Petition for Writ of Certiorari — Kelli Smith, Petitioner v. United Parcel Service, Incorporated

©nitelj States Court of appeal#

for tlje Jffftlj Circuit

United States Court of Appeals

Fifth Circuit

FILED

November 14, 2025

No. 24-20299

Lyle W. Cayce

Clerk

Kelli Smith,

Plaintiff—Appellant,

versus

United Parcel Service, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-4138

Before Barksdale, Willett, and Duncan, Circuit Judges.

Per Curiam:*

Kelli Smith sued her former employer, United Parcel Service,

Incorporated (UPS), under the Texas Commission on Human Rights Act

(TCHRA) alleging race, gender, and disability discrimination, retaliation,

and a hostile work environment. The district court granted summary

judgment to UPS on all claims and denied Smith’s motion to reinstate.

This opinion is not designated for publication. See 5th ClR. R. 47.5.

No. 24-20299

We AFFIRM summary judgment as to Smith’s discrimination and

retaliation claims, as well as the district court’s denial of her motion to

reinstate. But we VACATE the grant of summary judgment on her hostilework-environment claim and REMAND for the district court to explain its

reasoning in accordance with Federal Rule of Civil Procedure 56(a).

I

A

In September 2017, UPS—an international package delivery

company—hired Kelli Smith as a package delivery driver. During her time at

UPS, Smith filed numerous grievances, most of them alleging discrepancies

in her pay. In addition to internal grievances, Smith filed two charges with

the federal Equal Employment Opportunity Commission; one on March 4,

2021, and another on June 23,2022.

During her deposition, Smith testified that in 2019 a manager she had

never met before berated her, called her “little girl,” and said he had heard

Smith was an “angry black female.” According to Smith, the manager told

her he would not “put up with ” her behavior and would fire her if necessary.

She also testified that other people made sexual or derogatory comments, but

she could not recall who made the comments, when or how they were made,

or whether they were directed at her.

Before beginning her delivery route on the morning of September 1,

2022, Smith told one of her supervisors “in passing” that she was low on gas.

The supervisor did not respond, but told all the drivers to deliver their Next

Day Air packages. While on the road, Smith contacted her on-road supervisor

and was told to return to the UPS facility. Before returning, Smith marked a

number of packages as undeliverable, writing that the packages could not be

delivered because she was out of gas. Smith also marked one package as

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No. 24-20299

delivered that she had not delivered (and which another driver later

delivered).

The next day, UPS terminated Smith, citing a provision in its

collective bargaining agreement allowing termination for dishonesty.

According to Smith, however, she was initially told she was being given a

warning and was only later informed she had been terminated.

B

Shortly after her termination, Smith sued in state court, alleging race,

gender, and disability discrimination, retaliation, and hostile work

environment under the TCHRA. UPS timely removed the case to federal

court under 28 U.S.C. §§ 1332(a)(1) and 1441(a).

At the close of discovery, UPS moved for summary judgment on all

claims. Following a hearing, the district court granted summary judgment on

the discrimination and retaliation claims but concluded that “the hostile

work environment claim barely, barely clear[ed] the bar,” so it denied

summary judgment on that claim.

After the initial summary-judgment ruling, counsel for both sides

notified the court that the parties had reached a settlement. In response, the

court entered a conditional order of dismissal, dismissing the case without

prejudice but allowing it to be reinstated if the parties notified the court

within 60 days if the settlement could not be finalized. Before the settlement

was finalized, Smith’s counsel moved to withdraw, citing “substantial

difficulties in maintaining communication with” Smith. At a status hearing,

Smith disavowed the settlement. The district court granted counsel’s motion

to withdraw and reinstated the case.

UPS then moved to reconsider tire denial of summary judgment on

the hostile-work-environment claim. Meanwhile, Smith (now proceeding pro

se) filed a “motion to reinstate.” At another hearing, the court granted

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No. 24-20299

UPS’s motion to reconsider and denied Smith’s motion to reinstate. Later

that day, the court granted final judgment in favor of U PS on all claims.

Smith (still proceeding pro se) timely appealed.

II

“We review a grant of summary judgment de novo, viewing all

evidence in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor.”1 Summary judgment is

appropriate only when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of

law. ”2 “ We may affirm a summary judgment on any ground supported by the

record, even if it is different from that relied On by the district court. ”3

III

A

The “Issues Presented” section of Smith’s brief consists largely of

accusations of misconduct by UPS and her former counsel. Most of these

allegations rely on material not in the record. And more fundamentally,

Smith does not explain how they relate to the district court’s decisions she is

actually appealing—namely, the grant of summary judgment for UPS and

the denial of her motion to reinstate.

One arguable exception is Smith’s contention that the district court’s

“stark warning at the conclusion of [the] court hearing held February 23,

2024, prompted] the urgency of a bogus, dubious settlement agreement.”

1 Pierce v. Dep’t of U.S, Air Force, 512 F.3d 184, 186 (5th Cir. 2007) (citation

omitted).

2 Fed. R. Civ. P. 56(a).

3 Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir. 2001) (citation

omitted).

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No. 24-20299

That appears to refer to the district court’s remark at the close of the initial

summary-judgment hearing that the parties “ought to get this case settled”

because “the trial would be so ugly; bad for everybody.” We have long

recognized

that

“a

district

court

has

inherent

power

to ... encourage... settlement agreements....”4 To the extent Smith

suggests that the court’s remark crossed the line into improper coercion, we

see no basis for that claim. And even if it had, any error would be harmless:

the district court permitted Smith to withdraw from the settlement

agreement.

B

Liberally construing Smith’s pro se brief,3 we understand her to argue

that the district court erred in granting summary judgment on her

discrimination, retaliation, and hostile-work-environment claims, and in

denying her motion to reinstate. We address each argument in turn. Because

Smith’s claims arise under state law, “we apply state substantive law and

federal procedural law.”6 And because the relevant provision of the

TCHRA “is effectively identical to Title VII, its federal equivalent.. cases

interpreting [Title VII] guide our reading of the TCHRA.”7

First, Smith contends that the district court erred in granting

summary judgment on her race, gender, and disability discrimination claims.

A plaintiff may prove discrimination under the TCHRA either through

direct evidence or by invoking the burden-shifting framework set out in

4 Bell v. Schexnayder, 36 F.3d 447, 449 (5th Cir. 1994) (citation omitted).

5 See Brown v. Sudduth, 675 F.3d 472, 477 (Sth Cir. 2012) (“We give pro se briefs a

liberal construction.” (citation omitted)).

6 Retro MetrOj LLCv. City ofJackson ex rel. City Council, 147 F.4th 551,557 (5th Cir.

2025).

1 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,633-34 (Tex. 2012).

5

No. 24-20299

McDonnell Douglas Corp. v. Green? On appeal, Smith briefly refers to direct

evidence. But in the district court, she relied exclusively on McDonnell

Douglas. We therefore limit our analysis to the McDonnell Douglas

framework.9

Under McDonnell Douglas, a plaintiff bears “the initial burden” of

establishing a prima facie case of discrimination.10 If she does so, the burden

“shift[s] to the employer to articulate some legitimate, nondiscriminatory

reason for” the adverse action.11 The plaintiff then has the “opportunity to

show that [the employer’s] stated reason.. .was in fact pretext.”12 “To

establish a prima facie case of discrimination under the TCHRA, the

plaintiff must establish that ‘she (1) was a member of [a] protected class,

(2) was qualified for the position at issue, (3) suffered a final, adverse

employment action, and (4) was either (a) replaced by someone outside the

protected class or (b) otherwise treated less favorably than others who were

similarly situated but outside the protected class.”13

Smith’s discrimination claims falter because she has not satisfied the

fourth element of a prima facie case: she has not shown that she was treated

less favorably than someone outside her protected class. In the district court,

Smith conceded that she had not identified a similarly situated coworker who

8 411 U.S. 792 (1973); see Ross v. Judsonlndep. Sch. Diet., 993 F.3d 315,321 (5th Cir.

2021).

9 See Ross, 993 F.3d at 322 (“For the first time on appeal, [the plaintiff] argues that

she established her prima facie case through direct evidence. Because [she] did not present

this argument to the district court, we cannot consider it.” (citation omitted)).

10 McDonnell Douglas, 411 U.S . at 802.

11 Id.

12 Id. at 804.

13Ross, 993 F.3d at 321-22 (cleaned up).

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No. 24-20299

was treated more favorably. Instead, she pointed to “general” statements

about “other individuals” (whom she did not identify) “that were in her

position.” Without more information about these other individuals, we

cannot assess whether they were given “preferential treatment... under

‘nearly identical’ circumstances.”14 Accordingly, such vague generalities do

not establish a prima facie case of discrimination.

The district court therefore did not err in granting summary judgment

to UPS on Smith’s discrimination claims.

C

Like her discrimination claims, Smith’s retaliation claim is subject to

the McDonnell Douglas framework.15 To establish a prima facie case of

retaliation under the TCHRA, Smith must “demonstrate that: (1) she

engaged in a protected activity; (2) an adverse employment action occurred;

and (3) a causal link exists between the protected activity and the adverse

employment action.”16

On appeal, Smith principally argues that she was terminated for

complaining about “payroll discrepancies.” But as relevant here, protected

activities include “opposing] any practice made an unlawful employment

practice under the TCHRA.”17 And while the TCHRA forbids

“discrimination with respect to compensation,” it does not cover

14 Little v. Republic Refin. Co., 924 F.2d 93,97 (5th Cir. 1991) (citations omitted).

15 See Gorman v. Verizon Wireless Tex., LLC, 753 F.3d 165,170-71 (5th Cir. 2014)

(applying McDonnell Douglas to a TCHRA retaliation claim).

16 Id. at 170 (quoting Royal v. CCC & R Tres Arboles, LLC, 736 F.3d 396, 400

(5th Cir. 2013)).

17 Id. (cleaned up) (emphasis added) (quoting Royal, 736 F.3d at 400).

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No. 24-20299

“compensation issues ... when they do not allege discrimination ... .”18

Because Smith’s complaints about “payroll discrepancies” did not allege

discrimination, they were not protected activity. Smith also points to her

complaints about “the array of mechanical issues she experienced. ” Because

Smith does not point to any evidence suggesting that those complaints

alleged discrimination, they too are not protected activity.19

In the district court, Smith also relied on her second EEOC charge,

the filing of which constitutes a protected activity.20 But even if Smith had

properly raised that argument on appeal, it would fail on the merits. To

establish the requisite causal connection, Smith points only to the temporal

proximity between her EEOC charge, which was filed June 23, 2022, and

her termination, which occurred on September 2, 2022. We have held that

“temporal proximity alone, when very close, can in some instances establish

zprima facie case of retaliation.”21 But even assuming that the two-and-a-half

month time period could establish a prima facie case, Smith’s retaliation

claim still falters. UPS offered a legitimate reason—dishonesty—for

)S Allen v. Envirogreen LandscapePros., Inc., 721F. App’x 322,329 (5th Cir. 2017);

see Tex. Lab. Code §21.051(1) (“An employer commits an unlawful employment

practice if because of race, color, disability, religion, sex, national origin, or age the

employer... discriminates... against

an

individual

in

connection

with

compensation---- ”).

19 Smith also points to “other illegal, immoral, [and] unethical treatment.” But

because her brief does not explain what this refers to, she has forfeited any argument based

on her allegations of unspeci fied unethical conduct.

20 See Lewis v. Bd. ofSupervisors ofLa. State Univ. &Agric. U Meeh. Coll., 134 F.4th

286,295 (5th Cir. 2025) (“The filing of an EEOC charge constitutes protected activity.”)

(citation omitted).

21 Strong t>. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007)

(emphasis in original) (citation omitted).

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No. 24-20299

terminating Smith.22 Thus, the burden then shifts back to Smith to show that

UPS’s proffered reason was a pretext for retaliation, which she can do “by

showing that the adverse action would not have occurred ‘but for’ [UPS’s]

retaliatory motive. ”23 However, we have “ affirmatively rejected] the notion

that temporal proximity standing alone can be sufficient proof of but for

causation.”24 Thus, because Smith relies solely on temporal proximity, she

cannot show that UPS’s proffered reason for terminating her was pretextual.

The district court therefore did not err in granting summary judgment

to UPS on Smith’s retaliation claim.

D

That leaves Smith’s hostile-work-environment claim. The district

court initially denied summary judgment, finding that claim “barely, barely

clear[ed] the bar.” Later, however, the district court reversed course and

granted summary judgment. Its entire explanation was:

22 Sigley v. ND Fairmont LLC, 129 F.4th 256, 261 (4th Cir. 2025) (“[D]ishonesty

is misconduct worthy of termination ....”); Debord v. Mercy Health Sys. of Kan., Inc.,

737 F.3d 642, 657 (10th Cir. 2013) (“Debord cannot dispute that dishonesty is a valid

ground for terminating an employee.”); Seeger v. Cincinnati Bell Tel. Co., 681 F.3d274,284

(6th Cir. 2012) (“Fraud and dishonesty constitute lawful, non-retaliatory bases for

termination.”); Wilkey v. United Parcel Serv., Inc., 740 F. App’x 51, 52 (5th Cir. 2018)

(affirming district court finding that dishonesty is a legitimate, nondiscriminatory reason

for termination); Anderson v. Tupelo Reg’l Airport Auth., 568 F. App’x 287, 291 (5th Cir.

2014) (holding that “dishonesty that resulted in a loss of confidence., .constitutes a

legitimate nondiscriminatory reason for ... termination”); cf. Wallace v. Methodist Hosp.

Sys., 271F.3d 212, 220 (5th Cir. 2001) (holding that falsifying medical records is a

legitimate, nondiscriminatory basis for termination); Noel v. Andrus, 810 F.2d 1388,1393

(5th Cir. 1987) (holding that “(d]ishonesty is a reasonable ground for dismissal” under

Louisiana law).

23Feistv. La. Dep}tofJust., Off. oftheAtt’y Gen. ,130 F.3d 450, 454 (5th Cir. 2013).

24 Strong, 482F.3d at 808.

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No. 24-20299

[A] hostile work environment, the Fifth Circuit has told us,

exists when a workplace is, quote, permeated with

discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive work environment.

You have not given me any evidence that there existed such an

atmosphere of [sic] where you worked.

Federal Rule of Civil Procedure 56(a) requires a district court, when

ruling on summary judgment, to “ state on the record the reasons for granting

or denying the motion.”25 Even before this language was added, we

repeatedly “emphasized the importance of a detailed discussion by the trial

judge.”26 “When we have no notion of the basis for a district court’s

decision, because its reasoning is vague or was simply left unsaid, there is

little opportunity for effective review.”27 That is especially so when, as here,

the movant advances several arguments in favor of summary judgment, and

we cannot tell which rationale the district court relied on.28

The district court’s explanation did not comply with Rule 56(a). It did

not make clear which of UPS’s arguments persuaded the court to grant

summary judgment. And it did not explain why, despite its initial conclusion

that Smith had presented sufficient evidence to proceed to trial, it now

believed that summary judgment was appropriate. “In such cases, we have

25Fed. R. Civ. P. 56(a).

26 Heller v. Namer, 666 F.2d 905, 911 (5th Cir. Unit A1982) (citation omitted).

27 Myers v. GulfOU Corp., 731 F.2d 281, 283-84 (5th Cir. 1984) (citation omitted);

see also White v. Tex. Am. Bank/Galleria, N.A., 958 F.2d 80, 82 (5th Cir. 1992) (“Without

adequate findings of fact and conclusions of law, we are severely hampered if not

completely obstructed in our review.”).

28 See Mosley v. Ogden Marine, Inc., 480F.2d 1226, 1226 (5th Cir. 1973) (per

curiam) (“This is especially true when, as here, an appellate court cannot ascertain which

of several theories formed the basis for the entry of summary judgment.”).

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No. 24-20299

not hesitated to remand the case for an illumination of the court’s analysis

through some formal or informal statement of reasons. ”29 We do so here.

We pause, however, to note two factors we do not rely on in

concluding that the district court failed to comply with Rule 56(a). First, we

are unbothered by the district court’s decision to rule orally rather than in

writing. That was the practice in early American courts, and we have held

that it remains permissible today.30 Rule 56(a) requires only that a district

court’s reasons be “statefd] on the record,” not that they appear in writing.31

Nor do we fault the court for its change of heart. A partial denial of summary

judgment “may be revised at any time before the entry of [final] judgment. ”32

If the summary-judgment record and the applicable law ultimately supported

summary judgment (an issue we do not decide), we cannot fault the district

court for refusing to “reject [wisdom] merely because it comes late.”33 Our

concern is solely the lack of explanation for the ultimate decision to grant

summary judgment, not the process surrounding that decision.

IV

Smith also appeals the district court’s denial of her motion to

reinstate. That motion sought reinstatement of her case, a new scheduling

order, and a new trial date. The basis for the motion is not entirely clear, but

it appears to rest on some combination of (1) alleged errors in the district

court’s grant of summary judgment on Smith’s discrimination and retaliation

29/Wym, 731 F.2d at 284.

30 Ueckertv. Guerra, 38 F.4th 446,449 (5th Cir. 2022).

31 Fed. R. Civ. P. 56(a).

32 Fed. R. Civ. P. 54(b).

33 Henslee v. Union Planters Nad Bank & Trust Co., 335 U.S. 595, 600 (1949)

(Frankfurter, J., dissenting).

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No. 24-20299

claims, (2) evidence Smith asserts she possesses but never put in the record,

and (3) counsel’s alleged failures during discovery. But none of these grounds

justifies relief.

First, as explained above, the district court did not err in granting

summary judgment on the discrimination and retaliation claims. Second,

neither we nor the district court can properly consider evidence Smith claims

to have but failed to place in the record.34 And finally, even assuming that

Smith’s counsel should have introduced additional material or pursued

further discovery, Smith is bound by her counsel’s acts and omissions.35

The district court therefore did not err in denying Smith’s motion to

reinstate.

V

We VACATE the district court’s grant of summary judgment on

Smith’s hostile-work-environment claim and REMAND for the district

court to “state on the record its reasons” in accordance with Rule 56(a).36 In

all other respects, we AFFIRM the judgment of the district court.

34 Cf. Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992) (“Generally,

we will not enlarge the record on appeal with evidence not before the district court. ”).

35 Woodson v. Surgitek, Inc., 57 F.3d 1406, 1418 (5th Cir. 1995) (“There is no

question, however, that a party is bound by the acts of his attorney.”) (citations omitted).

36 Our mandate should not be understood to preclude the district court from

revising its conclusion that summary’ judgment was warranted on plaintiff’s hostile-work­

environment claim, if the district court believes revision is warranted.

12

United States District Court

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Nathan Ochsner, Clerk

KELLI SMITH,

Plaintiff,

§ CIVIL ACTION NO. 4:22-CV-4138

§

UNITED PARCEL SERVICE, LLC, §

§

Defendant

§

VS.

FINAL JUDGMENT

Plaintiff Kelli Smith brought this employment discrimination suit against United

Parcel Service, Inc. on November 29, 2022. In a hearing held on February 23, 2024, the

Court granted Defendant’s Motion for Summary Judgment as to all claims except for

Plaintiff’s hostile work environment claim. Defendant later filed a Motion for

Reconsideration, asking that the Court reconsider its February decision and dismiss

Plaintiffs hostile work environment claim. EOF No. 26. In a June 5, 2024 hearing, the

Court granted Defendant’s Motion and dismissed Plaintiffs one remaining claim.

Pursuant to Federal Rule of Civil Procedure 58(a), and for the reasons set forth at

the hearings, final judgment is hereby ENTERED for Defendant. Accordingly, the Clerk

is directed to CLOSE this case.

IT IS SO ORDERED.

SIGNED at Houston, Texas on this the 5th day of June, 2024.

\>

UNITED STATES DISTRICT JUDGE

Additional material

from this filing is

available in the

Clerk's Office.