DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JASON WALTERS,

Plaintiff, 

v.

EXEL, INC. D/B/A DHL SUPPLY CHAIN,

Defendant. 

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CIVIL ACTION NO. 3:22-cv-01840-K 

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Respectfully submitted,

/s/ Annie Lau 

Annie Lau

Texas Bar No. 24057723 

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550 

Dallas, Texas 75201

Telephone: (214) 220-9100 

Facsimile: (214) 220-9122 

alau@fisherphillips.com 

COUNSEL FOR DEFENDANT

EXEL INC. d/b/a DHL SUPPLY CHAIN

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TABLE OF CONTENTS

Page 

I. SUMMARY ........................................................................................................................ 1

II. PLAINTIFF’S “OBJECTIONS” TO SUMMARY JUDGMENT EVIDENCE ................. 2

III. LEGAL AUTHORITY AND ARGUMENT ....................................................................... 2

A. Plaintiff Fails to Raise an Issue of Material Fact Regarding his FLSA Claim ....... 2

B. Plaintiff Fails to Raise an Issue of Material Fact Regarding his Age 

Discrimination Claim .............................................................................................. 5

1. Plaintiff fails to establish the prima facie elements of his age 

discrimination claim.................................................................................... 5

2. Plaintiff cannot overcome Defendant’s legitimate, non-discriminatory 

reason for his termination ........................................................................... 7

C. Plaintiff Fails to Raise an Issue of Material Fact Regarding his COBRA Claim ... 8

D. Plaintiff Does Not Dispute That He is Not Entitled to Compensatory or Punitive 

Damages .................................................................................................................. 9

E. Plaintiff Makes Unsubstantiated Accusation that “Records Gone Missing” .......... 9

F. Plaintiff Improperly Objects to Witnesses ............................................................ 10

IV. CONCLUSION ................................................................................................................. 10

CERTIFICATE OF SERVICE ...................................................................................................... 11

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TABLE OF AUTHORITIES

 Page(s) 

Cases

Amezquita v. Beneficial Texas, 

264 F. App’x 379 (5th Cir. 2008) ..............................................................................................7

Bricklayers and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. 

Moulton Masonry & Const., LLC, 

779 F.3d 182 (2nd Cir. 2015).....................................................................................................5

Diduck v. Kaszyci & Sons Contractors, Inc., 

974 F.2d 270 (2nd Cir 1992)......................................................................................................5

King v. Illinois Cent. R.R., 

337 F.3d 550 (5th Cir. 2003) ...................................................................................................10

United States v. Wise, 

221 F.3d 140 (5th Cir. 2000) ...............................................................................................9, 10

Statutes

29 U.S.C. §1161, et seq....................................................................................................................8

Tex. Lab. Code § 213.007 ................................................................................................................8

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DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Defendant Exel Inc. d/b/a DHL Supply Chain (“Defendant” or “Exel”) files this Reply to 

Plaintiff Jason Walter’s Brief in Opposition (“Plaintiff’s Opposition”)1 (Dkt. 59) to Defendant’s

Motion for Summary Judgment (“MSJ”) (Dkt. 56). In support thereof, Defendant would 

respectfully show the Court as follows: 

I. SUMMARY

The facts in this matter are simple. Plaintiff put his hands on a subordinate and threatened 

her. Accordingly, he was terminated. Plaintiff’s termination had no relation whatsoever to his age. 

Further, Plaintiff was properly classified as an exempt employee given his plethora of managerial 

responsibilities that he himself admits. Finally, COBRA notice was properly sent to Plaintiff. 

In an effort to obscure these straightforward facts, Plaintiff attempts to cloud the record and 

create an issue of material fact by manufacturing inadmissible and unsupported conjectures. 

Plaintiff’s Opposition consists of incorrect legal authority, a hodgepodge of deposition excerpts, 

and inadmissible evidence.2 Although much of Plaintiff’s Opposition is inapposite to the legal 

authorities and arguments set forth in the MSJ, this Reply seeks to address and parse through

Plaintiff’s inadmissible evidence, speculation, confusing and conclusory arguments. 

Ultimately, Plaintiff has failed to present evidence of any discriminatory animus relating 

to his termination and fails to overcome Defendant’s legitimate non-discriminatory reason for his 

termination. With regard to his FLSA claim, Plaintiff cites to and argues the incorrect exemption. 

Nevertheless, Plaintiff does not dispute the vast amount of managerial responsibilities that were 

set forth in Defendant’s MSJ. Finally, Plaintiff fails to rebut Defendant’s evidence that he was in 

1

 Plaintiff’s Opposition is 30 pages and contains no table of contents and no table of authorities. Accordingly, 

this is not in compliance with LOCAL RULE 7.2(d). 2 Defendant will separately address the litany of inadmissible evidence Plaintiff relies on in its Motion to 

Strike.

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fact sent the COBRA notice as required and does not even argue that he did not receive it. 

Defendant has demonstrated there is no triable issue as to any material fact and would 

respectfully ask the Court to grant its motion for summary judgment in full. 

II. PLAINTIFF’S “OBJECTIONS” TO SUMMARY JUDGMENT EVIDENCE

Before addressing the merits, Defendant notes that Plaintiff’s Opposition contains several 

objections to Defendant’s summary judgment evidence. See, e.g., Plaintiff’s Opposition at 22 

(objecting to the declarations of Juarez, Gillis, Etter based on Plaintiff’s cryptic argument that “it 

does not appear they have been disclosed in proper discovery requests); Id. at 24 (objecting to 

substantive portions of the Gillis declaration). Similarly, Plaintiff’s Opposition appears to take 

issue with purported “Records Gone Missing” in connection with Shaw’s Calendar and Moza’s 

computer records. Id. at 22. As further discussed below, the Court should disregard the objections 

to the Juarez, Gillis, and Etter declarations, as Plaintiff has failed to provide adequate argument or 

authorities to support an objection under FED. R. CIV. P. 56(c)(2). See LOCAL RULE 7.1(d) (“[a]n 

opposed motion must be accompanied by a brief that sets forth the moving party’s objections of 

fact and/or law, and argument and authorities”) (emphasis added). While it is not entirely clear 

what relief Plaintiff’s Opposition seeks by its “Records Gone Missing” paragraph, the Court should 

similarly disregard this improper objection as Plaintiff has not sought the appropriate relief.

III. LEGAL AUTHORITY AND ARGUMENT

A. Plaintiff Fails to Raise an Issue of Material Fact Regarding his FLSA Claim 

As an initial matter, Plaintiff opens his brief by citing requirements for the administrative 

exemption under the Fair Labor Standards Act (“FLSA”). However, Defendant does not argue that 

Plaintiff falls under the administrative exemption. Rather, Defendant has demonstrated that 

Plaintiff’s role as an Operations Supervisor qualified for the executive exemption under the FLSA. 

Plaintiff appears to argue the following to support his position that he was not a manager: 

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• Plaintiff’s job description stated that “management maintains the right to assign or reassign 

duties and responsibilities to this job at any time.”

• Plaintiff worked on the warehouse floor with the employees and the equipment.

• Eartis Shaw, Operations Manager, was in charge of employees and made the decision as 

to whether to run an extra shift or not.

• Plaintiff’s job was repetitive where he met with employees each morning discussing 

various safety issues and the day’s activities and reminders.

• He was not aware of any grace period that was provided to DeNeill Evaite Hooper (the 

employee who had reported Plaintiff grabbed her jacket and threatened her).

• He did not set what time he was supposed to show up for work.

• Mickey Moza, Human Resources Representative, failed to conduct a sufficient 

investigation, which led to Plaintiff’s termination.

Plaintiff cites to a March 4, 2022 email that was “sent out to management level employees” 

and instead of stating plainly that he did not receive this email, he instead craftily argues that 

Plaintiff’s name was not on the document. (See Plaintiff’s APP 37.) Yet, the email clearly states 

that it was sent to “Forney Supervisors.” This an example of an attempt by Plaintiff to muddy the 

waters and manufacture purported fact issues. As discussed further in Defendant’s Motion to 

Strike, much of Plaintiff’s evidence is unauthenticated and inadmissible. Moreover, Plaintiff draws 

improper conclusions from the inadmissible evidence. However, even taking Plaintiff’s arguments 

at face value, he fails to raise any issue of material fact regarding his FLSA claim. 

Plaintiff does not deny the facts set forth in Defendant’s MSJ. As discussed, Exel’s job 

description for the Operations Supervisor role states 70 percent of that position involves “Associate 

Interaction,” including conducting one-on-one coaching and performance reviews, directing 

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Associates’ daily activities, and managing turnover of hourly staff. (Defendant’s APP 189-191). 

Process improvement and planning were also responsibilities of the Operations Supervisors, as 

were conducting interviews and enforcing Exel’s company policies. (Id.) Plaintiff does not deny 

any of this. 

By Plaintiff’s own account, he admits he “supervised a 45-member team,” “manage[d] 

labor and expenses[,]” delegated work to staff and set their priorities, set employees’ schedules, 

and “[r]ecruited, interviewed[,] and selected employees to fill vacant roles[.]” (See Defendant’s 

APP 062-063 (Plaintiff’s resumé); see also APP 041, Lines 9-21 (Plaintiff verifying the accuracy 

of his resumé); see, e.g., APP 049, Line 25; APP 050, Lines 1-11 (Plaintiff testifying he would 

redirect employees throughout the day to ensure timely delivery of loads)). He also recommended 

a subordinate employee for promotion, which Exel granted. (Defendant’s APP 047, Lines 22-25; 

APP 048, Lines 1-5). Plaintiff also avers he trained employees, monitored employee compliance 

with company policies, and coached employees who he identified as having performance 

problems. (Defendant’s APP 062-063). Plaintiff claims he would monitor employee safety and 

productivity and, if someone was having an issue, he would discuss with them how to improve 

and, if those efforts were unsuccessful, would issue them disciplinary actions. (Defendant’s APP 

038, Lines 10-20; APP 039, Lines 14-19; APP 044, Line 25; APP 045, Lines 1-9; APP 051, Lines 

6-15; APP 054, Lines 14-20). Moreover, Plaintiff claims his supervisor, Shaw, selected him to 

“rewrite and modernize” the procedural manuals for Exel’s Forney, Texas warehouse, which he 

did based upon his knowledge and experience. (Defendant’s APP 042, Lines 7-25; APP 043, Lines 

1-17). When Exel relocated its operations from Terrell to Forney, Texas, Plaintiff testified he was 

in charge of shutting down and setting up Exel’s operations at those facilities. (Defendant’s APP 

043, Lines 18-25). On a daily basis, Plaintiff used his skills and experience to determine how to 

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best address problems that had been reported to him by the prior shift’s Operations Supervisor and 

to set the warehouse’s priorities for the day. (Defendant’s APP 008, Lines 16-25; APP 009, Lines 

1-25; APP 010, Lines 1-25; APP 011, Lines 1-25; APP 012, Lines 1-5; APP 053, Lines 13-23). 

Plaintiff does not dispute any of this. 

Plaintiff also raises a convoluted argument about Mr. Shaw knowing that Ms. Hooper could 

be late and failed to inform Mr. Moza – and that this failure to inform could constitute a material 

false representation especially in the context of a fiduciary relationship (if there even is one). In 

support of this argument, Plaintiff cites to Diduck v. Kaszyci & Sons Contractors, Inc., 974 F.2d 

270, 276 (2nd Cir 1992). As an initial matter, the matter has received severe negative treatment and 

abrogation has been recognized by more recent cases. See Bricklayers and Allied Craftworkers 

Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182 (2nd Cir. 

2015). Moreover, this is a case regarding participants and beneficiaries of pension and welfare 

funds alleging breach of fiduciary duty by the trustee. It is unclear how this argument relates to 

Plaintiff’s FLSA claim, or any of his other claims. Contrary to Plaintiff’s assertion, this incoherent 

argument does not create a genuine dispute of material fact.

Plaintiff has not disputed the vast amount of evidence provided by Defendant and has failed 

to create a genuine dispute of material fact regarding his FLSA claim that he was improperly 

classified as an exempt employee. Accordingly, Defendant is entitled to summary judgment as a 

matter of law.

B. Plaintiff Fails to Raise an Issue of Material Fact Regarding his Age Discrimination 

Claim

1. Plaintiff fails to establish the prima facie elements of his age discrimination claim

Once again, Plaintiff relies on unauthenticated evidence on which he draws his own 

improper conclusion. Plaintiff asserts that he was replaced by an employee named John Ilegwu 

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Oloh, age 24. Plaintiff relies on a spreadsheet, which Plaintiff did not create, and that is in no way 

authenticated through deposition or otherwise. Incredibly, Plaintiff relies on his own unsupported 

and erroneous speculation as evidence and asserts that Mr. Oloh replaced Plaintiff because the 

unauthenticated spreadsheet reflects an “Adjusted Service Date” of March 16, 2022, and the 

supervisor was noted as Eartis Shaw. This is simply not admissible evidence. Moreover, Plaintiff 

disregards Defendant’s evidence that he was in fact replaced by another existing worker who was 

age 41. (See Defendant’s APP 073, Lines 9-17; APP 074, Lines 6-18; APP 126, Lines 5-9; APP 

015, Line 25; APP 016, Lines 1-6, APP 186, ¶¶ 8-9.)

Plaintiff also asserts that Shaw would call Plaintiff “papa bear” and “old man.” However, 

as Defendant has shown, while Shaw assisted to compile evidence in connection with the 

investigation related to Plaintiff, he was not one of the ultimate decision-makers in Plaintiff’s 

termination. (Defendant’s APP 068, Lines 16-25; APP 069, Lines 1-7; APP 069, Lines 16-20; APP 

070, Lines 3-8; APP 171, Lines 4-14; APP 122, Lines 11-17; APP 174, Lines 3-24; APP 099, Lines 

11-23; see also APP 132, Lines 18-24; APP 134, Lines 6-16 (Shaw stating that he gathered 

evidence as requested by Moza and informed Elliott of what evidence he gathered, “And then I 

had nothing else to do with [the termination decision]” though he did agree with the ultimate 

decision)). Moreover, Shaw gave Plaintiff raises and good performance reviews. (Defendant’s APP 

019, Lines 12-21; APP 019, Lines 22-25; APP 020, Lines 1-7).

Finally, Plaintiff again relies on the unauthenticated spreadsheet for the contention of a 

“pattern of age discrimination.” Plaintiff asserts, based on the unauthenticated spreadsheet and his 

own speculation, that individuals ages 63, 65, and 46 were terminated. Plaintiff cites to no evidence 

regarding the circumstances of the individuals’ separation (e.g. whether voluntary or involuntary, 

etc.). Even if Plaintiff’s evidence was admissible, which is denied, Plaintiff conveniently fails to 

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mention that the spreadsheet reflects termination dates for a 24-year old, two 34-year olds, a 25-

year old, and a 39-year old. (See Plaintiff’s APP 135.) Ironically, Plaintiff admits that while the 

spreadsheet states he was 50 years old, in actuality, his actual age at termination was 49 years, 11 

months, and 23 days – which is consistent with the evidence submitted by Defendant. (APP 185, 

¶8.) 

Plaintiff also claims that it is uncertain as to whom employee JA, employee No. 185446 

was. However, Plaintiff has the unredacted deposition transcript and documents that Defendant 

cited and should have no issue identifying who employee JA is. (See Defendant’s APP 108, Lines 

19-25; APP 109, Lines 1-8; APP 203-205.) Accordingly, any claim that it is “uncertain” as to the 

identity of employee JA, is disingenuous at best. Plaintiff has failed his initial burden to establish 

the prima facie elements of his age discrimination claim.

2. Plaintiff cannot overcome Defendant’s legitimate, non-discriminatory reason for 

his termination

Plaintiff was terminated because he put his hands on an employee and threatened her. (See

Defendant’s APP 155, Lines 24-25; APP 156, Lines 1-17; APP 027, Lines 21-25; APP 028, Lines 

1-10; APP 182, Lines 2-10; APP 098, Line 25; APP 099, Lines 1-23; APP 075, Lines 3-20). Plaintiff 

essentially fails to address Defendant’s legitimate, non-discriminatory reason for his termination 

other than convoluted references to purported deficiencies in the investigation. As stated in 

Defendant’s MSJ, such dispute is immaterial. “[E]ven an employer’s incorrect belief in the 

underlying facts—or an improper decision based on those facts—can constitute a legitimate, nondiscriminatory reason for termination.” Amezquita v. Beneficial Texas, 264 F. App’x 379, 386 (5th 

Cir. 2008) (citing Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005); Mayberry 

v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)). Moreover, Plaintiff admits to 

“touch[ing]” Ms. Hooper’s coat. (Plaintiff’s APP 122 ¶24.) 

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Plaintiff appears to rely on the fact that he received unemployment compensation and that 

the Texas Workforce Commission (“TWC”) stated that his termination was not misconduct 

connected. Plaintiff relies on a myriad of cases (largely non-Texas cases) to argue the Court should 

take judicial notice of the TWC decision. However, Plaintiff conveniently leaves out Section 

213.007 of the Texas Labor Code regarding the Enforcement of the Texas Unemployment 

Compensation Act, which states: 

Sec. 213.007. COLLATERAL ESTOPPEL DOCTRINE INAPPLICABLE. A 

finding of fact, conclusion of law, judgment, or final order made under this subtitle 

is not binding and may not be used as evidence in an action or proceeding, other 

than an action or proceeding brought under this subtitle, even if the action or 

proceeding is between the same or related parties or involves the same facts.

Tex. Lab. Code § 213.007 (emphasis added). Accordingly, Plaintiff has not and cannot rebut 

Defendant’s legitimate, non-discriminatory reasons for terminating his employment, and his age

discrimination claim fails.

C. Plaintiff Fails to Raise an Issue of Material Fact Regarding his COBRA Claim 

Plaintiff’s COBRA argument is all of one paragraph. Plaintiff somehow contends that the 

declaration of Bruce Gillis does not state the actual Cobra notice was mailed to Plaintiff. However, 

Mr. Gillis’ declaration clearly states:

On or about March 22, 2022, Businessolver sent Plaintiff the required COBRA 

information on behalf of Defendant regarding the continuation of Plaintiff’s health 

care coverage and other health care options at his last known address, 142 County 

Road 2437, Mineola, Texas 75773. Exhibit A attached is a true and correct copy of 

the COBRA Qualifying Event Notice /Election Form sent to Plaintiff.

(Defendant’s APP 214 ¶7). Defendant has certainly satisfied the notice requirement under 29 

U.S.C. §1161, et seq. and Plaintiff’s COBRA claim fails as a matter of law. In fact, Plaintiff does 

not even argue that he did not receive the COBRA notice. Plaintiff further does not rebut 

Defendant’s argument that he pursued this claim in bad faith despite knowing and being explicitly 

informed that the notice was timely sent. (See Defendant’s APP 226, ¶ 3; APP 229-239; APP 240-

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241). Accordingly, Defendant’s attorneys’ fees on this claim should be awarded.

D. Plaintiff Does Not Dispute That He is Not Entitled to Compensatory or Punitive

Damages

Plaintiff does not dispute Defendant’s argument that it is entitled to summary judgment 

regarding Plaintiff’s claims for compensatory damages, punitive damages, and any prejudgment 

interest.

E. Plaintiff Makes Unsubstantiated Accusation that “Records Gone Missing”

Plaintiff alleges that Defendant Mr. Moza’s computer contained details of whom he talked 

to, any notes that he made, correspondence he may have gathered, any evidence that he may have 

gathered during his investigation regarding Plaintiff. Defendant has produced what was in its 

possession, including witness statements, emails, and the corrective action form for Plaintiff 

(Defendant’s APP 192-193; APP 194; APP 195; APP 196; APP 206-209; APP 210-211.) 

Accordingly, it is unclear as to what notes or evidence from Mr. Moza’s investigation Plaintiff 

believes was on Mr. Moza’s computer that would impact his claims. Plaintiff also asserts that “Mr. 

Shaw’s calendar” were “records gone missing.” It is unclear as to what relevance this calendar has 

on any of Plaintiff’s claims and why it would create an issue of material fact.

Plaintiff’s contention that documents have purportedly “gone missing” or that Defendant 

“failed” to produce documents is no more than a garden-variety discovery dispute—a dispute they 

should have raised within the discovery period. Yet now, Plaintiff is trying to manufacture a fact 

issue by raising this discovery matter in response to Defendant’s MSJ. In essence, Plaintiff appears 

to argue that the Court should draw an adverse inference against Defendant about its proffered 

reasons for terminating Plaintiff’s employment—despite the lack of either any argument about 

spoliation or any evidence that would support such adverse inference.3 Put simply, Plaintiff has 

3 An adverse inference based upon spoliation of evidence requires a showing by the party seeking the adverse 

inference that the opposing party acted in bad faith. See United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000). 

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not shown that the documentation issue ever existed or that there was any bad conduct by 

Defendant. Any argument for an adverse inference against Defendant under these circumstances 

fails.4

F. Plaintiff Improperly Objects to Witnesses

Ironically, despite Plaintiff’s reliance on inadmissible and unauthenticated evidence, 

Plaintiff objects to the declarations of Antonio Juarez, Bruce Gillis, and Andrew Etter on the 

grounds that “it does not appear they have been disclosed in proper discovery requests.” Plaintiff 

cites to no authority to support this contention. The proper foundation has been laid in each of 

these declarations and Plaintiff does not contend otherwise. Should Plaintiff have legitimate 

grounds to object to any evidence presented by Defendant, Plaintiff should more appropriately do 

so in a motion to strike. 

Moreover, at a minimum, Antonio Juarez was identified in deposition as one of the 

decisionmakers in Plaintiff’s termination. (Defendant’s APP 70, Lines 4-14.) Defendant testified 

extensively that a third-party benefits administrator handled COBRA notification and provided a 

copy of the notice. (Defendant’s APP 178, Lines 21-25; APP 179, Lines 1-2; APP 179, Lines 14-

17.) And finally, Plaintiff’s counsel communicated directly with Mr. Etter, where Mr. Etter 

explicitly notified and provided Plaintiff’s counsel a copy of the March 22, 2022 COBRA notice 

that was sent to Plaintiff. (Defendant’s APP 226, ¶ 3; APP 229-239; APP 240-241). 

IV. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that its motion for summary 

judgment be granted in its entirety, that summary judgment be issued in its favor as to all claims 

Plaintiffs offer no evidence whatsoever from which the factfinder could conclude that Defendant acted in bad faith to 

destroy any documents. 4 See id.; King v. Illinois Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003).

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and causes against them in the above-captioned case, and that the Court grant Defendant such other 

and further relief, in law or equity, to which it may show itself justly entitled.

Respectfully submitted,

/s/ Annie Lau 

Annie Lau

Texas Bar No. 24057723 

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550 

Dallas, Texas 75201 

Telephone: (214) 220-9100 

Facsimile: (214) 220-9122 

alau@fisherphillips.com 

COUNSEL FOR DEFENDANT

EXEL INC. d/b/a DHL SUPPLY CHAIN

CERTIFICATE OF SERVICE

On the 19th day of March, 2024, I filed the foregoing document with the Clerk of Court for 

the United States District Court, Northern District of Texas, using the Court’s Electronic Case 

Filing system. I hereby certify that I have served the document on all counsel of record by a manner 

authorized by FED. R. CIV. P. 5 (b)(2).

Bob Whitehurst 

5380 Old Bullard Road, Suite 600, #363 

Tyler, TX 75703

whitehurstlawfirm@yahoo.com 

Donald E. Uloth 

LAW OFFICE OF DONALD E. ULOTH

18208 Preston Road, Suite D-9 #261 

Dallas, TX 75252

don.uloth@uloth.pro 

/s/ Annie Lau 

Annie Lau

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