotation marks
omitted).
3. Causation – Temporal Proximity
Plaintiff also fails to satisfy the prima facie causation requirement for a retaliation
claim. In Lyons v. Katy Independent School District,310 the Fifth Circuit explained the
principles applied to the causation requirement:
“Close timing between an employee's protected activity and an adverse
action against him may provide the ‘causal connection’ required to make
out a prima facie case of retaliation.”311 The Supreme Court has observed
that “[t]he cases that accept mere temporal proximity between an
employer's knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie case [of
retaliation] uniformly hold that the temporal proximity must be ‘very
close.’”312 We have ruled, for example, that a six-and-a-half-week timeframe
is sufficiently close,313 but that a five month lapse is not close enough,
without other evidence of retaliation, to establish the “causal connection”
element of a prima facie case of retaliation.314

The Lyons court found that a nine-month lapse between the plaintiff’s protected activity
and the adverse employment action was insufficient evidence of causality to establish a
prima facie case of retaliation.”315 In Wright v. Union Pacific Railroad Co., the Fifth Circuit
held that a more than two-year time lapse between an employee's protected activity of
filing an employment discrimination lawsuit and the employee's termination was “too

310 964 F.3d 298 (5th Cir. 2020).
311 Id. at 305 (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (emphasis
added by Fifth Circuit)).
312 Id. (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001);
see also Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (commenting on Breeden
and observing that, “temporal proximity alone, when very close, can in some instances establish a prima
facie case of retaliation” but also rejecting the “notion that temporal proximity standing alone can be
sufficient proof of but for causation” once the burden shifts back to the employee under the McDonnell
Douglass framework)).
313 Id. (citing Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 949 (5th Cir. 2015);
see also Wilson v. Noble Drilling Servs., Inc., 405 F. App'x 909, 913 (5th Cir. 2010) (unpublished)
(concluding that one month between was sufficiently close); Evans v. Houston, 246 F.3d 344, 354 (5th Cir.
2001) (concluding that a five-day lapse was sufficient to satisfy the third element of a prima facie case of
retaliation)).
314 Id. (citing Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002) (noting that a district
court in this circuit has found that “a time lapse of up to four months has been found sufficient”)).
315 Id. at 306.
remote to permit a reasonable inference of causation.”316
Here, Plaintiff contends that, since she reported Smothers’ treatment of her on
August 3, 2022, and she was terminated on August 4, 2022, the timing between her
“protected activity – especially her email regarding Mr. Smothers – and her termination
strongly supports a causal connection.”317 However, Plaintiff’s report of Smothers to

Jomori does not constitute protected activity as held above. The other instances of
purported protected activity took place in late 2019, nearly three years before Plaintiff was
terminated. Applying the foregoing jurisprudence, the Court finds that, even if 2019
complaints about Jomori constituted protected activity, the lapse in time between these
reports and Plaintiff’s termination is too remote in time to permit a reasonable inference
of causation.
Additionally, the Fifth Circuit has held that, even at the prima facie stage, temporal
proximity can only establish a causal link when it is connected to the decision maker's
knowledge of the protected activity.318 It is undisputed that Smothers was not employed

316 990 F.3d 428, 433-34 (5th Cir. 2021)(citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74, 121
S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that an adverse action taken twenty months after employer
became aware of protected activity “suggests, by itself, no causality at all”); Leal v. McHugh, 731 F.3d 405,
417 (5th Cir. 2013) (affirming dismissal of retaliation claim because “a three-year lapse, at best, between
the protected activity and the adverse employment action is too attenuated temporally to state a claim for
relief, even if [plaintiff's supervisor] was aware of the activity”)).
317 Rec. Doc. 63, p. 31.
318 Thompson v. Somervell County, Tex., 431 F. App’x 338, 342 (5th Cir. 2011)(citing Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (“The cases that
accept mere temporal proximity between an employer's knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the
temporal proximity must be very close.” (emphasis added) (internal quotation marks and citation omitted));
Cothran v. Potter, 398 Fed.Appx. 71, 73–74 (5th Cir.2010) (unpublished) (“The combination of temporal
proximity and knowledge of a protected activity may be sufficient to satisfy a plaintiff's prima facie burden
for a retaliation claim”); Ramirez v. Gonzales, 225 Fed.Appx. 203, 210 (5th Cir.2007) (unpublished) (“Fifth
Circuit precedent requires evidence of knowledge of the protected activity on the part of the decision maker
and temporal proximity between the protected activity and the adverse employment action.”); see also
Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“[T]emporal proximity alone is
insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence
that the decision maker did not have knowledge that the employee engaged in protected conduct.”)).
by SET until July 2022, two and a half years after Plaintiff’s prior “reports.”319
Plaintiff does not address the requirement that, to establish a causal link, “the
decision maker must know of the protected activity when the decision to take the adverse
employment action occurred,”320 and there is no evidence in the record to show that
Smothers had such knowledge. Plaintiff likewise fails to address that retaliation requires

but-for causation; she neither argues nor presents any evidence to show that but-for any
protected activity, she would not have been terminated.
As discussed above in evaluating Plaintiff’s disparate treatment claims, SET
provided several legitimate, non-discriminatory reasons to support Plaintiff’s termination,
and she failed to demonstrate competent summ

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11298164. Public record. Not legal advice.