United States Court of Appeals

for the Fifth Circuit

No. 20-50446

Summary Calendar

Wendy Foster, 

Plaintiff—Appellant,

versus

Ferrellgas, Incorporated, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 7:18-CV-204

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:*

Wendy Foster brought racial discrimination and retaliation claims 

against her former employer, Ferrellgas, Incorporated (“Ferrellgas”). The 

district court concluded that Foster had not established a prima facie case of 

discrimination or retaliation, and that in any event Foster had not rebutted 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2020

Lyle W. Cayce

Clerk

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Ferrellgas’s proffered legitimate reasons for its actions. Because we agree 

that Foster failed to make out a prima facie case on any of her claims, we 

AFFIRM.

I. Background

Foster, who alleges that she suffered racial discrimination as a black 

woman, was hired in December 2014 as a Crude Logistics Scheduler in the 

Midland, Texas office of Bridger Administrative Services, LLC (“Bridger”), 

an oilfield hauler. As a Crude Logistics Scheduler, Foster used a computer 

system to schedule and dispatch trucks. Several months into Foster’s tenure, 

Bridger was acquired by Ferrellgas, a propane distributor and retailer. At that 

time, Foster was hired by Ferrellgas with no meaningful change in her job 

functions. 

Prior to receiving her job offer from Bridger, Foster interviewed with 

Thomas Glenn, the Regional Operations Manager for the Midland office. 

Foster alleges that at the interview, Glenn told her that her starting salary 

would be $50,000 per year, but that within thirty days her salary would 

increase to $65,000 per year. Yet after thirty days had gone by, Foster still 

had not received her promised raise. When she complained to Glenn, he told 

her he would get back to her. 

Glenn was eventually fired and replaced by Lyle Lowrance. Foster 

complained repeatedly to Lowrance about her missing raise, but to no avail. 

In her deposition, Foster testified that Lowrance advised her that she was not 

getting the raise because she was black. However, she also indicated that 

Lowrance was not responsible for denying her the raise, as she stated that he 

had been trying to help her get the raise. By Foster’s account, Lowrance did 

not identify who determined Foster’s salary, nor did he explain why he 

believed Foster was being discriminated against due to her race. 

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Lowrance was eventually fired too, and Foster continued to complain 

about her raise to her new supervisors, Bart Larson and Larry Garren, as well 

as other Ferrellgas managers. She last complained about her raise during a 

“personal meeting” with Larson and Garren on February 8, 2016. 

Ferrellgas terminated Foster on February 15, 2016. According to 

Ferrellgas, Foster was terminated as part of a larger reduction in force due to 

a company-wide financial crisis. During Foster’s employment, Ferrellgas 

employed at least eight white Crude Logistics Schedulers, all of whom made 

at least $60,000 per year. Foster recalled training several white women who 

were hired as dispatchers after she started, and she overheard these women 

say that they were making $65,000 per year. Ferrellgas’s records showed

that there were two white female Crude Logistics Schedulers making 

$65,000 per year during the period of Foster’s employment. 

In September 2016, Foster filed a discrimination charge with the 

Texas Workforce Commission and the Equal Employment Opportunity 

Commission.1

Foster filed suit in November 2018. As relevant here, she alleged that 

Ferrellgas had paid her less than her white colleagues and terminated her due 

to her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§§ 2000e–2000e-17, and had terminated her in retaliation for complaining 

about her disparate treatment, also in violation of Title VII. Ferrellgas moved 

for summary judgment, which the district court granted. Foster timely 

appealed. 

1 Foster amended her charge in January 2017, alleging the same discriminatory 

actions as in her September 2016 charge. 

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II. Discussion

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

viewing all admissible evidence “in the light most favorable to the nonmoving 

party and drawing all reasonable inferences in that party’s favor.” Kariuki v. 

Tarango, 709 F.3d 495, 501 (5th Cir. 2013) (quotation omitted). A district 

court must grant summary judgment “if the movant shows that there is no 

genuine dispute asto any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). 

Plaintiffs may prove employment discrimination “by direct or 

circumstantial evidence, or both.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340 

(5th Cir. 2019) (quotation omitted). Where plaintiffs rely on circumstantial 

evidence, courts employ the burden-shifting framework set forth in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Nall, 917 F.3d 

at 340. Under McDonnell Douglas, the plaintiff must first present a prima 

facie case of discrimination by showing that she: 

(1) is a member of a protected group; (2) was qualified for the 

position at issue; (3) was discharged or suffered some adverse 

employment action by the employer; and (4) was replaced by 

someone outside her protected group or was treated less 

favorably than other similarly situated employees outside the 

protected group. 

Roberson-King v. La. Workforce Comm’n, Off.of Workforce Dev., 904 F.3d 377, 

381 (5th Cir. 2018) (cleaned up). If the plaintiff makes out her prima facie 

case, “the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the employment decision.” Id. (quotation 

omitted). If the employer provides such a reason, “the burden shifts back to 

the plaintiff to show the reason is merely pretextual.” Id. (quotation 

omitted).

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The district court ruled that Foster did not make out her prima facie

case on her disparate pay claim because she did not identify evidence showing

a similarly situated employee of a different race who was better paid. 

Following the same reasoning, the district court dismissed Foster’s 

discriminatory termination claim because Foster did not show that she was 

similarly situated to any of the employees Ferrellgas retained after her 

termination. To show that a fellow employee was similarly situated, a Title 

VII plaintiff must demonstrate that they were in “nearly identical” 

circumstances. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 

514 (5th Cir. 2001) (quotation omitted). This “inquiry is case-specific and 

requires us to considerthe full variety of factors that an objectively reasonable 

decisionmaker would have found relevant in making the challenged 

decision.” Lindquist v. City of Pasadena, 669 F.3d 225, 234 (5th Cir. 2012)

(cleaned up); see also Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 

2019) (explaining that when evaluating employee similarity under Title VII, 

“courts consider whether the employees (i) held the same job description, 

(ii) were subject to the same standards, (iii) were subordinate to the same 

supervisor, and (iv) had comparable experience, education, and other 

qualifications” (quotation omitted)), cert. denied, 140 S. Ct. 381 (mem.) 

(2019).

Although Foster shared a job title and a supervisor with the white

employeesshe identified as being in similarly situated positions, she provided 

virtually no evidence concerning their relevant qualifications, nor did she 

establish that they performed comparable work. Indeed, at her deposition, 

Foster repeatedly disclaimed any knowledge of what her co-workers did. 

Further, even though Foster trained higher-paid colleagues, this evidence 

does not exclude the possibility that these individuals had more industry 

experience, superior education, or different job responsibilities. Thus, the 

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district court properly granted summary judgment on Foster’s disparate pay 

and discriminatory termination claims.

2

Title VII retaliation claims are also evaluated under the McDonnell 

Douglas framework. Septimus v. Univ. of Hous., 399 F.3d 601, 608 (5th Cir. 

2005). To make out a prima facie case of retaliation, a plaintiff must establish 

that: “(1) she engaged in protected activity; (2) the employer took a 

materially adverse action against her; and (3) a causal link exists between her 

protected activity and the adverse action.” Wheat v. Fla. Par. Juv. Just.

Comm’n, 811 F.3d 702, 705 (5th Cir. 2016). 

Foster contends that she engaged in protected activity by complaining 

to her supervisors about being paid less than her white co-workers. Because 

Title VII protects informal complaints so long as the plaintiff “reasonably 

believed” the challenged employment practice violated Title VII, Foster

likely engaged in protected activity to the extent she made such complaints. 

EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016); see 42 U.S.C. 

§ 2000e-3(a) (making it unlawful to retaliate against any employee for 

“oppos[ing] any practice made an unlawful employment practice by this 

2 On appeal, Foster argues that Lowrance’s statement that she would not receive a 

raise because of her race obviates the need to make out a McDonnell Douglas prima facie 

case based on circumstantial evidence. Foster did not present a direct evidence claim to 

the district court, and we will not consider it for the first time on appeal. See Celanese Corp. 

v. Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010) (“The general rule of this 

court is that arguments not raised before the district court are waived and will not be 

considered on appeal.”). Even if we did consider it, in order to qualify as direct evidence 

of discrimination, the comment must, among other things, have been “made by an 

individual with authority over the employment decision at issue.” Clark v. Champion Nat’l 

Sec., 952 F.3d 570, 581 (5th Cir. 2020), cert. denied, 2020 WL 6385801 (mem.) (Nov. 2, 

2020); see also Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001). 

Foster’s admission that Lowrance did not decide her salary and that she did not know the 

basis for his statement precludes consideration of this statement as direct evidence of 

discrimination. 

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subchapter”). Further, there is no dispute that Ferrellgas took a materially 

adverse action against Foster by firing her.

Nevertheless, Foster did not provide evidence raising a fact issue on 

causation. Foster asserts that because she complained to Larson and Garren 

about her pay one week before her termination, there is sufficient temporal 

proximity between her protected activity and the adverse action to infer 

retaliatory animus. We have recognized that “timing alone” is enough to 

establish causation at the prima facie stage if “the protected act and the 

adverse employment action [are] very close in time.” Porter v. Houma 

Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948–49 (5th Cir. 2015)

(cleaned up) (holding that protected activity and adverse action six-and-ahalf weeks apart were sufficiently close to demonstrate causation). But 

Foster has presented no evidence that she engaged in protected activity 

during the relevant meeting with Larson and Garren. Rather, she avers only 

that she “asked again about [her] raise,” without any reference to claims of 

racially disparate treatment. As the meeting with Larson and Garren does 

not qualify as protected activity, its proximity to Foster’s discharge does not 

support an inference of retaliatory intent. Because Foster does not specify 

the date of any other meeting where she purportedly engaged in protected 

activity, there is insufficient evidentiary support of temporal proximity to 

raise a genuine issue of material fact on causation.3

The district court properly determined that Foster did not raise a fact 

issue that would demonstrate a prima facie case of discrimination or

3 Foster argues that there is additional evidence in the record that establishes 

causation, including Lowrance’s statement described above. Yet once again, Foster did 

not present this argument to the district court, and thus we will not consider it on appeal. 

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retaliation. Thus, there is no need to consider the validity of Ferrellgas’s 

explanations for Foster’s salary and termination. We AFFIRM.

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