Jonathan Harvey v. Lhoist North America of Texas, LLC

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
J ONATHAN H ARVEY ,
Plaintiff,
v. 	No. 4:25-cv-00291-P
L HOIST N ORTH A MERICA OF T EXAS,
LLC,
Defendant.
MEMORANDUM OPINION & ORDER
Before the Court is Defendant’s Motion for Summary Judgment
(ECF No. 42). Having considered the briefings and evidence of record,
the Court concludes the Motion should be and hereby is GRANTED.
BACKGROUND
This case arises from Plaintiff Jonathan Harvey’s termination of
employment from Defendant, Lhoist North America of Texas, LLC
(“Lhoist”). Harvey was employed as a lime process operator in April
2022, initially working at the McKinney terminal and later transferring
to the Celina terminal. As a process operator, Harvey’s duties include
assignments such as receiving dry lime, feeding it into a slaker, and
mixing lime with water and other components to produce a lime slurry
for customer delivery. Much of this work is to be performed outdoors or
at off-site locations.
The 	summary 	judgment 	record 	reflects 	that 	Harvey 	received
progressive discipline during 2023. This includes a “coaching discussion”
following a January 2023 workplace incident, a written warning in June
2023 following a conflict at a customer site, a final warning after Harvey
was reported to have “peeled out” of a parking lot, and termination,
effective 	November 	9, 	2023, 	after 	another 	reported 	“peeling 	out”
incident.
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Lhoist’s 	separation 	letter 	states 	that 	the 	company 	terminated
Harvey after reviewing the November incidents and cites “progressive
discipline regarding [Harvey’s] conduct and disruptive behaviors since
January 2023.”
Regarding the January 2023 altercation, Harvey contends that he
engaged in an altercation with a coworker, Preston Moreland, at the
Celina terminal, during which Harvey alleges that Moreland called him
a racial slur. Harvey contends that this incident was reported to his
supervisor, 	Jesse 	Morris, 	but 	that 	HR did 	nothing 	beyond 	minor
corrective action. Explaining that both he and Moreland received the
same “coaching discussion.”
Lhoist does not dispute that Harvey said he reported the incident to
management, 	but 	points 	to 	record 	evidence 	that 	Harvey’s
contemporaneous written statement did not report that Moreland called
him a racial slur, and instead, reflects a different accusation. One that
claimed that Moreland reported Harvey for calling Moreland a racial
slur.
Next, on June 21, 2023, Lhoist gave Harvey a written warning for a
dispute between him and a customer because the customer prevented
him 	from 	doing 	his 	work. 	Harvey 	explains 	only 	that 	he 	“acted
appropriately 	in 	the 	situation.” Lhoist responds 	that the 	warning
resulted from Harvey saying something to the effect of, “If you keep
shutting off the water, y’all can run the job and do the job yourself.”
Next, Harvey contends that he made additional internal complaints
to HR in the Summer of 2023. In particular, on August 31, 2023, he left
a voicemail to HR asserting that “there are two employees at Celina who
are showing favoritism and racially profiling others,” and that he
wanted 	to 	file 	a 	formal 	complaint. 	He 	further 	contends 	that 	HR
representative Sonnenberg called him, and Harvey complained of “racial
profiling, nitpicking, and favoritism,” including that certain “special
drivers” received better treatment.
Then, in October of 2023, Harvey contends that HR raised an
allegation that he was using his truck to sell drugs. As a result, Harvey
was subjected to a drug test, which came back negative. Lhoist responds
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that the cited document actually reflects a complaint from another
employee reporting concerns that Harvey possessed and sold drugs
while at work, and disputes Harvey’s characterization of the email.
Finally, on November 1, 2023, Harvey was reported for driving at
excessive speed while leaving the Celina terminal in a company vehicle.
This led to a final written warning. The record reflects that Harvey’s
testified that he accepted “ownership and accountability” for “speeding
out of the terminal like that.” Then just days later, on November 7, 2023,
Harvey again “peeled out” of the parking lot. This time in his personal
vehicle, prompting an investigation supported by multiple employee
statements, including one by an employee of the same race as Harvey.
Lhoist terminated Harvey effective November 9, 2023.
Harvey 	contends 	that 	the 	second 	“peeling 	out” 	incident 	was
overstated, and his written statement reflects that his personal vehicle
requires increased acceleration to navigate the roads leaving the Celina
terminal. He apologized if his driving came across as aggressive.
Harvey filed this suit asserting claims for unlawful discrimination
and retaliation under 42 U.S.C. § 1981. Lhoist moved for summary
judgment on both claims. It is ripe for review.
LEGAL STANDARD
Summary judgment is proper if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV . P. 56(a). A dispute is “genuine” if the evidence
presented would allow a reasonable jury to return a verdict in favor of
the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242–43
(1986). A fact is “material” if it would affect a case’s outcome. Id. at 248.
Generally, the “substantive law will identify which facts are material,”
and “[f]actual disputes that are irrelevant or unnecessary will not be
counted.” Id. In assessing whether summary judgment is appropriate,
the Court views evidence in the light most favorable to the nonmovant.
Cunningham v. Circle 8 Crane Servs., LLC, 64 F.4th 597, 600 (5th Cir.
2023).
The Court may rely on any evidence of record but need only consider
those materials cited by the parties. FED. R. CIV . P. 56(c)(1)–(3); see
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generally Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (noting
summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law”). But the
Court need not mine the record for evidence supporting the nonmovant;
the burden falls on the moving party to simply show a lack of evidence
supporting the nonmovant’s case. See Malacara v. Garber, 353 F.3d 393,
404–05 (5th Cir. 2003).
ANALYSIS
Defendant seeks summary judgment on each of the claims levied by
Mr. Harvey. The Court will address each in turn.
A. Mr. 	Harvey 	fails 	to 	state 	a 	prima 	facie 	case 	of 	race
discrimination, 	and 	there 	exists 	no 	genuine 	dispute 	of
material 	fact 	that 	Lhoist’s 	proffered 	reasons 	were 	mere
pretext for discrimination.
Section 	1981 	prohibits 	race 	discrimination 	in 	the 	“making,
performance, modification, and termination of contracts.” 42 U.S.C. §
1981(b). 	Harvey’s 	Section 	1981 	claims 	are 	evaluated 	under 	the
McDonnell Douglas burden-shifting framework when, as here, the
plaintiff relies on circumstantial evidence. Wesley v. Gen. Drivers,
Warehousemen & Helpers Loc. 745, 660 F.3d 211, 213 (5th Cir. 2011).
McDonnell Douglas requires a three-step burden-shifting framework for
evaluating discrimination claims. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). The burden initially lies with the plaintiff to
establish a prima facie case. Id. It then shifts to the defendant to
“articulate 	some 	legitimate, 	nondiscriminatory 	reason 	for 	the
[employment action].” Id. Finally, a plaintiff is afforded an opportunity
to show through adequate evidence that the defendant’s stated reasons
were a mere pretext for discrimination. Id. at 804.
To establish a prima facie case of discrimination, an employee must
demonstrate that he “(1) is a member of a protected group; (2) was
qualified for the position at issue; (3) was discharged or suffered some
adverse employment action by the employer; and (4) was replaced by
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someone outside his protected group or was treated less favorably than
other similarly situated employees outside the protected group.” Willis
v. Cleco Corp., 749 F.3d 314, 319–20 (5th Cir. 2014). Defendant does not
dispute the first three elements. ECF No. 43 at 25.
As to the fourth element, whether an employee is “similarly situated”
depends on whether that proffered comparator is in “nearly identical”
circumstances. Two employees have nearly identical circumstances
when they “held the same job or responsibilities, shared the same
supervisor or had their employment status determined by the same
person, and have essentially comparable violation histories.” Harville v.
City of Houston, 945 F.3d 870, 875 (5th Cir. 2019) (citing Lee v. Kan. City
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)).
Harvey does provide a variety of comparators. Alleging that he was
treated less favorably than Mr. Aguirre, Mr. Butler, Mr. Dearman, Mr.
Moreland, Mr. Adams, Mr. Stanley, Mr. Owen, Mr. Purser, and Mr.
O’Neal. ECF No. 51 at 20. Harvey merely cites to his own declaration as
support. See id. In it, he does provide testimony that he was treated less
favorably than other employees; however, there is no mention of those
employees’ violation histories. See ECF No. 50 at 200. For instance,
Harvey states that “Lhoist often kept me at the Celina yard to keep me
under closer supervision while non-Black operators were assigned easier
tasks offsite with less scrutiny.” Id. But never once mentioned whether
any of these comparators enjoyed more freedom of work opportunity due
to 	having 	no 	violation 	histories, 	or 	whether 	they 	enjoyed 	the
comparative freedom despite having similar violation histories. Where a
plaintiff provides only a conclusory explanation of why an individual is
an appropriate comparator, that claim fails. See Shahrashoob v. Tex.
A&M Univ., 125 F.4th 641, 652 (5th Cir. 2025) (citing Ayorinde v. Team
Indus. Servs. Inc., 121 F.4th 500, 507 (5th Cir. 2024)). Consequently, no
reasonable juror could find that any of the proffered comparators were
nearly identical to Mr. Harvey because no evidence exists suggesting
any “comparator” possessed a similar violation history. Thus, Harvey
fails to establish a prima facie case of discrimination.
Alternatively, even if Harvey were to establish a prima facie case, he
fails to overcome the pretext stage under McDonnell Douglas. But first,
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the 	burden 	shifts 	the 	employer 	to 	establish 	a 	legitimate, 	non-
discriminatory reason for the employment action. Alvarado v. Tex.
Rangers, 492 F.3d 605, 611 (5th Cir. 2007). However, “[t]he employer’s
burden is one of production, not persuasion, and does not involve a
credibility assessment.” Black v. Pan Am. Labs., L.L.C., 646 F.3d 254,
259 (5th Cir. 2011) (citation omitted). Here, Defendant easily meets that
production burden. Defendants provide evidence to show that Harvey
was 	disciplined 	for an altercation 	with another employee and for
clocking into work early without actually conducting any work. ECF No.
44-2 at 11. He was then disciplined a second time for an altercation with
a Lhoist customer. Id. at 17. Then a third time for “peel[ing] out” of the
parking lot on his way to work. Id. at 20. Finally he was terminated for
once again speeding out of the parking lot in an unsafe manner. Id. at
25–35. Each incident stands as an independent, non-discriminatory
reason for the employment action.
Thus, the burden lies with Harvey to establish that these reasons
were mere pretexts for discrimination. Alvarado, 492 F.3d at 611.
Harvey’s Response focuses largely on his disagreement with Lhoist’s
proffered reasons for termination and not on whether those reasons were
a pretext for discrimination. Where the employer relies on witness
statements and other evidence, the plaintiff must do more than offer
self-serving 	denial; he 	must produce 	evidence 	that the employer’s
reliance was unreasonable or in bad faith. Jackson v. Cal-Western
Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010). Here, multiple
witnesses reported unsafe driving; Harvey conceded that his conduct
could be perceived as aggressive; and he admitted wrongdoing in the
prior, nearly identical incident. See ECF No. 44-3 at 47 (“I took full
accountability of [speeding out of the yard]. I knew I was wrong for
speeding out the company vehicle that time.”); id. at 49. Consequently,
no reasonable jury could infer from this record that Lhoist’s reason is
implausible in a way that supports an inference of race discrimination.
Harvey also relies upon the fact that he reported a coworker for using
a racial slur. ECF No. 51 at 13. Seemingly suggesting that this report
was the sole reason for Harvey’s termination. See id. The Court does not
minimize the seriousness of such an allegation. But the summary
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judgment issue is whether Harvey has competent evidence that race
caused the discipline and termination decisions at issue. The record
reflects, and Harvey concedes, that the January 2023 alteration resulted
in discipline for both participants, and Harvey offers no evidence tying
the alleged slur to the later, independent disciplinary incidents in June
and November 2023 or the decisionmakers’ termination decision. See id.
at 10. On this record, a reasonable jury could not find that these
separate incidents were related, nor that race was somehow tied to the
adverse employment action, because Harvey provides no facts to suggest
such an inference is warranted.
Regardless, the Court does not assess whether the investigation was
ideal or error-free, but whether any alleged shortcomings, viewed with
the entire record, permit a rational inference of discrimination. Owens
v. Circassia Pharms., Inc., 33 F.4th 814, 829 (5th Cir. 2022). Instead, to
survive summary judgment at the pretext stage, a plaintiff must present
“sufficient evidence to permit a rational inference that the proffered
reason was pretext for discrimination.” Id. at 830 (citing Crawford v.
Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000)).
Under this standard, Harvey falls short. Much of his evidence
consists 	of 	generalized 	assertions 	of 	discriminatory 	“profiling” 	or
“favoritism,” 	without 	specific 	underlying 	facts 	tied 	to 	the
decisionmakers’ reasons for the discipline and termination. Conclusory
assertions do not create a triable issue. See Owens, 33 F.4th at 827 &
n.10. Harvey’s work assignment theory fares no better. To the extent
that 	Harvey 	claims 	non-Black 	employees 	were 	treated 	better 	in
assignments and scheduling, his deposition testimony reflects that he
often accepted additional work to earn more pay and that he generally
could not say how purported comparators were treated better. ECF No.
44-3 at 24, 38, 44. Even admitting that another black employee was
shown “favoritism” by not being required to conduct power washing
duties. Id. at 24. Where his later declaration contradicts his deposition
on those points without explanation, the Court will not credit it to create
a fact issue. See Johnson v. Bd. of Supervisors of La. State Univ., 90
F.4th 449, 458 (5th Cir. 2024).
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But again, “[t]he ultimate determination . . . is whether, viewing all
of the evidence in a light most favorable to the plaintiff, a reasonable
factfinder 	could 	infer 	discrimination.” Crawford, 	234 	F.3d 	at 	902.
Harvey wholly fails to provide evidence to create a fact issue here. The
evidence before the Court amounts to nothing more than conclusory
allegations and self-serving statements. There is no evidence that would
suggest that Lhoist’s justification for termination amounts to a pretext
for 	discrimination. 	Employers 	are 	generally 	free 	to 	conduct 	their
business as they see fit. Without any evidence tying the employment
action here to discrimination, Harvey’s claim cannot stand.
Thus, given the evidence before the Court and while making all
reasonable inferences 	in 	Plaintiff’s favor, the 	Court finds that no
reasonable jury could determine that Lhoist’s termination of Harvey
was a pretextual reason for terminating his employment on the basis of
protected characteristics.
B. Mr. Harvey fails to state a prima facie case of retaliation, and
alternatively, 	provides 	no 	evidence 	to 	create 	a 	genuine
dispute as to pretext.
Harvey also asserts that Lhoist retaliated against him for various
alleged protected actions. A retaliation claim is similarly analyzed under
McDonnell Douglas. Johnson, 90 F.4th at 460. First, to establish a prima
facie case of retaliation, Harvey must show that “(1) he engaged in an
activity protected by Title VII; (2) he was subjected to an adverse
employment action; and (3) a causal link exists between the protected
activity and the adverse employment action.” Davis v. Dall. Area Rapid
Transit, 383 F.3d 309, 319 (5th Cir. 2004).
Assuming without deciding that Harvey has satisfied the first two
elements of retaliation, he still fails to show causation. “The mere fact
that some adverse action is taken after an employee engages in some
protected activity will not always be enough for a prima facie case.”
Swanson v. GSA, 110 F.3d 1180, 1188 n.3 (5th Cir. 1997). Temporal
proximity can support causation in some circumstances, but significant
gaps—without other evidence of retaliatory intent—do not. Lyons v.
Katy Indep. Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020); Clark Cnty.
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Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (recognizing that
temporal proximity must be “very close”). Where, as here, intervening
misconduct 	independently 	triggers 	progressive 	discipline, 	temporal
proximity alone cannot suffice to establish causation.
Alternatively, Harvey fails to establish a genuine issue of material
fact regarding the pretext stage of McDonnell Douglas. “[O]nce the
employer offers a legitimate, nondiscriminatory reason that explains
both the adverse action and the timing, the plaintiff must offer some
evidence from which the jury may infer that retaliation was the real
motive.” Swanson, 110 F.3d at 1188. At this stage, that plaintiff must
meet the heightened but-for causation standard, showing that the
adverse action would not have occurred but for the retaliatory motive.
Willis v. Cleco Corp., 749 F.3d 314, 317–18 (5th Cir. 2014). Harvey’s
written 	discipline 	and 	termination 	followed 	intervening 	workplace
incidents 	and 	progressive 	discipline. 	The 	January 	2023 	report 	by
Harvey preceded the June 2023 discipline and the November 2023 final
warning and termination by several months; standing alone, this is not
close enough to establish causation. Lyons, 964 F.3d at 305; Clark Cnty.,
532 U.S. at 273–74. And to the extent Harvey relies on Fall 2023
complaints, he still must show more than temporal sequence; the record
shows that Lhoist’s actions were prompted by specific incidents of
misconduct, 	and 	the 	law 	does 	not 	permit 	an 	employee 	who 	has
complained to “disregard work rules or job requirements.” Swanson, 110
F.3d at 1188 n.3.
Alternatively, even if Harvey could satisfy the prima facie elements,
Lhoist has articulated a legitimate, non-retaliatory reason for the
challenged actions: Harvey’s behavioral and safety issues, including
reports of unsafe driving. Harvey, therefore, must present competent
evidence that the stated reasons are a pretext for retaliation. For the
same reasons discussed above in the discrimination analysis—Harvey’s
reliance on conclusory assertions, and the absence of evidence that
Lhoist acted in bad faith—he fails to raise a genuine dispute on pretext.
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007);
Jackson, 602 F.3d at 379.
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Harvey’s additional allegations do not alter the outcome. To the
extent he challenges an October 2023 drug test as retaliatory, he offers
no competent evidence regarding the Company’s testing policy or that
the test was administered for a retaliatory reason, and courts have held
that similar testing does not constitute an adverse action on similar
facts. Brown v. San Antonio Food Bank, No. SA-21-CV-507-OLG (HJB),
2023 WL 4408952, at *3 n.2 (W.D. Tex. Apr. 10, 2023), report and
recommendation adopted, 2023 WL 4410516 (July 6, 2023), aff’d, No. 23-
50564, 	2024 	WL 1300286 	(5th 	Cir. 	Mar. 	27, 	2024); 	Dornellien 	v.
Masengale, No. 4:21-cv-2900, 2023 WL 8283631, at *9 n.4 (S.D. Tex.
Nov. 30, 2023). Even if the accusation by a co-employee regarding drug
use was unfair or unsubstantiated, it does not create a fact issue
regarding pretext. Responding to allegations of drug use through a drug
test is an entirely legal avenue for addressing the situation, and no
evidence on record suggests it was merely a pretext for discrimination.
Mere suspicions, without more, is not enough to overcome summary
judgment.
Plaintiff also identifies a sweeping list of other alleged “adverse
actions,” including “assigning excessive tasks,” “assigning tasks not
within his job description,” “not allowing reasonable water breaks,”
unnecessarily 	monitoring 	his 	work 	closely,” 	“targeting 	him 	for
harassment and discipline,” “withholding necessary training,” “limiting
his customer work assignments,” “making him work longer hours,”
“cutting his hours,” “having a hostile attitude towards him,” and “falsely
accusing him of drug use and drug dealing.” ECF No. 51 at 22–23. But
beyond Harvey’s suspicions and generalized assertions, the record cited
by Harvey contains no competent evidence that any of these day-to-day
work grievances were imposed because Harvey engaged in a protected
activity. 	At 	summary 	judgment, 	mere 	conclusory 	allegations 	and
unsupported speculation do not create a genuine dispute of material
fact. See Grimes v. Tex. Dep’t of Mental Health, 102 F.3d 137, 139–40
(5th Cir. 1996). And to the extent Harvey relies on broad, conclusory
declaration 	testimony 	untethered 	to 	specific 	facts 	or 	personal
knowledge, the Lhoist’s reply correctly notes that courts routinely reject
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such “liturgical recitation[s] of legal conclusions,” and cannot preclude
summary judgment. See Owens, 33 F.4th at 827 & n.10.
Even if the Court assumes arguendo that some of these alleged
actions could potentially qualify as “adverse” in the retaliation sense,
these arguments still fail at the pretext stage. Lhoist has articulated a
legitimate, non-retaliatory rationale for its disciplinary decisions and for
the ultimate suspension of Harvey’s employment. As stated previously,
these include continued and persistent disruptive behaviors ultimately
culminating in repeated unsafe driving incidents. The burden, therefore,
rests solely with Plaintiff to present “substantial evidence” of pretext
and that Lhoist would not have taken the challenged actions but for a
discriminatory motive. Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571,
577 (5th Cir. 2020). Plaintiff simply does not meet that burden with a
catalogue of workplace grievances and subjective beliefs. And where
Plaintiff’s 	argument 	reduces 	to 	simple 	disagreement 	with
management’s assessment or a request that the Court second-guess
Lhoist’s judgment, that is insufficient as a matter of law: “Simply
disputing the underlying facts of an employer’s decision is not sufficient
to create an issue of pretext.” LeMaire, 480 F.3d at 391.
Even crediting Harvey’s version of events in full, the evidence would
not permit a reasonable jury to conclude that retaliation, rather than
Harvey’s repeated workplace misconduct, caused the discipline and
termination decisions. Summary judgment is therefore warranted on
the retaliation claim. Finally, to the extent Plaintiff’s briefing suggests
a hostile work environment theory, that claim is not properly pleaded
and is not before the Court.
CONCLUSION
For the above reasons, the Court concludes that Summary Judgment
should be and hereby is GRANTED. All claims are DISMISSED with
prejudice.
SO ORDERED on this 3rd day of February 2026.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
REGINALEA KEMP ,
Plaintiff,
v. 	No. 4:23-cv-00841-P
REGIONS BANK ET AL .,
Defendants.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Leave to File
Second Amended Complaint. ECF No. 18. Having considered the Motion
and applicable docket entries, the Court GRANTS the Motion.
SO ORDERED on this 18th day of September 2023.
______________________________________________
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
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