Payne v. United Parcel Service, Co. et al

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BRANDIT PAYNE,
Plaintiff,
v. No. 4:25-cv-00038-P
UNITED PARCEL SERVICE, INC.,
Defendant.
MEMORANDUM OPINION & ORDER
Before the Court is Defendant’s Motion for Summary Judgment
(ECF No. 107). Having considered the briefings and evidence of record,
the Court concludes the Motion should be and hereby is GRANTED.
BACKGROUND
Plaintiff Brandit Payne worked for United Parcel Service, Inc.
(“UPS”) in the transportation unit and, during the relevant times,
served as a Division Manager at UPS’s “Lone Star” hub in the Dallas-
Fort Worth metroplex. During that period, Plaintiff reported to Cliff
McClain, who oversaw the hub and feeder networks in the DFW
metroplex area.
UPS maintains an Employee Relationships Policy governing both
employment of relatives and “close personal relationships.” This policy
requires disclosure of relationships between employees that could create
potential conflicts of interest.
Plaintiff previously received a written reprimand for failing to
disclose this relationship after extensive communications with a
subordinate. Then, in 2024, McClain discovered that Plaintiff had
married a lower-level UPS employee who worked at the hub facility she
oversaw. This was discovered after McClain noticed her last name had
changed. This was reported to Human Resources, and an investigation
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followed. The investigator found that she had violated company policy
and determined that a demotion was appropriate discipline.
On the same day of her demotion, Plaintiff filed a complaint with the
UPS Ethics Hotline, framing the issue as “personal retaliation” and
stating that it was “a blatant state of discrimination.” This complaint
was referred to the UPS Employee Dispute Resolution program, a peer-
reviewed panel that recommended upholding Plaintiff’s demotion.
In 2024, Plaintiff filed a charge of discrimination with the EEOC.
The EEOC later issued a notice of right to sue.
LEGAL STANDARD
Summary judgment is proper if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A dispute is “genuine” if the evidence
presented would allow a reasonable jury to return a verdict in favor of
the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242–43
(1986). A fact is “material” if it would affect a case’s outcome. Id. at 248.
Generally, the “substantive law will identify which facts are material,”
and “[f]actual disputes that are irrelevant or unnecessary will not be
counted.” Id. In assessing whether summary judgment is appropriate,
the Court views evidence in the light most favorable to the nonmovant.
Cunningham v. Circle 8 Crane Servs., LLC, 64 F.4th 597, 600 (5th Cir.
2023).
The Court may rely on any evidence of record but need only consider
those materials cited by the parties. FED. R. CIV. P. 56(c)(1)–(3); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (noting
summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law”). But the
Court need not mine the record for evidence supporting the nonmovant;
the burden falls on the moving party to simply show a lack of evidence
supporting the nonmovant’s case. See Malacara v. Garber, 353 F.3d 393,
404–05 (5th Cir. 2003).
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ANALYSIS
As an initial matter, Plaintiff proffers various and sometimes
overlapping claims under separate statutes. Because Title VII and
TCHRA claims are governed under the same evidentiary framework, the
Court analyzes them together. The Court separately addresses § 1981
claims only to the extent it differs (race-only scope). Lastly, Plaintiff
attempts to plead as a separate cause of action for “intersectional
discrimination”; however, it is not a cause of action, but rather, a theory
of liability, and the Court will treat it as such.
A. Evidentiary Objections
Plaintiff objects on various grounds to Defendant’s attached exhibits.
These errors were corrected by later filings. See ECF No. 118. Thus, the
objections are OVERRULED.
B. Discrimination (Title VII, Texas Labor Code, § 1981)
Plaintiff alleges gender, race, and intersectional discrimination
under Title VII, Section 1981, and Texas Labor Code § 21.002(8). Claims
brought pursuant to Title VII and § 1981 are “‘governed by the same
evidentiary framework,’ such that the analyses under both statutes are
substantively the same.” Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir.
2010) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 281 n.7 (5th Cir.
2004)). Similarly, the Texas Commission on Human Rights Act
(“TCHRA”) has language nearly identical to Title VII, and courts use the
same evidentiary framework in resolving these types of claims. Mission
Consol. Indep. Sch. Dist. v. Garcia, 373 S.W.3d 629, 633–34 (Tex. 2012).
Accordingly, the Court will analyze each claim concurrently.
Plaintiff’s claims are evaluated under the McDonnell Douglas
burden-shifting framework when, as here, the plaintiff relies on
circumstantial evidence. Wesley v. Gen. Drivers, Warehousemen &
Helpers Loc. 745, 660 F.3d 211, 213 (5th Cir. 2011). McDonnell Douglas
requires a three-step burden-shifting framework for evaluating
discrimination claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). The burden initially lies with the plaintiff to establish a
prima facie case. Id. It then shifts to the defendant to “articulate some
legitimate, nondiscriminatory reason for the [employment action].” Id.
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Finally, a plaintiff is afforded an opportunity to show through adequate
evidence that the defendant’s stated reasons were a mere pretext for
discrimination. Id. at 804.
Now to establish a prima facie case of discrimination, an employee
must demonstrate 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 his protected group or was treated less favorably than
other similarly situated employees outside the protected group.” Willis
v. Cleco Corp., 749 F.3d 314, 319–20 (5th Cir. 2014).
The Court assumes without deciding that Plaintiff has satisfied the
first three elements. Nevertheless, Plaintiff’s comparator showing is
insufficient. Plaintiff has not identified another Division Manager-level
employee in the relevant unit who both (1) failed to disclose a covered
relationship under the policy, and (2) had a comparable disciplinary
history but was treated more favorably.
Whether Plaintiff has stated a prima facie case of discrimination
turns on whether the proffered comparators were “similarly situated” to
her. Courts “require that an employee who proffers a fellow employee as
a comparator demonstrate that the employment actions at issue were
taken ‘under nearly identical circumstances.’” Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Little v. Republic Ref. Co.,
Ltd., 924 F.2d 93, 97 (5th Cir. 1991)). This requires showing that the
comparators held the same job or responsibilities, shared a similar
supervisor, and “have essentially comparable violation histories.” Id.
For instance, an employee discharged for violating two safety protocols
cannot use as a comparator an employee who only violated a single
safety protocol. See Bouie v. Equistar Chems. LP, 188 F. App’x 233, 237
(5th Cir. 2006).
The evidence Plaintiff presents does not satisfy this burden. Plaintiff
had previously violated the employee relationships policy. ECF No. 118-
2 at 122–23. And the present violation leading to demotion occurred
after this second failure to disclose a potential conflict of interest arising
from a relationship. Id. at 245. Not, as Plaintiff contends, because she
merely possessed a relationship with another employee. ECF No. 43 at
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12. As comparators, Plaintiff makes various generalized statements
suggesting that various employees outside her protected class were
treated more favorably. See ECF No. 43 at 11–12. These vague and
conclusory statements do not sufficiently identify a comparator who is
“nearly identical.” However, Plaintiff does identify two potential
comparators: Reed Lathearon, “a Black male manager,” and LaShonda
Green, “a Black woman.” Id. at 12. Neither supports a race-based
discrimination claim.
From the evidence, it is unclear whether either comparator even
possesses a materially similar job. Nevertheless, other evidence leads to
the conclusion that no proffered comparator is “similarly situated.” Reed
Lathearon, for example, is alleged to have been given the opportunity to
choose his discipline after receiving a serious complaint. Id. at 9.
However, Plaintiff points to no competent evidence alleging the purpose
of the complaint.
No other comparator has a similar violation history or even a similar
violation of the employee relationship policy. While a plaintiff need not
provide a comparator that is “strictly identical,” violations still must be
such that a reasonable inference of discrimination can be drawn.
Saketkoo v. Admins. of Tulane Educ. Fund, 31 F.4th 990, 998–99 (5th
Cir. 2022). Here, Plaintiff merely alleges that various employees worked
in similar departments with their spouses but were not demoted. Id. at
18. However, Plaintiff does not point to any evidence suggesting that
any of these employees have violated the same policy in the past. The
UPS policy does not prohibit merely having a relationship with other
employees. ECF No. 118-2 at 118–21. Instead, it requires employees to
report these relationships. Id. Thus, without providing evidence that any
employee failed to report these relationships, the comparators cannot be
said to be “nearly identical.” So there is no genuine dispute of material
fact regarding whether similarly situated employees were treated more
favorably than Plaintiff.
C. Racial Discrimination in Contractual Relationship
Plaintiff attempts to plead a separate cause of action for “racial
discrimination in a contractual relationship.” See ECF No. 43 at 19. The
Court notes that this is in effect what a § 1981 racial discrimination
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claim is. 42 U.S.C. § 1981 prohibits racial discrimination in the making
and enforcement of contracts. Thus, a claim styled such as this is simply
a § 1981 race discrimination claim stated in different terms. It is
duplicative of Plaintiff’s race discrimination claim. And for the reasons
stated previously, it fails.
D. Hostile Work Environment
To prevail on a hostile work environment claim, a plaintiff must
show: “(1) he belongs to a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment complained of was based on
race; (4) the harassment complained of affected a term, condition, or
privilege of employment; and (5) the employer knew or should have
known of the harassment in question and failed to prompt remedial
action.” Collier v. Dall. Cnty. Hosp. Dist., 827 F. App’x 373, 376 (5th Cir.
2020) (per curiam) (quoting Hernandez v. Yellow Transp., Inc., 670 F.3d
644, 651 (5th Cir. 2012)).
The fourth element requires that “[t]he harassment [] be ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.’” Id. at 377. Relevant
factors include “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s
work performance.” Harvill v. Westward Commc’ns, LLC, 433 F.3d 428,
434 (5th Cir. 2005). Lastly, the alleged conduct must be “objectively
offensive, meaning that a reasonable person would find it hostile and
abusive, and subjectively offensive, meaning that the victim perceived it
to be so.” Shepherd v. Comptroller of Pub. Accts., 168 F.3d 871, 874 (5th
Cir. 1999).
Plaintiff alleges numerous actions to meet this standard. She alleges
that she was subjected to excessive micromanagement and scrutiny,
undermining of her managerial decisions, criticism during conference
calls, and “verbal abuse,” including an instance in which other
employees overheard McClain discussing her nameplate. ECF No. 43 at
15–16. Plaintiff alleges that each of these actions was based on race,
solely on the fact that other black and white men did not experience the
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same level of workplace conduct. Id. at 16. As the Court explained
previously, these comparators are insufficient. Furthermore, “subjective
belief of racial motivation, without more, is not sufficient to show a
hostile work environment.” Price v. Valvoline, L.L.C., 88 F.4th 1062,
1067 (5th Cir. 2023). “[F]acially neutral actions,” such as are alleged
here, are not sufficient because the plaintiff has presented no evidence
beyond speculation that these actions were motivated by a
discriminatory motive. Id.
E. Retaliation
To establish a prima facie case of retaliation, a plaintiff must show
that “(1) he engaged in an activity protected by Title VII; (2) he was
subjected to an adverse employment action; and (3) a causal link exists
between the protected activity and the adverse employment action.”
Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004).
Plaintiff’s internal complaints were not protected activity because
they complained about unfairness/personal animus and used generic
terms without identifying unlawful race/sex discrimination. The Fifth
Circuit has repeatedly held that generalized complaints, without
specifically explaining how the discrimination relates to race, sex, or
some other protected activity, are insufficient to engage in a protected
activity. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349
(5th Cir. 2007) (“It contains no reference to conduct that could even
plausibly be considered discriminatory in nature.”); Davis v. Dallas
Indep. Sch. Dist., 448 F. App’x 485, 493 (5th Cir. 2011).
A protected activity is defined as “opposition to any practice rendered
unlawful by Title VII, including making a charge, testifying, assisting,
or participating in any investigation, proceedings, or hearing under Title
VII.” Brown v. UPS, 406 F. App’x 837, 840 (5th Cir. 2010). Title VII “does
not set forth ‘a general civility code for the American workplace.’”
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009)
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998)).
Here, Plaintiff submitted various internal complaints in which she
alleged workplace grievances and concluded by stating, “This is
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workplace discrimination.” ECF No. 118-3 at 246. In a later complaint,
she again made a general statement: “He is creating a hostile work
environment.” Id. at 248.
Plaintiff’s internal complaints amount to nothing more than general
workplace grievances, and at no point was any language used that would
put UPS on notice that she was complaining about some form of
unlawful discrimination. See Davis v. Dall. Indep. Sch. Dist., 448 F.
App’x 485, 493 (5th Cir. 2011) (holding that merely stating that a
“hostile work environment” exists is insufficient to constitute a
protected activity where the employee does not suggest the environment
was due to a protected characteristic). Because the internal complaints
did not allude to a protected characteristic, they do not constitute a
protected activity for purposes of retaliation.
Next, she alleges that UPS engaged in various adverse employment
actions following her submission of two EEOC complaints on July 1,
2024, and August 5, 2024. ECF No. 43 at 13–14. None of the alleged
adverse employment actions occurring prior to these dates may
constitute retaliation, including the demotion. The only alleged adverse
employment actions occurring after the EEOC complaints were a
statement by McCain where he allegedly stated: “I don’t know why the
fuck she got her name on the door, she is not staying over here,” and
perhaps the reassignment to a separate facility. ECF No. 43 at 9; ECF
No. 117 at 11.
To rise to the level of an adverse employment action, the conduct
must be materially adverse and likely to “dissuade a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). This is because Title
VII is not a “general civility code for the American workplace.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Workplace
criticisms and reprimands do not rise to the level of adverse employment
actions. King v. Louisiana, 294 F. App’x 77, 84–85 (5th Cir. 2008). A
single negative statement directed at the Plaintiff, even if taken in the
light most favorable to the Plaintiff, does not constitute an adverse
employment action. Not to mention that the statement, overheard by
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two co-employees, constitutes hearsay within hearsay, not covered
under an exception.
Regarding Plaintiff’s reassignment, this does not constitute a
materially adverse employment action. See Awe v. Harris Health Sys.,
163 F.4th 969, 973 (5th Cir. 2026) (restating that the standard is
material adversity). Transfers that maintain equal pay, benefits, and job
responsibilities do not constitute adverse action. See Stringer v. N.
Bolivar Consol. Sch. Dist., 727 F. App’x 793, 804 (5th Cir. 2018). Plaintiff
provides no evidence to suggest that the transfer amounted to an
adverse employment action. Plaintiff merely states that the transfers
were to “inconvenient and burdensome locations, thereby disrupting
Plaintiff’s professional stability, imposing hardship on Plaintiff’s family
responsibilities, and exacerbating Plaintiff’s workplace stress.” ECF No.
43 at 14. But provides no evidence that suggests these transfers to
nearby locations were materially adverse.
Alternatively, Plaintiff’s claim fails under McDonnell Douglas. UPS
had legitimate, nondiscriminatory reasons for the facility
reassignments. Plaintiff’s position was effectively an “extra” manager,
to be used to fill operational needs within the area. ECF No. 118-2 at
240–41. Each reassignment was to fill an operational need. ECF Nos.
118-2 at 241; 118-5 at 2. Nor is this targeted at Plaintiff, as other
employees similarly faced frequent reassignment, including one who
was reassigned at least ten times. ECF Nos. 118-2 at 19; 118-5 at 3.
Thus, the burden shifts to the plaintiff to show that the employer’s
reasons were a mere pretext for discrimination. McDonnell Douglas, 411
U.S. at 804. Plaintiff must show that the adverse employment action—
here, reassignment—would not have occurred but for the employer’s
retaliatory motive. Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th
Cir. 2005). This may be shown by providing evidence that the stated
reasons are false or unworthy of credence. Haire v. Bd. of Supervisors of
La. State Univ., 719 F.3d 356, 363 (5th Cir. 2013). Plaintiff has failed to
provide any evidence suggesting that the employer’s stated reasons are
false. Instead, Plaintiff points to various disputes underlying the
marriage. See ECF No. 117 at 18–19. Nothing that would suggest that
Plaintiff’s reassignment was caused by her various complaints.
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Consequently, Defendant is entitled to summary judgment as a
matter of law.
F. Breach of Contract
Plaintiff’s response is organized entirely around evidentiary
objections and Title VII discrimination, retaliation, and hostile work
environment arguments. Plaintiff has wholly failed to defend against
the motion for summary judgment challenges to the Breach of Contract
claim. Plaintiff has, therefore, abandoned this claim. See Black v. N.
Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006); Keenan v.
Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (noting that “an issue raised in
the complaint but ignored at summary judgment may be deemed
waived” (citation omitted)).
CONCLUSION
For the above reasons, the Court concludes that Defendant’s
Summary Judgment should be and hereby is GRANTED. All claims are
DISMISSED with prejudice.
SO ORDERED on this 6th day of March 2026.
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