United States Court of Appeals

for 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–2000e17, 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

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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 paid 

Carmona a base salary, as well as non-discretionary commission bonuses for 

his sales each month. According 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, Carmona’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 totaled roughly $160,000. 

Carmona filed suit in May 2021, alleging race discrimination under 

Title VII and TCHRA.

2 Specifically, Carmona alleged 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 id.

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 underthe Texas Payday Act, Tex. Lab. Code 

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

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“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 make 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 Kilgore 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 regularly 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 

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negligence claims. It declined thereafter to exercise supplemental jurisdiction over the 

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.”). On 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). 

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October 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 

accused Carmona of alleging “for the first time ever in this case” that 

Kilgore’s failure to pay his bonuses constituted 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 

exclusively 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, which 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 competing 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, the district court acknowledged Carmona’s allegation 

that Kilgore also discriminated against him by failing to pay his bonuses. But 

the court summarily held that “[t]he summary judgment evidence provides 

no support for this allegation,” without any further explanation. Carmona 

timely filed this appeal. 

II.

“We review grants of summary judgment de novo, applying the same 

standard as the district court.” In re La. Crawfish Producers, 852 F.3d 456, 

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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 genuine 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 facts 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 McDonnell 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 offer 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 claims.” 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 the 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. 

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satisfied its burden, the plaintiff must then show that the 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 adding

Kilgore’s failure to pay bonuses as another 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 alleged that he was terminated while Thanm was not. But he 

also alleged that (1) Kilgore “would routinely discriminate against [him] 

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4 The district court found that Carmona had established a prima facie case of 

discrimination regarding his termination. Kilgore does not challenge that finding on appeal. 

Neither Kilgore nor the district court addressed whether Carmona stated a prima facie case 

of discrimination based on Kilgore’s failure to pay his bonuses.

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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 asserted he was “subjected to adverse 

employment actions, namely, discriminated against in connection with the 

compensation, terms, conditions, and privileges of employment.” (emphases 

added). Thus, it is clear from Carmona’s complaint that he was alleging 

discrimination based on both his termination and Kilgore’s failure 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” because “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, nondiscriminatory 

reason for Kilgore to withhold Carmona’s pending bonuses, we decline to 

entertain it 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 discriminated against him by failing to pay his bonuses, “we 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) (“The court should state on the record the 

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reasons for granting or denying the motion [for summary judgment].”). 

When 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. 

Consequently, we cannot determine at which stage of the analysisthe district 

court thought Carmona’s claim failed. 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 evidence showing that it fired Carmona because he was 

operating a competing businessissparse, 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 statements 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 whether 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)). 

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from Carmona’s business and deposition testimony from 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 acknowledged that he engaged in these actions and 

that Kilgore 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. And 

because Carmona did not even attempt to show 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 failure to pay Carmona’s bonuses and 

REMAND for further proceedings.7

 We otherwise AFFIRM the summary 

judgment for Kilgore entered 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 he 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 pagesincluded in the record. Regardless, 

Kilgore’s legitimate, nondiscriminatory reason 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 an explanation for its action that is not discriminatory in nature.” Id. 

7 We make no forecast on the merits of Carmona’s claims based on unpaid bonuses. 

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