Petition for Writ of Certiorari — Joshua Yarbrough, et al., Petitioners v. SlashSupport, Incorporated, et al.

Supreme Court briefJan 13, 2026

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No. 25In the

Supreme Court of the United States

JOSHUA YARBROUGH; MATT LOFLAND; LEE

GREEN; STERLING VICKS; JOSHUA WALKER;

MICHAEL BROWN; ADAWALE ASHIRU;

PAUL TIJANI; PETER TIJANI; BRANDON PRICE;

HAROM PRINGLE; OSASU WILLIAM AIGHEYISI;

BRETT SAMUELS; AND RUKEVWE OLOGBAN,

Petitioners,

SLASHSUPPORT, INC. AND

GLOW NETWORKS, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Brian P. Sanford

Counsel of Record

The Sanford Firm

2711 Hibernia Street

Dallas, TX 75204

(214) 717-6653

bsanford@sanfordfirm.com

Counsel for Petitioners

120869

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Whether discriminatory remarks categorized as stray

under a judicial doctrine may be excluded from the mix

of circumstantial evidence of discrimination.

PARTIES

The parties to this proceeding are set out in the

caption.

iii

RELATED CASES

Yarbrough, et al. v. Glow Networks, et al. in the United

States District Court for the Eastern District of Texas,

Sherman Division, Case No. 4:19-CV-905-SDJ. Judgment

entered on May 15, 2024.

Yarbrough, et al. v. Glow Networks, et al. in the

United States Court of Appeals for the Fifth Circuit,

Case No. District Court for the Eastern District of Texas,

Sherman Division, Case No. 24-40421. Judgment entered

on October 22, 2025.

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS AND RULES

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE PETITION . . . . . 6

Stray Remarks Circuit Split . . . . . . . . . . . . . . . . . 6

The Categorical Approach . . . . . . . . . . . . . . . 9

The Contextual Approach . . . . . . . . . . . . . . 10

Table of Contents

Page

The Fifth Circuit’s Application of the

Doctrine to Petitioners . . . . . . . . . . . . . . . . . . . . . 13

Rule 401 and Per Se Rules . . . . . . . . . . . . . . . . . .14

The Impact of the Split . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TABLE OF APPENDICES

Page

A P P E N D I X A — O PI N I O N O F T H E

UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 16, 2025 . . . . . . . . . . . . . . . . 1a

A PPENDIX B — MEMORA NDUM

OPINION AND ORDER ON POST-TRIAL

MOTIONS OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DIST RICT OF T EX A S , SH ERM A N

DIVISION, FILED MARCH 1, 2024 . . . . . . . . . . . 18a

APPENDIX C — CONDITITONAL RULING

OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF T E X A S , S H E R M A N DI V I S IO N ,

FILED MARCH 25, 2024 . . . . . . . . . . . . . . . . . . . . 108

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT, EASTERN

DI S T R IC T OF T E X A S , S H E R M A N

DIVISION, FILED APRIL 23, 2024 . . . . . . . . . . . 110

APPENDIX E — FINAL JUDGMENT OF

THE UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF TEXAS, SHERMAN

DIVISION, FILED MAY 15, 2024 . . . . . . . . . . . . 112a

APPENDIX E — FINAL JUDGMENT OF

THE UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF TEXAS, SHERMAN

DIVISION, FILED MAY 15, 2024 . . . . . . . . . . . . 120a

vii

TABLE OF CITED AUTHORITIES

Page

CASES:

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Diaz v. Jiten Hotel Mgmt., Inc.,

762 F. Supp. 2d 319 (D. Mass. 2011) . . . . . . . . . . . 8, 14

Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 10

Fisher v. Pharmacia & Upjohn,

225 F.3d 915 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 12

Hamilton v. Dall. Cnty.,

79 F.4th 494 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . 4

Harris v. Wackenhut Services, Inc.,

648 F. Supp. 2d 53 (D.D.C. 2009) . . . . . . . . . . . . . . . . . 9

Henry v. Wyeth Pharms., Inc.,

616 F.3d 134 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . 11, 14

Jackson v. Cal-W. Packaging Corp.,

602 F.3d 374 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . 9, 13

Mereish v. Walker,

359 F.3d 330 (4th Cir. 2004) abrogated on other

grounds by Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

viii

Cited Authorities

Page

Merrick v. Farmers Ins. Grp.,

892 F.2d 1434 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . 11

Muldrow v. City of St. Louis, Missouri,

601 U.S. 346 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Parker v. Verizon Pennsylvania, Inc.,

309 F. App’x 551 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . 11

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Rios-Jimenez v. Principi,

520 F.3d 31 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . 9

Rivers-Frison v.

Se. Missouri Cmty. Treatment Ctr.,

133 F.3d 616 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 9

Robinson v. Bd. of Supervisors for

Univ. of Louisiana Sys.,

225 So.3d 424 (La. Sup. Ct. 2017) . . . . . . . . . . . . . . . 13

Ross v. Rhodes Furniture, Inc.,

146 F.3d 1286 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . 12

Rowan v. Lockheed Martin Energy Sys., Inc.,

360 F.3d 544 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 9

Cited Authorities

Page

Russell v. McKinney Hosp. Venture,

235 F.3d 219 (5th Cir. 2000) . . . . . . . . . . . . . . . . . 13, 14

Scott v. Suncoast Beverage Sales, Ltd.,

295 F.3d 1223 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . 12

Serrano-Colon v.

United States Dep’t of Homeland Sec.,

121 F.4th 259 (1st Cir. 2024) . . . . . . . . . . . . . . . . . . . . 10

Shager v. Upjohn Co.,

913 F.2d 398 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 11

Sprint/United Mgmt. Co. v. Mendelsohn,

552 U.S. 379 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

Steele v. Mattis,

899 F.3d 943 (D.C. Cir. 2018) . . . . . . . . . . . . . . . . . . . 12

Straughn v. Delta Air Lines, Inc.,

250 F.3d 23 (1st Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 10

Tomassi v. Insignia Fin. Grp., Inc.,

478 F.3d 111 (2d Cir. 2007) abrogated on other

grounds by Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Tooson v. Roadway Express, Inc.,

47 F. App’x 370 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . 10

Cited Authorities

Page

United States v. Rodríguez–Cortés,

949 F.2d 532 (1st Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 14

Washington v. Honeywell, Inc.,

94 F.3d 654 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 11

Webster v. Shulkin,

707 F. App’x 535 (10th Cir. 2017) . . . . . . . . . . . . . . . . 12

Wyvill v. United Cos. Life Ins. Co.,

212 F.3d 296 (5th Cir. 2000) . . . . . . . . . . . . . . 10, 13, 14

Yarbrough v. SlashSupport, Inc.,

152 F.4th 658 (5th Cir. 2025) . . . . . . . . . . . . 1, 10, 13, 14

STATUTES:

U.S. Const. amend. VII . . . . . . . . . . . . . . . . . . . . . . 3, 6, 16

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RULES:

Fed. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 14, 15

Cited Authorities

Page

OTHER AUTHORITIES:

Adriante Carter, Black Culture is “Professional”:

Causation after Bostock & Racial Stereotypes,

33 Univ. Fla. J. L. & Pub. Pol’y 119 (2022) . . . . . . . . 7

Nancy Gertner, Losers’ Rules,

122 Yale L.J. Online 109 (2012) . . . . . . . . . . . . . . . . . 7

Elissa R. Hoffman, Note, Smoking Guns, Stray

Remarks and Not Much in Between: A

Critical Analysis of the Direct Evidence

Req uir e m e nt in Mi xed-Motive Ca ses,

7 Suffolk J. Trial & A pp. A dvoc. 181 (2002) . . . . . . 7

Linda Hamilton Krieger, The Content of Our

Categories: A Cognitive Bias Approach to

Discrimination and Equal Employment

Opportunity, 47 Stan. L. Rev. 1161 (1995) . . . . . . . . 8

Susan E. Provenzano, How Rhetoric Reveals

Ju d i c i a l Mo t i v e s i n Em p l o y m e n t

Discrimination Cases, 90 Tenn. L. Rev. 149

(2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

S a nd r a F. Sp er i no, Di sbeli ef Doc tr in es,

39 Berkeley J. Emp. & Lab. L. 231 (2018) . . . . . . . . . 7

Sandra F. Sperino, Evidentiary Inequality,

101 B.U. L. Rev. 2105 (2021) . . . . . . . . . . . . . . . . . . . 6, 7

xii

Cited Authorities

Page

Sandra F. Sperino, Into the Weeds: Modern

Discrimination Law, 95 Notre Da me L.

Rev. 1077 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kerri Lynn Stone, Shortcuts in Employment

Discrimination Law, 56 S t. L ouis Uni v.

L.J. 111 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ker r i Ly n n St one, Ta kin g in Str ays: A

Critique of the Stray Comment Doctrine in

Employment Discrimination Law, 77 Mo.

L. Rev. 149 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Suja A. Thomas, Employment Discrimination

in the U.S. Versus the U.K.: Dismissals Prior to

Jury Trials Versus Hearings on the Merits by

Employment Tribunals That Include Lay

Participation, 993 Geo. Wash. L. Rev. 1327

(2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Suja A. Thomas, Summary Judgment and the

Reasonable Jury Standard, 97 Judicature

222 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Suja A. Thomas, The Fallacy of Dispositive

Procedure, 50 B.C. L. Rev. 759 (2009) . . . . . . . . . . . 16

Suja A. Thomas, The Seventh Amendment,

Modern Procedure, and the English Common

Law, 82 Wash. U. L.Q. 687 (2004) . . . . . . . . . . . . . . . 16

xiii

Cited Authorities

Page

Suja A. Thomas, Why Summary Judgment is

Unconstitutional, 93 Va. L. Rev. 139 (2007) . . . . . . 16

Elizabeth C. Tippett & Jamillah B. Williams,

Misjudging a Reasonable Jury: Evidence that

Courts Dismiss Meritorious Harassment

Claims, 1 Conn. L. Rev. (forthcoming 2026) . . . . . . . 8

PETITION FOR WRIT OF CERTIORARI

Joshua Yarbrough, Matt Lofland, Lee Green, Sterling

Vicks, Joshua Walker, Michael Brown, Adawale Ashiru,

Paul Tijani, Peter Tijani, Brandon Price, Harom Pringle,

Osasu William Aigheyisi,1 Brett Samuels, and Rukevwe

Ologban, plaintiffs in the district court case, petition this

Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The trial court entered judgment as a matter of law.

ROA.2499. The opinion of the Court of Appeals is reported

at Yarbrough v. SlashSupport, Inc., 152 F.4th 658 (5th

Cir. 2025). 1a.

JURISDICTION

The Court of Appeals decided the case on September

16, 2025. 1a. A timely petition for rehearing was denied

October 15, 2025. 120a. The Supreme Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

RULES INVOLVED

The relevant statute is the Civil Rights Act of 1866

concerning discriminatory impairments in contracts:

1. Mr. Aigheyisi’s name has been inconsistenly spelled in

pleadings and orders. The correct spelling is Osasu William

Aigheyis.

(a) Statement of equal rights

All persons within the jurisdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed

by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make

and enforce contracts” includes the making,

performance, modification, and termination

of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the

contractual relationship.

The rights protected by this section are protected

against impairment by nongovernmental

discrimination and impairment under color of

State law.

42 U.S.C. § 1981.

Federal Rule of Evidence 401 provides:

Evidence is relevant if:

(a) it has any tendency to make a fact more or

less probable than it would be without the

evidence; and

(b) the fact is of consequence in determining

the action.

Fed. R. Evid. 401.

The Seventh Amendment to the United States

Constitution provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise reexamined in any Court of the United States,

than according to the rules of the common law.

U.S. Const. amend. VII.

STATEMENT OF THE CASE

Fourteen employees, one White and the rest Black,

claimed their employer discriminated or retaliated against

them in violation of the Civil Rights Act of 1866. ROA.205233. The district court dismissed four of the plaintiffs

by summary judgment. ROA.1129-1158. In a trial of

the remaining ten plaintiffs, a jury found the employer

violated the Civil Rights Act of 1866 by demoting, refusing

to promote, terminating, or selecting for layoff and not

returning to work depending on the plaintiff. ROA.14421458.

Upon post judgment motions, the trial court found

no evidence to support the verdict but ruled that two of

the plaintiffs may have a new trial on their retaliation

claims. ROA.1370-1382. A Fifth Circuit panel affirmed

the district court except for the summary judgment

decision, remanding it for reconsideration in light of the

Fifth Circuit’s decision in Hamilton v. Dallas County.

6a. See Hamilton v. Dall. Cnty., 79 F.4th 494, 500 (5th

Cir. 2023) (en banc) (to recover under Title VII harms do

not have to be “ultimate employment decisions” but must

be more than “de minimis workplace trifles”). The Fifth

Circuit’s decision in Hamilton is similar to the Supreme

Court’s decision in Muldrow v. City of St. Louis, Missouri,

601 U.S. 346, 355 (2024) (the harm does not have to be

significant, serious, or substantial).

Key evidence presented by the plaintiffs included:

• Discriminatory Surveillance: Black employees

were deliberately assigned to seats directly in

front of security cameras for constant monitoring.

ROA.2851:4-2852:5. Their breaks were scrutinized,

while Indian and other non-Black employees were

not subjected to the same level of surveillance

and were free to work in a relaxed atmosphere,

sometimes w ith their feet on their desks.

ROA.2853:03-12; ROA.2956:07-2957:12.

• Disparate Enforcement of Rules: A double

standard existed for workplace rules. For example,

a manager berated a Black employee for wearing

a traditional Nigerian garment, telling him, “You

should not wear that shit to work anymore,” while

allowing other non-Black employees to wear

cultural garments. ROA.914:09-24; ROA.933:1022. Black employees were reported for using

personal phones while their non-Black colleagues

were not. ROA.2960:07-2961:10. Black employees

were not allowed the same breaks as non-Black

employees. ROA.3035:03-13.

• Retaliatory Demotions and Termination: Glow

Networks demoted the White plaintiff and a Black

plaintiff after they opposed the discrimination

against Black employees. ROA.2863:03-2864:02;

ROA.2867:1-2876:19; ROA.2970:05 -23. Glow

Networks fired two of the Black plaintiffs based

on pretext after they repeatedly opposed the

discrimination. ROA.3341.21-3344:17.

• Discriminatory Promotion and Layoff Practices:

Glow Networks promoted less qualified Indian

and White employees over more qualified Black

employees. ROA.2860:15-2861:24; ROA.2962:092963:07. In discussing with her subordinate the

creation of a layoff list involving the plaintiffs, a

human resource senior manager said, “Don’t lay

off any White people.” ROA.2871:06-2872:1. After

the White plaintiff protested the statement, Glow

Networks revised the layoff list by seniority rather

than race. ROA.2868:11-2873:3; ROA.2932:22934:6. However, Glow Networks only returned

non-Black employees for the next project,

except for one of the plaintiffs, a large Black

employee. ROA.3188:12-3189:09; ROA.4329:0411. Glow Networks moved him to Compton

to provide transportation and protection in

Black neighborhoods. ROA.4332:19-4333:17;

ROA.4336:25-4337:10. He felt used and lied to.

ROA.4337:11-4339:18.

• Verbal Abuse and Humiliation: Managers yelled

at, verbally abused, and falsely accused Black

workers of mistakes; a practice not applied to

White or Indian employees. ROA.816:21-817:23;

ROA.839:19-840:06; ROA.757-760; ROA.910:03-23;

ROA.954:03-22.

The damages determined, $7 million each, underscore

the jury’s valuation of a shared, systemic injury inflicted

upon the ten plaintiffs who were allowed to try their case.

ROA.1442-1458.

REASONS FOR GRANTING THE PETITION

1. Stray Remarks Circuit Split

The circuits are split over the “stray remarks”

doctrine. Courts developed the doctrine from Justice

O’Connor’s concurrence in Price Waterhouse v. Hopkins,

which stated that “stray remarks in the workplace” were

not sufficient to act as direct evidence so as to overcome a

plaintiff’s initial prima facie burden under the McDonnellDouglas framework. Price Waterhouse v. Hopkins, 490

U.S. 228, 277 (1989) (O’Connor, J., concurring). Justice

O’Connor noted, however, that such remarks may be

“probative” of discrimination. Id. The later judge-made

doctrine lacks any basis in the text of 1866 or the 1964

Civil Rights Acts and imposes unnecessary burdens on

litigants, contravening this Court’s admonition of a per

se evidentiary rule in Sprint, 2 minimum requirements of

Fed. R. Evid. 401, and ultimately invading the province

of the jury in contravention of the Seventh Amendment. 3

Legal scholars have criticized the stray remark

doctrine since its inception. See Susan E. Provenzano,

2. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,

387 (2008).

3. See Sandra F. Sperino, Evidentiary Inequality, 101

B.U. L. Rev. 2105, 2116 (2021) (“The stray remark doctrine is not

contained within the text of any of the main federal discrimination

statutes” and instead “is a special evidentiary rule that courts

created and apply in discrimination cases.”).

How Rhetoric Reveals Judicial Motives in Employment

Discrimination Cases, 90 Tenn. L. Rev. 149, 184 (2022)

(doctrines such as the stray remarks doctrine rule out

discrimination rather than ruling it in); Adriante Carter,

Black Culture is “Professional”: Causation after Bostock

& Racial Stereotypes, 33 Univ. Fla. J. L. & Pub. Pol’y

119, 136-37 (2022) (“The stray remarks doctrine has

faced much criticism because it does not account for the

impact of workplace culture on employment decisions or

acknowledge that biased decisionmaking is present long

before the ‘moment of decision.’”); Sandra F. Sperino, Into

the Weeds: Modern Discrimination Law, 95 Notre Dame

L. Rev. 1077 (2020) (courts should abolish these ancillary

doctrines); Sandra F. Sperino, Disbelief Doctrines, 39

Berkeley J. Emp. & L ab. L. 231, 233 (2018);4 Nancy

Gertner, Losers’ Rules, 122 Yale L.J. Online 109, 118

(2012) (“High on the list of heuristics that fundamentally

distort the outcome of discrimination cases is what may be

described as the ‘stray remarks’ doctrine.”); Kerri Lynn

Stone, Taking in Strays: A Critique of the Stray Comment

Doctrine in Employment Discrimination Law, 77 Mo.

L. Rev. 149, 152 (2012) (“[T]he stray comments ‘doctrine’

does more harm than good.”); 5 Elissa R. Hoffman,

Note, Smoking Guns, Stray Remarks and Not Much

in Between: A Critical Analysis of the Direct Evidence

Requirement in Mixed-Motive Cases, 7 Suffolk J. Trial

& A pp. A dvoc. 181, 202 (2002) (“By limiting the type of

4. See Sandra F. Sperino & Suja A. Thomas, Evidentiary

Inequality in Discrimination Cases, 101 B.U. L. R ev. 2105,

2123 (2021) (“[T]here is no stray mistake doctrine that limits the

employer’s ability to submit evidence related to an employee’s

poor performance.”).

5. See also Kerri Lynn Stone, Shortcuts in Employment

Discrimination Law, 56 St. Louis Univ. L.J. 111, 131-34 (2011).

evidence that mixed-motive plaintiffs must produce to

virtual admissions by the employer, the courts effectively

rob plaintiffs of a fair chance for compensation.”); Linda

Hamilton Krieger, The Content of Our Categories: A

Cognitive Bias Approach to Discrimination and Equal

Employment Opportunity, 47 Stan. L. Rev. 1161, 118187 (1995) (jurisprudential construction of discrimination

narrowly focuses on conscious, provable animus, while

the actual phenomenon of discrimination encompasses

unconscious stereotypes and cognitive shortcuts that drive

biased decisionmaking—the “stray remarks” doctrine

polices the former and ignores the latter). Judges have also

criticized the doctrine. See Diaz v. Jiten Hotel Mgmt., Inc.,

762 F. Supp. 2d 319, 333-38 (D. Mass. 2011) (“I question the

continuing relevance of the ‘Stray Remarks Doctrine’ in

light of the Supreme Court’s recent holdings that require

a more contextual view of discrimination.”).

Judicial assessments of facts such as “stray remarks”

appear to substantially diverge from simulated jury

assessments. See Elizabeth C. Tippett & Jamillah B.

Williams, Misjudging a Reasonable Jury: Evidence

that Courts Dismiss Meritorious Harassment Claims,

1 Conn. L. Rev. (forthcoming 2026). The Supreme Court

“has not questioned most of the lower courts’ case law

that favors the employer’s perspective, including the

‘honest belief’ doctrine, ‘courts are not super-personnel

departments’ doctrine, and the ‘stray remarks’ doctrine.”

Suja A. Thomas, Employment Discrimination in the U.S.

Versus the U.K.: Dismissals Prior to Jury Trials Versus

Hearings on the Merits by Employment Tribunals That

Include Lay Participation, 993 Geo. Wash. L. Rev. 1327,

1373 (2025).

All circuits agree that stray remarks are those that do

not rise to the level of “direct evidence” of discriminatory

animus. See, e.g., Rios-Jimenez v. Principi, 520 F.3d 31,

40 (1st Cir. 2008); Rowan v. Lockheed Martin Energy

Sys., Inc., 360 F.3d 544, 549 (6th Cir. 2004); Rivers-Frison

v. Se. Missouri Cmty. Treatment Ctr., 133 F.3d 616, 621

(8th Cir. 1998); Harris v. Wackenhut Services, Inc., 648

F. Supp. 2d 53, 62 (D.D.C. 2009), aff’d, 419 Fed. App’x 1

(D.C. Cir. 2011). Beyond that, circuits disagree on the

definition of a stray remark, and its probative value. The

courts divide into categorical versus contextual analyses

of the discriminatory comments. The Fifth and Sixth

Circuits have adopted a highly restrictive, multi-factor

test to discount or exclude evidence of discriminatory

comments by labeling them “stray remarks.” Other

circuits adopt varying degrees of contextual analysis that

do not necessarily exclude comments identified as “stray.”

The Categorical Approach

The Fifth and Sixth Circuits’ Courts of Appeals

exclude evidence of discriminatory comments labeled

“stray remarks.” The Fifth Circuit’s formula considers

d i sc r i m i n at or y r em a rk s pr obat i ve ev idenc e of

discrimination, and therefore not “stray,” if they are:

1) related to the protected class of persons of which

the plaintiff is a member; 2) proximate in time to the

complained-of adverse employment decision; 3) made by an

individual with authority over the employment decision at

issue; and 4) related to the employment decision at issue.

Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380

(5th Cir. 2010). In the Fifth Circuit, comments found to

be “stray remarks” are “not ‘probative of [an employer’s]

discriminatory intent.’” Yarbrough, 152 F.4th at 667 (5th

Cir. 2025) (quoting Wyvill v. United Cos. Life Ins. Co., 212

F.3d 296, 304 (5th Cir. 2000)). 11a.

The Sixth Circuit also holds that any “stray remarks”

should not be considered as evidence of discrimination.

See Tooson v. Roadway Express, Inc., 47 F. App’x 370,

375 (6th Cir. 2002). The Sixth Circuit allows a district

court to prevent the fact finder from considering “stray

remarks” if not made by decisionmakers. Id. (citing

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

355 (6th Cir. 1998) (allowing for the possibility of relevancy

for statements by persons with a meaningful role in the

adverse action)).

The Contextual Approach

The remaining circuits use varying forms of a

contextual approach. In the First Circuit, generalized

“stray remarks” are not probative of pretext absent some

discernible evidentiary basis for assessing their temporal

and contextual relevance. Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 36 (1st Cir. 2001); see also Serrano-Colon

v. United States Dep’t of Homeland Sec., 121 F.4th 259,

272 (1st Cir. 2024) (context and more a close relationship

to the adverse action decision to be sufficient evidence of

pretext).

The Second Circuit notes that the descriptor “stray”

is merely “to recognize that all comments are not equally

probative of discrimination,” and that comments should

not “first be categorized either as stray or not stray

and then disregarded if they fall in the stray category.”

Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115-16

(2d Cir. 2007) abrogated on other grounds by Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167 (2009). The Second

Circuit uses four factors to consider whether a remark

is probative, none of which are dispositive. See Henry v.

Wyeth Pharms., Inc., 616 F.3d 134, 150-51 (2d Cir. 2010).

Similarly, the Third Circuit has three factors to consider

whether a stray remark is probative. Parker v. Verizon

Pennsylvania, Inc., 309 F. App’x 551, 559 (3d Cir. 2009).

The Fourth Circuit takes a more generalized approach

but nevertheless sets a facially high bar for admissibility.

See Mereish v. Walker, 359 F.3d 330, 336-37 (4th Cir. 2004)

abrogated on other grounds by Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167 (2009) (generalized statements must be

considered in context to be admissible – statements of fact

of life such as “there comes a time when we have to make

way for younger people” and needing “some new blood”

are insufficiently probative of age discrimination).

The Ninth Circuit acknowledges that although stray

remarks may be insufficient to establish discrimination in

and of themselves (direct evidence), comments suggesting

that the employer may have considered impermissible

factors are relevant to a disparate treatment claim. See

Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th

Cir. 1990); Washington v. Honeywell, Inc., 94 F.3d 654

(9th Cir. 1996).

The Seventh Circuit recognizes stray remarks as

circumstantial evidence which may be probative. See

Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990)

(the doctrine is “the common-sense proposition that a

[discriminatory remark] is not in and of itself proof of

actionable discrimination” but still “may be relevant

evidence, with greater or less probative value depending

on the precise character of the remark.”).

The Eighth and Eleventh Circuits recognize stray

remarks as contributory to other circumstantial evidence.

See Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 923 (8th

Cir. 2000) (“Stray remarks . . . constitute circumstantial

evidence that, when considered together with other

evidence, may give rise to a reasonable inference of . . .

discrimination.”); Ross v. Rhodes Furniture, Inc., 146

F.3d 1286, 1291-92 (11th Cir. 1998) (stray remarks are

contributory to other evidence in a circumstantial case).

See also Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d

1223, 1229 (11th Cir. 2002) (discriminatory comments may

not be sufficient themselves absent additional evidence of

pretext).

In the Tenth Circuit, stray remarks “can show

animus” if there is a nexus between the comments and the

adverse action. Webster v. Shulkin, 707 F. App’x 535, 539

(10th Cir. 2017). The nexus can be established by showing

that “the comments that resulted in [the adverse action]

were directed at” the plaintiff, the plaintiff’s position, or

a policy that resulted in the adverse action. Id.

The D.C. Circuit appears to take a broader position

than other circuits as to the admissibility as well as the

threshold of defining discriminatory comments as direct

evidence. See Steele v. Mattis, 899 F.3d 943, 951 (D.C. Cir.

2018) (comments by a supervisor of the decisionmaker that

older workers are “difficult to work with” and “it’s not good

to have lots of [them] at [the College]” are “disturbing and

powerful evidence of discrimination” and “direct evidence

of illegal discrimination, not harmless ‘stray remark[s]’”).

2. The Fifth Circuit’s Application of the Doctrine to

Petitioners

The Fifth Circuit in Yarbrough relied upon its preReeves decision in Wyvill requiring a stray remark to

be “direct and unambiguous, allowing a reasonable jury

to conclude without any inferences or presumptions

that [race] was a determinative factor in the decision

to terminate the employee”. 11a. The Fifth Circuit’s

standard in Wyvill was called into doubt after Reeves. See

Robinson v. Bd. of Supervisors for Univ. of Louisiana

Sys., 225 So.3d 424, 436 (La. Sup. Ct. 2017). In Reeves,

the Supreme Court admonished the Fifth Circuit for

“impermissibly substitut[ing] its judgment concerning the

weight of evidence for the jury’s.” Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 153 (2000).6 The

Fifth Circuit initially approached the stray remark

doctrine more cautiously in light of Reeves. See Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000)

(Remarks “are appropriately taken into account when

analyzing the evidence supporting the jury’s verdict,”

even where the comment is not in the direct context of

the termination and even if uttered by one other than

the formal decisionmaker, provided that the individual is

in a position to influence the decision.). The Fifth Circuit

has since distanced itself from Russell and has taken the

position that its version of the stray remarks doctrine

survived the Supreme Court’s decision in Reeves. See

Jackson, 602 F.3d at 380 n. 27.

6. The Supreme Court in Reeves did not directly address

Fifth Circuit’s discriminatory remark analysis, it reversed

because the Fifth Circuit did not properly apply the McDonnell

Douglas framework. Reeves, 530 U.S. at 146-47.

The Fifth Circuit did not apply its standard in Russell

to the Yarbrough case, citing Wyvill and noting that the

decisionmaker rejected the initial layoff list even though

the decisionmaker was subordinate to and in a position to

be influenced by the speaker of the comment. See 11a. The

jury found that Black employees were selected for layoff

and not returned to work based on race. ROA.1442-1458.

The Fifth Circuit did not address whether the statement

tended to make the failure to rehire or return Black

employees more probable. 11a.

3. Rule 401 and Per Se Rules

The Federal Rules of Evidence set the standard for

relevance. See Fed. R. Evid. 401. Evidence is relevant

if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the

action more probable or less probable than it would be

without the evidence.” Fed. R. Evid. 401. The fact of

consequence in discrimination cases is discrimination

itself. The standard for relevancy of a discriminatory

comment under Rule 401, therefore, is whether it has a

tendency to make the existence of discrimination against

the plaintiff more probable than without it. The threshold

for relevance under Rule 401 is very low. See United States

v. Rodríguez–Cortés, 949 F.2d 532, 542 (1st Cir. 1991).

Some courts exclude stray remarks as unfairly

prejudicial under Rule 403. See Henry, 616 F.3d at 150-51.

This type of analysis can be questionable, as discriminatory

“language is necessarily prejudicial, precisely because it

is highly probative.” Diaz, 762 F. Supp. 2d at 337. Even

old comments by a person with decisionmaking authority

would make discrimination more probable under the

adage that leopards don’t change their spots.

While a discriminatory comment may not be sufficient

itself, a jury weighs the evidence. Rarely will a comment

be the only evidence of pretext. A prima facie case itself

is evidence that may provide an inference of pretext,

especially if the jury chooses not to believe the employer.

See Reeves, 530 U.S. at 143 (although the presumption

of discrimination “drops out of the picture” once the

defendant meets its burden of production, the trier of fact

may still consider the evidence establishing the plaintiff’s

prima facie case and inferences properly drawn therefrom

on the issue of whether the defendant’s explanation is

pretextual).

In the discovery context, the Supreme Court eschewed

a per se rule for relevance for discrimination cases. See

Sprint, 552 U.S. at 387. Per se rules, such as a stray

remark doctrine categorically applied to the admissibility

of discriminatory remarks, should be prohibited as well.

The stray remark doctrine is imbedded in the

McDonnell Douglas framework. However, Rule 401 is

capable of laying a foundation for evidence of discrimination

separate from the McDonnell Douglas framework. The

Rule defines evidence in terms of probabilities which fact

finders can consider based on experience. Evidence stacked

on evidence is probabilities stacked on probabilities which

fact finders, in a common-sense Bayesian way, can factor

to make an ultimate determination. A “stray remark”

would be just one piece of evidence, however small, that

makes discrimination more probable than not.

4. The Impact of the Split

The differences among the circuits create profound

uncertainty for employers and employees and fosters an

environment where federal law is applied unequally across

the nation. A comment deemed legally meaningless in one

circuit may be sufficient to secure a jury trial in another.

This split persists because the dominant, restrictive

doctrine is not just a different interpretation of evidence,

it is fundamentally at odds with the federal rules governing

relevance. The time has come to review these judge-made

rules. See Ames v. Ohio Dep’t of Youth Servs., 605 U.S.

303, 313 (2025) (Thomas, J., concurring).

On a more fundamental level, the stray remark

doctrine contravenes the Seventh Amendment right that

a “trial by jury shall be preserved, and no fact tried by a

jury, shall be otherwise re-examined in any Court of the

United States, than according to the rules of the common

law.” U.S. Const. amend. VII.7 Disregarding jury verdicts

by weighing the evidence erodes the public confidence in

our court system.

7. Viewing the Seventh Amendment in its original context

brings doubt as to current procedures for judges granting

judgments in place of or notwithstanding juries. See Suja A.

Thomas, Why Summary Judgment is Unconstitutional, 93 Va .

L. Rev. 139 (2007); see Suja A. Thomas, The Seventh Amendment,

Modern Procedure, and the English Common Law, 82 Wash.

U. L.Q. 687 (2004); Suja A. Thomas, The Fallacy of Dispositive

Procedure, 50 B.C. L. Rev. 759 (2009); Suja A. Thomas, Summary

Judgment and the Reasonable Jury Standard, 97 Judicature

222 (2014).

CONCLUSION

The Court should grant the petition for a writ

of certiorari to resolve a circuit split concerning the

application of the judicial stray remarks rule applied in

employment discrimination claims.

Respectfully submitted,

Brian P. Sanford

Counsel of Record

The Sanford Firm

2711 Hibernia Street

Dallas, TX 75204

(214) 717-6653

bsanford@sanfordfirm.com

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 16, 2025 . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — M EMOR A N DU M

OPINION AND ORDER ON POST-TRIAL

MOTIONS OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DI S T R IC T OF T E X A S , S H E R M A N

DIVISION, FILED MARCH 1, 2024 . . . . . . . . . . . 18a

APPENDIX C — CONDITITONAL RULING

OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF T E X A S , S H ER M A N DI V I S ION,

FILED MARCH 25, 2024 . . . . . . . . . . . . . . . . . . . . 108

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT, EASTERN

DI S T R IC T OF T E X A S , S H E R M A N

DIVISION, FILED APRIL 23, 2024 . . . . . . . . . . . 110

APPENDIX E — FINAL JUDGMENT OF

THE UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF TEXAS, SHERMAN

DIVISION, FILED MAY 15, 2024 . . . . . . . . . . . . 112a

A P P E N DI X F — O R D E R D E N Y I N G

PETITION FOR REHEARING EN BANC

OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED OCTOBER 15, 2025 . . . . . . . . . . . . . . . . . 120a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 16, 2025

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-40421

JOSHUA YARBROUGH, INDIVIDUALLY AND ON

BEHALF OF OTHERS SIMILARLY SITUATED;

MATT LOFLAND, INDIVIDUALLY AND ON

BEHALF OF OTHERS SIMILARLY SITUATED;

JOSHUA WALKER; BRANDON PRICE; MICHAEL

BROWN; BRETT SAMUELS; STERLING

VICKS; ADAWALE ASHIRU; OSASU WILLIAM

SAIGHEYISI; HAROM PRINGLE; RUKEVWE

OLOGBAN; PETER TIJANI; LEE GREEN;

PAUL TIJANI,

Plaintiffs-Appellants,

versus

SLASHSUPPORT, INCORPORATED;

GLOW NETWORKS, INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:19-CV-905

Appendix A

Before K ing, Smith, and Douglas, Circuit Judges.

Jerry E. Smith, Circuit Judge.

Plaintiffs sued their former employer, Glow Networks,

Incorporated, and its parent company, SlashSupport,

Incorporated, under 42 U.S.C. § 1981 for discriminating

based on race, maintaining a hostile work environment,

and retaliating for opposing discrimination. One plaintiff

likened his experience to “being raped”; another called it

the “new slavery.”

To Glow, the district court granted summary

judgment, judgment as a matter of law (“JMOL”), or a

new trial on every claim. The court also granted JMOL

to SlashSupport on all claims because it was not an

“integrated enterprise” with Glow that could be liable

for Glow’s employment decisions. Additionally, the court

excluded the testimony of four witnesses. Except for a

summary judgment based on since-abrogated precedent,

we affirm.

Glow is an IT company. “All plaintiffs other than

Lofland, who was a team lead, were either Tier 1 or Tier

2 employees. . . . Tier 1 employees conducted integrations,

while Tier 2 employees,” who were more knowledgeable,

supported Tier 1 employees. They worked on a “Remote

Integration and Testing Center” in 2017 and 2018; some

returned to work for Glow in 2019 and 2020. Glow was

contracted to upgrade Nokia’s cell sites from 4G to 5G

Appendix A

technology. Mohammad Silat and Sandeep Pauddar were

managers on the project. Yarbrough v. CSS Corp., No.

4:19-CV-905, 2022 U.S. Dist. LEXIS 18972, 2022 WL

326141, at *1 (E.D. Tex. Feb. 2, 2022).

With the exception of Matt Lofland, who is

Caucasian, all Plaintiffs are Black former

employees who contend that Glow discriminated

against them based on their race. They

claim discrimination based on both tangible

actions, such as terminations and denials of

promotions, and on the alleged creation of a

hostile work environment. Plaintiffs Lofland,

Adawale Ashiru, Brett Samuels, Paul Tijani,

Peter Tijani, Joshua Walker, and Osasu

William Aigheyisi additionally allege that

Glow retaliated against them for reporting and

opposing race discrimination.

Id.

The district court granted summary judgment to Glow

on all hostile work environment claims. It also granted

Glow summary judgment on the discrimination claims

asserted by Green, Vicks, Samuels, Price, and Ologban,

and the retaliation claims asserted by Samuels, because

they had not produced evidence that they had experienced

an ultimate employment decision, as required under this

court’s precedent at the time.

The case was tried to a jury. Much of the plaintiffs’

evidence addressed not the complained-of employment

Appendix A

actions that they say were discriminatory, but workplace

policies that allegedly targeted black employees. For

instance, they testified that black employees were

required to sit in camera-monitored rooms; were not

allowed to take breaks as often as other employees; were

singled out for minor workplace infractions; and were not

allowed to use cellphones.

The court granted JMOL to Glow under Federal Rule

of Civil Procedure 50(a) on Lofland’s and Yarbrough’s

constructive discharge-based claims, explaining that no

reasonable jury could find that their demotions would have

compelled reasonable employees to resign.

A jury found for the nine remaining plaintiffs on the

discrimination and retaliation claims and awarded each

plaintiff $3 million in emotional distress damages and $4

million in punitive damages.

Under Rule 50(b), the court granted JMOL on all

claims to SlashSupport, concluding that there was no

factual basis from which a reasonable jury could conclude

that SlashSupport was plaintiffs’ employer. The court

granted JMOL to Glow on the remaining discrimination

claims, finding insufficient evidence to sustain the jury’s

verdict. On the retaliation claims, it granted JMOL to

Glow for claims asserted by Lofland and Paul Tijani,

finding that neither had produced evidence that he had

opposed race discrimination.

The court granted a new trial to Glow on the

retaliation claims asserted by Peter Tijani and Aigheyisi,

Appendix A

finding that the verdicts were contrary to the great weight

of the evidence.

II.

We review a JMOL or summary judgment de novo.

Skidmore v. Precision Printing &Pkg., Inc., 188 F.3d 606,

612 (5th Cir. 1999) (JMOL); Boyd v. State Farm Ins. Cos.,

158 F.3d 326, 328 (5th Cir. 1998) (summary judgment).

We review a ruling on a new-trial motion for abuse of

discretion but scrutinize a grant more closely than a

denial. Shows v. Jamison Bedding, Inc., 671 F.2d 927,

930 (5th Cir. 1982). We review the exclusion of evidence

for abuse of discretion. Cruz v. Cervantez, 96 F.4th 806,

814 (5th Cir. 2024).

III.

The district court granted summary judgment

to Glow on the discrimination claims of Green, Vicks,

Samuels, Price,1 and Ologban and on the retaliation

claim of Samuels because none could show an “ultimate

employment decision” like a constructive discharge. For

either type of claim, a plaintiff must show an adverse

employment action, which, at the time of the summary

1. The court granted summary judgment to Glow on Price’s

discrimination claim based on his 2018 resignation. He also claimed

discrimination with regard to his 2019 termination; that claim was

tried, after which the district court granted JMOL to Glow, which

Price also appeals.

Appendix A

judgment, meant an “ultimate employment decision.” See

Hamilton v. Dall.Cnty., 79 F.4th 494, 500 (5th Cir. 2023)

(en banc).

In Hamilton, however, the en banc court held that

adverse employment actions under Title VII are not

limited to ultimate employment decisions. Id. at 506.

Accordingly, as both parties request, we vacate the

summary judgment on those claims and remand for

further proceedings consistent with Hamilton.

The court granted summary judgment to Glow on the

hostile work environment claims. We affirm.

A racial hostile work environment plaintiff must show

that he

(1) belongs to a protected group; (2) was

subjected to unwel-come harassment; (3) the

harassment complained of was based on his

[race]; (4) the harassment complained of affected

a term, condition, or privilege of employment;

and (5) the employer knew or should have known

of the harassment in question and failed to take

prompt remedial action.

Johnson v. Pride Indus., Inc., 7 F.4th 392, 399-400 (5th

Cir. 2021).

Plaintiffs offered no competent summary judgment

evidence that any of the complained-of conduct was based

Appendix A

on race. They cited break policies; no-cellphone policies;

seating charts; training policies; work assignments; and

overtime policies. They testified that managers were

“manipulative” and “condescending” and would “bully”

them. But the only links to race were conclusory assertions

that Glow singled out black employees for enforcement.

See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216

(5th Cir. 1985) (conclusory statements insufficient). As

evidence of racial slurs and condescension, plaintiffs

proffered: “You know, a lot but I can’t remember much. A

lot happens.” With “no evidence regarding who said what

or how often,” that testimony is also insufficient. Bye v.

MGM Resorts, Int’l, Inc., 49 F.4th 918, 924 (5th Cir. 2022).

One black employee testified that Pauddar asked him

to clean the kitchen. Again, there was no evidence that

Pauddar’s request was based on race, and “allegations of .

. . improper work requests . . . do not constitute actionable”

harassment. Id. at 923.

We affirm the Rule 50(a) JMOL to Glow on Yarbrough’s

and Lofland’s constructive discharge-based discrimination

and retaliation claims. Each must show that “a reasonable

party in his shoes would have felt compelled to resign.”

Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir.

2011). They claim that they were constructively discharged

when Glow reassigned them from higher-level QA work

to Tier 1 engineer duties. Not so. Glow did so because the

client didn’t need so many QA staff. The new role, “though

subjectively undesirable” to Lofland and Yarbrough, was

“not inherently demeaning, especially when it was offered

as part of a . . . neutral reorganization.” Jurgens v. EEOC,

Appendix A

903 F.2d 386, 392 (5th Cir. 1990). Nor did Glow reduce

their salaries or badger them into resigning. Dediol, 655

F.3d at 444. They also cite the “discrimination” against

others, but we do not consider things that they “did not

personally experience.” Septimus v. Univ.of Hous., 399

F.3d 601, 612 (5th Cir. 2005).

After the jury returned a verdict for nine plaintiffs

on their discrimination claims, the district court granted

JMOL to Glow under Rule 50(b). We affirm.

At the JMOL stage, we disregard the McDonnell

Douglas framework and ask “whether the record contains

sufficient evidence to support the jury’s ultimate findings”2

that Glow would not have fired, laid off, denied promotion

to, or demoted the plaintiffs “but for [their] race.” 3

To show that race caused the challenged employment

actions, the plaintiffs testified about workplace policies

that, they said, were disparately enforced against black

employees: the tardiness policy; the no-cellphone policy;

the no-sleeping-on-the-job policy; the overtime policy; the

2. Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 475-76

(5th Cir. 2005.

3. The jury was instructed on the but-for standard, which the

plaintiffs do not contest. See Williams v. Waste Mgmt., Inc., 818 F.

App’x 315, 325 (5th Cir. 2020) (citing Comcast Corp. v. Nat’l Ass’n

of African Am.-Owned Media, 589 U.S. 327, 332, 140 S. Ct. 1009,

206 L. Ed. 2d 356 (2020)).

Appendix A

break policy. They complained that they were assigned

more work than white employees and that only black

employees were forced to sit under cameras.

Even if those anecdotes were relevant to the complainedof actions, they are not evidence of discrimination. Aside

from conclusory and unsubstantiated assertions, there was

no evidence that black employees were treated differently.

For instance, pressed for the name of a non-black employee

who had received a lighter workload than black employees,

they cited “a guy named Sean,” a white man who had

“been there a long time.” But “[t]his extremely small

sample hardly establishes discrimination.” Travis v.Bd.

of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 265 (5th

Cir. 1997). And apart from feelings of discrimination,

there was no evidence that any different treatment was

race-based. Feelings are not competent evidence, and the

plaintiffs cannot “simply rel[y] on the fact that the other

employees are” not black. Bauer v. Albemarle Corp., 169

F.3d 962, 967 (5th Cir. 1999); Bryant, 413 F.3d at 477.

The plaintiffs focus on the company’s assigned-seating

policy, which Glow instituted, they say, to monitor black

employees using security cameras. None of the nonconclusory testimony supported that theory. When seating

had been free-for-all, employees self-segregated by race,

and black employees generally sat in rooms without

cameras. After a visiting client complained about apparent

segregation, the company assigned seating to desegregate

the employees; some black employees were thus moved to

rooms that had cameras. And as Paul Tijani testified, in

10a

Appendix A

the camera-monitored room to which he was moved, “there

were a lot of other different races, ethnicities.”

Nor was their evidence about the challenged

employ ment actions suff icient to sur vive JMOL.

Yarbrough, for example, presented no evidence that he was

discriminatorily demoted. Though he was hired as a Tier

2 engineer in 2017 and was promoted to lead the QA team

within six months, Glow later assigned him to Tier 1 duties

but didn’t change his pay or title. Pauddar explained that,

as the contract winded down and as other employees left,

Glow needed experienced employees such as Yarbrough to

handle projects that were more complicated. Yarbrough’s

only evidence of discrimination is that an Asian employee

took over QA duties. But he cannot “simply rel[y] on the

fact that the other employees are” not black. See Bryant,

413 F.3d at 477.

The court likewise properly granted JMOL on

Walker’s claim of discriminatory denial of promotion.

Pauddar testified that Walker’s skill was not yet at the

higher level. Besides Yarbrough’s subjective belief that

Walker should have been promoted and Walker’s own

assertion that he was working harder than others, Walker

provided no evidence rebutting Pauddar’s reason or

showing that Glow denied his promotion based on race.

Subjective beliefs are insufficient, Bauer, 169 F.3d at 967,

and we do not judge the company’s nondiscriminatory

promotion criteria, however incorrect they may be, Travis,

122 F.3d at 264.

Ashiru, Paul and Peter Tijani, and Aigheyisi were

fired for poor performance, poor work ethic, poor

communication skills, unprofessional behavior, and

11a

Appendix A

threatening language. They played on their phones

and were absent when field technicians needed to reach

them. They provided no evidence that those reasons were

pretextual or that they wouldn’t have been fired but for

their race. See Bryant, 413 F.3d at 475-76.

Price admits that he was terminated when he was

“unable to perform [his] job duties,” which required him

to spend his own money to live in Los Angeles and to use

his own vehicle and gas. That had nothing to do with race.

Harom Pringle and Michael Brown were laid off. They

rely on a comment by Debbie Cahoon, an HR manager,

who allegedly said, “Don’t lay off any white people.” That

“stray remark” is not “probative of [Glow’s] discriminatory

intent.” Wyvill v. United Cos. Life Ins. Co., 212 F.3d

296, 304 (5th Cir. 2000). There was no evidence that the

comment influenced Pauddar, the layoff decisionmaker,

who responded, “Debbie, that is racist. . . . I am not making

any decisions . . . based on [whether] somebody is white

or black, or anything.” Indeed, after Cahoon’s comment,

the new layoff list—based on reverse seniority—had more

white people than the old one. They point to no other

evidence that race caused their layoffs.

We accordingly affirm the JMOL on these claims.

The district court granted JMOL under Rule 50(b)

on retaliation claims by Lofland and Paul Tijani. We

affirm because neither plaintiff produced evidence of his

protected activity.

12a

Appendix A

A retaliation “plaintiff must prove by a preponderance

of the evidence that: (i) he engaged in a protected activity;

(ii) an adverse employment action occurred; and (iii) a

causal link exists between the protected activity and

the adverse employment action.” Wantou, 23 F.4th at

436-37. A protected activity is either (1) opposing race

discrimination or (2) participating “in an investigation,

proceeding, or hearing under this subchapter.” EEOC

v. RiteWay Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016).

To prove opposition to race discrimination, the employee

must show “that she had at least a ‘reasonable belief’

that the practices she opposed were unlawful.” Long v.

Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996). Again,

the McDonnell Douglas framework does not apply at

JMOL; “we inquire whether the record contains sufficient

evidence to support the jury’s ultimate findings” “that the

adverse employment action would not have occurred but

for the protected conduct.” Bryant, 413 F.3d at 475-76;

Wantou, 23 F.4th at 437.

None of the three conversations to which Lofland

points constitutes protected activity. In the first, he told

Pauddar that “the way [management is] doing things

just doesn’t seem right, and it seems like there’s no

accountability[.] . . . I was wondering if there was anything

we can do.” But his complaints did not mention race; in

that conversation, Pauddar—not Lofland—expressed

discrimination concerns. In the second conversation,

Lofland testified that he told Pauddar that “there may be

some type of protest or petition happening.” That was also

not a complaint of racial discrimination; he was not part

of the “protest” and brought it up “just to get [Pauddar’s]

reaction” to relay back to his protesting friends. Third,

13a

Appendix A

he complained that Mohammad Silat was reporting “a

lot of employees” for violating workplace policies while

Silat himself “constantly had his feet up and leaning

back on the desk.” That was a complaint of hypocrisy, not

discrimination.

Paul Tijani’s assertion of protected activity also

misses the mark. He complained of “discrimination,” but

no reasonable plaintiff could believe that the complainedof conduct was discrimination. Long, 88 F.3d at 305. He

bemoaned, inter alia, that Silat ignored him, “saying

he was busy” but “sitting with his legs crossed on the

desk”; Silat gave him incorrect assignments; Sandeep

“threatened to fire [him]” for making a mistake that later

turned out to be someone else’s mistake; management

forbade him from sitting next to his twin brother; Silat

didn’t “like” him or his brother; and Silat bragged that

he was “an asshole” and was “about to be even more of an

asshole.” None of those complaints had to do with race.

Because there was no evidence that either plaintiff

engaged in protected activity, we affirm the JMOL.

The district court granted a new trial to Glow on

Peter Tijani’s and Aigheyisi’s retaliation claims. We

affirm because the verdict is against the great weight of

the evidence.

Reviewing for abuse of discretion, we “consider three

factors that militate against new trials and require a

particularly searching review of the evidence: simplicity

14a

Appendix A

of the issues, the extent to which the evidence is in

dispute, and the absence of any pernicious or undesirable

occurrence at trial.” Shows, 671 F.2d at 930. “When all

three factors are present,” we will not affirm the grant

of a new trial unless “we are satisfied, independently,

that the jury verdict was against the great weight of the

evidence.” Id. at 931.

Glow presented significant evidence of why it fired

Peter: It put him on a performance improvement plan

(“PIP”) “for insubordination and threatening language/

behavior” and for “unprofessional” behavior. He told a

customer that he would only do half of the assignment

and “erupted in angry outburst, cursing his Tier 2 and

Team Lead over this, and wanted to leave early without

completing the migration.” The district court cited, and

Peter does not address, video evidence showing a dispute

between Peter and Pauddar: “I don’t have to threaten you.

I’m . . . big African chief, so I don’t have to threaten you.

I don’t think you want to see me threaten you.” Peter was

unreachable when field technicians needed him. He also

misplaced his laptop, which was a security issue because

company laptops had “access to Verizon’s network.”

Overwhelming evidence also demonstrated that

Glow fired Aigheyisi for misbehavior and poor work

quality. Glow placed him on two PIPs. He slept on the

job and frequently watched online videos. He “lack[ed]

professionalism” and refused to acknowledge work

assignments. Even after being warned, he continued

refusing to acknowledge assignments. His exit report

listed performance evaluations of “Unsatisfactory” across

15a

Appendix A

the board and stated that he was fired on March 8, 2018,

for playing Candy Crush during working hours.

To counter the company’s evidence, the plaintiffs point

only to the small gap between their complaints and their

terminations. That is insufficient. See Travis, 122 F.3d at

266 (reversing judgment of retaliation where no evidence

of retaliation besides timing of adverse action).

Because the verdict is against the great weight of the

evidence, we affirm the grant of a new trial.

The district court granted JMOL to SlashSupport,

Glow’s parent company, finding no evidence from which

a reasonable juror could conclude that SlashSupport was

an “integrated enterprise” with Glow. We affirm.

“[S]uperficially distinct entities may be exposed

to liability upon a finding that they represent a single,

integrated enterprise: a single employer.” Trevino v.

Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983). We

consider “(1) interrelation of operations, (2) centralized

control of labor relations, (3) common management, and

(4) common ownership or financial control,” id., but the

second factor is the most important. See Skidmore, 188

F.3d at 617 (quoting Trevino, 701 F.2d at 404). We “focus[]

almost exclusively on one question: which entity made the

final decisions regarding employment matters relating to

the person claiming discrimination?” Id.

16a

Appendix A

Plaintiffs presented no evidence from which a

reasonable jury could find SlashSupport and Glow to be

an integrated enterprise. SlashSupport was not involved

in firing or promoting employees or in contracting with

clients for whom Glow employees worked; only Glow’s

VP could modify plaintiffs’ employment agreements. See

id. (finding no integrated enterprise where subsidiary

“hired, fired, promoted, and demoted its own employees

without consulting” parent). Plaintiffs admit that Sandeep

Pauddar—a Glow manager—was the “decisionmaker”

for layoffs. Though plaintiffs claim that SlashSupport

“installed a senior executive at Glow’s headquarters,” they

point to no evidence that the executive had anything to

do with “the final decisions regarding [the] employment”

of any plaintiff. See id.

We thus affirm the JMOL to SlashSupport.

We find no abuse of discretion in the exclusion of

the testimony of four witnesses. Plaintiffs complain that

those witnesses weren’t allowed to testify about the

discriminatory workplace policies and “persecut[ion]”

and “harass[ment]” of black employees. As the district

court concluded—and the plaintiffs acknowledged—other

witnesses had already testified in detail about those topics.

See Fed. R. Evid. 403 (allowing district court to exclude

“needlessly . . . cumulative evidence” and evidence that

“wast[es] time”).

***

17a

Appendix A

In summary: As for the discrimination claims asserted

by Green, Vicks, Samuels, Price, and Ologban, and the

retaliation claim brought by Samuels, the summary

judgment is VACATED, and the case is REMANDED for

further proceedings. Regarding those claims, we place no

limitations on the matters that the court may consider and

decide on remand. In all other respects, the judgment is

AFFIRMED.

18a

Appendix B

APPENDIX B — MEMORANDUM

OPINION AND

ORDER ON POST-TRIAL MOTIONS OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS, SHERMAN

DIVISION, FILED MARCH 1, 2024

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CIVIL NO. 4:19-CV-905-SDJ

JOSHUA YARBROUGH, et al.

GLOW NETWORKS, INC.

Filed March 1, 2024

MEMORANDUM OPINION AND ORDER

ON POST-TRIAL MOTIONS

[TABLES INTENTIONALLY OMITTED]

Before the Court is Defendant Glow Networks, Inc.’s

Renewed Motion for Judgment as a Matter of Law;

or, in the Alternative, Motion for New Trial; or, in the

Alternative, Motion for Remittitur. (Dkt. #150). Plaintiffs

filed a response in opposition, (Dkt. #171), and Glow filed

a reply, (Dkt. #181). The Court, having considered the

motion, subsequent briefing, record, and applicable law,

GRANTS in part and DENIES in part Glow’s Motion for

Judgment as a Matter of Law, GRANTS in part Glow’s

19a

Appendix B

Alternative Motion for New Trial, and DENIES as moot

Glow’s Alternative Motion for Remittitur.

Background

T he factua l backg round of this employ ment

discrimination case is detailed in the Court’s order on

Defendant’s motion for partial summary judgment, and the

Court will only briefly summarize it here. See Yarbrough

v. CSS Corp., No. 4:19-CV-905, 2022 WL 326141 (E.D.

Tex. Feb. 2, 2022). Plaintiffs Joshua Yarbrough, Michael

Brown, Paul Tijani, Peter Tijani, Joshua Walker, Brandon

Price, Adewale Ashiru, William Aigheyisi, Harom

Pringle, and Matt Lofland are former Glow Networks,

Inc. (“Glow”) employees. Plaintiffs worked for Glow on its

Remote Integration and Testing Center (“RITC”) project.

The purpose of the project was to upgrade cell sites from

4G to 5G capabilities on behalf of Glow’s primary client,

Nokia. Except for Lofland, who was a team lead, Plaintiffs

were either Tier 1 or Tier 2 employees.1 Tier 1 employees

were responsible for working with the field technicians to

conduct the site integrations and migrations necessary

for the upgrades. Tier 2 employees provided technical

support to Tier 1 employees. Glow employees performed

this work remotely at a Glow office building in Texas. By

its nature, the duration of the project was limited. As

more sites were upgraded, the workload would decrease

and the project would wind down, thus resulting in the

termination of positions on the RITC project.

1. Joshua Yarbrough was selected to work on the Quality

Assurance team for a portion of his employment, at which time he

was not in the Tier 2 role for which he was hired. (Dkt. #129 at 225).

20a

Appendix B

Plaintiffs contend that Glow treated black employees

differently than employees of other races in violation of

42 U.S.C. § 1981. Plaintiffs’ allegations center chiefly on

two managers on the RITC project during the relevant

times—Mohammad Silat and Sandeep Pauddar. To a

lesser extent, Plaintiffs also complain about Debbie

Cahoon, the Senior Human Resources Manager at Glow,

and Dan Paddock, another project manager.

The case proceeded to trial. After Plaintiffs rested

their case, Defendants2 made an oral motion for judgment

as a matter of law, which the Court denied. 3 Once both

parties rested, Defendants re-urged their motion for

judgment as a matter of law under Federal Rule of

Civil Procedure 50(a). The Court granted in part and

denied in part that motion. See (Dkt. #115). After the

Court’s rulings, the following claims remained: (1)

retaliation claims by Lofland, the Tijanis, and Aigheyisi;

(2) a discrimination claim predicated on demotion by

Yarbrough; (3) a discrimination claim predicated on failure

to promote by Walker; and (4) discrimination claims

predicated on layoff or termination by Brown, Ashiru,

the Tijanis, Price, Pringle, and Aigheyisi.

2. At that time, both Glow and SlashSupport Inc. were

defendants. However, the Court later dismissed SlashSupport

from this case. (Dkt. #115 at 7).

3. The day after the Court heard argument on the oral motion,

Plaintiffs stipulated that Walker’s constructive discharge-based

discrimination claim and retaliation claim should be dismissed.

The Court entered an order dismissing those claims. See (Dkt.

#110).

21a

Appendix B

The jury found for all ten Plaintiffs on their retaliation

and/or discrimination claims. The jury also found that all

ten Plaintiffs were entitled to punitive damages. The jury

awarded identical damages to each Plaintiff: $2,000,000

for past pain and suffering, inconvenience, mental anguish,

and loss of enjoyment of life; $1,000,000 for future pain

and suffering, inconvenience, mental anguish, and loss

of enjoyment of life; and $4,000,000 in punitive damages.

Glow now moves for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50(b) or,

alternatively, for a new trial pursuant to Rule 59. In

the alternative to relief from liability, Glow moves for

remittitur.

II. Legal Standards

Judgment as a Matter of Law

“A motion for judgment as a matter of law . . . in an

action tried by jury is a challenge to the legal sufficiency

of the evidence supporting the jury’s verdict.” SMI Owen

Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir.

2008) (quotation omitted). In ruling on a post-trial motion

for judgment as a matter of law, the Court is “especially

deferential to the verdict.” Mays v. Chevron Pipe Line Co.,

968 F.3d 442, 447 (5th Cir. 2020) (cleaned up). The Court

must “review all of the evidence in the record, drawing all

reasonable inferences in favor of the nonmoving party; the

[C]ourt may not make credibility determinations or weigh

the evidence, as those are jury functions.” Brennan’s Inc.

v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004).

22a

Appendix B

“A jury verdict must be upheld unless there is no legally

sufficient evidentiary basis for a reasonable jury to find

as the jury did.” Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th

Cir. 1995) (quotation omitted).

B. New Trial

Pursuant to Rule 50, a party may alternatively request

a new trial under Rule 59. Fed. R. Civ. P. 50(b). The Court

may grant a motion for new trial if “the verdict is against

the great weight of evidence; the damages awarded were

excessive; the trial was unfair; or prejudicial error was

committed.” Adams v. Ethyl Corp., 838 F.App’x 822, 827

(5th Cir. 2020) (citing Seidman v. Am. Airlines, Inc., 923

F.2d 1134, 1140 (5th Cir. 1991)). This standard is lower

than that for judgment as a matter of law. See Shows

v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.

1982). “A verdict can be against the ‘great weight of the

evidence[,’] and thus justify a new trial, even if there is

substantial evidence to support it.” Id. In considering a

motion for a new trial—unlike a motion for judgment as

a matter of law—the Court “need not take the view of the

evidence most favorable to the verdict winner, but may

weigh the evidence.” Id. “While the court is to respect the

jury’s collective wisdom and must not simply substitute

its opinion for the jury’s, [i]f the trial judge is not satisfied

with the verdict of a jury, he has the right—and indeed

the duty—to set the verdict aside and order a new trial.”

Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th

Cir. 1985) (cleaned up).

23a

Appendix B

Additionally, if the jur y’s verdict on liability

demonstrates “evidence of influence by passion [or]

prejudice . . . , then a complete new trial [is] necessary.”

Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233,

1242 (5th Cir. 1985) (per curiam) (citations omitted).

The decision to grant or deny a new trial is committed

to the Court’s sound discretion. Six Dimensions, Inc. v.

Perficient, Inc., 969 F.3d 219, 230 (5th Cir. 2020).4

III. Discussion

Plaintiffs claim that they were discriminated against

because of their race, retaliated against for opposing

racial discrimination, or both, in violation of 42 U.S.C.

§ 1981. The jury found in favor of all ten Plaintiffs for all

thirteen of their claims, awarding a total of $70,000,000

distributed evenly to each Plaintiff. However, the jury’s

verdict is unsupported by the evidence presented in this

case and must be overturned.

For the following reasons, the Court grants Defendant’s

motion for judgment as a matter of law as to all Plaintiffs’

discrimination claims and Paul Tijani’s and Matt Lofland’s

retaliation claims. The Court grants Defendant’s motion

for a new trial as to Peter Tijani’s and William Aigheyisi’s

retaliation claims. For those claims, both liability and

damages must be retried.

4. The Court does not include the legal standard for remittitur

because, as explained herein, the Court concludes that a new trial

on both liability and damages is required for all claims that survive

Glow’s motion for judgment as a matter of law.

24a

Appendix B

Race-discrimination claims

To establish a prima facie case of race discrimination

under 42 U.S.C. § 1981, a plaintiff must prove that: (1) he

is a member of a protected class, (2) he was qualified for

the position, (3) he experienced an adverse employment

action, and (4) he was replaced by someone outside of his

protected class or treated less favorably than a similarly

situated colleague. 5 Owens v. Circassia Pharms., Inc., 33

F.4th 814, 825 (5th Cir. 2022). A plaintiff may prove a claim

of race discrimination either by direct or circumstantial

evidence. McCoy v. City of Shreveport, 492 F.3d 551, 556

(5th Cir. 2007) (per curiam).

Once a plaintiff has presented a prima facie case

of discrimination, the burden shifts to the defendant to

proffer a legitimate, non-discriminatory reason for the

adverse employment action. Owens, 33 F.4th at 825. If the

defendant satisfies this burden, “the burden shifts back to

[the plaintiff], who must counter with substantial evidence

that [the defendant’s] proffered reason is pretextual.” Id.

To prevail in a Section 1981 case, “a plaintiff must initially

plead and ultimately prove that, but for race, [he] would

not have suffered the loss of a legally protected right.”

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media,

140 S.Ct. 1009, 1019, 206 L.Ed.2d 356 (2020).

5. Because “[c]laims of racial discrimination in employment,

pursuant to 42 U.S.C. § 1981 . . . are governed by the same analysis

as that employed for such claims under Title VII,” the Court relies

upon cases considering either statutory provision in its analysis.

See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).

25a

Appendix B

“When, as here, a case has been fully tried on its

merits, [courts] do not focus on the . . . burden-shifting

scheme [and] [i]nstead . . . inquire whether the record

contains sufficient evidence to support the jury’s ultimate

findings.” Bryant v. Compass Grp. USA Inc., 413 F.3d

471, 475-76 (5th Cir. 2005) (cleaned up). Thus, the Court

“need not parse the evidence into discrete segments

corresponding to a prima facie case, an articulation of a

legitimate, nondiscriminatory reason for the employer’s

decision, and a showing of pretext,” but rather must review

the trial evidence in its entirety. Id.

Here, nine Plaintiffs presented discrimination claims

to the jury—Paul Tijani, Peter Tijani, William Aigheyisi,

Joshua Yarbrough, Joshua Walker, Michael Brown,

Adewale Ashiru, Brandon Price, and Harom Pringle. Their

discrimination claims were premised on their allegations

of wrongful termination (the Tijanis, Aigheyisi, Ashiru,

and Price), wrongful demotion (Yarbrough), wrongful

layoff and Glow’s failure to subsequently rehire them

(Brown and Pringle), or Glow’s failure to promote them

(Walker). While Plaintiffs presented some evidence at

trial specific to their individual claims, other evidence was

raised by multiple Plaintiffs. The Court first addresses

the evidence raised by multiple Plaintiffs and then turns

to the evidence raised only by individual Plaintiffs.

Common evidence does not establish racial

discrimination.

A lthough the Court labels evidence raised by

multiple Plaintiffs “common evidence,” the true common

26a

Appendix B

evidence—the facts and experiences shared by all

Plaintiffs—refutes, rather than supports, Plaintiffs’

claims. Conspicuously absent from Plaintiffs’ showing

is any evidence that Glow had racially discriminatory

employment practices (in fact, Glow had many black

employees working on the RITC project); that Glow had

discriminatory pay or promotion practices; that any

Plaintiff was physically abused or assaulted; or that any

Plaintiff faced racial slurs, epithets, jokes, or other verbal

or symbolic gestures of hostility towards their race. Other

testimony showed that when Glow conducted lay-offs, it

laid off employees of a variety of races—not just black

employees; Glow had policies and procedures in place

to prevent and correct workplace discrimination and

retaliation; Glow accommodated employees’ leave requests

(for example, Adewale Ashiru took three weeks off to tend

to his father in Nigeria shortly after he began working at

Glow); and Glow responded to employee complaints.

An examination of the remaining common evidence

offered by multiple Plaintiffs fails to show that Glow’s

black employees were subject to any regime of adverse

treatment based on race or any discrimination actionable

under Section 1981. In the end, the asserted racediscrimination claims in this case devolve into each

Plaintiff’s individualized workplace complaints, which

vary widely and are untethered to any demonstrated

policy, scheme, or pattern of race-discriminatory conduct

at Glow. Such evidence is legally insufficient to support

Plaintiffs’ race-discrimination claims.

27a

Appendix B

Camera Installation and Placement

The Tijanis, Aigheyisi, Yarbrough, Walker, Brown,

Ashiru, and Pringle testified that Glow’s installation of

cameras in the front two workrooms and their placement in

view of those cameras is evidence of racial discrimination.

(Dkt. #130 at 250-51) (Paul Tijani); (Dkt. #131 at 226)

(Peter Tijani); (Dkt. #132 at 172-73, 181) (Aigheyisi);

(Dkt. #129 at 205-06) (Yarbrough); (Dkt. #130 at 194)

(Walker); (Dkt. #133 at 32, 76) (Brown); (Dkt. #132 at

287-88) (Ashiru); (Dkt. #133 at 95) (Pringle). Several of

those Plaintiffs testified that they were placed in front of

the cameras because of their race. See (Dkt. #131 at 226)

(Peter) (“The issue of the Black employees being placed

in the specific room under a camera should be [the] bone

of contention here.”); (Dkt. #132 at 188) (Aigheyisi) (“So

what it seems like to me is you’re moving a specific group

of people underneath the camera.”); (Dkt. #129 at 195)

(Yarbrough) (“[O]ne of the first things that I noticed is

the African-Americans being moved to the front up under

the cameras.”). The testimony at trial, however, does not

support Plaintiffs’ contentions. Rather, the record reflects

that Glow installed the cameras for its own security and

monitoring purposes and that employees of all races—not

just black employees—were captured on the cameras.

At the outset, the record is clear—and many Plaintiffs

conceded—that Glow had a legitimate business reason

for installing the cameras at the front of the work room:

namely, to monitor all employees’ conduct in the workplace

and capture the biometric system where employees

swiped in and out such that “if someone missed the

28a

Appendix B

biometric system for some reason, or the biometric system

malfunctioned, then the cameras would have caught

whomever happened to come and go at a particular time.”

See (Dkt. #130 at 219-20) (Walker acknowledging that

Glow had a legitimate business reason for installing the

cameras); see also (Dkt. #131 at 226) (Peter) (“I’m not

questioning why they got a camera in that building.”).

Such a policy that covers all employees, regardless of

race, refutes an inference of racial discrimination even

if the policy had a disparate impact on black employees.

See Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania,

458 U.S. 375, 388-91, 102 S.Ct. 3141, 73 L.Ed.2d 835

(1982) (holding that Section 1981 “can be violated only by

purposeful discrimination,” not a facially-neutral policy

with a disparate impact); Armstrong v. City of Dallas,

997 F.2d 62, 67 n.20 (5th Cir. 1993) (noting that a policy

that was “applied to all members of the fire department

in an unquestionably objective and neutral manner” did

not suggest racial animus in Title VII case).

Since Glow satisfied its burden to proffer a legitimate,

non-discriminatory reason for installing the cameras,

Plaintiffs were required to prove that Glow’s rationale

was merely a pretext for its real motivation to target

black employees. See Autry, 704 F.3d at 347. Based on the

evidence presented to the jury, the Court concludes that

it was not merely a pretext and that it was unreasonable

for the jury to find otherwise.

First, not all black employees were seated in front of

the cameras. In fact, Yarbrough testified that while he

briefly sat in the room with the cameras, he was moved to

29a

Appendix B

a different room without cameras when he was placed on

the Quality Assurance team. See (Dkt. #129 at 205-06).

Second, some black employees chose to sit in the rooms

with the cameras without being directed to do so by a

supervisor—hardly evidence to support a claim of racial

discrimination. For example, Pringle testified that he did

not recall a supervisor instructing him to sit in view of

the cameras and that he “stayed [in the camera room] for

a while” even after they had been installed. (Dkt. #133

at 138-39).

Third, and perhaps most fatal to Plaintiffs’ allegations,

several Plaintiffs admitted that non-black employees

were also in view of the cameras. For example, Aigheyisi

conceded that non-black employees were in camera view.

(Dkt. #132 at 181-82). Walker confirmed that “other

races were videoed or on the camera just like the Black

employees in the room.” (Dkt. #130 at 220). Yarbrough

corroborated this account in his testimony, stating that

non-black employees were in the room with the camera,

including “a Hispanic guy,” a “white guy by the name of

‘Craig,’” “another guy by the name of ‘Michael Salbador’

[whom he] believe[s] . . . was white as well,” and potentially

others that he could not recall. (Dkt. #129 at 251). And

Lofland testified that while “the majority were the Black

employees,” he “think[s] there were a few” white or Indian

employees in the rooms with the cameras. (Dkt. #129 at

92).

In fact, the only evidence Plaintiffs presented to

rebut Glow’s legitimate, non-discriminatory reason for

installing the cameras was mere speculation. For example,

30a

Appendix B

Yarbrough testified that he “made the assumption [that

Glow] must be trying to watch African-Americans” with

the cameras. (Dkt. #129 at 253) (emphasis added). As did

Walker:

Q [by Defendant’s counsel]: That’s something

you assumed, that the cameras were there to

spy on you because you’re Black; right?

A [by Walker]: But we all felt that way. But, of

course, you know, it’s still a legitimate business

reason.

(Dkt. #130 at 220) (emphasis added). But mere speculation

based on one’s subjective impressions is insufficient to

succeed on a race-discrimination claim. See Lawrence v.

Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313

(5th Cir. 1999) (holding that the plaintiff’s “subjective belief

that she was not selected for the new Nursing Supervisor

position based upon race or age is . . . insufficient to create

an inference of the defendants’ discriminatory intent

[because] ‘a subjective belief of discrimination, however

genuine, [may not] be the basis of judicial relief.’” (quoting

Elliott v. Grp. Med. & Surgical Serv., 714 F.2d 556, 567

(5th Cir. 1983) (alterations in original))). Without more, the

cameras’ mere existence, and some Plaintiffs’ placement

under them, does not suggest race discrimination. But

there is no more. Thus, there was insufficient evidence

for a jury to conclude that Glow’s installation of cameras

and placement of some of its employees in view of those

cameras was racially motivated.

31a

Appendix B

Feelings of Racism

Next, Paul Tijani, Walker, Brown, and Pringle testified

that they “felt” Glow treated them differently because of

their race. (Dkt. #131 at 40) (Paul) (“[T]he systematic,

you know, racism in the organization, you know, you can

feel. You feel it.”); (Dkt. #130 at 187) (Walker) (“[Y]ou

can feel [that you were treated differently because of

your race] and you can see it.”); (Dkt. #133 at 107-08)

(Pringle) (stating that he knew he was being discriminated

against based on his “own personal experiences” despite

never having racial slurs used against him at Glow and

“feel[ing] like management and . . . HR [did not] step[] in

to do what they were supposed to do to avoid any of this

from going on”).

Such subjective feelings of discrimination, however,

no matter how sincere, are insufficient bases for a

discrimination claim. See Lawrence, 163 F.3d at 313;

Byers v. Dall. Morning News, Inc., 209 F.3d 419, 427 (5th

Cir. 2000) (explaining that the plaintiff’s subjective belief

that he was discriminated against because of his race is

insufficient to create a question of fact); see also Harris

v. Home Sav. Ass’n, 730 F.Supp. 298, 304 (W.D. Mo. 1989)

(“It is well-settled, however, that a plaintiff’s ‘beliefs’ or

‘feelings’ cannot create a triable issue of discrimination.”).

Accordingly, Plaintiffs’ feelings of racism do not support

their race-discrimination claims.

Conclusory Allegations

Plaintiffs also made conclusory and unsubstantiated

allegations that they were discriminated against because

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of their race. For example, Peter Tijani testified that

“when [he] saw the way [his manager, Mohammad Silat,]

was treating [him], [his] brother, and the other black

guys in the organization, then [he] realize[d] that . . . this

is not anything personal[,] [but rather was Silat] having

issues with Africans and . . . African-Americans, just

black people in general.” (Dkt. #131 at 114). But Peter

presented no evidence to support his contention that Silat

was treating him and other black employees a certain way

because of their race.

Similarly, Brown testified that colleague Ralph

Mc A l l i st er a nd m a n a ger Da n Pa ddock “ wou ld

discriminate” against him, but he did not provide any

supporting evidence for his claim. (Dkt. #133 at 44). And

Yarbrough testified that while he was not the recipient

of discriminatory comments, “actions speak louder than

words. So just how they were operating . . . and actually

seeing what we saw every night would just show this is

what’s going on.” (Dkt. #129 at 206-07). Finally, Walker

testified that he “assumed” that Silat was referring to

black employees when he heard him say that “[t]hese

people should be fired.” (Dkt. #130 at 205, 217).

These unsubstantiated, conclusory allegations of

discrimination cannot support a discrimination claim.

Newsome v. Collin Cnty. Cmty. Coll. Dist., 189 F.App’x

353, 355 (5th Cir. 2006) (per curiam) (“Conclusory

allegations, speculation, and unsubstantiated assertions

are inadequate to satisfy [the plaintiff’s] burden.”). Thus,

this evidence does not support Plaintiffs’ claims.

33a

Appendix B

Wrong Site Information

The Tijanis and Aigheyisi testified that they were

occasionally given incomplete or incorrect information

regarding the cell sites that they were supposed to be

working on from one of their supervisors, Mohammad

Silat, which frustrated their ability to perform their job

duties. These Plaintiffs implied—without any supporting

evidence—that they were given these faulty links due to

their race. Peter Tijani testified that Silat gave “multiple

Black employees [including him] wrong site[s].” (Dkt.

#131 at 214); see also (Dkt. #131 at 123) (“These Black

guys are saying, yes, we [are] getting the wrong site[s].”).

Paul Tijani testified that Silat intentionally gave him the

wrong sites to “set [him] up for failure” since working on

the wrong site meant “automatic termination.” (Dkt. #131

at 28). And Aigheyisi testified that he was given wrong

sites by Silat after Aigheyisi had tried to help the Tijanis

troubleshoot their work. (Dkt. #132 at 45-46). Aigheyisi

implied that because his coworker Matt Lofland, who is

white, “always” got correct site links, while he, a black

man, was “always” getting site links with errors, Silat

must have been discriminating against him. (Dkt. #132 at

48) (“[I]f you’re the one assigning the site, we’re getting

the same spreadsheet, me and Matt, and Matt’s sites [are]

always correct, but somehow yours [are] always having

errors . . . how much are you going to cost the company,

in that sense?”).

T h is ev idence is i nsu f f icient t o show racia l

discrimination for several reasons. First, while Plaintiffs

claimed that multiple black employees were given wrong

34a

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sites, they did not testify that only black employees were

given wrong sites. Thus, Plaintiffs presented no evidence

that being given wrong site information was a problem

unique to the black employees. Accordingly, this evidence

does not support the notion that black employees were

treated less favorably than non-black employees.

Second, even taking Aigheyisi’s uncorroborated

testimony that Lofland “always” received correct sites

as true, Lofland cannot serve as a comparator because he

was not similarly situated to Aigheyisi and the Tijanis.

See Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 340 (5th

Cir. 2021) (“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.” (citation omitted)). Unlike Aigheyisi and the

Tijanis, Lofland was in a managerial role.

Third, Defendants presented evidence demonstrating

that, while Mohammad Silat occasionally forwarded

incorrect site information, he corrected the information

or sent a new site after being informed that there was a

problem. (Dkt. #127-42). This rebuts the notion that Silat

intentionally sent incorrect information.6

6. Silat testified that he merely “cop[ied], paste[d], and

sen[t]” site information to the Tier 1 employees, and that the site

information ultimately came from Nokia, who passed it down

through several layers of employees. (Dkt. #135 at 232-33). The

idea that Silat generated and intentionally sent incorrect sites to

35a

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Fourth, and most importantly, Plaintiffs did not

present any evidence linking the faulty sites to their race.

Thus, any inference that only black employees received

wrong site information because they were black would

be grounded in pure speculation. But, again, speculation

cannot serve as the basis of a discrimination claim. See

Lawrence, 163 F.3d at 313.

Thus, without any evidence showing that Glow

intentionally gave Aigheyisi and the Tijanis bad sites

because of their race, this evidence cannot suggest race

discrimination.

Impressions of Disparate Treatment

Many Plaintiffs testified about their impressions of

Glow’s disparate treatment of black employees. First,

Plaintiffs testified that while employees of all different

races broke company policy, such as by using their

cellphones during work or sleeping on the job, only black

employees were written up by Glow management for

such violations. See (Dkt. #132 at 51-52) (Aigheyisi) (“I’m

seeing people doing different things, it could be Black,

white, Indians, people will be on the phones, people like

employees whom he disliked is refuted by his testimony describing

the process. See also (Dkt. #127-42 at 4) (Silat) (explaining to Paul

Tijani that “[he’s] just a messenger,” and that he just “pass[es]

along” the site information by copying and pasting it). Moreover,

regardless of any alleged animus that Silat had towards Plaintiffs,

it would make little sense for him to intentionally deliver bad sites,

thus delaying the project and jeopardizing Glow’s relationship with

Nokia, as that failure would directly reflect on him.

36a

Appendix B

watching Netflix, people studying, people doing whatever

they’re doing. And I’m only seeing only a specific type of

people getting reported and not coming back for doing

these things everybody’s doing. . . . That’s Black people.”);

(Dkt. #132 at 61-62, 64) (Aigheyisi) (testifying about

getting “written up” for watching videos on his computer

and sleeping on the job despite Mohammad Silat not

being disciplined for watching videos during work, but

later acknowledging that he never saw Silat sleeping on

the job); (Dkt. #129 at 197) (Yarbrough) (“[W]e also saw

other employees with their feet on the desk every single

night, but it was a problem when Blacks were doing it.”);

(Dkt. #130 at 188, 193) (Walker) (testifying that Indian

and white employees could be on their phones browsing

the internet during work, while black employees could

not because they were being watched); (Dkt. #130 at 202)

(Walker) (testifying that Sandeep Pauddar decided to

audit his time to ensure that he was reporting overtime

correctly, while other employees’ hours were not similarly

audited).7

7. Walker’s testimony regarding the audit illustrates common

shortcomings in Plaintiffs’ testimonies, including their inability

to show a common thread of discrimination within Glow. First,

Walker admitted that his time was only audited after he showed

up an hour late for work, thus raising a question in his employers’

minds whether he was recording his time accurately. (Dkt. #130

at 202). This is a non-discriminatory reason to audit Walker’s

time. Second, Walker testified that that once he accounted for his

time, “[he] didn’t hear back anything from [Sandeep Pauddar].”

(Dkt. #130 at 202). He did not suffer any punishment, was not

reprimanded, and it does not appear that this audit was a factor

in Glow’s decision not to promote him. This evidence is largely—if

not entirely—irrelevant to his claim. Third, he claimed that this

37a

Appendix B

Aigheyisi and Yarbrough testified that Silat would

take photographs of black employees violating company

policy, while not doing the same for non-black employees.

Aigheyisi also testified as to one instance in which he

observed a white employee sleeping on the job, but Silat

did not take a photograph of him. (Dkt. #132 at 57-58).

And Yarbrough similarly testified to observing Silat “walk

around and take pictures of African-Americans on their

phone . . . whereas, the other cultures [were] doing the

exact same thing but nobody’s saying anything, there’s

no reports of it.” (Dkt. #129 at 200-01).

However, taking photos of employees does not,

standing alone, amount to race discrimination. This

evidence does not demonstrate unequal enforcement of

Glow’s policies because taking a photo is not the same

as enforcing a rule. And to the extent the photos are

purported to be part of a scheme to report only black

employees, the evidence refutes that theory because

employees of all races were reported for misconduct.

Silat testified that he took photographs of and reported

non-black employees for sleeping on the job—specifically,

Jennifer Satele (white), Zaid Aboulgader (Iraqi), and

audit was evidence of discrimination, but then he later said that

“[he] was the only one singled out to audit [his] time.” (Dkt. #130

at 202). If Glow’s motivation to audit Walker’s time was racebased, it would follow that Glow would likewise audit other black

employees’ times. But there is no evidence that it did so. A theme

common to Plaintiffs’ testimonies and highlighted by Walker’s

testimony here is Plaintiffs’ attribution of race discrimination

to mundane or immaterial actions that (1) appear to have no

connection whatsoever to their race and (2) were insignificant or

irrelevant to the adverse actions for which they sued.

38a

Appendix B

Claudia [last name unknown] (Puerto Rican). (Dkt. #135

at 241-42). Thus, Plaintiffs’ “contention that they were

disciplined more severely than were whites in similar

circumstances [is] refuted by evidence of specific instances

in which white employees were disciplined in precisely the

same manner as [Plaintiffs] had been.” Harris v. Plastics

Mfg. Co., 617 F.2d 438, 440 (5th Cir. 1980). Therefore,

this evidence does not demonstrate race discrimination

because black and non-black employees were treated the

same.

Further, while Aigheyisi testified that Lofland, who

is white, slept on the job without consequence—despite

Lof land never testifying that he did so—Aigheyisi

acknowledged on cross examination that he would not

have been privy to any disciplinary action taken by

Glow against Lofland if Lofland had in fact slept on the

job. (Dkt. #132 at 190-93); (Dkt. #132 at 65) (Aigheyisi)

(noting that non-black employees “could have been

[written up for violating company policy], but [were] not

to [his] knowledge”). In fact, when pressed, Walker and

Aigheyisi testified that they merely assumed that their

supervisors were targeting black employees for violations

of Glow policies. See (Dkt. #130 at 190) (Walker) (“That’s

how I felt, just to make our work environment more

hostile, like they kind of nitpicking at you.”); (Dkt. #132

at 107) (Aigheyisi) (“I believe he’s picking on me.”). But,

again, presumptions or assumptions are insufficient bases

for race-discrimination claims. See Bauer v. Albemarle

Corp., 169 F.3d 962, 967 (5th Cir. 1999) (“This court has

consistently held that an employee’s ‘subjective belief of

discrimination’ alone is not sufficient to warrant judicial

39a

Appendix B

relief.” (quoting EEOC v. La. Off. Of Cmty. Servs., 47 F.3d

1438, 1448 (5th Cir. 1995))).

This shortcoming is fatal to Plaintiffs’ contentions.

Without competent evidence supporting Plaintiffs’

arguments that Glow intentionally and unfairly disciplined

them because of their race, Plaintiffs’ testimonies about

the alleged disparate enforcement of company policies are

insufficient to prove racial discrimination. See id.

Second, Yarbrough and Aigheyisi testified that there

were black employees whom they believed should have been

promoted, but were not, while their non-black coworkers

were promoted. See (Dkt. #129 at 202) (Yarbrough)

(“When the promotions were actually being offered, I did

myself know of a couple of people that I believe that should

have been promoted that were African-American, and

they didn’t get promoted, but the Indians were actually

promoted.”); (Dkt. #132 at 44-45) (Aigheyisi) (testifying

that Lofland, who is white, and Silat, who is Indian, were

both promoted to Tier 2 positions, while he was not,

despite believing that “[they] have the same qualifications

literally”). 8

But neither Yarbrough nor A igheyisi brought

failure-to-promote claims. Rather, Yarbrough’s claim

is for wrongful demotion and Aigheyisi’s claim is for

wrongful termination. Further, even if considered,

neither Yarbrough nor Aigheyisi testified that Glow

failed to promote them because of their race, nor did they

8. Lofland testified that he was hired as a Tier 2 employee.

40a

Appendix B

offer any evidence that would support such a contention.

Instead, they testified as to their personal feelings about

who should have been promoted. But determinations

of who to promote are left squarely within a company’s

business judgment, and thus cannot be the predicate

of a race-discrimination claim unless the plaintiff can

show that he is “clearly better qualified (as opposed to

merely better or as qualified)” for the role or that Glow’s

“proffered explanation [for failing to promote him] is false

or unworthy of credence.” Roberson-King v. La. Workforce

Comm’n, 904 F.3d 377, 381 (5th Cir. 2018) (cleaned up);

see also Scott v. Univ. of Miss., 148 F.3d 493, 509 (5th

Cir. 1998) (“Disagreements over which applicant is more

qualified are employment decisions in which we will not

engage in the practice of second guessing.”), abrogated on

other grounds by Kimel v. Fla. Bd. of Regents, 528 U.S.

62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Plaintiffs did

not even attempt to make that showing.9

And even if they had testified that Glow’s decision

on who to promote was based on race, such testimony

would be grounded only in speculation—which cannot

be credited, Bauer, 169 F.3d at 967—because there is no

evidence that Glow considered race in its decisions.

Third, the Tijanis, Yarbrough, and Walker testified

that they were treated differently than their non-black

coworkers for taking breaks. For example, Peter Tijani

testified that he knew “taking breaks or going to [his]

9. Walker was the only Plaintiff who brought a discrimination

claim premised on Glow’s failure to promote him, but as explained

below, his claim does not survive judgment as a matter of law.

41a

Appendix B

car on the very down time was an issue for the Black

folks, but not an issue for the Indian guys.” (Dkt. #131

at 223). Paul testified that his supervisors would “watch

what time [he] c[a]me from break, what time [he] le[ft]

for break, what time [he] resume[d] work.” (Dkt. #131

at 14). And while Yarbrough did not contest that black

employees were permitted to take breaks, he testified

that black employees’ breaks were monitored while Indian

employees’ breaks were not. See (Dkt. #129 at 196).

Similarly, Walker testified that Indian employees could

take longer breaks than black employees and that white

and Indian employees were allowed to read magazines

and newspapers during their downtime, while he was not

allowed to do the same. (Dkt. #130 at 191-92, 207).

However, none of the Plaintiffs testified that they

were admonished or punished for taking a break of any

duration. Thus, they did not show that taking breaks had

anything to do with the adverse actions they suffered.

And no Plaintiff could point to anything discriminatory

about their supervisors ensuring that their breaks did

not impede their job duties. In fact, there was substantial

evidence presented at trial that Glow supervisors had good

reason to keep a close eye on some of these employees. For

example, Pauddar testified that the Tijani brothers would

play video games on their phones during work hours, would

not follow the company’s process for handling sites, were

slow to get work done, and “would leave people hanging,

waiting for them.” (Dkt. #135 at 44-45). And Peter Tijani

had been placed on a Performance Improvement Plan

(“PIP”) for “insubordination and threatening language/

behavior [and being] [u]nprofessional in [the] work

42a

Appendix B

environment.” (Dkt. #127-65). Thus, given that Glow

had a non-discriminatory reason for monitoring these

employees’ breaks—namely, to ensure the breaks did not

impede their work performance—and that Plaintiffs failed

to tie this to their termination or failure to get promoted,

this argument fails. Additionally, since it is unclear that

these employees had “essentially comparable violation

histories”—and it appears that some did not—the Court

cannot say that these Plaintiffs were similarly situated

to their non-black colleagues who were allegedly given

more freedom on their breaks. See Ernst, 1 F.4th at 340.

Fourth, Aigheyisi testified about witnessing the poor

treatment of two other black Glow employees who were also

terminated. As to the first employee, Aigheyisi testified

that Mohammad Silat would “berate her[], you know, talk

down to her.” (Dkt. #132 at 41). Aigheyisi further testified

that he was “not sure why she’s not part of us here [in this

lawsuit] because—[he] saw that happen [to her] before

she was let go.” (Dkt. #132 at 41). And as to the second

terminated black Glow employee, Aigheyisi testified that

“she left like pretty much the first or second week, so [he]

wasn’t too familiar” with her but “knew . . . the basis” of

why she was fired because “[e]verybody talks”—implying

discrimination. (Dkt. #132 at 41). Aigheyisi noted that he

could hear and see these interactions due to Glow’s open

floor plans. (Dkt. #132 at 37-40). However, such evidence

about how other employees were treated or the reason

for other employees’ terminations cannot be the basis

of a race-discrimination claim. See generally Ernst, 1

F.4th at 339 (“To establish a prima facie claim for race

discrimination . . . a plaintiff must show ‘that he . . . was

43a

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treated less favorably.’”) (quoting Stroy v. Gibson ex rel.

Dep’t of Veterans Affairs, 896 F.3d 693, 698 (5th Cir. 2018)

(emphasis added)). Thus, this evidence does not establish

race discrimination.

And fifth, Brown and Pringle testified that they felt

like they were not given the opportunity to work overtime,

unlike their non-black colleagues. (Dkt. #133 at 76)

(Brown); (Dkt. #133 at 100) (Pringle) (“I signed up [for

overtime] a few times and got ignored. . . . And so, one of

the mornings when I came in early . . . I was like, Sandeep

[Pauddar], I was asking to get on, like, overtime. . . . So,

like, when I spoke to him, he was like . . . we’re not going

to do it.”); (Dkt. #133 at 106) (Pringle) (“I’m feeling like

[Sandeep is] avoiding me and he’s preventing me from

working this overtime.”). But Brown was eventually

permitted to work overtime. (Dkt. #133 at 73) (Brown)

(explaining that he was permitted to work overtime after

“begging” for “[t]wo or three months”); (Dkt. #133 at 132)

(Pringle) (“And, eventually, . . . [Brown] was allowed to go

work on the overtime”). And while Pringle was apparently

never permitted to work overtime, he acknowledged

that working overtime would require him to undergo

additional training—even though his supervisors “wanted

[him] to continue focusing on [his] job and not the job” for

which overtime was required, (Dkt. #133 at 131)—thus

establishing a non-discriminatory reason for denying him

the opportunity to work overtime.

Regardless, neither witness tied their inability to

work overtime to their race, and Pauddar testified that

determinations on who could work overtime were left to

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the client. (Dkt. #134 at 210) (“Nokia would have the final

say in who can be tasked to perform overtime duties. . . .

Nokia wanted to make sure that people who can deliver,

who have higher level of quality in their work, only those

people would come and do the overtime.”). Thus, this piece

of evidence also does not demonstrate race discrimination.

Statement by a Human Resources

Manager

Plaintiffs repeatedly pointed to a statement made by

Human Resources Manager Debbie Cahoon to Pauddar,

which Pauddar later shared with Lof land. Lof land

testified that Cahoon told Pauddar, “don’t lay off any

white people.” (Dkt. #129 at 171). Plaintiffs contend

that this statement is direct evidence of discrimination.

However, “[t]o serve as direct evidence of an employer’s

discriminatory intent, a workplace comment must be

‘direct and unambiguous, allowing a reasonable jury to

conclude without any inferences or presumptions that

[race] was an impermissible factor in the decision to

terminate the employee.’” Vital v. Nat’l Oilwell Varco, No.

H-12-1357, 2014 WL 4983485, at *18 (S.D. Tex. Sept. 30,

2014) (quoting EEOC v. Tex. Instruments Inc., 100 F.3d

1173, 1181 (5th Cir. 1996)).10

10. The record shows that Glow was a racially and ethnically

diverse workplace. It employed whites, blacks, Hispanics, Asians,

and individuals with two or more races. (Dkt. #127-83). Given

Glow’s racial and ethnic diversity, Cahoon’s statement regarding

not laying off white employees, without more, does not equate to

a command to lay off black employees.

45a

Appendix B

In Jones v. Overnite Transportation Co., 212 F.App’x

268 (5th Cir. 2006), the court held that racially biased

comments that were far more startling than Cahoon’s

statement were not direct evidence of discrimination.

The plaintiff, a dockworker at a transportation company,

allegedly overheard a supervisor state that he wanted to

“get rid of all the blacks” and “fire a bunch of niggers.”

Id. at 273. The plaintiff was terminated a few months

after these comments were made. Id. The court held

that although these comments revealed the supervisor’s

discriminatory animus, they “lack[ed] the indicia of

specificity and causation required to be direct evidence

of race discrimination.” Id.

Here, Cahoon’s statement could only conceivably aid

Brown and Pringle, as they are the only Plaintiffs to

bring wrongful layoff claims. However, if the egregiously

offensive racial slurs in Jones “lack the concrete specificity

. . . to be direct evidence of unlawful discrimination, see id.,

so too does Cahoon’s statement to not lay off white people.

Brown and Pringle presented no evidence that Cahoon’s

statement reflected Glow’s policy or that it directly led to

their layoffs—thus failing to show causation. Therefore,

Cahoon’s statement would require a “trier of fact to infer

a nexus between the evidence” and Brown’s and Pringle’s

layoffs. See id. Brown and Pringle offer none.

Further, Plaintiffs pointed to “no other racial epithets

directed toward [them] or another employee.” Id. And

“comments [that] are vague and remote in time . . . are

insufficient to establish discrimination.” Id. at 273-74

(cleaned up). Plaintiffs identified no other discriminatory

46a

Appendix B

comments, and thus Cahoon’s lone statement does not

establish discrimination. Brown and Pringle also failed to

identify the period between Cahoon’s comment and their

layoffs, thus failing to demonstrate a temporal proximity

sufficient to show discrimination.

Finally, additional ev idence adduced at tr ial

demonstrated that Cahoon’s statement did not impact

Glow’s layoff strategy. Based on Glow’s layoff list,

employees of many races and ethnicities were laid off,

including whites, Asians, blacks or African Americans,

Hispanics or Latinos, and individuals with two or more

races. Thus, this evidence does not support their racediscrimination claims.

Required to Work More but Paid Less

The Tijanis testified that they worked more but were

paid less than non-black employees. (Dkt. #131 at 120-21,

200) (Peter) (“I never went to complain[] to [Dan Paddock]

that I was being overworked, even though I knew it.”); (Dkt.

#130 at 241) (Paul) (“I was working so much, a lot more than

the white guy or the Indians. . . . So in the night, I would end

up working nine, ten hours. . . . [T]he minimum site I would

do in the night would be eight sites.”); (Dkt. #130 at 242)

(Paul) (“They really used me and other black, you know,

workers over there. . . . And I was getting lesser pay.”).

However, the Tijani brothers presented no evidence—

other than their testimony—that Glow made them work

more and paid them less than non-black employees. And

even if the jury accepted the Tijani brothers’ testimonies

47a

Appendix B

as true, neither Peter nor Paul presented evidence that

Glow increased their workloads and paid them less because

of their race. Such evidence is necessary for a jury to infer

race discrimination. See Hiner v. McHugh, 546 F.App’x

401, 408 (5th Cir. 2013) (finding that, in a Title VII case, the

plaintiff “provide[d] no evidence that race was a factor in

any of the three incidents that form the basis of his hostile

work environment claim,” one of which was an increase in

his workload); cf. Allen v. Envirogreen Landscape Pros.,

Inc., 721 F.App’x 322, 327 (5th Cir. 2017) (“Complaints

about wages, hours of work, and working conditions are

protected under . . . the Fair Labor Standards Act . . .

, but protected activity under Title VII must relate to

discriminatory practices based on race . . . ”). Because

they provided no evidence tying their alleged increased

workload and decreased pay to their race, this testimony

does not support their race-discrimination claims.

Wearing a Dashiki

Next, the Tijanis and Ashiru testified that Mohammad

Silat and Sandeep Pauddar did not permit them to wear

their native African dashiki attire, even though Indian

employees were allowed to wear comparable attire. See

(Dkt. #130 at 254-55) (Paul Tijani) (“[Silat] and [Pauddar]

specifically told me that [wearing a dashiki] wasn’t

allowed. And this is my African attire. This is my pride.

And the Indians were able to wear their hijab. . . . And until

the last day I got fired, they never stopped the Indians

of wearing their attire, and I was stopped from wearing

mine.”); (Dkt. #131 at 219) (Peter Tijani) (“[Silat] saw me.

He said it in a very cocky way, and I believe he said, You

48a

Appendix B

know you can’t wear [a dashiki] at work?”); (Dkt. #132

at 281-82) (Ashiru) (“I put [on] African attires . . . Silat

accuse[s] me one to one in person that he likes my outfit but

I shouldn’t put this on again, ever again. . . . I asked him

why. He said he don’t care, he doesn’t care.”); (Dkt. #132

at 282) (Ashiru) (“And the Indian ladies and men, they put

on their attires.”). Yarbrough confirmed this account in

his testimony. (Dkt. #129 at 199) (“[A]nother thing that I

noticed as well is the African employees . . . would wear

their dashikis. . . . They were told they weren’t supposed

to be wearing that, but the Indian employees were able

to wear . . . their head wraps and whatever.”).

Critically, however, these Plaintiffs failed to establish

that Silat and Pauddar’s instructions not to wear dashikis

in the workplace were motivated by race—an essential

element of a race-discrimination claim.11 See Vaughn

v. Miss. Dep’t of Mental Health, No. 1:09-CV-00136SA-JAD, 2010 WL 3782435, at *5 (N.D. Miss. Sept. 20,

2010) (holding that the plaintiff, a black woman, offered

“no evidence that her being sent home [due to her work

attire] was motivated by racial animus”). Moreover, even

11. Further, “Title VII protects persons in covered categories

with respect to their immutable characteristics, but not their

cultural practices.” See EEOC v. Catastrophe Mgmt. Sols., 852

F.3d 1018, 1030 (11th Cir. 2016) (emphasis added); see also id.

(“Critically, the EEOC’s proposed amended complaint did not

allege that dreadlocks themselves are an immutable characteristic

of black persons, and in fact stated that black persons choose

to wear dreadlocks because that hairstyle is historically,

physiologically, and culturally associated with their race. That

dreadlocks are a ‘natural outgrowth’ of the texture of black hair

does not make them an immutable characteristic of race.”).

49a

Appendix B

if these instructions not to wear dashikis were racially

motivated, there was no evidence before the jury that tied

such instructions to their terminations. Accordingly, this

incident cannot serve to prove that “but for race” they

would not have been terminated. See Comcast Corp., 140

S.Ct. at 1019.

***

In sum, the common evidence presented by Plaintiffs

served only to show the absence of any policy, scheme,

or pattern of conduct at Glow that could support a

race-discrimination claim. Testimony consisting of

unsupported, conclusory allegations, impressions, or

assumptions regarding discrimination provides no

evidence that such discrimination occurred. Likewise,

generalized, vague complaints about work policies at Glow

that either applied to all employees or that Plaintiffs failed

to show were enforced in a race-discriminatory manner

also provides no evidence of race discrimination. Having

determined that Plaintiffs’ common evidence is legally

insufficient to find Glow liable, the Court next turns to the

remaining evidence that specific Plaintiffs raised at trial.

ii.

Plaintiff-specific evidence does not

establish racial discrimination.

Paul Tijani

Glow hired Paul Tijani as a Tier 1 employee in October

2017. He was terminated on March 8, 2018, which he claims

was due to his race. After his termination, Paul was able to

50a

Appendix B

find a new, higher-paying job within a “couple of months.”

(Dkt. #131 at 82).

As noted in his exit report, which outlines the reasons

for his termination, Paul Tijani was terminated for violating

company policy by watching videos on his cellphone while

on the job. (Dkt. #127-46). In his exit report, Paul is listed

as “unsatisfactory” for all categories12 —including his

overall performance. (Dkt. #127-46). Sandeep Pauddar

corroborated this account, testifying that Paul would play

video games on his cellphone during work, would not follow

the company’s process for handling sites, and was slow to

get work done. (Dkt. #135 at 44-45). Paul failed to rebut

Glow’s non-discriminatory reason for terminating him.

Aside from the categories of evidence already

discussed herein, see supra Section III.A.i, Paul Tijani

presented two other pieces of evidence to support his

claim that he was terminated because of his race. First,

Paul testified that he was humiliated when Pauddar

“single-handedly pick[ed]” him “almost every night” “out

of the majority of black, white, [and] Indians” to “wash

the dishes in the kitchen,” while non-black employees

were never asked to do the same. (Dkt. #130 at 246-48).

Paul explained that he stopped cleaning the dishes after

“a week or two”—which he later clarified was only five

12. Glow’s exit report evaluated employees on their: (1)

knowledge and skill in the performance of their duties; (2)

promptness, dependability, and professionalism; (3) communications

and progress reporting; (4) accuracy, timeliness, and adherence

to scheduled commitments; (5) ability to “handle[] out-of-scope

activities”; and (6) overall performance. (Dkt. #127-46).

51a

Appendix B

or six days, (Dkt. #131 at 42)—upon informing Pauddar

that he was not willing to continue cleaning the dishes.

(Dkt. #130 at 246-48). And second, Paul testified that a

coworker “called [him] and [his] brother and said to [them]

specifically, Hey, guys, be careful. Mohammad [Silat] and

Sandeep [Pauddar] do not like you guys.” (Dkt. #131 at 53).

Paul stated that this was “happening because of [his skin]

color.” (Dkt. #131 at 53). This testimony cannot support

an inference of race discrimination.

As to the first piece of evidence, Paul failed to tie

Pauddar’s instruction that he clean the dishes to his race

or his ultimate termination from Glow. He presented no

evidence demonstrating that Pauddar selected him to

clean the dishes because he was black. Again, Paul had to

present at least some evidence of a nexus between being

chosen to clean the dishes, his race, and his termination

from Glow. His conclusory statements are insufficient.

Newsome, 189 F.App’x at 355. And not only did Pauddar

stop asking Paul to clean the dishes once Paul complained,

Pauddar himself took on the task. (Dkt. #131 at 42). He

did not make Paul clean the dishes against his will, nor

did he give the task to another black employee, as one

might have expected if Pauddar’s goal was to treat black

employees poorly. Turning to the second piece of evidence,

Paul failed to tie Silat and Pauddar’s alleged dislike of

him to his race, and his assumption that it must have been

because of his race necessarily fails. See Lawrence, 163

F.3d at 313.

Because Paul failed to present sufficient evidence for

a reasonable jury to find that he was terminated because

52a

Appendix B

of his race, the Court grants Glow’s motion for judgment

as a matter of law as to Paul’s race-discrimination claim.

Peter Tijani

Like his brother, Peter Tijani was hired as a Tier 1

employee in October 2017. He claims that Glow wrongfully

terminated him because of his race. As noted in his exit

report, Peter was terminated on February 6, 2018, for:

Poor behavior in the work place. Told an

external Field Tech (customer) that he was only

going to migrate 1 site of a 2 site Co-Located

set. Erupted in angry outburst cursing his Tier

2 and Team Lead over this and wanted to leave

early without completing the migration.

(Dkt. #127-65). Concerning this incident, Peter testified

that his Tier 2 supervisor was the one cursing at him—not

the other way around. (Dkt. #131 at 260-61). In a video

displaying a different incident, the jury heard and saw

Peter raising his voice and gesticulating at Pauddar about

being given wrong sites. (Dkt. #125 at 4) (Def.’s Ex. 144).

The exit report also lists Peter as “unsatisfactory”

or “improvement required” for all categories—including

his overall performance. (Dkt. #127-65). The exit report

also notes that Peter was placed “on a PIP on Jan 8th

for insubordination and threatening language/behavior.

Unprofessional in work environment.” (Dkt. #127-65).

Pauddar corroborated this account, testifying that Peter

would play video games on his phone, would not follow

53a

Appendix B

the company’s process for handling sites, and was slow

to get work done. (Dkt. #135 at 44-45). These all form

the basis of a non-discriminatory reason for terminating

Peter, and Peter failed to offer sufficient evidence of race

discrimination to rebut Glow’s reason.

Besides the evidence presented by multiple Plaintiffs—

which the Court already explained is insufficient to find

race discrimination—Peter presented no evidence of

race discrimination. Because Peter failed to present

sufficient evidence for a reasonable jury to find that he was

terminated because of his race, the Court grants Glow’s

motion for judgment as a matter of law as to Peter’s racediscrimination claim.

William “Will” Aigheyisi

Aigheyisi joined the RITC project in October 2017

as a Tier 1 employee. (Dkt. #132 at 22). Aigheyisi’s racediscrimination claim is based on his alleged wrongful

termination. According to his exit report, Aigheyisi was

terminated on March 8, 2018, for violating company

policy by playing Candy Crush on his cell phone when

he was supposed to be working. (Dkt. #127-82). In his

exit report, Aigheyisi is listed as “unsatisfactory” for

all categories—including his overall performance. (Dkt.

#127-82). Prior to this incident, Aigheyisi had been

placed on a PIP for breaking company policy by sleeping

on the job. (Dkt. #132 at 110). That PIP indicated it was

Aigheyisi’s “final warning.” (Dkt. #127-36 at 7). Yet he

was placed on a second PIP on January 31, 2018—a mere

twenty-three days after the first—this time for “[l]acking

54a

Appendix B

professionalism [and displaying] insubordination with

disregard to acknowledgement [of] work assignments.”

(Dkt. #127-37 at 2). This second PIP indicated that it

would be “the final attempt to correct the employee’s

performance.” (Dkt. #127-37 at 2) (emphasis added).

At trial, Aigheyisi disputed the rationale for his

termination, testifying that he “wasn’t playing Candy

Crush when [he] got fired. [He] was playing Candy Crush

two or three weeks prior.” (Dkt. #132 at 270-71). While

Aigheyisi admitted that he was captured on camera with

his legs crossed and playing Candy Crush on his phone,

he stated that this incident must have occurred around

February 2018 “because that’s when they moved [him]

to the front under the camera.” (Dkt. #132 at 109-10,

117). Notably, this event took place after his second PIP.

Considering Aigheyisi’s history of violating company

policies, Glow had legitimate, non-discriminatory reasons

to terminate him.

Besides the evidence presented by multiple Plaintiffs,

Aigheyisi points to no evidence that he was terminated

because of his race. He simply contends that he was

“good at his job” and that being fired for playing Candy

Crush is unreasonable. (Dkt. #171 at 38). But these

subjective beliefs are insufficient to overcome Glow’s

proffered legitimate, non-discriminatory reason for

Aigheyisi’s termination—especially in light of his history

of misconduct at work. Because Aigheyisi failed to present

sufficient evidence for a reasonable jury to find that he was

terminated because of his race, the Court grants Glow’s

motion for judgment as a matter of law as to Aigheyisi’s

race-discrimination claim.

55a

Appendix B

Joshua Yarbrough

Yarbrough was hired as a Tier 2 employee for the

RITC project in October 2017. (Dkt. #129 at 224). Within

six months, he was promoted to the Quality Assurance

team. (Dkt. #129 at 225). Yarbrough’s race-discrimination

claim is based on his alleged wrongful demotion from

the Quality Assurance team to a Tier 1 role in July 2018.

According to Glow, Yarbrough was moved because Glow’s

client no longer needed as many employees working in

the Quality Assurance position and instead needed more

experienced employees working in a Tier 1 capacity. (Dkt.

#134 at 257-58) (Pauddar); see also (Dkt. #129 at 114-15)

(Lofland) (“[Yarbrough] went to work, and he stated that

right when he got in, Sandeep [Pauddar] stated he’s not

on the QA team anymore. And not just that, he’s not going

to be working as a Tier 2 or . . . a bridge manager . . . he’s

going to solely be doing Tier 1 work.”). Notably, Pauddar

testified that neither Yarbrough’s pay nor his designation

were changed as a result of his new position. (Dkt. #134 at

257-58). Further, Matt Lofland, who is white, was similarly

demoted when the relevant project was winding down.

This evidence supports Glow’s non-discriminatory reason

for moving Yarbrough from his Quality Assurance role to

Tier 1 capacity.

Yarbrough, on the other hand, testified that Pauddar

informed him that he was demoted to Tier 1 duties and

was replaced on the Quality Assurance team by Karen

Montalbo—who is Asian. (Dkt. #129 at 213). Silat disputed

that Montalbo moved onto the Quality Assurance team.

(Dkt. #135 at 257) (“[Montalbo] was trained for [the

56a

Appendix B

Quality Assurance team], but she was working as a Tier

2 helping out Tier 1s.”). Yarbrough further testified that

he was demoted even though he had previously been

promoted, performed well, had not been disciplined, and

had no warning of an impending demotion. (Dkt. #129 at

213) (“I never seen it coming.”).

The Court finds that there was sufficient evidence for

the jury to have concluded that Yarbrough was demoted.

However, Yarbrough failed to present sufficient evidence

to establish that his race was the “but for” cause of his

demotion. He heavily relied upon his subjective beliefs and

perception of disparate treatment—evidence the Court has

already determined is insufficient—and he failed to direct

the jury or the Court to any meaningful evidence that

could rebut Glow’s legitimate, non-discriminatory reason

for demoting him.13 And the fact that Lofland—a similarly

situated non-black employee—suffered the same adverse

action under the same circumstances refutes Yarbrough’s

claim that he only faced such action because he was black.14

13. While Yarbrough presented evidence that his demotion

occurred after he complained to Pauddar about how black

employees were treated at Glow, see (Dkt. #129 at 210) (“And not

too long after [the conversation with Pauddar about a petition

regarding how black employees were treated at Glow], you know,

I was demoted at that point.”), such evidence is relevant to a

retaliation claim, not a discrimination claim such as this one. See

42 U.S.C. § 2000e-3(a).

14. Both Joshua Yarbrough, who is black, and Matt Lofland,

who is white (1) served on the Quality Assurance team, (2) were

reassigned to Tier 1 capacity at the same time, and (3) resigned

the same night they were reassigned. (Dkt. #129 at 114-17).

57a

Appendix B

Since Yarbrough presented insufficient evidence for a

reasonable jury to find Glow liable for race discrimination,

Glow is entitled to judgment as a matter of law on this claim.

Joshua Walker

Walker’s race-discrimination claim is premised on

Glow’s failure to promote him from a Tier 1 to a Tier 2

employee. Based on Sandeep Pauddar’s testimony, Glow

decided not to promote Walker because (1) the client was

not approving promotions at the time and (2) Walker

was not yet ready to perform complex site migrations

and resolve difficult sites, which Tier 2 employees were

required to do. (Dkt. #134 at 265-66). Thus, Glow carried

its burden of presenting a non-race-based rationale for not

promoting Walker.15

Despite not getting an official promotion, Walker

testified that he nevertheless got a raise while working

as a Tier 1 employee after informing Pauddar that he had

received an offer for a job that paid better. (Dkt. #130 at

221). Glow’s records confirmed that Walker’s pay increased

from $18 per hour to $21 per hour in April 2018. (Dkt.

#127-66, #127-67). And Walker acknowledged that he

stayed at Glow, despite the better job offer, “because of

the duration of the project” at Glow. (Dkt. #130 at 222).

15. Walker ultimately left Glow upon finding a different,

higher paying job. While Walker testified that he gave Glow his

two-weeks’ notice, (Dkt. #130 at 226), Glow’s records indicate that

Walker “left without notice,” (Dkt. #127-68 at 1). Because Walker’s

departure from Glow is not the subject of his race-discrimination

claim, the Court need not address this discrepancy.

58a

Appendix B

To show that Glow’s non-discriminatory reason for

failing to promote him was pretextual, Walker had to

demonstrate that he was “clearly better qualified (as

opposed to merely better or as qualified)” for the role or

that Glow’s “proffered explanation [for failing to promote

him] is false or unworthy of credence,” (i.e., is a cover

for race discrimination). Roberson-King, 904 F.3d at

381 (cleaned up). The “disparities in qualifications must

be of such weight and significance that no reasonable

person, in the exercise of impartial judgment, could have

chosen the candidate selected over the plaintiff for the

job in question.” Deines v. Tex. Dep’t of Protective &

Regul. Servs., 164 F.3d 277, 280-81 (5th Cir. 1999); see

also Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th

Cir. 2002) (“In order to establish pretext by showing the

losing candidate has superior qualifications, the losing

candidate’s qualifications must leap from the record and

cry out to all who would listen that he was vastly—or even

clearly—more qualified for the subject job.” (cleaned up)).

Walker failed to make such a showing.

To support his position, Walker testified that he

received an award for his excellent performance. (Dkt.

#130 at 203). This award was presented to him by Human

Resources in the presence of the entire RITC project.

(Dkt. #130 at 230). He also testified that he “personally

felt” that other employees were not “putting in the same

work [he] was putting in.” (Dkt. #130 at 204) (“I was

volunteering to come in on Sundays by myself. I was

staying late, coming in early, always asking is there

anything else I can do or helping anyone. I was helping

others, and people was coming to me for help.”). And he

59a

Appendix B

testified that he did not “think” that the other employees

were “more qualified than [him].” (Dkt. #130 at 222)

(noting that “one of them didn’t even have a degree”). At

the same time, however, Walker acknowledged that other

employees could have been as qualified as he was. (Dkt.

#130 at 222).

Walker’s testimony is insufficient to prove race

discrimination. His testimony does not demonstrate such

a severe difference in qualifications that “no reasonable

person” could have chosen the other candidate over

him. Deines, 164 F.3d at 280-81. Absent a race-basedmotivation—which Walker provided no evidence of—

“employers are generally free to weigh the qualifications

of prospective employees,” and “an employee’s ‘better

education, work experience, and longer tenure with

the company do not establish that he is clearly better

qualified.’” Martinez v. Tex. Workforce Comm’n-Civ.

Rights Div., 775 F.3d 685, 688 (5th Cir. 2014) (per curiam)

(emphasis omitted). Walker’s mere belief that he was

better qualified does not establish that he was qualified

to such a degree that a reasonable person could only have

selected him for the promotion. McLendon v. Ingalls

Shipbuilding Inc., 260 F.3d 622, at *4 (5th Cir. 2001)

(per curiam) (“Any alleged disparity in qualifications is

not of such a degree as to create a jury issue that [the

defendant’s] proffered justification was pretextual.”). His

testimony that the other employees might have been just

as qualified as him further proves his inability to show

that he was vastly more qualified.

60a

Appendix B

Because Walker failed to present sufficient evidence

for a reasonable jury to find that he was not promoted

because of his race, the Court grants Glow’s motion

for judgment as a matter of law as to Walker’s racediscrimination claim.

Michael Brown

Brown was hired as a Tier 2 engineer at the beginning

of the RITC project. (Dkt. #133 at 21). Because he had

more experience in the information technology industry,

he was assigned to the Fault Management Team—a

specialized team responsible for troubleshooting issues

with site upgrades. (Dkt. #133 at 22-23). Brown’s racediscrimination claim is premised on being laid off and

not rehired. As noted in his exit report, Brown was laid

off on November 9, 2018—towards the end of the RITC

project—“[d]ue to reduced funding from Nokia” resulting

in the elimination of his position. (Dkt. #127-55). This

satisfies Glow’s burden to present a non-discriminatory

rationale for laying him off.

Brown did not receive high marks from Glow: His

exit report notes that while he was “[p]ossibly” eligible

for re-hire, he had “[v]ery strange written and verbal

communication” and “could not retain any cross-training

by other teams.” (Dkt. #127-55). Brown received “meets

requirements” or “improvement required” ratings for all

categories concerning his job performance at Glow. (Dkt.

#127-55). Pauddar explained that Brown’s exit report

reflects the feedback Glow received from the client. (Dkt.

#134 at 243-44).

61a

Appendix B

After Brown was laid off, he immediately sought

reemployment with Glow. (Dkt. #133 at 46-47, 60). As to

his possible rehiring, Brown testified that when he was

laid off, Pauddar informed him that he would be “on the

top of his list” to get rehired if another project opened up.

(Dkt. #133 at 46-47). The evidence presented to the jury

reflects that after Brown was let go, Glow kept Brown

apprised of potential job openings. See, e.g., (Dkt. #12756) (containing emails between Glow’s Human Resources

Manager Debbie Cahoon and Brown concerning a

new project at Glow); (Dkt. #127-57) (email from Glow

recruiter to Brown: “I have a . . . position for Nokia in

Plano Texas. Please email me your updated resume . . .

if you are interested and available.”); (Dkt. #127-58)

(email from Pauddar to Brown: “Hi Michael, the funding

has been going down. We have only 13 ppl left. If we get

more T2 funding, I will let you know.”). Brown testified

that he was given an opportunity to interview with a

member of Glow’s team located in Virginia, but he later

received a call from the interviewer informing him that

he would not be getting the job and asking what he had

done to upset his managers. (Dkt. #133 at 47-48). Brown

claimed that this is evidence that he was being blackballed

and discriminated against by Pauddar. (Dkt. #133 at 66).

But notably, Brown presented no evidence that Pauddar’s

alleged issues with him stemmed from his race, rather

than his poor performance as noted in his exit report.

Aside from the categories of evidence already

discussed herein, see supra Section III.A.i, Brown

presented three other pieces of evidence to support his

claim that he was laid off and not rehired because of his

62a

Appendix B

race. First, Brown testified that he had an unusually long

delay in getting his laptop and that he received sub-par

training when he began working at Glow. (Dkt. #133 at 2526, 28-29). However, as to the laptop, Brown acknowledged

that he was paid the entire time, and he otherwise failed

to tie such delay to his race. (Dkt. #133 at 69). And as to

the training, Brown was unable to explain how non-black

employees were trained differently because of their race.

(Dkt. #133 at 28); see also Rudolph v. Huntington Ingalls,

Inc., No. 1:06-CV-820, 2011 WL 4350941, at *9 (S.D. Miss.

Sept. 15, 2011) (holding that the burden is on the plaintiff

to make out a prima facie case of discrimination, and

that denials of training opportunities are not necessarily

discriminatory).

Second, Brown testified that his schedule changed

often, which apparently did not happen to others. (Dkt.

#133 at 71). But Brown did not provide any evidence

that his schedule was being changed because of his race,

(Dkt. #133 at 71), and such evidence is necessary to

establish a race-discrimination claim. See Harris-Childs

v. Medco Health Sols., Inc., 169 F.App’x 913, 917 (5th Cir.

2006) (holding that the plaintiff’s assertion that she was

treated “worse than non-African-American pharmacists

in terms of scheduling, work performance expectations,

and disciplinary incidents” could not support her hostile

work environment claim absent specific evidence that “any

of the alleged harassing events were based on her race or

had a racial character or purpose”).

Third, Brown testified that Silat would tease him

prior to his termination by indicating that “he already

63a

Appendix B

knew what Sandeep was getting ready to do, keep Doug

and Kyle” (white employees). (Dkt. #133 at 59-60). But

again, Brown failed to tie such teasing to his race. Thus,

this evidence does not support his claim.

Because Brown failed to present sufficient evidence

for a reasonable jury to find that he was laid off and not

rehired because of his race, the Court grants Glow’s

motion for judgment as a matter of law as to Brown’s

race-discrimination claim.

Adewale Ashiru

Ashiru worked on the RITC project as a Tier 1

employee from October 2017 until his termination on April

5, 2018. As noted in his exit report, Ashiru was terminated

for “poor performance” and “[c]ontinued . . . mistakes even

after training and coaching.” (Dkt. #127-3). Ashiru was

listed as “unsatisfactory” for all categories—including his

overall performance. (Dkt. #127-3). Pauddar corroborated

this account, testifying that Ashiru was “a low performer”

and that it “was difficult to get him through the training

process and qualification process.” (Dkt. #134 at 216).

Several emails presented to the jury noted the

escalating nature of Ashiru’s poor job performance. For

example, an email dated April 3, 2018, from Lofland to

Pauddar, Paddock, Henderson (another manager), and

Silat describes an incident in which a client waited over

two hours to hear back from Ashiru, who had already left

work without permission. (Dkt. #127-7). Another email

dated April 5, 2018, describes Ashiru’s poor performance

64a

Appendix B

on a specific assignment. (Dkt. #127-8). And finally, an

email also dated April 5, 2018, from Pauddar to various

other Glow personnel notes that Ashiru had been placed

on a Performance Improvement Plan since March 28, 2018,

and describes issues with Ashiru’s job performance on

several assignments. (Dkt. #127-9). While Ashiru testified

that he had never seen the PIP and “wasn’t aware of”

Pauddar receiving multiple customer complaints about

him, this evidence strongly supports Glow’s non-race

related reason for terminating Ashiru. (Dkt. #132 at 321).

Aside from the categories of evidence already

discussed herein, see supra Section III.A.i, Ashiru

presented two other pieces of evidence to support his claim

that he was terminated because of his race. First, Ashiru

testified that while shadowing other employees, he was

told by Silat not to sit next to the Tijanis, who are black.

See (Dkt. #132 at 282) (“[Silat] said I should sit down here.

I shouldn’t go to Peter and Paul. I shouldn’t sit down near

them.”); (Dkt. #132 at 313-14) (testifying that he thought

he could not shadow the Tijanis “[b]ecause [Silat and the

Tijanis] have differences already”). But Ashiru failed to

tie such instruction to his or the Tijanis’ race.

Second, Ashiru testified that Glow did not let him

use his cellphone to communicate with field technicians

via text message. (Dkt. #132 at 285-87). At the outset,

Ashiru fails to tie this policy to his race. Additionally,

Walker testified that the no cellphone-use policy applied

to all workers regardless of their race. (Dkt. #130 at

190). Accordingly, this cannot be the basis of a racediscrimination claim.

65a

Appendix B

Because Ashiru failed to present sufficient evidence for

a reasonable jury to find that he was terminated because

of his race, the Court grants Glow’s motion for judgment

as a matter of law as to Ashiru’s race-discrimination claim.

Brandon Price

Although Price’s race-discrimination claim is based

on his firing, his grievance with Glow appears to be

centered on the circumstances of his hiring. Price, who had

previously worked on the RITC project, was contacted by

a Glow recruiter about an open job position in California.

Price testified that Glow was vague about the details of

the job, but that he nonetheless decided to accept the

opportunity. (Dkt. #134 at 75) (“I couldn’t even get any

information on what the project was . . . What is consisting

of this job? What are my job duties? What are my . . .

responsibilities?”). Once he began working, he was tasked

with driving two engineers to cell sites so that they could

perform the upgrades. (Dkt. #134 at 75) (“They just told

me it was a Sprint fit project. . . . I was going to have to

drive around.”). Price did not perform any engineering

work, to his displeasure. Price was terminated because he

was unable to perform his job duties due to the expenses

associated with the job—expenses that Price knew he

would incur. (Dkt. #134 at 75-76) (“My employment ended

because . . . I became financially tight. . . . So, you know,

because I couldn’t go and pick up the guys the days that

they need me to, they released me.”); (Dkt. #134 at 96) (“Q.

And when you were unable to perform those job duties,

Glow let you go? A. That’s correct.”); see also (Dkt. #134

at 84).

66a

Appendix B

Price claims that Glow discriminatorily hired him as

a chauffeur because he is a black man from the Compton

area in Los Angeles. (Dkt. #134 at 74) (“I figured, um, I

was offered the job because . . . I’m from Los Angeles. I

used to live in the area. I was familiar with the terrain. . . .

I know some of the cell sites that we were going to were

in questionable areas. And I mean . . . I am a Black man

and I know the area, and with me being with them, it was

going to be less threatening for them to be in certain areas

with me being around.”); (Dkt. #134 at 78) (“I believe they

hired me to be a chauffeur because . . . I was a Black man,

I knew the area, I’m from certain parts of Los Angeles.”).

The Court notes that evidence concerning Price’s

hiring cannot be the basis of his race-discrimination claim

predicated on his firing. See Guillory v. St. Landry Par.

Police Jury, 802 F.2d 822, 824 (5th Cir. 1986) (holding that

the plaintiff’s “termination as well as his later unsuccessful

application for reemployment must be evaluated as

separate instances of alleged discrimination”); see also

(Dkt. #120 at 4) (noting Price’s firing as the adverse

employment action in the jury’s verdict form). And, in any

event, Price presented no evidence that the “but for” cause

of his termination from Glow was his race. In fact—as

Price acknowledged—he was terminated because he was

unable to perform his job duties.

Accordingly, because Price failed to present sufficient

evidence for a reasonable jury to find that he was

terminated because of his race, the Court grants Glow’s

motion for judgment as a matter of law as to Price’s racediscrimination claim.

67a

Appendix B

Harom Pringle

Pringle was hired as a Tier 2 engineer on the RITC

project, and he was later assigned to the BAU task

force—a day shift troubleshooting team whose task was

to correct issues that arose during the night shift. (Dkt.

#133 at 90-91). Pringle received training specific to his

duties on the BAU team, and he does not claim that he

received different or lower-quality training than the other

members of the team—including the non-black members.

(Dkt. #133 at 117-19). He was never disciplined, nor did

he ever receive any criticism from his supervisors. (Dkt.

#133 at 104-05).

Pringle’s discrimination claim is premised on being

laid off and not rehired. Pringle testified that he was

laid off without explanation in July 2018 because of his

race. (Dkt. #133 at 104-08). According to Glow, however,

Pringle was laid off with other employees—including

non-black employees—at the direction of Glow’s client

due to the winding down of the RITC project. See, e.g.,

(Dkt. #134 at 271) (Pauddar) (“I think that that summer

we started tapering down the project and multiple layoffs

had occurred and [Pringle] was probably in one of the

groups.”); (Dkt. #135 at 194-99) (Debbie Cahoon). This was

confirmed by Glow’s layoff list that included employees of

all races. See (Dkt. #127-83 at 2). This supports Glow’s

legitimate, non-discriminatory reason for laying off

Pringle.

Pringle presented insufficient evidence for a reasonable

jury to conclude that Glow’s proffered reason for his

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Appendix B

layoff was merely pretextual. Aside from the categories

of evidence already discussed herein, see supra Section

III.A.i, Pringle presented two other pieces of evidence

to support his claim that he was laid off because of his

race. First, Pringle testified that he was laid off as

“retaliation” for “trying to gather information to find out

what’s really happening” to black employees at Glow and

for “pursu[ing] Sandeep [Pauddar] in such a manner at

that time.” (Dkt. #133 at 150). However, Pringle’s claim

is premised on discrimination—not retaliation. Thus, any

testimony relating to retaliation is not relevant to his

race-discrimination claim.

Second, Pringle testified that he was not permitted

to use a certain site-migration tool at the same capacity

as employees on the night shift. See, e.g., (Dkt. #133 at

121) (“Jules [who is Black] and the Indian lady, they were

put on a rotation where they worked that night to get that

experience to use the tool to its full capacity.”). According

to Pringle, he was limited to using the tool only to the

extent necessary to fulfill his duties as a troubleshooter

on the day shift. (Dkt. #133 at 131). But Pringle failed to

tie this limitation on his use of a site-migration tool to his

race. And when asked whether he understood that his

supervisors, Pauddar and Paddock, imposed the limitation

because they “wanted [Pringle] to continue focusing on

[his] job [on the BAU team] and not the job that other

people were doing on the nightshift,” Pringle answered in

the affirmative. (Dkt. #133 at 131). This non-race-based

limitation of Pringle’s access to a particular work tool does

not support a claim of race discrimination.

69a

Appendix B

Because Pringle failed to present sufficient evidence

for a reasonable jury to find that he was laid off and not

rehired because of his race, the Court grants Glow’s

motion for judgment as a matter of law as to Pringle’s

race-discrimination claim.

***

None of the Plaintiffs presented “sufficient evidence

to support the jury’s ultimate findings” that Glow is liable

for race discrimination. Bryant, 413 F.3d at 476 (cleaned

up). Even being “especially deferential to the verdict,”

Mays, 968 F.3d at 447 (cleaned up), and “review[ing] all

of the evidence in the record” in the light most favorable

to Plaintiffs, Brennan’s Inc., 376 F.3d at 362, the Court

concludes that the evidence presented to the jury was

legally insufficient to find Glow liable. Therefore, the Court

grants Glow’s motion for judgment as a matter of law as

to all Plaintiffs’ race-discrimination claims.

B. Retaliation Claims

To establish a prima facie case of retaliation under 42

U.S.C. § 1981, a plaintiff must prove that (1) he engaged

in a protected activity, (2) he experienced an adverse

employment action, and (3) there is a causal link between

the protected activity and the adverse employment action.

Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 43637 (5th Cir. 2022). “An employee engages in a protected

activity under Section 1981 when ‘he has opposed any

practice made unlawful by [Title VII].’” Scott v. U.S.

Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (per

70a

Appendix B

curiam) (quoting 42 U.S.C. § 2000e-3(a)).16 This includes

either (1) opposing race discrimination (opposition clause)

or (2) making a charge, testifying, or participating in

an investigation, proceeding, or hearing concerning a

Title VII complaint (participation clause). EEOC v. Rite

Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016) (citing

42 U.S.C. § 2000e-3(a)). To establish liability under the

opposition clause—as all Plaintiffs attempt here17—the

employee must demonstrate that he “reasonably believed

the practice was unlawful.” U.S. Bank Nat’l Ass’n, 16

F.4th at 1210; see also Rite Way Serv., Inc., 819 F.3d at

237 (“It has long been the law in this and other circuits

that a plaintiff contending that she was retaliated against

for proactively reporting employment discrimination need

not show that the discrimination rose to the level of a Title

16. As with race-discrimination claims, courts “examine

retaliation claims under Section 1981 using the ‘same rubric of

analysis’ as Title VII.” U.S. Bank Nat’l Ass’n, 16 F.4th at 1209

(cleaned up).

17. Although the Tijanis filed charges with the EEOC,

they presented no evidence that their managers were aware of

the charges. “Generally, if the decisionmakers were completely

unaware of the plaintiff’s protected activity, then it could not be

said that the decisionmakers might have been retaliating against

the plaintiff for having engaged in that activity.” Gorman v.

Verizon Wireless Tex., L.L.C., 753 F.3d 165, 171 (5th Cir. 2014)

(cleaned up). And any internal complaints raised by any Plaintiff

does not count for purposes of the participation clause. See Rite

Way Serv., Inc., 819 F.3d at 239 n.2 (explaining that “participation

in an internal employer investigation not connected with a formal

EEOC proceeding does not qualify as protected activity under

the participation clause” (quotation omitted)). Thus, none of the

Plaintiffs’ retaliation claims implicate the participation clause.

71a

Appendix B

VII violation, but must at least show a reasonable belief

that it did.”). However, “[a] vague complaint or general

allegation of unfair treatment, without any reference to an

unlawful employment practice under Title VII, does not

constitute protected activity.” Allen, 721 F.App’x at 326.

Once a plaintiff makes a prima facie case, the burden

then shifts to the defendant to “articulate a legitimate,

nonretaliatory reason for the alleged retaliatory action.”

Wantou, 23 F.4th at 437. If the defendant satisfies this

burden, the onus shifts back to the plaintiff “to prove that

the adverse employment action would not have occurred

but for the protected conduct.” Id. A defendant is not liable

for unlawful retaliation “if the employee would have faced

that discipline even without the protected conduct.” Id.

Again, the Court’s task at this stage of the proceedings is

to “inquire whether the record contains sufficient evidence

to support the jury’s ultimate findings.” Bryant, 413 F.3d

at 475-76 (cleaned up).

Recall that four Plaintiffs asserted retaliation claims

that went to the jury: Matt Lofland, Paul Tijani, Peter

Tijani, and Will Aigheyisi. For the reasons explained

below, the Court will grant Glow’s motion for judgment as

a matter of law as to Lofland’s and Paul Tijani’s retaliation

claims, and will grant Glow’s motion for a new trial as to

Peter Tijani’s and Will Aigheyisi’s retaliation claims.

Matt Lofland

Lofland began working at Glow in 2017 as a Tier 2

employee. (Dkt. #129 at 80). He was then promoted two

levels, ultimately becoming a Team Lead. (Dkt. #129 at

72a

Appendix B

80-81). He was also selected to create and serve on the

Quality Assurance team. (Dkt. #129 at 97-98) In April

2018, Lofland became a full-time Glow employee and

received a $5 per hour raise. (Dkt. #129 at 84). However,

Lofland’s role was changed in July 2018, when both

he and Joshua Yarbrough were reassigned to a Tier 1

capacity. (Dkt. #129 at 115-17). Lofland, like Yarbrough,

then resigned without notice. (Dkt. #129 at 117-18).

Lofland claims that his reassignment was retaliation for

complaints he made at Glow.

Glow is entitled to judgment as a matter of law on

Lofland’s retaliation claim because Lofland failed to

establish that he engaged in a protected activity. Although

Lofland identifies several complaints that he made, he

fails to cite a single one where he specifically opposed

an unlawful employment practice. For instance, Lofland

testified that he recommended to Sandeep Pauddar that

two black employees be promoted, but Pauddar instead

promoted two Indian employees. (Dkt. #129 at 100-01).

When Lofland brought this issue up with Pauddar and

asked for an explanation, Lofland never complained about

or accused Pauddar of racial discrimination. See (Dkt.

#129 at 101-03). Likewise, Lofland complained about

disparities in the enforcement of office policies and how

Glow conducted its layoffs, but he never complained that

such incidents were grounded in discrimination.18 (Dkt.

#129 at 93-97, 107-09).

18. Lofland told the jury that he thought the policies were

enforced unequally between black employees and non-black

employees, but he did not make a similar claim at Glow. See (Dkt.

#129 at 93).

73a

Appendix B

Lofland also reported to Pauddar that many of the

black employees, including Yarbrough, were preparing a

petition regarding unfair treatment. (Dkt. #129 at 103).

In response, Pauddar told Lofland that “anyone that

does this will be fired on the spot.” (Dkt. #129 at 103).

Lofland noticed that his managers began treating him

unfairly after he reported this information. (Dkt. #129

at 105). But reporting on a potential petition—albeit one

arising due to alleged discrimination—is not a protected

activity, and thus cannot be the basis for a retaliation

claim. Lofland never signed the petition, indicated his

support for the petitioners, or otherwise expressed

any opposition to a discriminatory practice. He merely

reported other individuals’ opposition. Thus, he did not

engage in a protected activity. See Rite Way Serv., Inc.,

819 F.3d at 239.

Lofland further testified that, after he reported on the

potential petition, he noticed that Pauddar “was coming

after Joshua Yarbrough” and “targeting him.” (Dkt.

#129 at 105). When Lofland confronted Pauddar about

his treatment of Yarbrough, Pauddar said that he would

“never forgive Joshua Yarbrough for what he did.” (Dkt.

#129 at 105-06). Lofland then “pushed the issue more

saying that [they] should move on from this.” (Dkt. #129

at 106). In response, Pauddar told Lofland that “there’s

no way you weren’t part of this. So I can either pursue

this or . . . you can basically stop talking to me.” (Dkt.

#129 at 106). However, Lofland’s statement to Pauddar

that he was targeting Yarbrough does not constitute

a protected activity because it never “refer[red] to an

unlawful employment practice.” Allen, 721 F.App’x at

74a

Appendix B

326. Instead, it merely constitutes a “vague complaint or

general allegation of unfair treatment”—and one not even

about Yarbrough’s race. See id. Since Lofland never “put

the employer on notice that [his] complaint was based on

racial . . . discrimination,” he never engaged in a protected

activity. See Harris-Childs, 169 F.App’x at 916.

Moreover, Lof land never testified or otherwise

indicated that he believed Pauddar’s targeting of

Yarbrough was unlawful, rather than merely meanspirited and uncalled for. Thus, his reporting is not covered

by the opposition clause. See Long v. Eastfield Coll., 88 F.3d

300, 304 (5th Cir. 1996); see also Brown v. United Parcel

Serv., Inc., 406 F.App’x 837, 840 (5th Cir. 2010) (“Magic

words are not required, but protected opposition must at

least alert an employer to the employee’s reasonable belief

that unlawful discrimination is at issue.”).

Since Lofland never engaged in a protected activity,

he cannot succeed on his retaliation claim. Therefore, the

Court grants Glow’s motion for judgment as a matter of

law as to this claim.

ii.

Paul Tijani

Paul Tijani’s retaliation claim also fails. Although

he identifies a number of complaints that he raised,

he presented no evidence that those complaints were

specifically about racial discrimination. Rather, he

complained generally that he did not like how he was being

treated and he reported “cultural discrimination.” But

Paul was required to prove that he complained of racial

75a

Appendix B

discrimination—not discrimination generally, and not

cultural discrimination. See Allen, 721 F.App’x at 326.

Since he did not do so, he failed to establish a retaliation

claim.

Paul testified that he orally complained to Dan

Paddock that he was being assigned too many sites and he

told the jury—but not anyone at Glow—that he personally

“felt” that this was a product of racial discrimination. (Dkt.

#131 at 22-23). He later brought additional complaints

up the chain of command—none of which referenced

race. See (Dkt. #130 at 258-62). In addition to his verbal

complaints, Paul authored a written complaint that he

sent to Human Resources personnel. (Dkt. #127-41). In

the letter, Paul asserted that he “ha[s] been a victim of

discrimination, and unfairly treated at work,” and that

he has felt “very oppressed and humiliated” because he

was disciplined for reporting that he received an incorrect

site. (Dkt. #127-41 at 2). He also wrote that “[t]here’s

discrimination act(s) from []Mohammed and Sandeep

(Cultural discrimination).” (Dkt. #127-41 at 3).

None of these complaints were specifically about

racial discrimination. Most of his complaints amount to

vague and general assertions that he was being treated

unfairly, which do not constitute protected activities. See

Allen, 721 F.App’x at 326. And his complaint about cultural

discrimination cannot save his claim because “culture and

race are two distinct concepts.” EEOC v. Catastrophe

Mgmt. Sols., 11 F.Supp.3d 1139, 1143 (S.D. Ala. 2014),

aff’d, 852 F.3d 1018 (11th Cir. 2016). Unlike culture,

“race . . . is an immutable characteristic.” Frontiero v.

76a

Appendix B

Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d

583 (1973); see also Catastrophe Mgmt. Sols., 11 F.Supp.3d

at 1143 (“Culture is ‘a set of behavioral characteristics

and therefore significantly dissimilar from the immutable

characteristics of race and national origin.’” (quoting

United States v. Guzman, 236 F.3d 830, 836 (7th Cir. 2001)

(Ripple, J., concurring in part and dissenting in part))).

And Title VII only protects immutable characteristics. See

Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084, 1091

(5th Cir. 1975); see also Catastrophe Mgmt. Sols., 852 F.3d

at 1030 (“Title VII protects persons in covered categories

with respect to their immutable characteristics, but not

their cultural practices.”). Thus, Paul’s complaint about

cultural discrimination does not give rise to a retaliation

claim because he never opposed a practice made unlawful

by Title VII.19

The jury found that Paul “would not have been

terminated . . . but for his opposition to or reporting

of race discrimination.” (Dkt. #120 at 1-2). However,

Paul never opposed or reported race discrimination—or

discrimination against any other protected class, for that

matter. Since Paul failed to present sufficient evidence for

a reasonable jury to find that he engaged in a protected

activity—let alone that he was fired because of such

activity—the Court grants Glow’s motion for judgment as

19. The protected classes under Title VII are “race, color,

religion, sex, [and] national origin.” 42 U.S.C. § 2000e-2(a)(1). Paul

did not oppose discrimination against any of these classes. See

U.S. Bank Nat’l Ass’n, 16 F.4th at 1209 (“An employee engages in

a protected activity under Section 1981 when he has opposed any

practice made unlawful by Title VII.” (cleaned up)).

77a

Appendix B

a matter of law as to Paul’s retaliation claim. See HarrisChilds, 169 F.App’x at 916 (finding that an employee did

not engage in a protected activity when she complained

of harassment but did not mention race or sex).

iii. Peter Tijani

Unlike his brother, Peter specifically complained about

racial discrimination, and thus he engaged in a protected

activity. And after reviewing the evidence in its entirety,

the Court concludes that there is a reasonable basis for

a jury to doubt Glow’s rationale for Peter’s termination

and to find that the stated reason for his termination was

pretextual.

First, Peter testified that he specifically complained

that he was discriminated against because of his race.

(Dkt. #131 at 131-33). Peter told Dan Paddock that he

believed the black employees were intentionally given

incorrect sites, (Dkt. #131 at 132-33), and he told Human

Resources personnel that he believed he was being treated

unfairly because he is black, (Dkt. #131 at 138). Thus, since

Peter complained about racial discrimination, he engaged

in a protected activity.

Second, Peter was terminated on February 6, 2018—

within a couple weeks after he brought up his complaints in

a meeting with Human Resources personnel and managers.

See (Dkt. #131 at 143-47). Notably, in its correspondence

with Peter, Human Resources never acknowledged that

Peter made complaints of racial discrimination, and

instead just referred to his “concerns” generally. See (Dkt.

78a

Appendix B

#131 at 159); (Dkt. 126-5); (Dkt. 126-6). Glow contends that

it fired Peter for poor behavior in the workplace. (Dkt.

#127-65). Peter’s exit report identifies several examples:

Peter told a customer that he was not going to complete

his assignment, he erupted in an angry outburst at a Tier

2 and Team Lead, and he was placed on a PIP on January

8th, 2018, for insubordination and threatening language

and behavior. (Dkt. #127-65). Peter denies that any of this

occurred and instead insists that he was fired because

he “spoke up against discrimination.” (Dkt. #131 at 170).

In considering a motion for judgment as a matter of

law, “the [C]ourt may not make credibility determinations

or weigh the evidence,” Brennan’s Inc., 376 F.3d at 362,

and it must be “especially deferential to the verdict,”

Mays, 968 F.3d at 447 (cleaned up). The Court’s only task

is to determine “whether the record contains sufficient

evidence to support the jury’s ultimate findings.” Bryant,

413 F.3d at 476 (cleaned up). Based on the temporal

proximity between Peter’s complaint and his termination,

Human Resources’ failure to acknowledge the subject

and seriousness of Peter’s complaints, and the allegedly

fabricated instances of misconduct in his exit report, and

after drawing all reasonable inferences in Peter’s favor—

as the Court must—the Court finds that there is sufficient

evidence to support the jury’s ultimate findings that Peter

was retaliated against for reporting racial discrimination.

See Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571,

579 (5th Cir. 2020) (“The temporal proximity between

[a plaintiff’s] protected activity and her termination

is relevant to, but not alone sufficient to demonstrate,

pretext. Therefore, [a court] must consider whether

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Appendix B

[the plaintiff’s] other evidence, in combination with this

temporal proximity, is sufficient for a reasonable jury to

find but-for causation.” (citation omitted)). Therefore, the

Court denies Glow’s motion for judgment as a matter of

law as to Peter’s retaliation claim.

However, the Court finds that the jury’s verdict

in favor of Peter was “against the great weight of the

evidence,” and thus a new trial on this issue is required.

See Cates v. Creamer, 431 F.3d 456, 460 (5th Cir. 2005);

see also Shows, 671 F.2d at 930 (noting that a court can

order a new trial if it is “convinced that the verdict is

against the great weight of the evidence”). Under this

lower standard, the Court “need not take the view of the

evidence most favorable to the verdict winner, but may

weigh the evidence.” Shows

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