Kirksey v. National Multiple Sclerosis Society

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Trenton Kirksey,
Plaintiff,
v.
National Multiple Sclerosis Society,
Defendant.
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Civil Action No. 4:24-cv-00871
MEMORANDUM, RECOMMENDATION, AND ORDER
This is an employment dispute. 	Plaintiff Trenton Kirksey moved for
partial summary judgment on his retaliation claims under 42 U.S.C. § 1981
and Title VII of the Civil Rights Act of 1964. 	Dkt 57. 	He also moved for
sanctions against the Society, Dkt. 56, and for leave to file supplemental
authority supporting his motions (Dkts. 56, 57). 	Dkts. 72, 73. 	Defendant
National Multiple Sclerosis Society (“the Society”) filed a motion for summary
judgment on all claims. 1 Dkt. 77.
After carefully considering the motions, responses (Dkts. 66, 68, 75, 80,
82), 	replies 	(Dkts. 	79, 	81, 	86), 	the 	record, 	and 	the 	applicable 	law, 	it 	is
recommended that the Society’s motion for summary judgment (Dkt. 77) be
1 The Society also moved for sanctions against Kirksey, Dkt. 78, which will be
addressed in a separate order.
United States District Court
Southern District of Texas
ENTERED
January 15, 2026
Nathan Ochsner, Clerk
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granted. 	Kirksey’s motion for sanctions (Dkt. 56) is denied, as is his request
for leave to supplement (Dkts. 72, 73) his other motions.
Background
Kirksey is an African American man who worked for the Society from
August 29, 2022, until his termination on January 3, 2023. See Dkt. 68-1 at 2;
Dkt. 32 at 19; Dkt. 57 at 11 (termination letter). There, he was a manager on
the “Leadership Events” team. 	See Dkt. 77-3 at 10 (Interrogatory No. 7).
According to Kirksey, his position entailed recruiting donors to support the
Society. See Dkt. 32 at 4.
Although the facts are heavily disputed, Kirksey alleged that various
Society personnel discriminated and retaliated against him. 	His allegations
focus heavily on certain offensive and racially charged remarks purportedly
made 	by 	his 	supervisor 	Amanda 	Peterson, 	Associate 	Vice 	President 	of
Leadership Events. 	See, e.g., id. at 4-5 (comments about “incantations” being
sung at Black Baptist churches). 	Kirksey pleaded that, when he reported
Peterson’s behavior to Kristin Roberts, the Director of Leadership Events, she
purportedly told him not to oppose Peterson. See id. at 6.
The complaint also maintains that Kirksey raised concerns that the
Society had misallocated donations. 	He asserts that Peterson wrongfully
allocated a donor’s $4,000 contribution to the Houston fundraising total, rather
than the Dallas total, where Kirksey had spearheaded a fundraising event. See
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id. at 7-10. 	When Kirksey shared his concerns with Roberts, she ostensibly
suggested that he quit if he was “going to be in opposition.” 	See id. at 8.
Kirksey 	claims 	that 	he 	reported 	both 	Roberts’s 	conduct 	and 	the 	alleged
misallocation to the Human Resources Director, Belinda Hippert, on December
6, 2022. See id. at 9-10.
Kirksey met with Peterson and Hippert on December 16, 2022. See Dkt.
68-1 at 3. 	Evidence proffered by the Society shows that the parties discussed
several issues with Kirksey’s performance, including his failure to follow the
Society’s policies. 	See id. at 3-6 (sworn declaration of Hippert); Dkt. 68-2
(meeting 	notes); 	Dkt. 	68-3 	(follow-up 	email 	dated 	12/19/2022). 	Kirksey
acknowledges that Peterson expressed concerns about his work schedule,
travel expenses, and performance. 	See Dkt. 32 at 11. 	But he contends that
those reprimands were retaliatory and paired with racially offensive remarks.
See id. at 11-12.
Immediately 	after 	the 	meeting, 	and 	again 	on 	December 	20, 	2022,
Kirksey maintains that he reported discriminatory and retaliatory behavior to
Hippert and other Society personnel. 	See Dkt. 32 at 12-13. 	According to
Kirksey, Hippert responded to these reports with “disparaging remarks.” 	Id.
at 13. 	Around December 16, 2022, Kirksey filed an inquiry with the Equal
Employment Opportunity Commission (“EEOC”). See Dkt. 57 at 6-8. But the
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Society’s evidence reflects that it was not aware of that inquiry. See Dkt. 68-1
at 10 (Hippert’s declaration).
The Society terminated Kirksey’s employment on December 23, 2022,
effective January 3, 2023. 	See Dkt. 	57 at 11 (termination letter). 	Months
later, on May 4, 2023, Kirskey filed a Charge of Discrimination with the EEOC.
See Dkt. 32 at 19-21 (charge).
After he was terminated, Kirksey alleges that he was replaced by Joshua
Garmon, a white male. Id. at 14. He also maintains that when he applied for
unemployment 	compensation 	in 	2023, 	the 	Texas 	Workforce 	Commission
(“TWC”) concluded that he was wrongfully terminated. See id. at 13-14.
Kirksey sued the Society in state court, asserting race and religious
discrimination and retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”), and the Texas
Commission on Human Rights Act (“TCHRA”), Tex. Lab. Code Ann. §§ 21.051,
21.055. 	Dkt. 1-3 at 3, 7. 	He also brought common law claims for negligent
training, supervision, and retention. Id. at 3. The Society removed the case to
this Court. Dkt. 1. Although Kirksey initially had counsel, he terminated his
attorney on July 31, 2024, and chose to continue pro se. Dkt. 22; Dkt. 26.
The Society filed a motion for partial dismissal targeting the religious
discrimination and negligence-based claims, Dkt. 2, which was granted, Dkt. 9.
Kirksey amended his complaint to raise a new civil conspiracy claim. Dkt. 32.
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The Court granted the Society’s motion to dismiss that claim. 	Dkt. 35 (M&R
to grant Dkt. 30); Dkt. 41 (adopting Dkt. 35). That left race discrimination and
retaliation as Kirksey’s sole remaining claims.
On June 5, 2025, Kirksey filed both a motion for partial summary
judgment on his retaliation claims and a motion for sanctions. See Dkts. 56 &
57. He filed a second motion for sanctions, Dkt. 59, and related supplements,
Dkts. 62 & 64, which this Court struck, Dkt. 65. Kirksey later moved for leave
to file supplemental authority in support of his motions of sanctions and partial
summary judgment. See Dkts. 72 & 73.
In addition to responding to Kirksey’s motions, see Dkts. 66, 68, 75, 80,
the Society moved for summary judgment on all claims, Dkt. 77. 	Kirksey
responded, Dkt. 82, and the Society replied, Dkt. 86.
After the motions were briefed, the parties participated in a settlement
conference, but the case did not settle. 	At the Society’s request, Dkt. 92, the
Court vacated all trial-related deadlines pending resolution of the motions.
Dkt. 94. All foregoing motions are ripe for resolution.
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Legal standard
Summary judgment is warranted 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.” Fed. R. Civ. P. 56(a). “A dispute is genuine ‘if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). 	A fact is material if the issue it
addresses “could affect the outcome of the action.” 	Dyer v. Houston, 964 F.3d
374, 379-80 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy
Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010)).
When resolving a motion for summary judgment, courts must view the
facts 	and 	any 	reasonable 	inferences 	“in 	the 	light 	most 	favorable 	to 	the
nonmoving party.” Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 304
(5th Cir. 2010) (quotation omitted). 	“[T]he court must disregard all evidence
favorable to the moving party that the jury is not required to believe, and
should give credence to the evidence favoring the nonmoving party ….” Union
Pac. Res. Grp., Inc. v. Rhone-Poulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001).
In addition, courts must credit all reasonable inferences from the evidence,
without “weigh[ing] evidence or mak[ing] credibility findings.” Seigler v. Wal-
Mart 	Stores 	Tex., 	L.L.C., 	30 	F.4th 	472, 	476 	(5th 	Cir. 	2022). 	But
“[u]nsubstantiated 	assertions, 	improbable 	inferences, 	and 	unsupported
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speculation are not sufficient to defeat a motion for summary judgment.” Luna
v. Davis, 59 F.4th 713, 715 (5th Cir. 2023) (quoting Brown v. City of Hou., 337
F.3d 539, 541 (5th Cir. 2003)).
When applying these standards, pleadings of pro se litigants are liberally
construed. 	See Jennings v. Towers Watson, 11 F.4th 335, 341 (5th Cir. 2021)
(employment case). But pro se parties “must comply with the Federal Rules of
Civil Procedure and present proper summary judgment evidence.” 	Rolen v.
City of Brownsfield, 182 F. App’x 362, 365 (5th Cir. 2006) (per curiam) (citing
Gordon v. Watson, 622 F.3d 120, 123 (5th Cir. 1980)).
Analysis
Both parties move for summary judgment. Whereas the Society’s motion
targets all of Kirksey’s claims, Dkt. 77, Kirksey moves for partial summary
judgment only on his retaliation claims. Dkt. 57.
As explained below, Kirksey failed to exhaust administrative remedies
for his state-law discrimination and retaliation claims under the TCHRA, Tex.
Lab. Code Ann. §§ 21.051, 21.055. 	And his analogous federal claims under
Title VII and 42 U.S.C. § 1981 are barred because has not raised a genuine
issue of material fact on various requirements for recovery. This Court should
grant the Society’s motion for summary judgment, deny Kirksey’s partial cross-
motion, and enter a final judgment dismissing all claims. 	Further, Kirksey’s
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motion for sanctions is denied because, while the motion alleges that the
Society spoliated evidence, he has not proved that any spoliation occurred.
I. 	Summary judgment is warranted on all claims.
When moving for summary judgment, the Society contends in part that
Kirksey’s failure to respond to requests for admissions requires that certain
key facts be deemed admitted. 2 	See Dkt. 77 at 14. 	With or without those
deemed admissions, however, the Society also contends that (1) Kirksey failed
to exhaust his claims under chapter 21 of the Texas Labor Code, id. at 17-18;
(2) he has not made a prima facie showing of discrimination under Title VII,
Section 1981, or the TCHRA, id. at 18-23; (3) his retaliation claims fail for lack
of evidence that the Society terminated him for engaging in protected activity,
id. at 23-24; and (4) both the discrimination and retaliation claims fail because
Kirksey has not rebutted the Society’s legitimate reasons for terminating his
employment, id. at 25-27.
A. 	Kirksey 	is 	deemed 	to 	have 	admitted 	key 	facts 	that
undermine his claims.
The Society is correct that Kirksey’s complete failure to respond to
requests for admission has grave consequences. On April 14, 2025, the Society
served 	seventy-nine 	requests 	for 	admission. 	Dkt. 	77-1 	(Requests 	for
2 Because the Court concludes that Kirksey’s motion for spoliation sanctions, see
Dkt. 82 at 3; Dkt. 56 (motion for sanctions), does not affect the resolution of the
motions for summary judgment, those spoliation allegations are addressed separately
below. See infra Part III.A.
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Admission). Kirksey never responded to those requests, nor has he addressed
them when responding to the summary-judgment motion. 	Dkt. 82. 	The
requests asked Kirksey to admit or deny certain critical facts underlying his
complaint, including that:
x 	Amanda Peterson, Kirksey’s supervisor, did not make any of the racially
charged or discriminatory comments alleged in the complaint. 	See Dkt.
77-1, RFA Nos. 6, 7, 8, 12, 13, 14, 15, 16, 20, 21, 34, 37, 38, 39, 40.
x 	Kristin Roberts, the Society’s Director of Leadership Events to whom
Kirksey allegedly complained about Peterson’s comments, see Dkt. 32 at
6, never responded to him by saying “what you do not want to do is
oppose her [Peterson] in any way, she is already hard to deal with,” Dkt.
77-1, RFA No. 23, despite Kirksey’s contrary allegation, Dkt. 32 at 6, 9.
x 	Belinda 	Hippert, 	the 	Human 	Resources 	Director 	to 	whom 	Kirksey
allegedly complained about conduct he viewed as discriminatory, see
Dkt. 32 at 9-10, never discouraged or attempted to discourage Kirksey
from reporting alleged discrimination, Dkt. 77-1, RFA Nos. 44 & 45, as
the complaint had asserted, see Dkt. 32 at 13.
x 	Joshua Garmon—the White man who Kirksey claimed the Society later
hired to replace him, see Dkt. 32 at 14—was hired before Kirksey’s
termination and did not replace Kirksey. Dkt. 77-1, RFA Nos. 60 & 61.
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x 	The TWC never concluded that Kirksey was wrongfully terminated by
the Society, as the complaint asserts, see Dkt. 32 at 14; instead, the
Commission merely concluded that he was entitled to unemployment
benefits, Dkt. 77-1, RFA Nos. 46, 47.
x 	Notwithstanding Kirksey’s allegations that he filed an EEOC charge on
December 16, 2022, Dkt. 32 at 2, the only charge that Kirksey filed was
on May 4, 2023, with the EEOC and the New York State Division of
Human Rights (“NYSDHR”). 	Dkt. 77-1, RFA Nos. 48, 49, 52, 53, 58.
Before that date, Kirksey never served the Society with a document
preservation notice. Dkt. 77-1, RFA No. 59.
The discovery rules allow a party to serve requests asking another party
to admit or deny the truth of a matter. 	Fed R. Civ. P. 36(a)(1). 	If the
responding party fails to serve a written answer or objection within thirty days,
the matter is deemed admitted and “is conclusively established unless the
court, on motion, permits the admission to be withdrawn or amended.” 	See
Fed R. Civ. P. 36(b), (c). 	Rule 36 is “self-executing; no court intervention is
required for an admission to be established.” Curtis v. State Farm Lloyds, 2004
WL 1621700, at *4 (S.D. Tex. Apr. 29, 2004); accord Le v. The Cheesecake
Factory Rests., Inc., 2005 WL 2266610, at *5 (S.D. Tex. Sept. 14, 2005), aff’d
2007 WL 715260 (5th Cir. Mar. 6, 2007).
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Kirksey’s failure to respond to the requests for admissions triggers Rule
36’s consequences. 	He has not moved to withdraw or amend his admissions,
nor has he attempted to justify his failure to properly respond to the requests
for admissions. Accordingly, all seventy-nine requests are deemed admitted.
Those deemed admissions, the Society contends, are conclusive at this
stage. 	Dkt. 77 at 14. 	Indeed, longstanding authority holds that summary
judgment can be granted based on default admissions, even if it leads to harsh
results. 	See In re Carney, 258 F.3d 415, 418, 421 (5th Cir. 2001); Poon-Atkins
v. Sappington, 2022 WL 102042, at *1 (5th Cir. Jan. 10, 2022). 	Because
Kirksey’s default admissions are conclusive, the Court cannot consider any
contradictory evidence when resolving the pending motions for summary
judgment. 	See In re Carney, 258 F.3d at 420; see also, e.g., Amador v. Wolfe,
2021 WL 3889305, at *2 (5th Cir. Aug. 30, 2021).
Nor does Kirksey’s pro se status exempt him from that result. The Fifth
Circuit has applied Rule 36 equally to pro se and represented parties. 	See In
re Carney, 258 F.3d at 418, 421 (affirming summary judgment based on pro se
plaintiff’s deemed admissions where the plaintiff failed to respond); Poon-
Atkins, 2022 WL 102042, at *2 (affirming summary judgment where pro se
plaintiff failed to respond to RFAs, offered no explanation for that failure, did
not 	seek 	withdrawal, 	or 	respond 	late, 	and 	instead 	only 	offered 	contrary
evidence on summary judgment).
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As a matter of law, all seventy-nine requests in the Society’s requests for
admission (Dkt. 77-1) are deemed admitted. 	That means the Court cannot
consider any evidence contravening those admitted facts when resolving the
parties’ pending motions.
B. 	Kirksey has not exhausted his state law claims.
With respect to Kirksey’s TCHRA claims for race discrimination and
retaliation, 	the 	Society 	argues 	that 	Kirksey 	failed 	to 	exhaust 	his
administrative remedies. 	See Dkt. 77 at 9. 	By failing to respond to that
argument, Kirksey has abandoned his state law claims as a matter of law.
See Terry Black’s Barbeque, L.L.C. 	v. State Auto. Mut. Ins. Co., 22 F.4th 450,
459 (5th Cir. 2022) (“A plaintiff abandons claims when it fails to address the
claims or oppose a motion challenging those claims.”).
Regardless, the record confirms that Kirksey did not fulfill procedural
requirements before bringing his TCHRA claims. “Prior to filing a civil action
under the TCHRA, employees must exhaust their administrative remedies.”
Bunker v. Dow Chem. Co., 111 F.4th 683, 686 (5th Cir. 2024) (citing Vielma v.
Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000); Tex. Lab. Code §§ 21.201-.202).
This entails filing a complaint with and affording the TWC an opportunity to
investigate before seeking relief in court. See Bunker, 111 F.4th at 686.
Kirksey’s deemed admission confirms that he only filed a charge with
the EEOC and the NYSDHR, and not with the TWC. See supra Part I.A; Dkt.
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77-1, RFA Nos. 48-49. 	His EEOC charge does not indicate that it was to be
dual-filed with the TWC, as necessary to exhaust his state-law remedies. 	See
Dkt. 32 at 19-20; Bunker, 111 F.4th at 686-87. His state law claims are barred.
C. 	Kirksey has not raised a genuine issue of material fact on
his Title VII and Section 1981 discrimination claims.
Kirksey has also alleged that the Society violated Title VII and 42 U.S.C.
§ 1981 by discriminating against him based on his race. Dkt. 32 at 15-16. The
Society maintains, and the Court agrees, that Kirksey has not raised a fact
issue on those claims.
1. 	Title VII and Section 1981 discrimination claims share the
same legal framework.
Title 	VII 	prohibits 	an 	employer 	from 	“discriminat[ing] 	against 	any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race ....” 	42 U.S.C. § 2000e-2(a)(1).
Section 1981 prohibits racial discrimination in the making and enforcement of
contracts. See 42 U.S.C. § 1981; McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 295 (1976). 	In the employment context, the elements of a Title VII
and Section 1981 claim are “identical.” See Pratt v. City of Hou., Tex., 247 F.3d
601, 606 n.1 (5th Cir. 2001).
Racial discrimination claims, whether under Title VII or Section 1981,
“are governed by the same evidentiary framework ....” 	LaPierre v. Benson
Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996). 	Those claims can be
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supported through direct or circumstantial evidence. Jones v. Robinson Prop.
Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005). 	“Direct evidence is evidence
which, if believed, proves the fact without inference or presumption.” Id. But
“because direct evidence of discrimination is rare, the Supreme Court has
devised an evidentiary procedure that allocates the burden of production and
establishes an orderly presentation of proof in discrimination cases.” Clark v.
City of Alexandria, 116 F.4th 472, 486 (5th Cir. 2024) (quotation omitted), cert.
denied, 145 S. Ct. 1331 (2025).
Absent direct evidence of discrimination, the analysis proceeds under the
burden-shifting framework set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). See Ayorinde v. Team Indus. Servs. Inc., 121 F.4th
500, 506-07 (5th Cir. 2024) (addressing Title VII and § 1981 claims). 	Under
that framework, a plaintiff first must make a prima facie case of discrimination
by demonstrating 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. 	See Clark, 116 F.4th at 486. 	If that
showing is made, the burden then shifts to the employer to “articulate a
legitimate non-discriminatory reason for” its action. 	See Cannon v. Jacobs
Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (quoting E.E.O.C.
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v. Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 615 (5th Cir. 2009)). 	Once
the employer proffers its non-discriminatory 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.
2. 	Kirksey has no direct evidence of discrimination.
Kirksey contends that he has direct evidence of discrimination—namely
Peterson’s racially discriminatory remarks. 	Dkt. 82 at 2. 	Comments may
constitute direct evidence of discrimination where they are “1) related to the
protected class of persons of which the plaintiff is a member; 2) proximate in
time 	to 	the 	complained-of 	adverse 	employment 	decision; 	3) made 	by 	an
individual with authority over the employment decision at issue; and 4) related
to the employment decision at issue.” 	Rutland-Simpson v. Eli Lilly & Co.,
940 F. Supp. 2d 504, 510 (S.D. Tex. 2013) (alterations removed) (quoting
Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 400-01 (5th Cir.
2000)), aff’d, 575 F. App’x 314 (5th Cir. 2014).
Kirksey was terminated on December 23, 2022. 	See Dkt. 32 at 13
(complaint); Dkt. 77 at 13 (the Society’s statement of undisputed facts).
Kirksey alleges, and the Society acknowledges, that Peterson made that
decision. Dkt. 32 at 13; Dkt. 68-1 at 9. But Kirksey is deemed to have admitted
that Peterson did not make any of the racially offensive comments alleged in
his complaint or referenced in his response. See supra Part I.A; Dkt. 77-1, RFA
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Nos. 6, 7, 8, 12, 13, 14, 15, 16, 20, 21, 34, 37, 38, 39, 40. 	Moreover, Kirksey
presents no evidence that the comments related to his termination. 	There is
no direct evidence of racial discrimination.
3. 	Kirksey has not made a prima facie case of discrimination.
Without direct evidence, Kirksey must make a prima facie case of
discrimination. He has not met that burden.
In particular, the Society argues that Kirksey lacks evidence for the
fourth element, which requires him to show that he was replaced by, or
otherwise treated less favorably than, someone outside of his protected class.
Dkt. 77 at 18-19. 	Although the complaint alleges that Peterson “replaced”
Kirksey with a white male, Joshua Garmon, Dkt. 32 at 14, that assertion is
conclusively negated by Kirksey’s deemed admission that Garmon did not
replace him, see supra Part I.A; Dkt. 77-1, RFA No. 61. In any event, Kirksey
has provided no evidence substantiating that allegation.
Kirksey 	asserts 	that 	it 	is 	disputed 	“[w]hether 	similarly 	situated
employees were treated more favorably” than he was. 	See Dkt. 82 at 4. 	At
most he notes—citing no evidence—that “[m]any colleagues” were afforded
“flexible scheduling” of work hours that was denied to him. 	See id. at 3. 	He
does not specify who those colleagues were, the race of those colleagues, nor
the 	circumstances 	under 	which 	they 	received 	unspecified 	“flexibility 	in
scheduling.” 	The lack of evidence substantiating that “at least one coworker
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outside of his protected class ... was treated more favorably under nearly
identical 	circumstances” 	defeats 	his 	race 	discrimination 	claim.
See Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426-27 (5th Cir. 2017)
(quotation omitted) (affirming summary judgment on Title VII claim; no
evidence that employees of a different religion and ethnicity within plaintiff’s
same group and who received a similar performance rating as plaintiff were
not similarly fired).
D. 	Kirksey’s retaliation claims also fail.
The parties cross-moved for summary judgment on Kirksey’s retaliation
claims under Title VII and Section 1981. 	Dkt. 57; Dkt. 77. 	Kirksey contends
that the Society terminated him for reporting discrimination and for “filing an
EEOC inquiry.” 3 	See Dkt. 57 at 1. Although the Society asserts that Kirksey
has not made a prima facie case of retaliation, it has also proffered a neutral
reason 	for 	its 	action, 	namely 	that 	Kirksey 	failed 	to 	satisfy 	performance
requirements and violated numerous Society policies.
3 Kirksey also maintains that the Society terminated him for reporting financial
irregularities. See Dkt. 57 at 1. That is not covered by Title VII or Section 1981. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (citing 42 U.S.C.
§ 2000e-3(a)) (Title VII prohibits retaliation for “‘oppos[ing] any practice’ made
unlawful by Title VII”); 42 U.S.C. § 2000e-2 (covering “race, color, religion, sex, or
national origin” only); Zastrow v. Hou. Auto Imps. Greenway Ltd., 789 F.3d 553, 563
(5th Cir. 2015) (“Section 1981 prohibits retaliation against an individual who has
attempted to vindicate” rights provided by the statute); 42 U.S.C. § 1981(a) (racial
discrimination only).
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As the Society maintains, and the Court agrees, Kirksey offers no
evidence 	contradicting 	the 	Society’s 	legitimate 	basis 	for 	terminating 	his
employment. That omission alone defeats his retaliation claims. Because none
of the additional authorities cited in Kirksey’s motion for leave to supplement
his brief backfills that evidentiary gap, see Dkt. 73-1, his motion for leave to
submit that supplement (Dkt. 73) is denied.
1. 	The Society’s evidentiary objections
In response to Kirksey’s motion, the Society raised certain evidentiary
objections. 	In particular, the Society challenges the admissibility of certain
exhibits attached to Kirksey’s motion for partial summary judgment. See Dkt.
68 at 13-15 (challenging Exhibits C and D).
Regarding Exhibit C, the Society maintains that it “consist[s] entirely of
unauthenticated hearsay.” 	Dkt. 68 at 14. 	That global, non-specific hearsay
objection is insufficient. 	See Carter v. Octapharma Plasma, Inc., 2025 WL
1521328, at *3 (S.D. Tex. May 13, 2025) (overruling analogous global hearsay
objection), adopted by 2025 WL 1519926 (S.D. Tex. May 28, 2025). 	Exhibit C
includes almost twenty pages of documents, including emails, texts, and
receipts. 	See Dkt. 57 at 12-31. 	At least some of them are capable of being
presented in an admissible form at trial, which is the only requirement at this
stage. See LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534
(5th Cir. 2016) (addressing Fed. R. Civ. P. 56(c)(2)). 	Because the Society does
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not detail what specific statements within those materials fail to satisfy that
test, it has not properly raised any hearsay objection to Exhibit C.
The Society also moves to strike six pages of Exhibit C that were marked
“confidential” but not properly filed under seal. 	See Dkt. 68 at 14; Dkt. 39
(protective order). 	Kirksey did not comply with the protective order which
required information marked “confidential” to be filed under seal. 	Dkt. 39 at
3-4; Dkt. 57 at 26-31 (marked “confidential” but unsealed). The Court therefore
strikes the improperly filed pages (Dkt. 57 at 26-31).
As another challenge, the Society moves to strike Exhibit D, Dkt. 68 at
15-16, 	which 	Kirksey 	described 	as 	an 	audio 	recording 	of 	Hippert’s 	and
Peterson’s testimony before the TWC, Dkt. 57 at 2. But Kirksey did not attach
the recording to his submission. Merely referring the Court to a stricken filing
(Dkt. 49) without re-submitting it is inadequate. 	See Dkt. 49 (flash drive of
audio recording); Dkt. 50 (striking Dkt. 49). Exhibit D is not part of the record.
Notably too, Kirksey’s brief fails to cite any portion of the 83-minute
audio recording in Exhibit D. 	It is not the Court’s responsibility to parse
through the entire recording in search of something relevant to Kirksey’s
claims. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“Judges are
not like pigs, hunting for truffles”) (quoting U.S. v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)). Exhibit D is not properly before the Court, nor will the Court
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consider any unspecified portion that Kirksey failed to identify. 	The request
to strike Exhibit D is denied as moot.
2. 	The burden-shifting framework applies to retaliation claims.
“‘[R]etaliation claims under § 1981 and Title VII ... are parallel causes of
action,’ which means they ‘require[] proof of the same elements in order to
establish liability.’” 	Johnson v. Halstead, 916 F.3d 410, 420 (5th Cir. 2019)
(quoting Foley v. Univ. of Hous. Sys., 355 F.3d 333, 340 n.8 (5th Cir. 2003)).
Both claims are subject to the same burden-shifting framework applicable to
discrimination claims. See Ayorinde, 121 F.4th at 507.
At the first step, a plaintiff must establish a prima facie case by showing
that “(1) [he] engaged in activity protected under the statute, (2) [his] employer
took an adverse employment action against [him], and (3) a causal connection
exists between the protected activity and the adverse action.” 	Lewis v. Bd. of
Supervisors of La. State Univ. & Agric. & Mech. Coll., 134 F.4th 286, 295 (5th
Cir. 2025) (citing Feist v. La. Dep’t of Just., 730 F.3d 450, 454 (5th Cir. 2013));
see also Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (applying same
framework to Section 1981 claim). 	If a prima facie case is established, “[t]he
burden then shifts to the employer to articulate a legitimate non-retaliatory
reason for the adverse employment action.” 	Alkhawaldeh, 851 F.3d at 427.
Once the employer states that non-retaliatory reason, “the burden shifts back
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to the employee to ‘demonstrate that the employer’s [stated] reason is actually
a pretext for retaliation.’” Id. (quoting Feist, 730 F.3d at 454).
3. 	Kirksey 	has 	not 	shown 	that 	the 	neutral 	reason 	for
terminating him was pretextual.
Even assuming that Kirksey satisfied his prima facie burden, the Society
has articulated a non-retaliatory reason for terminating his employment. 	As
the Society states, it fired Kirksey “because he failed to meet performance
requirements, including but not limited to his failure to complete a set of tasks
… and for his other violations of [the Society’s] policy.” 	Dkt. 68 at 9, 21
(response); Dkt. 68-5 (termination letter); see also Dkt. 77 at 25 (motion for
summary judgment); Dkt. 86 at 7 (reply). 	Declarations and other exhibits
reflect the Society’s position that Kirksey had not complied with its policies
governing work schedules, substance abuse, travel, and expenses. See Dkt. 68-
1 (Declaration of Belinda Hippert detailing these issues); Dkt. 68-2 (Hippert’s
meeting notes); Dkt. 68-3 at 2-3 (follow-up email to Kirksey). Those allegations
of poor performance and failure to follow policy provide legitimate, non-
retaliatory justifications for termination. 	See Medina v. Ramsey Steel Co.,
238 F.3d 674, 684-85 (5th Cir. 2001) (poor performance); Rachid v. Jack In The
Box, Inc., 376 F.3d 305, 313 (5th Cir. 2004) (policy violation).
Kirksey therefore must proffer evidence that the Society’s justification
was pretextual. To do so requires “evidence that could lead a reasonable fact-
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finder to conclude that the adverse [employment] action would not have
occurred ‘but for’ the employee’s decision to engage in an activity protected by
Title VII.” 	Alkhawaldeh, 851 F.3d at 427 (quotations omitted). 	Causation is
fundamental to that inquiry. See Brown v. Wal-Mart Stores E., L.P., 969 F.3d
571, 579 (5th Cir. 2020).
In his motion, Kirksey declares that “documentary evidence clearly
establish[es]” 	he 	was 	terminated 	for 	(1) 	filing 	an 	EEOC 	inquiry 	and
(2) reporting alleged discrimination to Society personnel. Dkt. 57 at 1. But the
evidence does not support a causal link between those events.
Kirksey relies most heavily on the temporal proximity between the date
of his EEOC inquiry (around December 16, 2022, see Dkt. 57 at 8)—a protected
activity, see Crocker v. CenterPoint Energy, 2025 WL 1899062, at *4 (S.D. Tex.
July 9, 2025)—and his termination a few days later (on December 23, 2022,
Dkt. 57 at 2). 	But he proffers no evidence controverting the Society’s position
that it did not know about Kirksey’s EEOC inquiry until months after firing
him. 	See Dkt. 68-1 at 10 (Hippert’s declaration); Dkt. 68-6 (May 13, 2023
Notice of Charge of Discrimination). 	“If an employer is unaware of an
employee’s protected conduct at the time of the adverse employment action,
the employer plainly could not have retaliated against the employee based on
that conduct.” Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164,
168 (5th Cir. 1999). Without evidence that the Society knew about the EEOC
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inquiry, Kirksey cannot show that the inquiry was causally linked to his
termination. 	See Crocker, 2025 WL 1899062, at *4. 	And failure to present
evidence of causation forecloses a finding that the Society’s stated reason for
terminating Kirksey was pretextual. 	See Garcia v. Pro. Cont. Servs., Inc.,
938 F.3d 236, 242 (5th Cir. 2019).
Kirksey 	also 	claims 	that 	the 	Society 	retaliated 	against 	him 	for
submitting complaints to human resources department and supervisors. 	See
Dkt. 57 at 1; see also Dkt. 81 at 1. He asserts that there was a “sharp reversal”
of 	previously 	positive 	performance 	reviews 	following 	his 	engagement 	in
protected activity. 	Dkt. 57 at 2; see also Dkt. 82 at 2-3 (attempting to rebut
allegations of poor performance). 	But his evidence does not raise a genuine
issue of material fact.
Most fundamentally, Kirksey has not cited specific evidence, either when
moving for partial summary judgment or responding to the Society’s motion.
He merely listed and attached a series of exhibits, which is inadequate. At the
summary-judgment stage, a party must “identify specific evidence in the
record and [] articulate the precise manner in which that evidence supports his
or her claim.” 	Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998). 	“When evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court.” 	Malacara,
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353 F.3d at 405. 	“This rule extends to pro se plaintiffs such as [Kirksey].”
Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 (5th Cir. 2016). “Simply put,
a plaintiff fails 	to 	meet his 	or her 	own obligation 	under Rule 	56 when
purporting 	to 	impose 	upon 	a 	federal 	court 	the 	task 	of 	sifting 	an
undifferentiated mass of evidence.” 	Vasquez v. Nelson, 2025 WL 1458538, at
*1 (S.D. Tex. May 21, 2025) (Eskridge, J.).
Further, although Kirksey disputes the Society’s position that he had
performance problems, he cites no evidence exposing the Society’s view as false
or unworthy of belief. 	Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000) (defining pretext). 	“The issue at the pretext stage is whether
[the 	employer’s] 	reason, 	even 	if 	incorrect, 	was 	the 	real 	reason 	for 	[the
employee’s] termination.” 	Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
899 (5th Cir. 2002); see also Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 408 (5th Cir. 1999). Under that standard, it does not matter whether the
Society’s views were accurate or fair, so long as the Society did not fire Kirksey
simply because he had complained about discrimination.
Kirksey’s records do not engage the pretext standard. 	For example,
Kirksey’s belief that he saved the Society money by violating its travel policy,
see Dkt. 82 at 3, even if true, has no bearing on whether the Society terminated
him in part for violating that policy.
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Likewise, the fact that Kirksey secured a $10,000 donation for the
Society, see Dkt. 82-2 at 3 (thank-you note), 11-12 (screenshot dated October
26, 2022, indicating donation); Dkt. 57 at 14 (donation), fails to show pretext.
That accomplishment does not engage the myriad other stated reasons why he
was terminated, much less suggest that those stated reasons were merely a
smokescreen 	for 	retaliation. 	Kirksey’s 	bare 	contentions 	do 	not 	suffice.
Summary judgment is warranted for the Society on the retaliation claims.
II. 	Kirksey’s motion for sanctions is denied.
Kirksey bases his motion for sanctions on accusations that the Society
spoliated 	electronically 	stored 	information 	(“ESI”), 	namely 	“Teams 	chat
records, internal communications, and videoconferencing materials.” 	Dkt. 56
at 2. 	He seeks a range of relief, including an adverse inference at trial,
monetary sanctions, lost wages, and default judgment. See id. at 3. The Court
concludes 	that 	Kirksey 	has 	not 	met 	his 	burden 	to 	show 	that 	ESI 	was
wrongfully lost or that sanctions would be merited. 	Because the law on this
issue 	is 	settled, 	Kirksey’s 	related 	motion 	(Dkt. 	72) 	to 	submit 	additional
authority is denied.
“Spoliation 	is 	the 	destruction 	or 	the 	significant 	and 	meaningful
alteration of evidence.” 	Rimkus Consulting Grp., Inc. v. Cammarata, 688 F.
Supp. 2d 598, 612 (S.D. Tex. 2010). 	Rule 37(e) “authorizes and specifies
measures a court may employ if information that should have been preserved
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is lost, and specifies the findings necessary to justify these measures.” Fed. R.
Civ. P. 37(e), advisory cmte. notes to 2015 amendment. 	Sanctions for loss of
ESI have four predicates: “(1) there is ESI that should have been preserved;
(2) that ESI has been lost; (3) the ESI was lost because of a party’s failure to
take reasonable steps to preserve it; and (4) the ESI cannot be restored or
replaced through additional discovery.” 	BHI Energy I Power Servs. LLC v.
KVP Holdings, LLC, 730 F. Supp. 3d 308, 319-20 (N.D. Tex. 2024) (quotation
omitted); Fed. R. Civ. P. 37(e). 	The party seeking sanctions must prove, by a
preponderance of evidence, that those requirements are met. See id. at 324.
A threshold question is whether the disputed ESI was lost at a time when
the Society had a duty to preserve it. 	A party’s duty to preserve arises “when
the 	party 	charged 	with 	spoliation 	should 	have 	reasonably 	anticipated
litigation.” See Etheridge v. Dolgencorp L.L.C., 699 F. Supp. 3d 492, 498 (E.D.
La. 2023) (citing Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App’x 565,
574 	(5th 	Cir. 	2020)). 	This 	trigger 	“varies 	based 	on 	the 	facts 	and
circumstances.” Coastal Bridge Co., L.L.C., 833 F. App’x at 574.
Kirksey maintains that the Society should have known that litigation
was foreseeable “no later than December 16, 2022”—the date he filed his EEOC
inquiry. 	Dkt. 56 at 2. 	But the Society responds that it was not aware of that
inquiry and thus had no duty to preserve until receiving notice on May 13, 2023
that Kirksey had filed an EEOC charge. See Dkt. 66 at 12 (citing Dkt. 66-2 at
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2 (Notice of Charge)). Kirksey provides no controverting evidence on this point.
He also did not serve the Society with a document preservation notice before
May 4, 2023. See supra Part I.A; Dkt. 77-1, RFA No. 59. Because the disputed
materials would have been automatically deleted after 30 days under the
Society’s standard retention policy, see Dkt. 67-1 at 4 (noting that “backups are
maintained for 30 days”), nothing suggests that the materials were deleted
after the preservation notice was sent, or at any other time when the Society
arguably had a duty to preserve ESI.
Instead, Kirksey argues, citing no evidence, that the Society became
aware of his intent to litigate when he asked Hippert to testify at an EEOC
proceeding and threatened litigation if he did not obtain a severance package.
See Dkt. 56 at 1. 	He fails to controvert Hippert’s declaration that she was
never asked to testify before the EEOC. See Dkt. 66-1 at 4. Hippert mentions
Kirksey’s threat to “go big” if the Society did not give him money, although she
does not say when it was made. 	See id. 	Regardless, that vague statement
alone is insufficient to show that the Society should reasonably have believed
that Kirksey intended to sue. Kirksey has not proved that the Society lost ESI
while under a duty to preserve it.
Moreover, even if a duty to preserve arose before May 2023, the Society
maintains that sanctions are unwarranted. 	Dkt. 66 at 15-21. 	This is correct
because his evidence does not support sanctions authorized by Rule 37(e).
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First, no evidence indicates that the Society deleted ESI “with the intent to
deprive” Kirksey of its use in litigation. 	See Fed. R. Civ. P. 37(e)(2); Coastal
Bridge Co., L.L.C., 833 F. App’x at 575 (framing this mens rea as requiring
“bad faith”). 	This intent finding must be made before the Court can issue
severe sanctions, including an adverse inference or default judgment. See Fed.
R. Civ. P. 37(e)(2). Negligence, gross negligence, or even recklessness does not
suffice. See BHI Energy, 730 F. Supp. 3d at 322. Kirksey’s request for the most
drastic remedies fails because he has neither alleged nor substantiated that
the Society intentionally deleted ESI in bad faith. See Dkt. 56 at 3.
Rule 37(e)(1) does provide an alternative path to the types of sanctions
Kirksey seeks, whether for monetary relief or more severe penalties. But that
avenue requires proof that the loss of evidence was prejudicial, i.e., that the
loss impairs the other party’s ability to present its claim or defense. 	See
Coastal Bridge Co., L.L.C., 833 F. App’x at 575 (“A party suffers prejudice
where it cannot present evidence essential to its underlying claim.” (quotation
omitted)). 	Even in that situation, sanctions are limited to “measures no
greater than necessary to cure the prejudice .…” Fed. R. Civ. P. 37(e)(1).
The Society aptly notes that Kirksey has not shown which lost data was
relevant to his claims or how its loss prejudiced him. Dkt. 66 at 7. Other than
asserting 	that 	“Teams 	chat 	records, 	internal 	communications, 	and
videoconferencing materials ... would have supported” his claims, Kirksey
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offers no specificity as to how or why they would have done so. See Dkt. 56 at
2. 	Moreover, there is no indication that any specific information contained in
those materials was unavailable from other sources. Merely pointing to broad
categories of ESI and baldly claiming prejudice is inadequate. See Bridgetower
Opco LLC v. Workforce Rsch. Grp. LLC, 2023 WL 361779, at *4 (S.D. Tex. Jan.
23, 2023) (“Speculative assertions that the lost evidence would have supported
the injured party’s claims or defenses are inadequate to justify the severest
sanctions.”). Because Kirksey did not establish by a preponderance of evidence
that the Society lost any ESI while under a duty to preserve it, that any
claimed loss was done intentionally and in bad faith, or that any lost ESI was
relevant and prejudicial, his motion for sanctions is denied.
Recommendation and Order
For the foregoing reasons, it is RECOMMENDED that the National
Multiple 	Sclerosis 	Society’s 	motion 	for 	summary 	judgment 	(Dkt. 	77) 	be
GRANTED 	and 	all claims asserted by Trenton Kirksey’s against it are
DISMISSED WITH PREJUDICED. 	Accordingly, it is RECOMMENDED
that Kirksey’s motion for partial summary judgment (Dkt. 57) be DENIED. It
is ORDERED that confidential documents attached to the motion (Dkt. 57 at
26-31) are STRICKEN from the record under the protective order (Dkt. 39).
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It is further ORDERED that Kirksey’s motion for sanctions (Dkt. 56) be
DENIED, and that his motions for leave (Dkts. 72 & 73) to supplement his
motion for partial summary judgment and motion for sanctions be DENIED.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
The Clerk of Court is directed to send a copy of this opinion to Kirksey
by email and regular mail to his record addresses.
Signed on January 15, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
,
____________________________________
Yvooon	n	nn	ne Y. Ho
United States Magistrate Judge
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