# Garcia

> District Court, N.D. Texas · August 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11423228

## Case

- **Full name:** Adrian Garcia v. DroneUp Texas, LLC
- **Court:** District Court, N.D. Texas
- **Decided:** August 20, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ADRIAN GARCIA, §
§
Plaintiff, §
§
VS. § Civil Action No. 3:25-CV-0036-D
§
DRONEUP TEXAS, LLC, §
§
Defendant. §
MEMORANDUM OPINION
AND ORDER
Plaintiff Adrian Garcia (“Garcia”) sues his former employer, DroneUp Texas, LLC
(“DroneUp”), alleging claims for race and national origin discrimination, retaliation, and a
hostile work environment under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. DroneUp moves for summary judgment. For
the reasons explained, the court grants the motion in part, and in part raises sua sponte that
DroneUp is entitled to summary judgment on Garcia’s remaining claims. The court grants
Garcia leave to respond before dismissing the claims on grounds that it is raising sua sponte.
I
Garcia is a Hispanic male of Mexican descent. DroneUp interviewed Garcia in
February 2022, August 2022, and September 2022, but Garcia did not receive an
employment offer. In October 2022 DroneUp hired Garcia as a flight engineer. Garcia
initially worked under Scott Clem (“Clem”), Colin Hensley (“Hensley”), and Dennis Bruce
(“Bruce”). On January 29, 2023 Garcia told Bruce that he had been having issues with Clem
and Hensley. In February 2023 Bruce permitted Garcia to transfer to a different DroneUp
location. At this new location, Garcia reported to Massiel Arias (“Arias”), a Hispanic
woman. Under Arias, Garcia received a negative performance evaluation.

On March 3, 2023 Garcia submitted a harassment complaint to human resources
(“HR”). The complaint detailed instances where Clem and Hensley had allegedly harassed
Garcia and another DroneUp employee. The complaint also noted that Arias, his new
supervisor, had labeled him as “not in standard” and told him that he could not fly the drones.

D. App. (ECF No. 24-1) 91. HR responded to Garcia’s complaint and explained that they
would “continue to conduct the internal investigation” and follow up with a phone call. Id.
at 114. Garcia and HR eventually spoke on the phone. According to Garcia, HR asked him
if he had heard any racist comments. Garcia reported that a coworker heard Clem state that
he did not like Black people moving to his neighborhood. Then, on March 20, 2023, Garcia

followed up with HR to report another comment that Clem had made about low-income
children.1
Garcia also submitted an anonymous survey response in which he stated that he had
“been dealing with harassment, retaliation, intimidation, racism, slander, unequal treatment,
and bullying from management.” D. App. (ECF No 24-1) 93. Garcia acknowledged in his

deposition, however, that he never observed a DroneUp employee make a comment about
his race or national origin.
1Garcia also heard from a coworker that Hensley had made negative comments about
transgender individuals. But it does not appear that Garcia reported Hensley’s comments to
HR.
-2-
In January 2023 DroneUp conducted a reduction in force (“RIF”). In April 2023 it
decided to conduct another RIF in May 2023. In preparation for the May RIF, DroneUp
requested that supervisors complete evaluations for each flight engineer. DroneUp elected

to eliminate all flight engineers who received a “Disagree” rating in the “Would hire again”
category of the evaluation form. Garcia received a “Disagree” rating in the pertinent
category and was terminated.
Garcia filed this lawsuit, alleging race and national origin discrimination, retaliation,

and a hostile work environment under Title VII and § 1981. DroneUp moves for summary
judgment. Garcia opposes the motion, which the court is deciding on the briefs, without oral
argument.
II
When a summary judgment movant will not have the burden of proof on a claim at

trial, it can obtain summary judgment by pointing to the absence of evidence on any essential
element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party does so, the nonmovant must go beyond his pleadings and designate
specific facts to demonstrate that there is a genuine issue of material fact for trial. See id. at
324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmovant’s failure to produce proof as to any essential element renders all other facts
immaterial. TruGreen LandCare, L.L.C. v. Scott, 512 F.Supp. 2d 613, 623 (N.D. Tex. 2007)

-3-
(Fitzwater, J.). Summary judgment is mandatory where the nonmovant fails to meet this
burden. Little, 37 F.3d at 1076.
III

The court first addresses Garcia’s disparate treatment claims.
A
Garcia brings his disparate treatment claims under § 1981 and Title VII. Because
Garcia does not offer direct evidence of discrimination, he must proceed under the familiar
McDonnell Douglas2 burden-shifting framework. See, e.g., Johnson v. BAE Sys. Land &

Armaments, L.P., 2014 WL 1714487, at *6 (N.D. Tex. Apr. 30, 2014) (Fitzwater, C.J.).
Under the McDonnell Douglas framework, Garcia must first demonstrate a prima
facie case of discrimination, which “creates a presumption that [DroneUp] unlawfully
discriminated against [him].” Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981).

Second, if Garcia establishes a prima facie case, the burden shifts to DroneUp to
articulate a legitimate, nondiscriminatory reason for the employment action taken against
him. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). DroneUp’s burden
is one of production, not proof, and involves no credibility assessments. See, e.g., West v.
Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003).

Third, if DroneUp meets its production burden, “the presumption of discrimination
created by [Garcia’s] prima facie case disappears,” Machinchick v. PB Power, Inc., 398 F.3d
345, 350 (5th Cir. 2005), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557

2McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
-4-
U.S. 167 (2009), and “the burden shifts back to [Garcia] to make an ultimate showing of
intentional discrimination.” Campbell v. Zayo Grp., LLC, 2015 WL 3903539, at *3 (N.D.
Tex. June 25, 2015) (Fitzwater, J.) (quoting Reed v. Neopost USA, Inc., 701 F.3d 434, 439

(5th Cir. 2012)). Garcia must offer sufficient evidence to create a genuine issue of material
fact that DroneUp’s reason is not true, but is instead a pretext for discrimination. See
Johnson, 2014 WL 1714487, at *7.
B
DroneUp contends that Garcia’s failure to hire claims should be dismissed.3

1
DroneUp contends that Garcia has failed to establish a prima facie case for his failure
to hire claims. In February 2022 Garcia did not receive a flight engineer position. DroneUp
maintains that Garcia has failed to show that he was qualified for this position. It explains

that Garcia did not have sufficient work experience to be offered the job. Garcia responds
that, because he was ultimately hired in October 2022 as a flight engineer, he was qualified
for the February 2022 flight engineer position.
The court will assume arguendo that Garcia has established that he was qualified and,
therefore, has established his prima facie case.

2
Because the court is assuming that Garcia is able to establish a prima facie case, the
3Garcia concedes that his Title VII failure to hire claim is barred because it is
untimely. For the reasons discussed in this section, the Title VII claim also fails on the
merits.
-5-
burden shifts to DroneUp to articulate a legitimate, nondiscriminatory reason for failing to
hire him in February 2022. DroneUp’s Texas location was not operational in February 2022.
Garcia applied in February 2022 for a flight engineer position that would start in Arkansas

and ultimately transfer to Texas. DroneUp explains that, for convenience, it decided to hire
an extremely select number of flight engineers to start in Arkansas. According to DroneUp,
Garcia did not have sufficient experience in the drone industry to be selected for this
position. But when DroneUp’s Texas location opened in October 2022, demand for flight

engineers increased, and Garcia was offered a position.
DroneUp has met its burden by producing evidence that, in February 2022, it selected
a more qualified candidate. See Sabzevari v. Reliable Life Ins. Co., 264 Fed. Appx. 392, 395
(5th Cir. 2008) (per curiam) (“Selection of a more qualified applicant is a legitimate and
nondiscriminatory reason for preferring one candidate over another.”).

3
Because DroneUp has met its burden of production, the burden now shifts back to
Garcia to produce evidence that would enable a reasonable juror to find that DroneUp’s
asserted reason for failing to hire him is a pretext for discrimination. Garcia contends that
the fact that DroneUp’s reasons for failing to hire him in February 2022 are shifting and

inconsistent is evidence of pretext. He maintains that DroneUp’s explanation that it wanted
to hire an extremely select number of engineers to avoid having to transfer many employees
to the Texas location is inconsistent with its explanation that Garcia did not have sufficient
work experience. DroneUp replies that its reasons are consistent.

-6-
The court concludes that Garcia has failed to meet his burden of raising a genuine
issue of material fact on pretext. The court discerns no inconsistency in DroneUp’s reasons
for failing to hire Garcia. DroneUp’s explanation that it sought to hire only a select number

of flight engineers for the Arkansas location, to avoid having to relocate many new hires to
Texas, is consistent with its explanation that Garcia lacked sufficient experience to be among
the select number of engineers hired to start in Arkansas. See Squyres v. Heico Cos., LLC,
2013 WL 6027387, at *9 (N.D. Tex. Nov. 13, 2013) (Boyle, J.) (“These arguments are not

shifting or inconsistent, but are instead complementary . . . .”), aff’d, 782 F.3d 224 (5th Cir.
2015). Nor is it the case that DroneUp’s reasons for failing to hire Garcia in February 2022
have changed over time. See id. at *9 (“[Plaintiff] does not present evidence to show that
Defendants have made one assertion only to later make a contradictory assertion . . . .”
(emphasis added)).4 Because Garcia has failed to raise a genuine issue of material fact as to

whether DroneUp’s proffered reasons for failing to hire him are pretextual, the court grants
the motion for summary judgment and dismisses Garcia’s failure to hire claims.5

4Garcia could also have attempted to show that DroneUp’s reason is pretextual by
offering evidence that he was clearly better qualified than the individuals whom DroneUp
hired. Garcia has not attempted to do so. But even if he had, the record fails to show that
Garcia was clearly better qualified than the individuals DroneUp hired in February 2022.
5Garcia also applied for, but did not receive, positions with DroneUp in August 2022
and September 2022. To the extent that his failure to hire claims are premised on these
rejections, Garcia does not address the rejections in his summary judgment response. In any
event, a failure to hire claim premised on either rejection would fail for the reasons discussed
above: there is no evidence suggesting that the hiring process was influenced by Garcia’s
race or national origin.
-7-
C
DroneUp also contends that Garcia’s discriminatory termination claims should be
dismissed.

1
The court turns first to DroneUp’s contention that Garcia has failed to establish a
prima facie case. “In disparate treatment cases, the plaintiff-employee must show ‘nearly
identical’ circumstances for employees to be considered similarly situated.” Berquist v.

Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007). DroneUp maintains that Garcia has
failed to produce evidence that he was treated less favorably than others similarly situated
outside his protected class.
Garcia has not produced evidence of specific individuals outside of his protected class
who were treated more favorably in “nearly identical” circumstances. To satisfy the

similarly situated prong for his termination claims, Garcia must identify at least one flight
engineer outside his protected class who received a “Disagree” rating in the “Would hire
again” category, as Garcia did, but who was not terminated, as Garcia was. See Alkhawaldeh
v. Dow Chem. Co., 851 F.3d 422, 426-27 (5th Cir. 2017) (“[I]n order for [plaintiff] to satisfy
the ‘similarly situated’ prong, he must identify at least one non-Muslim Jordanian Arab

FS/FL in [defendant’s] Epoxy Research and Development Group who received a 1 rating,
as he did, and who completed a PIP, as he did, but who was not fired, as he was.”). Garcia
has failed to identify any such comparator. To the contrary, the record shows that flight
engineers—some of whom were White—who received the same negative rating as Garcia

-8-
in the “Would hire again” category were terminated as part of the RIF.
Garcia’s contention that the appropriate comparators are two White flight engineers
who received more favorable ratings in their RIF evaluation is unavailing. See Kendall v.

Block, 821 F.2d 1142, 1147 (5th Cir. 1987) (explaining that plaintiff’s attempt to compare
himself to employees with higher “performance appraisal ratings” was “misguided”). Even
if these two individuals were appropriate comparators for purposes of the termination claims,
Garcia has failed to show that they were similarly situated to him. See Lee v. Kan. City S.

Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009); see also Tran v. City of Carrollton, 2026 WL
2295763, at *12 (N.D. Tex. Aug. 10, 2026) (Fitzwater, J.) (granting summary judgment on
Title VII claim where plaintiff failed to “point to specific facts regarding [proffered
comparators’] job experience, qualifications, or other characteristics”)
Accordingly, the court holds that Garcia has failed to establish a prima facie case for

his discriminatory termination claims. See, e.g., Alkhawaldeh, 851 F.3d at 427 (affirming
dismissal where plaintiff could not “prove that he was treated less favorably than others
‘similarly situated’ outside of his protected class”); Briceno-Belmontes v. Coastal Bend Coll.,
2022 WL 912785, at *5 (S.D. Tex. Mar. 29, 2022) (granting summary judgment because
plaintiff could not show that “a non-Hispanic academic advisor and recruiter, similarly

situated to her, was not fired”).
2
Although it is not necessary for the court to proceed to the next step in the McDonnell
Douglas framework, Garcia’s termination claims fail even if the court assumes that he is able

-9-
to establish a prima facie case. The burden would shift to DroneUp to articulate a legitimate,
nondiscriminatory reason.
DroneUp’s stated reason is that Garcia was terminated as part of a RIF. “A [RIF] ‘is

itself a legitimate, nondiscriminatory reason for discharge.’” Bourgeois v. Miss. Valley State
Univ., 507 Fed. Appx. 386, 388 (5th Cir. 2013) (per curiam) (quoting EEOC v. Tex.
Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). DroneUp has introduced evidence
that it undertook the May RIF because the demand for drones lagged in the first quarter of

2023. Thus DroneUp has met its burden of production.
3
The burden would now shift back to Garcia to produce evidence that would enable a
reasonable juror to find that DroneUp’s asserted reason for terminating him is pretext for
discrimination.
Garcia principally relies on a cat’s paw analysis.6 “To invoke the cat’s paw analysis,

[Garcia] must submit evidence sufficient to establish two conditions: (1) that a co-worker

6Although Garcia’s summary judgment response maintains that his termination claim
turns at this stage of the McDonnell Douglas framework on pretext, the response’s invocation
of a cat’s paw analysis could be interpreted to suggest that he is attempting to argue that
DroneUp acted with mixed motives. But Garcia does not clearly contend that DroneUp had
mixed motives. See Arrieta v. Yellow Transp., Inc., 2008 WL 5220569, at *9 (N.D. Tex.
Dec. 12, 2008) (Fitzwater, C.J.) (concluding that court would consider plaintiff’s
discrimination claim only under pretext alternative because plaintiff did not clearly contend
that defendant had mixed motives), aff’d sub nom. Hernandez v. Yellow Transp., Inc., 670
F.3d 644 (5th Cir. 2012). Even assuming that Garcia has raised a mixed motives argument
for his termination claims, the outcome would be the same. Garcia has not produced
sufficient evidence for a reasonable juror to find that the RIF was motivated, in part, by his
race or national origin.
-10-
exhibited discriminatory animus, and (2) that the same co-worker ‘possessed leverage, or
exerted influence, over the titular decisionmaker.’” Roberson v. Alltel Info. Servs., 373 F.3d
647, 653 (5th Cir. 2004) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th

Cir. 2000)). Garcia maintains that a cat’s paw analysis is appropriate because the supervisors
who allegedly controlled his RIF evaluation—Clem, Hensley, and Arias—were the same
individuals whose conduct he reported.
Garcia’s cat’s paw analysis fails on both prongs. First, Garcia “has failed to create

a genuine issue of fact on whether [his] co-workers harbored [discriminatory] animus
towards [him] and wanted [him] terminated because of [his] race [or national origin].”
Hervey v. Miss. Dep’t of Educ., 404 Fed. Appx. 865, 872 (5th Cir. 2010) (per curiam)
(concluding that cat’s paw analysis was not applicable under these circumstances). In his
summary judgment response, Garcia highlights incidents between himself and Clem,

Hensley, and Arias that, while indicative of tension, fail to create a genuine issue of material
fact on whether they wanted Garcia terminated because of his race or national origin. See
id. Although there is evidence that Clem made comments about Blacks and low-income
children, and that Hensley made comments about transgender individuals, Garcia conceded
in his deposition that neither Clem or Hensley made comments about Garcia’s race or

national origin.
Second, Garcia has failed to identify a coworker who exhibited discriminatory animus
and possessed leverage, or exerted influence, over the ultimate decisionmaker. It is not clear
from the summary judgment record who completed Garcia’s evaluation form for the RIF.

-11-
In April 2023 DroneUp asked supervisors to complete evaluation forms for the flight
engineers. It appears that Arias was Garcia’s supervisor at that time. Yet Garcia also
testified that John Ford, the vice president of hub operations, was likely the person who

submitted his evaluation. Either way, Garcia has identified no evidence that these two
individuals harbored any discriminatory animus toward him. And Garcia has failed to show
that Clem or Hensley was in any way involved in completing his evaluation or influenced
the RIF.

Garcia’s remaining contentions regarding DroneUp’s proffered reason for his
termination are unavailing. He identifies instances of alleged disparate treatment during the
course of his employment and suggests that these incidents are probative of pretext. But for
each of these incidents, Garcia has failed to proffer comparators who were treated more
favorably under nearly identical circumstances. See Vaughn v. Solera Holdings, LLC, 2025

WL 1372441, at *8 (N.D. Tex. May 12, 2025) (Godbey, C.J.) (concluding that evidence of
preferential treatment for non-comparators failed to create a genuine issue of material fact
on whether defendant’s proffered reasons for termination were pretextual). Moreover, the
fact that Garcia was not terminated as part of the RIF in January fails to create a genuine
issue of material fact as to whether DroneUp’s reason for terminating Garcia is unworthy of

credence.7
7Garcia also points to a document in the summary judgment record that he believes
shows that, if an individual worked at DroneUp for fewer than six months, the individual
would receive a negative rating across all categories in the RIF evaluation form. But because
many employees who worked at DroneUp for fewer than six months received positive
ratings, Garcia contends, the RIF is unworthy of credence. Garcia’s interpretation of this
-12-
In sum, the summary judgment evidence would not enable a reasonbale jury to find
that DroneUp’s stated reason for Garcia’s termination—the criteria used in its RIF—was in
any way influenced by his race or national origin. Accordingly, the court dismisses Garcia’s

discriminatory termination claims under Title VII and § 1981.
D
In his summary judgment response, Garcia identifies other adverse employment
actions that he maintains are independently actionable. Garcia contends that

[t]he denial of enterprise training given to white peers, the
imposition of “retraining” not required of a white comparator
who missed two weeks for paternity leave, and the “not in
standard” designation that foreclosed other openings, are each
cognizable adverse actions supported by evidence of more
favorable treatment of non-Hispanic employees.
P. Resp. (ECF No. 29) 8 (citations omitted). Garcia also maintains that he was denied
promotions and promotion interviews because of his race or national origin.
The court raises sua sponte8 that DroneUp is entitled to summary judgment on
document, however, finds no support in the record. The document in question appears to be
merely a key for the evaluation forms, providing the ratings that a supervisor may give for
each category. There is no evidence suggesting that the length of time an employee worked
at DroneUp was intended to predetermine the employee’s evaluation.
8While DroneUp did address these alleged adverse employment actions in its reply
brief, “seeking summary judgment on a ground not raised in the motion but instead raised
for the first time in a reply brief is impermissible.” State Farm Fire & Cas. v. Whirlpool
Corp., 2012 WL 2422922, at *2 (N.D. Tex. June 27, 2012) (Fitzwater, C.J.) (quoting Mendez
v. Caterpillar, Inc., 2012 WL 90492, at *5 (W.D.Tex. Jan.11, 2012)).
The court acknowledges that DroneUp did contend in a footnote in its motion for
summary judgment that any failure to promote claim would fail because Garcia did not
establish that he was qualified. But the summary judgment record could enable a reasonable
juror to find that Garcia was qualified for at least some of the opportunities he sought. See
-13-
Garcia’s Title VII and § 1981 claims arising out of these alleged adverse employment
actions. For each employment action, Garcia fails to “identify at least one coworker outside
of his protected class who was treated more favorably ‘under nearly identical

circumstances.’” Alkhawaldeh, 851 F.3d at 426 (quoting Lee, 574 F.3d at 259). And even
if Garcia had established his prima facie case, a reasonable juror could not find, based on the
summary judgment evidence, that the reasons that DroneUp proffered were pretextual or
motivated by Garcia’s race or national origin.

Accordingly, the court raises sua sponte that DroneUp is entitled to summary
judgment dismissing Garcia’s Tiltle VII and § 1981 discrimination claims arising out of the
adverse employment actions discussed above.
IV
The court now turns to Garcia’s retaliation claims.

A
To determine whether Garcia has established his retaliation claims under Title VII and
§ 1981, the court applies the McDonnell Douglas framework. See Owens v. Circassia
Pharms., Inc., 33 F.4th 814, 835, 835 n.18 (5th Cir. 2022) (explaining that these claims are
subject to the McDonnell Douglas framework and require proof of the same elements in

order to establish liability). “Although the analysis is the same at the second and third stages

Scott v. Dall. Cnty. Hosp. Dist., 2010 WL 71038, at *5 (N.D. Tex. Jan. 7, 2010) (O’Connor,
J.) (“[T]he plaintiff's initial burden of showing her qualification for a position is met simply
by showing she met the objective qualifications for the position.”). Thus the grounds that
the court is raising sua sponte are the appropriate ones on which to base dismissal.
-14-
of the inquiry, the analysis differs at the first stage because the elements of a prima facie case
of retaliation are, of course, different from those for a prima case of race [or national origin]
discrimination.” Johnson, 2014 WL 1714487, at *14. To establish a prima facie case of

retaliation, Garcia must show that (1) he engaged in a protected activity; (2) he suffered an
adverse employment action; and (3) there is a causal connection between the two. Owens,
33 F.4th at 835.
B

DroneUp contends that Garcia has failed to establish a prima facie case. “[P]rotected
activities include (1) opposing any practice deemed an unlawful employment practice (the
‘opposition clause’) or (2) making a charge, testifying, assisting, or participating in any
manner in an investigation, proceeding, or hearing under Title VII (the ‘participation
clause’).” Armstrong v. K & B La. Corp., 488 Fed. Appx. 779, 781 (5th Cir. 2012) (per

curiam) (citing Douglas v. DynMcDermott Petrol. Operations Co., 144 F.3d 364, 372 (5th
Cir.1998)). Garcia’s prima facie case rests on the opposition clause. “The opposition clause
. . . requires the employee to demonstrate that []he had at least a ‘reasonable belief’ that the
practices []he opposed were unlawful.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.
1996) (quoting Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th

Cir. Unit A Sept. 1981)).
The court agrees with DroneUp that Garcia has not presented evidence that would
enable a reasonable juror to find that he engaged in protected activity when he messaged
Bruce and emailed HR, and that the survey response is not actionable because it was

-15-
anonymous. The text message and the email did not reference any unlawful employment
practice. See Harris–Childs v. Medco Health Sols., Inc., 169 Fed. Appx. 913, 916 (5th
Cir.2006) (per curiam) (affirming summary judgment on retaliation claim where plaintiff

never “specifically complained of racial or sexual harassment, only harassment”); E.E.O.C.
v. Omni Hotels Mgmt. Corp., 516 F.Supp.2d 678, 705 (N.D. Tex. 2007) (Stickney, J.)
(“Vague concerns and even vague assertions of discrimination are not sufficient to constitute
an opposition to an unlawful employment practice.”). And Garcia fails to present evidence

suggesting that anyone involved in his termination knew that he was the author of his survey
response. See Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir.
1999) (“If an employer is unaware of an employee’s protected conduct at the time of the
adverse employment action, the employer plainly could not have retaliated against the
employee based on that conduct.”); Rios v. Tex. Christian Univ., 2024 WL 5642529, at *2

(N.D. Tex. Oct. 2, 2024) (Means, J.) (“[] Rios has failed to present any other evidence
tending to demonstrate that anyone involved in the decision to terminate him knew he had
made the August 17 anonymous complaint.”).
The court concludes, however, that a reasonable juror could find that, when Garcia
spoke on the phone with HR in late March 2023, he engaged in protected activity. Garcia

maintains that, as part of an investigation, someone from HR asked him if he had heard any
racist comments. Garcia told HR about Clem’s comment that he did not like Black people
moving to his neighborhood. Garcia then followed up with HR to report another comment
Clem made about children from low-income areas. On one hand, these types of isolated

-16-
comments often fall short of what a reasonable person would think is an unlawful
employment practice. See Satterwhite v. City of Houston, 602 Fed. Appx. 585, 588 (5th Cir.
2015) (per curiam) (concluding that no reasonable person could believe coworker stating

“Heil Hitler” once violated Title VII). On the other hand, an HR representative solicited
Garcia to report any racist comments he had heard, and the person who made the comments
that Garcia reported was a superior. See E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 243-
44 (5th Cir. 2016) (explaining that the source of the comment and the setting in which the

complaint is made are relevant considerations). Viewing the evidence in the light most
favorable to Garcia and drawing all reasonable inferences in his favor, the court concludes
that he has produced sufficient evidence to enable a reasonable juror to find that Garcia
reasonably believed that the conduct he reported over the phone to HR was unlawful. See
Johnson, 2014 WL 1714487, at *22 (“Even if none of these allegations would suffice to

make out a viable hostile work environment claim, [plaintiffs] could have reasonably
believed that the underlying activity—e.g., [defendant’s] tolerance of racially derogatory
language in the workplace—constituted an unlawful employment practice under Title VII.”).
Because DroneUp does not contest the other elements of the prima facie case, the court
concludes that Garcia has established a prima facie case of retaliation.

C
Because Garcia has established a prima facie case of retaliation, the burden shifts to
DroneUp to articulate a legitimate, non retaliatiory reason for the adverse employment
action. As discussed above, DroneUp has introduced evidence that it undertook the May RIF

-17-
because demand for drones lagged in the first quarter of 2023. Thus DroneUp has met its
burden of production.
D

Because DroneUp has carried its burden of production, the burden shifts back to
Garcia to demonstrate that DroneUp’s stated reason is actually a pretext for retaliation. “In
order to demonstrate pretext sufficient to defeat a motion for summary judgment, an
employee must produce evidence that could lead a reasonable fact-finder to conclude that the

adverse employment action would not have occurred ‘but for’ the employee’s decision to
engage in” a protected activity. Alkhawaldeh, 851 F.3d at 427 (citation modified). Garcia
“may combine ‘suspicious timing with other significant evidence of pretext’ to survive
summary judgment.” Owens, 33 F.4th at 835 (citation omitted). To establish pretext, Garcia
appears to rely on the temporal proximity between when he spoke on the phone with HR

about Clem’s comments and the May RIF, and the fact that he was not terminated in the
January RIF.
The court concludes that Garcia has failed to present sufficient evidence for a
reasonable juror to find pretext. At best, Garcia’s evidence reflects suspicious timing. But
“[t]iming standing alone is not sufficient absent other evidence of pretext.” Chapple v. Tex.

HHS Comm’n, 789 Fed. Appx. 985, 992 (5th Cir. 2019) (per curiam) (alteration in original)
(quoting Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015)). The
fact that Garcia was not terminated in the January RIF fails to supply other significant
evidence of pretext. See Owens v, 33 F.4th at 835 (explaining that the pretext inquiry

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requires plaintiff to show “that protected conduct was the reason for the adverse action”).
Notably, after the January RIF, but before Garcia contacted HR, Garcia received a negative
performance evaluation, consistent with the poor rating he later received in connection with

the May RIF. Cf. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42-43 (5th Cir. 1992)
(affirming judgment for plaintiff on retaliation claim where plaintiff’s performance
evaluations were positive prior to engaging in protected activity). Because no reasonable
juror could find that Garcia would not have been included in the RIF but for his decision to

report Clem’s comments to HR, the court dismisses Garcia’s retaliation claims under Title
VII and § 1981.
V
The court now turns to Garcia’s hostile work environment claims.
A

To establish a prima facie case of a hostile work environment, Garcia must show that
(1) he belongs to a protected group, (2) he was subject to unwelcome harassment, (3) the
harassment complained of was based on his race or national origin, (4) the harassment
complained of affected a term, condition, or privilege of employment, and (5) DroneUp
knew or should have known of the harassment in question and failed to take prompt remedial

action. See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
B
DroneUp contends that Garcia did not experience harassment based on his race or
national origin. Garcia responds that his hostile work environment claims should be decided

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by a jury.
C
The court concludes that a reasonable juror could not find that Garcia was subjected

to harassment based on his race or national origin. In his summary judgment response,
Garcia fails to connect the allegedly harassing incidents to his protected status. See Jones
v. Dallas County, 47 F.Supp. 3d 469, 483 (N.D. Tex. 2014) (Fitzwater, C.J.); see also
Cavalier v. Clearlake Rehab. Hosp., Inc., 306 Fed. Appx. 104, 107 (5th Cir. 2009) (per

curiam) (“Though [plaintiff] may believe that all twelve incidents were motivated by racial
animus, subjective belief of racial motivation, without more, is not sufficient to show a
hostile work environment.”). In fact, Garcia acknowledged in his deposition that no one at
DroneUp made a comment toward him about his race or national origin. Garcia also asserts
that his White peers were treated more favorably. But “preferential treatment . . . is not the

type of harassing conduct that can support a hostile work environment claim.” Zavala v.
Carrollton-Farmers Branch Indep. Sch. Dist., 2017 WL 274133, at *5 (N.D. Tex. Jan. 20,
2017) (Fitzwater, J.) (footnote omitted). Moreover, the comments that Clem and Hensley
made about other groups of people fail in the context of this case to establish hostility
towards Garcia based on his race or national origin. See Cuthbertson v. Am. Fed’n of Gov’t

Emps., 2012 WL 4321742, at *4 (N.D. Tex. Sept. 21, 2012) (Fitzwtaer, C.J.) (concluding that
plaintiff’s mentor’s use of slurs towards members of another race failed to “establish[]
hostility toward [plaintiff] based on his Caucasian race”); Arrieta v. Yellow Transp., Inc.,
2008 WL 5220569, at *29 n.41 (N.D. Tex. Dec. 12, 2008) (Fitzwater, C.J.) (concluding that

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Hispanic plaintiff could not rely on nooses and graffiti aimed at Black employees to support
his hostile work environment claim), aff’d sub nom. Hernandez v. Yellow Transp., Inc., 670
F.3d 644 (5th Cir. 2012).9

Accordingly, the court grants DroneUp’s motion for summary judgment and dismisses
Garcia’s hostile work environment claims under Title VII and § 1981.
VI
The court intends to grant summary judgment in part on grounds that it has raised sua

sponte. Accordingly, Garcia is entitled to reasonable notice and an opportunity to respond.
Within 21 days of the date this memorandum opinion and order is filed, Garcia may file a
response brief and evidence appendix addressing why the court should not grant summary
judgment on grounds that it has raised sua sponte in § III(D). After considering this
response, the court will either dismiss the claims or invite DroneUp to file a reply brief.

9Even assuming that the comments Clem, Hensley, or other employees made could
be tied to Garcia’s race or national origin, these comments do not rise to the level of severity
or pervasiveness required to show a hostile work environment. See Jones, 47 F. Supp. 3d at
487 (“And even if a reasonable jury could find that the statements were racial in nature, it
could only find that the statements reflect an isolated incident that was not extremely serious
and did not amount to discriminatory changes in the terms and conditions of plaintiffs’
employment.”).
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* * *

For the reasons explained, the court grants in part DroneUp’s motion for summary
judgment and in part raises sua sponte that DroneUp is entitled to summary judgment on
Garcia’s remaining claims.
SO ORDERED.
August 20, 2026.

CONES A. Lobe
SENIOR JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11423228. Public record. Not legal advice.