Velasco v. IAS Logistics DFW, LLC d/b/a Pinnacle Logistics

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
Analicia Velasco,
Plaintiff,
v.
IAS Logistics DFW, LLC d/b/a
Pinnacle Logistics,
Defendant.
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Civil Action M-23-0323
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 3. Pending before
the court is Defendant’s Motion for Summary Judgment, ECF
No. 23. The court recommends that the motion be GRANTED.
1. Background
Plaintiff Analicia Velasco worked as a Terminal Manager for
Defendant, IAS Logistics DFW d/b/a Pinnacle Logistics (Pinnacle),
for approximately five months from November 2021, until her
termination in April 2022. Velasco Dep.,1 ECF No. 23-4 at 6:3–9,
24:6–14. Velasco alleges in her Second Amended Petition that
Pinnacle wrongfully terminated her employment, discriminated
against her based on her age and gender, subjected her to sexual
harassment, retaliated against her for reporting harassment, and
violated her right to privacy. ECF No. 1-6 at 4–7.
Velasco supervised approximately nine employees in her role
at Pinnacle. ECF No. 23-4 at 7:24–8:10. By December 2021, after
Velasco had been working for about a month, multiple employees
had complained about Velasco’s managerial style. ECF No. 23-1
1 Because multiple exhibits include unnumbered pages, the court cites to page
numbers as provided in the ECF banner, not the original pagination.
United States District Court
Southern District of Texas
ENTERED
January 28, 2026
Nathan Ochsner, Clerk
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at 7. Velasco’s supervisor, Canny Millan, disciplined Velasco with
a verbal warning for improper conduct and substandard work. Id.
According to the disciplinary report,2 employees complained that
Velasco would yell at them and speak to them in an accusatory
manner. Id. The report states that consequences for a failure to
improve would include possible suspension or termination. Id.
Millan commented in the report that “[t]his is a learning curve”
since Velasco was new to the team. Id.
Around December 16, 2021, Velasco was suspended from
work after 	disciplining an employee. 	ECF No. 24-1 at 	2. On
December 18, Velasco contacted Millan for an update on her
suspension. 	Id. 	Millan 	informed 	Velasco 	that 	there 	was 	no
investigation into the incident, that Human Resources was not
notified, and that Velasco should return to work the following
Monday. Id.
In January 2022, Velasco felt responsible for improving the
terminal where her team was based. ECF No. 23-4 at 25:3–6.
Velasco explains that she told her team, around January 3, 2022:3
[W]e have to clean, clean the bathrooms, clean -- this
is our home away from home. So I said, we’re gonna --
the cabinets outside in the warehouse, ‘cause we had
cabinets where the [truck] drivers did their, you know,
their write-ups, their manifest, or whatever they may
be, I said, I’m gonna clean it, . . . if you have any
2 In response to Pinnacle’s Motion for Summary Judgment, Velasco argues in one
sentence that the disciplinary reports were “manufactured.” ECF No. 24 at 15. To
support her argument, Velasco notes that she did not sign any of the disciplinary
reports. Id. Velasco did not move to strike the reports or otherwise argue that they
were inadmissible. Thus, the court considers them as competent summary judgment
evidence.
3 Velasco’s briefing includes dates that are unsupported by the evidence. Compare
ECF No. 24 at 2 (“on February 3rd, 2022, while the Plaintiff was cleaning the driver's
area, she found . . .”), with ECF No. 23-5 at 8 (stating that Velasco cleaned the
warehouse cabinet on January 3, 2022). The court relies on the dates supported by the
evidence.
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personal items that are around there, take them home.
So the drivers take off and they go out to the routes
and I go out to the warehouse and I start cleaning the
area. [] I open the cabinet door and I saw a 22-inch
dildo, really nasty and dirty. Immediately, I took a
picture of it and I text the picture to Canny [Millan.]
Id. at 25:7–24. The text exchange between Velasco and Millan
proceeded as follows:
Velasco: [image]
Should I put on group and ask whom ever it
belongs to to take it home
Millan: 	What is that?...
Velasco: Grozzzzzz
Nasty
[image]
Look again
Millan:
Let’s throw that away..
Velasco: Ma’am!!!!!
ECF No. 23-5 at 4–5. Velasco ignored Millan’s suggestion to throw
the item away, closed the cabinet door, and left the item there.
ECF 	No. 	23-4 	at 	25:23–26:17. 	Later, 	Velasco 	asked 	another
employee to throw the item away. Id. at 26:2–17. The employee
threw it away, and Velasco never saw it again. Id.
On January 13, 2022, Millan again issued a verbal warning
to 	Velasco 	and 	disciplined 	Velasco 	for 	improper 	conduct 	and
improper or substandard work. ECF No. 23-1 at 11. According to
the report, employees complained about Velasco withholding toilet
paper to save money for the end of year bonus. Id. The report also
states 	that 	employees 	complained 	about 	Velasco’s 	poor
communication and that she changed employee schedules without
notice. Id.
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At one point, Millan and Millan’s supervisor had a meeting
with Velasco and told Velasco that the truck drivers were having
conflicts, that Velasco needed to be nicer to them, and that Velasco
needed to let the drivers do their work. ECF No. 23-4 at 16:12–25.
Velasco stated in her sworn Charge of Discrimination to the
Texas Workforce Commission that the drivers “harassed her about
the sex toy” for a few weeks after she found it. ECF No. 24-1 at 2.
In the Charge, Velasco states that, around March 13, 2022, she
emailed the Safety Director for Pinnacle and told him that she felt
sexually harassed by the drivers and that Millan created a hostile
work environment. Id.
Another disciplinary report, dated March 14, 2022, states
that on March 11, 2022, Velasco violated company safety guidance
and mismanaged a driver breakdown situation. ECF No. 23-1
at 37–38. 	The 	report 	states 	that 	Velasco’s 	mismanagement
resulted in several hours of lost work for multiple drivers. Id. at 37.
The disciplinary action recommended in the report is termination.
Id.
Finally, on March 15, 2022, Millan disciplined Velasco for
improper 	conduct 	and 	improper 	or 	substandard 	work.4 	ECF
No. 23-1 at 9. The disciplinary report again states that several
employees 	complained 	about 	Velasco’s 	management. 	Id.
Employees stated that they could not comfortably work “with the
constant yelling, being talked down to or ignored[,]” and lack of
communication. 	Id. 	The 	employees 	reported 	“a 	hostile
environment 	that 	delays 	or 	prevents 	regular 	functions[.]” 	Id.
4 There are two disciplinary reports, one dated March 3, 2022 and another March 15,
2022, that appear to be identical except for their dates. Compare ECF No. 23-1 at 9–
10 with ECF No. 23-1 at 13–14. Since both reports are dated March 2022 and since
Millan later stated in an email that she only spoke to Velasco about the complaints
once in March, on March 15, ECF No. 23-1 at 16, the court construes the two March
reports together.
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Millan wrote in the comments of the report that this was the third
time that the employees raised concerns to her about Velasco’s
management style. Id.
On March 28, 2022, the Safety and Compliance Manager at
Pinnacle 	sent 	an 	email 	regarding 	questions 	about 	whether
Pinnacle was “covered on our basis for terminating a terminal
manager.” ECF No. 23-1 at 18. The next day, Millan stated in an
email that she needed to dismiss Velasco. Id. at 17.
On March 30, 2022, Millan stated in another email that
Velasco had received many employment complaints and had not
met the company’s expectations for her position. ECF No. 23-1
at 16. 	In 	the 	email, 	Millan 	explained 	that 	Velasco’s 	“lack 	of
knowledge of the daily operation is not only jeopardizing the
operation, but affecting the safety of drivers and straining the
relationship 	of 	the 	biggest 	customers 	for 	the 	MFE 	terminal.
[Velasco] is insubordinate, does not follow instructions, misses
regular work and meetings.” Id.
On 	March 	31, 	2022, 	Velasco 	was 	“held 	out 	of 	service”
(suspended) due to the March 11 incident. ECF No. 23-1 at 15. On
April 5, Velasco’s suspension was extended until April 7 at 3 pm.
ECF No. 23-1 at 40.
On April 6, 2022, Velasco emailed Ms. Birdow and Mr.
Coleman, both of whom worked for Pinnacle HR, and explained
that she found a sex toy in January. ECF No. 23-5 at 8–9. Velasco
also stated in the email that three drivers “would smile with a
smirk, laugh at me as i [sic] conducted meetings and when ever i
[sic] walked by them.” Id.
On April 7, 2022, Velasco was terminated. ECF No. 23-4
at 24:6–25, 33:12–34:6; ECF No. 23-9 ¶ 16.
Velasco now alleges multiple causes of action under the
Texas 	Commission 	on 	Human 	Rights 	Act 	(TCHRA) 	for
discrimination based on her gender and age, retaliation, 	and
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harassment. ECF No. 1-6 at 4–6. Velasco also alleges a cause of
action under Texas law for invasion of privacy.
2. Legal Standard
“Summary judgment is appropriate 	only if, 	viewing the
evidence in the light most favorable to the nonmovant, ‘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.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. 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)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401
F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. See Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The court, however, does not have
a duty “to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
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supports [the] claim.”). Although the court needs to consider only
the cited evidence, it is allowed to consider other materials in the
summary judgment record. Fed. R. Civ. P. 56(c)(3).
“[C]onclusory allegations, unsubstantiated assertions, or
‘only a scintilla of evidence’” are not enough to defeat a properly
supported 	motion 	for 	summary 	judgment. 	Turner 	v. 	Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
“[T]here must be evidence on which the jury could reasonably find
for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
3. Analysis
As the court stated above, it is Velasco’s burden to “go
beyond the pleadings,” and cite “specific facts” showing a genuine
issue for trial. McCarty, 864 F.3d at 357. The court does not have
a duty to search the record for material fact issues, and conclusory
allegations or unsubstantiated assertions are not enough to defeat
a properly supported motion for summary judgment. RSR Corp.,
612 F.3d at 857; Turner, 476 F.3d at 343.
Velasco has not met her burden. Velasco’s arguments related
to multiple causes of action (e.g., harassment and invasion of
privacy) do not cite any evidence. To the extent that Velasco
attempted to incorporate her entire deposition into the record
without citations, see ECF No. 24 at 3, Velasco did not clearly
identify 	in 	her 	response 	specific 	evidence 	in 	the 	record 	nor
articulate precisely how that evidence supports her claim. Even so,
the court has considered all of the cited evidence as well as other
evidence not specifically cited in the parties’ briefs. The court turns
to Velasco’s claims.
Velasco 	alleges 	causes 	of 	action 	under 	the 	TCHRA 	for
discrimination based on her gender and age, retaliation, 	and
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harassment. ECF No. 1-6 at 4–6. Velasco also alleges a cause of
action for invasion of privacy.
TCHRA claims based on gender and age are analyzed under
the analogous federal precedents interpreting Title VII of the Civil
Rights Act of 1964 (Title VII) and the Age Discrimination in
Employment Act of 1967 (ADEA). See Prairie View A & M Univ. v.
Chatha, 381 S.W.3d 500, 505 (Tex. 2012) (“we have looked to
federal law for guidance in situations where the TCHRA and Title
VII 	contain 	analogous 	statutory 	language”); 	Smith 	v. 	AT&T
Mobility Servs., L.L.C., No. 21-20366, 2022 WL 1551838, at *2 (5th
Cir. 	May 	17, 	2022) 	(analyzing 	ADEA 	and 	TCHRA 	age-
discrimination claims together under federal law).
Direct evidence of discriminatory or retaliatory intent is
rare. See Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.
2005). 	When 	based 	on 	circumstantial 	evidence, 	claims 	for
discrimination and retaliation are analyzed under the burden-
shifting approach outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Saketkoo v. Adm’rs. of Tulane Educ. Fund,
31 F.4th 990, 997, 1000 (5th Cir. 2022) (applying the burden-
shifting approach to retaliation and discrimination claims).
Here, 	there 	is 	no 	direct 	evidence 	of 	discrimination 	or
retaliation. 	Thus, 	the 	court 	applies 	the 	McDonnell 	Douglas
burden-shifting framework to Velasco’s claims of discrimination
and retaliation. The burden-shifting approach places the initial
burden 	on 	the 	plaintiff 	to 	establish 	a 	prima 	facie 	case 	of
discrimination or retaliation. See Saketkoo, 31 F.4th at 999. If the
plaintiff meets the initial burden, the defendant must respond by
providing a legitimate, nondiscriminatory reason for its action. Id.
If the defendant meets its burden, the plaintiff must produce
evidence showing that the proffered reason is pretextual. Id.
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A. Discrimination
To establish a prima facie case of discrimination based on
gender and age, Velasco must show that she (1) was a member of
a protected group, (2) was qualified for her position, (3) was subject
to an adverse employment action, and (4) was replaced by or was
treated less favorably than other similarly situated employees
outside her protected group. Ernst v. Methodist Hosp. Sys., 1 F.4th
333, 339 (5th Cir. 2021); Saketkoo, 31 F.4th at 997–98; Awe v.
Harris Health Sys., No. 25-20144, 2026 WL 83762, at *2 (5th Cir.
Jan. 	12, 	2026) 	(stating 	that 	the 	fourth 	element 	in 	an 	age
discrimination claim requires a plaintiff to show that they were
“treated less favorably than similarly situated younger employees
(i.e., suffered from disparate treatment because of membership in
the protected class)”).
Velasco belongs to protected groups based on her gender and
age as a woman who was older than 40 at the time of the adverse
employment action. See 29 U.S.C. § 631 (stating that the ADEA’s
prohibitions are “limited to individuals who are at least 40 years
of age”).
Pinnacle argues that Velasco cannot establish her prima face
case for gender or age discrimination because her claims are based
entirely on her own subjective belief that she was discriminated
against. ECF No. 23 at 15. Pinnacle also argues that, because
Velasco’s ultimate replacement was a woman who was older than
40 when she was hired, there is no evidence that Velasco was
replaced by or treated less favorably than other similarly situated
employees outside her protected groups. Id.
Velasco has not met her burden to show her prima facie case
for gender discrimination. Velasco argues, and the evidence shows,
that she was replaced by a woman. ECF No. 24 at 12; ECF No. 23-
9 ¶ 20. Velasco does not argue or provide evidence showing that
she was treated less favorably than someone outside her protected
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group. ECF No. 24 at 12. Thus, Velasco has not established the
prima facie case for her gender discrimination claim. That claim
should be dismissed.
The court turns to the prima facie case for Velasco’s age
discrimination claim. Velasco was 58 years old when she was
terminated, and she was replaced by a woman who was 41 years
old at the time she was hired. ECF No. 24-1 at 4; ECF No. 23-9
¶ 20. “[A] plaintiff’s replacement must be ‘substantially younger’
to create an inference of discrimination.” Flanner v. Chase Inv.
Services Corp., 600 F. App’x 914, 918 (5th Cir. 2015). The court
need not decide whether Velasco demonstrated a fact question as
to the prima facie case for her age discrimination claim because,
even if she did, she has not shown that Pinnacle’s reason for her
termination is pretextual.
If Velasco had met her initial burden to establish her prima
facie case of discrimination based on her age or gender, the burden
would shift to Pinnacle to provide a legitimate, nondiscriminatory
reason for Velasco’s termination. Pinnacle states that, after an
investigation into Velasco’s management of the March 11 incident,
Velasco was terminated because of her poor performance. ECF
No. 23-1 at 16–18 (describing complaints against Velasco and
Velasco’s 	poor 	performance 	and 	asking 	whether 	Pinnacle 	is
“covered on our basis for terminating” Velasco); ECF No. 23-4
at 24:15–25 (stating that after completing the investigation into
the March 11 incident, Pinnacle decided to terminate Velasco);
ECF No. 23-1 at 37–38 (disciplinary report stating that Velasco
would be terminated for the March 11 incident). Poor performance
is a legitimate, nondiscriminatory reason for termination. Owens
v. Circassia Pharm., Inc., 33 F.4th 814, 826 (5th Cir. 2022).
Accordingly, 	the 	burden 	then 	shifts 	back 	to 	Velasco 	to
present evidence sufficient to establish a genuine issue of material
fact about whether Pinnacle’s asserted reason for termination is
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pretext. Owens, 33 F.4th at 826. The evidence must allow fair-
minded factfinders to reach different conclusions about whether
Pinnacle’s proffered reason was, in fact, the reason for Velasco’s
termination. Id. A plaintiff can meet her burden to show pretext
with 	circumstantial 	evidence, 	including 	evidence 	of 	disparate
treatment 	or 	evidence 	tending 	to 	show 	that 	the 	employer’s
explanation 	is 	unworthy 	of 	credence. 	Id. 	But 	the 	ultimate
determination is whether, viewing all of the evidence in a light
most favorable to the plaintiff, a reasonable factfinder could infer
discrimination. Id. (citing Crawford v. Formosa Plastics Corp., La.,
234 F.3d 899, 902 (5th Cir. 2000)).
Velasco has not met her burden to raise a material fact
dispute as to pretext for her gender or age-based discrimination
claims. 	Velasco 	argues 	that 	“her 	performance 	was 	perfectly
satisfactory” and that the multiple disciplinary reports against her
were “manufactured.” ECF No. 24 at 15. Velasco does not cite any
evidence to support her arguments aside from pointing out that
she did not sign the disciplinary reports. Id. She also claims that
she did not see the disciplinary reports prior to this litigation, and
she stated during her deposition that her performance issues were
never brought to her attention during the time of her employment.
ECF No. 23-4 at 9:13–10:23, 18:25–19:24.
Velasco’s laudatory opinion of her own work performance
and apparent ignorance of her disciplinary issues is not sufficient
to defeat summary judgment. Velasco admits that there were
numerous incidents for which she was disciplined. ECF No. 23-4
at 9:1–6. She does not deny that employees complained about her
management style. Id. at 17:6–12. She does not deny that she was
withholding toilet paper. See id. at 16:12–25. She does not deny
that 	she 	was 	suspended 	pending 	an 	investigation 	into 	the
March 11 	situation, 	which 	appears 	to 	have 	been 	the 	final
infraction that led to her being terminated. Id. at 22:5–25. Velasco
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presents no evidence to demonstrate that the incidents leading to
her discipline did not take place. The evidence shows that Velasco’s
employment 	with 	Pinnacle 	was 	rife 	with 	complaints. 	Velasco
presents no evidence from which the court can infer that Pinnacle’s
proffered reasons for firing her are pretextual. There is no evidence
that 	would 	allow 	fair-minded 	factfinders 	to 	reach 	different
conclusions about whether Pinnacle’s proffered reason was, in fact,
the reason for Velasco’s termination.
Pinnacle’s 	motion 	as 	to 	Velasco’s 	gender 	and 	age
discrimination claims should be granted.
B. Retaliation
To establish her prima facie case for retaliation, Velasco
must show that: (1) she engaged in a protected activity, (2) she
suffered an adverse employment action, and (3) there is a causal
connection between the two. Saketkoo, 31 F.4th at 998–1000.
Pinnacle 	disputes 	the 	first 	and 	third 	elements 	of 	Velasco’s
retaliation claim. ECF No. 23 at 16–17.
The court first considers whether Velasco provided evidence
that she engaged in a protected activity. “A general allegation of
hostility is not enough.” Saketkoo, 31 F.4th at 1000 (“an employee
must at least have referred to conduct that could plausibly be
considered discriminatory in intent or effect, thereby alerting the
employer of its discriminatory practices”). Even where a plaintiff
complains of unfair treatment, a plaintiff must “demonstrate[] that
she put the employer on notice that her complaint was based on []
discrimination.” Harris-Childs v. Medco Health Sols., Inc., 169 F.
App’x 913, 916 (5th Cir. 2006).
Velasco’s 	conclusory 	statement 	in 	her 	Charge 	of
Discrimination that she reported sexual harassment to Pinnacle’s
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Safety Director in an email on March 13 is insufficient.5 ECF
No. 24-1 at 2. That email does not mention harassment based on
any protected characteristic under the TCHRA. See ECF No. 23-5
at 3. Velasco testified that she was not sure whether she referenced
sexual harassment when she reported harassment. ECF No. 24-2
at 59:9–25 (“I used, bullying, I used, toxic environment, toxic work
environment, but . . . I cannot guarantee that I used the word, sex,
but overall I meant everything, harass [sic]”). However, on the eve
of her termination, Velasco reported finding the sex toy, ECF
No. 23-5 	at 8, 	and 	stated 	that 	she 	believed 	it 	was 	an 	act 	of
harassment 	against 	her. 	The 	court 	continues 	its 	analysis
assuming, without deciding, that there is a fact question as to
whether Velasco engaged in a protected activity.
“To 	demonstrate 	that 	a 	causal 	link 	exists 	between 	the
protected activity and the adverse employment action at the prima
facie stage, an employee can show close enough timing [that is,
temporal 	proximity,] 	between 	her 	protected 	activity 	and 	the
adverse employment action.” Saketkoo, 31 F.4th at 1001. Velasco
states that she reported sexual harassment around March 13. ECF
No. 24-1 at 2. Velasco emailed HR about finding the sex toy on
April 6. ECF No. 23-5 at 8. She was suspended on March 31, and
terminated on April 7, 2022. ECF No. 23-9 ¶¶ 13, 16. There is
sufficient temporal proximity to create a fact question as to a
causal connection at the prima facie stage. See Garcia v. Pro.
Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (“a period
of two months is close enough to show a causal connection”).
Thus, the burden shifts to Pinnacle to provide a legitimate,
nonretaliatory reason for Velasco’s termination. The court has
5 The email discusses a dispute between Velasco and Millan about cleaning the
bathroom. ECF No. 23-5 at 3. Velasco mentions that Millan often tried to intimidate
Velasco, and that Velasco felt that the workplace was hostile, but Velasco does not
raise any concerns that relate to a protected characteristic under the TCHRA.
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already 	found 	that 	Pinnacle’s 	purported 	reason 	for 	Velasco’s
termination—poor 	performance—is 	a 	legitimate 	reason 	for
termination.
Thus, 	the 	burden 	shifts 	back 	to 	Velasco 	to 	show 	that
Pinnacle’s proffered reason for her termination is a pretext for
retaliation. In the context of a retaliation claim, pretext turns on
whether the protected conduct was the “‘but for’ cause of the
adverse employment decision.” Owens, 33 F.4th at 835 (citing Long
v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996)). “[E]ven if a
plaintiff’s 	protected 	conduct 	is 	a 	substantial 	element 	in 	a
defendant’s [adverse employment action], no liability for unlawful
retaliation arises if the employee would have [undergone that
action] even in the absence of the protected conduct.” Long, 88 F.3d
at 305 n.4 (citation omitted). A plaintiff may meet their burden to
show 	pretext 	by 	combining 	suspicious 	timing 	with 	other
significant evidence of pretext. Owens, 33 F.4th at 835. The court
must consider whether a plaintiff’s evidence is sufficient for a
reasonable jury to find but-for causation. Brown v. Wal-Mart
Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020), as revised (Aug.
14, 2020).
Velasco 	argues 	generally, 	without 	citing 	evidence 	or
providing specific examples, that there is a causal connection
between her complaints of harassment and her termination. ECF
No. 24 at 14–15. Other than temporal proximity, however, Velasco
does not provide any evidence to demonstrate that she was fired
because of her complaints to management or that she would not
have been fired in any event due to her performance issues. Again,
as discussed above, Velasco admits that she was disciplined on
numerous occasions. ECF No. 23-4 at 9:1–6. There is no dispute
that 	Velasco 	was 	disciplined 	for 	mishandling 	the 	March 	11
situation. Id. at 22:4–25. There is no evidence indicating that
Velasco’s April 6 email was a but-for cause of her termination. In
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fact, the evidence shows that Pinnacle had contemplated Velasco’s
termination several days before Velasco’s April 6 email. Velasco
did 	not 	identify 	any 	evidence 	that 	would 	support 	a 	rational
inference 	that 	her 	termination 	was 	based 	on 	retaliation.
Accordingly, Pinnacle’s motion as to Velasco’s retaliation claim
should be granted.
C. Harassment
Sexual harassment is a recognized cause of action under the
TCHRA, and courts look to analogous federal law, here, Title VII,
in applying the state Act. Tex. Lab. Code §§ 21.142, 21.051; Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). Texas
recognizes two general types of sexual harassment: (1) quid pro
quo, in which employment benefits are conditioned on sexual
favors, and (2) harassment that creates a hostile or offensive work
environment. Id.; see also Hoffmann-La Roche Inc. v. Zeltwanger,
144 S.W.3d 438, 445 n.5 (Tex. 2004).
Velasco 	does 	not 	state 	which 	form 	of 	harassment 	she
endured. However, Velasco does not allege, argue, or provide any
evidence that she underwent quid pro quo harassment. Thus, the
court construes Velasco’s sexual harassment claim as harassment
that created a hostile or offensive work environment.
“A hostile work environment exists when the workplace is
permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.”
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)
(omitting internal quotation marks). To establish a prima facie
case for a hostile work environment, Velasco must show that she
(1) is a member of a protected group; (2) suffered unwelcome
harassment; (3) the harassment was based on her membership in
the protected group; (4) the harassment affected a term, condition,
or privilege of employment; and (5) the employer knew or should
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have known of the harassment and failed to take prompt remedial
action.6 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th
Cir. 2012).
Pinnacle argues that Velasco cannot show the fourth or fifth
elements of her harassment claim because: the harassment was
not 	severe 	or 	pervasive, 	Velasco 	was 	not 	offended 	by 	the
harassment, and Pinnacle did not fail to take remedial action. ECF
No. 23 at 11–14. In response, Velasco merely argues, without citing
any evidence, that Pinnacle created a hostile environment that
interfered 	with 	Velasco’s 	work 	performance 	and 	that 	was
“extremely 	detrimental” 	to 	Velasco’s 	emotional 	and 	physical
health. ECF No. 24 at 12–13.
The court first considers whether Velasco identified evidence
that the harassment affected a term, condition, or privilege of her
employment. 	For 	harassment 	to 	affect 	a 	term, 	condition, 	or
privilege 	of 	employment, 	it 	must 	be 	“sufficiently 	severe 	or
pervasive” and create an abusive working environment. Gibson v.
Verizon Servs. Org., Inc., 498 F. App’x 391, 394 (5th Cir. 2012).
“This element is disjunctive—if a single instance of the conduct . . .
was severe enough on its own to create a hostile work environment,
then it need not 	have been pervasive for this element to be
satisfied.” Abbt v. City of Houston, 28 F.4th 601, 608 (5th Cir.
2022).
The environment must be “both objectively and subjectively
offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.”
6 Stated another way, the Supreme Court of Texas has held that a hostile work
environment claim for sexual harassment under the TCHRA arises when “(1) an
employee was subjected to unwelcome sexual harassment, (2) the employee was
harassed because of his or her sex, (3) the harassment was so severe or pervasive as
to alter the conditions of employment and create a hostile work environment, and (4)
some basis exists for holding the employer liable.” Fossil Group, Inc. v. Harris, 691
S.W.3d 874, 881 (Tex. 2024).
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Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 433 (5th Cir.
2022) (citation omitted). To determine whether an environment is
objectively 	hostile, 	courts 	consider 	the 	totality 	of 	the
circumstances, 	including 	the 	conduct’s 	frequency, 	severity,
whether it is physically threatening, and whether it interferes
with 	the 	employee’s 	work 	performance. 	Id. 	“[S]imple 	teasing,
offhand 	comments, 	and 	isolated 	incidents 	(unless 	extremely
serious)” are not enough to alter the terms and conditions of
employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788,
(1998) (citation and internal quotation marks omitted).
Velasco 	did 	not 	cite 	any 	evidence 	to 	show 	that 	the
harassment she endured affected a term, condition, or privilege of
her employment. In her argument supporting her harassment
claim, Velasco does not cite any evidence or supporting case law.
She states that, for a few weeks after she attempted to clean the
cabinets in the drivers’ area, “the drivers harassed [her] about the
sex toy.” ECF No. 24-1. Velasco argues that her work environment
harmed her emotional and physical health, but she does not
provide any evidence to support her argument. Velasco does not
say what the drivers said to her. She does not identify the language
used or the context in which it was used.
The court went well beyond Velasco’s briefing and scoured
the record for evidence that could possibly support Velasco’s claim.
Velasco testified that the drivers made vulgar, sexually explicit
comments to her. ECF No. 23-4 at 29:2–30:2; ECF No. 24-2 at 66:5–
24 	(stating 	that 	three 	employees 	made 	sexually 	explicit
comments). Velasco also found a sex toy while cleaning, which she
interpreted as harassing. Velasco also testified that someone at
Pinnacle put a dead rat on her desk, slashed her tires, and scraped
her car with keys. ECF No. 23-4 at 30:1–19. On the one hand,
many of these things have nothing to do with Velasco’s gender.
They could just as easily be interpreted to be something of a
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mutiny against an unpopular boss. On the other hand, even a
single instance of sufficiently severe conduct can create a hostile
work environment. Abbt, 28 F.4th at 608. Because it is a close
question, the court assumes for the sake of discussion that Velasco
endured actionable harassment and turns to the other elements of
her claim.
There is not a 	fact question 	as to the fifth 	element 	of
Velasco’s claim. That is, there is no evidence that Pinnacle knew
or should have known of the harassment and failed to take prompt
remedial action. If an employer knew of harassment and took
prompt remedial action that was reasonably calculated to halt the
harassment, it can avoid liability for a hostile work environment.
Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 640 (5th
Cir. 2014). “An employer is put on notice of harassment when a
person within the organization who has the authority to address
the 	harassment 	problem 	or 	an 	affirmative 	duty 	to 	report
harassment learns of the harassment in question.” Fossil Group,
691 S.W.3d at 884–85 (internal quotations omitted). An employer
may have constructive knowledge of harassment if the harassment
was “so open and pervasive that the appropriate persons should
have known of it had the employer opened its corporate eyes.” Id.
at 885–86 (internal quotations omitted).
Velasco’s 	conclusory 	statement 	in 	her 	Charge 	of
Discrimination that she reported, in a March 13 email, feeling
sexually harassed by the drivers is insufficient. See ECF No. 24-1
at 2. As the court stated above, Velasco’s March 13 email does not
address sexual harassment. Velasco merely states in the email
that she felt that the workplace was hostile, but Velasco does not
raise any concerns that relate to a protected characteristic under
the TCHRA. ECF No. 23-5 at 3.
Velasco testified that she talked to HR (Ms. Birdow and Mr.
Coleman) about general harassment, but she never told them
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about the sexually explicit comments the drivers made or the sex
toy. ECF No. 23-4 at 31:2–32:8; 28:1–25. Velasco testified that she
was not sure whether she referenced sexual harassment when she
reported harassment. ECF No. 24-2 at 59:9–25 (“I used, bullying,
I 	used, 	toxic 	environment, 	toxic 	work 	environment, 	but . . . 	I
cannot guarantee that I used the word, sex, but overall I meant
everything, 	harass 	[sic]”). 	The 	court 	has 	not 	identified 	any
evidence in the record that Velasco reported that her tires were
slashed or that someone keyed her car.
As to Velasco’s April 6 email, Pinnacle did not have an
opportunity to take remedial action prior to Velasco’s termination
because, at the time Velasco sent the email, she was suspended.
Velasco was terminated the next day.
Velasco’s 	argument 	that 	she 	reported 	harassment 	by
sending a photo of the sex toy to Millan when she found it is
unpersuasive. Velasco’s text stated, “Should I put on group and ask
whom ever it belongs to to take it home[?]” ECF No. 23-5 at 4.
Millan 	responded 	“What 	is 	that?...” 	then, 	after 	Velasco 	sent
another photo, Millan replied with several laughing emojis and
stated, “Let’s throw that away.” Id. at 4–5. There is no indication
that throwing away the item would not remediate the issue. At the
time that Velasco found the item and texted Millan about it, it was
an 	isolated 	incident. 	There 	is 	no 	evidence 	that 	any 	further
remedial action was necessary, or if it was, what could have been
done.
There is insufficient evidence before the court to create a fact
dispute as to whether Pinnacle knew or should have known of the
harassing conduct that Velasco has cited and that the court has
found on its own. See, e.g., Arredondo v. Elwood Staffing Servs.,
Inc., 	81 	F.4th 	419, 	435–36 	(5th 	Cir. 	2023) 	(finding 	that 	the
employer did not have knowledge of the hostile work environment
where plaintiff did not report the abuse she experienced). Velasco
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has not shown that Pinnacle knew or should have known of the
harassment and failed to take prompt remedial action.
Because 	Velasco 	has not identified any evidence in the
record 	to 	support 	her 	claim 	and 	because 	the 	court 	has 	not
identified any such evidence, Pinnacle’s motion should be granted
as to Velasco’s harassment claim.
D. Invasion of privacy
Texas recognizes multiple types of claims related to invasion
of privacy. Moore v. Bushman, 559 S.W.3d 645, 649 n.2 (Tex.
App.—Houston [14th Dist.] 2018, no pet.). The parties appear to
agree that Velasco alleges an “intrusion-upon-seclusion” invasion
of privacy. See ECF No. 24 at 16 (citing elements of an intrusion-
upon-seclusion cause of action); ECF No. 23 at 19–20 (same). “This
type 	of 	invasion 	of 	privacy 	includes 	a 	physical 	invasion 	of 	a
person’s 	property 	as 	well 	as 	eavesdropping 	upon 	private
conversations with the aid of wiretaps or microphones, or spying.”
Moore, 559 S.W.3d at 649. To establish a cause of action for an
invasion of privacy, a plaintiff must show “(1) an intentional
intrusion, 	physically 	or 	otherwise, 	upon 	another’s 	solitude,
seclusion, or private affairs or concerns, which (2) would be highly
offensive to a reasonable person.” Amin v. United Parcel Serv., Inc.,
66 F.4th 568, 576 (5th Cir. 2023) (citing Valenzuela v. Aquino, 853
S.W.2d 512, 513 (Tex. 1993)).
Pinnacle argues that Velasco’s allegations do not rise to the
level of an invasion of privacy. ECF No. 23 at 19–20. Velasco
responds, again without citing any evidence, by arguing that
“placing the 22-inch sex toy, in the area Plaintiff Analicia Velasco
would find it is an intentional intrusion upon another’s solitude
which would be highly offense to a reasonable person and as such
plaintiffs claims rise to the level of actionable invasion pf [sic]
privacy.” ECF No. 24 at 16.
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Velasco has not met her burden. There is no evidence that
anyone placed the item intentionally for Velasco to find. In any
event, an invasion of privacy claim cannot succeed in a public
space. See Trusty v. Walmart Inc., No. CV H-20-235, 2020 WL
2497733, at *2 (S.D. Tex. May 13, 2020) (citing Vaughn v. Drennon,
202 S.W.3d 308, 320 (Tex. App.—Tyler 2006, pet. denied). The
evidence shows that Velasco found the item in a cabinet in the
drivers’ area of her workplace. ECF No. 24-1 at 2. There is no
evidence showing that Velasco, or any other person at Pinnacle,
had a private domain or expectation of privacy in the drivers’ area
of the workplace. See id. (stating that the core of the tort is the
offense of prying into the private domain of another).
Also, allegations of sexual harassment, offensive comments,
and inappropriate advances are not cognizable as a cause of action
for invasion of privacy under Texas law. Cornhill Ins. PLC v.
Valsamis, Inc., 106 F.3d 80, 85 (5th Cir. 1997); Sacks v. Tex. S.
Univ., No. CV H-18-3563, 2019 WL 13043644, at *10 (S.D. Tex.
Aug. 29, 2019). Texas courts have required a “physical invasion of
a person’s property or eavesdropping” to sufficiently establish an
invasion of privacy claim. Clayton v. Wisener, 190 S.W.3d 685, 696
(Tex. App.—Tyler 2005, pet. denied); Sacks, 2019 WL 13043644,
at *10. Velasco’s claim does not meet this standard, and Pinnacle’s
motion as to Velasco’s invasion of privacy claim should be granted.
4. Conclusion
The 	court 	recommends 	that 	Defendant’s 	Motion 	for
Summary Judgment, ECF No. 23, be GRANTED.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
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140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on January _____, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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