Olatunji v. AT&T Services Inc

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TAOFIK OLATUNJI,
Plaintiff,
v.
AT&T SERVICES INC.,
Defendant.
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Case No. 3:24-cv-01644-N-BT
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Taofik Olatunji filed this pro se employment discrimination and
retaliation suit against his former employer AT&T Services Inc. (AT&T). Before the
Court is Defendant AT&T’s Motion for Summary Judgment (ECF No. 47). For the
reasons stated below, the District Judge should GRANT Defendant’s Motion for
Summary Judgment.
Background
Olatunji worked for AT&T from 2014 to 2022 as a premises technician.
Third Am. Compl. at 4, ¶ 16 (ECF No. 27); AT&T App. at 101–03 (Plaintiff’s
separation proposal) (ECF No. 49). In that role, Olatunji performed “all aspects of
installing, repairing, disconnecting, modifying, upgrading and downgrading of
customer service offerings” at customer locations. AT&T App. at 8 (ECF No. 49)
(providing the job description for a premises technician); see also id., Decl. of
Freeman at 1, ¶ 3. Olatunji reported to various supervisors during his employment,
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including Nathan Dvorak (a non-Black supervisor) from January 2020 to August
2021 and Thaddeus Fouche (a Black supervisor) from August 2021 to January
2022. Id., Decl. of Dvorak at 115, ¶ 3 (ECF No. 49), Decl. of Fouche at 104, ¶ 4.
Throughout 	his 	employment, 	Olatunji 	consistently 	received 	below 	average
performance reviews. AT&T App. at 129–34 (ECF No. 49) (providing performance
reviews from 2018 to 2020); see also id., Decl. of Dvorak at 117–20, ¶¶ 8–19 (ECF
No. 49) (detailing Olatunji’s performance deficiencies); id., Decl. of Fouche at 105–
08, ¶¶ 5–14 (same). For example, in 2018, 2019, and 2020, Plaintiff received end-
of-year appraisals of “Does Not Meet Expectations.” AT&T App. at 129–34 (ECF
No. 49). The 2020 appraisal detailed Olatunji’s “unwillingness to follow company
policies, including those related to the treatment of customers, proper installation
and repair practices, and route adherence.” Id. at 130.
On September 15, 2020, Olatunji met with Area Manager Milton Freeman
(a Black supervisor), Director of Network Services Jackie Counts, and Union Chief
Steward Alex Doblado, to discuss Olatunji’s allegations that Dvorak was unfairly
targeting Olatunji and did not provide him with adequate support. Id. at 98; Pl.’s
App. at 16–18 (ECF No. 57). Olatunji shared that he felt as though there was a
“target on [his] back” and Dvorak engaged in harassment. Id. Olatunji also alleged
that Dvorak used “racist language” because Dvorak relayed to Olatunji that a
customer complained about Olatunji’s use of “ghetto language.” Id. at 17. Olatunji
believes Dvorak should have recognized the customer’s comment was “malicious
and unreasonable” by using “a disrespectful, unprofessional, inappropriate, racist
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epithet.” AT&T App. at 252 (ECF No. 49) (emphasis omitted). Olatunji also
accused Dvorak of stalking and harassment due to Dvorak’s unannounced visits
during Olatunji’s work hours. Pl. App., Decl. of Olatunji at 7–8, ¶¶ 36–38 (ECF No.
58).
Olatunji eventually confronted Dvorak about his complaints when Dvorak
made an unannounced visit to the residence where Olatunji was supposed to be
working on January 4, 2021. AT&T App., Decl. of Dvorak at 119, ¶ 16 (ECF No. 49).
It is standard practice for AT&T supervisors “to make unannounced visits, review
performance, and provide feedback to all technicians.” Id., Decl. of Freeman at 6,
¶ 20; see also id., Decl. of Fouche at 104, ¶ 3 (“As a part of my role [as Manager
Network Services], I’m expected to conduct unannounced visits to the worksites of
every technician under my supervision.”). When Dvorak could not find Olatunji,
he used AT&T’s vehicle tracking system to locate him at a McDonald’s parking lot.
Id., Decl. of Dvorak at 119, ¶ 16. According to Dvorak, when he tried to speak with
Olatunji, Olatunji “appeared upset and unwilling to listen to [Dvorak’s] feedback.”
Id. But according to Olatunji, he accused Dvorak of harassment and informed
Dvorak 	that 	he 	would 	be 	filing 	a 	complaint 	with 	the 	Equal 	Employment
Opportunity Commission (EEOC). Pl.’s App., Decl. of Olatunji at 8, ¶ 38 (ECF No.
58). After this incident Olatunji took a two-month leave of absence. AT&T App.,
Decl. of Dvorak at 120, ¶ 17 (ECF No. 49).
Preceding his termination, Olatunji progressed through AT&T’s discipline
policy. Pursuant to AT&T’s Supervisor Manual, when a performance problem
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arises, supervisors are expected to informally discuss and coach the employee on
the 	performance 	problem. 	AT&T’s 	Br. 	at 	3 	(ECF 	No. 	48). 	If 	this 	proves
unsuccessful, or if the employee commits a serious policy violation, AT&T begins
“escalating disciplinary steps.” Id. First, the supervisor will issue a Performance
Notice 	(PN) 	which 	“records 	a 	formal 	discussion 	between 	a 	supervisor 	and
employee to address a serious (or recurring) job performance problem and is active
for six months.” Id. Next, the supervisor will issue a Written Reminder (WR) which
documents a formal conversation between the supervisor and employee about a
“very serious performance problem” and is active for nine months. Id. (emphasis
omitted). And finally, a supervisor will issue a Decision-Making Leave (DML)
which is active for twelve months. Id. at 3–4. During a DML, an employee may be
terminated for policy violations that are considered worthy of dismissal, or the
policy violation will be placed in the employee’s personnel file. Id. at 4.
Olatunji’s supervisors had many informal discussions with him about his
performance, 	documenting 	various 	performance 	deficiencies 	from 	customer
service to safety. AT&T App. at 102 (ECF No. 49). Olatunji was placed on a WR on
March 4, 2021, for being at McDonald’s on January 4 “when he should have been
at a customer’s residence working.” Id. And he was also placed on a Performance
Improvement Plan (PIP) due to his low performance metrics. Id. Olatunji was
eventually placed on a PN for failing to adhere to his PIP, and finally, Olatunji was
placed on a DML on October 27, 2021, for failing to secure company assets. Id.; see
also AT&T App., Pl.’s Dep. at 204–05, 1:28:38–1:31:32 (ECF No. 49) (Olatunji
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admitting that he “made a mistake” by “leaving [his] equipment in the back of a
supervisor’s truck” and taking “responsibility for [his] actions”).
On December 14, 2021, while on his DML, Fouche was on vacation leaving
Dvorak as Olatunji’s acting supervisor. Id., Decl. of Fauche at 106, ¶ 10. That
morning, Olatunji was assigned three jobs with Olatunji’s estimated arrival at the
third and final job between 1 P.M. and 3 P.M. Id., Decl. of Dvorak at 121, ¶ 24; see
also id., Pl.’s Dep. at 211, 2:23:09. Olatunji claims that he did not finish his second
job assignment until after 8 P.M, and after completing that job, Olatunji clocked
out and ceased work. Id. at 170. AT&T policy requires premises technicians to
notify the customer or supervisor if they cannot complete a job assignment. Id. at
12 (“Technicians are responsible for checking their work schedule or calling the
supervisor to verify updates and changes. Technicians are required to abide by
their work schedule and report at the start of their workday prepared to work.”),
21 (“Regularly inform the customer of status while working the job. . . . Notify and
explain 	if 	work 	cannot 	be 	completed.”), 	23 	(“Technicians 	must 	notify 	the
supervisor as soon as it becomes apparent that they will be unable to complete the
workload, keep commitment times, or if their workload is otherwise in jeopardy.”).
However, Olatunji failed to notify anyone that he would not attempt the
third job assignment on December 14. When Dvorak realized Plaintiff did not
attend his third job assignment, he called Olatunji—but Olatunji did not answer
the call. Id., Decl. of Dvorak at 121–22, ¶ 27. Following the call, Dvorak and
Olatunji engaged in the following communication over text:
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Id. at 151. Dvorak tried to call Olatunji one more time, but to no avail. Id. at 121–
22, ¶ 27.
Afterward, Dvorak held an investigative meeting with Olatunji and a union
representative. Id. at 152–54. Olatunji explained that he did not answer Dvorak’s
attempts to contact him because he knew Dvorak would have dispatched him to
his final job assignment. Id. at 153. Olatunji also justified his actions by citing an
informal policy that premises technicians need not dispatch to job assignments or
contact customers after 8 P.M. Id. Olatunji’s supervisors, including Fouche,
Dvorak, Milton, and AT&T’s Human Resources Department, concluded that this
incident warranted termination. Id. at 156; see also id., Decl. of Freeman at 5, ¶ 13
(“I 	agreed 	that 	Mr. 	Olatunji’s 	infractions 	warranted 	a 	recommendation 	for
termination.”). Plaintiff had the opportunity to contest his termination at an
internal hearing called his “Day in Court,” but Plaintiff did not attend. Id. at 99;
id., Decl. of Freeman at 6, ¶ 18; id., Pl.’s Dep., at 218–19, 2:38:03–2:38:50. As a
result, AT&T terminated Olatunji’s employment on January 7, 2022. Id. at 101.
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Following his termination, Olatunji filed a charge of discrimination with the
EEOC 	and 	timely 	filed 	the 	present 	civil 	action 	asserting 	claims 	of 	race
discrimination and retaliation under Title VII, § 1981, and the Texas Commission
on Human Rights Act. See generally Third Am. Compl. (ECF No. 27). AT&T moved
for summary judgment on Olatunji’s claims, Olatunji filed numerous responses,
and AT&T replied. The motion is ripe for determination.
Legal Standards
Summary Judgment
Summary judgment is proper when “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 party seeking summary judgment bears the initial burden of
showing the absence of a genuine issue for trial. Duffy v. Leading Edge Prods.,
Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The movant’s burden can
be satisfied by showing that there is an absence of evidence to support the
nonmoving party’s case, which the nonmovant bears the burden of proving at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial
burden, the nonmovant must show that summary judgment is improper. Duckett
v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992) (citation omitted). The
parties may satisfy their respective burdens “by tendering depositions, affidavits,
and other competent evidence.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992) (citing Int’l Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991) and
Fed. R. Civ. P. 56(e)).
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All evidence must be viewed in the light most favorable to the party opposing
the summary judgment motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993)
(quoting Reid v. State Farm Mut. Auto. Ins., 784 F.2d 577, 578 (5th Cir. 1986)).
The court cannot make a credibility determination given conflicting evidence or
competing inferences. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If there appears to be some support for disputed allegations, such that “reasonable
minds could differ as to the import of the evidence,” the court must deny the
motion. Id. at 250.
Discrimination and Retaliation
The summary judgment analysis is the same for racial discrimination claims
under § 1981, Title VII, and the Texas Commission on Human Rights Act. Davis v.
Dall. Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004); Roberts v. Dall.
Indep. Sch. Distr., 2020 WL 777267, at *4 n.10 (N.D. Tex. Feb. 18, 2020) (Starr,
J.) (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir.
1999)). Such claims may be proved through direct evidence, statistical proof, or the
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th
Cir. 2007). Under the McDonnell Douglas framework, a plaintiff must first
establish a prima facie case of discrimination. Id. (citing Wheeler v. BL Dev. Corp.,
415 F.3d 399, 405 (5th Cir. 2005)); Fahim v. Marriott Hotel Servs., Inc., 551 F.3d
344, 350 (5th Cir. 2008).
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If the plaintiff establishes a prima facie case, an “inference of intentional
discrimination” arises. Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir.
2009). The burden of production then shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the challenged employment action.
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)
(citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000)). Once
the defendant has responded with a legitimate, nondiscriminatory reason,
[t]he plaintiff must then offer sufficient evidence to create a genuine
issue of material fact either (1) that the defendant’s reason is not true,
but is instead a pretext for discrimination (pretext alternative); or (2)
that the defendant’s reason, while true, is only one of the reasons for
its conduct, and another motivating factor is the plaintiff’s protected
characteristic (mixed-motive[s] alternative).
Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005) (citing Rachid
v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)). Under the pretext
alternative, the plaintiff must introduce “some evidence, whether circumstantial or
direct, that permits the jury to believe that the reason was false and that illegal
discrimination was the actual reason.” Nichols v. Lewis Grocer, 138 F.3d 563, 566
(5th Cir. 1998) (emphasis in original). Under the mixed-motive alternative, the
plaintiff need only present sufficient evidence for a reasonable jury to conclude
that race, color, sex, religion, or national origin was a motivating factor for the
employment practice at issue. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101
(2003).
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“[T]he burden-shifting structure applicable to Title VII disparate treatment
cases, as set forth in McDonnell Douglas . . . is also applicable to Title VII unlawful
retaliation cases.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996);
Roberts, 2020 WL 777267, at *4 (“The summary judgment analysis is substantively
identical for claims of race discrimination and retaliation under Title VII, the state
law equivalent in the Texas Commission on Human Rights Act, and Section 1981
after the plaintiff makes a prima facie case.”). Therefore, once the plaintiff
establishes a prima facie case, the burden of production shifts to the defendant to
articulate a legitimate, nonretaliatory reason for the adverse employment action.
Long, 88 F.3d at 304–05. “If the defendant introduces evidence which, if true,
would 	permit 	the 	conclusion 	that 	the 	adverse 	employment 	action 	was
nondiscriminatory, the focus shifts to the ultimate question of whether the
defendant unlawfully retaliated against the plaintiff.” Id.
Analysis
Preliminary Matters
Both parties object to portions of each other’s exhibits. A party seeking
summary judgment may rely on any form of evidence listed in Rule 56(c). See
Celotex Corp., 477 U.S. at 324. “At the summary judgment stage, materials cited to
support or dispute a fact need only be capable of being ‘presented in a form that
would be admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank,
N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R. Civ. P. 56(c)(2)) (emphasis
in original). While the form of the summary judgment evidence need not be
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admissible, the content of the evidence must meet evidentiary requirements. See
Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017).
1. 	Olatunji’s Objections
In his various responses to AT&T’s motion for summary judgment, Olatunji
suggests that he will “file separate motion[s] to strike” certain assertions made by
AT&T. See Pl.’s Br. in Opp. at 5, 6 (ECF No. 56); see also Pl.’s Br. in Opp. at 4, 6
(ECF No. 52). For example, Olatunji claims that AT&T’s assertion that he “acted
argumentatively with an unhappy customer and failed to involve a manager” is
“conclusory and based on hearsay.” Pl.’s Br. in Opp. at 4–5 (ECF No. 56). And
Olatunji also claims that AT&T improperly denies the existence of the alleged 8
P.M. policy without supporting evidence. Id. at 6.
“Federal Rule of Evidence 103(a)(1) requires an objecting party to make
specific objections detailing the specific evidence the party wishes to exclude and
stating 	the 	specific 	grounds 	upon 	which 	each 	piece 	of 	evidence 	should 	be
excluded.” Patton v. Meridian Sec. Ins. Co., 617 F. Supp. 3d 516, 526 (N.D. Tex.
2022) (citing United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004)).
“Objections that lack specificity fail to satisfy the requirements of Rule 103, and a
loose or imprecise objection does not preserve error.” Nelson v. Cottonwood Fin.
Tex., LLC, 2023 WL 5312214, *6 (N.D. Tex. Aug. 16, 2023) (Lindsay, J.) (citing HCI
Chems. (USA), Inc. v. Henkel KGaA, 966 F.2d 1018, 1021 (5th Cir. 1992)).
Olatunji’s vague assertions that certain statements are “conclusory and
based on hearsay” or not supported by evidence “do not meet the specificity
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requirement of Rule 103(a)(1).” Tucker v. SAS Inst., 462 F. Supp. 2d 715, 722 (N.D.
Tex. 2006); see also Coleman v. Bank of Am., N.A., 2017 WL 3334104, at *3–4
(N.D. Tex. Aug. 4, 2017) (Fish, J.) (denying the plaintiff’s motion to strike because
the plaintiff’s “vague assertions” that certain declarations contained “inadmissible
hearsay” were not specific). Therefore, Olatunji’s purported objections to AT&T’s
summary judgment evidence should be DENIED. “Even so, the court will not
consider any evidence that is plainly inadmissible.” Patton, 617 F.3d at 526 (citing
Fed. R. Civ. P. 103(d)).
2. AT&T’s Objections
AT&T 	objects 	to 	Olatunji’s 	summary 	judgment 	evidence, 	including
objections to his declaration, the declaration of an allegedly undisclosed witness,
and a portion of Olatunji’s deposition testimony. See AT&T’s Reply at 17–22 (ECF
No. 61). Because Olatunji’s exhibits and declaration, even if considered, do not
affect the disposition of AT&T’s motion, AT&T’s objections are overruled as moot.
See Garcia v. Delta Cos., 2023 WL 2950632, at *5 (N.D. Tex. Feb. 24, 2023)
(Ramirez, J.) (collecting cases denying as moot evidentiary objections), adopted
by 2023 WL 2597896 (N.D. Tex. Mar. 22, 2023) (Starr, J.).
Discrimination1
To state a claim for discrimination under Title VII, a plaintiff must plead that
he “(1) is a member of a protected class; (2) was qualified for the position he held;
1 Olatunji vaguely references color discrimination in his live pleading. See Third
Am. Compl. at 31 (ECF No. 27) (alleging that he was treated “differently on the
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(3) was subject to an adverse employment action; and (4) was treated less favorably
than others similarly situated outside of his protected class.” Alkhawaldeh v. Dow
Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (citing Bryan v. McKinsey & Co., 375
F.3d 358, 360 (5th Cir. 2004)). Here, AT&T contends that Olatunji cannot meet
the fourth prong because he has failed to adduce evidence of similarly situated
individuals who were treated more favorably. The Court agrees.
The Fifth Circuit has held that “plaintiffs offering another employee as a
comparator must demonstrate that the employment actions at issue were taken
under ‘nearly identical’ circumstances.” Martin v. Budget Rent-A-Car Sys. Inc.,
432 F. App’x 407, 410 (5th Cir. 2011) (per curiam). And circumstances are
considered nearly identical “when the employees being compared (1) held the same
job responsibilities, (2) shared the same supervisor, or had their employment
status determined by the same person, and (3) have essentially comparable
violation histories.” Id. Stated differently, the plaintiff must show that a non-Black
premises 	technician, 	who 	engaged 	in 	the 	same 	misconduct 	under 	similar
circumstances, was not terminated.
Olatunji 	offers 	three 	comparators 	who 	he 	alleges 	committed 	similar
workplace violations but were not terminated: (1) Dakota L., (2) Jerry B., and (3)
basis of his race and color”). However, as AT&T correctly notes, Olatunji’s pleading
is “devoid” of allegations supporting a discrimination claim based on color, and
rather, “Plaintiff apparently uses the terms race and color interchangeably.” See
Def.’s Br. at 14, n.4 (ECF No. 48). Therefore, the Court only addresses Olatunji’s
discrimination claims on the basis of race.
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Tony W. However, none of these alleged comparators are similarly situated to
Olatunji.
First, Olatunji contends that Dakota L. committed comparable workplace
violations, such as violations for customer mistreatment and failure to complete
his monthly safety checklist, but was not disciplined as harshly as Olatunji.
However, Dakota L.’s company policy violations are not nearly identical to
Olatunji’s violations. Dakota L. committed minor infractions, such as failing to
wear gloves and not preparing a checklist. See Crosby v. Comput. Sci. Corp., 470
F. App’x 307, 309 (5th Cir. 2012) (per curiam) (noting that comparator’s company
violation was not “nearly identical” to the plaintiff’s because it violated a “different
aspect” of the employer’s personnel policy); Hardison v. Skinner, 2022 WL
2668514, at *3 (5th Cir. July 11, 2022) (per curiam) (“[C]ritcally, the plaintiff’s
conduct that drew the adverse employment decision must have been ‘nearly
identical’ to that of the proffered comparator who allegedly drew dissimilar
employment decisions.”) (emphasis in original) (quoting Lee v. Kansas City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009)).
Even if Dakota L. committed nearly identical policy violations as Olatunji,
Olatunji does not produce evidence that Dakota L. was treated more favorably.
Olatunji admits that he and Dakota L. were placed on a DML “for identical
reasons[.]” Pl.’s Br. in Opp. at 8 (ECF No. 56) (emphasis in original). But Olatunji
ignores evidence showing that AT&T terminated Dakota L.’s employment after he
committed workplace violations while on a DML. AT&T’s App., Decl. of Dvorak at
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125, ¶ 43 (ECF No. 49); see also id. at 163–64 (Dakota L.’s separation proposal).
This evidence shows that Dakota L. was not treated more favorably than Olatunji.
Instead, the evidence shows Dakota L. was placed on a DML and was terminated—
just like Olatunji. See Martin, 432 F. App’x at 410 (holding that comparator was
not treated more favorably when employee was also written up and eventually
fired). Although Olatunji argues that Dakota L. received less discipline than
Olatunji for similar violations, the separation proposals reveal that Dakota L. had
12 prior disciplinary actions, while Olatunji had 16 prior disciplinary actions.
Compare AT&T App. at 101–102 (Olatunji’s separation proposal), with 163–64
(Dakota L.’s separation proposal). For these reasons, Dakota L. is not a proper
comparator.
Olatunji’s remaining comparators fare no better. Jerry B. was placed on a
DML by another supervisor. “Nearly identical” circumstances exist when the
proposed comparator “shared the same supervisor or had their employment status
determined by the same person[.]” Hardison, 2022 WL 2668514, at *3. The
undisputed evidence shows that Jerry B. was placed on a DML by another
supervisor, and by the time Dvorak became his supervisor, his DML had nearly
expired. AT&T App., Decl. of Dvorak at 127, ¶ 48 (ECF No. 49). Consequently,
despite Olatunji’s contentions, Dvorak could not terminate Jerry B. for “any
infraction” because he was not on a DML while under Dvorak’s supervision. Thus,
Jerry B. is not a proper comparator.
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Finally, Olatunji presents no evidence of Tony W.’s policy violations or
disciplinary history. Indeed, Olatunji testified at his deposition that he had no
personal knowledge of Tony W.’s job performance. Id., Pl.’s Dep. at 221–22,
3:17:58–3:18:17 (ECF No. 49); id. at 223–24, 3:22:41–3:24:16. Olatunji’s “passing
reference[s]” to Tony W., without evidence, are insufficient to establish that he was
similarly 	situated 	to 	Olatunji 	and 	that 	the 	conduct 	that 	drew 	the 	adverse
employment decision was nearly identical to Olatunji’s. Hardison, 2022 WL
2668514, at *3. As Olatunji lacks evidence of a similarly situated comparator, his
discrimination claim does not survive summary judgment.
Retaliation
To establish a prima facie case of unlawful retaliation, Olatunji must prove
(1) that he engaged in protected activity, (2) that an adverse employment action
occurred, and (3) that a causal link existed between the protected activity and the
adverse employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.
1996). AT&T argues that Olatunji’s retaliation claim cannot succeed because he has
not shown that he engaged in protected activity and that a causal connection
existed between Olatunji’s alleged protected activity and termination.
1. 	Protected Activity
An employee has engaged in an activity protected by Title VII if he has either
(1) “opposed any practice made an unlawful employment practice” by Title VII or
(2) “made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a);
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Long, 88 F.3d at 304; Quintana v. Fujifilm N. Am. Corp., 96 F. Supp. 3d 601, 618
(N.D. 	Tex. 	2015) 	(discussing 	definition 	of 	protected 	activity 	under 	Texas
Commission on Human Rights Act). “The first of these is known as the ‘opposition
clause;’ the second as the ‘participation clause.’” EEOC v. Rite Way Serv., Inc., 819
F.3d 235, 239 (5th Cir. 2016).
Here, Olatunji presents an opposition clause case because the participation
clause is not at issue when the employee files an EEOC charge after the adverse
employment action. Byers v. Dall. Morning News, 209 F.3d 419, 428 (5th Cir.
2000). “To satisfy this opposition requirement, [Olatunji] need only show that [he]
had a ‘reasonable belief that the employer was engaged in unlawful employment
practices.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir.
2007) (quoting Byers, 209 F.3d at 428). However, “[t]he Fifth Circuit has made
plain that ‘a vague complaint, without any reference to an unlawful employment
practice under Title VII, does not constitute a protected activity.’” Obondi v. UT
Sw. Med. Ctr., 2017 WL 2729965, at *13 (N.D. Tex. June 23, 2017) (Boyle, J.)
(quoting Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015)). Generally
invoking Title VII buzzwords like “harassment” or “retaliation” “does not itself
constitute ‘protected activity’ within the meaning of Title VII, [if the] complaint
lack[s] a racial or gender basis.” Davis v. Dall. Indep. Sch. Dist., 448 F. App’x 485,
493 (5th Cir. 2011) (per curiam).
Olatunji alleges that he engaged in protected activity on two occasions. First,
at the September 15, 2020, meeting with Freeman, Counts, and Doblado, and
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second on January 4, 2021, during the confrontation with Dvorak at McDonald’s.
Pl.’s Br. in Opp. at 3 (ECF No. 56). At the September 15 meeting, Olatunji reported
that he felt as though there was “a target on [his] back,” he believed that Dvorak
“overstepped the boundaries between good management and harassment,” and he
felt that Dvorak’s behavior was “harassment.” Pl.’s App. at 16–17 (ECF No. 58).
Although 	Olatunji 	complained 	that 	Dvorak 	subjected 	him 	to 	“harassment,”
Olatunji failed to allege that Dvorak—or anyone else at AT&T—discriminated
against him based on his race. AT&T App., Decl. of Freeman at 3, ¶ 9 (“Mr. Olatunji
did not raise any concerns or make any statements [Freeman] understood to be
about 	race, 	color, 	or 	any 	protected 	characteristic.”). 	His 	complaints 	at 	the
September 15 meeting, therefore, do not constitute protected activity. Jackson v.
Dall. Cnty. Juvenile Prob. Dep’t, 2007 WL 2187250, at *10 (N.D. Tex. July 30,
2007) (Lynn, J.) (finding that memos that alluded to harassment but lacked details
regarding any factor to which Title VII applies were not protected activities).
The Court carefully considered Olatunji’s allegations at the September 15
meeting that Dvorak accused him of using “ghetto language.” Olatunji highlights
that he shared with Freeman, Counts, and Doblado that Dvorak “used [racist]
language.” Pl.’s App. at 17 (ECF No. 57). However, upon review of the record,
Dvorak did not himself use the words “ghetto language” to disparage Olatunji.
Rather, a customer complained to Dvorak that Olatunji used “ghetto language”
while completing a job assignment, and Dvorak relayed that complaint to Olatunji.
Id. (“[C]ustomer told [Dvorak] that [Olatunji] used ghetto language – felt it was a
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racist comment.”); AT&T App. at 252 (ECF No. 49) (email from Olatunji explaining
that a “customer was clearly disrespectful” and “even used racist statements,
alleging to [Dvorak] that [Olatunji] used “Ghetto Language” and “Customer told
[Dvorak] that I used “Ghetto Language” during dispatch”); AT&T App., Pl.’s Dep.
at 183–184, 9:36:32–9:36:50 (ECF No. 49) (Olatunji confirming that Dvorak
“reported to [him] that a customer said [he] use[d] ghetto language”). Therefore,
this customer statement does not transform his vague allegations of harassment
into protected activity.
Olatunji also contends that he engaged in protected activity on January 4,
2021, during a confrontation with Dvorak. In his own affidavit in response to
AT&T’s Motion for Summary Judgment, Plaintiff alleges that he confronted
Dvorak, accused him of “harassment,” and threatened that he would be “filing an
EEOC complaint.” Pl.’s App. at 8, ¶ 38 (ECF No. 57). Although Olatunji’s vague
reference to “harassment” does not constitute protected activity, it is arguable that
Olatunji’s “notice of his intent to file” an EEOC complaint was protected activity.
See Garcia v. City of Amarillo, 2020 WL 4208060, at *12 (N.D. Tex. July 22, 2020)
(Kacsmaryk, J.) (“The limited Fifth Circuit case law on the issue also indicates that
a notice of intent to file [an EEOC charge] is protected activity.”).
2. Adverse Employment Action and Causal Connection
Olatunji must still establish a causal connection between his protected
activity on January 4, 2021, and an adverse employment action. “A ‘causal link’ is
established when the evidence demonstrates that ‘the employer’s decision to
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terminate was based in part on knowledge of the employee’s protected activity.’”
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001) (quoting
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)).
“[T]he mere fact that some adverse action is taken after an employee
engages in some protected activity will not always be enough” to prove a causal
connection between the protected activity and the adverse employment action.
Smith v. Kendall, 2024 WL 4442040, at *7 (5th Cir. Oct. 8, 2024) (per curiam)
(emphasis in original) (quoting Swanson v. Gen. Servs. Admin., 110 F.3d 1180,
1188 n.3 (5th Cir. 1997)). However, “[c]lose timing between an employee’s
protected activity and an adverse action against him may provide the ‘causal
connection’ required to make out a prima facie case of retaliation.” Swanson, 110
F.3d at 1188 (quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993));
Gupta v. Qwuest Gov. Servs., Inc., 2023 WL 2025056, at *13 (N.D. Tex. Feb. 14,
2023) (Lindsay, J.) (“For temporal proximity to alone establish prima facie
causation, it is required to be ‘very close.’”).
Olatunji was placed on a PN on August 18, 2020; placed on a WR on March
4, 2021; placed on a DML on October 27, 2021; and terminated on January 7, 2022.
AT&T App. at 101–02 (ECF No. 49). Olatunji presents evidence that he informed
Dvorak of his intent to file an EEOC complaint on January 4, 2021. Pl.’s App. at 8,
¶ 38 (ECF No. 57). Although AT&T argues that there is not a sufficient causal
connection between Olatunji’s protected activity and either the date of DML or
termination, this argument ignores that “[d]isciplinary write-ups that are the basis
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for more serious consequences may be adverse employment actions.” Brooks v.
Hous. Indep. Sch. Dist., 86 F. Supp. 3d 577, 586 (S.D. Tex. Jan. 20, 2025) (citing
Hernandez v. Sikorsky Support Servs., Inc., 495 F. App’x 435, 438 (5th Cir.
2012)); see also Hamilton v. Dall. Cnty., 79 F.4th 494 (5th Cir. 2023) (clarifying
that “a plaintiff need only show that [he] was discriminated against, because of a
protected characteristic, with respect to hiring, firing, compensation, or the ‘terms,
conditions, or privileges of employment’—just as [Title VII] says.”).
There is a two-month gap between Olatunji’s protected activity on January
4, 2021, and his WR on March 4, 2021. As AT&T succinctly explains, a WR is part
of AT&T’s progressive disciplinary process that could, and did, lead to termination.
AT&T’s Br. at 3 (ECF No. 48); see also Brooks, 86 F. Supp. 3d at 586. And “[t]he
Fifth 	Circuit 	has 	‘held 	that 	a 	period 	of 	two-and-a-half 	months, . . . two
months, . . . and six-and-a-half weeks . . ., are close enough to show a causal
connection.” Walker v. Tarrant Cnty. Sheriff’s Off., 2026 WL 172508, at *6 (N.D.
Tex. Jan. 22, 2026) (Ray, J.) (quoting Porter v. Houma Terrebonne Hous. Auth.
Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015)); see also Garcia v. Pro.
Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (“But [the plaintiff’s] two-
and-one-half-month period still fits comfortably within the time periods of both
our case law and [Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001)] to
establish causation.”); Gooden v. Lhoist N. Am. of Tex., LLC, 2026 WL 183775, at
*7 (N.D. Tex. Jan. 23, 2026) (Pittman, J.) (finding a period of two months between
protected activity and adverse employment action to be sufficient to establish
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causation).2 Any delay in assigning this WR seems to be due to Olatunji taking a
two-month leave of absence after his confrontation with Dvorak on January 4,
2021. AT&T App., Decl. of Dvorak at 120, ¶ 17 (ECF No. 49) (explaining that
Dvorak “had to wait until [Olatunji] returned to work to conduct an investigatory
interview”). The Court therefore finds that the evidence is sufficient to raise a
genuine issue of material fact as to the causation element of Olatunji’s retaliation
prima facie case.
Legitimate, Nondiscriminatory Reason
Even if Olatunji could establish a prima facie case of discrimination or
retaliation, 	AT&T 	proffers 	evidence 	showing 	that 	it 	had 	a 	legitimate
nondiscriminatory 	reason 	for 	terminating 	Olatunji—that 	he 	violated 	written
company policy by failing to report to a supervisor or the customer that he would
not complete an assigned job. “If an employee establishes a prima facie case of
discrimination, the burden of production then shifts to the employer to articulate
a legitimate, non-discriminatory reason for its actions.” King v. Life Sch., 2011 WL
1562964, at *5 (N.D. Tex. Apr. 26, 2011) (Ramirez, J.) (citing Alvarado v. Tex.
2 The Court notes that there is some disagreement on whether two months is
enough to establish causation when the plaintiff seeks to establish a causal link
through temporal proximity alone. See Perez v. Fed. Express Corp., 2015 WL
5916286, at *5 (N.D. Tex. Oct. 7, 2015) (Kinkeade, J.); see also Shahrashoob v.
Tex. A&M Uni., 125 F.4th 641, 653–54 (5th Cir. 2025) (“We have recognized that
a plaintiff can show pretext through temporal proximity plus significant record
evidence.”) (emphasis in original). But regardless of whether Olatunji can prove
causation for his retaliation prima facie case, he still cannot prevail because he
cannot 	overcome 	AT&T’s 	legitimate, 	nondiscriminatory 	reasons 	for 	his
termination.
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Rangers, 492 F.3d 605, 611 (5th Cir. 2007)). AT&T need only articulate a lawful
reason, regardless of its persuasiveness or credibility. Bodenheimer v. PPG Indus.,
5 F.3d 955, 958 (5th Cir. 1993).
AT&T offers uncontroverted evidence showing that Olatunji’s various policy
violations warranted progressive disciplinary action and his failure to complete his
assigned job was the reason for his termination. Indeed, AT&T connects each of
Olatunji’s discipline measures to his violations of various aspects of AT&T’s
policies. AT&T App., Decl. of Freeman at 4–7, ¶ 11–21 (detailing Olatunji’s
performance deficiencies), Decl. of Fouche at 104–08, ¶¶ 4–14 (same), Decl. of
Dvorak at 117–21, ¶¶ 8–27 (same) (ECF No. 49). And AT&T also highlights that
Olatunji’s actions violated his PIP and Manager’s Directive. AT&T App. at 114
(“Tech must call manager to report on progress . . . .), 144–46 (setting forth areas
of improvement including calling or texting back all customers at the end of each
day).
Violations of company policy and noncompliance with a performance
improvement plan are legitimate, nondiscriminatory reasons justifying discipline
and termination. See Ware v. AutoZoners, L.L.C., 2023 WL 2521872, at *1 (5th Cir.
Mar. 14, 2023) (per curiam) (“A violation of company policy is typically a
legitimate, nondiscriminatory reason for firing the offending employee.”); Watts
v. L-3 Commc’ns Corp., 2013 WL 3789868, at *6 (N.D. Tex. July 22, 2013) (Fish,
J.) 	(“A 	violation 	of 	company 	policy 	is 	unquestionably 	a 	legitimate,
nondiscriminatory reason for termination.”); Harry v. Dall. Hous. Auth., 2016 WL
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67769, 	at 	*6 	(N.D. 	Tex. 	Jan. 	5, 	2016) 	(Lynn, 	J.) 	(“Poor 	performance 	and
noncompliance 	with 	a 	performance 	improvement 	plan 	are 	legitimate,
nondiscriminatory reasons for terminating an employee.”). Indeed, Olatunji does
not deny that he violated company policy when he failed to inform his manager
that he would not complete his final job. AT&T App., Pl.’s Dep. at 214–15, 2:28:43–
2:28:54 (ECF No. 49) (“I have no problem admitting that I broke a rule that day.
Y’all wasting all this time trying to prove that I broke a rule. I never said I didn’t
break a rule that day. Yes, I broke a rule. I didn’t call the manager. I didn’t call the
customer. Okay. But guess what? A lot of people break rules.”). AT&T has met its
summary judgment burden by producing evidence to support its legitimate,
nondiscriminatory and nonretaliatory reason for Olatunji’s disciplinary actions
and termination.
Pretext
Olatunji has not asserted a mixed motive theory and instead only argues that
AT&T’s 	proffered 	justifications 	are 	pretext. 	“Under 	the 	pretext 	alternative,
[Olatunji] must introduce ‘some evidence, whether circumstantial or direct, that
permits the jury to believe that the reason was false and that illegal discrimination
[or retaliation] was the actual reason.’” See King, 2011 WL 1562964, at *5 (citing
Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998)). To carry this burden,
Olatunji must “rebut each nondiscriminatory or nonretaliatory reason articulated
by [AT&T].” McCoy, 492 F.3d at 557.
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Olatunji contends that AT&T’s justification for his termination is pretextual,
and 	provides 	evidence 	that 	(1) 	AT&T 	deviated 	from 	company 	policy 	that
“technicians should not dispatch after 8 [P.M.],” (2) deviated from company policy
allowing an employee to refuse a rule or order “if he sincerely feels his personal
safety would be jeopardized,” (3) AT&T did not provide him with his Day in Court
to contest his termination, and (4) “evident disparity” in treatment of employees
who committed workplace violations while on a DML. Pl.’s Br. in Opp. at 1–2 (ECF
No. 56).
Olatunji’s arguments about AT&T’s purported policy deviations miss the
point. Any existence of a policy—formal or informal—that prohibited technicians
from dispatching after 8 P.M. or allowed technicians to refuse a job for fear of their
safety does not excuse Olatunji’s failure to call his supervisor or the customer to
report that he would not complete his last job assignment. Olatunji wholly violated
AT&T policy, his PIP, and his Manager’s Directive requiring him to update his
supervisor on his progress. Even if Olatunji feared for his safety, he did not
communicate this fear to his supervisor. Rather, when asked about the job by his
supervisor, Olatunji responded, “I’m off” and “[c]all u tomorrow.” AT&T App. at
151 (ECF No. 49).
Olatunji also states that AT&T’s justifications are pretextual because he was
denied his Day in Court to contest his termination. However, the uncontested
evidence reveals that AT&T did provide Olatunji with his Day in Court, but he did
not attend. AT&T App. at 99 (sending the Day in Court invitation to Olatunji’s
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union representative); id., Pl.’s Dep. at 218–19, 2:38:12–2:38:22 (“By the time
[Olatunji] woke up, [the Day in Court] was done, it was over.”). Olatunji states that
he did not attend his Day in Court “because nobody ever informed [him] of the
scheduled date or time.” Pl.’s Br. in Opp. at 7 (ECF No. 56). Olatunji testified that
his union representative “was supposed to have . . . given [him] forewarning.”
AT&T App., Pl.’s Dep., at 219, 2:38:37–2:38:50 (ECF No. 49). Olatunji has not
adduced evidence showing that AT&T intentionally failed to provide timely
notification of his Day in Court. Rather, it appears that it was his union’s
responsibility—not AT&T’s—to timely inform him of his Day in Court, which it
failed to do. Thus, there is no evidence that Olatunji’s failure to attend his Day in
Court suggests pretext.
Finally, 	Olatunji 	argues 	that 	there 	were 	“evident” 	disparities 	in 	the
treatment of employees who committed workplace violations while on a DML.
Specifically, Olatunji alleges that Dakota L. received more warnings and more
lenient treatment while he was on a DML. In essence, Olatunji claims that the
disparate treatment of similarly situated employees—Dakota L. Jerry B., and Tony
W.—is evidence of pretext. As explained above, these individuals are not proper
comparators because they are not similarly situated to Olatunji. Because Olatunji
has “not offered any competent evidence of pretext or disparate treatment toward
actual comparators, plaintiff has failed to raise a genuine issue of material fact.”
Vargas v. Tex. A&M Uni., 2007 WL 150484, at *7 (S.D. Tex. Jan. 16, 2007)
(emphasis added).
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Olatunji 	has 	not 	put 	forth 	competent 	evidence 	to 	show 	that 	AT&T’s
justifications for his discipline and termination are pretextual. Further, two of the
supervisors who approved Plaintiff’s termination are 	members of 	Olatunji’s
protected class, which supports an inference that his termination was not race
related. See Watts, 2013 WL 3789868, at *10; AT&T App., Decl. of Freeman at 2,
4, ¶¶ 4, 12 (ECF No. 49). Plaintiff has failed to present sufficient evidence to show
that AT&T’s actions were pretextual, and therefore, AT&T is entitled to summary
judgment.
Hostile Work Environment
Although Olatunji does not expressly bring a claim for harassment, AT&T
construes his Third 	Amended 	Complaint as plausibly asserting 	a claim for
harassment. AT&T’s Br. at 22–25 (ECF No. 48) (“Plaintiff’s Complaint never
specifically alleges a hostile work environment claim, but even under the most
generous reading of his Complaint, a harassment claim would fail as a matter of
law.”). Olatunji does not coherently address AT&T’s hostile work environment
arguments. See Pl.’s Br. at 25 (ECF No. 52); Pl.’s Br. at 25 (ECF No. 56).
A plaintiff may establish a Title VII violation based on race discrimination
creating a hostile work environment. Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir. 2002). To establish this cause of action, the plaintiff must show: (1) they
belong to a protected class; (2) they were subject to unwelcome harassment; (3)
the harassment was based on the protected class; (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. Id.;
Gaudette v. Angel Heart Hospice, L.L.C., 2025 WL 1419720, at *2 (5th Cir. May
16, 	2025) 	(per 	curiam) 	(internal 	citation 	and 	quotation 	marks 	omitted).
Importantly, “Title VII was only meant to bar conduct that is so severe and
pervasive that it destroys a protected class member’s opportunity to succeed in the
workplace.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996),
cert. denied, 519 U.S. 1055 (1997).
Olatunji does not produce evidence of actionable harassment that rises to
the level of a hostile work environment. To the extent that Olatunji contends that
Dvorak relaying a customer complaint that Olatunji used “ghetto language” is
evidence of a hostile work environment, as explained, the record shows that the
comment is attributable to a customer, not Dvorak or anyone else at AT&T. And
Dvorak’s unannounced visits to Plaintiff’s worksites and criticism of Olatunji’s
work performance do not rise to the level of hostile work environment. Cobos v.
Decypher Tech., LTD, 2025 WL 3215364, at *9 (W.D. Tex. Nov. 10, 2025)
(“[C]riticism of an employee’s work performance and careful monitoring of job
performance generally do not amount to a hostile work environment.”). Finally,
AT&T directing Olatunji to complete his work and attend mandatory training
cannot constitute actionable harassment based on his race. Thus, AT&T is entitled
to summary judgment on any hostile work environment claim asserted by Olatunji,
if any. See Sedwick v. McDonough, 2025 WL 2690110, at *10 (N.D. Tex. Aug. 22,
2025) 	(Rutherford, 	J.) 	(granting 	summary 	judgment 	as 	to 	hostile 	work
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environment claim when the plaintiff failed to identify any evidence that alleged
harassment was based on race), adopted by 2025 WL 2689915 (N.D. Tex. Sept. 19,
2025) (Scholer, J.).
Recommendation
For the reasons stated, the District Judge should GRANT Defendant’s
Motion for Summary Judgment (ECF No. 47) and dismiss Olatunji’s claims with
prejudice.
SO RECOMMENDED.
March 4, 2026.
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
judge, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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