United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40611

Summary Calendar

____________

David Edward Ellis, 

Plaintiff—Appellant, 

versus

Schneider National Carriers, Incorporated, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 5:21-CV-25

______________________________

Before Davis, Ho, and Ramirez, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant, David Edward Ellis, proceeding pro se and in forma 

pauperis, appeals the district court’s judgment dismissing his claims under 

Title VII, the Age Discrimination in Employment Act (“ADEA”), and the 

Americans with Disabilities Act (“ADA”) against Defendant-Appellee, 

Schneider National Carriers, Inc. (“Schneider”). We AFFIRM. 

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

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2024

Lyle W. Cayce

Clerk

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No. 23-40611

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I.

Schneider employed Ellis as a long-haul trucker for approximately five 

months from August 2019 until January 2020. His duties included picking 

up and delivering freight, subject to the supervision of his fleet manager, 

Jorge Bustamante, and his dispatcher, Victoria Solares. In October 2019,

Ellis sent an email to a manager complaining about Solares because she 

required that he communicate with her by telephone instead of through a 

messaging application program, which Ellis preferred. Ellis further 

suggested that Solares required him to communicate in that way because 

Solares was interested in him romantically. Later in the month, Ellis sent an

email to four other colleagues complaining about Solares. The email included

inappropriate sexual references. 

On November 22, 2019, Schneider placed Ellis on a performance

improvement plan (“PIP”) due to his inappropriate communications with 

his colleagues and supervisors. Ellis was told that he needed to adhere to 

Schneider’s policy of respect for all fellow employees and to “work on 

effective performance of the core competency of communication.” Ellis was 

informed that fellow employees who received his email found it offensive due 

to inappropriate sexual references. Ellis signed the PIP and did not dispute 

the information in it. The PIP advised Ellis that he could be terminated for 

engaging in similar conduct in the future. However, Ellis did not cease 

sending offensive emails. On December 24, 2019, and January 13, 2020, Ellis

sent offensive emails to Bustamante and Solares. On January 14, 2020, 

Schneider terminated Ellis’s employment. 

In March 2021, Ellis, proceeding pro se and in forma pauperis, sued 

Schneider, as well as Bustamante and Solares. Ellis asserted claims of 

disability, age, race, and religious discrimination, as well as retaliation, under

Title VII, the ADEA, and the ADA. Bustamente, Solares, and Schneider 

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moved under Rule 12(b)(6) to dismiss the complaint for failure to state a 

claim. The district court granted Bustamante and Solares’s motion, 

dismissing them as defendants. The district court granted Schneider’s 

motion in part and denied it in part, dismissing all but Ellis’s claims under 

Title VII for religious discrimination and retaliation for requesting a religious 

accommodation. 

Schneider thereafter moved for summary judgment seeking dismissal 

of Ellis’s remaining claims. The district court granted Schneider’s motion,

and Ellis filed a timely notice of appeal. 

II.

In its Rule 12(b)(6) and summary-judgment rulings, the district court 

provided a thorough and detailed analysis of each of Ellis’s claims, explaining 

the elements he needed to establish and why he failed to state a claim or 

demonstrate a genuine issue of material fact sufficient to overcome summary 

judgment. Specifically, the court dismissed under Rule 12(b)(6): (1) Ellis’s

ADA claim for failure to exhaust administrative remedies; (2) his Title VII 

racial discrimination claims because he failed to allege that any adverse 

employment decisions were differentially applied to him; (3) three of his 

Title VII retaliation claims because he did not allege that he ever 

communicated his complaints to his managers nor did he plausibly allege the 

required causal connection; and (4) his ADEA claim because he failed to 

allege that any adverse employment decisions were differentially applied to 

him. As to his claims under Title VII for religious discrimination, the district 

court granted summary judgment in favor of Schneider, determining that 

Ellis’s disparate treatment and failure-to-accommodate claims failed because 

Ellis produced no evidence satisfying the prima facie requirements. The 

court additionally determined that Ellis’s Title VII retaliation claims could 

not survive summary judgment because there was no evidence that 

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Schneider’s legitimate, non-retaliatory reason for terminating him—his 

repeated offensive emails to his colleagues and supervisors—was merely 

pretext for unlawful retaliation. 

Ellis’s near incoherent appellate brief makes no argument about any 

of the claims dismissed for failure to state a claim under Rule 12(b)(6). As to 

his religious discrimination and retaliation claims, Ellis does not challenge the 

district court’s determination that Ellis produced no evidence sufficient to 

survive summary judgment.1

 

Although we liberally construe pro se briefs, pro se parties must still 

brief the issues in order to preserve them for appellate consideration.2

Because Ellis fails to identify any error in the district court’s judgment 

dismissing his claims, it “is the same as if he had not appealed that 

judgment.”3

 

Based on the foregoing, the judgment of the district court is 

AFFIRMED.

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1 Throughout his brief, Ellis includes vile and offensive language such that the 

Court, on its own motion, would be warranted in striking his brief. Ellis is warned that 

if any future filings in this Court contain similar language, sanctions will be imposed.

2 See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam).

3 Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

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