MEMORANDUM OPINION AND ORDER Page 1 of 43

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARIC A BURNS,

Plaintiff, 

v. 

INTERMODAL CARTAGE COMPANY et 

al., 

Defendants. 

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§ 

§ 

§ 

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§ 

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Civil Action No. 3:22-CV-00979-E 

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants Intermodal Cartage Company, LLC (IMCG) and Aaron 

Stokely’s Motion for Summary Judgment, which seeks dismissal of all of Plaintiff Aric Burns’s 

claims. (ECF No. 37). Burns has further moved for leave to strike an appendix attached to 

Defendants’ reply brief. (ECF No. 55). Having carefully considered the motions; the Parties’ 

briefing; appendices; and the applicable law, for reasons that follow, the Court GRANTS 

Defendants’ Motion for Summary Judgment. (ECF No. 37). The Court GRANTS Burns’s motion 

for leave and DENIES Burns’s Motion to Strike as moot. (ECF No. 55). 

I. BACKGROUND

A. Intermodal Cartage Company, Burns, Florence, and Stokely

Intermodal Cartage Company (IMCG) is a marine drayage company—“a trucking 

company that hauls containers.” (ECF No. 39 at 50). IMCG had a facility in the Dallas-Fort-Worth 

(DFW) region referred to as the Haslet Depot. (ECF No. 39 at 50-51, 66). During the pertinent 

period, Harrison Hoof served as IMCG’s Senior Vice President. (ECF No. 39 at 22-23, 49, 66). 

Hoof oversaw the DFW region including the Haslet Depot, and Hoof worked from Wilmer, Texas. 

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(ECF No. 39 at 22-23, 49, 66-67). Stokely managed the Haslet Depot as the Haslet Operations 

Manager—overseeing day-to-day functions for the Haslet Depot. (ECF No. 39 at 71). Christopher 

Florence supervised Haslet Depot employees who operated cranes and other heavy machinery used 

to move freight containers from May 2017 to April 27, 2020. (ECF No. 39 at 6, 66).

Burns worked at the Haslet Depot as an equipment operator from 2005 to August 17, 2017,

and from November 27, 2018, to June 2, 2020. (ECF No. 39 at 77, 83, 87-88, 125). Florence 

supervised Burns. (ECF No. 39 at 102). Florence and Burns were in a same-sex romantic 

relationship during Burns’s employment at IMCG. (ECF No. 39 at 84-85, 102-03). Prior to 2020, 

Florence and Burns did not discuss their relationship with other IMCG employees and did not

otherwise indicate their sexual orientation. (ECF No. 39 at 54-55, 66-67, 73, 85-86). Stokely did 

not state or take action to indicate he was aware that Burns was in a same-sex relationship. (ECF 

No. 39 at 86). Hoof did not learn of Burns’s same-sex relationship with Florence until March 2020, 

when Florence informed Hoof of the relationship. (ECF No. 39 at 66).

Regarding the relationship between Florence and Burns and Hoof’s knowledge, thereof, 

Burns testified it was his relationship with a supervisor, and not Burns’s sexual orientation, that 

motivated Hoof’s decision to discharge Burns. (ECF No. 39 at 101-02).

B. Stokely’s Sexual Harassment of Burns and 2019 Harassment Investigation

Burns testified that Stokely repeatedly touched Burns on his crotch with his hands 

throughout his employment at IMCG. (ECF No. 49 at 44-48). On October 22, 2019, job applicant 

Christina Powell raised an accusation to IMCG Human Resources (HR) that Stokely had 

“interacted via text messages in an inappropriate and unprofessional manner for the applicant.” 

(ECF No. 39 at 9-10). HR manager Angeles Galera investigated the allegation—ending the 

investigation with a final warning on November 14, 2019. (ECF No. 39 at 38-41; ECF No. 48 at 

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10; ECF No. 49 at 68). Burns testified that after this report and investigation in November 2019, 

Stokely stopped touching Burns’s crotch. (ECF No. 39 at 88-89; ECF No. 49 at 44-48).

C. Burns’s Work Separation

Burns began an extended absence from work beginning April 8, 2020, which Hoof 

understood to be COVID-19 related. (ECF No. 39 at 34-35, 67, 125). Burns presented a doctor’s 

note that indicated a return-to-work date of April 23, 2020. (ECF No. 39 at 34, 125). Galera 

communicated with Burns on his leave. (See, e.g., ECF No. 39 at 34-35). Burns did not return to 

work on April 23, 2020; instead, Galera contacted Burns, who stated (i) he had anxiety related to 

COVID-19; (ii) his roommate (Florence) had a low-grade fever; and (iii) he looked forward to 

returning to work on April 24, 2020. (ECF No. 39 at 34). Burns did not return to work on April 

24, 2020. (ECF No. 39 at 34). Burns texted Stokely a doctor’s note on April 26 and 27, 2020, 

which included a return-to-work date of May 4, 2020. (ECF No. 39 at 34). On April 28, 2020, 

Galera sent Burns a copy of a form Notice of Eligibility and Rights & Responsibilities in 

accordance with the Family Medical Leave Act (FMLA)—referred herein as “FMLA Paperwork.”

(ECF No. 39 at 27-34). Burns had until May 13, 2020, to return his completed FMLA Paperwork. 

(ECF No. 39 at 20, 27, 43).

Burns did not return to work on May 4, 2020. (ECF No. 39 at 34). On May 5, 2020, Burns 

submit another doctor’s note with a return-to-work date of May 11, 2020. (ECF No. 39 at 34). 

Burns did not return to work on May 11, 2020. (ECF No. 39 at 34, 125). Burns did not submit 

completed FMLA Paperwork on May 13, 2020. Instead, on May 13, 2020, Burns submit another 

doctor’s note with a return-to-work date of May 18, 2020. (ECF No. 39 at 34). Burns did not return 

to work on May 18, 2020. (ECF No. 39 at 34, 125). Instead, on May 21, 2020, Burns submit 

another doctor’s note with a return-to-work date of May 25, 2020. (ECF No. 39 at 34). Burns did 

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not return to work on May 25, 2020. (ECF No. 39 at 34, 125). On May 27, 2020, Burns 

communicated to Galera that he was going to a doctor’s appointment on May 28, 2020, and that 

he would update Galera. (ECF No. 39 at 34). On May 28, 2020, Galera asked for an update from 

Burns, but Burns did not respond. (ECF No. 39 at 34). As of June 1, 2020, Burns had not contacted 

Galera or otherwise provided an update relating to his doctor’s appointment. (ECF No. 39 at 34). 

Burns’s last date of work was April 8, 2020. (ECF No. 39 at 34, 67, 125). As of June 2, 

2020, Burns’s last doctor’s note had a return-to-work date of May 25, 2020. (ECF No. 39 at 34). 

Burns did not return to work at any time after April 8, 2020. (ECF No. 39 at 34, 67, 125). From 

May 28, 2020 to June 2, 2020, Burns did not communicate with Galera. (ECF No. 39 at 34-35, 42-

46). On June 3, 2020, Burns emailed Galera that IMCG should receive his completed FMLA 

Paperwork by the end of that day. (ECF No. 39 at 35). But, IMCG received no completed 

paperwork at any time. (ECF No. 39 at 35, 125; ECF No. 49 at 25). 

IMCG discharged Burns on June 4, 2020—stating that Burns:

was advised to provide an update on 5/28/2020 regarding his physician’s visit and 

did not contact Human Resources or management. Mr. Burns did not contact 

anyone on 5/28/2020, 6/1/2020, or 6/2/2020. Three consecutive days of no call, no 

show are [sic] considered job abandonment.

(ECF No. 39 at 125). Only Hoof and Galera were involved in the decision to discharge Burns. 

(ECF No. 39 at 56, 67). Stokely was not involved in the decision to discharge Burns. (ECF No. 

56, 72). Stokely did not learn of Burns’s discharge until after the work separation. (ECF No. 39 at 

72). After Burns’s discharge, another operator at the Haslet Depot—Cecil Shipp—assumed 

Burns’s work duties. (ECF No. 39 at 61-62).

D. Post-Termination Discussion of Return to Work

After the termination, Galera continued to communicate with Burns regarding his FMLA 

leave and concerns regarding Stokely. (ECF No. 39 at 24-25, 42-45). Galera requested Burns to 

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have the FMLA Paperwork emailed. (ECF No. 39 at 121). However, IMCG never received any 

completed FMLA Paperwork from Burns—neither by fax nor by email. (ECF No. 39 at 24-25, 

121). Galera testified that IMCG would have re-hired Burns if he had provided his FMLA 

Paperwork or a doctor’s note:

[Question]: Are you saying that if he had returned a [FMLA] certification that 

certified a need for FMLA leave for . . . May 28th, June 1, and June 

2, then you would have overturned the separation?

[Galera]: Yes. Even – I think even if we would have received a doctor’s note, 

we would have returned – or revisited and overturned the 

termination. We just didn’t hear back from him. And then when we 

did, there wasn’t any back up for the time that he was out.

(ECF No. 39 at 24-25).

E. Procedural History

On October 12, 2020, Burns filed a Employment Discrimination Complaint Form (Charge) 

with the Texas Workforce Commission. (ECF No. 39 at 115-18). The Charge marks that 

discrimination took place in “1/_/2020.” (ECF No. 39 at 116). The Charge marks that Burns 

complained of discrimination on June 9, 2020. (ECF No. 116 at 131). The Charge asserts that 

Burns “began to experience hostility about [his same-sex relationship with Florence] around June 

3, 2020. (ECF No. 39 at 116).

On May 2, 2022, Burns initiated this litigation against IMCG and Stokely. (ECF No. 1). 

As amended, Burns asserts claims against IMCG of (i) sexual harassment-based hostile work 

environment under Title VII; (ii) sexual orientation discrimination under Title VII; (iii) retaliation 

based under Title VII; (iv) interference in violation of the FMLA; and (v) retaliation in violation 

of the FMLA. (ECF No. 40-1 at 3-4). Burns also asserts claims against Stokely of assault and 

battery. (ECF No. 40-1 at 3).

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Defendants’ Motion for Summary Judgment seeks to dismiss all of Burns’s claims. (ECF 

Nos. 38-39). Inter alia, Defendants assert Burns’s claims for hostile work environment based on 

Title VII, assault, and battery are each time-barred due to the applicable statute of limitations. 

Burns has responded. (ECF Nos. 46-47). Defendants have replied, (ECF No. 53), and attached an 

appendix to their reply, (ECF No. 54). Burns has moved for leave to file a motion to strike this 

appendix attached to the reply. (ECF No. 55). Having been fully briefed, these motions are ripe 

for consideration.

II. SUMMARY JUDGMENT LEGAL STANDARD

Summary judgment is appropriate when the pleadings and evidence on file show “there is 

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 

A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return 

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. A court must view all evidence 

and draw all reasonable inferences in the light most favorable to a party opposing a summary 

judgment motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). A court 

“may not make credibility determinations or weigh the evidence” in ruling on the motion. Reeves, 

530 U.S. at 150; Anderson, 477 U.S. at 254-55. Moreover, the evidence the non-movant provides 

must raise “more than . . . some metaphysical doubt as to the material facts.” Matsushita Elec. 

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The evidence must be such that a jury could 

reasonably find in the non-movant’s favor. Anderson, 477 U.S. at 248. If the non-movant is unable 

to make such a showing, the court must grant summary judgment. Little v. Liquid Air Corp., 37 

F.3d 1069, 1075 (5th Cir. 1994).

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The moving party bears the initial burden of showing the court there is no genuine issue 

for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party with the burden of proof on 

an issue “must establish beyond peradventure all of the essential elements of the claim or defense 

to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) 

(emphasis omitted). When, as here, a nonmovant bears the burden of proof, the movant may 

demonstrate it is entitled to summary judgment either by (1) submitting evidence that negates the 

existence of an essential element of the nonmovant’s claim or affirmative defense, or (2) arguing 

there is no evidence to support an essential element of the nonmovant’s claim or affirmative 

defense. Celotex, 477 U.S. at 322–25. There is “no genuine issue as to any material fact [if] a 

complete failure of proof concerning an essential element of the nonmoving party’s case 

necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, because 

Defendants bear the burden of proof on its affirmative defenses at a trial, they “must establish 

‘beyond peradventure all of the essential elements of the . . . defense[s].’” Bank One, Tex., N.A. v. 

Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (quoting Fontenot, 780 F.2d 

at 1194).

Once the movant has made this showing, the burden shifts to the nonmovant to establish 

there is a genuine issue of material fact so that a reasonable jury might return a verdict in its favor. 

Celotex, 477 U.S. at 324. “[C]onclusory allegations, speculation, and unsubstantiated assertions” 

will not satisfy the nonmovant’s burden. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1429 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). A 

court “resolve[s] factual controversies in favor of a nonmoving party . . . only when an actual 

controversy exists, that is, when both parties have submitted evidence of contradictory facts.” 

Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999).

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“A party opposing such a summary judgment motion may not rest upon mere allegations 

contained in the pleadings, but must set forth and support by summary judgment evidence specific 

facts showing the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 

F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255–57). The Fifth Circuit has 

explained:

The party opposing summary judgment is required to identify specific evidence in 

the record and to articulate the precise manner in which that evidence supports his 

or her claim. . . . “Rule 56 does not impose upon the district court a duty to sift 

through the record in search of evidence to support a party’s opposition to summary 

judgment.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n. 7 (5th Cir.), 

cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992).

Ragas, 136 F.3d at 458. Regarding assertions of fact, Federal Rule of Civil Procedure 56 states:

[i]f a party fails ... to properly address another party’s assertion of fact as required 

by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of 

the motion [and] (3) grant summary judgment if the motion and supporting 

materials—including the facts considered undisputed—show that the movant is 

entitled to it[.]

Fed. R. Civ. P. 56(e)(2)-(3).

III. STATUTE OF LIMITATIONS

The Court next addresses Defendants’ asserted affirmative defense of statute of limitations 

as it applies to Burns’s claim for hostile work environment, assault, and battery.

A. Sexual Harassment Hostile Work Environment, EEOC Charge, and Statute of 

Limitations

Texas law requires that a claimant seeking to file for employment-related sexual 

harassment must first file a complaint with the Texas Workforce Commission (TWC) within 300 

days of the unlawful employment practice. Tex. Labor Code Ann. § 21.202(a-1). “This deadline 

is mandatory and jurisdictional.” Barr v. Stripes L.L.C., No. 21-20278, 2022 WL 1044695, at *4 

(5th Cir. Apr. 7, 2022) (discussing a claim of employment discrimination) (internal quotation 

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omitted). The Parties agree that 300 days is the controlling period of time for Burns to have filed 

a complaint of sexual harassment with the TWC.1

Defendants challenge that Burns did not timely file his Charge as to his sexual harassmenthostile work environment claim—asserting that the last incident of such harassment occurred in 

November 2019, at the latest. In response, Burns asserts the last instance of touching occurred in 

March 2020. Counting backward from the Charge’s date of October 12, 2020, sexual harassment 

actionable under Texas law had to have occurred on or after December 17, 2019. Thus, the date of 

the final incident of sexual harassment is determinative on whether Burns’s sexual harassment 

hostile work environment is barred on summary judgment by the 300-day statute of limitation.

During Burns’s deposition, he testified:

[Question]: Do you contend that you were harassed during that timeframe at 

work, from November 18 to, let’s say, March 2020?

[Burns]: I can give you the dates of after Christina Powell, [Stokely] no 

longer messed with me, and he no longer talked with any of us 

because, quote, “he didn’t trust one mf-er down there because 

we had to report to HR everything that we knew.” And a lot of 

the guys were very upset because they felt like it was – we were 

going to get fired, and it was like a defamation of character, and 

just that case.

(ECF No. 39 at 88) (emphasis added in bold). Burns continued:

1 As filed, Burns’s Charge was submitted to the TWC’s Civil Rights Division. (ECF No. 39 at 115). The 

TWC has a worksharing agreement with the EEOC, which makes each agency “the other[‘s] ... agent for 

the purpose of receiving and drafting charges.” See Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 

2000). Based on this worksharing agreement “and the desire to avoid duplication of efforts, courts consider 

the filing of a charge with the TWC as satisfying both the state and federal administrative exhaustion 

requirements.” Venters v. Walgreen Co., No. CV H-20-2272, 2022 WL 1290910, at *4 (S.D. Tex. Apr. 29, 

2022) (citing Vielma, 218 F.3d at 462). “Once the TWC receive[s a] complaint, proceedings [are] deemed 

instituted within the meaning of § 2000-5(e)(1).” Williams v. City of Port Arthur, No. 

120CV00527MJTZJH, 2022 WL 1183293, at *2 (E.D. Tex. Feb. 25, 2022) (citing Griffin v. City of Dallas, 

26 F.3d 610 at 613 (5th Cir. 1994)), report and recommendation adopted, No. 1:20-CV-00527, 2022 WL 

866407 (E.D. Tex. Mar. 23, 2022); see also Whitley v. Dr Pepper Snapple Grp., Inc., No. 4:16-CV-00362, 

2016 WL 7326625, at *4 (E.D. Tex. Dec. 16, 2016) (finding that initial charge filed with the TWC Civil 

Rights Division was also considered to have been filed with the EEOC); Cook v. Lee Coll., 798 F. Supp. 

417, 421–22 (S.D. Tex. 1992) (“charges filed with the TCHR during the effective period of the worksharing 

agreement are deemed received by the EEOC for purposes of timeliness”).

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[Question]: “Aaron Stokely repeatedly grabbed my private parts.”

[Burns]: Correct.

[Question]: Okay. When do you contend that happened?

[Burns]: As I said before, I mean, I’ve answered it many times. Throughout 

-- throughout my -- you know, my time working there.

[Question]: So what – what do you contend? What . . . do you mean by 

“grabbed” at this point? [. . .]

[Burns] . . . The key thing, and him poking the private part, and then acting 

like you’re going to hit somebody in the crotch, and then just barely, 

you know, grabbing it like, and yeah. And that was – as I said before, 

sometimes weekly a couple of times. Sometimes it was biweekly. 

Sometimes it was monthly. It happened throughout my career, up 

until 2017, when I left . . . [a]nd after, for the time up until 

Christina Powell. And that’s whenever he cut all ties with 

everybody and didn’t talk to no one.

. . . .

[. . .] in baseball we call it a “cup check.” . . . So it was like a cup 

check that turns around. It’s not a cup check, by all means.

[Question] And your testimony is that [the harassment] happened at some 

point until the Christina Powell incident?

[Burns]: That’s exactly right.

[Question]: And then that ceased after Christina Powell?

[Burns]: Completely ceased. As I said, he was very distant. And one day 

when I was talking to him he said he doesn’t “trust any mf-ers down 

there.” And I felt like the retaliation was going to begin for us 

testifying – or talking to HR, which, honestly, we didn’t have a 

choice. 

(ECF No. 49 at 46-48) (emphasis added in bold). Burns further testified:

[Question]: I understand in your testimony earlier . . . is that after you – after 

the Christina Powell investigation then you – all behavior from 

Mr. Stokely to you – physical behavior –

[Burns]: Um-hmm.

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[Question]: – whatever, ceased.

[Burns]: Yeah. It was quite nice. He stopped coming downstairs. He 

stopped – he stopped coming out to the shop and hanging out 

with the guys, and he told me exactly the reason why, as I stated 

before.

(ECF No. 39 at 90) (emphasis added in bold). The Powell Investigation ended on November 14, 

2019. (ECF No. 49 at 68). The record contains an employee counseling notice about Stokely that 

relates to sexual harassment; the notice explains “any other incidents of this nature will result in 

termination” and includes a handwritten statement from Stokely on the notice that such conduct 

“will never happen again.” (ECF No. 48 at 10). Evidence in the record shows that Stokely stopped 

touching Burns’s crotch on or about November 14, 2019.

Burns directs the Court to a later portion of Burns’s deposition, which contains the 

following exchange:

[Question]: When do you believe was the last time that [Stokely] subjected you 

to an unwanted touching in your crotch area?

[Burns]: Before I was terminated was the last time that I can remember. 

March.

[Question]: Of 2020?

[Burns]: 2020.

(ECF No. 39 at 108). Burns asserts that this testimony regarding the last incident of Stokely’s 

“unwanted touching”—whether it occurred in November 2019 or March 2020—precludes 

summary judgment on this statute of limitations defense. (ECF No. 47 at 20-21).2 The Court 

disagrees.

2 Burns directs the Court to no other summary judgment evidence that Stokely’s final touching of Burns 

occurred in March 2020.

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 “First, it has long been the rule that ‘a party [may not] defeat a motion for summary 

judgment using an affidavit that impeaches, without explanation, sworn testimony.’” Lindsey v. 

Bio-Med. Applications of Louisiana, L.L.C., 9 F.4th 317, 324 (5th Cir. 2021) (quoting S.W.S. 

Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). Such an affidavit that impeaches, 

without explanation, sworn testimony is colloquially referred as a “sham affidavit.” See Hacienda 

Records, L.P. v. Ramos, 718 Fed. Appx. 223, 235 (5th Cir. 2018) (discussing the same). The Fifth 

Circuit has explained: 

In considering the summary-judgment record, and although the court may not 

weigh the evidence or make credibility determinations, it must, of course, decide 

what evidence may be considered. E.g., Christophersen v. Allied–Signal Corp., 939 

F.2d 1106, 1109 (5th Cir. 1991) (“we review the trial court’s evidentiary rulings, 

which define the summary judgment record, and we give these rulings their due 

deference”), abrogated on other grounds by Daubert v. Merrell Dow Pharm., Inc., 

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court’s evidentiary 

rulings regarding the competency of evidence are reviewed for abuse of discretion. 

E.g., Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1329 (5th Cir. 1996); see also 

Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2012) (“a district court’s decision 

whether to apply the sham affidavit rule should be reviewed for abuse of 

discretion”).

 . . . . 

[The sham affidavit] rule provides a “party may not manufacture a dispute of fact 

merely to defeat a motion for summary judgment”. Doe ex rel. Doe v. Dallas Indep. 

Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000). This is because, if “a party who has 

been examined at length on deposition could raise an issue of fact simply by 

submitting an affidavit contradicting his own prior testimony”, “the utility of 

summary judgment as a procedure for screening out sham isues of fact” would be 

greatly diminished. Id. (quoting Perma Research & Dev. Co. v. Singer Co., 410 

F.2d 572, 578 (2d Cir. 1969)). 

. . . . 

Ramos’ suggestion that only an affidavit that comes after testimony can be a sham 

is misguided. It is the competency, rather than timing, of evidence with which the 

sham-affidavit rule is concerned. As the third circuit explained, “no principle [ ] 

cabins sham affidavits to a particular sequence.... Indeed, cross-examining the 

affiant in a later deposition seems the better way to find the flaws in a bogus 

affidavit”. In re CitX Corp., Inc., 448 F.3d 672, 679–81 (3d Cir. 2006). Therefore, 

so long as inconsistent statements were “made by [Ramos] the deponent and 

[Ramos] the affiant”, the court may refuse to consider his declaration as 

competent evidence. E.g., Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43–44 

(2d Cir. 2000). 

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Hacienda Records, L.P. v. Ramos, 718 Fed. Appx. 223, 234–35 (5th Cir. 2018) (emphasis added 

in bold italics). The Sixth Circuit—collecting cases from other Circuits—has extended this concept 

to a party’s “internally contradictory deposition testimony” in regard to summary judgment:

Courts have repeatedly held that a plaintiff’s internally contradictory deposition 

testimony cannot, by itself, create a genuine dispute of material fact. See, e.g., Pina 

v. Children’s Place, 740 F.3d 785, 799 (1st Cir. 2014) (holding that summary 

judgment was appropriate where plaintiff’s admissions in deposition undermined 

her claims); Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) 

(affirming summary judgment where plaintiff’s deposition testimony was “replete 

with inconsistencies” (citation omitted)); United States v. 1980 Red Ferrari, 827 

F.2d 477, 480 n.3 (9th Cir. 1987) (affirming summary judgment where only 

evidence was plaintiff’s “incredible and contradictory” deposition testimony); 

Hayes v. Norfolk S. Corp., 25 Fed. Appx. 308, 314 (6th Cir. 2001) (holding that 

appellant’s “contradictory” and “confused” testimony was insufficient to create fact 

issue). Although the non-moving party is entitled to all reasonable inferences 

when evaluating a summary judgment motion, when a plaintiff’s claims are only 

supported by his “own contradictory and incomplete testimony . . . no reasonable 

person would undertake the suspension of disbelief necessary to credit the 

allegations made in his complaint.” Jeffreys, 426 F.3d at 555 (citation and 

alteration omitted).

Bush v. Compass Group USA, Inc., 683 Fed. Appx. 440, 449 (6th Cir. 2017) (emphasis added in 

bold italics).

The Court agrees with the reasoning from the Sixth Circuit. See Bush, 683 Fed. Appx. at 

449. Here, Burns’s latter testimony that Stokely subjected him to “unwanted touching” on his 

crotch in March 2020, is unspecific, conclusory, and does not satisfy his burden on summary 

judgment. See Douglass, 79 F.3d at 1429; Ragas, 136 F.3d at 458. Viewing all evidence and

drawing all reasonable inferences in the light most favorable to Burns, it is not reasonable to infer 

the final incident of Stokely sexually harassing Burns occurred in March 2020. See Reeves, 530 

U.S. at 150. The evidence that an “unwanted touching” occurred in March 2020 is not such that a 

reasonable jury could find in Burns’s favor on his claim of sexual harassment hostile work 

environment.

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Burns nevertheless makes an argument that his testimony was not inconsistent because he 

discussed the Powell investigation by email on June 9, 2020—that (i) his assertions about the 

Powell Investigation related to the June 9, 2020, timeframe and (ii) Stokely did not sexually harass 

him after June 9, 2020. (ECF No. 47 at 33). However, the record does not support such an inference 

as—discussed above—Burns was already fired on June 9, 2020 and had not been at work since

April 8, 2020. (ECF No. 39 at 34, 67, 125). The record does not support that Burns would have 

knowledge—(i) that Stokely stopped coming out to the shop and hanging out with the workers or

(ii) that the employees feared retaliation by getting fired for discussing Powell with HR—after 

Burns stopped working at IMCG. (ECF No. 39 at 88, 90).

Apart from the statement during Burns’s deposition discussed above, Burns directs the 

Court to no other competent summary judgment evidence that Stokely subjected Burns to sexual 

harassment in March 2020.3 See Douglass, 79 F.3d at 1429; Ragas, 136 F.3d at 458. The Court 

must conclude that—based on the competent summary judgment record—the final incident of 

Stokely touching Burns occurred on November 14, 2019. (ECF No. 39 at 38-41; ECF No. 48 at 

10; ECF No. 49 at 68). Burns filed his Charge on October 12, 2020—328 days after the final 

incident of Stokely touching Burns. (ECF No. 39 at 117). Thus, Burns failed to file his Charge of 

sexual harassment within 300 days of the unlawful employment practice. Tex. Labor Code 

§ 21.202(a-1). The Court must conclude Defendants have established the corresponding statute of 

limitations affirmative defense beyond peradventure. Fontenot, 780 F.2d at 1194. The Court 

3 The Parties refer the Court to Burns’s handwritten notes made during his deposition, but no Party briefs 

how or why such notes would constitute competent summary judgment evidence. The Court has found no 

law to support that such notes made during a deposition constitute competent summary judgment evidence, 

so the Court has disregarded such evidence. See generally Douglass v. United Servs. Auto. Ass’n, 79 F.3d 

1415, 1429 (5th Cir. 1996) (discussing not competent summary judgment evidence).

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GRANTS Defendants’ Motion for Summary Judgment as to Burns’s claim of sexual harassment 

hostile work environment as barred by statute of limitations. 

B. Assault and Battery Claims, Statute of Limitations, COVID-19 Emergency Order(s) 

Under Texas law, there is a two-year statute of limitations period for bringing personal 

injury claims—including those for assault and for battery. Tex. Civ. Prac. & Rem. Code Ann. 

§ 16.003(a) (“a person must bring suit for . . . personal injury . . . not later than two years after the 

day the cause of action accrues.”); see, e.g., Andrade v. Teichroeb, 341 F. Supp. 3d 681, 687 (N.D. 

Tex. 2018) (applying two-year statute of limitation to an assault claim); Waffle House, Inc. v. 

Williams, 313 S.W.3d 796, 805 (Tex. 2010) ([T]he general statute of limitations applicable to 

personal-injury actions requires that suit be brought not later than two years after the day the cause 

of action accrues.) (internal quotation omitted).

4

 “Generally, accrual occurs on the date ‘the 

plaintiff first becomes entitled to sue the defendant based upon a legal wrong attributed to the 

latter’, even if the plaintiff is unaware of the injury.” Vaught v. Showa Denko K.K., 107 F.3d 1137, 

1140 (5th Cir. 1997) (quoting Zidell v. Bird, 692 S.W.2d 550, 554 (Tex. Ct. App. 1985)). As 

briefed, neither Party challenges the application of the two-year statute of limitations.

Defendants challenge that Burns did not timely file his assault and battery claim(s) because 

his lawsuit was filed in excess of two years after the final incident of Stokely touching Burns. (ECF 

No. 38 at 15-17). Relying on Polly v. Houston Lighting & Power Co., Defendants assert Burns’s 

claims for assault and battery are foreclosed because—as in Polly—Burns waited two years and 

five months after the alleged assault and battery occurred to file his suit. 803 F. Supp. 1, 7 (S.D. 

Tex. 1992), report and recommendation adopted in part, 825 F. Supp. 135 (S.D. Tex. 1993)

4

 “[I]n the civil context, Texas caselaw uses the terms ‘assault,’ ‘battery,’ and ‘assault and battery’ 

interchangeably, and we intend no distinctions among these terms.” Waffle House, Inc. v. Williams, 313 

S.W.3d 796, 801 n.4 (Tex. 2010).

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(“Polly chose to wait until . . . five months beyond the two-year statute of limitations, to file this 

action. Accordingly, Polly’s charges of assault, battery, and intentional infliction of emotional 

distress against Wallace, Ubernosky, Powell, and Buchman are time-barred.”).

In response, Burns directs the Court to the Texas Supreme Court’s Eighth Emergency 

Order Regarding COVID-19 State of Disaster (Eighth Emergency Order)—specifically briefing:

The Texas Supreme Court tolled the statute of limitations for state law claims for 

70 days due to COVID pandemic: “Any deadline for the filing or service of any 

civil case is tolled from March 13, 2020[.]” Eighth Emergency Ord. Regarding 

COVID-19 State of Disaster, 597 S.W.3d 844 (Tex. 2020).

Thus, even assuming the last time Defendant Stokely subjected Burns to an 

unwanted touching in the crotch area was March 1, 2020, the statute of limitations 

would run on May 10, 2022. Because Burns filed suit May 2, 2022, his assault claim 

is not barred by limitations.

(ECF No. 447 at 23). Burns conflates a statute of limitation—a deadline to file or serve a case—

with the accrual date for an injury—the date a plaintiff first becomes entitled to sue. Compare Tex. 

Civ. Prac. & Rem. § 16.003(a) (denoting the two-year deadline to file personal injury claim), with 

Vaught, 107 F.3d at 1140 (explaining that the date of accrual for an injury occurs when the plaintiff 

first becomes entitled to sue). Burns argues that the Eighth Emergency Order added 70 days to 

claims accrued in March 2020. (ECF No. 447 at 23). But, the Eighth Emergency Order contains 

no such language.

Any deadline for the filing or service of any civil case is tolled from March 13, 

2020, until June 1, 2020, unless extended by the Chief Justice of the Supreme 

Court. This does not include deadlines for perfecting appeal or for other appellate 

proceedings, requests for relief from which should be directed to the court involved 

and should be generously granted.

Eighth Emergency Order Regarding COVID-19 State of Disaster, 597 S.W.3d 844 (Tex. 2020)

(emphasis added in bold italics). The Eighth Emergency Order only tolled the statute of limitation

of claims “from March 13, 2020, until June 1, 2020”; the order contains no language or application 

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as to the accrual date of any injury. See Eighth Emergency Order Regarding COVID-19 State of 

Disaster, 597 S.W.3d 844 (Tex. 2020). The Eighth Emergency Order has no statute of limitation 

tolling effect on filings made in May of 2022, when Burns initiated this suit. See Eighth Emergency 

Order Regarding COVID-19 State of Disaster, 597 S.W.3d at 844-45.

Here, Burns filed his initial Complaint on May 2, 2022. (ECF No. 1). Applying the twoyear statute of limitation, the alleged assault and battery had to have occurred within the two 

preceding years—on or after May 2, 2020. As discussed hereabove, the last incident of Stokely 

touching Burns occurred in November 2019—over two years before May 2, 2022. Assuming 

arguendo that Stokely’s final touching occurred sometime in March 2020—that accrual date 

would still be over two years before May 2, 2022. It is further undisputed that Burns stopped 

appearing for work at IMCG on April 8, 2020, so Burns and Stokely could not have been in the 

physical presence of one another in May 2022 such that physical sexual harassment could occur.

The record and initial pleading show that Burns failed to bring his suit for assault and 

battery within the applicable two-year statute of limitation. Defendants have established the 

corresponding the statute of limitations affirmative defense beyond peradventure. Fontenot, 780 

F.2d at 1194. The Court GRANTS Defendants’ Motion for Summary Judgment as to Burns’s 

claims for assault and battery.

IV. EMPLOYMENT CLAIMS

The Court next addresses the prima facie elements of Burns’s claims asserted under the 

FMLA and Title VII.

A. Analytical Frameworks

Because Burns’s claims allege discrimination, retaliation, or FMLA interference, the Court 

provides the following burden-shifting framework analyses, which are common to these claims. 

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See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Wallace v. Texas Tech Univ., 80 

F.3d 1042, 1047 (5th Cir. 1996) (“To succeed on a claim of intentional discrimination under Title 

VII, Section 1983, or Section 1981, a plaintiff must first prove a prima facie case of 

discrimination.”) (collecting cases); E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) 

(addressing ADA discrimination claim under burden-shifting framework); Mauder v. Metro. 

Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 583 (5th Cir. 2006) (addressing FMLA 

retaliation under burden-shifting framework).

i. Employment Discrimination

“A plaintiff can prove a claim of intentional discrimination by either direct or 

circumstantial evidence.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); 

see, e.g., Gaalla v. Brown, 460 F. App’x 469, 479 (5th Cir. 2012) (addressing racial 

discrimination). Regarding direct evidence, the Fifth Circuit has explained:

Direct evidence [of discriminatory intent] is evidence which, if believed, proves the 

fact without inference or presumption.... It includes any statement or document 

which shows on its face that an improper criterion served as a basis—not 

necessarily the sole basis, but a basis—for the adverse employment action.

Gaalla, 460 F. App’x at 479 (internal quotations omitted). “Absent direct evidence of 

discriminatory intent, as is typically the case, proof via circumstantial evidence is assembled using 

the framework set forth in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Russell, 235 F.3d at 222. “If an inference is required for 

the evidence to be probative as to [a defendant’s] discriminatory animus in firing [plaintiff], the 

evidence is circumstantial, not direct.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896-98 

(5th Cir. 2002), cert. denied, 539 U.S. 926 (2003). The Fifth Circuit has explained the three-step 

McDonnell Douglas framework as follows:

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Under that framework, [a plaintiff] must make out a prima facie case of 

discrimination. Watkins v. Tregre, 997 F.3d 275, 281 (5th Cir. 2021). If she 

succeeds, [a defending employer] must respond with a “legitimate, 

nondiscriminatory reason” for terminating [the plaintiff]. Id. at 282. Then the 

burden shifts back to [the plaintiff], who must counter with substantial evidence 

that [the defending employer’s] proffered reason is pretextual. Id.

Owens v. Circassia Pharms., Inc., 33 F.4th 814, 825 (5th Cir. 2022). The second step of the 

McDonnell Douglas framework requires an employer’s production of a legitimate, 

nondiscriminatory reason for terminating a plaintiff, but this second step “can involve no 

credibility assessment.” Reeves, 530 U.S. 133, 142 (citing St. Mary’s Honor Center v. Hicks, 509 

U.S. 502, 509 (1993)).5 Regarding the third step of the McDonnell Douglas framework, “the 

plaintiff can rely on evidence that the employer’s reasons were a pretext for unlawful 

discrimination.” Russell, 235 F.3d at 222 (citing McDonnell Douglas, 411 U.S. at 804).

ii. Employment Retaliation

“A plaintiff may prove a retaliation claim through direct or circumstantial evidence.” Jones 

v. Overnite Transp. Co., 212 F. App’x 268, 275 (5th Cir. 2006). “Without direct evidence, the 

plaintiff must establish his cause of action using circumstantial evidence and the McDonnell 

Douglas burden-shifting framework,” discussed above. Jones, 212 F. App’x at 275. “If the plaintiff 

establishes a prima facie case, then the defendant must show a non-retaliatory, legitimate reason 

for the adverse action.” Again, this second step of the McDonnell Douglas framework requires an 

employer to produce evidence of a non-retaliatory, legitimate reason for the adverse action—but 

requires no burden of persuasion. See Jones, 212 F. App’x at 275; Gee v. Principi, 289 F.3d 342, 

348 (5th Cir. 2002) (“We agree that [t]he ultimate burden of persuading the trier of fact that the 

5 Although intermediate evidentiary burdens shift back and forth under this framework, “[t]he ultimate 

burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff 

remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000) 

(quoting Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)).

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defendant [retaliated] against the plaintiff remains at all times with the plaintiff.”) (internal 

quotation omitted). “Once the defendant meets this burden, the plaintiff must in turn offer evidence 

to create a genuine issue of material fact that the defendant’s reason is not true, but is instead a 

pretext for discrimination.” Jones, 212 F. App’x at 275; see, e.g., Gee, 289 F.3d at 345 (discussing 

the same).

iii. FMLA Interference

Similar to claims of discrimination and retaliation, a plaintiff must establish a prima facie 

case of FMLA interference. Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017). Once the 

plaintiff states a prima facie claim, it is the employer’s burden on summary judgment to articulate 

“a legitimate non-discriminatory reason for the employment action at issue,” which then may be 

rebutted if “the plaintiff raise[s] an issue of material fact that the employer’s proffered reason was 

pretextual.” Caldwell, 850 F.3d at 245; see, e.g., Hester v. Bell-Textron, Inc., 11 F.4th 301, 306 

(5th Cir. 2021) (discussing the same on an FMLA job reinstatement interference claim).6

B. Title VII Claims

Burns asserts three claims under Title VII: (i) discrimination based on sexual orientation; 

(ii) retaliation based on Burns’s complaint of sexual harassment; and (iii) hostile work environment 

based on sexual harassment. Burns asserts no direct evidence on any of these claims. Thus, the 

Court next addresses each claim under the three-step McDonnell Douglas framework.

i. Discrimination Based on Sexual Orientation

Under Title VII, “it shall be an unlawful employment practice for an employer--to 

discharge any individual, or otherwise to discriminate against any individual with respect to his 

6 See also Tatum v. S. Co. Services, Inc., 930 F.3d 709, 713 (5th Cir. 2019) (“Once an employee propounds 

a prima facie case of interference or retaliation, []the burden shifts to the employer to articulate a legitimate, 

nondiscriminatory reason for the adverse employment action.[]”) (internal quotation omitted).

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compensation, terms, conditions, or privileges of employment, because of such individual’s race, 

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). In other 

words, “an employer who intentionally treats a person worse because of sex—such as by firing the 

person for actions or attributes it would tolerate in an individual of another sex—discriminates 

against that person in violation of Title VII.” Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 

658 (2020). “It doesn’t matter if other factors besides the plaintiff’s sex contributed to the 

decision.” Bostock, 590 U.S. at 659. “[I]f changing the employee’s sex would have yielded a 

different choice by the employer—a statutory violation has occurred.” Bostock, 590 U.S. at 659-

60. “Title VII protects every American, regardless of sexual orientation or transgender status. It 

simply requires proof of sex discrimination.” Olivarez v. T-mobile USA, Inc., No. 20-20463, 2021 

WL 1945680 (5th Cir. May 14, 2021) (internal quotation omitted).

Absent direct evidence of sex-based discrimination, Burns must make a prima facie

showing under the McDonnell Douglas framework that

(1) [he] is a member of a protected class; (2) [he] was qualified for the position [he]

sought; (3) [he] suffered an adverse employment action; and (4) others similarly 

situated but outside the protected class were treated more favorably.

Saketkoo v. Administrators of Tulane Educ. Fund, 31 F.4th 990, 997–98 (5th Cir. 2022) (emphasis 

added in bold); see, e.g., Newbury v. City of Windcrest, Texas, 991 F.3d 672, 679 (5th Cir. 2021) 

(discussing sex discrimination claim under Title VII); Wittmer v. Phillips 66 Co., 915 F.3d 328, 

332 (5th Cir. 2019) (discussing sex discrimination under Title VII). “To satisfy the “similarly 

situated” prong, the employee carries out a comparator analysis[;] . . . [u]nder this analysis, the 

employee must establish that [he] was treated less favorably than a similarly situated employee 

outside of [his] protected class in nearly identical circumstances.” Saketkoo, 31 F.4th at 998

(internal citation omitted, footnote omitted). As briefed, the Parties do not dispute (i) that Burns 

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was a member of a protected class—a homosexual man; (ii) that Burns was qualified for his 

position; or (iii) that Burns suffered an adverse employment action—discharge.

Defendants challenge that Burns cannot show that he was treated less favorably than 

“others who were deemed to have abandoned their jobs by failing to report to work or otherwise 

call in for three consecutive days.” (ECF No. 38 at 26). Burns’s briefing in response to his claim 

of sex discrimination is scant—providing no legal argument or citation to the record regarding this 

fourth element of his prima facie case. (ECF No. 47 at 25).7 There is no evidence in the record of 

an other similarly situated employee who was outside of Burns’s protected class who was treated 

more favorably. Thus, Burns has failed to make a prima facie showing for his sex discrimination 

claim. Saketkoo, 31 F.4th at 998.

The Parties both refer the Court to cases that discuss discrimination that each use a 

disjunctive fourth element for a prima facie case: that the plaintiff “was replaced by someone 

outside the protected class, or that other similarly situated persons were treated more favorably.” 

Septimus v. University of Houston, 399 F.3d 601, 609 (5th Cir. 2005); Rachid v. Jack In The Box, 

Inc., 376 F.3d 305, 309 (5th Cir. 2004). However, the Court declines the application of this 

disjunctive fourth element as neither of those cases concern a claim for sex discrimination based 

on discharge and Title VII. See Septimus, 399 F.3d at 609 (discussing gender-based discrimination 

relating to denial of promotion); Rachid, 376 F.3d at 309 (discussing discrimination under the Age 

Discrimination in Employment Act (ADEA)).

7 The entirety of Burns’s briefing as to his sex discrimination prima facie case is as follows:

Each of these factors is met by the evidence in this case. Burns was discharged, he was 

regarded as a very good employee, he was gay and he was replaced by an employee who 

was not gay.

(ECF No. 47 at 25).

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Nevertheless—assuming arguendo the Court applied this disjunctive fourth element for a 

sex discrimination case, thereby addressing whether Burns was replaced by someone outside the 

protected class—the Court would reach the same result. “[A]n employee ‘has not been ‘replaced’ 

. . . when his former duties are distributed among other co-workers.’” Griffin v. Kennard Indep. 

Sch. Dist., 567 Fed. Appx. 293, 294–95 (5th Cir. 2014) (unpublished) (quoting Rexses v. Goodyear 

Tire & Rubber Co., 401 Fed. Appx. 866, 868 (5th Cir.2010) (unpublished)) (citing Dulin v. Dover 

Elevator Co., 139 F.3d 898, 1998 WL 127729, at *3 (5th Cir.1998) (unpublished); Barnes v. 

GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.1990)). “[W]hen an employee’s position has been 

eliminated and the job duties reassigned to existing employees, that employee has not been 

replaced.” Dulin v. Dover Elevator Co., 139 F.3d 898 (5th Cir. 1998) (citing Smith v. F.W. Morse 

& Co., 76 F.3d 413, 423 (1st Cir.1996); Barnes, 896 F.2d at 1465). Here, the record shows another 

operator who was already working at IMCG assumed Burns’s work duties. (ECF No. 39 at 61-62).

No evidence in the record shows Burns was otherwise “replaced,” and Burns offers no argument 

or citation to the record as to this element. (ECF No. 47 at 25). Thus, the record is devoid of 

evidence that Burns was “replaced.”

The Court concludes Burns has failed to make a prima facie showing of his sex 

discrimination claim based on Title VII. The Court GRANTS Defendants’ Motion for Summary 

Judgment as to Burns’s claim of sex discrimination based on Title VII.

ii. Retaliation for Complaining of Sexual Harassment

As pleaded and briefed, Burns’s theory of retaliation is based on the adverse employment 

action of his discharge. To establish a prima facie case of retaliation, a Plaintiff must show the 

following:

1) [he] engaged in a protected activity; 2) [he] suffered an adverse employment 

action; and 3) there is a causal connection between the two.

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Owens, 33 F.4th at 835 (emphasis added in bold) (addressing a retaliation claim under Title VII 

and 42 U.S.C. § 1981). “‘An employee has engaged in protected activity when she has (1) ‘opposed 

any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, 

assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title 

VII.’” Thompson v. Somervell Cnty., Tex., 431 F. App’x 338, 341 (5th Cir. 2011) (quoting Douglas 

v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998) (internal citations 

omitted)). “Adverse employment decisions are ultimate employment decisions such as hiring, 

granting leave, discharging, promoting, ... compensating, or demoting. Thompson v. Microsoft 

Corp., 2 F.4th 460, 470 (5th Cir. 2021) (internal quotation omitted).

“A ‘causal link’ is established when the evidence demonstrates that ‘the employer’s 

decision to terminate was based in part on knowledge of the employee’s protected activity.’” 

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. Am. Airlines, 

Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). Thus, an employer cannot retaliate against an employee 

if the employer’s decisionmaker for the adverse employment decision did not know that the 

employee had engaged in protected activity at the time of the alleged retaliatory actions. Watts v. 

Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999) (concluding employer could not have retaliated 

against employee because the employer’s decisionmaker did not now of employee’s alleged 

protected activity); see also Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 n.6 (5th Cir. 

2003) (“If the decisionmakers were completely unaware of the plaintiff’s protected activity, then 

it could not be said (even as an initial matter) that the decisionmakers might have been retaliating 

against the plaintiff for having engaged in that activity.”). “[T]he mere fact that some adverse 

action is taken after an employee engages in some protected activity will not always be enough for 

a prima facie case.” Owens, 33 F.4th at 835 (quoting Swanson v. GSA, 110 F.3d 1180, 1188 n.3 

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(5th Cir. 1997)). “To establish causality, the protected activity and the adverse action must have 

‘very close’ temporal proximity, and ‘a five month lapse is not close enough . . . to establish the 

causal connection element of a prima facie case of retaliation.’” Newbury, 991 F.3d at 679 (quoting 

Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020)).

As briefed, Burns asserts his complaint of sexual harassment to Galera sometime in May 

of 2020 constituted protected activity. It is undisputed that Burns suffered an adverse employment 

action—his discharge. Defendants contest whether there is evidence of a causal link between 

Burns’s complaint of sexual harassment and his discharge. (ECF No. 38 at 30-34). Burns’s briefing 

directs the Court to no evidence as to his prima facie showing for a retaliation claim. (ECF No. 47 

at 25-26).

Here, the record shows that only Hoof and Galera were involved in the decision to 

discharge Burns. (ECF No. 39 at 56, 67). The record contains evidence that Burns complained of 

Stokely’s sexual harassment to Galera sometime in May 2020—after Burns was on leave from 

work since April 8, 2020. (ECF No. 39 at 34-35; ECF No. 49 at 136-37). Although Burns avers 

that Hoof knew of Burns’s sexual harassment complaint, Burns directs the Court to no 

corresponding evidence, and the Court has found none. (ECF No. 47 at 26). Instead, the record 

shows Hoof had no knowledge of such a complaint from Burns:

[Question]: Okay. In mid-May -- around mid-May, did Angeles Galera ever 

communicate with you and inform you that Aric Burns had raised 

an issue of sexual harassment with her regarding Aaron Stokley?

[Hoof]: No.

[Question]: Did Christopher Florence ever raise with you the issue of Aaron 

Stokley sexually harassing Aric Burns? 

[Hoof]: No.

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(ECF No. 39 at 62). The record is devoid of evidence that Hoof knew of Burns’s sexual harassment 

complaint at the time of his discharge. The record contains no evidence that Galera’s knowledge 

of Burns’s sexual harassment claim related to IMCG’s decision to discharge Burns. The Court 

concludes that Burns has failed to make a prima facie showing on the third element his claim of 

retaliation based on Title VII. The Court GRANTS Defendants’ Motion for Summary Judgment 

as to Burns’s claim of retaliation based on Title VII. In his response brief, Burns further concedes 

his claim of Title VII retaliation “that he was retaliated against for participating in the Christina 

Powell investigation.” (ECF No. 47 at 8). The Court GRANTS Defendants’ Motion for Summary 

Judgment as to that retaliation claim without further discussion.

iii. Sexual Harassment Hostile Work Environment

As discussed above, the statute of limitation bars Burns’s sexual harassment hostile work 

environment claim. Nevertheless, assuming arguendo that this claim was timely, the Court 

provides the following discussion.

Title VII prohibits sexual harassment as a form of employment discrimination. EEOC v. 

Boh Bros. Const. Co., LLC, 731 F.3d 444, 453 (5th Cir. 2013) (en banc) (“There are two types of 

sexual harassment under Title VII: quid-pro-quo and hostile-environment harassment.”).8 Here, 

Burns’s pleadings and the Parties briefing only concern the latter, “hostile-environment 

harassment” type of sexual harassment claim.9 See Boh Bros., 731 F.3d at 453; see generally 

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). Nevertheless, “Title VII does not 

prohibit all harassment.” Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 

8 “A claim of ‘hostile environment’ sex discrimination is actionable under Title VII.” Meritor Sav. Bank, FSB v. 

Vinson, 477 U.S. 57, 73 (1986). 9 Neither the pleadings nor the Parties’ briefing support discussion or adjudication of Burns’s claims as the former 

“quid-pro-quo” type of sexual harassment, so the Court pretermits any according discussion or adjudication. See 

generally, e.g., Wallace v. Performance Contractors, Inc., 57 F.4th 209, 221 (5th Cir. 2023) (discussing both types of 

sexual harassment).

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2019) (citing Meritor Sav. Bank, 477 U.S. at 67). Rather, “[i]t makes harassing conduct unlawful 

when it results in the employer ‘discriminat[ing] against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such individual’s race, 

color, religion, sex, or national origin.’” Meritor Sav. Bank, 477 U.S. at 67 (quoting 42 U.S.C. 

§ 2000e-2(a)(1)) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993); Meritor Sav. Bank, 

477 U.S. at 64-67).

An employee who brings a hostile work environment claim must show that:

(1) [he] belongs to a protected class; (2) [he] was subjected to harassment; (3) the 

harassment was based on sex; (4) the harassment affected a term, condition, or 

privilege of employment; and (5) the employer knew or should have known of the 

harassment and failed to take remedial action.

Saketkoo, 31 F.4th at 1003 (citing Septimus, 399 F.3d at 611) (emphasis added in bold); see, e.g., 

See Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298 (5th Cir. 2001) (discussing the same).

Regarding the third element, the Fifth Circuit has established a two-step process for evaluating 

same-sex harassment cases:

Per Oncale, in La Day, we determined that the employee must first demonstrate 

that the sexual harassment was “discrimination because of sex.” Id. at 478. The 

employee may make this showing by: (1) establishing that the harasser made 

“explicit or implicit proposals of sexual activity and providing credible evidence 

that the harasser was homosexual;” (2) demonstrating that the harasser was 

“motivated by general hostility to the presence of members of the same sex in the 

workplace;” or (3) offering “direct, comparative evidence about how the alleged 

harasser treated members of both sexes in a mixed-sex workplace.” Id.

Russell v. Univ. of Tex. of Permian Basin, 234 Fed. Appx. 195, 201 (5th Cir. 2007) (citing La Day 

v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir. 2002)) (emphasis added in bold and bold italics). 

The “critical issue” in determining whether workplace activities constitute harassment based on 

sex is “whether members of one sex are exposed to disadvantageous terms or conditions of 

employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore 

Servs., Inc., 523 U.S. 75, 80, (1998) (citation omitted). “Title VII is not a shield against harsh 

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treatment at the workplace; it protects only in instances of harshness disparately 

distributed.” Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir.1981); see also, e.g., Reine 

v. Honeywell Intern. Inc., 362 Fed. Appx. 395, 397 (5th Cir. 2010) (discussing the same).

Regarding the fifth element, “[w]hen a supervisor is the harasser, the employee need not 

establish the fifth element.” Wallace v. Performance Contractors, Inc., 57 F.4th 209, 221 (5th Cir. 

2023) (citing Boh Bros., 731 F.3d at 453); see generally Boh Bros., 731 F.3d at 462-66. However, 

the employer may seek to establish an Ellerth/Faragher affirmative defense to defeat a claim for 

sexual harassment hostile work environment. See Boh Bros., 731 F.3d at 462 (discussing the 

Ellerth/Faragher affirmative defense).

Under the Supreme Court’s Faragher and Ellerth decisions, an employer has an 

affirmative defense to a hostile work environment sexual-harassment claim if 

(1) “the employer exercised reasonable care to prevent and correct promptly any

sexually harassing behavior”, and (2) the employee “unreasonably failed to take 

advantage of any preventive or corrective opportunities provided by the employer 

or to avoid harm otherwise”. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 

118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 

775, 778, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

McDaniel v. Shell Oil Co., 350 Fed. Appx. 924, 926 (5th Cir. 2009) (emphasis added in bold)

(unpublished).

Defendants do not dispute (i) that Burns belonged to a protected class; (ii) that Burns was 

subjected to sexual harassment; or (iii) that the harassment affected a term, condition, or privilege 

of Burns’s employment. However, Defendants challenge the third element—whether the 

harassment was based on sex—and, next, seek to establish an Ellerth/Faragher affirmative 

defense. (ECF No. 38 at 21-25). In response, Burns provides scant briefing as to the third element10

10 As to the third element of Burns’s prima face case on his sexual harassment hostile work environment claim, Burns’s 

briefing states only:

Finally, Defendant Intermodal attempts to argue that there is no evidence that Defendant was based 

on sex. First, Defendant Stokely does not try to characterize the contact as horseplay, rather he 

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and—as to Defendants’ Ellerth/Faragher defense—appears to argue IMCG did not exercise 

reasonable care to prevent and correct sexually harassing behavior. (ECF No. 47 at 15-20).

Regarding the third element, Defendants assert there is no evidence “showing that any 

alleged harassment was motivated by discrimination based on Burn’s sex or sexual orientation.” 

(ECF No. 38 at 22). Burns directs the Court to no evidence (i) that Stokely made explicit or implicit 

proposals of sexual activity; (ii) that Stokely was homosexual;11 (iii) that Stokely was motivated 

by general hostility to the presence of men in the workplace; or (iv) that offers direct, comparative 

evidence about how Stokely treated members of both sexes in a mixed-sex workplace. See Russell, 

234 Fed. Appx. at 201 (enumerating the process for evaluating same-sex harassment cases). Burns 

directs the Court to no other evidence that the harassment was based on sex, and the Court has 

found none. The Court must conclude Burns has failed to make a prima facie showing of his sexual 

harassment claim.

Assuming arguendo that Burns had made such a prima facie showing for his sexual 

harassment claim, the Court would conclude Defendants have proven the Ellerth/Faragher

affirmative defense. First, where an employer has “provided a proven, effective mechanism for 

reporting and resolving complaints of sexual harassment, available to the employee without undue 

risk or expense,” and the plaintiff “unreasonably failed to avail herself of the employer’s 

preventative or remedial apparatus . . . no liability should be found against the employer who has 

taken reasonable care.” Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998); see, e.g., 

denies it ever took place. Moreover, Galera acknowledges that the alleged groping would violate 

the company sexual harassment policy. Accordingly, there is a question of fact on Burns’ same sex 

sexual harassment claim.

(ECF No. 47 at 20).

11 During his deposition, Burns testified that—other than he and Florence—no employee at the Haslet Depot was 

homosexual. (ECF No. 39 at 104).

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Giddens v. Cmty. Educ. Centers, Inc., 540 Fed. Appx. 381, 389 (5th Cir. 2013) (unpublished) 

(discussing the same). Here, the record contains evidence of a sexual harassment policy, which 

provides (i) a prohibition “on all forms of sexual harassment” and (ii) for a “complaint procedure” 

for reporting and resolving complaints of sexual harassment. (ECF No. 39 at 110-112). Burns 

testified that he received and read IMCG’s sexual harassment policy during his employment. (ECF 

No. 39 at 80-82). Burns argues that IMCG failed to exercise reasonable care to prevent and correct 

sexual harassing behavior. (ECF No. 47 at 19). But, Burns concedes that IMCG reprimanded 

Stokely each time an instance of sexual harassment occurred prior to April 2020—with the latter 

November 14, 2019, reprimand warning that other incidents of sexual harassment “will result in 

termination.”12 (ECF No. 48 at 3-16); (see ECF No. 47 at 19). As to Stokely’s sexual harassment 

of Burns, the record shows that Burns did not complain of sexual harassment from Stokely until 

May 2020, at which time Galera began collecting information from Burns. (ECF No. 39 at 34; 42-

46; ECF No. 49 at 118-26). It is undisputed that Stokely’s sexual harassment of Burns ended before 

April 8, 2020—before Burns began his leave of absence.

In light of the record, the Court concludes (i) that IMCG exercised reasonable care to 

prevent and correct promptly Stokely’s sexually harassing behaviors and (ii) that Burns 

unreasonably failed to take advantage of any preventive or corrective opportunities that IMCG

provided or to avoid harm otherwise. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 

(1998); Faragher, 524 U.S. at 806-07. Consequently, the Court concludes IMCG has successfully 

proven its Ellerth/Faragher defense. As (i) Burns has failed to make a prima facie showing of the 

third element for his sexual harassment claim and (ii) had Burns met his prima facie showing, 

12 This reprimand also caused Stokely to forfeit certain work-related rights; required him to take additional sexual 

harassment prevention training; and removed Stokely from all future hiring process and application review. (ECF No. 

48 at 10).

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Defendants have established their Ellerth/Faragher defense to this claim—the Court GRANTS 

Defendants’ Motion for Summary Judgment as to Burns’s claim of sexual harassment hostile work 

environment based on Title VII.

C. FMLA Claims

Burns asserts two claims under the FMLA: (i) interference with leave relating to COVID 

and anxiety and (ii) retaliation. Burns asserts no direct evidence on any of these claims. Thus, the 

Court next addresses each claim under the respective three-step framework(s).

i. Interference with FMLA Rights

A prima facie case of FMLA interference requires an employee to show that: 

1) he was an eligible employee; 2) his employer was subject to FMLA 

requirements; 3) he was entitled to leave; 4) he gave proper notice of his intention 

to take FMLA leave; and 5) his employer denied the benefits to which he was 

entitled under the FMLA.

Campos v. Steves & Sons, Inc., 10 F.4th 515, 526 (5th Cir. 2021) (citation omitted) (emphasis 

added in bold). As to the third element, a plaintiff seeking leave for a health condition must adduce 

evidence showing that she suffered a “serious health condition” that made her unable to perform 

the functions of her job. Mauder, 446 F.3d at 579 (discussing serious health condition); see, e.g., 

Schimek v. MCI, Inc., No. CIV.A. 3:05-CV-0045-P, 2006 WL 2252034, at *11 (N.D. Tex. Aug. 

7, 2006) (discussing the same); 29 U.S.C.A. § 2612(a)(1)(D) (enumerating the “serious health 

condition” basis for FMLA leave). “The failure to provide an appropriate medical certification or 

recertification is fatal to a claim under the FMLA in such cases.” Ryder v. Shell Oil Co., 131 F. 

Supp. 3d 635, 641 (S.D. Tex. 2015), aff’d, 652 Fed. Appx. 234 (5th Cir. 2016) (internal quotation 

omitted). The Ryder court granted summary judgment in favor of an employer on a claim of FMLA 

interference where, inter alia, the plaintiff-employee failed to provide documentation to support 

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FMLA. Ryder, 131 F. Supp. 3d at 642 (appropriate [FMLA leave] documentation was never 

provided).

As to the fourth element, the Fifth Circuit “does not apply categorical rules for the content 

of the notice” and instead focuses on what is “‘practicable’ based on the facts and circumstances 

of each individual.” Lanier, 527 F. App’x at 316 (citing Manuel v. Westlake Polymers Corp., 66 

F.3d 758, 762-64 (5th Cir. 1995)); see also 29 C.F.R. § 825.303(b). “The employer is not required 

to be clairvoyant,” but “may have a duty to inquire further if statements made by the employee 

warrant it.” Lanier, 527 F. App’x at 316 (citing Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 

980 (5th Cir. 1998)). “Calling in ‘sick’ without providing more information will not be considered 

sufficient notice to trigger an employer’s obligations under the Act.” 29 C.F.R. § 825.303(b). The 

Fifth Circuit has explained:

Even when an employee’s need for leave is unforeseeable, the regulations make 

clear the employee’s duty to comply with the employer’s policy. “When the need 

for leave is not foreseeable, an employee must comply with the employer’s usual 

and customary notice and procedural requirements for requesting leave, absent 

unusual circumstances.” 29 C.F.R. § 825.303(c).

Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 789 (5th Cir. 2017).

For a FMLA interference claim, the employee also must show that the violation prejudiced 

him. Campos, 10 F.4th at 526 (citation omitted). The Fifth Circuit requires courts to “conduct[ ] a 

case-by-case examination of whether a plaintiff has been prejudiced by noncompliance with a 

regulation.” Downey v. Strain, 510 F.3d 534, 541 (5th Cir. 2007). In discussing prejudice in the 

FMLA interference context, another court has explained:

“Prejudice exists when an employee losses [sic] compensation or benefits by reason 

of the violation, sustains other monetary losses as a direct result of the violation, 

such as the cost of providing care, or suffers some loss in employment status such 

that equitable relief is appropriate.”

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Matson v. Sanderson Farms, Inc., 388 F. Supp. 3d 853, 873 (S.D. Tex. 2019) (block quoting Jones 

v. Children’s Hosp., 58 F. Supp. 3d 656, 669 (E.D. La. 2014)); see, e.g., Garcia v. RandolphBrooks Fed. Credit Union, No. SA-18-CV-00978-OLG, 2019 WL 1643741, at *3 (W.D. Tex. Apr. 

16, 2019), report and recommendation adopted, No. CV SA-18-CA-978-OLG, 2019 WL 2565270 

(W.D. Tex. May 9, 2019) (discussing the same).

Here, Defendants challenge the third element of whether Burns was eligible for FMLA 

leave. (ECF No. 38 at 34-35). In response, Burns offers a single sentence of substantive, applied

briefing: “There is ample evidence that Burns’ requests for leave, first for COVID and then for 

anxiety were sufficient to invoke FMLA.[]” (ECF No. 47 at 32) (internal citation omitted).

The record contains repeated requests from IMCG for Burns to submit his FMLA leave 

paperwork—including request to email the completed FMLA Paperwork. (See, e.g., ECF No. 39 

at 34-35, 42). It is undisputed that IMCG did not receive his FMLA Paperwork at any time before 

June 3, 2020. (ECF No. 39 at 24-25, 121). The record contains only one completed FMLA 

Paperwork document. (ECF No. 49 at 17-25). The completed FMLA Paperwork is dated June 3, 

2020. (ECF No. 49 at 23). The record shows IMCG’s fax number is 901-746-1657. (ECF No. 39 

at 43, 128; ECF No. 49 at 20, 25). The record shows Burns’s healthcare provider attempted to fax 

IMCG’s fax number three times—twice on June 4, 2020, and once on June 9, 2020. (ECF No. 49 

at 25). The record shows all attempts for Burns’s healthcare provider to fax IMCG failed. (ECF 

No. 49 at 25). Otherwise, the record contains no evidence that Burns transmitted his completed 

FMLA Paperwork to IMCG—neither by fax nor email. Burns directs the Court to no evidence that 

he submitted his completed FMLA Paperwork at any time.13 Thus, the evidence is uncontroverted 

13 Burns avers repeatedly that he attempted to have his healthcare provider submit the FMLA Paperwork, but no 

evidence shows such attempts resulted in successful transmission of the completed FMLA Paperwork to IMCG. (See 

ECF No. 39 at 43).

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that Burns failed to submit his FMLA Paperwork to IMCG. The record contains no evidence that 

IMCG received support for Burns’s “serious health condition” that made him unable to perform 

the functions of his job. Mauder, 446 F.3d at 579; Ryder, 131 F. Supp. 3d at 641.14 Burns has not 

met his prima facie burden to show he was entitled to leave. Burns has failed to make a prima facie 

showing on the third element of his FMLA interference claim. 

Burns further directs the Court to neither law nor evidence in the record in support of the 

fourth and fifth elements of his prima facie case. (ECF No. 47 at 31-32). Upon review of the 

competent summary judgment evidence, the Court has found no evidence in support of the fourth 

and fifth elements of Burns’s prima facie case of FMLA interference. For those reasons, the Court 

concludes Burns has failed to carry his burden of making a prima facie case of FMLA interference. 

The Court GRANTS Defendants’ Motion for Summary Judgment as to Burns’s claim of FMLA 

interference.

ii. FMLA Retaliation

To establish a prima facie case of FMLA retaliation, a plaintiff must show:

(1) he was protected under the FMLA, (2) he suffered an adverse employment 

action, and (3) the adverse action was taken because he sought protection under the 

FMLA.

Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013) (citing Mauder, 446 F.3d at 583) 

(emphasis added in bold); see, e.g., Hester, 11 F.4th at 305 (discussing elements for discrimination 

and retaliation under FMLA). Regarding the first element, a failure to provide an employer with 

“medical evidence indicating that [the employee] was medically unable to perform her 

employment duties” forecloses an FMLA retaliation claim at the prima facie stage. Comeaux14 Although the Parties agree Burns provided some doctor’s notes regarding some of his absences in April and May 

2020, there are no doctor’s notes in the record.

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Bisor v. YMCA of Greater Houston, 290 Fed. Appx. 722, 725 (5th Cir. 2008) (unpublished) 

(collecting cases).

15 Regarding the third element, the Fifth Circuit has explained:

[I]t unclear whether the “causal link” requirement for FMLA retaliation claims 

involves the same “but for” analysis required for Title VII retaliation claims. See 

Nassar, 133 S.Ct. 2517. It is clear, however, that the plaintiff “may avoid 

summary judgment on ‘but for’ causation by demonstrating ‘a conflict in 

substantial evidence on this ultimate issue.’ ” Hernandez v. Yellow Transp., Inc.,

670 F.3d 644, 660 (5th Cir. 2012) (“Evidence is ‘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.”) (citation omitted).

Wheat v. Florida Par. Juvenile Justice Comm’n, 811 F.3d 702, 710 (5th Cir. 2016) (emphasis 

added in bold).

Defendants challenge the first and third element(s) of Burns’s prima facie burden on his 

FMLA retaliation claim. Burns offers a single sentence of substantive briefing: “Applying the 

pretext analysis set forth infra regarding Burns’ sex/sexual orientation discrimination and 

retaliation claims, there is likewise a question of fact on Burns’ FMLA retaliation claims.” (ECF 

No. 47 at 33). Burns fails to brief any element of his prima facie burden. (ECF No. 47 at 33).

Similar to Comeaux-Bisor, the record shows Burns failed to provide IMCG with his FMLA 

Paperwork at any time. (ECF No. 39 at 24-25, 121; ECF No. 49 at 17-25). Burns directs the Court 

to neither law nor evidence in support of the first element of his prima facie case on FMLA 

retaliation; the record is devoid of evidence in support of this first element. The Court must 

conclude Burns has failed to meet his burden to show he was protected under the FMLA. 

Furthermore, Burns directs the Court to neither law nor evidence in support of the third element 

of his prima facie case on FMLA retaliation; the record is devoid of evidence of this third element. 

15 See also Satterfield v. Wal–Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir.1998) (“In determining whether an 

employee’s leave request qualifies for FMLA protection, the employer must assess whether the request is based on a 

serious health condition, and, for that purpose, may request supporting medical documentation.”) (citations and 

internal quotations omitted).

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The Court must conclude that Burns has failed to meet his burden to show that IMCG discharged 

Burns because he sought protection under the FMLA. Having failed to meet his prima facie burden, 

the Court GRANTS Defendants’ Motion for Summary Judgment as to Burns’s claim of FMLA 

retaliation.

V. PRETEXT AND MIXED-MOTIVE CONSIDERATIONS

A. Traditional McDonnell Douglas Pretext

As determined above, Burns has failed to meet his burden on at least one essential element 

for each of his claims asserted under Title VII and the FMLA. Thus, Burns has failed to make out 

a prima facie case for discrimination, retaliation, hostile work environment, and interference as 

required, and the burden does not shift to the Defendants. See, e.g., Haynes v. Pennzoil Co., 207 

F.3d 296, 301 (5th Cir. 2000) (ending its analysis and affirming district court’s grant of summary 

judgment after concluding plaintiff “failed to establish a prima facie case of racial discrimination 

under Title VII”); Owens, 33 F.4th at 835 (applying the McDonnell Douglas framework to a 

retaliation claim under Title VII and 42 U.S.C. § 1981). Nevertheless—assuming arguendo that 

Burns met his burden to show a prima facie case—IMCG produced evidence of a legitimate, nondiscriminatory, and non-retaliatory reason for his discharge. Owens, 33 F.4th at 835 (discussing 

pretext in the discrimination context); Feist v. Louisiana, Dep’t of Just., Off. of the Atty. Gen., 730 

F.3d 450, 454 (5th Cir. 2013) (discussing pretext in the retaliation context); see Eversley v. MBank 

Dallas, 843 F.2d 172, 174 (5th Cir. 1988). IMCG produced evidence of one overarching reason 

for Burns’s discharge—he was “no call, no show” for three consecutive work days.

Next, under the third step of the framework(s), Burns must counter the no call, no show 

reason with “substantial evidence” for his discharge as pretextual. See Owens, 33 F.4th at 825; see 

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also Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011). For pretext in the 

discrimination context, the Fifth Circuit has explained:

The plaintiff must rebut each nondiscriminatory reason articulated by the employer. 

Wallace, 271 F.3d at 220. A plaintiff may establish pretext either through evidence 

of disparate treatment or by showing that the employer’s proffered explanation is 

false or “unworthy of credence.” Id.; Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. 

An explanation is false or unworthy of credence if it is not the real reason for the 

adverse employment action. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 

899 (5th Cir. 2002).

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (addressing discrimination claims under 

Title VII and the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 

1978). “Disparate treatment occurs where an employer treats one employee more harshly than 

other ‘similarly situated’ employees for ‘nearly identical’ conduct.” Vaughn, 665 F.3d at 637. For 

pretext in the retaliation context, the Fifth Circuit has explained: “[a]n employee establishes pretext 

by showing that the adverse action would not have occurred “but for” the employer’s retaliatory 

reason for the action.” Hague v. Univ. of Texas Health Sci. Ctr. at San Antonio, 560 F. App’x 328, 

336 (5th Cir. 2014) (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477, 479–80 (Tex. 

2001)). The “but for” causation standard is more difficult to prove than prima facie causation. 

Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (“This court has explicitly held that 

the “causal link” required in prong three of the prima facie case for retaliation is not as stringent 

as the “but for” standard.”); see Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808-09 (5th 

Cir. 2007) (discussing “very close” temporal proximity as potentially sufficient to meet prima facie 

standard but insufficient to meet “but for” causation standard). On pretext, the Fifth circuit has 

explained:

“[T]he ultimate determination, in every case, is whether, viewing all of the evidence 

in a light most favorable to the plaintiff, a reasonable factfinder could infer 

discrimination.” Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th 

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Cir. 2000). Thus, evidence must be of sufficient “nature, extent, and quality” to 

permit a jury to reasonably infer discrimination. Id. at 903.

. . .

[E]ven if Owens has provided sufficient evidence for a jury to disbelieve 

Circassia’s explanation for her termination, that is not necessarily enough.[]

Employers are “entitled to be unreasonable” in terminating their employees 

“so long as [they] do[ ] not act with discriminatory animus.” Sandstad v. CB 

Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002). Thus, it is the employee’s 

burden to create a fact dispute as to reasonableness that could give rise to an 

inference of discrimination. Id. As the Supreme Court explained in Reeves, “there 

will be instances where, although the plaintiff has established a prima facie 

case and set forth sufficient evidence to reject the defendant’s explanation, no 

rational factfinder could conclude that the action was discriminatory.” 530 

U.S. at 148, 120 S.Ct. 2097.

Owens, 33 F.4th at 826 (footnote omitted) (emphasis added in bold).

The Parties merge their respective briefing regarding pretext for all of Burns’s claims, so 

the Court addresses the same, jointly. Defendants offer four bases that “Burns cannot point to 

evidence indicating [the discharge for no call, no show] was pretextual”: (i) Burns conceded his 

relationship with a supervisor, and not Burns’s sexual orientation, motivated the discharge; (ii) the 

record shows Burns was no call no show for three consecutive work days; (iii) failure to report for 

work was the only motivating factor in the discharge; and (iv) IMCG has discharged other 

employees for no call, no show. (ECF No. 38 at 27-30). In response, Burns asserts (i) Burns was 

not no call, no show because he texted his supervisor of his absence; (ii) Galera and Hoof either 

knew or assumed Burns was homosexual; (iii) IMCG failed to follow its progressive discipline 

policy; (iv) the timing of his discharge was suspicious; and (v) evidence relating to Hoof of 

laughing at gay jokes and “scoff[ing]” at a separate lawsuit brought by a different gay employee

constituted pretext. (ECF No. 47 at 26-30).16

It is undisputed that IMCG has a three-day no call, no show policy:

16 Burns’s briefing asserts no “disparate treatment” argument, so the Court pretermits discussion of the same. (ECF 

No. 47 at 26-30). 

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4.7 Job Abandonment

If an employee fails to show up for work or call in with a reason for their absence 

for a period of three consecutive days, they will be considered to have abandoned 

their job and voluntarily terminated their employment. If you can’t give us a call –

find somebody who can.

(ECF No. 39 at 114) (emphasis in original). The record contains IMCG’s progressive disciplinary 

policy, which reserves its right to issue a verbal notice and written notice “as it sees fit.” (ECF No. 

49 at 4-5).17 However, it is undisputed that IMCG considered employees who failed to appear for 

work for three consecutive days as having abandoned the job—“voluntarily terminated.” (ECF 

No. 39 at 114).18 The record contains evidence that Burns texted Stokely that he would be absent 

from work on “May 28, June 1st, or June 2nd.” (ECF No. 49 at 62). However, there is no evidence 

in the record that Stokely reported those absences to Hoof or Galera. It is undisputed that only 

Hoof and Galera were involved in the decision to discharge Burns. (ECF No. 39 at 56, 67). 

Although Galera asked Burns about his leave on May 28, 2020, (ECF No. 39 at 34), Burns did not 

communicate with Galera from May 28, 2020 to June 2, 2020, (ECF No. 39 at 42-46). No evidence 

in the record shows Burns apprised Galera or Hoof of his absences for May 28, 2020 to June 1, 

20202. Thus, the record shows Burns was no call, no show for three consecutive work days as to 

the two decisionmakers for his discharge—Burns and Galera.

The record further shows that neither Burns nor Galera were motivated by discriminatory 

animus in discharging Burns. Although Burns testifies that Hoof laughed about a suit brought by 

a different gay employee, (ECF No. 49 at 57-58), Burns unequivocally conceded that sexual 

orientation was not a factor in the discharge during his deposition:

[Question]: Do you have any reason to believe that Mr. Hoof has a negative view 

of people who are gay?

17 As discussed above—IMCG implemented progressive discipline with Stokely’s sexual harassment allegations. 18 No evidence in the record shows IMCG used its progressive discipline policy on employees who were no call, no 

show for three days.

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[Burns]: I do not.

[Question]: Do you have any reason to believe that Mr. Hoof has any negative 

view of same-sex relationships?

[Burns]: I do not.

[Question]: Then if you -- if you don’t believe that he’s – you don’t have any 

reason to believe that he has got any animus towards gay people 

or people who are in same-sex relationships, then why do you 

think your sexual orientation was a factor in your termination?

[Burns]: Because when it comes to business, everything changes. Whenever 

your boss is your partner, which it worked for so many years, so 

many years, up until Chris was not -- was told to -- that it was a 

conflict of interest and he needed to know. [] Well, if it’s a 

conflict of interest, and then I get let go a month later, I don’t 

believe that he’s sexually, you know, discriminate. But when it 

comes to business, absolutely.

[Question]: So I -- just to make sure I understand what you’re saying, what --

what do you contend was his motivation?

[Burns]: Having an employee working for their partner.

[Question]: Okay. So it wasn’t your sexual orientation on its own; it was your 

-- the fact that you were involved in a relationship with your 

supervisor?

[Burns]: Yes.

(ECF No. 39 at 101-02) (emphasis added in bold). Neither evidence in the record nor Burns’s 

briefing asserts Galera was motivated by discriminatory animus in the decision to discharge Burns. 

It is undisputed that IMCG discharged other employees for no call, no show. (ECF No. 39 at 67-

68).19

19 Specifically, Hoof’s affidavit states:

I have approved the termination of other employees in my region for job abandonment, including 

by way of example Carlos Millan, terminated for abandoning his job in May 2018, Curtis Cannon, 

terminated for abandoning his job in May 2019, and Christopher Pittman, terminated for abandoning 

his job in May 2023. I am unaware of any of those individuals identifying as gay. [. . .] In those 

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MEMORANDUM OPINION AND ORDER Page 41 of 43

 Although “[p]laintiffs may combine ‘suspicious timing with other significant evidence of 

pretext’ to survive summary judgment, the record contains no significant evidence—nor 

substantial evidence—of pretext. Owens, 33 F.4th at 835 (quoting Saketkoo, 31 F.4th at 1003); 

see, e.g., Evans, 246 F.3d at 356 (discussing the same). Burns offers no briefing as to FMLArelated discriminatory animus that was pretextual basis for IMCG’s discharge. On review of the 

record, the Court has found no evidence to show Burns’s discharge for no call, no show was 

pretextual. Burns has failed to carry his burden under the third step of the framework(s) to show 

that IMCG’s reason for discharging Burns—no call, no show for three days—was false or 

unworthy of credence. The Court concludes Burns has failed to show pretext. 

B. Mixed-Motive Analysis of Pretext

The Fifth Circuit “has adopted use of a ‘modified McDonnell Douglas approach’ in cases 

where the mixed-motive analysis may apply.” Keelan v. Majesco Software, Inc., 407 F.3d 332, 

341 (5th Cir. 2005). The modified McDonnell Douglas approach differs from the traditional 

McDonnell Douglas approach after the plaintiff has made a prima facie showing and defendant 

has responded with a legitimate, nondiscriminatory reason for the adverse employment action. 

Keelan, 407 F.3d at 341. 

the plaintiff must then offer sufficient evidence to create a genuine issue of material 

fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for 

discrimination (pretext alternative); or (2) that the defendant’s reason, while true, 

is only one of the reasons for its conduct, and another “motivating factor” is the 

plaintiff’s protected characteristic (mixed-motive[s] alternative). 

Rachid, 376 F.3d at 312 (internal quotation marks and citations omitted). The Rachid Court further 

recognized: 

circumstances like in Mr. Burns’ circumstances, the decisions were made solely based on the 

employee’s failure to report as directed and/or scheduled.

(ECF No. 39 at 67-68).

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MEMORANDUM OPINION AND ORDER Page 42 of 43

“A mixed-motives case arises when an employment decision is based on a mixture 

of legitimate and illegitimate motives.... If the employee proves the unlawful reason 

was a motivating factor, the employer must demonstrate that it would have taken 

the same action in the absence of the impermissible motivating factor.” 

Rachid, 376 F.3d at 309–10 (quoting Louis v. E. Baton Rouge Parish Sch. Bd., 303 F.Supp.2d 799, 

801–04 (M.D. La. 2003) (citing Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th 

Cir.1999) (noting that a mixed-motives analysis applies “where the evidence is sufficient to allow 

a trier to find both forbidden and permissible motives.”) (quotations and citations omitted)).

Here, Burns’s pleading states “[a]lternatively, Plaintiff Burns seeks declaratory relief 

because sex/sexual orientation was a motivating factor and thus, sex/sexual orientation was at least 

a mixed motive in the termination. Plaintiff Burns seeks declaratory relief and attorney fees 

pursuant to 42 U.S.C. § 2000e-2(m).” (ECF No. 40-1 at 3).20 Neither Defendants nor Burns brief 

the application of mixed-motive analysis to Burns’s claims. Nevertheless, under such analysis, the 

Court would reach the same result as above regarding the traditional pretext framework(s)—that 

20 Burns does not appear to assert an independent claim for declaratory judgment. (See ECF No. 40-1). If Burns had 

asserted an independent claim for declaratory judgment that sex/sexual orientation was a motivating factor in his 

discharge, such a claim would be subsumed within his Title VII sex discrimination claim as a “mirror image” of that 

sex discrimination claim.

The Declaratory Judgment Act enables courts to “declare the rights and other legal relations of any interested party 

seeking such declaration, whether or not further relief is or could be sought.” 28 USC § 2201(a). It “confers discretion 

on the courts rather than an absolute right on a litigant.” Wilton v. Seven Falls Co., 515 US 277, 287 (1995) (cleaned 

up). A declaratory judgment thus serves the purpose of affording “one threatened with liability an early adjudication 

without waiting until his adversary should see fit to begin an action after the damage has accrued,” or providing “a 

means of settling an actual controversy before it ripens into a violation of the civil or criminal law, or a breach of 

contractual duty.” Rowan Companies Inc. v. Griffin, 876 F2d 26, 28 (5th Cir. 1989) (citations omitted).

“[D]istrict courts in this Circuit regularly reject declaratory judgment claims seeking the resolution of issues that are 

the mirror image of other claims in a lawsuit.” Amerisure Ins. Co. v. Thermacor Process, Inc., No. 4:20-CV-01089-

P, 2021 WL 1056435, at *7 (N.D. Tex. Mar. 19, 2021) (internal quotation omitted) (collecting cases). This is so 

because “a declaratory judgment may not serve a ‘useful purpose’” if the court isn’t being asked to adjudicate anything 

new. Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp, 824 F3d 507, 523 (5th Cir. 2016). Courts in the 

Fifth Circuit thus regularly reject claims for declaratory judgment that seek nothing more than resolution of issues 

already stated in the lawsuit. See, e.g., Ecoquij-Tzep v. Le Arlington, Inc., No. 3:16-CV-625-BN, 2018 WL 1737658, 

at *3 (N.D. Tex. Apr. 10, 2018) (collecting cases); American Equipment Co. v. Turner Brothers Crane and Rigging 

LLC, 2014 WL 3543720, *4 (S.D. Tex.) (collecting cases).

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the record does not support IMCG’s discharge of Burns for no call, no show was pretextual. As 

discussed above, the record is devoid of evidence that sex, sexual orientation, or FMLA-related 

discriminatory animus was a motivating factor in Burns’s discharge. The record contains no 

evidence of an impermissible motivating factor or otherwise illegitimate motive for Burns’s 

discharge. Burns fails to meet his burden to show pretext under the mixed-motive analysis.

VI. MOTION FOR LEAVE AND CORRESPONDING MOTION TO STRIKE

Last, Burns moves for leave to file a motion to strike the Supplement to Defendant’s 

Appendix to Memorandum of Law in Support of Defendant’s Motion for Summary Judgment, 

(ECF No. 54), because Defendants had not sought leave in filing the Supplemental Appendix. 

(ECF No. 55). The Court GRANTS Burns’s motion for leave. (ECF No. 55). However, the Court 

has not considered any portion of the Supplemental Appendix in entering this summary judgment 

determination. (See ECF No. 54). For that reason, the Court DENIES Burns’s motion to strike as 

moot. 

VII. CONCLUSION

For the reasons enumerated hereabove, the Court GRANTS Defendants’ Motion for 

Summary Judgment on all of Burns’s claims. (ECF No. 37). The Court GRANTS Burns’s motion 

for leave and DENIES Burns’s Motion to Strike as moot. (ECF No. 55). The Court shall enter a 

final judgment by separate filing. Fed. R. Civ. P. 54. 

SO ORDERED.

8th day of March, 2024. 

 

 

 ___________________________________ 

 ADA BROWN

 UNITED STATES DISTRICT JUDGE

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