Petition for Writ of Certiorari — Nathaniel Webber, Petitioner v. Leson Chevrolet Company, Incorporated

APPENDIX

App. A: Opinion of the United States Court of Appeals for the Fifth Circuit, Webber v. Leson

Chevrolet Company, Inc., No. 24-30637 (5th Cir. Nov. 18, 2025) (per curiam) (unpublished)

App. B: Order of the United States Court of Appeals for the Fifth Circuit Denying Rehearing En

Banc, Webber v. Leson Chevrolet Company, Inc., No. 24-30637 (5th Cir. January 5, 2026)

App. C: Opinion and Order of the United States District Court for the Eastern District of

Louisiana, Webber v. Leson Chevrolet Company, Inc., Case No. 2:22-cv-00910 (E.D. La. Sept. 3,

2024)

App. D: Relevant Statutory Provisions: 42 U.S.C. § 2000e-2(aXl)

App. E: Relevant Case Law and Jurisprudence: Hager v. Brinker Texas, Incorporated, 102 F.4th 692

(5th Cir. 2024; Okonowsky v. Garland, 109 F.4th 1166 (9th Cir. 2024;7b/an v. Cotton, 572 U.S. 650

(2014; and. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)

21

Appendix A

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(HrnteiJ States! Court of Appeals;

for tfje Jfiftlj Circuit

United States Court of Appeals

Fifth Circuit

FILED

No. 24-30637

November 18, 2025

--------------------

Lyle W. Cayce

Clerk

Nathanial Webber,

Plaintiff—Appellant,

versus

Leson Chevrolet Company,

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

Civil Action No. 2:22-CV-910

Before King, Jones, and Wilson, Circuit Judges.

Per Curiam:*

After his termination, Nathanial Webber sued his former employer,

Leson Chevrolet. Webber had previously complained to management about

racist social media posts by a coworker, the son of the dealership’s owner. In

his lawsuit, Webber alleged workplace harassment and wrongful termination

under Title VII, as well as claims under state law. The district court granted

summary judgment, holding that the state law claims were time-barred and

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

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that Webber failed to plead facts sufficient to sustain his Title VII claims.

The district court also upheld sanctions against Webber’s counsel imposed

by the magistrate judge. Webber now appeals the summary judgment and the

sanctions against his counsel. We affirm as to both.

I.

In September 2019, Nathanial Webber, an African American, was

hired as a mechanic by Leson Chevrolet Company (ICC). LCC is a familyowned dealership operated by Lisa Rebowe. Webber was hired by service

manager Timothy Colson, who supervised Webber throughout his time at

LCC. During Webber’s employment, Lisa Rebowe’s son, Leson Rebowe,

was a trainee manager in the sales department. Until June 2020, Webber did

not report any harassment or discrimination at LCC.

On June 4, 2020, a social justice protest was held at the Jefferson

Parish Sheriff’s Office, next door to the dealership. Webber participated in

the protest That same day, Leson Rebowe circulated several offensive posts

on social media that encouraged violence against protestors. By June 5,

Webber had learned of these posts and expressed his concern to Colson and

Johnny Brumfield, another LCC manager, that Leson might harm him

because he attended the protest. Webber requested to meet with managers

to discuss his fears. When Brumfield proposed instead that Webber meet

with Leson Rebowe, Webber refused, absent assurances from management

that Leson would not cany a gun. Brumfield allegedly discouraged Webber

from making this demand, saying, “You are not about to do this, or this will

be your last day working here. ” No individual meeting ever occurred.

In the following days, public backlash to Leson’s social media posts

led Lisa Rebowe to terminate her son’s employment and issue an apology on

behalf of LCC. On June 9, 2020, she met with employees to address the

controversy and provided a forum for workers to express their concerns.

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Webber missed work that day and did not attend this meeting, but he emailed

Colson to request time off, again expressing his safety concerns. Colson

granted this request

A week later, Colson contacted Webber to ask when he would return

to work. Webber refused to return until he spoke with Lisa Rebowe. On June

18, Lisa spoke with Webber and told him that Leson had been terminated.

Webber returned to work on June 23. On July 2, Leson briefly stopped by

LCC to return a dealership car that had been assigned to him. Leson and

Webber did not interact, but Webber witnessed Leson dropping off the car

and left work, texting Colson that he could not stay at LCC with Leson

present. Colson gave Webber the rest of the day off. Webber did not return

to work in the following weeks and did not contact LCC or Colson during his

absence. After missing more than two weeks of work, Webber was

terminated on July 20.

In November 2020, Webber filed an EEOC charge against LCC, but

the EEOC declined to act and informed Webber of his right personally to sue

his former employer. Webber followed with this action in April 2022. In his

complaint, Webber alleged that he was subject to a racially hostile work

environment at LCC and that his July 2020 discharge was discriminatory, in

violation of Title VII.1 He also alleged employment discrimination and tort

claims under Louisiana law. In September 2024, the district court granted

summary judgment to LCC, finding that Webber failed to substantiate his

claims of workplace harassment or wrongful termination under Title VII.

1 Webber also appears to articulate a Title VII retaliation claim on appeal. He did

not plead a retaliation claim in his complaint, but he contends that the presence of such a

claim should have been obvious from the allegations in his filings before the district court

and the EEOC. Because this claim was not previously pled, it cannot be considered for the

first time on appeal. See Leverett v. Louisville Ladder Co., 183 F.3d 339,342 (5th Cir. 1999).

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The district court dismissed Webber’s state law claims as time-barred, as

more than a year had passed between his termination and filing suit. Webber

appeals the court’s summary judgment.

He also appeals the sanctions imposed by the district court on his

counsel, J.P. Gorham, for a series of lapses during discovery. First, Gorham

failed to appear at multiple scheduling conferences in 2023. When

depositions began in April 2024, the parties disputed whether the corporate

deposition of LCC would be in New Orleans, as previously understood, or in

Baton Rouge, at Gorham’s suggestion. Gorham did not ask the court to

decide the issue and failed to appear at the deposition in New Orleans. This

dispute resolved in favor of LCC, but Webber moved for sanctions,

contending that defense counsel had acted in bad faith by opposing relocation

of the deposition and had also acted improperly during the deposition of

Leson Rebowe. Oral argument on this motion was set in May 2024, but

Gorham again failed to appear.

The magistrate judge denied Webber’s sanctions motion and instead

ordered Gorham to show cause as to why she should not be sanctioned.

Webber then filed a further “motion” objecting to this order, leading LCC

to request sanctions against Gorham. At the show cause hearing in June

2024, the magistrate judge treated the objections motion as a motion for

reconsideration of Webber’s earlier sanctions motion. The magistrate judge

overruled Gorham’s objections and imposed sanctions of $3,500 against her.

The district court upheld the sanctions, and Webber now contests that ruling.

II.

We consider first the grant of summary judgment on Webber’s Title

VH and state law claims. We review a grant of summary judgment de novo.

Roberson-King v. La. Workforce Comm’n, 904 F.3d 377,380 (5th Cir. 2018).

Summary judgment is proper “if the movant shows that there is no genuine

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

matter of law.” Fed. R. Civ. P. 56(a). “A genuine [dispute] of material

fact exists if a reasonable jury could enter a verdict for the non-moving

party.” Roberson-King, 904 F.3d at 380. We review the evidence in the light

most favorable to the nonmovant, drawing all reasonable inferences in favor

of that party, Thorson v. Epps, 701 F.3d 444,445 (5th Cir. 2012). Summary

judgment is proper if the nonmovant “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case.” Celotex

Corp. v. Catrett, 477 U.S. 317,322 (1986).

A.

Webber first presses a claim for racially discriminatory workplace

harassment “A plaintiff may establish a Title VII violation based on race

discrimination creating a hostile work environment” Ramsey v. Henderson,

286 F.3d 264, 268 (5th Cir. 2002). To establish a prima facie case of racial

harassment, Webber needs to demonstrate that (1) he belongs to a protected

group, (2) he experienced unwelcome harassment, (3) this harassment was

based on race, (4) the harassment affected a term, condition, or privilege of

employment, and (5) LCC knew or should have known of the harassment and

failed to take prompt remedial action. See id

The district court, without addressing the first three factors,

concluded that any harassment Webber experienced did not rise to the level

of affecting “a term, condition, or privilege of employment.” Id. It is wellestablished that harassment “must be extreme to amount to a change in the

terms and conditions of employment.” Faragjier v. City ofBoca Raton, 524

U.S. 775,788 (1998). In identifying “extreme” harassment, we weigh “the

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating or merely an offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Harris v.

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Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “|T]solated incidents (unless

extremely serious) will not amount to [workplace harassment] charges that

can survive summary judgment. ” Turner v. Baylor Richardson Med. Ctr., 476

F.3d 337,348 (5th Cir. 2007) (internal quotations omitted). Even “an epithet

which engenders offensive feelings... does not sufficiently affect the

conditions of employment to implicate Title VII.” Arredondo v. Elwood

Staffing Servs.j Inc., 81 F.4th 419, 433 (5th Cir. 2023). “[S]econd-hand

harassment is less objectionable than harassment directed at the plaintiff.”

Id.

As evidence of a hostile work environment, Webber points to Leson

Rebowe’s privileged status as the son of the dealership’s operator, and he

relies on a Ninth Circuit opinion, Okonowsky v. Garland, 109 F.4th 1166 (9th

Cir. 2024), for the proposition that social media’s “pervasive” nature

intensified the harassment he experienced. Webber further asserts that

LCC’s management contributed to a discriminatory environment by

discouraging him from demanding that Leson Rebowe not carry a gun into a

meeting with Webber.

Summary judgment was appropriate on this claim. Webber alleges no

harassment at LCC, nor any personal or directed harassment affecting his

work He has never alleged any negative in-person interactions with Leson

Rebowe, or that they even worked together. While the posts themselves were

abhorrent and involved threats of physical violence, Webber concedes that

his participation in the protest was unknown to his coworkers at the time

Leson wrote them, so they did not implicate or target Webber at all, even

indirectly. Webber’s reliance on Okonowsky is similarly misplaced: In that

case, the plaintiff was subjected by a close coworker to months of sexually

violent social media posts that directly implicated her. Okonowsky, 109 F.4th

at 1178-84. By contrast, Webber alleges a single series of offensive posts that

did not identify him, posted by a coworker with whom he never interacted.

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Even if Webber found Leson’s posts offensive, they fall far short of the

extreme conduct this court has held to be actionable discriminatory

workplace harassment. See, e.&,EEOC v. WC&MEnters., Inc., 496 F.3d 393,

400 (5th Cir. 2007) (frequent racial and religious insults by coworkers);

Johnson v. PRIDE Indus., Inc., 7 F.4th 392,400-04 (5th Cir. 2021) (frequent

use of racial slurs by a supervisor).

Webber’s assertion that Brumfield amplified Leson Rebowe’s racist

behavior by threatening termination is similarly unavailing. Even assuming

that threat was genuine and that Brumfield had any control over Webber’s

employment, a threat of termination, absent more, does not create a hostile

work environment. See Credeur v. Louisiana ex rel. Off. ofthe Atty Gen., 860

F.3d 785,796 (5th Cir. 2017); Roberts v. Unitrin Specialty Lines Ins. Co., 405

F. App’x 874, 880 (Sth Cir. 2010). Moreover, Webber does not allege that

he was discouraged from pursuing his complaints with management, and

indeed he did so, with Colson and Lisa Rebowe, during his initial absence.

Because Webber fails to substantiate at least one of the elements ofhis

hostile workplace harassment claim, summary judgment was proper.

B.

Webber also asserts a claim for wrongful termination, contending that

his discharge resulted from his complaints about Leson Rebowe’s social

media posts rather than his lengthy unexcused work absence. “An ordinary

wrongfill discharge claim has two basic elements: discrimination and

discharge.” Green v. Brennan, 578 U.S. 547, 555-56 (2016). A plaintiff

asserting wrongful discharge under Title VII “must first establish a prima

facie case, which requires a showing that the plaintiff (1) is a member of a

protected group; (2) was qualified for the position at issue; (3) was discharged

or suffered some adverse employment action by the employer; and (4) was

replaced by someone outside [his] protected group or was treated less

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favorably than other similarly situated employees outside the protected

group.” Harrison v. BrookhavenSch. Dist., 82 F.4th 427,429 (5th Cir. 2023)

(internal quotation omitted). In making this showing, Webber may rely on

either direct or circumstantial evidence of discrimination. See Herster v. Bd.

ofSupervisors ofLa. State Univ., 887 F.3d 177,184 (5th Cir. 2018).

“Direct evidence of discrimination proves the existence of

[discriminatory intent] without any inferences or presumptions. ” McMichael

v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 456 (5th Cir.

2019) (internal ellipses and brackets omitted); seealso Sandstadv. CBRichard

Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). Webber contends that the

proximity in time between his complaint and firing constitutes such direct

evidence. But it is undisputed that Webber was fired after missing more than

two weeks of work without explanation, such that LCC had ample

justification to fire him. See Hudson v. Lincare, Inc., 58 F.4th 222,232 (5th

Cir. 2023) (“Failure to perform job tasks is a classic example of a legitimate

reason to fire an employee”). Mere temporal proximity, then, does not

amount to direct evidence of discrimination in this case; the timing of

Webber’s discharge would at best raise only an inference of discriminatory

animus. Cf. McMichael, 934 F.3d at 456; see also Strong v. Univ. Healthcare

Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007). Nor can Webber plausibly

assert that Lisa Rebowe’s public apology is direct evidence of discrimination,

as any discriminatory intent would be flatly contrary to the stated motivation

for her making it See McMichael, 934 F.3d at 456.

Lacking direct evidence of discrimination, Webber must rely on

circumstantial evidence, which we assess through the McDonnell Douglas

burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973); Autiy v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346 (5th Cir.

2013). First, as detailed above, Webber must substantiate a prima facie case

of discrimination. Harrison, 82 F.4th at 429. If he does so, the burden shifts

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to LCC to provide a legitimate, non-discriminatory reason for Webber’s

firing. See McDonnell Douglas, 411 U.S. at 802. If such a reason is provided,

then Webber bears the burden of showing that the offered reason is merely

pretextual, disguising discriminatoiy motives. Id. at 804.

Even if, as the district court assumed, that Webber has stated a prima

facie case of discrimination, LCC has presented a legitimate reason for firing

him: He missed more than two weeks of work without explanation.2 See

Hudson, 58 F.4th at 232; see also Trautman v. Time Warner Cable, Tex., LLC,

756 F. App’x 421, 428 (Sth Cir. 2018) (“[A]s should go without saying, an

employee’s failure to show up for work is a legitimate reason for firing her. ”

(citations omitted)). Webber counters that LCC’s reason for termination

was pretextual. The evidence he offers for this assertion is that (1) he was

not granted an individual meeting with managers to discuss his concerns,

(2) LCC offered inconsistent explanations for the discharge of Leson

Rebowe, and (3) Leson was not properly disciplined for his online behavior.

First, the fact that Webber was not granted an individual meeting with

managers to discuss his concerns—the only personal treatment he offers as

evidence of pretext—does not move the needle. LCC management

convened a meeting of employees to discuss their concerns, but Webber

missed work that day. In addition, Webber was allowed time off, had a

personal call with die dealership’s operator, and Leson Rebowe was

promptly terminated. Employers need not take all remedial steps requested

by a plaintiff; they must simply take “prompt remedial action that is

reasonably calculated to end the harassment.” Hudson, 58 F.4th at 230; see

2 The parties appear to dispute whether Colson contacted Webber during his

second extended absence, and the district court did not address this question. But any

dispute over this point is not material, as it is undisputed that Webber missed more than

two weeks of work without explanation or prior approval.

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also Skidmore v. Precision Printing & Pkg, Inc., 188 F.3d 606,615-16 (5th Cir.

1999); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262-63 (5th Cir.

1999); Landgrafv. USIFilm Prods., 968 F.2d 427,430 (5th Cir. 1992). The

fact that no further meetings were organized, with Webber individually or

otherwise, does not suggest that Webber’s firing was motivated by anything

other than absenteeism.

Next, Webber discerns pretext in alleged inconsistent explanations for

Leson Rebowe’s firing. Before the EEOC in 2021, LCC attributed Leson’s

termination to his violation ofLCC ’ s rules for employee conduct; a form filed

with the Louisiana Workforce Commission (LWC) in June 2020 lists the

reason simply as “reduction ofworkforce. ” While inconsistent explanations

for a discharge may indicate pretext, this inference would be relevant if such

shifting explanations concerned Webber’s firing, not Leson’s. See Musser v.

Paul Quinn Coll., 944 F.3d 557, 564 (5th Cir. 2019). LCC has consistently

explained that Webber was fired for missing work. And even if the reasons

for Leson’s firing were relevant, any inconsistency between LCC’s one-line

explanation on LWC’s form and its more detailed explanation in the EEOC

proceeding—which otherwise accords with LCC’s publicly-stated

explanation for Leson’s discharge—falls well short of the glaring

discrepancies this court has recognized as evidence of pretext See Caldwell

v. KHOU-TV, 850 F.3d 237 (5th Cir. 2017); Gee v. Principi, 289 F.3d 342 (5th

Cir. 2002); see alsoBhadauria v. HCLAm., Inc., 2019 WL 426478, at *3 (N.D.

Tex. Feb. 4, 2019) (inconsistencies must be “so great that it [is] entirely

reasonable to find the proffered explanation to be no explanation at all”).

Webber also contends that Leson Rebowe was inadequately

disciplined, which he says shows pretext on LCC’s part as well. He asserts

that Leson was not truly terminated in June 2020 but was instead placed on

“leave” before being rehired months later. But Webber’s only evidence to

support this is the affidavit of another former LCC employee, Terrance

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Milligan, which was not timely produced in discovery and thus not properly

considered on appeal. See Topalian v. Ehrman, 954 F.2d 1125,1131-32 (5th

Cir. 1992). This assertion also conflicts with the summary judgment record,

including Webber’s own evidence that Leson’s termination was reported to

the LWC in June 2020. Regardless, whether LCC placed Leson on leave or

rehired him, employers need not impose the harshest punishments on

offending employees; they need only act to end the harassment. See

Land&af 968 F.2d at 430. And differential treatment of two employees who

were not similarly situated does not indicate that the decision to fire Webber

waspretextual. SeeLeMairev. La. Dep’tofTransp. &Dev., 480F.3d383,391

(5th Cir. 2007) (“Simply disputing the underlying facts of an employer’s

decision is not sufficient to create an issue of pretext.” (citation omitted));

see also Hernandez v. Yellow Transp.> Inc., 670 F.3d 644, 659 (5th Cir. 2012)

(stating that plaintiff must show that “employment actions ‘were taken

under nearly identical circumstances,’ including... most importantly, that

the ‘conduct that drew the adverse employment decision was nearly

identical.’ ” (quotingLee v. Kan. City S. Ry. Co., 574 F.3d 253,260 (Sth Cir.

2009)) (cleaned up)).

The record also indicates that the same manager, Timothy Colson,

both hired and fired Webber, and Webber does not dispute this fact When

one actor both hires and fires a member of a protected class, an inference may

be drawn that discrimination did not inform the firing. See Allen v. U.S. Postal

Serv., 63 F.4th 292, 304 (5th Cir. 2023); see also RusseU v. McKinney Hosp.

Venture, 235 F.3d 219,228 n.16 (5th Cir. 2000) (“The ‘same actor’ inference

arises when the individual who allegedly discriminated against the plaintiff

[also] hired the plaintiff and gives rise to an inference that discrimination was

not the motive behind plaintiffs termination.”). With no evidence to the

contrary, we may safely infer that Colson’s firing Webber was not motivated

by discriminatory intent

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In sum, Webber presents no evidence of pretext in his firing; if

anything, undisputed evidence supports LCC’s stated reason for terminating

him. Summary judgment was therefore appropriate on his wrongful

termination claim.

C.

The district court dismissed Webber’s state law claims for racial

discrimination, retaliation, and intentional infliction of emotional distress as

time-barred. Those claims are all subject to a one-year prescriptive period

beginning upon Webber’s termination in July 2020. La. Civ. Code art.

3492 (2022), repealed by 2024 La. Acts 423, § 2; but see La. Rev. Stat.

§ 23:303(D).3 Webber does not dispute that this period began to run in July

2020. Instead, in the district court, he embraced two theories to avoid the

time bar: the equitable doctrine of contra non valentem* and a “continuing

tort” theory. He appears to have abandoned the former on appeal, and only

briefly renews the latter.

3 In 2024, the prescription period for delictual actions in Louisiana was extended

to two years, but this amendment only applies prospectively. See 2024 La. Acts. 423 §§ 23. Thus, the one-year prescription period continues to govern Webber’s claims.

One other wrinkle: The prescriptive period for employment discrimination claims

pauses during EEOC proceedings, but this suspension lasts six months at most. See La.

Rev. Stat. § 23:303(D). So the maximum prescriptive period for Webber’s employment

discrimination claim was eighteen months, such that his April 2022 filing was still untimely.

4 Contra non valentem is an equitable doctrine in Louisiana law that tolls

prescription periods from running against plaintiffs unable to act on a claim. See In re

Taxotere (Docetaxel)Prods. Liab. Litig., 995 F.3d 384,390 (5th Cir. 2021) (citation omitted).

This doctrine only applies in four “exceptional circumstances”: (1) when there is a legal

reason a court could not act, (2) a contractual or procedural barrier prevents the plaintiff’s

action, (3) a defendant ’ s actions prevented the plaintiff from acting, or (4) the plaintiff was

reasonably unaware of his cause of action. Id. Webber previously offered that he was

“incapacitated” by fear, leading him to delay filing his state law claims. The district court

rejected this theory, and Webber does not re-urge it on appeal.

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Under Louisiana’s “continuing tort” doctrine, prescriptive periods

are extended when there is at least one act of tortious conduct in the year

immediately before filing suit. SeeBustamento v. Tucker, 607 So. 2d 532,539

(La. 1992). The only such conduct alleged by Webber was the issuance of a

subpoena by LCC to Webber’s current employer in the present litigation.

But a “continuing tort is occasioned by [continual] unlawful acts, not the

continuation of the ill effects of an original wrongful act.” Hogg v. Chevron

USA, Inc., 2009-2632 (La. 7/6/10), 45 So. 3d 991,1003. Webber offers no

argument that the subpoena ofhis current employer was unlawful; he merely

speculates that it has harmed his current working relationship. Because

Webber fails to allege any tortious behavior that would allow him to extend

the one-year prescriptive period, the district court did not err in granting

summary judgment to LCC on Webber’s state law claims.

III.

As to the sanctions issues raised by Webber, the record is fairly

involved (or “tortured,” to borrow the magistrate judge’s terminology. But

at bottom, Webber contests the denial ofhis sanctions motion against defense

counsel, the sanctions imposed on his own counsel, and the magistrate

judge’s treatment of his objections “motion” as a motion for

reconsideration. We review sanctions imposed by a district court for abuse

of discretion. In re Mole, 822 F.3d 798, 801 (5th Cir. 2016). An abuse of

discretion occurs if a “ruling is based on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Id. Conclusions of law by

the magistrate judge are reviewed de novo. Lockette v. Greyhound Lines, Inc.,

817 F.2d 1182,1185 (5th Cir. 1987).

A.

First, we review the district court’s denial of Webber’s motion for

sanctions against defense counsel. “Of course the district court’s decision

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not to impose sanctions is accorded great deference.” Mennella v. Kurt R

Schon RA.I., Ltd., 979 F.2d 357,365 n.44 (5th Cir. 1992).

To bolster his sanctions motion, Webber first deflects blame for the

missed April 2024 LCC deposition, positing that defense counsel should

have known that the deposition would be held in Baton Rouge and that

defense counsel’s last-minute motion for a protective order was a bad faith

attempt to delay the deposition. But this version of events is belied by the

record. The magistrate judge confirmed that the deposition should have been

noticed only in the Eastern District ofLouisiana. Indeed, this was apparently

the initial understanding of the parties, and defense counsel promptly (and

repeatedly) objected when Webber’s counsel noticed the deposition in Baton

Rouge. Webber’s conclusory accusations of bad faith are not sufficient to

counterbalance the actual conduct by the parties at the time.

The other basis for sanctions, according to Webber, is defense

counsel’s conduct during the deposition of Leson Rebowe. Again, Webber’s

support for this assertion is slim. He points to the number of objections made

by counsel and counsel’s disruptive “posture” and “tone,” and he suggests

that defense counsel improperly “ coached ” Leson ’ s answers. Reviewing the

deposition transcript, we see nothing to suggest clear error in the magistrate

judge’s conclusion that no sanctionable conduct took place, especially

considering the high bar for sanctioning deposition conduct. See Carroll v.

Jaques Admiralty Lan Firm, P.C., 110 F.3d 290, 294 (5th Cir. 1997)

(sanctioning a lawyer who used violent threats and profanity during a

deposition). Thus, the district court did not abuse its discretion in upholding

the magistrate judge’s denial of Webber’s sanctions motion.

B.

Webber also contests the sanctions imposed on his counsel,

maintaining that any misconduct was unintended and that the $3,500

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sanction ordered by the magistrate judge was needlessly punitive. Webber

provides no support for this position, beyond stating that any mistakes were

made in good faith and emphasizing a supposed double standard in the

magistrate judge’s treatment of the two litigants’ attorneys. But it is

undisputed that Webber’s counsel missed at least three court appearances

and, as the district court noted, Webber’s various motions relitigated issues

that had already been decided or declared moot. Based on counsel’s conduct,

the determination that sanctions were merited was hardly an abuse of

discretion.

Webber also contends that $3,500 is an excessive amount, speculating

that this penalty was imposed solely for missing the May 2024 show cause

hearing. However, the magistrate judge made clear that the sanctions

reflected a lengthy series of missed appearances, baseless accusations against

defense counsel, and the burden on both the court and LCC of handling

continued frivolous filings. And Webber provides no evidence that the

$3,500 amount was inflated. We have generally “affirmed a district court’s

determination that the least severe sanction... is the imposition of

reasonable attorney’s fees and expenses. ” Mercury Air Grp., Inc. v. Mansour,

237 F.3d 542, 548 (5th Cir. 2001). Webber provides no reason to secondguess the sanctions imposed here, and the district court did not abuse its

discretion in affirming them.

C.

The magistrate judge treated Webber’s May 2024 “motion”

objecting to the show cause order as one for reconsideration of Webber’s

earlier motion for sanctions. According to Webber, this reclassification

deprived him of the chance to “procedurally litigate” the motion,

presumably by proffering new evidence to bolster his earlier, unsuccessful

motion for sanctions against defense counsel. Yet the only evidence Webber

15

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Document: 85-1

Page: 16

Date Filed: 11/18/2025

No. 24-30637

proffered was a brief clip of soundless video footage excerpted from Leson

Rebowe’s deposition, which existed at the time of Webber’s sanctions

motion but was not then presented to the magistrate judge.

Webber’s motion, while ostensibly responding to the court’s show

cause order, in substance relitigated his earlier sanctions motion, recounting

the issues of LCC’s corporate deposition scheduling and defense counsel’s

deposition conduct. The new motion also contained unsupported attacks on

the fairness of the proceedings and the professionalism of both defense

counsel and the magistrate judge. Because its content effectively revisited

the merits of the prior motion for sanctions, the magistrate judge permissibly

treated the objections motion as one for reconsideration of that earlier

motion. See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167,173

(5th Cir. 1990).

To prevail on a motion for reconsideration, Webber needed to show

“(1) an intervening change in controlling law; (2) the availability of new

evidence not previously available; or (3) die need to correct a clear error of

law or prevent manifest injustice. ” In re Benjamin Moore & Co., 318 F.3d 626,

629 (5th Cir. 2002). Here, Webber made no attempt to argue any new legal

grounds and only proposed to offer evidence that was available at the time of

his earlier motions for sanctions. Accordingly, the district court did not err

in affirming the magistrate judge’s reclassification and subsequent denial of

Webber’s motion.

*

*

*

Webber fails to allege any issue of material fact that would permit his

Tide VII and state law claims to survive summary judgment. He further fails

to show any error, much less any abuse of discretion, in the magistrate

judge’s handling of sanctions. The judgment of die district court is

AFFIRMED.

16

Appendix B

Case: 24-30637

Document: 96-1

Page: 1

Date Filed: 01/05/2026

Wmteb States Court of Appeals

for tfje jFfftlj Circuit

United States Court of Appeals

Fifth Circuit

FILED

No. 24-30637

January 5, 2026

Lyle W. Cayce

Clerk

Nathanial Webber,

Plaintiff—Appellant,

versus

Leson Chevrolet Company, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:22-CV-910

ONPETITION FOR REHEARING EN. BANC

Before King, Jones, and Wilson, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel

rehearing (5th Cir. R.40 I.O.P.), the petition for panel rehearing is

DENIED. Because no member of the panel or judge in regular active

service requested that the court be polled on rehearing en banc (Fed. R.

App. P.40 and 5th Cir. R.40), the petition for rehearing en banc is

DENIED.

Appendix C

R

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NATHANIAL WEBBER

Plaintiff,

* CIVIL ACTION NO.: 22-00910

* SECTION: T

vs.

* JUDGE: GREGG. GUIDRY

LESON CHEVROLET COMPANY, INC.

Defendant.

* MAGISTRATE JUDGE:

* MICHAEL B. NORTH

*******************************

ORDER AND REASONS

The Court has before it Defendant Leson Chevrolet Company, Inc.’s (“LCC”) Motion for

Summary Judgment as to all claims raised against it in the above-captioned action by Plaintiff

Nathanial Webber. R. Doc. 57. Webber has responded in opposition, R. Doc. 89, and LCC has

filed a reply memorandum, R. Doc. 93. Having considered the parties’ arguments, along with the

applicable law and facts, the Court will GRANT LCC’s Motion.

I.

BACKGROUND

LCC hired Webber as a mechanic in September of 2019 and fired him on July 20, 2020,

after Webber had failed to appear for work or contact LCC to explain his absence since July 2,

2020. See R. Doc. 57-5 at 38-40. Believing his termination to be racially discriminatory, Webber

filed a charge of discrimination against LCC with the Equal Employment Opportunity

Commission (EEOC). See R. Doc. 1 at 6. The EEOC declined to take any remedial action against

LCC and thus issued Webber a notice of his right to personally sue his former employer. See id.

Webber then filed the instant suit on April 5, 2022, asserting LCC had subjected him to racial

discrimination in the workplace and terminated him in violation of Title VII of the 1964 Civil

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Rights Act, 42 U.S.C. § 2000e, et seq., as well as rising several claims under Louisiana state law

based on the same alleged conduct. LCC now moves the Court to grant summary judgment in its

favor as to all of Webber’s claims, arguing Webber’s state law claims are prescribed and that

Webber cannot establish essential elements of his Title VII claims. See R. Doc. 57-1.

H.

APPLICABLE LAW

Summary judgment of a claim is proper if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Celotex Corp. v. Catrett, 411 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). A court

must hold “a factual dispute to be ‘genuine’ if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party and a fact to be ‘material’ if it might affect the outcome

of the suit under the governing substantive law.” Voelkel McWilliams Const., LLC v. 84 Lumber

Co., 2015 WL 1184148, at *5 (E.D. La. Mar. 13, 2015) (quoting Beck v. Somerset Techs., Inc.,

882 F.2d 993, 996 (5th Cir. 1989)). When assessing whether a genuine dispute as to any material

fact exists, courts “consider all of the evidence in the record but refrain from making credibility

determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.

Co., 530 F.3d 395, 398-99 (5th Cir. 2008) (citing .Reeves' v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 150 (2000)). Accordingly, at the summary judgment stage, courts must view the facts in

the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. See,

e.g., Darden v. City ofFort Worth, Texas, 880 F.3d 722, 727 (5th Cir. 2018) (quoting City & Cnty.

of San Francisco, Calif, v. Sheehan, 575 U.S. 600, 603 (2015); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255(1986)).

Of course, “unsupported allegations or affidavits setting forth ultimate or conclusory facts

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and conclusions of law are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotation and

citation removed). Although the movant bears the initial burden of demonstrating the absence of a

genuine issue of material fact, if it can carry that burden, the nonmoving party must “go beyond

the pleadings and . . . designate specific facts showing that there is a genuine issue for trial.”

Celotex, 477 U.S. at 323-24. This burden is not satisfied by “metaphysical doubt as to the material

facts” or only a “scintilla” of evidence. Little v. Liquid Air Corp., 31 F.3d 1069, 1075 (5th Cir.

1994) (quoting Matsushita Elec. Indus. Co. v. ZenithRadio Corp., 475 U.S. 574, 586 (1986); Davis

v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994)). Summary judgment must thus be

entered “against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party ’ s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. As the United States Supreme Court has explained, “[i]n such a situation,

there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning

an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”

Id. at 322-23. Courts “do not... in the absence of any proof, assume that the nonmoving party

could or wouldprove the necessaryfacts.''' Little, 37 F.3d at 1075 (citing Lujan v. National Wildlife

Federation, 497 U.S. 871, 888 (1990)) (emphasis original). Thus, “summary judgment is

appropriate in any case ‘where critical evidence is so weak or tenuous on an essential fact that it

could not support a judgment in favor of the nonmovant.’” Id. (quoting Armstrong v. City of

Dallas, 997 F.2d 62 (5th Cir. 1993)) (emphasis original).

HL

CLAIMS UNDER STATE LAW

The Court will first address Webber’s state law claims. Webber asserts LCC’s firing him

constituted racial discrimination in violation of the Louisiana Employment Discrimination Law

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(LEDL), specifically La. RS. 23:332, whistleblower retaliation in violation of La. R.S. 23:967,

and tortious intentional infliction of emotional distress, as well as arguing LCC is liable to Webber

for the allegedly discriminatory actions of its employees during his employment. See R. Doc. 1 at

7-11. However, all of these claims are subject to a prescriptive period of one year beginning upon

Webber’s notice of his termination on July 20, 2020.1 See La. Rev. Stat. § 23:303(D); Nolan v.

Jefferson Par. Hosp. Serv. Dist. No. 2, 01-175, p. 12 (La. App. 5 Cir. 6/27/01), 790 So.2d 725,

733; La. Civ. Code art. 3492. Webber does not argue the prescriptive period for these claims began

to run on any later date, nor does he contest that the instant suit was filed over a year after his

termination. Nonetheless, he asserts his state law claims are not prescribed under the continuing

tort doctrine and the doctrine of contra non valentem because he “continues to suffer from the

repercussions of [LCC’s] actions, well beyond the initial act of termination.” R Doc. 89 at 13.

“A prerequisite for invoking the continuing tort doctrine is the occurrence of at least one

act

of

tortious

conduct

within

the

year

immediately

preceding

filing

suit.

Wilson v. Bd. of Sup’rs ofLouisiana State Univ. Agr. &Mech. Coll., 2014-0074 (La. App. 1 Cir.

4/8/16), 2016 WL 1394237 at *4 (citing Bustamento v. Tucker, 607 So. 2d 532, 539 (La. 1992)).

In support of his argument that this doctrine applies, Webber asserts he “has been explicitly told

by management at his current employer, ‘I don’t know what you have gotten yourself into but I

will not be part of it[,]’” after the employer had received a subpoena from LCC in connection with

the instant action; and, thus, that the consequences of LCC’s allegedly discriminatory actions

“extends and manifests continuously in Webber’s professional and personal life post-termination.”

1 While the prescriptive period for claims brought under the LEDL is statutorily suspended during investigation of the

claim by the EEOC, this suspension may last a maximum of six months. See La. R.S. 23:303(D). This results in an

effective eighteen-month prescriptive period for LEDL claims where, as here, the plaintiff has sought administrative

review of his claim of discrimination prior to filing suit However, as Webber first raised the instant claims over

eighteen months after his termination by LCC, application of this statutory suspension fails to render Webber’s LEDL

claim unprescribed.

4

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Doc. 89 at 13-14. However, Webber provides no support for the argument that LCC’s standard

and typical subpoena of his current employer may be construed as tortious conduct, nor does he

identify any professional detriment he has suffered as a result. Indeed, as LCC points out, Webber

himself also issued a subpoena to his current employer in connection with this action. See R. Doc.

94 at 1-2. This further weakens Webber’s assertion that LCC’s subpoena constituted an additional

tortious act that “affectfed] his current job security” or caused him “emotional distress and fear of

further job loss” such that it may trigger the continuing tort doctrine.

Similarly, the equitable doctrine of contra non valentem2 can permit a plaintiff to pursue

an otherwise prescribed claim where he “was effectually prevented from enforcing his rights for

reasons external to his own will.” Wimberly v. Gatch, 635 So. 2d 206, 211 (La. 1994) (citing

Bouterie v. Crane, 616 So. 2d 657, 660 (La. 1993)). Webber argues he was “continuously

incapacitated from asserting his rights due to the fear and intimidation instilled by [LCC’s] initial

wrongful act.” R. Doc. 89 at 14. However, Webber’s asserted “fear” of bringing suit against LCC

does not fall into any of the four categories of circumstances in which Louisiana courts generally

hold contra non valentem to apply.3 Moreover, if a plaintiff’s assertion that he slept on his right to

raise a claim due to fear of the defendant based solely on the conduct ultimately alleged4 were

sufficient to suspend prescription of that claim, the statutory time-bar on claims like Webber’s

2 In full, contra non valentem agere nulla curritpraescriptio, generally translated as “prescription does not run against

a party unable to act.” Wimberly, 635 So. 2d at 211.

3 “Generally, the doctrine of contra non valentem suspends prescription where the circumstances of the case fall into

one of the following four categories: 1. Where there was some legal cause which prevented the courts or their officers

from taking cognizance of or acting on the plaintiffs action; 2. Where there was some condition coupled with a

contract or connected with the proceedings which prevented the creditor from suing or acting; 3. Where the debtor

himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4. Where

some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced

by the defendant.” Wimberly, 635 So. 2d at 211 (citing Rajnowski v. St. Patrick's Hospital, 564 So.2d 671, 674 (La.

1990)); see also Marlbrough v. Cornerstone Chem. Co., 2024 WL 1116177, at *4-5 (E.D. La. Mar. 14, 2024)

(rejecting application of contra non valentem where the plaintiff urged a theory that did not fall into any of those four

enumerated categories).

4 As opposed to, for example, fear of raising a claim of discrimination against a former employer based on post­

termination intimidation or threats not to pursue litigation.

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would be rendered essentially meaningless. Webber has thus failed to demonstrate the existence

of any genuine issue of material fact regarding whether his state law claims can be saved from

their facial prescription under either the continuing tort doctrine or contra non valentem . they are

prescribed and must be dismissed.

IV.

CLAIMS UNDER TITLE VII

Turning to Webber’s federal law claims, Webber asserts LCC subjected him to race-based

workplace harassment, and ultimately terminated him for reporting that racial harassment, in

violation of Title VH See R. Doc. 1 at 3-7.

A. Workplace Harassment

Among other criteria, to be cognizable under Title VII discriminatory harassment “must be

sufficiently severe or pervasive to alter the conditions of [the plaintiffs] employment and create

an abusive working environment.” Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 479 (5th

Cir. 2008) (quoting Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 163 (5th Cir.

2007)). Title VH is not a “general civility code[,]” Faragher v. City ofBoca Raton, 524 U.S. 775,

788 (1998), and “employers are not tasked with the duty of policing all employee behavior in and

outside of the workplace.” Arredondo v. Schlumberger Ltd., 583 F. Supp. 3d 783, 810 (W.D. Tex.

2022), affid sub nom. Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419 (5th Cir. 2023)

(quoting Chapa v. El Paso Indep. Sch. Dist., 2009 WL 10698730, at *7 (W.D. Tex. Sept. 22,

2009)). Even “utterance of an epithet which engenders offensive feelings in an employee does not

sufficiently affect the conditions of employment to implicate Title VII.” Arredondo, 81 F.4th at

433 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Further, “second-hand

harassment is less objectionable than harassment directed at the plaintiff.”Id (quoting Johnson v.

TCB Constr. Co., 334 F. App'x 666, 617 (5th Cir. 2009) (per curium)) (internal quotations

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removed). Ultimately, racially harassing conduct “must be extreme to amount to a change in the

terms and conditions of employment” actionable under Title VII. Faragher, 524 U.S. at 788

(emphasis added and citations omitted).

Here, the alleged racial harassment Webber asserts comprises solely personal social media

posts disparaging and threatening African Americans participating in protests against racial

violence that were made by a manager in LCC’s sales department, Leson Rebowe. See R. Doc. 1

at 4; R. Doc. 57-1 at 1-2. While some courts have held that an employee who “is forced to work

for, or in close proximity to, someone who is harassing her outside the workplace” may have a

cognizable workplace harassment claim, Webber did not work in the same department as Rebowe,

and there is no indication that Rebowe’s personal social media posts were directed at Webber

specifically, or that Rebowe was even aware of Webber’s participation in any protests. Arredondo,

583 F.Supp.3d at 810 (quoting Duggins ex rel. Duggins v. Steak 'N Shake, Inc., 3 F. App'x 302,

311 (6th Cir. 2001)). Webber does not make allegations of in-person or directed harassment by

Rebowe of any individual, either in or outside the LCC workplace, or suggest any interaction

between himself and Rebowe at all; he simply asserts he was “profoundly worried about his safety

at work” because of Rebowe’s personal social media posts. Although Rebowe’s posts were

undeniably racist and offensive, and may have caused Webber fear, they fall far short of the

conduct the Fifth Circuit has previously held to be actionable discriminatory workplace

harassment. See, e.g., E.E.O.C. v. WC&MEnterprises, Inc., 496 F.3d 393, 400 (5th Cir. 2007);

Johnson v. PRIDE Industries, Inc., 7 F.4th 392, 400-04 (5th Cir. 2021). That is, Webber cannot

prove at least one essential element of this claim: even if the Court were to assume Rebowe’s posts

can constitute racial harassment, there is no genuine issue of material fact as to whether they could

be found sufficiently extreme harassment, of Webber, in the workplace, from which LCC was

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required to protect its employee by law.

B. Wrongful Termination

Finally, Webber asserts LCC terminated him on July 20, 2020, not because he had not

appeared for work or been in contact with his employer for over two weeks, but because he had

reported Rebowe’s racist social media posts to his own manager. See R. Doc. 1 at 5. In order to

prevail on this claim at trial, Webber would be required to prove his termination was in fact

discriminatory using either direct or circumstantial evidence. See, e.g., Etienne v. Spanish Lake

Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir. 2015). Webber asserts a prima facie

case is here “unequivocally established by both direct and circumstantial evidence.” R. Doc. 89 at

14. However, Webber’s only proffered “direct” evidence that LCC’s decision to fire him was

motivated by his complaint about Rebowe’s posts is the temporal proximity between those two

events. Although the Fifth Circuit has held in the past that temporal proximity between a protected

activity and an alleged retaliatory firing can be enough to establish causation under some

circumstances, it has explicitly overturned that standard, stating that “the burden has now shifted

to a heightened standard of ‘but-for’ causation, for which temporal proximity, without more, will

not suffice.” Hernandez v. Metro. Transit Auth. ofHarris Cnty., 673 F. App'x 414, 420 (5th Cir.

2016) (citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007)). Given

Webber’s extended and unannounced absence from work just prior to his termination, Webber

cannot establish that “but-for” his complaint about Rebowe, LCC would not have fired him. Thus,

the Court must consider whether Webber can prevail on this claim via circumstantial evidence.

This requires application of the “familiar McDonnell-Douglas burden-shifting

framework[.]” Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346 (5th Cir. 2013) (referring

to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973)). Under this framework, the

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plaintiff must first establish a prima facie case of racial discrimination by showing that he “(1) is

a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or

suffered some adverse employment action by the employer; and (4) was replaced by someone

outside [his] protected group or was treated less favorably than other similarly situated employees

outside the protected group.” Harrison v. Brookhaven School District, 82 F.4th 427,429 (5th Cir.

2023) (citation omitted). If the plaintiff successfully makes this showing, the burden then shifts to

the employer to articulate a legitimate, non-discriminatory reason for the adverse employment

action. See McDonnell Douglas, 411 U.S. at 802. If it can do so, the burden shifts back to the

plaintiff to show that this non-discriminatory reason is mere pretext for his employer’s true

discriminatory motives. Id. at 804.

In this case, even if the Court were to assume Webber can carry his burden to make an

initial prima facie case that his termination by LCC was racially motivated, Webber has failed to

show that any genuine issue of material fact exists as to whether LCC’s non-discriminatory reason

for firing him—his unexplained, over two-week absence from work—is mere pretext. Webber

argues he can make this showing based on unsubstantiated assertions that LCC’s otherwise

uncontested testimony lacks credibility “when examined in the context of the broader

circumstances” of this case, insisting particularly that pretext is shown by LCC’s failure to

investigate Webber’s complaints about Rebowe or address his safety concerns. R. Doc. 89 at 18.

But the uncontested, competent evidence in the record of this case demonstrates that LCC

immediately investigated Rebowe’s personal social media posts once they were reported, and, in

fact, promptly fired Rebowe, and gave Webber two weeks off to recuperate from his anxiety. LCC

only fired Webber after he came to work once following that vacation, on July 2, 2020, and, after

leaving mid-day, never returned. See R. Doc. 57-4; R. Doc. 89-2. Webber’s unsupported assertions

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are insufficient alone to create a genuine issue of material fact as to whether LCC’s statement that

it fired Webber for failing to show up to work for over two weeks is mere pretext for its true

discriminatory intentions. Accordingly, Webber cannot prevail on his claims brought under Title

VH, no trial need be held, and the entry of summary judgment in LCC’s favor is appropriate.

V.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that LCC’s Motion for Summary Judgment,

R. Doc. 57, is GRANTED. Judgment shall be entered and this action dismissed in its entirety by

separate order of the Court.

New Orleans, Louisiana, this 3rd day of September, 2024.

\ Greg Gerard Guidry

United States District Judge

10

I

I

Additional material

from this filing is

available in the

Clerk's Office.