# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________**
No. 23

- 20358

**____________ Rudy Carmona,** 

Plaintiff

— Appellant **,**

versus
**Kilgore Industries,**

Defendant

— Appellee

**.**

**______________________________** Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21

- CV -1473

**______________________________** Before **Jones ,**  **Clement ,**  and **Wilson ,**  Circuit Judges

**. Per Curiam**  **:** ***** Rudy Carmona sued Kilgore Industries (Kilgore) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

– 2000e1 7, and the Texas Commission on Human Rights Act (TCHRA), **Tex. Lab. Code Ann. §§**  **21.001**

**– 21.556**  **,** alleging that Kilgore discriminated against him by failing to pay his bonuses and by firing him. The district court granted summary judgment on both claims. Because the district court failed to provide its

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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 May 14, 2024 Lyle W. Cayce Clerk Case: 23-20358 Document: 43-1 Page: 1 Date Filed: 05/14/2024No. 23

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2 reasoning for dismissing Carmona’s claim based on Kilgore’s failure to pay his bonuses, we vacate the district court’s judgment as to that claim and remand for further proceedings

. We otherwise affirm

. I. Kilgore is a mechanical, electrical , and plumbing contractor that provides repairs and other services to its clients. Carmona , a Hispanic man, started working for Kilgore as a service salesman in 2013. 1 Kilgore pai d Carmona a base salary, as well as non

- discretionary commission bonuses for his sales each month. A ccording to Carmona, Kilgore regularly delayed payment of his bonuses while his white co

- workers timely received theirs. Carmona also complained that it was “unfair” that his sales quotas increased each year while his non

- Hispanic co

- workers’ quotas did not. In October 2020, Kilgore fired Carmona after it learned that he was operating a competing business and had provided a quote to a Kilgore client that was ten percent less than the Kilgore quote. A month later, Ca rmona’s supervisor contacted Carmona, stating that the supervisor had submitted a sales report to Kilgore’s owners regarding Carmona’s bonus calculations for October. However, Carmona never received bonuses for September 2020 or October 2020 , which totale d roughly $160,000

. Carmona filed suit in May 2021, alleging race discrimination under Title VII and TCHRA

. 2 Specifically, Carmona a lleged that his supervisor

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1 We review a district court’s grant of summary judgment de novo

. White Glove Staffing, Inc. v. Methodist Hosps. of Dall. , 947 F.3d 301, 304 (5th Cir. 2020). Accordingly,

we construe all facts and draw all reasonable inferences in favor of Carmona. See i d.

2 Carmona also filed a hostile work environment claim under Title VII, a disability discrimination claim under the American with Disabilities Act of 1990 (ADA) , 42 U.S.C. §§ 12101

– 12213, a claim for unpaid wages under the Texas Payday Act, **Tex. Lab. Cod e**  **Ann.** §§ 61.011

– 61.020, and a common law negligence claim. The district court granted summary judgment in Kilgore’s favor as to the hostile work environment , ADA , and Case: 23-20358 Document: 43-1 Page: 2 Date Filed: 05/14/2024No. 23

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3 “would routinely discriminate against [him] because of his race

. . . . [by] delay[ing] the accounting on [Carmona’s] sales reports , ” while “[t]he other salesmen, who were mostly Caucasian, received their sales reports and any bonuses they were owed[] in a timely manner.” Carmona further asserted that he “constantly argue [d] with his boss to mak e sure he was paid fully and on time, yet the Caucasian salespersons did not have to do so.” Carmona also averred that Thanm Han, a “half white and half Vietnamese” employee , had started a business and given quotes to Kilgore customers while employed by K ilgore but “was allowed to remain employed by Kilgore because he was a Caucasian and not [ ] Hispanic.” Finally, Carmona detailed the e

- mail from his supervisor about his bonuses and alleged that he was owed “approximately $100,000” in commissions. Based on those allegations, Carmona contended he was “subjected to adverse employment actions, namely, discriminated against in connection with the compensation, terms, conditions, and privileges of employment” in violation of Title VII and
TCHRA.

After discovery, Kilgore moved for summary judgment. It argued that it had a legitimate, non

- discriminatory reason for firing Carmona , namely his competing business

. However, Kilgore’s opening brief did not even mention Carmona’s allegation that Kilgore regula rly delayed payment of his commission bonuses , much less offer a legitimate, non

- discriminatory reason for doing so

. Conversely, Carmona’s response focused entirely on Kilgore’s failure to pay his bonuses timely , specifically the September 2020 and

**_____________________** negligence claims

. I t declined thereafter to exercis e supplemental jurisdiction over t he remaining state law claim under the Texas Payday Act

. Carmona does not challenge those findings on appeal. Accordingly, we affirm the district court as to those issues. See Bailey v. Shell W. E&P, Inc. , 609 F.3d 710, 722 (5th Cir. 2010) (“Issues not briefed on appeal are waived.”). O n remand, the district court may determine whether to re

- assert supplemental jurisdiction over the Texas Payday Act claim. See 28 U.S.C. § 1367(c). Case: 23-20358 Document: 43-1 Page: 3 Date Filed: 05/14/2024No. 23

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4 Octobe r 2020 bonuses

. Carmona emphasized throughout his response that “the withholding of his bonus checks

— not his termination” was the adverse employment action about which he was complaining. In its reply, Kilgore

accu sed Carmona of alleging “for the first t ime ever in this case” that Kilgore’s failure to pay his bonuses constitute d an adverse employment action. The district court granted Kilgore’s motion for summary judgment. As to Carmona’s Title VII and TCHRA claims, the order focused almost exclusive ly on Carmona’s allegation that he was unlawfully terminated

. It found that Carmona established a prima facie case of discrimination by alleging that “Kilgore fired him for engaging in activities that a non

- Hispanic employee was allowed to engage in, whic h resulted in Carmona not being paid non

- discretionary commissions for his last two months of employment.” It then found that Kilgore rebutted Carmona’s prima facie

case by articulating a legitimate, nondiscriminatory reason for firing him : Carmona’s com peting business. Finally , the district court concluded that Carmona failed to establish pretext because his only evidence that Thanm was allowed to operate a competing business was that Thanm had told
Carmona such a business existed and that he had seen “pictures and quotes” from Thanm’s company, which was inadmissible hearsay. In a footnote, t he district court acknowledged Carmona’s allegation that Kilgore also discriminated against him by failing to pay hi s bonuses. But the court summarily held that “[t]he summary judgment evidence provides no support for this allegation,” without any further explanation. Carmona tim ely filed t his appeal.

II. “We review grants of summary judgment de novo , applying the s ame standard as the district court.” In re La. Crawfish Producers , 852 F.3d 456, Case: 23-20358 Document: 43-1 Page: 4 Date Filed: 05/14/2024No. 23

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5 462 (5th Cir. 2017) (citing Templet v. Hydrochem Inc. , 367 F.3d 473, 477 (5th Cir. 2004)). “[A] court shall grant summary judgment if the movant shows that there is no genui ne dispute as to any material fact and the movant is entitled to judgment as a matter of law.” **Fed. R. Civ. P.** 56(a). “We may affirm a grant of summary judgment ‘based on any rationale presented to the district court for consideration and supported by fa cts uncontroverted in the summary judgment record.’” Nola Spice Designs, L.L.C. v. Haydel Enters.,
Inc. , 783 F.3d 527, 536 (5th Cir. 2015) (quoting Terrebonne Par

. Sch. Bd. v. Mobil Oil Corp. , 310 F.3d 870, 887 (5th Cir. 2002)). At the summary judgment stage, we apply the McDonnel l Douglas burden shifting framework to Carmona’s claims

. See Harris v. FedEx Corp. Servs., Inc. , 92 F.4th 286, 297 (5th Cir. 2024) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 800

– 06 (1973)). 3 Under that framework, the plaintiff must first establish a prima facie case of discrimination. Johnson v. PRIDE Indus., Inc. , 7 F.4th 392, 406 (5th Cir. 2021). If the plaintiff succeeds, the burden then shifts to the employer to articulate a legitimate , nondiscriminatory reason for the underlying employment action. Id. This burden is not heavy; it “is one of production, not persuasion.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142 (2000). Nevertheless, the defendant must at least off er some “admissible evidence sufficient for the trier of fact to conclude that [ the ] petitioner was fired because of [the legitimate, nondiscriminatory reason].” Id. Finally, if the defendant has

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3 “We apply the same analysis to Title VII and TCHRA cla ims.” Horvath v. City of Leander , 946 F.3d 787, 791 n.3 (5th Cir. 2020); see also Ross v. Judson Indep. Sch. Dist. , 993 F.3d 315, 321 (5th Cir. 2021) (noting that “[t]he Supreme Court of Texas has instructed Texas courts to

. . . follow the approach of th e United States Supreme Court in interpreting Title VII when reviewing TCHRA claims”). Accordingly, we do not distinguish between Carmona’s Title VII and TCHRA claims for the purposes of our analysis. Case: 23-20358 Document: 43-1 Page: 5 Date Filed: 05/14/2024No. 23

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6 satisfied its burden, the plaintiff must then show that th e proffered reason is mere pretext. Johnson , 7 F.4th at 406

. III.

Carmona asserts the district court erred in granting summary judgment for two distinct reasons: ( A ) Kilgore failed to provide a legitimate, nondiscriminatory reason for its failure to pay Carmona his bonuses ; and ( B ) Kilgore failed to meet its burden of production in articulating a legitimate, nondiscriminatory reason for Carmona’s termination , because Kilgore did not submit any admissible evidence to support its reasoning. We address each in turn.

A. Carmona is correct that Kilgore failed to articulate a legitimate, nondiscriminatory reason for its failure to pay Carmona his bonuses in its summary judgment motion or briefing in the district court

. 4 Instead, Kilgore argued , as it does on appeal, that the only adverse employment action Carmona alleged in his complaint was his termination. And by add ing Kilgore’s failure to pay bonuses as an other adverse employment action for the first time in opposing summary judgment , Carmona sought to “avoid the Federal Rules of Civil Procedure by implicitly attempting to amend the pleadings.”

But Kilgore’s characterization of Carmona’s complaint is inaccurate. True, Carmona allege d that he was terminated while Thanm was n ot. But he also alleged that (1) Kilgore “would routinely discriminate against [him]

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4 The district court found that Carmona had estab lished a prima facie case of discrimination regarding his termination. Kilgore does not challenge that finding on appeal. Neither Kilgore nor the district court address ed whether Carmona stated a prima facie case of discrimination based on Kilgore’s fail ure to pay his bonuses

. Case: 23-20358 Document: 43-1 Page: 6 Date Filed: 05/14/2024No. 23

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7 because of his race” by delaying his bonuses; (2) he “constantly argue [d] with his boss to make sure he was paid fully and on time, yet the Caucasian salespersons did not have to do so”; and (3) Kilgore failed to pay him approximately $100,000 in bonus commissions after his termination

. Based on those allegations, Carmona assert ed he was “subjected to adverse employment actions , namely , discriminated against in connection with the compensation , terms, conditions, and privileges of employment.” (emphas e s added). Thus, it i s clear from Carmona’s complaint that he was alleging discrimination based on both his termination and Kilgore’s fai lure to pay bonuses. Kilgore argues that , even if he asserted such a claim, “Carmona’s allegations on unpaid commissions/bonus as [an] adverse employment action would still prove to be non

- consequential in the outcome of his racial discrimination claim” b ecause “the only specific allegations of owed commissions that Carmona makes are ones of alleged commissions unpaid after his termination from Kilgore.” While that argument might prove fatal to Carmona’s prima facie case or constitute a legitimate, nondis criminatory reason for Kilgore to withhold Carmona’s pending bonuses, we decline to entertain i t for the first time on appeal. See Chevron USA, Inc. v. Aker Mar.
Inc. , 689 F.3d 497, 503 (5th Cir. 2012) (“Arguments not raised in district court will not be considered absent extraordinary circumstances.” (quotation marks and citation omitted)).

As for the district court’s cursory holding , relegated to a two

- sentence footnote , that there was no evidence to support Carmona’s allegation that Kilgore discriminat ed against him by failing to pay his bonuses , “ w e have many times emphasized the importance of a detailed discussion by the trial judge” when granting summary judgment. McIncrow v. Harris County , 878 F.2d 835, 835

– 36 (5th Cir. 1989) (quotation marks and citation omitted) ; see also **Fed. R. Civ. P.** 56(a) ( “T he court should state on the record the Case: 23-20358 Document: 43-1 Page: 7 Date Filed: 05/14/2024No. 23

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8 reasons for granting or denying the motion [for summary judgment].” ).
W hen a district court’s “reasoning is vague or simply left unsaid, there is little opportunity for effective review.” McIncrow , 878 F.2d at 836 (quoting Myers v. Gulf Oil Corp. , 731 F.2d 281, 284 (5th Cir. 1984))

. That is the case here. The district court did not discuss the McDonnell Douglas framework at all in dismissing Carmona’s claim based on Kilgore’s failure to pay bonuses. Conseque ntly, we cannot determine at which stage of the analysis the district court thought Carmona’s claim fail ed . Accordingly, it is best to remand this issue for further “ illumination of the court’s analysis

. ” See id

. (quoting Myers , 731 F.2d at 284).

B.

Carmona also contends that summary judgment is improper as to his unlawful termination claim because Kilgore did not submit any admissible evidence to support its legitimate, nondiscriminatory reason for Carmona’s termination. We disagree. 5 Kilgore’s ev idence show ing that it fired Carmona because he was operating a competing business is sparse, but it is not nonexistent. In support of its motion for summary judgment, Kilgore offered the competing quote

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5 As noted, Carmona emphasized in opposing summary judgment that “the withholding of his bonus checks” was the adverse employment action about which he was complaining, “not his termination.” See supra Part **I** . Normally, such state ments might constitute a waiver of Carmona’s unlawful termination claim. See Rollins v. Home Depot USA , 8 F.4th 393, 397 (5th Cir. 2021) (“[W]aiver is the intentional relinquishment or abandonment of a known right.” (quotation marks and citation omitted) ). However, the normal rule is muddled in this case because the district court analyzed Carmona’s claims primarily as arising from his termination and only cursorily addressed his allegations regarding his bonuses. Regardless, we need not determine wheth er Carmona waived his unlawful termination claim because summary judgment is still appropriate for the reasons stated infra

. See Bradley v. Allstate Ins. Co. , 620 F.3d 509, 519 n.5 (5th Cir. 2010) (“[A]n argument is not waived on appeal if the argument on the issue before the district court was sufficient to permit the district court to rule on it.” (quotation marks and citation omitted)). Case: 23-20358 Document: 43-1 Page: 8 Date Filed: 05/14/2024No. 23

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9 from Carmona’s business and deposition testimony fr om Carmona that he opened his business while working at Kilgore without informing Kilgore

. 6 Moreover, in response to Kilgore’s motion , Carmona attached excerpts from his deposition in which he acknowledge d that he engaged in these actions and that Kilgor e fired him only after it confronted him about the competing quote. Collectively, this evidence is sufficient to satisfy Kilgore’s burden of production at the second stage of the McDonnell Douglas analysis. A nd because Carmona did not even attempt to sho w that Kilgore’s proffered

reason for firing him was pretextual, the district court did not err in granting summary judgment in Kilgore’s favor as to that claim.

IV. For the foregoing reasons, we **VACATE** the district court’s order granting Kilgore summary judgment as to Carmona’s Title VII and TCHRA claims based on Kilgore ’s alleged f ail ure to pay Carmona’s bonuses and
**REMAND** for further proceedings. 7 W e otherwise **AFFIRM** the summary judgment for Kilgore ent ered by the district court.

**AFFIRMED** in part **; VACATED** in part ; **REMANDED.**

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6 Kilgore also attached as exhibits excerpts from its employee handbook and Carmona’s signed acknowledgment that h e had read the handbook. But in an apparent misstep, the handbook excerpts quoted in Kilgore’s motion concerning outside employment and conflicts of interest were not the pages included in the record. Regardless, Kilgore’s legitimate, nondiscriminatory r eason stands even without proof that Carmona’s competing business violated Kilgore’s internal policies. There is no requirement that a defendant prove that its reason for firing a plaintiff aligns with company policy. See Schoenfeld v. Babbitt , 168 F.3d 1257, 1269 (11th Cir. 1999) (“The reason offered by an employer for an action does not have to be a reason that the judge or jurors would act on or approve.” (quotation marks and citation omitted) ). Rather, “all that matters is that the employer advance a n explanation for its action that is not discriminatory in nature.” Id.

7 We make no forecast on the merits of Carmona’s claim s based on unpaid bonuses. Case: 23-20358 Document: 43-1 Page: 9 Date Filed: 05/14/2024