“Even if a plaintiff can show that an employer consciously disregarded its own hiring system, that showing, on its own, does not conclusively establish that . . . a nondiscriminatory explanation for an action is pretextual.” (internal quotation marks and citation omitted)
How later courts described this case
- “Even if a plaintiff can show that an employer consciously disregarded its own hiring system, that showing, on its own, does not conclusively establish that . . . a nondiscriminatory explanation for an action is pretextual.” (internal quotation marks and citation omitted)
- “[W]e note that although their methods of proof are related, [a] failure-to-accommodate claim under the ADA is distinct from a claim of disparate treatment.” (internal quotation marks and citation omitted) (second alteration in original)
- applying the McDonnell-Douglas framework to retaliation claims under the Texas Labor Code
- noting that in “retaliation cases under the [Texas Labor Code], Texas jurisprudence parallels federal cases construing and applying equivalent federal statutes, like Title VII”
Written by the judges who cited it.
The opinion
Case: 23-50564 Document: 32-1 Page: 1 Date Filed: 03/27/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50564
Summary Calendar FILED
____________ March 27, 2024
Lyle W. Cayce
Jacquelyn Zepora Brown, Clerk
Plaintiff—Appellant,
versus
San Antonio Food Bank,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-507
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant, Jacquelyn Zepora Brown, sued her former
employer, the San Antonio Food Bank (the “Food Bank”), alleging claims of
employment discrimination and retaliation under 42 U.S.C. § 1981 and
Chapter 21 of the Texas Labor Code. The district court granted summary
judgment in favor of the Food Bank. We AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50564 Document: 32-1 Page: 2 Date Filed: 03/27/2024
No. 23-50564
I.
In May of 2019, the Food Bank hired Brown in its Catalyst Catering
department as a part-time line chef. Once hired, Brown informed her
supervisors and co-workers—Lorraine Aguirre, Erika Borrego, and Johanna
Tesch—that she suffered from a hearing impairment and had been diagnosed
with tinnitus, dizziness, vertigo, and Ménière disease. In light of her hearing
impairment, Brown asked Aguirre, Borrego, and Tesch to speak as loudly as
possible, give her the opportunity to read lips, provide instructions in writing,
and supply microphones or headsets.
As a condition of employment, the Food Bank required employees in
the catering department to undergo drug screenings. Within four months of
working at the Food Bank, Brown was selected for two screenings. In
September of 2019, Brown complained to Aguirre and Borrego that she felt
she was being “targeted [for the drug screenings] because [she is] African
American.” Shortly thereafter, Aguirre and Borrego began to reduce her
hours, and consequently, her pay decreased. Brown informed Tesch, the
Food Bank’s Director of Personnel and Training, that Aguirre and Borrego
were reducing her hours in retaliation for her complaint about racial
discrimination in the drug screenings.
In December of 2019, Brown filed a confidential discrimination
complaint through the Food Bank’s third-party ethics hotline, asserting that
Aguirre and Borrego were cutting her hours and charging her for her
uniforms. After receiving Brown’s anonymous complaint from the hotline,
Tesch opened an investigation into the complaint’s allegations. As part of
this investigation, Tesch discussed the complaint with Aguirre and Borrego.
In January of 2020, Brown spoke with Tesch about her hearing disability and
requested accommodations. Specifically, Brown informed Tesch that she
had repeatedly reminded Aguirre and Borrego about her disability and
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No. 23-50564
requested accommodations, but that her requests were ignored. Tesch told
Brown that she would talk to Aguirre and Borrego. Three months later,
Brown filed another complaint with Tesch regarding Aguirre’s behavior.
On April 25, 2020, the Food Bank announced that it was closing the
catering department due to the COVID-19 pandemic. At the time, the
catering department had one part-time chef position (filled by Brown), one
full-time chef position (filled by Aguirre), one full-time business manager
position (filled by Travis Savely), and two temporary chef positions (filled by
Benito Chavez and Doiyna Reyna). Following the catering department’s
elimination, the Food Bank hired Aguirre and Savely to fill open positions in
other departments. Brown applied and interviewed for a position in a
different department, but was not hired. Thus, the Food Bank ultimately laid
off Brown and the two temporary employees.
On July 30, 2020, Brown filed a charge of discrimination with the
Equal Employment Opportunity Commission. After receiving her right-to-
sue letter, Brown filed a pro se complaint alleging claims under Title VII for
race, color, age, and disability discrimination. A magistrate judge appointed
counsel for Brown, and she subsequently filed an amended complaint alleging
race discrimination, disability discrimination, failure to accommodate a
disability, and retaliation claims under the Texas Labor Code, as well as a
race discrimination claim under 42 U.S.C. § 1981. The Food Bank moved
for summary judgment on all of Brown’s claims, and the magistrate judge
recommended granting the motion in full. The district court adopted the
magistrate judge’s recommendation over Brown’s objections, and Brown
timely appealed.
II.
On appeal, Brown argues the district court erred in granting summary
judgment on her various discrimination and retaliation claims. “We review
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No. 23-50564
a district court’s grant of summary judgment de novo, viewing all facts and
drawing all inferences in a light most favorable to the non-moving party.” 1 A
party is entitled to summary judgment if it shows “that there is no genuine
dispute as to any material fact” and that it “is entitled to judgment as a matter
of law.” 2
As an initial matter, the parties agree that the burden-shifting
framework established in McDonnell Douglas Corp. v. Green 3 is applicable to
Brown’s race discrimination, disability discrimination, and retaliation claims.
Under this framework, a plaintiff bears the initial burden of establishing a
prima facie case of discrimination or retaliation. 4 If she does so, the burden
shifts to the defendant “‘to articulate some legitimate, nondiscriminatory [or
nonretaliatory] reason,’ for its action.” 5 If the defendant can provide such a
reason, the burden shifts back to the plaintiff to establish that the proffered
reason is pretextual. 6
A.
We begin with Brown’s race discrimination claims under § 1981 and
§ 21.051 of the Texas Labor Code. A plaintiff establishes a prima facie case of
_____________________
1
Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (citation omitted).
2
Fed. R. Civ. P. 56(a).
3
411 U.S. 792 (1973); see Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (per
curiam) (applying the McDonnell-Douglas framework to § 1981 claims); Exxon Mobil Corp.
v. Rincones, 520 S.W.3d 572, 583–84 (Tex. 2017) (applying the McDonnell-Douglas
framework to claims of discrimination under the Texas Labor Code); Alamo Heights Indep.
Sch. Dist. v. Clark, 544 S.W.3d 755, 781–82 (Tex. 2018) (applying the McDonnell-Douglas
framework to retaliation claims under the Texas Labor Code).
4
Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 321 (5th Cir. 2021) (citing McDonnell
Douglas, 411 U.S. at 802).
5
Id. (quoting McDonnell Douglas, 411 U.S. at 802).
6
Id. (citing McDonnell Douglas, 411 U.S. at 804).
4
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No. 23-50564
race discrimination under both statutes if she shows that: “1) she belongs to
a protected group; 2) she was qualified for her position; 3) she suffered an
adverse employment action; and 4) she was replaced by someone outside of
her protected group or a similarly situated employee outside of her protected
group was treated more favorably.” 7 In reduction-in-force cases, like this
one, the fourth prong is framed as “whether similarly situated employees
who were not members of the protected class avoided the layoffs.” 8
The district court held that Brown was unable to satisfy the fourth
element of her prima facie case. In so concluding, the court found that
Brown’s proffered comparators—Aguirre and Savely—were not similarly
situated because Savely held a different position and Brown identified
Aguirre as one of her immediate supervisors. On appeal, Brown argues that
the summary judgment evidence shows that she and Aguirre were similarly
situated because both were line chefs and “[e]veryone agreed” that Brown
and Aguirre were co-workers.
Because the parties do not dispute the first three prima facie elements,
we only address the final element. The record includes conflicting evidence
as to whether Aguirre was Brown’s immediate supervisor. However, even
assuming that Aguirre was not Brown’s supervisor, Brown fails to offer any
evidence that she and Aguirre were otherwise similarly situated because they
shared the same supervisor, job responsibilities, experiences, or
qualifications. 9 To the contrary, the record shows significant differences
_____________________
7
Owens v. Circassia Pharms., Inc., 33 F.4th 814, 825 (5th Cir. 2022) (citations
omitted). Because courts follow Title VII jurisprudence when analyzing discrimination
claims under the Texas Labor Code and § 1981, we consider Brown’s race discrimination
claims together. Id.; Ross, 993 F.3d at 321.
8
Harville, 945 F.3d at 875 n.14.
9
See Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022)
(explaining that the court considers a “variety of factors . . . when determining whether a
5
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No. 23-50564
between Brown and Aguirre. For example, although Brown and Aguirre
shared the same job title, Aguirre had over six years of experience in that role,
whereas Brown had only one year of experience. 10 Additionally, Aguirre had
different responsibilities than Brown, such as setting the department’s
schedule and approving requests for time off. In light of these differences,
Aguirre is not an appropriate comparator for Brown’s prima facie case.
Accordingly, we affirm the district court’s grant of summary judgment with
respect to Brown’s race discrimination claims.
B.
Turning to Brown’s disability discrimination and failure-to-
accommodate claims under the Texas Labor Code, the district court
acknowledged that these two claims are distinct 11 and therefore analyzed
_____________________
comparator is similarly situated, including job responsibility, experience, and
qualifications” (internal quotation marks and citation omitted)); Lee v. Kan. City S. Ry. Co.,
574 F.3d 253, 260 (5th Cir. 2009) (“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, and have essentially comparable
violation histories.” (internal citations omitted)).
10
See Badgerow v. REJ Props., Inc., 974 F.3d 610, 617 (5th Cir. 2020) (“The mere
fact that [plaintiff] shared the same job title as the [proffered comparators] . . . is insufficient
to meet her burden to show that they are proper comparators.”); McElroy v. PHM Corp.,
622 F. App’x 388, 392 (5th Cir. 2015) (per curiam) (unpublished) (reasoning that “a
plaintiff’s coworkers were not qualified comparators because, among other reasons, they
had been hired at different times,” and “their positions require[d] different levels of skill
and responsibility—even where they intermittently perform[ed] the same job duties”).
Unpublished opinions issued on or after January 1, 1996, are not biding precedent, but they
may be persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006); 5th
Cir. R. 47.5.4.
11
See E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 703 n.6 (5th Cir. 2014) (“[W]e
note that although their methods of proof are related, [a] failure-to-accommodate claim
under the ADA is distinct from a claim of disparate treatment.” (internal quotation marks
and citation omitted) (second alteration in original)); Dillard v. City of Austin, 837 F.3d 557,
6
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No. 23-50564
them separately. Given that Brown’s appellate brief does not challenge the
district court’s holding that she failed to raise a genuine dispute of material
fact that she was terminated because of her disability, she has forfeited her
disability discrimination claim. 12
As it pertains to her failure-to-accommodate claim, Brown must show
that: (1) she “is a qualified individual with a disability; (2) the disability and
its consequential limitations were known by the covered employer; and (3)
the employer failed to make reasonable accommodations for such known
limitations.” 13 Importantly, an employee has “a right to [a] reasonable
accommodation, not to the employee’s preferred accommodation.”14
Moreover, the accommodation “does not have to be the ‘best’
accommodation possible, so long as it is sufficient to meet the job-related
needs of the individual being accommodated.” 15
On appeal, Brown, citing her sworn declaration, asserts that she
repeatedly requested reasonable accommodations 16 and that her supervisors
either ignored or denied her requests. But Brown does not address her
_____________________
561 (5th Cir. 2016) (acknowledging that “Texas courts interpret their state’s disability
legislation so as to mirror the federal [ADA] statute”).
12
See Vernon Smith v. Sch. Bd. of Concordia Par., 88 F.4th 588, 594 (5th Cir. 2023)
(“[W]e have held that parties forfeited arguments by not attempt[ing] to rebut the district
court’s conclusions or by failing to cite the provisions at issue in the opening brief and
explain[ing] why the [district] court was wrong about what those provisions permit.”
(internal quotation marks and citations omitted) (second and third alterations in original)).
13
Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 442 (5th Cir. 2017) (internal
quotation marks and citation omitted).
14
E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 471 (5th Cir. 2009.
15
Id. (internal quotation marks and citation omitted).
16
In her declaration, Brown asserts that she asked her supervisors for the following
accommodations: speak as loudly as possible, give her the opportunity to read lips, provide
instructions in writing, and supply microphones or headsets.
7
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testimony, relied upon by the district court, that the Food Bank did provide
some of her requested accommodations by giving her written instructions
and pictures and ensuring that chefs were on site to answer any questions she
may have. And even more critically, Brown does not point to any evidence
that the accommodations the Food Bank did provide were insufficient to
ensure she could perform the essential functions of her job. 17 Thus, Brown
has failed to create an issue of material fact as to whether the Food Bank
provided her with a reasonable accommodation.
C.
Finally, Brown brings a retaliation claim under § 21.055 of the Texas
Labor Code. To establish a prima facie case of retaliation, Brown must show
“(1) she engaged in an activity protected by the [Texas Labor Code], (2) she
experienced a material adverse employment action, and (3) a causal link
exists between the protected activity and the adverse action.” 18 The third
prima facie element—the causation standard—“is not onerous and can be
satisfied merely by proving close timing between the protected activity and
the adverse action.” 19 But “if the employer provides evidence of a legitimate
reason for the adverse action, . . . the employee must prove the adverse action
would not have occurred ‘but for’ the protected activity.” 20 At the pretext
stage, in order to avoid summary judgment, the employee “must show that
_____________________
17
See Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021) (holding that the
plaintiff failed to show her employer’s proposed accommodation was unreasonable, and
that the fact the employer declined to provide plaintiff with her requested accommodation
did not alter that conclusion).
18
Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 782 (citations omitted); see also id.
at 781 (noting that in “retaliation cases under the [Texas Labor Code], Texas jurisprudence
parallels federal cases construing and applying equivalent federal statutes, like Title VII”).
19
Id. at 782.
20
Id.
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there is a conflict in substantial evidence on this ultimate issue.” 21 Evidence
is considered “substantial if it is of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment might reach
different conclusions.” 22
The district court concluded that Brown established a prima facie case
of retaliation by showing that she complained of discrimination in December
of 2019, January of 2020, and April of 2020, and was ultimately terminated
on April 25, 2020. However, the court went on to hold that Brown was
unable to show that the Food Bank’s proffered reason for her termination—
a reduction in force caused by the COVID-19 pandemic—was pretextual. 23
We agree.
Brown argues that the following evidence demonstrates that the Food
Bank’s nonretaliatory explanation for her termination was pretextual: (1) the
Food Bank was required to keep Brown’s complaints of discrimination
confidential, but Tesch informed Aguirre and Borrego about Brown’s
complaints; and (2) Brown was the only “regular employee” in the catering
department that the Food Bank required to apply for other internal positions
after the department was eliminated. We find this evidence, viewed in the
light most favorable to Brown, does not create a genuine dispute as to
whether she would not have been terminated but for the Food Bank’s alleged
retaliation.
_____________________
21
Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019) (internal quotation
marks and citation omitted).
22
Id. at 561–62 (internal quotation marks and citation omitted).
23
See id. at 561 (“Elimination of an employee’s position as a result of a
reorganization or a reduction-in-force is a legitimate, non-retaliatory reason for the
employee’s termination.”).
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First, Brown asserts that the Food Bank violated its own protocol
when Tesch informed Aguirre and Borrego about Brown’s confidential
complaint against them. Although a “plaintiff can also show pretext by
showing a departure from standard procedure[,] . . . mere deviations from
policy, or a disagreement about how to apply company policy, do not show
pretext.” 24 Here, Tesch testified that company policy required her to draft
questions to the individuals named in a complaint regarding the complaint’s
allegations. Tesch followed this policy by informing Aguirre and Borrego of
the complaint against them and requiring them to answer questions
pertaining to the complaint’s allegations. And although Tesch testified that
she was required to keep complaints anonymous, she stated that the
allegations in Brown’s complaint made clear that Brown was the author. In
light of the above testimony, Brown has, at most, pointed to a disagreement
in how the Food Bank applied its confidential complaint policy, and has
provided no evidence that Tesch was “willing to deviate from established
procedures in order to accomplish a discriminatory goal.” 25 Thus, Brown’s
reliance on Tesch’s alleged departure from company policy is insufficient to
create an issue of fact regarding pretext. 26
Second, Brown contends that the Food Bank’s justification for
terminating her was pretextual because the other employees in her
department were transferred to new positions within the Food Bank. Brown
_____________________
24
McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 459–60
(5th Cir. 2019).
25
Pickett v. Tex. Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022)
(internal quotation marks and citation omitted).
26
See McMichael, 934 F.3d at 460 (“Even if a plaintiff can show that an employer
consciously disregarded its own hiring system, that showing, on its own, does not
conclusively establish that . . . a nondiscriminatory explanation for an action is pretextual.”
(internal quotation marks and citation omitted)).
10
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conclusively asserts that she was the only employee required to “reapply”
for employment, whereas the other employees in her department did not
have to submit applications and were automatically transferred to new
positions. Brown’s argument is contradicted by the record. Specifically,
Tesch testified that Brown, Aguirre, and Savely all applied for positions in
other departments. Tesch further testified that she encouraged Brown to
apply for a position with the Summer Feeding program before the
applications had officially opened. And although Brown interviewed for the
Summer Feeding program position, the program ultimately hired three
individuals with prior program experience and training. Consequently, the
record does not support Brown’s assertion that she was the only employee
within her department who had to reapply for employment.
In sum, because the Food Bank provided a nonretaliatory explanation
for Brown’s termination, and Brown failed to raise a genuine dispute of
material fact that said reason was pretext for unlawful retaliation, the district
court properly granted summary judgment on Brown’s retaliation claim.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
11