Petition for Writ of Certiorari — Charles Faulk, Petitioner v. Owens Corning Roofing and Asphalt, L.L.C.
Supreme Court briefMar 18, 2026
Ask Donna
What actually matters in this document.
Text
No. __________
IN THE SUPREME COURT OF THE UNITED STATES
CHARLES FAULK,
Petitioner,
v.
OWENS CORNING ROOFING AND ASPHALT, LLC,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of
Appeals for the Fifth Circuit
APPENDIX
CARLA D. AIKENS
Counsel of Record
Carla D. Aikens, P.L.C.
615 Griswold Street, Suite 709
Detroit, Michigan 48226
(844) 835-2993
carla@aikenslawfirm.com
Counsel for Petitioner
APPENDIX TABLE OF CONTENTS
Appendix A
Opinion and Order of the United States Court of Appeals for the Fifth
Circuit, entered December 18, 2025
1a
Appendix B
Memorandum Opinion and Order of the United States District Court for the
Northern District of Texas granting summary judgment, entered February
18, 2025
17a
Appendix C
Final Judgment of the United States District Court for the Northern District
of Texas, entered February 18, 2025
39a
Case: 25-10356
Document: 88-1
Page: 1
Date Filed: 12/18/2025
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 25-10356
____________
December 18, 2025
FILED
Lyle W. Cayce
Clerk
Charles Faulk,
Plaintiff—Appellant,
versus
Owens Corning Roofing and Asphalt, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:23-CV-230
______________________________
Before Smith, Stewart, and Haynes, Circuit Judges.
Per Curiam:*
This case involves Appellant Charles Faulk’s race-based claims of
Title VII employment discrimination and retaliation against his former
employer, Owens Corning Roofing and Asphalt (“Owens Corning”). Faulk
alleges that while he was an employee at Owens Corning, his night-shift
supervisor Michael Brown revoked his ability to take overtime shifts for one
of his job classifications, and that Brown’s discriminatory animus ultimately
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1a
Case: 25-10356
Document: 88-1
Page: 2
Date Filed: 12/18/2025
No. 25-10356
led to his termination. On appeal, Faulk argues that the district court erred
in analyzing his claims by improperly applying a strict comparator
requirement, improperly weighing the evidence, and making credibility
determinations that should have been left to a jury. For the following reasons,
the judgment of the district court is AFFIRMED.
I
A
Owens Corning is a “market leader in roofing shingles, underlayment,
and components products” with an Irving, Texas plant at which employees
“manufacture and package quality roofing materials.” In 2016, Owens
Corning hired Faulk as a utility operator. In 2017, Faulk was promoted to the
position of raw material coordinator driver, and in 2019, he was trained to be
an end-of-line driver. Faulk primarily worked the night shift and would often
take overtime shifts.
When Faulk worked the night shift, Brown was his supervisor.
According to Faulk, Brown treated Black employees differently from White
employees. Additionally, on December 3, 2019, Brown posted or reposted on
his personal Facebook account a post about a Super Bowl squares
competition. In the back of one of those photos, hanging in the wall of the
garage behind the Mustang that was the subject of the picture, was a Texas
state flag and a Confederate flag. At some point during his employment,
Faulk and another employee discovered the photo.
1
In February 2022, Faulk raised a complaint to human resources
(“HR”) officer Rebecca Pike, claiming that Brown turned off his ability to
take overtime shifts in the Owens Corning system. Faulk told Pike, and later
testified during his deposition, that he believed Brown revoked his access to
2
2a
Case: 25-10356
Document: 88-1
Page: 3
Date Filed: 12/18/2025
No. 25-10356
overtime shifts because he was jealous of Faulk’s new truck. An investigation
into Faulk’s report revealed that Brown did deactivate Faulk in the system
because he “believed that [Faulk] was not qualified for a certain role.” Pike
testified that Brown deactivated Faulk’s access without authorization and
that Faulk was subsequently reinstated into the system. That was the first
time Pike had heard of Brown’s deactivating an employee’s overtime.
2
While Faulk was employed, Owens Corning had a policy prohibiting
substance use, including THC (the psychoactive component of marijuana),
in the workplace. As of August 2021, employees were no longer subject to
random tests for THC use. However, employees were still subject to testing
based on reasonable suspicion and “[p]ost incident testing . . . after an
employee’s second safety related incident within a twenty-four-month
period (regardless of property damage or injury, including near-misses).” On
June 10 and 12, 2022, Faulk had two incidents that qualified as safety-related
incidents or “near misses.” Hannah Schyllander, another shift supervisor,
reported the incidents to Owens Corning’s environmental health and safety
representative Kennedy Reister. After learning that Faulk had two incidents
in such close succession, Reister instructed that Owens Corning drug test
Faulk in accordance with company policy. Faulk tested positive for
marijuana.
After Faulk’s positive drug test, on June 21, 2022, Faulk signed a
continued employment agreement. The agreement stated that Faulk had
tested positive for drugs in violation of the company’s policy and outlined the
terms and conditions of Faulk’s continued employment. One of those
conditions was that Faulk “must comply with all company policies and
maintain satisfactory performance in all job-related activities.” He
acknowledged that “[f]ailure to comply with any of the [terms] mean[t]
3
3a
Case: 25-10356
Document: 88-1
Page: 4
Date Filed: 12/18/2025
No. 25-10356
automatic release from [his] employment with Owens Corning and [would]
constitute just cause for termination.”
Less than one month later, on July 14, 2022, Owens Corning received
two different communications indicating that Faulk was wearing Airpods
while operating his forklift. The use of Airpods and other Bluetooth devices
was expressly prohibited by Owens Corning’s safety policy, which required
use of authorized hearing protection devices and prohibited Bluetooth
headphones. Faulk was terminated on July 18, 2022.
According to Brown, he neither made the decision to terminate Brown
nor was consulted during his termination. After Faulk’s termination, another
employee texted Brown to ask whether Brown “w[o]n [his] fight” with
Faulk. Brown replied, “He has been terminated.” The other employee
responded with a GIF1 and the words “WHITE POWER.” Brown
responded, “No sir I’m not a racist.” The employee responded “I’m
kidding. Calm down.”
In October 2022, Faulk filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”).
B
On January 30, 2023, Faulk filed a complaint against Owens Corning
in the Northern District of Texas, alleging Title VII claims of discrimination
and retaliation based on race. Owens Corning filed a motion for summary
judgment, arguing that Faulk did not establish a prima facie case of
_____________________
1
GIF stands for “graphics interchange format.” A GIF is a series of photos or a
short video that plays continuously on a loop.
4
4a
Case: 25-10356
Document: 88-1
Page: 5
Date Filed: 12/18/2025
No. 25-10356
discrimination. Faulk opposed the motion, referring the district court to his
1,042-page appendix.2
The district court held a hearing on the motion for summary
judgment, seeking to understand the adverse actions and comparators that
Faulk alleged. The district court subsequently granted summary judgment to
Owens Corning, determining that Faulk failed to establish a prima facie case
of discrimination or retaliation. In its ruling, the district court pointed out
that it sorted through the thousands of pages of evidence presented to it,
despite Faulk’s failure to point it to the relevant facts in the record. Faulk
timely appealed.
II
Because Faulk’s claims arise under federal law, the district court had
jurisdiction to hear the case pursuant to 28 U.S.C. § 1331. This court has
appellate jurisdiction to review the district court’s final judgment pursuant
to 28 U.S.C. § 1291.
We review a district court’s ruling on a motion for summary judgment
de novo. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020) (citing
Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016)).
“Summary judgment is proper ‘if 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.’” Id. (quoting Fed. R. Civ. P. 56(a)). A genuine dispute of
material fact exists if the dispute “might affect the outcome of the suit” and
_____________________
2
That appendix was unnumbered. The district court noted that it could strike the
appendix but “ch[ose] not to do so.” Additionally, in his appellate brief, Faulk argues that
the district court took the “unusual step” of having two of his witnesses sit for depositions
after the initial summary judgment briefing was complete. However, the district court
ordered depositions (rather than striking the declarations altogether) because Faulk failed
to disclose those witnesses during discovery.
5
5a
Case: 25-10356
Document: 88-1
Page: 6
Date Filed: 12/18/2025
No. 25-10356
“a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, “the mere
existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment.’” Id. at
247–48.
III
A
We first consider Faulk’s Title VII discrimination claims based on the
revocation of his overtime access and his termination. Claims of employment
discrimination under Title VII are subject to the burden-shifting framework
promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(“McDonnell Douglas”). Under that framework, the plaintiff must first
establish a prima facie case of discrimination by proving four elements:
(1) he is a member of a protected class, (2) he was qualified for
the position at issue, (3) he was the subject of an adverse
employment action, and (4) he was treated less favorably
because of his membership in that protected class than were
other similarly situated employees who were not members of
the protected class, under nearly identical circumstances.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
Once the plaintiff has established a prima facie case, there is an
“inference of intentional discrimination . . . and the burden of production
shifts to the employer, who must offer an alternative non-discriminatory
explanation for the adverse employment action.” Id. (footnote omitted);
Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 308–09 (2025). If the
employer asserts a “legitimate” reason for its decision, then the burden shifts
back to the plaintiff “to show that the stated justification ‘was in fact pretext’
for discrimination.” Ames, 605 U.S. at 309 (quoting McDonnell Douglas, 411
6
6a
Case: 25-10356
Document: 88-1
Page: 7
Date Filed: 12/18/2025
No. 25-10356
U.S. at 804). Thus, “[a] plaintiff ‘may succeed [under the McDonnell Douglas
framework] either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Id. (second
alteration in original) (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S.
248, 256 (1981)).
The fourth element of the prima facie case is the primary focus of this
dispute. This circuit has previously considered how to identify similarly
situated employees when the plaintiff alleges they were disciplined
differently because of their membership in a protected class. In those cases,
we have explained that the employees’ situations must be “nearly identical.”
Lee, 574 F.3d at 260 (emphasis added). Nearly identical circumstances exist
where the employees: (a) “held the same job or responsibilities,” (b) “shared
the same supervisor or had their employment status determined by the same
person,” and (c) “have essentially comparable violation histories.” Id.
However, an employee is not similarly situated if the “difference between the
plaintiff’s conduct and that of those alleged to be similarly situated accounts
for the difference in treatment received from the employer.” Id. (quoting
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001)).
B
Faulk raises two Title VII claims of discrimination. He argues that he
was discriminated against based on race when (1) Brown revoked his ability
to access overtime shifts; and (2) he was terminated.
1
The district court did not err in rejecting Faulk’s discrimination claim
regarding the revocation of his overtime access. Faulk himself claims that his
access to overtime was revoked for a reason other than his race. Both in his
declaration and during his deposition, Faulk explained that the reason Brown
7
7a
Case: 25-10356
Document: 88-1
Page: 8
Date Filed: 12/18/2025
No. 25-10356
revoked his option to take overtime was because he was jealous of Faulk’s
new truck: “[O]nce I showed up with the new rims and tires on the truck, it
was basically him saying, ‘He’s getting too much overtime over here.’ That’s
how I took it. That’s why [my overtime] was turned off.” According to
Owens Cornings’s Rule 30(b)(6) deposition by Pike, Faulk did not report the
overtime issue as discrimination. Pike explained that Faulk “felt
that . . . Brown was kind of copying him and had the same type of vehicle,
[and] was causing problems for him.”
Faulk did not present to the district court, and has not presented to
this court, any evidence that he believed the revocation of his overtime access
was due to his race. Pike did testify that Brown’s revocation of overtime
access was unauthorized. However, “[p]oor treatment without more is not
sufficient to show harassment based on race, even if [the plaintiff] believes
race to be the motivating factor for the poor treatment.” Eaton-Stephens v.
Grapevine Colleyville Indep. Sch. Dist., 715 F. App’x 351, 356 (5th Cir. 2017)
(per curiam) (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
Because Faulk’s overtime access was not revoked based on his race, we hold
that his corresponding discrimination claim is without merit. See McDonnell
Douglas, 411 U.S. at 796 n.4, 802.
2
We next consider Faulk’s discrimination claim regarding his
termination. He argues that “[c]omparator evidence is not the only way to
meet the fourth [element]” of the prima facie case because the McDonnell
Douglas framework is “not rigid.” Despite that statement, most of Faulk’s
arguments that his termination was discriminatory focus on two purported
comparators: Zach Probst and Ivan Villegas. But Faulk’s appellate briefing
does not provide any facts to show that either employee was in fact similarly
situated. As the district court explained when granting Owens Cornings’s
8
8a
Case: 25-10356
Document: 88-1
Page: 9
Date Filed: 12/18/2025
No. 25-10356
motion for summary judgment, “[j]udges are not like pigs, hunting for
truffles buried in the record.” See United States v. del Carpio Frescas, 932 F.3d
324, 331 (5th Cir. 2019) (per curiam). Nonetheless, the district court
searched the record below for comparator evidence and determined that
there was insufficient evidence to establish any similarly situated comparator.
We did the same and draw the same conclusion: There is insufficient
evidence to establish a similarly situated comparator.
As articulated supra, a similarly situated comparator in this context
should share the same “job or responsibilities,” the same supervisor, and
should have an “essentially comparable violation history[y].” Lee, 574 F.3d
at 260. There is no evidence to show that neither Probst nor Villegas is a
similarly situated comparator. Probst was a White Owens Corning employee,
but Faulk does not explain or offer evidence of Probst’s job title, job
responsibilities, or supervisor, and he does not have an essentially
comparable violation history. Villegas was a Hispanic Owens Corning
employee who Faulk states is a “supervisor” and whose boss is his father.
However, Faulk does not explain or offer evidence of Villegas’s job
responsibilities, and Villegas does not have an essentially comparable
violation history. Additionally, the fact that Villegas’s father is his boss
suggests that he and Faulk did not share the same supervisor.
In sum, Faulk has not offered sufficient evidence to establish a
similarly situated comparator and does not establish the fourth element of his
prima facie case. Moreover, the record reflects that Faulk was replaced by an
employee in his protected class.
Faulk argues that despite the lack of comparators, and despite the fact
that he was replaced by an employee in his protected class, he can satisfy the
9
9a
Case: 25-10356
Document: 88-1
Page: 10
Date Filed: 12/18/2025
No. 25-10356
fourth element with other evidence of discrimination.3 We need not address
that argument because even if Faulk could establish a prima facie case, Owens
Corning has offered a legitimate reason for Faulk’s termination: his failed
drug test and subsequent violation of his continued employment agreement.
Faulk cannot show that proffered reason is pretextual for two primary
reasons.
First, Faulk admitted to each of the violations that led to his
termination. During his deposition, Faulk testified that he used marijuana
during his employment with Owens Corning. He acknowledged that when
Owens Corning drug tested him, he tested positive for marijuana. It did not
surprise him that he tested positive given his levels of consumption of
marijuana at that time. He acknowledged that Owens Corning could have
terminated him due to his drug use but instead offered him a last chance
agreement. Also, during his deposition, Faulk acknowledged that the last
chance agreement required him to follow all company policies. He then
admitted that he wore Airpods while working at the plant, which was yet
another violation of company policy. He was then terminated from Owens
Corning. Thus, Faulk admitted to his violations of Owens Corning’s policies
_____________________
3
The district court identified the evidence Faulk attempted to marshal to argue
that the fourth element was met even without a similarly situated comparator: declarations
from other employees about Brown’s treatment, the photo included in a repost on Brown’s
Facebook page that included a Confederate flag in the background, and the text message
sent to Brown that read “WHITE POWER.” The record does contain facts that suggest
that Brown did not like Faulk—and the text sent to Brown is alarming to say the least.
However, these facts are not enough to satisfy the fourth element of Faulk’s prima facie
case. Even if Brown did not like Faulk, again, “[p]oor treatment without more is not
sufficient to show harassment based on race, even if [the plaintiff] believes race to be the
motivating factor for the poor treatment.” Eaton-Stephens v. Grapevine Colleyville Indep.
Sch. Dist., 715 F. App’x 351, 356 (5th Cir. 2017) (per curiam); see Waggoner v. City of
Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (explaining that a supervisor’s dislike of an
employee is not relevant to the employee’s discrimination claim if there is no evidence that
“connect[s]” that dislike to the employee’s protected class).
10
10a
Case: 25-10356
Document: 88-1
Page: 11
Date Filed: 12/18/2025
No. 25-10356
that led to his termination. Even taking Faulk’s testimony as true, and
declining to engage in credibility determinations, he cannot overcome Owens
Corning’s legitimate reason for his termination.
Second, Faulk has offered no evidence that Brown was involved in his
termination and thus caused the adverse action to occur. Record evidence
shows that after Faulk’s two June 2022 safety incidents occurred, Owens
Corning’s environmental health and safety representative made the decision
to have Faulk drug tested in accordance with the company policy. It was
because of Faulk’s resulting positive drug test that he was subject to a
continued employment agreement. Further, when Faulk used Airpods rather
than approved protective hearing gear, it was not Brown who reported the
safety violation. Owens Corning received two separate complaints from other
employees that Faulk was wearing “white earpods” while driving. And at
oral argument, Faulk’s counsel acknowledged that the decision to ultimately
terminate Faulk was made by Pike or others in HR who had the power to
engage in decision making at that level. This lack of evidence connecting
Brown to Faulk’s termination further supports that Faulk cannot overcome
Owens Corning’s legitimate reason for his termination.
Therefore, Faulk’s claims of discrimination regarding the temporary
revocation of his overtime access and termination both fail, and the district
court did not err in granting summary judgment to Owens Corning on those
claims. See McDonnell Douglas, 411 U.S. at 804–05.
III
A
We next consider Faulk’s Title VII claims of retaliation based on the
revocation of his overtime access and his communications with the EEOC.
“To establish a prima facie case of retaliation, [a plaintiff] must show that:
(1) [he] participated in an activity protected by Title VII; (2) [his] employer
11
11a
Case: 25-10356
Document: 88-1
Page: 12
Date Filed: 12/18/2025
No. 25-10356
took an adverse employment action against [him]; and (3) a causal
connection exists between the protected activity and the materially adverse
action.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)
(citation modified). As with discrimination claims, once the plaintiff
establishes a prima facie case, “the burden then shifts to the employer to
articulate a legitimate . . . non-retaliatory reason for its employment action.”
Id. (citation omitted). The first and third elements of the prima facie case are
at issue here.
“Protected activity is defined as opposition to any practice rendered
unlawful by Title VII, including making a charge, testifying, assisting, or
participating in any investigation, proceeding, or hearing under Title VII.”
Lewis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 134 F.4th
286, 295 (5th Cir. 2025) (quoting Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376,
385 (5th Cir. 2003)). For example, “[t]he filing of an EEOC charge
constitutes protected activity.” Id. (citing Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 439 (5th Cir. 2005)). However, the protected activity
“must relate to discriminatory practices based on race, color, religion, sex,
or national origin” to be entitled to protection under Title VII. Allen v.
Envirogreen Landscape Pros., Inc., 721 F. App’x 322, 327 (5th Cir. 2017) (per
curiam) (citation omitted).
To prove a causal connection between the activity and the materially
adverse action, the evidence must demonstrate that “the employer’s
decision to terminate was based in part on knowledge of the employee’s
protected activity.” Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir.
2001) (quoting Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir.
1998)); see also Tureaud v. Grambling State Univ., 294 F. App’x 909, 914 (5th
Cir. 2008) (per curiam) (“To establish a ‘causal link’ [between] the
protected activity and the adverse employment decision, the evidence must
demonstrate that the decision maker had knowledge of the protected
12
12a
Case: 25-10356
Document: 88-1
Page: 13
Date Filed: 12/18/2025
No. 25-10356
activity.”). Thus, where an employer lacks knowledge of the employee’s
protected activity, no causal link exists.
B
Faulk points to two instances in which he argues he engaged in
protected activity. First, he raised a complaint to HR about the revocation of
his overtime, and “[w]ithin weeks, . . . . was drug tested, written up, and
terminated for wearing AirPods.” Second, he “went to the EEOC just a
week before he was fired.” Faulk argues that the temporal connection
between these activities and his termination would be sufficient for a
“reasonable jury [to] infer that his firing was retaliatory.”
1
Faulk fails to establish a prima facie case of retaliation related to his
internal complaint about the revocation of his overtime because he has not
presented facts to show that he was engaged in protected activity. As
explained supra, Faulk’s own testimony is that Brown revoked his overtime
access because he was jealous of Faulk’s truck. As the district court correctly
explained, “[h]arassment motivated by something other than a plaintiff’s
membership in a protected class lies beyond the scope of Title VII.” See
Stingley v. Watson Quality Ford, 836 F. App’x 286, 289 (5th Cir. 2020) (per
curiam). Reports of general harassment that are not based on a protected
class are not protected activity and are thus insufficient to support a claim of
retaliation. Therefore, Faulk does not state a prima facie case of retaliation
based on his internal complaint. See Aryain, 534 F.3d at 484; Allen, 721 F.
App’x at 327.
2
Faulk also fails to establish a prima facie case of retaliation related to
his communications with the EEOC or his charge of discrimination because
13
13a
Case: 25-10356
Document: 88-1
Page: 14
Date Filed: 12/18/2025
No. 25-10356
he has not presented facts to show a causal link between those
communications and his termination. Faulk testified that he did not tell
Brown, Pike, or any Owens Corning employee with supervisory authority
over him about his meetings with the EEOC. Faulk testified that he only told
a fellow employee who had alerted him to the resource. Therefore, there is
no evidence to suggest that Owens Corning had knowledge that Faulk went
to the EEOC at the time of his termination. See Tureaud, 294 F. App’x at
914 (explaining that to establish a causal link, “the evidence must
demonstrate that the decision maker had knowledge of the protected
activity”). Thus, Faulk fails to establish that Owens Corning was aware of his
communications with the EEOC, let alone that the activity led to his
termination. Accordingly, he has failed to establish a prima facie case of
retaliation based on his communications with the EEOC. See id.; Aryain, 534
F.3d at 484.
IV
In short, the district court did not engage in improper credibility
determinations or weighing of the evidence presented. Even accepting all of
Faulk’s testimony as true, Faulk fails to meet his burden of establishing a
prima facie case of discrimination or retaliation. For the foregoing reasons,
the judgment of the district court is AFFIRMED.
14
14a
Case: 25-10356
Document: 88-2
Page: 1
Date Filed: 12/18/2025
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
December 18, 2025
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding:
Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 25-10356
Faulk v. Owens Corning
USDC No. 3:23-CV-230
Enclosed is a copy of the court’s decision. The court has entered
judgment under Fed. R. App. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
Fed. R. App. P. 39 through 41, and Fed. R. App. P. 39, 40, and 41
govern costs, rehearings, and mandates. Fed. R. App. P. 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court’s opinion or order.
Please
read carefully the Internal Operating Procedures (IOP’s) following
Fed. R. App. P. 40 for a discussion of when a rehearing may be
appropriate, the legal standards applied and sanctions which may
be imposed if you make a nonmeritorious petition for rehearing en
banc.
Direct Criminal Appeals. Fed. R. App. P. 41 provides that a motion
for a stay of mandate under Fed. R. App. P. 41 will not be granted
simply upon request. The petition must set forth good cause for
a stay or clearly demonstrate that a substantial question will be
presented to the Supreme Court. Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases.
If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under Fed. R. App. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible
for filing petition(s) for rehearing(s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order. If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing and certiorari.
Additionally, you MUST confirm that
this information was given to your client, within the body of your
motion to withdraw as counsel.
15a
Case: 25-10356
Document: 88-2
Page: 2
Date Filed: 12/18/2025
The judgment entered provides that Appellant pay to Appellee the
costs on appeal. A bill of cost form is available on the court’s
website www.ca5.uscourts.gov.
Sincerely,
LYLE W. CAYCE, Clerk
By:_________________________
Christy M. Combel, Deputy Clerk
Enclosure(s)
Mrs. Carla D. Aikens
Ms. Jo Beth Drake
Mr. Dimitri Dube
Mr. Gavin Samuel Martinson
16a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES FAULK,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
OWENS CORNING ROOFING AND
ASPHALT, LLC,
Defendant.
Civil Action No. 3:23-CV-0230-X
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Owens Corning Roofing and Asphalt,
LLC’s (Owens Corning) motion for summary judgment (Doc. 61), and Plaintiff
Charles Faulk’s motion to file exhibits under seal (Doc. 74). After carefully reviewing
Owens Corning’s motion, the parties’ briefing, the evidence, and the arguments of
counsel, the Court GRANTS the motion because Faulk has failed to establish a prima
facie case for either his claim of discrimination or retaliation. The Court DENIES
WITHOUT PREJUDICE Faulk’s motion to file under seal but will allow him to file
an amended motion to seal within fourteen (14) days of this Order.
I.
Background
This is an employment discrimination case.
Charles Faulk, an African
American male, worked for Owens Corning for six years. 1 Faulk began at Owens
Corning as a Utility Operator before he was promoted to a Raw Material Coordinator,
1 Doc. 1 at 2.
1
17a
and then trained for End of Line Driver; both latter positions involved operating a
forklift. Throughout his employment, Faulk could collect overtime in these roles. At
some time in early 2022, Faulk’s ability to collect overtime as a Utility Operator (but
not his other two roles) was removed in the company’s overtime portal for a period of
a few weeks. Faulk alleges that Mike Brown, his supervisor, intentionally turned off
his overtime because of “Plaintiff’s race and [because] Mr. Brown felt Plaintiff was
making too much money.” 2
Faulk also alleges that Brown did not treat black
employees fairly and that he heard about a Facebook post on Brown’s profile from
2019 that included a photo with a Confederate flag in the background.
In June 2022, after a safety infraction involving his forklift, Faulk was
required to take a drug test, which he failed for marijuana. Faulk was suspended but
was offered a “Last Chance Agreement,” or a Continued Employment Agreement. 3
This agreement required Faulk to undergo additional drug testing, complete a drug
treatment program, and comply with all company policies. One company safety policy
required hearing protection to be worn in all manufacturing areas, outdoor working
and loading areas, and any other marked areas; this policy specifically stated “[t]he
use of Bluetooth devices/ear buds in lieu of hearing protection is not authorized.” 4 In
July, Faulk was seen wearing AirPods while operating his forklift in violation of
company policy. He was terminated on July 18, 2022.
2 Doc. 1 at 3.
3 Doc. 63 App. 83–84.
4 Doc. 63 App. 89–90. Faulk signed, acknowledging he received this policy in March 2022. Doc.
63 App. 87.
2
18a
Faulk
alleges
that
Owens
Corning—specifically,
Brown—created
an
environment where black employees were treated unfairly. In a text conversation
with an unidentified individual that was produced in discovery, Brown informed the
individual Faulk was terminated and the unidentified individual responded: “
” 5 Brown responded “
”6
This motion has had layers of briefing and legal argument. Owens Corning
filed its motion for summary judgment.
After two extensions of time, Faulk
responded, then attempted to amend his response late. 7
Owens Corning filed
multiple objections to Faulk’s summary judgment evidence.
Faulk presented
declarations from undisclosed individuals, so the Court ordered additional
depositions to occur before ruling on the motion.
After the depositions and
supplemental briefing, the Court held a hearing on this motion on January 15, 2025,
for legal argument only. Finally, now, the Court considers Owens Corning’s motion.
II.
Sealing
A. Legal Standard
The Court takes very seriously its duty to protect the public’s access to judicial
records. Transparency in judicial proceedings is a fundamental element of the rule
of law 8—so fundamental that sealing and unsealing orders are immediately
5 Doc. 74-2, Ex. P.
6 Doc. 74-2, Ex. P.
7 The Court denied the late filing, but accepted Faulk’s original response as a brief.
8 See Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 418 (5th Cir. 2021).
3
19a
appealable under the collateral-order doctrine. 9 The public’s right to access judicial
records is independent from—and sometimes even adverse to—the parties’ interest. 10
That’s why the judge must serve as the representative of the people and, indeed, the
First Amendment, in scrutinizing requests to seal.
Litigants may very well have a legitimate interest in confidential discovery
secured by a protective order under Federal Rule of Civil Procedure 26(c). However,
“[t]hat a document qualifies for a protective order under Rule 26(c) for discovery says
nothing about whether it should be sealed once it is placed in the judicial record.” 11
“To decide whether something should be sealed, the court must undertake a
document-by-document, line-by-line balancing of the public’s common law right of
access against the interests favoring nondisclosure.” 12 If the Court seals information,
it must give sufficient reasons to allow for appellate review. 13 Finally, “[p]ublicly
available information cannot be sealed.” 14
B. Analysis
Faulk seeks to file two exhibits under seal on the judicial record: Faulk’s full
deposition transcript and a series of text messages exchanged in discovery, some of
9 June Med. Servs. v. Phillips, 22 F.4th 512, 519 (5th Cir. 2022).
10 See id.
11 Id. at 521 (emphasis in original).
12 Id. (cleaned up).
13 Binh Hoa Le, 990 F.3d at 419.
14 June Med. Servs., 22 F.4th at 520 (“We require information that would normally be private
to become public by entering the judicial record. How perverse it would be to say that what was once
public must become private—simply because it was placed in the courts that belong to the public. We
will abide no such absurdity.” (cleaned up)).
4
20a
which are marked “Confidential” by the Defendant. The Court DENIES WITHOUT
PREJUDICE the motion, as the motion is facially insufficient under Fifth Circuit
caselaw that governs the sealing of judicial records. The Court will allow Faulk to
file an amended motion to seal within fourteen days of this Order. If no further
motion is filed, the Court will unseal the exhibits.
Faulk’s two-page brief does not include a line by line, page-by-page analysis of
what material should be sealed or redacted. Private or confidential information, such
as social security numbers, addresses, or medical information, may be suited for
redactions, but the Court will not seal a 244-page transcript because it might contain
some unidentified private information.
According to Owens Corning’s response,
Faulk did not designate any of the transcript confidential under the parties’
confidentiality agreement. In the next fourteen (14) days, the moving party must:
(1) identify precisely what information (pages, lines, etc.) the party wants sealed; 15
(2) conduct a line-by-line, page-by-page analysis16 explaining and briefing why the
risks of disclosure outweigh the public’s right of access; and (3) explain why no other
viable alternative to sealing exists. 17 If the movant sealed the information based on
15 Id. at 521.
16 Trans Tool, LLC v. All State Gear Inc., No. SA-19-CV-1304-JKP, 2022 WL 608945, at *6
(W.D. Tex. Mar. 1, 2022) (“[I]t is certainly within a court’s discretion to summarily deny a request to
seal when it is apparent that the submitter has not conducted its own document-by-document, lineby-line review.”).
17 Planned Parenthood of Greater Tex. Family Planning & Preventative Health Servs., Inc. v.
Kaufman, No. 17-50534, Doc. 00514098372, at 2 (5th Cir. Aug. 1, 2017) (“This court disfavors the
sealing of briefs or portions of the record where the parties on appeal have not articulated a legal basis
for the sealing.”). The Fifth Circuit has “repeatedly required parties to justify keeping materials under
seal.” Id.; see, e.g., Claimant ID 100236236 v. BP Expl. & Prod’n, Inc., No. 16-30521 (5th Cir. Jan. 31,
2017) (requesting letter briefs sua sponte as to whether appeal should remain under seal and entering
order unsealing appeal); United States v. Quintanilla, No. 16-50677 (5th Cir. Nov. 16, 2016) (order
5
21a
the non-movant’s designation under the parties’ confidentiality agreement, the nonmovant should file a response conducting the same line-by-line, page-by-page
analysis and include why no other viable alternative to sealing exists.
III.
Summary Judgment
A. Legal Standard
District courts can grant summary judgment only if the movant shows “there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 18
A dispute “is genuine if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” 19
Employment
discrimination claims are subject to the McDonnell Douglas burden-shifting
framework, which the Court addresses claim-by-claim below. 20 Under McDonnell
Douglas, the plaintiff must make a prima facie showing of discrimination. 21 If the
plaintiff successfully asserts a prima facie discrimination case, that raises a
presumption of discrimination, which the employer may rebut by “articulat[ing] some
legitimate, nondiscriminatory reason” for their actions. 22 If the employer produces
evidence that the perceived discriminatory treatment was justified by a “legitimate,
authorizing briefs and record excerpts to be filed under seal on condition that the parties filed redacted
briefs and record excerpts on the public docket).
18 Fed. R. Civ. P. 56(a).
19 Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000) (cleaned up).
20 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
21 Id. at 802.
22 Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016) (cleaned up).
6
22a
nondiscriminatory reason,” the burden then “shifts back to the plaintiff, who must
show the articulated reason is pretextual.” 23
B. Summary Judgment Evidence
“Judges are not like pigs, hunting for truffles buried in the record.” 24 After
multiple rounds of briefing and a summary judgment hearing, Faulk seems to think
the Court is better than he is at finding truffles. Faulk has filed multiple briefs,
sought leave to amend his brief filed past the deadline, and filed documents via the
court’s emergency email, rather than ECF, where there was no emergency.
Local Civil Rule 56.6(a) requires parties to include materials they rely upon to
support or oppose a motion for summary judgment in an appendix to the Court. This
appendix “must be assembled as a self-contained document, separate from the motion
and brief or response and brief,” and “[e]ach page of the appendix must be numbered
legibly in the lower, right-hand corner.” 25
The Rule specifically states that the
numbering should be sequential for the entire appendix, “i.e., the numbering system
must not re-start with each succeeding document in the appendix.” 26
Faulk’s evidentiary appendix (Doc. 73) totaled 1,042 pages and included no
sequential page numbers or any bates stamps or page numbers of any kind, aside
from those found on the deposition transcripts. Due to the volume of the record, the
Court held a hearing on the motion. The Court could strike this appendix, but due to
23 Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015).
24 United States v. del Carpio Frescas, 932 F.3d 324, 331 (5th Cir. 2019) (per curium).
25 Loc. Civ. R. 56.6(b)(1), (3).
26 Loc. Civ. R. 56.6(b)(3).
7
23a
the extent of briefing and discovery that has been ordered for the resolution of this
motion, the Court chooses to not strike Faulk’s appendix even though doing so
requires the Court to sniff out the truffles for itself.
C. Analysis
1. Discrimination Claim
Title VII prohibits discriminatory employment practices “because of such
individual’s race, color, religion, sex, or national origin.” 27 For cases brought under
Title VII, the McDonnell Douglas burden-shifting framework applies at the summary
judgment stage. To establish a prima facie case for a discrimination claim, the
plaintiff “must show that he (1) is a member of a protected group; (2) was qualified
for the position at issue; (3) was discharged or suffered some adverse employment
action by the employer; and (4) was replaced by someone outside his protected group
or was treated less favorably than other similarly situated employees outside the
protected group.” 28 Neither party disputes that Faulk is a member of a protected
class, so the Court takes the other elements in turn. Since Faulk asserts two adverse
employment actions, the Court first considers the first two elements of the prima facie
case, then addresses the third and fourth elements separately.
The parties dispute whether Faulk was qualified for his position. Owens
Corning argues that (1) Faulk cannot identify a promotion he pursued and was
denied, and (2) due to his alleged marijuana use, he was not qualified as a forklift
27 42 U.S.C. § 2000e-2(a)(1).
28 Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (cleaned up).
8
24a
driver. Faulk appears to argue he was a good employee to satisfy this element. Even
if the Court assumes this element met, Faulk fails to present a prima facie case for
either adverse action (termination or loss of overtime), as addressed below.
i.
Termination
One adverse employment action is undisputed: Faulk was terminated in July
2022. 29 The parties dispute, unsurprisingly, the cause of the termination.
So we turn to the fourth element, that similarly situated employees were not
terminated and thus treated more favorably than Faulk. A plaintiff can establish the
fourth element by proving he “was replaced by someone outside his protected group
or was treated less favorably than other similarly situated employees outside the
protected group.” 30
Owens Corning argues that Faulk cannot meet this element as (1) he was
replaced by a member of the same protected class; (2) there are no similarly situated
individuals who have the same disciplinary record as Faulk; and (3) there is no racial
motivation to Faulk’s termination or Owens Corning’s other employment actions.
Because Faulk was replaced by a someone within the same protected class, 31 he must
identify a similarly situated comparator. Faulk argues that he has identified a
number of similarly situated individuals, naming two employees: Zach Probst and
Ivan Villegas. In the hearing, counsel stated identifying comparators by name was
29 Doc. 62 at 15; Doc. 71 at 23.
30 Ernst, 1 F.4th at 339.
31 “Faulk’s position was filled with an employee already working at [Owens Corning] in a
different role, Kamron Robbins-Lopez. Mr. Robbins-Lopez is African-American.” Doc. 63 at App. 48.
9
25a
difficult due to the time that has passed, but specifically named Probst, arguing he
“committed many of these various infraction things for which Mr. Faulk [was]
terminated but [Probst] was never terminated.” 32
Similarly situated employees’ “circumstances, including their misconduct,
must [be] nearly identical.” 33 Employees are deemed similarly situated when they
“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.” 34 Employees are not similarly situated where “the difference
between the plaintiff’s conduct and that of those alleged to be similarly situated
accounts for the difference in treatment received from the employer.” 35
Faulk argues that Zach Probst and Ivan Villegas are similarly situated to him
and are not members of the same protected class.
While Faulk dwells on the
allegation that Probst and Villegas wore headphones without repercussion, 36 Faulk
fails to provide evidence of similar job title, job responsibilities, supervisor, or
employment status for either. Faulk’s brief assures the Court, “Position, title, hours,
and other such information would be easily introduced at trial given the consistent
32 Doc. 100 at 32:20–33:4.
33 Perez v. Texas Dept. of Crim. Just., 395 F.3d 206, 213 (5th Cir. 2004) (cleaned up).
34 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
35 Id. (emphasis in original).
36 Even though Faulk seeks to make much out of Villegas and Probst’s misconduct, Faulk could
not identify another employee with a similar disciplinary history who was not terminated. Doc. 63 at
App. 27, 153:2–25 (“Q. Do you know of any other coworker that has that disciplinary history who was
not terminated? [objection] A. No.”). Since Faulk was terminated for wearing headphones only after
being placed on a Continued Employment Agreement, disciplinary history is relevant.
10
26a
and shared work schedules.” 37 But Faulk must prove his prima facie case now to get
to trial. The Court dug through the record for the necessary evidence and finds it
lacking. As to Villegas, the evidence only states he was a “coordinator.” 38 As to
Probst, Faulk’s counsel requested at the hearing that the Court infer that Probst was
a forklift operator. 39 The record presents little to no evidence on the job title, duties,
supervisor, or job status of Probst, Villegas, or any other potential comparators.
Therefore, the Court cannot compare these individuals to Faulk, and Faulk fails to
carry his prima facie burden of showing he was treated less favorably than other
similarly situated employees.
Faulk also seeks to prove the fourth element by arguing he was terminated
because of his race and argues that the Court should find an “inference of racial
discrimination.” 40 Faulk argues for a broader understanding of the fourth element
and that the Court should “leave open the consideration of other evidence besides
comparators in determining if there was an inference of discrimination.” 41 He points
37 Doc. 94 at 5.
38 Doc. 73-3 ¶ 21.
39 Doc. 100 at 33:19–25. Faulk points to an instance of accusing Mike Brown of treating a black
employee caught sleeping different from how Brown would treat Zach Probst, a white employee, in the
same situation. Doc. 73-11 ¶¶ 3–4. While this is a comparison between two individuals, this account
does not present a similarly situated individual to Faulk. Further, in this instance, Faulk was
speculating as to Brown’s hypothetical treatment of Probst, so it is irrelevant to this analysis.
40 Doc. 100 at 31:12–17.
41 Doc. 94 at 8. Faulk relies on lengthy declarations for the proposition that Mike Brown and
Owens Corning treated black employees unfairly. These declarations do not identify a comparator.
And where they do identify instances of alleged disparate treatment, they fail to articulate personal
knowledge or to provide information as to job duties sufficient for the Court to consider whether the
individual is similarly situated to Faulk.
11
27a
to Supreme Court and Fifth Circuit precedent for this argument. 42 But his reliance
on this case law is misplaced.
In Texas Department of Community Affairs v. Burdine, the Supreme Court
clarified that the purpose of the prima facie case, as a whole, is to give rise to an
inference of unlawful discrimination, creating a rebuttable presumption that the
employer unlawfully discriminated. 43 This language is neither descriptive of the
fourth element, nor instructive as to Faulk’s burden here.
Faulk cites to Nguyen v. University of Texas School of Law for the proposition
that a “broader formulation of the fourth element” should be considered. 44 In Nguyen,
the court articulated that the plaintiff’s burden under the fourth element was to show
“she was either replaced by someone outside her protected class, was treated less
favorably than other similarly situated employees who were not members of her
protected class, or was otherwise discharged because of her race.” 45
Nguyen is
designated as an unpublished opinion that is not binding on this Court as precedent
under Fifth Circuit Rule 47.5, but it is persuasive. 46 In that case, the plaintiff failed
to meet the fourth element under either test. The plaintiff presented three events as
racial animus that predated the adverse event by over a year: an email forwarding
42 Doc. 94 at 7 (citing Tex. Dep’t of Cmty. Affs. V. Burdine, 450 U.S. 248, 253 (1981); Nguyen v.
Univ. of Tex. Sch. of L., 542 F. App’x. 320, 323 (5th Cir. 2013) (per curium)).
43 Burdine, 450 U.S. at 253–54 (“[T]he prima facie case raises an inference of discrimination
only because we presume these acts, if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors.” (cleaned up)).
44 Doc. 94 at 7.
45 Nguyen, 542 F. App’x at 323.
46 See id. at 321.
12
28a
her resume and flagging the use of “shedragon” in plaintiff’s email address; a
reference to “pan-Asian descent”; and plaintiff’s job description that included a
reference to “American/Texas business culture.” 47 The Court found that the plaintiff
did not articulate how the first two statements were proof of racial animus, 48 and that
the use of “American/Texas business culture” did not require conformance with a
racial stereotype, and the employer provided this standard for all employees. 49 The
Court noted that, even if the Court assumed a “racial undertone” to the statements,
“all three statements . . . are too remote in time and too attenuated from [the
employment decisions and adverse action] to be probative of the question whether
racial animus influenced these adverse employment actions.” 50 Further, “[t]hey are
also stray remarks similar to those that we have previously held to be too vague and
too indirect to demonstrate racial animus.” 51
Faulk seeks to expand the fourth element by relying on Nguyen for racial
animus. Though the Court is not bound by this standard, Faulk would fail to meet
the fourth element as Faulk fails to prove the evidence demonstrates racial animus
or the evidence is too remote in time or too attenuated. First, Faulk disavowed any
complaint of discrimination at the time; 52 second, the picture with the Confederate
47 Id. at 323–24.
48 Id.
49 Id. at 324.
50 Id. at 325
51 Id.
52 Doc. 73-15, Ex. N (audio recording) at 3:29-:54 (“I didn’t say anything about discrimination,
I never said a word.”).
13
29a
flag in the background on Brown’s Facebook page was posted three years prior to
Faulk’s termination; 53 and third, the text message “
” was sent to
Brown by an unidentified individual after Faulk’s termination, and Brown disavowed
the message by responding, “
” 54
The Court is aware that the McDonnell Douglas burden-shifting framework is
not intended to be rigid. And it certainly isn’t, as the prima facie elements articulated
in McDonnell Douglas, 55 a discriminatory failure to hire case, have been applied in
other Title VII discrimination cases for other adverse actions—like this one. The
standard for the fourth element of the prima facie case is well established, and Faulk
has failed to produce any evidence of a similarly situated comparator, through job
duties or responsibilities, for the Court’s consideration.
ii. Loss of Overtime Opportunity
The parties dispute the other adverse employment action—loss of overtime.
Based on the record, Faulk’s eligibility for utility operator, one of three roles, was
turned off in Owens Corning’s overtime portal for two or three weeks in February
2022. 56 Faulk argues that Brown turned off his overtime intentionally because of his
race.
Owens Corning argues that Faulk did not miss out on any overtime
compensation and that, further, the evidence supports that Faulk actually believed
Brown was jealous of his new tires, not that he acted from racial animus.
53 Doc. 73-14, Ex. M.
54 Doc. 74-2, Ex. P.
55 McDonnell Douglas, 411 U.S. at 802.
56 Doc. 74-1 at 154:24–155:5; 156:10–157:3.
14
30a
31a
male, was a forklift driver who did not work as a utility operator. 61 Sean told Faulk
he had received three or four overtime notification texts. 62 There is no further
testimony as to what types of overtime texts Sean received, or if Sean took these
overtime shifts when Faulk could not. Therefore, the Court finds that Faulk fails to
establish the fourth element for his prima facie case for loss of overtime eligibility.
2.
Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show (1) he
“engaged in protected activity”; (2) he “suffered an adverse employment action”; and
(3) “a causal link exists between the protected activity and the adverse employment
action.” 63 Owens Corning argues that Faulk did not establish that he engaged in
protected activity under Title VII prior to his termination. Faulk argues that he was
“fired for a completely made up reason,” 64 and states, in a conclusory fashion, that he
has established a prima facie case. 65 The Court agrees with Owens Corning and finds
that Faulk has failed to establish a prima facie retaliation claim.
The first prong of the prima facie cases requires a plaintiff to demonstrate that
he engaged in protected activity under Title VII. “The Title VII antiretaliation
provision has two clauses, making it an unlawful employment practice for an
61 Doc. 73-11 ¶ 32. The Court accepts this declaration, despite its failure to comply with Local
Civil Rule 11.1 on signatures. Even accepting Faulk’s declaration as proper evidence, Faulk fails to
show a prima facie case for either claim.
62 Doc 73-11 ¶ 32.
63 Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021).
64 This argument goes to the employer’s legitimate nondiscriminatory reason.
Faulk must first
prove a prima facie case before the burden shifts to Owens Corning to prove such a reason.
65 Doc. 71 at 25–26.
16
32a
employer to discriminate against any of his employees (1) because he has opposed any
practice made an unlawful employment practice [by Title VII], or (2) because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII]. 66 The first is referred to as the “opposition
clause,” and the second as the “participation clause.” 67
At the hearing, Faulk’s counsel argued, “[Faulk] was retaliated against for
complaining regarding the breaks, regarding the failure to train black employees, and
complaining about the overtime.” 68
“When one employee communicates to [his]
employer a belief that the employer has engaged in a form of employment
discrimination, that communication virtually always constitutes the employee’s
opposition to the activity.” 69 The Supreme Court has recognized that an employee
can oppose discriminatory conduct even where the employee does not initiate a formal
complaint. 70
So the question here is whether Faulk’s complaints rose to the level of a
protected activity. As to the first bucket—speaking up about unequal breaks—Faulk
expressly disavowed it was a complaint about discrimination at the time. 71 Further,
66 Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 274 (2008)
(citing 42 U.S.C. § 2000e-3(a)) (cleaned up).
67 Id.
68 Doc. 100 at 29:4–8.
69 Crawford, 555 U.S. at 276 (cleaned up) (emphasis in original) (citing EEOC compliance
manuals).
70 Id. at 277.
71 Doc. 73-15, Ex. N (audio recording) at 3:29-:54 (“I didn’t say anything about discrimination,
I never said a word. . . . You’re just making up stuff now.).
17
33a
at least one of the individuals who took the long breaks that Faulk complained
belonged to the same protected class as Faulk. 72
As to speaking up about a failure to train black employees, the Court finds no
record evidence that Faulk was not trained, nor that he complained about this. 73
Faulk states in his declaration that he would train people on the forklift. 74
As to overtime, Faulk never alleged or reported discrimination, but testified
that Brown turned off his overtime not because of race but because of jealousy over
Faulk’s sweet ride. 75 “Harassment motivated by something other than a plaintiff’s
membership in a protected class lies beyond the scope of Title VII.” 76 As to all three
buckets, the Court sees no record evidence that Faulk’s complaints or “speaking up”
ever alleged or hinted at unlawful discrimination. An employer cannot retaliate
where there was no protected activity. 77
72 Doc. 73-1 at 152:17-154:3 (discussing Faulk reporting Gil Norman, a black employee, for a
long break).
73 Faulk includes a third-party declaration from Quinterious Williams. Williams alleges that
many of the Hispanic workers did not speak English and “they would never show Black employees
how to do anything.” Ex. 73-3 ¶ 18. This does not demonstrate a race-based discrimination as to
Faulk—it does not appear to involve Faulk at all. The only instance in which the Court sees evidence
of a complaint, it turns out that Faulk “forgot he had been trained,” when he made the verbal
complaint. Doc. 73-1 at 336:9–17.
74 Doc. 73-11 ¶ 16.
75 Doc. 74-1 at 158:10–20; see also Doc. 73-11 ¶ 36 (“Mike Brown did not like that I had a nice
truck, because everyone talked about how nice my truck was, and not more than a week after that,
Mike Brown turned off my overtime.”). Owens Corning’s corporate representative, Rebecca Pike,
testified that Faulk had not reported or alleged discrimination as to the overtime issue. Doc. 73-1 at
151:4-5.
76 Stingley v. Watson Quality Ford, Jackson, Miss., 836 F. Appx. 286, 289 (5th Cir. 2020) (per
curium) (unpublished).
77 Id. at 290.
18
34a
To the extent Faulk argues he engaged in protected activity by calling the
EEOC, Faulk fails to carry his burden here as to the causal link. Faulk states in his
response that he filed an EEOC charge in October 2022. 78 Faulk states in his
declaration that he “ended up calling the EEOC,” around June or July 2022, prior to
his termination. 79 As Faulk’s counsel argued at the hearing, the only alleged adverse
employment action for Faulk’s retaliation claim is his termination. Thus, to prove a
prima facie case, Faulk must demonstrate that there is a causal link between his
protected activity—contacting EEOC—and his termination. But Faulk testified in
his deposition that he did not tell anyone at Owens Corning about calling the EEOC. 80
“A causal link is established when the evidence demonstrates that the
employer’s decision to terminate was in part on knowledge of the employee’s protected
activity.” 81 An employer cannot retaliate against an employee for protected conduct
where the employer is unaware of that conduct. 82 Faulk does not demonstrate that
Owens Corning was aware that he contacted the EEOC or any other protected
activity.
In fact, Owens Corning’s corporate representative denies having any
knowledge Faulk contacted the EEOC before he was terminated and denies that
78 Doc. 71 at 23. Faulk could not have been retaliated for something that happened after the
date of the alleged retaliation—his termination.
79 Doc. 73–11 ¶ 69; accord Doc. 74-1 at 190:16–20.
80 Doc. 74-1 at 192–94.
81 Ackel v. Nat’l Comms., Inc., 339 F.3d 376, 386 (5th Cir. 2003) (cleaned up).
82 Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999).
19
35a
Owens Corning knew either. 83 Therefore, Faulk fails to establish a prima facie case
of retaliation based on contacting the EEOC.
Faulk further alleges he complained about Brown’s Facebook post that
included a photo of a Confederate flag in the background. 84
Even if the Court
assumes this is a protected activity, Faulk fails to establish a causal link between the
complaint and his termination. Faulk states he complained about the Facebook post
to Rebecca Pike at Owens Corning sometime in March 2022. 85 This was one month
after his overtime was deactivated and reactivated and four months prior to his
termination. The Court finds this timing is too remote to find a causal link between
the complaint and the adverse action.
3.
Hostile Work Environment Claim
Faulk did not plead a Title VII violation based on a hostile work environment,
but the Court will consider whether his allegations could give rise to an implicit
hostile work environment claim.
To establish a claim of hostile work environment under Title VII, a
plaintiff must prove he (1) belongs to a protected group; (2) was
subjected to unwelcome harassment; (3) the harassment complained of
was based on race; (4) the harassment complained of affected a term,
condition, or privilege of employment; (5) the employer knew or should
have known of the harassment in question and failed to take prompt
remedial action. 86
83 Doc. 73-1 at 331:2–8.
84 Doc. 73-11 ¶ 35, 49.
85 Doc. 74-1 at 173:14–174:8.
86 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012).
20
36a
The first element is undisputed. But even if the Court assumes Faulk was
subject to unwelcome harassment—which it does not—Faulk himself denied that he
was complaining of discrimination in an audio recording of a conversation between
Faulk and Brown about breaks, dated July 9, 2022. 87 In Faulk’s own words, “I didn’t
say anything about discrimination, I never said a word.” 88 Therefore, the Court does
not find that Faulk pled a hostile work environment claim either expressly or
impliedly.
Because Faulk has failed to establish a prima facie case of racial discrimination
for any of his claims, the Court need not consider the subsequent steps of the
McDonnell Douglas analysis. 89
IV. Conclusion
In short, Faulk has a great many complaints about Owens Corning. But none
of his complaints raises a dispute that would go to a jury. This Court is reminded of
wisdom that has been stated many times by several different courts. “A federal court
87 See Doc. 75; Doc. 86 at 3. The recording, Faulk’s Exhibit N, was provided by email to the
Court. Faulk states Owens Corning produced the recording in discovery, and Rebecca Pike, an Owens
Corning employee, verified the recording in her deposition. The Court found a better description of
the recording in Mike Brown’s deposition. Doc. 73-4 at 31:9–32:9.
88 Doc. 73-15, Ex. N at 3:29-:54.
89 Even if this case reached the pretext stage of the McDonnell Douglas framework, Faulk’s
best evidence would still fail the Fifth Circuit standard for pretext. A plaintiff must present
“substantial evidence” of pretext for discrimination; “evidence must be of sufficient nature, extent, and
quality to permit a jury to reasonably infer discrimination.” Owens v. Circassia Pharms., Inc., 33 F.4th
814, 826 (5th Cir. 2022) (cleaned up). Faulk’s best argument for pretext is the picture with a
Confederate flag in the background posted on Brown’s Facebook page three years prior to Faulk’s
termination. Doc. 73-14, Ex. M. This is not sufficiently close in time to infer causation. And the text
message stating “
” was sent to Brown by an unidentified individual, and Brown
disavowed the message by responding, “
Doc. 74-2, Ex. P.
21
37a
is not the Justice League. It cannot swoop in and address wrongs, real or perceived,
wherever they appear.” 90
For the foregoing reasons, the Court GRANTS Owens Corning’s Motion for
Summary Judgment and DISMISSES WITH PREJUDICE Faulk’s claims.
A
separate final judgment will be entered. As to Faulk’s sealing motion, the Court
DENIES WITHOUT PREJUDICE Faulk’s motion but will allow him to file an
amended motion to seal within fourteen (14) days of this Order. 91
IT IS SO ORDERED this 18th day of February, 2025.
___________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
90 Combs-Harris v. Carvana, LLC, 2023 WL 2772125 (E.D. Pa. April 4, 2023) (citing Brummell
v. Clemons-Abdullah, No. 4:21-cv-01474-SRC, 2022 WL 1091137, at *3 (E.D. Mo. April 12, 2022)); Long
v. Clemons-Abdullah, No. 4:21-CV-01395-SRC, 2022 WL 950862, at *3 (E.D. Mo. Mar. 30, 2022);
Wright v. United States, 2:21-cv-01152-NR, at *4 (W.D. Pa. Jan. 6, 2022); Lindsay v. State of Colorado,
No. 8:21-cv-00468, at *6 (D. Neb. Dec. 16, 2021); Martin v. Coca Cola Consol., Inc., No. 1:20-cv-323HAB, 2020 WL 5548690, at * 2 (N.D. Ind. Sept. 16, 2020)).
91 Matters such as sealing and sanctions can endure past a final judgment. So the forthcoming
final judgment will not dispose of the sealing issue at this point.
22
38a
Case 3:23-cv-00230-X
Document 103
Filed 02/18/25
Page 1 of 1
PageID 3048
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES FAULK,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
OWENS CORNING ROOFING AND
ASPHALT, LLC,
Defendant.
Civil Action No. 3:23-CV-0230-X
FINAL JUDGMENT
By separate memorandum opinion and order, the Court grants summary
judgment in favor of Owens Corning Roofing and Asphalt, LLC on all of Charles
Faulk’s claims.
(Doc. 101).
Therefore, the Court ORDERS, ADJUDGES, and
DECREES that Faulk’s claims and causes of action against the Defendant are
DISMISSED WITH PREJUDICE.
Each party shall bear its own fees and costs. The Judgment disposes of all
parties and claims except for the remaining sealing issue noted in the memorandum
opinion and order. This is a final judgment.
IT IS SO ORDERED this 18th day of February, 2025.
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
1
39a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.