Gordon v. King et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Joseph Gordon, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 4:24-cv-4125
§
Digital Air Control, Inc., 	§
§
Defendant. 	§
JUDGE PALERMO’S
REPORT AND RECOMMENDATION AND ORDER
This is an employment-discrimination case. ECF No. 1.1 There are three
motions pending before the Court. First, Plaintiff Joseph Gordon moves for leave to
file an amended complaint. ECF No. 25.2 Second, Gordon moves to strike the
unsworn depositions of Sean King and Marcus DiFlavio, two employees of
Defendant Digital Air Control Inc. (“Digital Air”). ECF No. 34.3 Third, Digital Air
moves for summary judgment. ECF No. 31.4
For the reasons discussed below, the Court denies Gordon’s motions and
recommends granting summary judgment.
1 The district judge referred all pretrial proceedings under 28 U.S.C. § 636. ECF No. 5.
2 Defendant responded. ECF No. 28.
3 Defendant responded. ECF No. 36.
4 Gordon responded. ECF No. 37. Digit Air replied. ECF No. 38.
United States District Court
Southern District of Texas
ENTERED
June 08, 2026
Nathan Ochsner, Clerk
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I. 	BACKGROUND
Digital Air services HVAC systems, including “diagnosing mechanical
failures or deficiencies, repairing or replacing equipment, and installing mechanical
systems to accommodate facility expansion or construction.” ECF No. 31 at 9. On
November 	4, 	2019, 	Digital 	Air 	hired 	Gordon, 	a 	Black 	“BAS 	Graphic/UX
Specialist,” to “create graphical assets and interfaces for building automation
software.” 	Id. 	at 	10; 	ECF 	No. 	31-1 	(job 	description 	and 	employee
acknowledgement).
Jumping ahead to early 2022, Sean King started supervising Gordon. After a
few months, King gave Gordon a 2.66 out of 4 on his performance evaluation,
ranking him as a “Consistent Contributor.” ECF No. 31 at 10; ECF No. 31-2. King
observed that Gordon “is very knowledge about graphics and the software that
[Digital Air] use[s]” and “consistently produces high quality graphics that look
great.” ECF No. 31-2 at 2. He also noted, though, that Gordon “could improve” his
attention to detail, “such as spelling and consistency.” Id. Overall, Gordon received
a positive review.
The next review was not so positive. In his March 2023 performance
evaluation, King reiterated that Gordon’s “attention to detail and accuracy in
particular need to improve,” explaining that Gordon made errors “consistently from
one project to the next,” such as “copy/pasting symbols from one job to another”
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without “re-linking certain components . . . to the current job.” ECF No. 31 at 10;
ECF No. 31-3 at 2. King commended Gordon for being “the most skilled person in
the department” about keeping his “knowledge and skills up to date” but expressed
that he could “be more proactive about learning more about other aspects of the job”
and “seeking out feedback.” ECF No. 31 at 10; ECF No. 31-3 at 3. According to
King, Gordon would “often make an assumption and press forward with it,” leading
to avoidable mistakes that cost time to correct. ECF No. 31 at 11; ECF No. 31-3 at 3.
While “dependable . . . when there is a crunch and he is given clear direction,” King
concluded he could not depend on Gordon “to create graphics that are consistently
accurate” or to “handle a large project from start to finish” independently, “without
a large amount of direction and instruction.” ECF No. 31 at 11; ECF No. 31-3 at 3.
Ultimately, King gave Gordon a score of 1.67 out of 4. ECF No. 31-3 at 5. Gordon,
on the other hand, gave himself a 3.33—double King’s score. Id.
The following month, King put Gordon on a performance improvement plan
(“PIP”). ECF No. 31 at 11. The PIP recapped that Gordon did not create graphics
“at a speed . . . appropriate for the amount of time that he ha[d] been with the
company,” that he “appears to have problems focusing and completing a project”
without specific instructions, and that his “attention to detail . . . needs to improve”
because he continued to make errors “consistently from one project to the next with
little sign of improvement.” ECF No. 31-4 at 2. It recommended that Gordon “be
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more diligent about double checking his work for errors” and communicate more
“with design and software engineers to clarify any questions or issues” before they
cause avoidable mistakes. Id. It also advised Gordon to use Digital Air’s available
training resources “to gain a more in-depth understanding of the” relevant software
tools “to increase his efficiency,” “take steps to increase his focus and proactivity,”
and track and plan his “responsibilities and priorities” better with Microsoft Planner.
Id.
For his part, Gordon blamed his issues on a faulty computer, listing “computer
process power” as a notable obstacle hindering his work performance. ECF No. 31-
4 at 4. He mentioned his computer problems to King in summer 2022, ECF No. 31-
5 at 228:1–18, but claims that Digital Air “ignored his complaints,” ECF No. 37
at 21.
Evidently, things did not improve over the next 90 days. “[C]ontinu[ing] to
find significant errors in [Gordon’s] work” and seeing “little effort . . . to work with
the team to avoid the errors,” King fired Gordon on July 14, 2023. ECF No. 31 at
12–13; ECF No. 31-4 at 3.
Gordon sued King and his former coworker Marcus DiFlavio on July 19,
2024, asserting claims under Title VII in Texas state court. ECF No. 1. King and
DiFlavio removed to federal court. Id. Gordon then joined Digital Air to the state-
court case, and Digital Air promptly removed. ECF No. 6. Gordon then voluntarily
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dismissed King and DiFlavio, leaving Digital Air as the only defendant. ECF No. 18.
During the normal course of discovery, the parties exchanged responses,
productions, and objections. ECF No. 31 at 8–9. Digital Air deposed Gordon, and
Gordon deposed King and DiFlavio. Id. at 9.
II. 	GORDON’S 	MOTION 	TO 	FILE 	AMENDED 	COMPLAINT 	IS
DENIED.
First, the Court discusses Gordon’s motion to file his amended complaint.
Gordon tried to file an amended complaint on September 15, 2025. ECF No. 19. The
Court struck it because Gordon did not first obtain leave. ECF No. 20.
Four months later, on January 12, 2026, Gordon asked for leave to file another
amended complaint, seeking to add a claim under 42 U.S.C. § 1981. ECF No. 25.
Without waiting for the Court to rule on the motion, Gordon plowed ahead and filed
the amended complaint. ECF No. 26.
Federal Rule of Civil Procedure “16(b) governs amendment of pleadings after
a scheduling order deadline has expired.” S & W Enters., L.L.C. v. Sw. Bank of Ala.,
315 F.3d 533, 536 (5th Cir. 2003). A scheduling order “may be modified only for
good cause and with the judge’s consent.” F ED. R. CIV . P. 16(b)(4). The good cause
standard requires the “party seeking relief to show that the deadlines [could not]
reasonably [have been] met despite the diligence of the party needing the extension.”
S & W Enters., 315 F.3d at 535 (quoting 6A CHARLES A LAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed. 1990)). Only if the movant
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demonstrates good cause “to modify the scheduling order will the more liberal
standard of Rule 15(a) apply . . . to grant or deny leave.” Id. at 536. To determine
whether good cause exists under Rule 16(b), courts consider “(1) the explanation for
the failure to timely move for leave to amend; (2) the importance of the amendment;
(3) potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.” Id. (alterations adopted) (quoting Reliance Ins.
Co. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)).
Here, the Scheduling Order deadline to amend pleadings was June 2, 2025.
ECF No. 13 at 1. Gordon filed his motion to amend on January 12, 2026—more than
seven months after the deadline. ECF No. 25. He claims this long delay was justified
because he learned information in King’s and DiFlavio’s depositions that he could
not 	have 	discovered 	beforehand. 	Id. 	at 	3. 	But 	§ 1981 	also 	prohibits 	race
discrimination under “identical” standards as Title VII, Abdallah v. Mesa Air Grp.,
Inc., 83 F.4th 1006, 1013 n.5 (5th Cir. 2023) (quoting Body by Cook, Inc. v. State
Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017)), meaning Gordon could
have asserted it from the get-go along with his Title VII claim, Chen v. Ochsner
Clinic Found., 630 F. App’x 218, 227 (5th Cir. 2015) (“Each legal argument and
putative dispute of material fact relevant to [Gordon’s] § 1981 claim would thus be
equally relevant to his Title VII claim . . . .”). Moreover, in his response to Digital
Air’s motion for summary judgment, Gordon admits that his new § 1981 claim arises
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out of the same facts as his old Title VII claim and “[n]o new factual allegations are
required.” ECF No. 37 at 13. In other words, Gordon fails to explain why he could
not have met the Scheduling Order’s amendment deadline.
Gordon’s “failure to account for [his] delay [is] dispositive, outweighing the
other three factors for assessing good cause.” E.E.O.C. v. Serv. Temps Inc., 679 F.3d
323, 334 (5th Cir. 2012) (affirming denial of leave to amend based solely on party’s
failure to explain delay). Accordingly, the Court denies his motion for leave, ECF
No. 25, and strikes his amended complaint, ECF No. 26.
III. 	GORDON’S MOTION TO STRIKE KING’S AND DIFLAVIO’S
DEPOSITIONS IS DENIED.
Next, the Court turns to Gordon’s motion to strike King’s and DiFlavio’s
depositions. ECF No. 34. Gordon deposed King and DiFlavio on October 21, 2025.
Id. at 4. Apparently, Gordon did not arrange for “a court reporter or anyone to
administer the required oath or transcribe the[ir] testimony,” but he unofficially
recorded the audio. ECF No. 36 at 1–2; ECF No. 34 at 3. Now, Gordon asks the
Court to strike King’s and DiFlavio’s depositions in their “entirety” and preclude
Digital Air “from using any testimony obtained during the oath[-]less deposition[s]”
while at the same time accepting the “audio recordings as evidence.” ECF No. 34
at 4.
The motion is difficult to parse, mostly because it is unclear what Gordon
means when he asks the Court to “accept and file” the “audio recordings as
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evidence.” Id. It seems that he used a third-party service to transcribe the recordings
after the fact, id. at 7, and hopes to use excerpts from those transcriptions as
evidence. DAC does not rely on these depositions in support of its motion, but
Plaintiff does. Gordon’s strategy poses obvious evidentiary issues, but the Court
need not reach them here because the transcript citations in his response to Digital
Air’s summary judgment motion do not alter the Court’s analysis.
Accordingly, the Court denies the motion to strike the depositions for the
purposes of the summary judgment motion.
IV. 	DIGITAL AIR IS ENTITLED TO SUMMARY JUDGMENT.
A. 	Summary Judgment Standard
“Summary judgment is proper ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’” Cory v. Stewart, 103 F.4th 1067, 1072–73 (5th Cir. 2024) (quoting F ED. R.
CIV. P. 56(a)). “A fact is material if it could affect the suit’s outcome under
governing law.” Reynolds v. Kuraray Am., Inc., No. 4:22-CV-00182, 2026 WL
861071, at *2 (S.D. Tex. Mar. 30, 2026). “And ‘[a] dispute about a material fact is
genuine if the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’” Id. (internal quotation marks omitted) (alteration in original)
(quoting TIG Ins. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)).
Conversely, “[t]here is no genuine issue for trial when ‘the record taken as a whole
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could not lead a rational trier of fact to find for the non-moving party.’” McMichael
v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
“The moving party ‘always bears the initial responsibility of informing the
district court of the basis for its motion’ and identifying the record evidence that ‘it
believes demonstrate[s] the absence of a genuine issue of material fact.’” Reynolds,
2026 WL 861071, at *2 (alteration in original) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). “If the moving party fails to meet [its] initial burden, the
motion [for summary judgment] must be denied, regardless of the nonmovant’s
response.” Id. (alterations in original) (quoting Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994)).
“‘[O]nce a movant who does not have the burden of proof at trial makes a
properly 	supported 	motion 	for 	summary 	judgment, 	the 	burden 	shifts 	to 	the
nonmovant to show that the motion should not be granted’ by ‘identify[ing] specific
evidence in the record and articulat[ing] the precise manner in which that evidence
supports her claim.’” Associated Prof’l Educators of La. v. Edu20/20, L.L.C., No.
24-30640, 2026 WL 448019, at *8 (5th Cir. Feb. 18, 2026) (second and third
alterations in original) (quoting Edwards v. Cont’l Cas. Co., 841 F.3d 360, 363 (5th
Cir. 2016)). The district court does not “have a duty to sift through the record in
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search of evidence to support the nonmovant’s opposition to summary judgment.”
Id. (internal quotation marks omitted) (quoting Edwards, 841 F.3d at 363).
Courts must “resolve factual controversies in favor of the nonmoving party”
but need “not consider ‘conclusional allegations and unsubstantiated assertions.’”
Cory, 103 F.4th at 1073 n.8 (first quoting Little, 37 F.3d at 1075; and then quoting
Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011)).
B. Gordon Cannot Prove His Discrimination or Retaliation Claims.
Gordon asserts three Title VII claims against Digital Air based on racial
discrimination: one for wrongful termination, another for hostile work environment,
and the final one for retaliation. ECF No. 6-2 at 4–5.5 Each fails.
i. 	Gordon cannot prove his wrongful-termination claim.
Title VII prohibits employers from “discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of [the] individual’s race.” 42 U.S.C. § 2000e-2(a)(1).
“A 	plaintiff 	who 	can 	offer 	sufficient 	direct 	evidence 	of 	intentional
discrimination should prevail[.]” Clark v. City of Alexandria, 116 F.4th 472, 486
(5th Cir. 2024) (quoting Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir.
5 ECF No. 6-2 names King and DiFlavio as defendants. When Gordon later dismissed King and
DiFlavio from the case, he substituted Digital Air and kept “the original petition information of . . .
King and . . . DiFlavio because they are employees of the company.” ECF No. 6-12. While
unorthodox, the Court takes this to mean that Gordon asserts the same causes of action against
Digital Air that he previously asserted against King and DiFlavio.
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1996)), cert. denied, 145 S. Ct. 1331 (2025). Here, Gordon admits he has no direct
evidence of intentional racial discrimination. ECF No. 37 at 8.
Without direct evidence, Gordon must rely on circumstantial evidence.
“[B]ecause direct evidence of discrimination is rare,” the Supreme Court devised a
burden-shifting 	procedure—dubbed 	the 	McDonnell 	Douglas 	framework—that
“establishes an orderly presentation of proof in discrimination cases.” 	Clark,
116 F.4th at 486 (quoting Nichols, 81 F.3d at 40). Under that framework, a plaintiff
must first demonstrate that “(1) he is a member of a protected group; (2) he was
qualified 	for 	his 	position; 	(3) 	he 	was 	discharged 	or 	suffered 	some 	adverse
employment action; and (4) he was replaced by someone outside of his protected
group or was treated less favorably than other similarly-situated employees outside
the protected group.” Kirksey v. Nat’l Multiple Sclerosis Soc’y, No. 4:24-CV-00871,
2026 WL 765267, at *6 (S.D. Tex. Jan. 15, 2026) (citing Clark, 116 F.4th at 486),
adopted, No. 4:24-CV-00871, 2026 WL 712860 (S.D. Tex. Mar. 13, 2026). If the
plaintiff can satisfy that initial hurdle, “the burden then shifts to the employer to
‘articulate a legitimate non-discriminatory reason for’ its action.” Id. (quoting
Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016)). If
the employer offers a nondiscriminatory justification, “the burden shifts back to the
plaintiff ‘to produce evidence from which a jury could conclude that the employer’s
articulated reason is pretextual.’” Id. (quoting Cannon, 813 F.3d at 590).
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It is undisputed that Gordon is Black and therefore is a member of a protected
group, he was qualified for his position at Digital Air, and he was discharged. The
only issue, then, is whether a reasonable jury could find that he was replaced by a
non-Black person or was treated less favorably than similarly situated non-Black
person. Gordon can prove neither.
Here, Gordon claims that Digital Air replaced him “with a less experienced
non-Black UI specialist” shortly “after terminating him.” ECF No. 37 at 28. To
support this assertion, he cites a portion of DiFlavio’s unofficial deposition
transcript. Yet, after reviewing the cited excerpt, the Court finds that Gordon never
asked DiFlavio about the race of the UI specialist who replaced him, nor did
DiFlavio mention it. Id. at 48. Without evidence to establish that Digital Air replaced
him with someone outside his protected class, Gordon must establish less favorable
treatment.
To prove less favorable treatment, “he must ‘point to a comparator who was
similarly situated and received more favorable treatment under nearly identical
circumstances.’” Clark, 116 F.4th at 486 (emphasis added and internal quotation
marks omitted) (quoting Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir.
2021)).
Here, Gordon struggles to establish an adequate comparator. For example, he
claims that “[h]e was the only employee in his department disciplined, placed on a
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PIP, and ultimately terminated, despite similar deficiencies among colleagues.” ECF
No. 37 at 31. To substantiate this claim, Gordon cites “Exhibit 1-10 and 1-11.” Id.
As best as the Court can guess, these exhibits constitute a single chart that contains
the names of nine Digital Air employees along with their job titles, approximate
employment dates, and a summary of their technical knowledge and skills. Id. at 71–
72. The chart, however, is unsworn and unauthenticated. Nothing indicates who
created it or when, nor is there any indication about where the creator gleaned the
underlying information or what documents or sources they relied on. Even worse,
Gordon apparently did not produce it during discovery. ECF No. 38 at 2. A more
egregious example of inadmissible hearsay is difficult to imagine. Thus, it is not
competent summary judgment evidence.
Gordon next asserts that a “White employee,” a “UI specialist hired [in]
March 2022,” “received brand new computer equipment immediately upon hire,
while [he] was given an inadequate used computer that impaired his ability to
perform essential job duties.” ECF No. 37 at 33. “The White UI specialist,” Gordon
contends, “did not suffer discipline for performance issues,” nor was he placed on a
PIP “despite similar performance outcomes.” Id. Tellingly, Gordon cites no record
evidence to establish that the UI specialist was white or that the UI specialist
performed 	similarly 	to 	him. 	Self-serving, 	barebones, 	probably-AI-generated
assertions in legal briefs are not evidence; they cannot raise a fact issue alone.
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Gordon cites one other instance to try to establish disparate treatment. At some
point, King reprimanded him for using his phone too much on the job. ECF No. 37-
1 ¶ 16. During the reprimand, King reminded Gordon that Digital Air had fired a
former employee named Rashimas for excessive phone usage. ECF No. 31 at 25.
Since Rashimas is also Black, Gordon took the comment as an example of racial
stereotyping. Id.; ECF No. 31-5 at 121:4–18, 250:20–251:13. However, Gordon
himself agreed that Rashimas deserved to be fired. ECF No. 31-5 at 251:9–11. In
fact, when asked during his deposition if he thought “King made reference to
Rashimas . . . to signal . . . that being Black had something to do with Rashimas’s
firing,” Gordon answered, “no.” Id. at 123:8–12. He further conceded that King
could 	have 	simply 	referred 	to 	Rashimas 	because 	Rashimas 	was 	the 	only
“person [King] was aware of that had been fired for being on the phone too much.”
Id. at 123:20–23. In other words, not even Gordon believes King’s comment
demonstrates racial animus or establishes disparate treatment.
Gordon’s theory of the case basically boils down to his allegedly faulty
computer. As he explains, “he reported legitimate computer issues that impaired his
ability to perform” his job, but Digital Air “repeatedly failed to address” his
complaints, placed him on a PIP, and fired him. ECF No. 37 at 19–20. In his mind,
“[t]his sequence of events raises an inference that” he was fired “because of his
race.” 	Id. 	Yet, 	nothing 	about 	that 	sequence 	even 	remotely 	suggests 	racial
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discrimination, and Gordon points to no evidence suggesting otherwise. He does not
allege, much less prove, that other non-Black employees who complained about
computer problems received prompt assistance. Based on the record, it could be the
computer was not the problem at all. Gordon admits in his response that he received
a “raise while using the same computer . . . , undermining the notion that the
machine made him . . . less capable.” Id. at 29 (emphasis added). He also did not
complain to King about his computer for nearly a year before being put on the PIP.
ECF No. 38 at 8–9; ECF No. 38-2 at 224:12–15.
Whatever the case, Title VII is “not intended to be a vehicle for transforming
the courts into personnel managers who second-guess the business decisions of
employers.” 	Bailey v. KS Mgmt. Servs., LLC, No. 4:20-CV-00059, 2025 WL
1843724, at *7 (S.D. Tex. Mar. 17, 2025) (quoting Horak v. Glazer’s Wholesale
Drug Co., Inc., No. CIV.A. 3:05-CV-901-K, 2006 WL 2017110, at *7 (N.D. Tex.
July 19, 2006), aff’d, No. 06-10854, 2007 WL 713154 (5th Cir. Mar. 6, 2007)). Nor
does it provide “the authority to sit as super-personnel departments reviewing the
wisdom or fairness of the business judgments made by employers, except to the
extent that those judgments involve intentional discrimination.” Eyob v. Mitsubishi
Caterpillar Forklift Am., Inc., 745 F. App’x 209, 212 (5th Cir. 2018) (quoting Riser
v. Target Corp., 458 F.3d 817, 821 (8th Cir. 2006)), as revised (Aug. 10, 2018).
At bottom, there is no evidence that non-Black employees were treated any
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differently—let alone more favorably. Accordingly, Gordon cannot establish a
prima facie case, and Digital Air is entitled to summary judgment.
Additionally, even if the Court assumes that Gordon could establish a prima
facie case, his claim would still fail because Digital Air has articulated legitimate,
nondiscriminatory reasons for its actions and Gordon has provided no evidence to
rebut those reasons as pretext.
Digital 	Air 	says 	it 	terminated 	Gordon 	because 	he 	continued 	to 	make
“significant errors in his work” and failed to communicate with his team to avoid
unnecessary mistakes. ECF No. 31 at 13; ECF No. 31-4 at 3. “To establish pretext,
[a plaintiff] must show that [the defendant’s] proffered explanation is false or
unworthy of credence.” Yates v. Spring Indep. Sch. Dist., 115 F.4th 414, 421 (5th
Cir. 2024) (alterations in original) (quoting Vaughn v. Woodforest Bank, 665 F.3d
632, 637 (5th Cir. 2011)). “[T]he question is not whether an employer made an
erroneous decision; it is whether the decision was made with discriminatory motive.”
Rodriguez v. City of Corpus Christi, 129 F.4th 890, 900 (5th Cir. 2025) (quoting
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)).
Here, Gordon admits he had “some performance deficiencies” as of April
2023—the same month King put him on the PIP. ECF No. 31-5 at 231:21–23.
Although Gordon disagrees with King’s reasoning—evidenced by the fact that he
scored himself twice as high as King in his March 2023 performance evaluation—
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when asked if he though King’s reasons were “all false,” he conceded that King may
have simply viewed his performance “very differently.” Id. at 245:12–23. Thus,
Gordon fails to establish a genuine dispute of material fact as to whether Digital
Air’s nondiscriminatory explanation for firing him was “false or unworthy of
credence.” Yates, 115 F.4th at 422 (quoting Vaughn, 665 F.3d at 637). Even if King
was wrong and defective computer equipment caused all Gordon’s errors, King’s
honest but incorrect reasons would still be legitimate. Saketkoo v. Adm’rs of Tulane
Educ. Fund, 31 F.4th 990, 1002 n.8 (5th Cir. 2022) (“[E]ven an incorrect belief that
an 	employee’s performance is 	inadequate 	constitutes 	a 	legitimate, 	non-
discriminatory reason.” (alteration in original) (quoting Little v. Republic Refin. Co.,
924 F.2d 93, 97 (5th Cir. 1991))).
Accordingly, Gordon cannot prove his wrongful-termination claim, and
Digital Air is entitled to summary judgment.
ii. 	Gordon cannot prove his hostile-work-environment claim.
“A plaintiff may establish a Title VII violation based on race discrimination
creating a hostile work environment.” Webber v. Leson Chevrolet Co., No. 24-
30637, 2025 WL 3218680, at *3 (5th Cir. Nov. 18, 2025) (quoting Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). “To establish a prima facie case of
racial harassment, [Gordon] needs to demonstrate that (1) he belongs to a protected
group, (2) he experienced unwelcome harassment, (3) this harassment was based on
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race, (4) the harassment affected a term, condition, or privilege of employment, and
(5) [Digital Air] knew or should have known of the harassment and failed to take
prompt remedial action.” Id.
It is unclear exactly what behaviors Gordon alleges as harassment. He merely
states that his “evidence—viewed collectively—demonstrates ongoing disparate
scrutiny, unjustified discipline, and differential treatment tied to race,” although he
does not cite any record evidence to support these assertions. ECF No. 37 at 10.
Nonetheless, Gordon is likely referring to his computer issues, King’s comment
about 	Rashimas, 	and 	his 	unfavorable 	March 	2023 	performance 	review 	and
subsequent PIP.
First, Gordon does not explain—much less argue—that Digital Air’s alleged
failure to fix or upgrade his computer constitutes “unwelcome harassment.” The
Court concludes it does not.
Second, as explained above, Gordon admits that King did not mean to imply
“that being Black had something to do with Rashimas’s firing.” ECF No. 31-5
at 251:9–11.
Third, King scored Gordon poorly on his March 2023 evaluation and
subsequent PIP because of performance-related issues—nothing to do with race.
Gordon produces no evidence suggesting otherwise. In fact, he admits that King’s
reasoning was not pretextual, stating it was simply a result of a “very different[]”
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perspective of his work performance. Id. at 245:12–23.
Taken separately or together, these actions do not qualify as harassment. But
even if they did, Gordon fails to submit a shred of evidence suggesting they were
based on race. Accordingly, Gordon’s hostile-work-environment claim fails, and
Digital Air is entitled to summary judgment.
iii. 	Gordon cannot prove his retaliation claim.
“To state a claim for retaliation,” a plaintiff must “show that (1) []he engaged
in conduct protected by Title VII; (2) []he suffered an adverse employment action;
and (3) a causal connection exists between the protected activity and the adverse
employment action.” Hamilton v. DeJoy, No. 24-50597, 2025 WL 25693, at *2 (5th
Cir. Jan. 3, 2025), cert. denied sub nom. Hamilton v. Steiner, 146 S. Ct. 101 (2025).
Gordon’s retaliation claim stumbles right out of the gate. Generally, Title VII
protects 	employees 	from 	retaliation 	for 	reporting 	discriminatory 	employment
practices. Id.; Badgerow v. REJ Props., Inc., 974 F.3d 610, 619 (5th Cir. 2020) (“We
have interpreted Title VII’s opposition clause to mean that a plaintiff engages in
protected 	activity 	when 	she 	complains 	of 	an 	employment 	practice 	that 	she
‘reasonably believes’ violated Title VII.” (quoting EEOC v. Rite Way Serv., Inc.,
819 	F.3d 	235, 	240 	(5th 	Cir. 	2016))). 	Here, 	Gordon 	never 	reported 	race
discrimination while working at Digital Air. ECF No. 31-5 at 34:4–16. Instead,
Gordon contends he “engage[d] in a protected activity by opposing a perceived
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discriminatory practice when he reported the computer issues that directly impeded
his job performance.” ECF No. 37 at 23. Complaining about IT issues is not a
protected activity under Title VII.
Even 	if 	it 	were, 	Gordon 	submits 	no 	evidence 	to 	establish 	causation.
Everything in the record suggests Digital Air fired him because of his work
performance. Whether his work performance was caused by a bad computer is
irrelevant for retaliation purposes. What matters is whether Digital Air fired him
because of his complaints about the bad computer—assuming those complaints
constituted protected activity. Gordon offers no evidence to establish that link.
Accordingly, Gordon cannot prove his retaliation claim, and Digital Air is
entitled to summary judgment.
V. 	CONCLUSION
Accordingly, the Court DENIES Gordon’s motion for leave to file an
amended complaint, ECF No. 25, and STRIKES his amended complaint, ECF
No. 26.
The Court further DENIES Gordon’s motion to strike King’s and DiFlavio’s
depositions. ECF No. 34.
The Court further RECOMMENDS that Digital Air’s motion for summary
judgment, ECF No. 31, be GRANTED.
Case 4:24-cv-04125 Document 41 Filed 06/08/26 in TXSD Page 20 of 21

The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); F ED. R.
C IV . P. 72(b). Failure to file timely objections will preclude review of factual
findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d
353, 358 (5th Cir. 2017).
IT IS SO ORDERED.
Signed at Houston, Texas, on June 8, 2026.
Dena Hanovice Palermo
United States Magistrate Judge
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