United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50564

Summary Calendar

____________

Jacquelyn Zepora Brown, 

Plaintiff—Appellant, 

versus

San Antonio Food Bank, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:21-CV-507

______________________________

Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant, Jacquelyn Zepora Brown, sued her former 

employer, the San Antonio Food Bank (the “Food Bank”), alleging claims of 

employment discrimination and retaliation under 42 U.S.C. § 1981 and 

Chapter 21 of the Texas Labor Code. The district court granted summary 

judgment in favor of the Food Bank. We AFFIRM. 

_____________________

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

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2024

Lyle W. Cayce

Clerk

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I.

In May of 2019, the Food Bank hired Brown in its Catalyst Catering 

department as a part-time line chef. Once hired, Brown informed her 

supervisors and co-workers—Lorraine Aguirre, Erika Borrego, and Johanna 

Tesch—that she suffered from a hearing impairment and had been diagnosed 

with tinnitus, dizziness, vertigo, and Ménière disease. In light of her hearing 

impairment, Brown asked Aguirre, Borrego, and Tesch to speak as loudly as 

possible, give her the opportunity to read lips, provide instructions in writing, 

and supply microphones or headsets. 

As a condition of employment, the Food Bank required employees in 

the catering department to undergo drug screenings. Within four months of 

working at the Food Bank, Brown was selected for two screenings. In 

September of 2019, Brown complained to Aguirre and Borrego that she felt 

she was being “targeted [for the drug screenings] because [she is] African 

American.” Shortly thereafter, Aguirre and Borrego began to reduce her 

hours, and consequently, her pay decreased. Brown informed Tesch, the 

Food Bank’s Director of Personnel and Training, that Aguirre and Borrego 

were reducing her hours in retaliation for her complaint about racial 

discrimination in the drug screenings. 

In December of 2019, Brown filed a confidential discrimination 

complaint through the Food Bank’s third-party ethics hotline, asserting that 

Aguirre and Borrego were cutting her hours and charging her for her 

uniforms. After receiving Brown’s anonymous complaint from the hotline, 

Tesch opened an investigation into the complaint’s allegations. As part of 

this investigation, Tesch discussed the complaint with Aguirre and Borrego. 

In January of 2020, Brown spoke with Tesch about her hearing disability and 

requested accommodations. Specifically, Brown informed Tesch that she 

had repeatedly reminded Aguirre and Borrego about her disability and 

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requested accommodations, but that her requests were ignored. Tesch told

Brown that she would talk to Aguirre and Borrego. Three months later,

Brown filed another complaint with Tesch regarding Aguirre’s behavior. 

On April 25, 2020, the Food Bank announced that it was closing the 

catering department due to the COVID-19 pandemic. At the time, the 

catering department had one part-time chef position (filled by Brown), one 

full-time chef position (filled by Aguirre), one full-time business manager 

position (filled by Travis Savely), and two temporary chef positions (filled by 

Benito Chavez and Doiyna Reyna). Following the catering department’s

elimination, the Food Bank hired Aguirre and Savely to fill open positions in 

other departments. Brown applied and interviewed for a position in a 

different department, but was not hired. Thus, the Food Bank ultimately laid 

off Brown and the two temporary employees. 

On July 30, 2020, Brown filed a charge of discrimination with the 

Equal Employment Opportunity Commission. After receiving her right-tosue letter, Brown filed a pro se complaint alleging claims under Title VII for 

race, color, age, and disability discrimination. A magistrate judge appointed 

counsel for Brown, and she subsequently filed an amended complaint alleging

race discrimination, disability discrimination, failure to accommodate a 

disability, and retaliation claims under the Texas Labor Code, as well as a 

race discrimination claim under 42 U.S.C. § 1981. The Food Bank moved 

for summary judgment on all of Brown’s claims, and the magistrate judge 

recommended granting the motion in full. The district court adopted the 

magistrate judge’s recommendation over Brown’s objections, and Brown 

timely appealed. 

II.

On appeal, Brown argues the district court erred in granting summary 

judgment on her various discrimination and retaliation claims. “We review 

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a district court’s grant of summary judgment de novo, viewing all facts and 

drawing all inferences in a light most favorable to the non-moving party.”1

 A 

party is entitled to summary judgment if it shows “that there is no genuine 

dispute as to any material fact” and that it “is entitled to judgment as a matter 

of law.”2 

As an initial matter, the parties agree that the burden-shifting 

framework established in McDonnell Douglas Corp. v. Green3 is applicable to 

Brown’s race discrimination, disability discrimination, and retaliation claims. 

Under this framework, a plaintiff bears the initial burden of establishing a 

prima facie case of discrimination or retaliation.

4 If she does so, the burden 

shifts to the defendant “‘to articulate some legitimate, nondiscriminatory [or 

nonretaliatory] reason,’ for its action.”5

 If the defendant can provide such a 

reason, the burden shifts back to the plaintiff to establish that the proffered 

reason is pretextual.6 

A.

We begin with Brown’s race discrimination claims under § 1981 and 

§ 21.051 of the Texas Labor Code. A plaintiff establishes a prima facie case of 

_____________________

1 Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (citation omitted).

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

3 411 U.S. 792 (1973); see Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (per 

curiam) (applying the McDonnell-Douglas framework to § 1981 claims); Exxon Mobil Corp. 

v. Rincones, 520 S.W.3d 572, 583–84 (Tex. 2017) (applying the McDonnell-Douglas 

framework to claims of discrimination under the Texas Labor Code); Alamo Heights Indep. 

Sch. Dist. v. Clark, 544 S.W.3d 755, 781–82 (Tex. 2018) (applying the McDonnell-Douglas 

framework to retaliation claims under the Texas Labor Code). 

4 Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 321 (5th Cir. 2021) (citing McDonnell 

Douglas, 411 U.S. at 802).

5 Id. (quoting McDonnell Douglas, 411 U.S. at 802).

6 Id. (citing McDonnell Douglas, 411 U.S. at 804).

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race discrimination under both statutes if she shows that: “1) she belongs to 

a protected group; 2) she was qualified for her position; 3) she suffered an 

adverse employment action; and 4) she was replaced by someone outside of 

her protected group or a similarly situated employee outside of her protected 

group was treated more favorably.”7

 In reduction-in-force cases, like this 

one, the fourth prong is framed as “whether similarly situated employees 

who were not members of the protected class avoided the layoffs.”8 

The district court held that Brown was unable to satisfy the fourth 

element of her prima facie case. In so concluding, the court found that 

Brown’s proffered comparators—Aguirre and Savely—were not similarly 

situated because Savely held a different position and Brown identified 

Aguirre as one of her immediate supervisors. On appeal, Brown argues that 

the summary judgment evidence shows that she and Aguirre were similarly 

situated because both were line chefs and “[e]veryone agreed” that Brown 

and Aguirre were co-workers. 

Because the parties do not dispute the first three prima facie elements, 

we only address the final element. The record includes conflicting evidence 

as to whether Aguirre was Brown’s immediate supervisor. However, even 

assuming that Aguirre was not Brown’s supervisor, Brown fails to offer any

evidence that she and Aguirre were otherwise similarly situated because they 

shared the same supervisor, job responsibilities, experiences, or 

qualifications.

9 To the contrary, the record shows significant differences 

_____________________

7 Owens v. Circassia Pharms., Inc., 33 F.4th 814, 825 (5th Cir. 2022) (citations 

omitted). Because courts follow Title VII jurisprudence when analyzing discrimination 

claims under the Texas Labor Code and § 1981, we consider Brown’s race discrimination 

claims together. Id.; Ross, 993 F.3d at 321.

8 Harville, 945 F.3d at 875 n.14.

9 See Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022) 

(explaining that the court considers a “variety of factors . . . when determining whether a 

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between Brown and Aguirre. For example, although Brown and Aguirre 

shared the same job title, Aguirre had over six years of experience in that role,

whereas Brown had only one year of experience.10 Additionally, Aguirre had 

different responsibilities than Brown, such as setting the department’s 

schedule and approving requests for time off. In light of these differences, 

Aguirre is not an appropriate comparator for Brown’s prima facie case. 

Accordingly, we affirm the district court’s grant of summary judgment with 

respect to Brown’s race discrimination claims.

B.

Turning to Brown’s disability discrimination and failure-toaccommodate claims under the Texas Labor Code, the district court 

acknowledged that these two claims are distinct11 and therefore analyzed 

_____________________

comparator is similarly situated, including job responsibility, experience, and 

qualifications” (internal quotation marks and citation omitted)); Lee v. Kan.City S. Ry. Co., 

574 F.3d 253, 260 (5th Cir. 2009) (“The employment actions being compared will be 

deemed to have been taken under nearly identical circumstances when the employees being 

compared held the same job or responsibilities, shared the same supervisor or had their 

employment status determined by the same person, and have essentially comparable 

violation histories.” (internal citations omitted)).

10 See Badgerow v. REJ Props., Inc., 974 F.3d 610, 617 (5th Cir. 2020) (“The mere 

fact that [plaintiff] shared the same job title as the [proffered comparators] . . . is insufficient 

to meet her burden to show that they are proper comparators.”); McElroy v. PHM Corp., 

622 F. App’x 388, 392 (5th Cir. 2015) (per curiam) (unpublished) (reasoning that “a 

plaintiff’s coworkers were not qualified comparators because, among other reasons, they 

had been hired at different times,” and “their positions require[d] different levels of skill 

and responsibility—even where they intermittently perform[ed] the same job duties”). 

Unpublished opinions issued on or after January 1, 1996, are not biding precedent, but they 

may be persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006); 5th 

Cir. R. 47.5.4.

11 See E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 703 n.6 (5th Cir. 2014) (“[W]e 

note that although their methods of proof are related, [a] failure-to-accommodate claim 

under the ADA is distinct from a claim of disparate treatment.” (internal quotation marks 

and citation omitted) (second alteration in original)); Dillard v. City of Austin, 837 F.3d 557, 

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them separately. Given that Brown’s appellate brief does not challenge the 

district court’s holding that she failed to raise a genuine dispute of material 

fact that she was terminated because of her disability, she has forfeited her 

disability discrimination claim.12

As it pertains to her failure-to-accommodate claim, Brown must show 

that: (1) she “is a qualified individual with a disability; (2) the disability and 

its consequential limitations were known by the covered employer; and (3) 

the employer failed to make reasonable accommodations for such known 

limitations.”13 Importantly, an employee has “a right to [a] reasonable 

accommodation, not to the employee’s preferred accommodation.”14 

Moreover, the accommodation “does not have to be the ‘best’ 

accommodation possible, so long as it is sufficient to meet the job-related 

needs of the individual being accommodated.”15

On appeal, Brown, citing her sworn declaration, asserts that she 

repeatedly requested reasonable accommodations16 and that her supervisors 

either ignored or denied her requests. But Brown does not address her 

_____________________

561 (5th Cir. 2016) (acknowledging that “Texas courts interpret their state’s disability 

legislation so as to mirror the federal [ADA] statute”).

12 See Vernon Smith v. Sch. Bd. of Concordia Par., 88 F.4th 588, 594 (5th Cir. 2023) 

(“[W]e have held that parties forfeited arguments by not attempt[ing] to rebut the district 

court’s conclusions or by failing to cite the provisions at issue in the opening brief and 

explain[ing] why the [district] court was wrong about what those provisions permit.” 

(internal quotation marks and citations omitted) (second and third alterations in original)).

13 Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 442 (5th Cir. 2017) (internal 

quotation marks and citation omitted).

14 E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 471 (5th Cir. 2009.

15 Id. (internal quotation marks and citation omitted).

16 In her declaration, Brown asserts that she asked her supervisors for the following 

accommodations: speak as loudly as possible, give her the opportunity to read lips, provide 

instructions in writing, and supply microphones or headsets. 

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testimony, relied upon by the district court, that the Food Bank did provide 

some of her requested accommodations by giving her written instructions 

and pictures and ensuring that chefs were on site to answer any questions she 

may have. And even more critically, Brown does not point to any evidence 

that the accommodations the Food Bank did provide were insufficient to 

ensure she could perform the essential functions of her job.17 Thus, Brown 

has failed to create an issue of material fact as to whether the Food Bank 

provided her with a reasonable accommodation.

C.

Finally, Brown brings a retaliation claim under § 21.055 of the Texas 

Labor Code. To establish a prima facie case of retaliation, Brown must show 

“(1) she engaged in an activity protected by the [Texas Labor Code], (2) she 

experienced a material adverse employment action, and (3) a causal link 

exists between the protected activity and the adverse action.”18 The third 

prima facie element—the causation standard—“is not onerous and can be 

satisfied merely by proving close timing between the protected activity and 

the adverse action.”19 But “if the employer provides evidence of a legitimate 

reason for the adverse action, . . . the employee must prove the adverse action 

would not have occurred ‘but for’ the protected activity.”20 At the pretext

stage, in order to avoid summary judgment, the employee “must show that 

_____________________

17 See Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021) (holding that the 

plaintiff failed to show her employer’s proposed accommodation was unreasonable, and 

that the fact the employer declined to provide plaintiff with her requested accommodation 

did not alter that conclusion).

18 Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 782 (citations omitted); see also id.

at 781 (noting that in “retaliation cases under the [Texas Labor Code], Texas jurisprudence 

parallels federal cases construing and applying equivalent federal statutes, like Title VII”).

19 Id. at 782.

20 Id. 

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there is a conflict in substantial evidence on this ultimate issue.”21 Evidence 

is considered “substantial if it is of such quality and weight that reasonable 

and fair-minded men in the exercise of impartial judgment might reach 

different conclusions.”22

The district court concluded that Brown established a prima facie case 

of retaliation by showing that she complained of discrimination in December 

of 2019, January of 2020, and April of 2020, and was ultimately terminated 

on April 25, 2020. However, the court went on to hold that Brown was 

unable to show that the Food Bank’s proffered reason for her termination—

a reduction in force caused by the COVID-19 pandemic—was pretextual.23 

We agree.

Brown argues that the following evidence demonstrates that the Food 

Bank’s nonretaliatory explanation for her termination was pretextual: (1) the 

Food Bank was required to keep Brown’s complaints of discrimination 

confidential, but Tesch informed Aguirre and Borrego about Brown’s 

complaints; and (2) Brown was the only “regular employee” in the catering 

department that the Food Bank required to apply for other internal positions 

after the department was eliminated. We find this evidence, viewed in the 

light most favorable to Brown, does not create a genuine dispute as to 

whether she would not have been terminated but for the Food Bank’s alleged 

retaliation.

_____________________

21 Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019) (internal quotation 

marks and citation omitted).

22 Id. at 561–62 (internal quotation marks and citation omitted).

23 See id. at 561 (“Elimination of an employee’s position as a result of a 

reorganization or a reduction-in-force is a legitimate, non-retaliatory reason for the 

employee’s termination.”).

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First, Brown asserts that the Food Bank violated its own protocol 

when Tesch informed Aguirre and Borrego about Brown’s confidential 

complaint against them. Although a “plaintiff can also show pretext by 

showing a departure from standard procedure[,] . . . mere deviations from 

policy, or a disagreement about how to apply company policy, do not show 

pretext.”24 Here, Tesch testified that company policy required her to draft 

questions to the individuals named in a complaint regarding the complaint’s 

allegations. Tesch followed this policy by informing Aguirre and Borrego of 

the complaint against them and requiring them to answer questions 

pertaining to the complaint’s allegations. And although Tesch testified that 

she was required to keep complaints anonymous, she stated that the 

allegations in Brown’s complaint made clear that Brown was the author. In 

light of the above testimony, Brown has, at most, pointed to a disagreement 

in how the Food Bank applied its confidential complaint policy, and has 

provided no evidence that Tesch was “willing to deviate from established 

procedures in order to accomplish a discriminatory goal.”25 Thus, Brown’s 

reliance on Tesch’s alleged departure from company policy is insufficient to 

create an issue of fact regarding pretext.26

Second, Brown contends that the Food Bank’s justification for 

terminating her was pretextual because the other employees in her 

department were transferred to new positions within the Food Bank. Brown

_____________________

24 McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 459–60 

(5th Cir. 2019).

25 Pickett v. Tex. Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022) 

(internal quotation marks and citation omitted).

26 See McMichael, 934 F.3d at 460 (“Even if a plaintiff can show that an employer 

consciously disregarded its own hiring system, that showing, on its own, does not 

conclusively establish that . . . a nondiscriminatory explanation for an action is pretextual.” 

(internal quotation marks and citation omitted)).

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conclusively asserts that she was the only employee required to “reapply” 

for employment, whereas the other employees in her department did not 

have to submit applications and were automatically transferred to new 

positions. Brown’s argument is contradicted by the record. Specifically, 

Tesch testified that Brown, Aguirre, and Savely all applied for positions in 

other departments. Tesch further testified that she encouraged Brown to 

apply for a position with the Summer Feeding program before the 

applications had officially opened. And although Brown interviewed for the 

Summer Feeding program position, the program ultimately hired three 

individuals with prior program experience and training. Consequently, the 

record does not support Brown’s assertion that she was the only employee 

within her department who had to reapply for employment. 

In sum, because the Food Bank provided a nonretaliatory explanation 

for Brown’s termination, and Brown failed to raise a genuine dispute of 

material fact that said reason was pretext for unlawful retaliation, the district 

court properly granted summary judgment on Brown’s retaliation claim.

III.

For the foregoing reasons, the district court’s judgment is 

AFFIRMED.

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