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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JASON WALTERS, 

Plaintiff, 

v.

EXEL, INC. d/b/a DHL SUPPLY 

CHAIN, 

 

Defendant.

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Civil No. 3:22-CV-01840-K 

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Exel, Inc. d/b/a DHL Supply Chain’s (“Exel”) 

Motion for Summary Judgment and Brief and Appendix in support thereof, Doc. 

Nos. 55–57, Plaintiff Jason Walters’s Response to Exel’s Motion for Summary Judgment and Brief and Appendix in support thereof, Doc. Nos. 58–60, Exel’s Reply in 

Support of Its Motion for Summary Judgment, Doc. No. 63, Mr. Walters’s Motion for 

Leave to File Reply Brief to Exel’s Reply (the “First Motion for Leave”), Doc. No. 66,

Exel’s Response to Mr. Walters’s Motion for Leave to File Reply Brief to Exel’s Reply, 

Doc. No. 68, Mr. Walters’s Motion for Leave to File Sur-Reply Brief to Exel’s Reply 

(the “Second Motion for Leave”), Doc. No. 67, Exel’s Response to Mr. Walters’s Motion for Leave to File Sur-Reply Brief to Exel’s Reply, Doc. No. 69, Exel’s Motion to 

Strike Mr. Walters’s Inadmissible Summary Judgment Evidence (the “Motion to 

Strike”) and Brief and Appendix in support thereof, Doc. Nos. 61–62, Mr. Walters’s 

Response to Exel’s Motion to Strike, styled “Brief in Reply in Opposition to 

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Defendant’s Motion for Summary Judgment,” Doc. No. 64, and Exel’s Reply to 

Mr. Walters’s Response to Exel’s Motion to Strike. Doc. No. 65. The Court DENIES

Mr. Walters’s First and Second Motions for Leave to file sur-reply briefs.

Upon consideration of the parties’ remaining submissions, the Court GRANTS 

Exel’s Motion for Summary Judgment. In 2022, Exel initiated an investigation into a 

claim that one of its warehouse supervisors, forty-nine-year-old Jason Walters, grabbed 

an employee by the jacket and threatened to put her in a chokehold. The investigation 

ended with Mr. Walters’s termination. He now sues Exel for firing him because of his 

age, for refusing to give him federally mandated overtime pay, and for failing to send 

him a timely notice of his right to continue his Exel-sponsored health coverage under 

the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The Court first 

dismisses the age discrimination claim because Exel’s investigation gave it a valid reason 

to terminate Mr. Walters. The Court then dismisses the overtime pay claim because 

Mr. Walters held a managerial position that was exempt from federal overtime pay 

requirements. The Court lastly dismisses the COBRA claim because Exel’s third-party 

benefits administrator mailed a timely notice of rights to Mr. Walters. Having ruled 

in Exel’s favor, the Court considers and rejects Exel’s request to recover attorneys’ fees. 

I. BACKGROUND

A. Mr. Walters’s Job

In June 2011, Jason Walters went to work for Exel as an Operations Supervisor 

at a warehouse for Goodyear products. Doc. No. 57 at 21, 64; Doc. No. 60 at 114. 

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He supervised a team that numbered forty-five individuals at its peak, and his responsibilities were multifarious. Doc. No. 57 at 54. He set priorities for workers on his 

shift; monitored their behavior, productivity, and compliance with rules and safety requirements; intervened to correct low-level misconduct, provide counseling, and defuse 

disagreements; and reported complaints to more senior personnel. Doc. No. 57 at 12–

15, 27–28, 32–33, 38–41, 47–48, 50–56, 90–91, 102–03, 131, 139–41. He also oversaw the training of new employees, interfaced with vendors, and, at least on some occasions, picked up debris and boxes and loaded delivery trucks. Id. at 47, 56; Doc. 

No. 60 at 115. Although he could not hire and fire employees directly, he interviewed 

job candidates and could recommend them for hiring. Doc. No. 57 at 78–79, 90, 140–

41; Doc. No. 60 at 115. When he did, there was no further review; Exel would hire 

the recommended candidate so long as they passed a background check and satisfied 

eligibility requirements. Doc. No. 57 at 78–79, 140–41. 

Mr. Walters ostensibly had three or four twelve-hour shifts each week to accomplish all the tasks that fell to him, but he often worked more hours than scheduled. Id. 

at 14, 25; Doc. No. 60 at 53, 110, 114. Taken as a whole, about seventy percent of 

Mr. Walters’s time went to training, supervising, directing, and resolving conflicts 

among his employees, fifteen percent went to planning work and considering process 

improvements, and the remaining fifteen percent was, per his job description, supposed 

to go to his other tasks. Doc. No. 57 at 102–03, 191–92. Monitoring safety was Mr. 

Walters’s most common responsibility and took up a “majority” of his time. Doc. 

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No. 60 at 115. A “great deal” of Mr. Walters’s work involved giving instructions to 

employees about safety, as well as other operational matters. Id.

Mr. Walters’s had multiple superiors, the most immediate of which was Eartis 

Shaw, an Operations Manager who befriended Mr. Walters and gave him good performance reviews. Doc. No. 57 at 19–22, 138. Mr. Shaw regularly referred to Mr. Walters, who was born in 1972, as “paw paw,” and sometimes as “papa bear” or “old man.” 

Id. at 24; Doc. No. 60 at 117, 132. 

B. Workplace Rules

Mr. Walters and his team were subject to a collection of rules and policies imposed by Exel to curb “violen[t],” “offensive,” and “harmful” behaviors. Doc. No. 57

at 199, 203. One rule prohibited “[t]hreatening or inflicting bodily harm on a coworker, supervisor, manager or customer.” Id. at 201. Breaking this rule was grounds 

for termination. Id. at 88, 199–200. An overlapping policy on workplace violence 

prohibited “[a]ctual or threatened physical contact” and “[d]irect, indirect or veiled 

threats.” Id. at 203. Transgressing this policy was also grounds for termination. Id.

C. Mr. Walters Confronts an Action Supervisor

In the summer of 2020, Mr. Walters found himself on the wrong side of Exel’s 

rules and policies. Id. at 104. Although the details of the incident are not entirely 

clear, it appears that Mr. Walters aggressively shoved an Action Supervisor at work. 

Id. at 89, 104. After conducting an investigation, Exel found that Mr. Walters had not 

acted with ill intent and issued him a warning. Id. at 89, 104–09. His General 

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Manager, Adam Elliott, told him to not repeat his misconduct, advised him that similar 

misconduct would result in corrective action or termination, and stated that this warning would be the “one and only” he would receive. Id. at 99, 107–08.

D. Mr. Walters Confronts an Associate

On March 10, 2022, another workplace incident involving Mr. Walters occurred. Id. at 170. After a meeting, Mr. Walters pulled aside several employees for a 

discussion because they had arrived late. Id. at 157–58, 208–09, 212. According to 

Mr. Walters, he reminded the employees to arrive on time and discussed “pre-shift 

topics,” prompting one employee, DeNeill Evaite Hooper, to claim an exemption from 

the usual arrival deadline. Id. at 208–09, 212. She was apparently referring to an 

agreement she had with Mr. Shaw that, unbeknownst to Mr. Walters, authorized her 

to come to work late because her grandson’s daycare opened at the same time work 

started. Id. at 156, 171; Doc. No. 60 at 116. Mr. Walters’s response to Ms. Hooper 

was and remains the subject of some disagreement.

Ms. Hooper told Exel that Mr. Walters grabbed her jacket and pulled it. Doc. 

No. 57 at 170. Although silent security camera footage appears to confirm this account, Mr. Walters disputes it. Id. at 31, 62, 163–64, 214. He says he “touched” 

Ms. Hooper’s jacket but did not “grab[]” it. Doc. No. 57 at 37–38; Doc. No. 60 at 116.

Ms. Hooper next reported that Mr. Walters told her to “calm down before he 

[put her] in a choke hold,” which made her feel “threatened and violated.” Doc. No. 57 

at 158–59, 170. Two fellow employees who were not present, Tenisha and Shaquel 

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Thomas, spoke to Mr. Walters later and came away believing that Mr. Walters threatened to put Ms. Hooper in a chokehold. Id. at 109, 145, 157, 165, 196–97. Unlike 

Ms. Hooper, they also came away uncertain about whether Mr. Walters was joking. 

Id. at 109, 145, 157, 165, 196–97. For his part, Mr. Walters categorically denied 

threatening Ms. Hooper. Id. at 212. He instead claimed that he was talking to her 

about her safety equipment. Id. at 38, 212; see also Doc. No. 60 at 116. 

E. Exel Terminates Mr. Walters

Following the confrontation between Mr. Walters and Ms. Hooper, Exel initiated an investigation into the incident. Doc. No. 157 at 134. Mr. Elliott, the General 

Manager, Mr. Shaw, the Operations Manager, and Mickey Moza, a Human Resources 

Manager, collaborated in developing the relevant evidence. Id. at 70, 101, 132–34, 

144–45. This evidence comprised security camera footage and five written statements 

setting forth the competing accounts of the incident described in the previous subsection. Id. at 77, 129. Three of the statements came from Mses. Hooper, Tenisha 

Thomas, and Shaquel Thomas. Id. at 126, 132–33, 170, 196–97. Two came from 

Mr. Walters. Id. at 129, 208–13. Other employees in the area where Mr. Walters 

confronted Ms. Hooper denied witnessing the incident. Id. at 132.

At the end of the investigation, Messrs. Elliott and Moza recommended 

Mr. Walters’s termination. Id. at 71, 101, 176, 184. Meredith Singletary, a Senior 

Human Resources Director, Antonio Juarez, a Human Resources Director, and John 

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Dobbins, a Director of Operations, then approved the termination. Id. at 71–73, 99, 

101, 124–25, 187.

Mr. Shaw conveyed the decision to Mr. Walters by phone on March 16, 2022. 

Id. at 130; Doc. No. 60 at 94. The content of this phone conversation is in doubt. 

Exel memorialized the conversation in a “Corrective Action Form” stating that Exel 

was notifying Mr. Walters of his termination for “threatening [an] associate,” which 

Exel viewed as gross misconduct in violation of work rules. Doc. No. 60 at 94. The 

form also indicates that Mr. Shaw spoke to Mr. Walters specifically about the allegations that Mr. Walters grabbed Ms. Hooper and threatened her. Id. This does not 

match Mr. Walters’s recollection. Although he agrees that Mr. Shaw informed him of 

his termination, Mr. Walters denies receiving any explanation for it. Id. at 117–18; 

Doc. No. 57 at 29.

F. Mr. Walters Seeks Information About Continuing Insurance Coverage

Mr. Walters’s firing left him concerned about his medical insurance. Doc. No. 

60 at 126. Because Mr. Walters has a son who is a “special needs person that needs a 

lot of care,” he was interested in covering his son and himself under his wife’s medical 

insurance. Id.; Doc. No. 57 at 20. To facilitate this, he requested information from 

Exel about when his coverage would end. Doc. No. 60 at 126; Doc. No. 57 at 20.

On March 22, 2022, the third-party administrator of Exel’s employee benefits 

plan printed and sent Mr. Walters a notice under COBRA, a statute that allows terminated employees to continue their health coverage in some cases. 29 U.S.C. §§ 1161–

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63; Doc. No. 57 at 216, 227. The notice stated that Mr. Walters’s coverage had ended 

upon termination but could be extended under COBRA for eighteen months. Doc. 

No. 57 at 218. Mr. Walters asserts that he never received this notice. Id. at 20; Doc. 

No. 60 at 117. He nonetheless managed to get coverage under his wife’s medical insurance. Doc. No. 57 at 20. He also obtained unemployment benefits after the Texas 

Workforce Commission found that Exel fired him “for a reason that was not misconduct connected with work.” Doc. No. 60 at 95, 117.

G. Exel Replaces Mr. Walters

Sometime later, Exel chose a candidate to fill Mr. Walters’s old role. Doc. 

No. 57 at 17. Exel says this was a forty-one-year-old Operations Supervisor with the 

initials “B.P.,” whom it moved from another shift. Doc. No. 57 at 17–18, 75–76, 128, 

188. Mr. Walters says it was a twenty-three-year-old individual named John Ifegwu 

Oloh. Id. at 17; Doc. No. 60 at 117.

H. Mr. Walters Files Suit

In August 2022, Mr. Walters sued Exel for failure to pay him overtime wages 

under the Fair Labor Standards Act (“FLSA”) and for failure to provide him a timely 

COBRA notice. Doc. No. 1. He has amended his complaint twice and currently asserts 

a claim for wrongful age-based termination under the Age Discrimination in Employment Act (“ADEA”) in addition to his FLSA and COBRA claims. Doc. No. 18.

Exel has moved for summary judgment on all of Mr. Walters’s claims and moved 

to strike a spreadsheet and several text messages presented by Mr. Walters as summary 

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judgment evidence. Doc. Nos. 55, 61. Exel also asks for an award of attorneys’ fees 

incurred defending Mr. Walters’s COBRA claim. Doc. No. 56 at 29–30. The Court 

now grants the Motion for Summary Judgment, denies the Motion to Strike as moot, 

and denies the request for attorneys’ fees.

II. MOTION TO STRIKE AND EVIDENTIARY OBJECTIONS

Before considering Exel’s Motion for Summary Judgment, the Court considers 

several evidentiary objections raised by the parties, including in Exel’s Motion to Strike. 

The Court sustains one of Exel’s objections to Mr. Walters’s summary judgment evidence, denies Exel’s Motion to Strike, and overrules all other objections.

The Court starts with the objection it sustains. The evidence at issue is a decision of the Texas Workforce Commission granting Mr. Walters unemployment benefits on the finding that Exel fired him “for a reason that was not misconduct connected 

with work.” Doc. No. 60 at 95. As Exel notes, Texas law prohibits the Court from 

considering this finding as evidence. Under Texas Labor Code Section 213.007, a finding under the Texas Unemployment Compensation Act “may not be used as evidence 

in an action or proceeding, other than an action or proceeding under [the same] subtitle.” The Fifth Circuit has said that disregarding evidence covered by Section 213.007 

is proper at summary judgment. Williams v. Aviall Servs., 76 F. App’x 534, 536 (5th 

Cir. 2003) (per curiam); see also O’Brien v. Methodist Hosp., 2022 WL 18864879, at *9 

(S.D. Tex. Dec. 23, 2022), rep. & rec. adopted, 2023 WL 2249985 (S.D. Tex. Feb. 24, 

2023). The Court accordingly disregards the Texas Workforce Commission’s finding.

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The Court overrules the parties’ remaining objections. In the Motion to Strike,

Exel asks the Court to disregard a spreadsheet and certain text messages offered by 

Mr. Walters. Doc. No. 61. The spreadsheet records basic information about Mr. Walters’s fellow Operations Supervisors, some of the text messages concern shift schedules,

and other text messages concern Mr. Moza, one of Exel’s Human Resources Managers. 

Doc. No. 60 at 14–28, 122, 138. Whether or not the Court considered these materials, 

it would resolve Exel’s Motion for Summary Judgment the same way. The Court therefore finds the Motion to Strike moot. Simms v. Am. Int’l Grp., Inc., 2002 WL 87344, 

at *10 (N.D. Tex. Jan. 16, 2002) (Solis, J.).

The Court overrules Mr. Walters’s first evidentiary objection for similar reasons. 

Mr. Walters claims that Exel failed to properly amend “and/or” supplement its interrogatories. Doc. No. 64 at 5–7. Although Mr. Walters asks the Court to strike “all of 

[Exel’s] summary judgment evidence” on this basis, he does not explain why any of 

Exel’s interrogatory responses other than its response to his third interrogatory require 

amendment or supplementation. Id. at 7–8. The Court therefore limits its attention 

to the third interrogatory, which asks for the name of the individual who replaced 

Mr. Walters at Exel. Doc. No. 64-1 at 6. Because the Court’s decision does not depend 

on the identity of this individual, the Court overrules Mr. Walters’s objection as moot.

The Court also overrules Mr. Walters’s objections to two declarations filed by 

Exel. Mr. Walters says these declarations do “not appear [to] have been disclosed in 

proper discovery requests.” Doc. No. 59 at 22. Assuming Mr. Walters means that Exel 

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should have disclosed the declarations in response to (not in) discovery requests, the 

Court cannot sustain his objection because he has provided the Court with no information about the discovery requests. The Court cannot verify whether Exel complied 

or failed to comply with those requests.

That leaves Mr. Walters’s last and most cryptic objection. He claims that Exel 

failed to produce “the computer records of Mr. Moza” or “the calendar of Mr. Shaw,” 

Mr. Walters’s manager. Doc. No. 59 at 21. He appears to believe that the computer 

records are relevant to his claim that Exel fired him because of his age, but it is unclear 

why the calendar is relevant. Id. at 21–22. It is also unclear what relief Mr. Walters 

seeks. Exel claims it produced Mr. Moza’s documents and no longer possesses 

Mr. Shaw’s calendar. Doc. No. 60 at 102–03. Mr. Walters has not asked the Court 

to draw the adverse inference that the calendar and any purportedly unproduced computer records were unfavorable to Exel, nor has he moved to defer a summary judgment 

ruling pending production of these documents. Both forms of relief also require showings Mr. Walters has not attempted to make. An adverse inference requires a showing 

that Exel acted with the intent to hide information from Mr. Walters, but Mr. Walters 

asserts only that evidence went missing during the parties’ dispute. See Fed. R. Civ. 

P. 37(e)(2); Ford v. Anderson Cnty., 102 F.4th 292, 324 (5th Cir. 2024) (per curiam); 

see also Tesoriero v. Carnival Corp., 965 F.3d 1170, 1183 (11th Cir. 2020) (Grant, J.) 

(“[A]nticipation of litigation is not the standard for spoliation sanctions—bad faith 

is.”). Deferral of a summary judgment ruling requires the submission of an affidavit or 

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declaration showing Mr. Walters needs discovery that will be material to the ruling, 

but Mr. Walters neither offers such a document nor tries to show that there is material 

discovery he needs to respond to Exel’s summary judgment motion. Fed. R. Civ. P. 

56(d); January v. City of Huntsville, 74 F.4th 646, 651–52 (5th Cir. 2023). Insofar as 

Mr. Walters wants the Court to disregard summary judgment evidence because of 

Exel’s alleged failure to produce documents, he has not identified the evidence, and the 

Court overrules the objection.

III. SUMMARY JUDGMENT

Having resolved the parties’ evidentiary disagreements, the Court takes up and 

grants Exel’s Motion for Summary Judgment.

A. Legal Standard

The Court grants motions for summary judgment when there is no genuine dispute between the parties about any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists 

if a reasonable jury could resolve the parties’ factual disagreement in favor of either 

party and the resolution could affect the outcome of their litigation. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249–50 (1986). 

“A party asserting that a fact cannot be or is genuinely disputed must support 

the assertion by citing to particular parts of materials in the record,” showing that “the 

materials cited do not establish the absence or presence of a genuine dispute,” or showing “that an adverse party cannot produce admissible evidence to support the fact.” 

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Fed. R. Civ. P. 56(c)(1). “The [C]ourt need consider only the cited materials, but it 

may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

B. Discussion

The Court grants Exel summary judgment on each of Mr. Walters’s three claims. 

The Court addresses Mr. Walters’s ADEA claim in the next subsection, his FLSA claim 

in the subsection following, and his COBRA claim in a final subsection.

1. ADEA

The Court first grants Exel summary judgment on Mr. Walters’s ADEA claim. 

While Mr. Walters claims that Exel terminated him because of his age, the record shows 

that Exel terminated him because a coworker, Ms. Hooper, accused him of grabbing 

her and threatening to put her in a chokehold.

The ADEA prohibits an employer from discharging an employee aged forty or 

older because of his age. 29 U.S.C. §§ 623(a)(1), 631(a); Gross v. FBL Fin. Servs., 557 

U.S. 167, 178 (2009). If an employee asserting a claim of wrongful discharge relies on 

circumstantial evidence, a three-step burden shifting framework applies to the claim. 

First, the employee must present a prima facie case that (1) his employer fired him from 

his job, (2) he was qualified for the job, (3) he was within the class protected by the 

ADEA, and (4) his employer (a) replaced him with someone outside the protected class, 

(b) replaced him with someone younger, or (c) otherwise discharged him because of his

age. Benjamin v. Felder Servs., L.L.C., 753 F. App’x 298, 301 (5th Cir. 2018) (per curiam). If the employee makes his prima facie case, “the burden shifts to the employer 

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to provide a legitimate, non-discriminatory reason for the employment decision.” Id. 

(citation omitted). If the employer carries its burden, the employee may try to show 

that the employer’s proffered reason is a pretext for discrimination. Id. at 301–02.

Since Mr. Walters relies on circumstantial evidence that Exel terminated him 

because of his age, this burden shifting framework applies. The parties disagree at the 

first step of the framework about the age of the employee who replaced Mr. Walters 

after his termination, but the Court will pass over this dispute. Doc. No. 59 at 23; 

Doc. No. 63 at 9. Assuming Mr. Walters is right that he has made a prima facie case of 

discrimination, his claim still fails at the second and third steps of the framework.

At the second step, Exel undisputedly offers a legitimate, non-discriminatory 

reason for terminating Mr. Walters. Prior to his termination, Exel found evidence that 

Mr. Walters twice engaged in or threatened physical violence to others at his warehouse. On the earlier occasion, Exel found evidence that Mr. Walters aggressively 

shoved another worker and gave Mr. Walters a warning that similar misconduct could 

result in termination. Id. at 89, 99, 104, 107–08. On the later occasion, Exel found 

evidence that Mr. Walters grabbed Ms. Hooper’s jacket and threatened to put her in a 

chokehold unless she calmed down. Doc. No. 57 at 31, 62, 109, 145, 157–59, 163–

65, 170, 196–97, 214. The latter conduct was grounds for termination under Exel’s 

rules and policies, and Exel duly cited the conduct in its record of Mr. Walters’s termination. Id. at 88, 130, 199–203; Doc. No. 60 at 94. This was a legitimate reason for

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the termination. See Davis v. Wal-Mart Stores, Inc., 2013 WL 5935235, at *3 (W.D. 

La. Nov. 5, 2013). 

Mr. Walters’s proffered evidence of his innocence does not alter this conclusion. 

The ADEA prohibits age discrimination, not good faith mistakes picking among the 

reasonable inferences presented by an investigation into an employee’s complaint. Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010). The Court expresses no opinion on the wisdom of Exel’s decision to fire Mr. Walters as a result of 

its investigation into Ms. Hooper’s complaint against him. The Court simply notes 

that Mr. Walters offers no reason to think Exel acted on the evidence supporting 

Ms. Hooper’s complaint because of his age. See Mitchell v. TJX Cos., 2019 WL 

3806369, at *6 (N.D. Miss. Aug. 13, 2019); Moore v. Macy’s Retail Holdings, Inc., 2019 

WL 1979363, at *2 (N.D. Tex. May 3, 2019) (Godbey, J.); Cartagena v. Aegis Mortg. 

Corp., 275 F.3d 46, 2001 WL 1268730, at *4 (5th Cir. 2001) (per curiam) (Title VII).

The Court finds no support for Mr. Walters’s argument that Exel’s disciplinary 

rationale for his firing was a pretext for age discrimination. At the third step of the 

burden shifting framework, Mr. Walters points to evidence that Mr. Walters’s manager, Mr. Shaw, called Mr. Walters “old man” or “paw paw.” Id. at 24; Doc. No. 60 

at 117, 132. Whatever Mr. Shaw may have meant by using these nicknames, it was 

immaterial to Mr. Walters’s termination. Mr. Shaw neither participated in the decision 

to fire Mr. Walters nor recommended that decision. It was Mr. Elliott, a General Manager, and Mr. Moza, a Human Resources Manager, who recommended the termination, 

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and it was Meredith Singletary, a Senior Human Resources Director, Antonio Juarez, 

a Human Resources Director, and John Dobbins, a Director of Operations, who approved the termination. Supra Section I.E. If Mr. Shaw exercised a more subtle influence on the termination decision, Mr. Walters has not attempted to show it. The 

Court has no basis to infer that any ageist attitude held by Mr. Shaw infected the 

decision on these facts. See Williams v. Waste Mgmt., Inc., 818 F. App’x 315, 323 (5th 

Cir. 2020) (per curiam) (supervisor’s ageist comments were not evidence of pretext 

because he did not influence the decision to terminate plaintiff); Jones v. Cemex, Inc., 

2019 WL 1259330, at *4–5 (S.D. Tex. Mar. 1, 2019) (similar), rep. & rec. adopted, 

2019 WL 1255228 (S.D. Tex. Mar. 19, 2019).

Mr. Walters also highlights evidence that Exel terminated at least three other 

Operations Supervisors over the age of forty, but this provides a seriously incomplete 

picture of the record. Doc. No. 59 at 23–24. The same document on which Mr. Walters relies for his figure suggests that Exel terminated ten Operations Supervisors between November 2019 and April 2022, five of whom were over the age of forty and 

five of whom were under the age of forty. Doc. No. 60 at 138; see Koteras v. Briggs 

Equip., Inc., 2020 WL 13609337, at *7 (W.D. Tex. May 12, 2020) (“Plaintiff’s argument regarding the terminations he has cited ignores that other, younger employees 

were also terminated.”), aff’d, 854 F. App’x 583 (5th Cir. 2021) (per curiam). According to that document, the total pool of Operations Supervisors in this period comprised 

twelve employees over the age of forty and eight under the age of forty. Doc. No. 60 

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at 138. Far from showing a pattern of terminations favoring younger Operations Supervisors, these figures suggest that Exel disproportionately fired its younger Operations Supervisors. See Allen v. Highlands Hosp. Corp., 545 F.3d 387, 400 (6th Cir. 2008). 

Absent additional evidence linking one or more of the cited terminations to discriminatory intent in Mr. Walters’s termination, this statistical pattern hardly shows that 

Exel’s stated reason for Mr. Walters’s termination was pretextual. See Jefferson v. MillerCoors, L.L.C., 440 F. App’x 326, 331 (5th Cir. 2011) (per curiam) (citing EEOC v. 

Tex. Instruments, Inc., 100 F.3d 1173, 1184 (5th Cir.1996)); Kennedy v. Parkview Baptist 

Sch., Inc., 2014 WL 7366256, at *10 (M.D. La. Dec. 24, 2014), aff’d, 618 F. App’x 233 

(5th Cir. 2015) (per curiam).

The Court concludes that Exel had a legitimate, non-discriminatory, and unrebutted reason for terminating Mr. Walters after it discovered evidence he grabbed and 

threatened Ms. Hooper. The Court accordingly dismisses Mr. Walters’s ADEA claim.

2. FLSA

The Court next grants Exel summary judgment on Mr. Walters’s claim for overtime pay under the FLSA. Exel has shown that Mr. Walters’s position with the company was exempt from the FLSA’s overtime requirements.

Under the FLSA, covered employees are entitled to a minimum wage of $7.25 

an hour and time-and-a-half pay for work in excess of forty hours a week. 29 U.S.C. 

§§ 206(a)(1)(C), 207(a)(1); Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39, 44 

(2023). Some employees are not covered by these pay provisions because of the nature 

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of their work. 29 U.S.C. § 213(a). Relevant here is the “executive exemption” from 

the pay provisions, which withdraws the FLSA’s minimum wage and overtime protections from employees “employed in a bona fide executive . . . capacity.” Id. § 213(a)(1). 

An employee employed in a bona fide executive capacity is an employee:

(1)Compensated on a salary basis at not less than the level set forth 

in [29 C.F.R.] § 541.600; 

(2)Whose primary duty is management of the enterprise in which the 

employee is employed or of a customarily recognized department 

or subdivision thereof;

(3)Who customarily and regularly directs the work of two or more 

other employees; and 

(4)Who has the authority to hire or fire other employees or whose 

suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees 

are given particular weight.

29 C.F.R. § 541.100(a). Between Mr. Walters’s hiring and firing, the required salary 

level increased from $455 a week to $684 a week. Compare id. § 541.0600(a) (2011), 

with id. § 541.0600(a) (2022).

Exel contends that Mr. Walters is an exempt executive, and Mr. Walters disagrees. Doc. No. 56 at 20; Doc. No. 59 at 4–5. Although Mr. Walters’s briefing is 

unclear, he appears to dispute only the assertion that he engaged in management. A 

Department of Labor regulation provides that:

“management” includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates 

of pay and hours of work; directing the work of employees; maintaining 

production or sales records for use in supervision or control; appraising 

employees’ productivity and efficiency for the purpose of recommending 

promotions or other changes in status; handling employee complaints and 

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grievances; disciplining employees; planning the work; determining the 

techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools 

to be used or merchandise to be bought, stocked and sold; controlling the 

flow and distribution of materials or merchandise and supplies; providing 

for the safety and security of the employees or the property; planning and 

controlling the budget; and monitoring or implementing legal compliance 

measures.

29 C.F.R. § 541.102.

Applying this standard, the Court finds that Mr. Walters’s work as a warehouse

Operations Supervisor was managerial. The record shows that Mr. Walters oversaw a 

team of up to forty-five employees and carried out multiple duties defined by regulation 

as management. Doc. No. 57 at 54. He interviewed prospective employees, and Exel 

invariably hired candidates he recommended unless they failed a background or other 

eligibility check. Id. at 27, 79, 102. He also supervised the training of employees, 

planned the work priorities for their shifts, and then directed their work. Id. at 12–15, 

27–28, 32–33, 47–48, 50–56, 90–91, 131, 139–41. Other managerial duties unenumerated by regulation but closely related to the enumerated duties fell to Mr. Walters 

as well. These included reviewing productivity reports and monitoring employees for 

compliance with Exel’s rules and safety requirements. Id. at 38–41, 56. Considered in 

its totality, the record shows that Mr. Walters engaged extensively in management. See 

Ramos v. Baldor Specialty Foods, Inc., 2011 WL 2565330, at *6 (S.D.N.Y. June 16, 2011)

(warehouse captain with several similar duties engaged in management), aff’d, 687 F.3d 

554 (2d Cir. 2012); Branstetter v. Gen. Parts Distrib., LLC, 2013 WL 6780672, at *11 

(D. Or. Dec. 19, 2013) (similar).

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The Court is unconvinced by Mr. Walters’s attempts to downplay the evidence 

of his managerial work. Mr. Walters’s theme is that his work required little independent judgment. See Doc. No. 59 at 3–5. He appears to rely on the fact that his superiors

set his schedule, gave him directions he had to obey, tasked him with monitoring employee safety, and had him issue reminders about safety and operational matters that 

were often repetitive. See id. at 5; Doc. No. 60 at 115–16. He also complains that his 

superiors failed to tell him when they gave one of his employees, Ms. Hooper, dispensation to come to work late. See Doc. No. 59 at 5–11. These facts prove that Mr. Walters was not Exel’s top manager, but they are consistent with Mr. Walters being a middle manager. An employee does not cease to be a manager simply because he manages 

within constraints imposed by more senior personnel. See Aguirre v. SBC Commc’ns, 

Inc., 2007 WL 2900577, at *20–21 (S.D. Tex. Sept. 30, 2007) (Rosenthal, J.), aff’d, 

299 F. App’x 315 (5th Cir. 2008) (per curiam); Ramos, 2011 WL 2565330, at *6 n.5; 

Williams v. Vynckier Enclosure Sys., Inc., 2005 WL 2810709, at *10 (S.D. Tex. Oct. 27, 

2005). Mr. Walters exercised managerial functions like monitoring, directing, and correcting employees despite the limitations imposed on him by superiors.

Mr. Walters makes one other point in opposition to classifying his work as managerial, but he does not properly present it in his summary judgment briefing. In his 

response to Exel’s Motion to Strike he suggests that he performed manual labor. Doc. 

No. 64 at 10. Even if it were properly presented, this fact would not change the proper 

classification of his work. Managerial work need only be his “primary duty” to support 

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the classification. 29 C.F.R. § 541.700(a); Lovelady v. Allsup’s Convenience Stores, Inc., 

304 F. App’x 301, 305 (5th Cir. 2008) (per curiam). There is no serious dispute that 

this was the case. Mr. Walters spent approximately seventy percent of his time training, supervising, directing, and resolving conflicts among his employees. Doc. No. 57 

at 103, 191. He spent another fifteen percent of his time planning work and evaluating 

process improvements. Id. His job description called for him to spend the remainder 

of his time on tasks like interviewing prospective employees, counseling current employees, interfacing with vendors, and reviewing performance reports. Id. at 191–92. 

Mr. Walters himself admits that he spent the “majority” of his time monitoring employee safety and that a “great deal” of his work involved giving instructions to employees. Doc. No. 60 at 115. That Mr. Walters did some manual work loading items

on trucks and picking up debris does not alter the inference that his primary duty was 

managerial. Id.; see Velazquez Fernandez v. NCE Foods, Inc., 405 F. Supp. 2d 179, 194 

(D.P.R. 2005) (primary duty of warehouse manager was management even though he 

loaded trucks), aff’d, 476 F.3d 6 (1st Cir. 2007).

The Court concludes that Mr. Walters’s primary duty was management. Since 

the other elements of the executive exemption are undisputedly satisfied, Mr. Walters’s 

position was exempt from the FLSA’s overtime provisions. The Court therefore dismisses his claim for overtime pay.

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3. COBRA

The Court lastly grants Exel summary judgment on Mr. Walters’s claim that he 

failed to receive a notice of his rights to continuing health benefits under COBRA. The 

record evidence demonstrates that Exel discharged its duty to provide notice by having 

its third-party administrator mail a summary of Mr. Walters’s rights to him. Although 

the Court rules for Exel, it exercises its discretion not to award Exel attorneys’ fees

incurred defending Mr. Walters’s COBRA claim.

COBRA allows an employee covered by his employer’s qualifying group health 

benefits plan to elect continuing coverage after his termination so long as his employer 

did not fire him for gross misconduct. 29 U.S.C. §§ 1161(a), 1163(2). The employer 

must notify its plan administrator of the termination within thirty days of its occurrence, and the administrator must notify the employee within fourteen days of the 

employer’s notification. Id. §§ 1166(a)(2)–(4), (c). If the administrator fails to provide 

the employee with proper notice, the employee may sue the administrator to recover 

health benefits and civil penalties. Id. §§ 1132(a), (c)(1); 29 C.F.R. § 2575.502c-3.

Mr. Walters claims that he did not receive a COBRA notice from Exel. Doc. 

No. 18 ¶¶ 59–68; Doc. No. 57 at 20; Doc. No. 60 at 117. The parties do not dispute 

that Exel administers its employees’ health plan, so the Court will assume that Exel is 

a proper defendant. Hager v. DBG Partners, Inc., 903 F.3d 460, 466 & n.25 (5th Cir. 

2018). The parties’ disagreement instead centers on the adequacy of Exel’s efforts to 

give the notice Mr. Walters never received.

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Department of Labor regulations provide that required notice “shall be furnished 

in any manner consistent with the requirements of [29 C.F.R.] § 2520.104b–1.” 29 

C.F.R. § 2590.606-4(f). The cross-referenced Section 2520.104b-1 states that a plan 

administrator required to furnish a document “shall use measures reasonably calculated 

to ensure actual receipt of the material.” The Court therefore asks whether Exel used 

such measures to convey a timely COBRA notice to Mr. Walters. DeBene v. BayCare 

Health Sys., Inc., 688 F. App’x 831, 839 (11th Cir. 2017) (per curiam).

It did. Exel terminated Mr. Walters on March 16, 2022. Doc. No. 57 at 188; 

Doc. No. 60 at 114. About six days later, Exel’s third-party administrator printed a 

COBRA notice and sent it to him at his last known address. Doc. No. 57 at 216, 227. 

This mailing was timely and reasonably calculated to ensure that Mr. Walters received 

the notice. The Department of Labor’s regulations expressly contemplate the possibility that notice will be sent by “first, second, or third-class mail.” 29 C.F.R. 

§ 2520.104b-1; Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007)

(interpreting the same regulations in a different context). Courts have likewise approved notice by mail. E.g., Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 183 (2d Cir. 

2016); Myrick v. Discover Bank, 662 F. App’x 179, 183 (3d Cir. 2016) (per curiam); 

Hearst v. Progressive Foam Techs., Inc., 641 F.3d 276, 281 (8th Cir. 2011); DeBene, 688 

F. App’x at 839–40; cf. also Degruise v. Sprint Corp., 279 F.3d 333, 337 (5th Cir. 2002)

(approving mail notice prior to the Department of Labor’s adoption of its current notice regulations). Since there is no indication that mailing was inappropriate under the 

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circumstances of this case, the Court follows these authorities and finds that the mailing to Mr. Walters sufficient satisfied Exel’s notice obligations under COBRA.

Having found that Exel made a reasonable effort to notify Mr. Walters of his 

COBRA rights, the Court dismisses Mr. Walters’s COBRA claim and turns to Exel’s 

request to recover attorneys’ fees incurred defending that claim. In a COBRA proceeding, the Court “in its discretion may allow a reasonable attorney’s fee and costs of 

action to either party. 29 U.S.C.A. § 1132(g). Five factors guide the Court in the 

exercise of its discretion. Randolph v. E. Baton Rouge Par. Sch. Sys., 19 F.4th 749, 759 

(5th Cir. 2021). They are:

(1) the degree of the opposing parties’ culpability or bad faith; (2) the 

ability of the opposing parties to satisfy an award of attorneys’ fees; 

(3) whether an award of attorneys’ fees against the opposing party would 

deter other persons acting under similar circumstances; (4) whether the 

parties requesting attorneys’ fees sought to benefit all participants and 

beneficiaries of an ERISA plan or to resolve a significant legal question 

regarding ERISA itself; and (5) the relative merits of the parties’ positions.

Wegner v. Standard Ins. Co., 129 F.3d 814, 821 (5th Cir. 1997); Rhea v. Alan Ritchey, 

Inc. Welfare Benefit Plan, 858 F.3d 340, 347 (5th Cir. 2017). The Court finds that none 

of these factors provide more than weak support for a fees award in this case and that 

an award is, on balance, unwarranted. See Tenet Healthcare Ltd. v. UniCare Health Plans 

of Tex., Inc., 2008 WL 5101558, at *18 (S.D. Tex. Nov. 26, 2008); Pitts v. Am. Sec. Life 

Ins. Co., 931 F.2d 351, 358 (5th Cir. 1991).

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IV. CONCLUSION

The Court GRANTS Exel’s Motion for Summary Judgment and DISMISSES

Mr. Walters’s claims with prejudice. The Court DENIES Exel’s Motion to Strike as 

moot. A final judgment will issue separately.

SO ORDERED. 

Signed July 29th, 2024. 

____________________________________

ED KINKEADE

UNITED STATES DISTRICT JUDGE

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