Burnett v. Penske Logistics

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CAMERON BURNETT,
Plaintiff,
v.
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CIVIL NO. 4:24-CV-04732
PENSKE LOGISTICS,
Defendant.
JUDGE PALERMO’S ORDER & REPORT AND RECOMMENDATION
This is an employment retaliation case. Pending before the Court are
Defendant Penske Logistics’ Motion for Summary Judgment, ECF No. 40, and pro
se Plaintiff Cameron Burnett’s Motion to Compel, ECF No. 45.1 Having considered
the briefing,2 evidence, and applicable law, the Court finds Plaintiff’s motion to
compel should be denied and Defendant’s motion for summary judgment should be
granted.
I. 	BACKGROUND
These 	are 	the 	undisputed 	facts. 	Plaintiff 	began 	his 	employment 	with
Defendant as a Driver/Helper in August 2021. ECF No. 41 at 2. He was responsible
1 The district judge to whom this case is assigned referred the case to this Court pursuant to 28
U.S.C. § 636(b)(1). Order, ECF No. 10.
2 Plaintiff filed a response to Defendant’s motion for summary judgment, ECF No. 42. Defendant
filed a reply, ECF No. 43. Plaintiff was given permission to file a sur-reply. ECF Nos. 47, 49.
Defendant filed a response to Plaintiff’s motion to compel, ECF No. 48, and Plaintiff filed a reply,
ECF No. 51.
United States District Court
Southern District of Texas
ENTERED
May 20, 2026
Nathan Ochsner, Clerk
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for loading inventory onto the truck then unloading inventory at the delivery site. Id.
On March 3, 2024, Plaintiff submitted a written complaint about an incident at a
delivery site. ECF Nos. 40-1 at 23 (106:9–19); 40-3 at 2; 42 at 8. He complained of
racial discrimination when the store manager became upset that the barista gave
Plaintiff a free drink while he was unloading the truck. ECF Nos. 40-1 at 23 (106:9–
19); 40-3 at 2; 42 at 8. Two weeks later, he submitted two additional complaints.
The first concerned scheduling, and the second addressed workplace gossip. ECF
Nos. 40-3 at 3–4; 42 at 10–11. Then, on July 5, 2024, Plaintiff submitted a fourth
complaint, stating that he was “in fear for [his] life” and that the workplace
environment had become hostile. ECF Nos. 40-6 at 1; 42 at 12. This fourth complaint
involved a co-worker, Kartina Ware, the mother of Plaintiff’s former girlfriend who
is the mother of his child. See ECF No. 40-7 at 2.
Upon receipt of this fourth complaint, Defendant began an investigation. ECF
No. 40-4 ¶ 7. Both Plaintiff and Ware were suspended pending the outcome of the
investigation. Id. During the investigation, Defendant discovered that Plaintiff had
been arrested twice in 2024, which he failed to disclose to Defendant. Id. ¶ 8; see
also ECF No. 40-1 (15:23–16:10). Plaintiff’s failure to report his arrests was in
violation of Defendant’s policy requiring employees “arrested or charged with a
felony or any crime that relates to theft, threat, violence, sexual misconduct or drug-
or alcohol-related crimes” to “notify Human Resources” within three business days
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of the arrest. ECF No. 40-5 at 2. When Defendant asked Plaintiff whether he had
previously been arrested, he twice said he had not. ECF No. 40-1 at 30–32 (151:4–
13, 152:2–153:4). Defendant fired Plaintiff for violating the arrest policy and cited
“integrity concerns.” ECF No. 40-7 at 7; see also ECF No. 40-8 at 1.
Plaintiff sued for retaliation. Compl., ECF No. 1. Subsequently, he amended
his complaint, providing additional factual background. Am. Compl., ECF No. 22.
Defendant moves for summary judgment on Plaintiff’s retaliation claim, arguing that
Plaintiff cannot make a prima facie showing of retaliation because he cannot
demonstrate that his complaints were in opposition to an unlawful employment
practice in violation of Title VII of the Civil Rights Act. Even if he can, Defendant
argues, Plaintiff cannot demonstrate that Defendant’s legitimate, non-discriminatory
reason for firing him is pretextual. ECF Nos. 40–41.
II. 	SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “[s]ummary
judgment is appropriate ‘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.’”
Ballentine v. Broxton Grievance Dep't Vicki Cundiff, 155 F.4th 462, 467 (5th Cir.
2025) (quoting FED. R. CIV. P. 56(a)). “A dispute as to a material fact is ‘genuine’ if
the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. (internal quotation marks omitted). “A fact is ‘material’ if its resolution
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in favor of one party might affect the outcome of the lawsuit under governing law.”
Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990 (5th Cir. 2022) (internal
quotation marks omitted).
In seeking summary judgment, the “moving party ‘always bears the initial
responsibility of informing the district court of the basis for its motion’ and pointing
to record evidence demonstrating that there is no genuine dispute of material fact.”
Sweat v. Hou. Methodist Hosp., No. CV H-24-775, 2025 WL 2697111, at *3 (S.D.
Tex. Sept. 22, 2025) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When the non-movant bears the burden of proof at trial, the movant “may merely
point to the absence of evidence and thereby shift to the non-movant the burden of
demonstrating by competent summary judgment proof that there is an issue of
material fact warranting trial.” Id. (internal quotation marks omitted); see also
Celotex, 477 U.S. at 325.
If the movant fails to meet its initial burden, the motion for summary judgment
must be denied, regardless of the non-movant’s response. See id. (quoting Sanchez
v. Young County, 956 F.3d 785, 791 (5th Cir. 2020). The non-movant “must ‘go
beyond the pleadings and by [their] own affidavits, or by the depositions, answers
to interrogatories, and admissions on file, designate specific facts showing that there
is a genuine issue for trial.’” Fiesta Mart, LLC v. Willis of Ill., Inc., 728 F. Supp. 3d
458, 	465 	(S.D. 	Tex. 	2024) 	(quoting 	Nola 	Spice 	Designs, 	L.L.C. 	v. 	Haydel
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Enterprises, Inc., 783 F.3d 527, 536 (5th Cir. 2015)). The non-movant must identify
specific evidence in the record and precisely articulate how that evidence supports
its claim. Diamond Servs. Corp. v. RLB Contracting, Inc., 113 F.4th 430, 444 (5th
Cir. 2024) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). This
burden “will not be satisfied by ‘some metaphysical doubt as to the material facts,
by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of
evidence.’” Fiesta Mart, LLC, 728 F. Supp. 3d at 465 (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). A party who fails to adequately
brief 	their 	argument 	is 	deemed 	to 	have 	waived 	that 	argument. 	Wiseman 	v.
Schlumberger Tech. Corp., No. 4:23-CV-56, 2025 WL 2612733, at *6 n.18 (S.D.
Tex. Mar. 20, 2025) (citing United States v. Scroggins, 599 F.3d 433, 446–47 (5th
Cir. 2010)). However, the court must draw all reasonable inferences in the light most
favorable to the non-moving party. Sweat, 2025 WL 2697111, at *3 (quoting Ion v.
Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013)).
III. 	PLAINTIFF’S MOTION TO COMPEL IS UNTIMELY.
On March 31, 2026, Plaintiff filed a motion to compel responses to his
interrogatories and requests for production, ECF No. 45. Defendant filed a response,
noting that the motion was untimely and providing substantive reasons for why the
motion should be denied. ECF No. 48. The deadline to complete discovery was
February 15, 2026, six weeks before Plaintiff filed his motion, and the deadline to
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file motions was March 16, 2026, two weeks before Plaintiff filed his motion. Order,
ECF No. 16.
Plaintiff’s motion fails to address timeliness under either deadline. To be
timely, a motion to compel discovery must be filed before the discovery cutoff. Gray
v. Experian Info. Sols., Inc., No. 1:23-CV-545-RP, 2024 WL 4932539, at *1 (W.D.
Tex. July 25, 2024) (collecting cases); see also Burnett and Sons, Inc. v. Hall Cattle
Feeders, LLC, No. 2:23-CV-00148-Z-BR, 2025 WL 4697175, at *1 (N.D. Tex. June
16, 2025) (“a district court is within its discretion to deny a motion to compel filed
on or after the court-ordered discovery deadline”) (quoting McCollum v. Puckett
Mach. Co., 628 F. App’x 225, 228 n.4 (5th Cir. 2015)). In fact, courts have denied
motions to compel filed on the discovery cutoff deadline as untimely because the
court did not have sufficient time to consider the motion and order additional
discovery before the cutoff. Gray, 2024 WL 4932539, at *1 (denying a motion to
compel “because it was filed on the discovery deadline”); see also Grant v.
Amazon.com Servs. LLC, No. 3:22-CV-0439-S-BH, 2023 WL 3743166 (N.D. Tex.
May 31, 2023). Thus, Plaintiff’s motion filed six weeks after the discovery cutoff is
untimely. Gray, 2024 WL 4932539, at *1.
In explanation for the delay, Plaintiff claims he was confused about the
deadlines because there were conflicting schedules on the docket sheet, and he relied
on information provided through CM/ECF. ECF No. 51 at 1-2. The crux of his
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explanation is that he relied on a scheduling order from August 26, 2025, that
extended the deadline for discovery. ECF No. 51 at 6. The attached docket sheet,
ECF No. 30 (withdrawn), reflects a discovery cut off of May 26, 2026 and motion
deadline of June 26, 2026, ECF No. 51 at 5, which would have made his motion
timely. He claims to have “acted based on information available at the time and filed
the [motion to compel] upon recognizing deficiencies in Defendant’s discovery
responses.” Id. at 2. However, as Plaintiff acknowledges, only two days after that
entry, the docket sheet states that the August 26 scheduling order was docketed in
error and that schedule was removed from CM/ECF. The docket sheet states that the
original dates were restored. Id. Thus, as of August 28, 2025, the parties were on
notice that the original docket control order was the operative scheduling order.
Thus, by the time Plaintiff filed his motion on March 31, 2026, he could not
reasonably have relied on the August 26 docket control order that had been docketed
in error and withdrawn as reflected on the docket sheet for seven months. ECF
No. 51 at 1–2. Therefore, the Court finds that his confusion was not understandable
or reasonable.
Because Plaintiff’s motion is untimely with no justification for the delay,
Plaintiff’s motion to compel is DENIED.
IV. 	DEFENDANT’S 	MOTION 	FOR 	SUMMARY 	JUDGMENT
SHOULD BE GRANTED.
Defendant asserts it is entitled to summary judgment for two reasons. First,
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Defendant argues that Plaintiff cannot establish that he engaged in protected
activities. ECF No. 41 at 9–12. Second, Defendant asserts that Plaintiff cannot
establish that Defendant’s reasons for firing him were pretextual. Id. at 12–16. The
Court will discuss each in turn.
A. 	Defendant Is Entitled To Summary Judgment Because Plaintiff
Does Not Raise A Fact Question About Whether He Engaged In
Protected Activity.
Defendant first argues that Plaintiff cannot make a prima facie retaliation case
because he cannot demonstrate that he engaged in protected activity. ECF No. 41
at 9–12. In response, Plaintiff asserts that he “submitted multiple internal complaints
regarding workplace conduct he reasonably believed to be discriminatory or unsafe”
and argues that whether those complaints are considered protected activity for
retaliation purposes is a fact question for a jury. ECF No. 42 at 2. He also claims that
the 	timing 	of 	his 	complaints 	being 	“followed 	shortly 	by 	investigation 	and
disciplinary actions” gives rise to an inference of retaliation. Id. at 3.
The elements of a retaliation claim require a plaintiff to demonstrate: “(1) she
engaged in protected activity; (2) she suffered an adverse employment action; and
(3) a causal link between the adverse employment action and the protected activity.”
Prevost v. City of Houston, No. 4:23-CV-4115, 2025 WL 1728027, at *6 (S.D. Tex.
May 20, 2025) (citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir.
1998); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012)),
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adopted, No. 4:23-CV-04115, 2025 WL 1726311 (S.D. Tex. June 20, 2025), aff'd,
No. 25-20264, 2026 WL 908538 (5th Cir. Apr. 2, 2026). “Protected activity is
defined as opposition to any practice rendered unlawful by Title VII [of the Civil
Rights Act of 1964], including making a charge, testifying, assisting, or participating
in any investigation, proceeding, or hearing under Title VII.” Bee v. Tex. Dep’t of
Fam. & Protective Servs., No. 4:22-CV-04394, 2026 WL 865737, at *5 (S.D. Tex.
Mar. 30, 2026) (quoting Ackel v. Nat'l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir.
2003)). Title VII prohibits employer discrimination based on “race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a). An “adverse employment action”
is an action that “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Prevost, 2025 WL 1728027, at *6 (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The plaintiff
must demonstrate “that the adverse employment action would not have been taken
‘but-for’ the retaliation.” Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 352 (2013)).
Defendant claims that Plaintiff did not engage in protected activity. ECF
No. 41 at 9–12. Plaintiff responds that “[o]pposing conduct reasonably believed to
be unlawful discrimination or harassment constitutes protected activity.” ECF
No. 42 at 2. Both Defendant and Plaintiff provide copies of Plaintiff’s four
complaints. See ECF Nos. 40-3 at 2–5; 42 at 8, 10–12.
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Of the four complaints, only the first one raises racial discrimination. ECF
No. 40-3 	at 	2; 	see 	also 	ECF 	No. 42 	at 8. 	Plaintiff 	complains 	that 	he 	was
discriminated against when he made a delivery to one of Defendant’s customers.
The manager was upset that the barista in the store gave Plaintiff a drink when he
unloaded the truck. ECF No. 40-1 at 23 (106:9-24). Plaintiff claimed the reason the
manager was upset was because of Plaintiff’s race, though he does not specify his
race. ECF No. 40-3 at 2; see also ECF No. 42 at 8. “‘The purpose of Title VII is to
protect employees from their employers’ unlawful actions.’ As such, only those ‘in
employment relationships with the defendant’ may bring such claims.’” Brown v.
City of Anna City Hall, No. 23-40214, 2023 WL 8253748, *1–2 (5th Cir. Nov. 29,
2023) (quoting Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 178 (2011);
Simmons v. UBS Fin. Servs., Inc., 972 F.3d 664, 669 (5th Cir. 2020)). Therefore,
Plaintiff’s first complaint is not protected activity because a third party committed
the discriminatory actions he complains of, not his employer. Thus, Plaintiff’s first
complaint does not demonstrate that he engaged in protected activity, as required to
make a prima facie retaliation claim.
The remaining three complaints make no reference to any of the protected
categories under Title VII and instead focus entirely on personal grievances Plaintiff
had with other employees. See ECF Nos. 40-3 at 3–5; 42 at 10–12. In his second
complaint, Plaintiff complains of “gossip and slander about [his] personal life”
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between Ware—a team lead—and his supervisor, with that same supervisor being
described as “very aggressive, unprofessional and deep into [Plaintiff’s] personal
life.” ECF No. 40-3 at 3. In his third complaint, he complains of Ware showing
Plaintiff’s financial information to her daughter and other employees, as well as
stating again that his supervisor “is very aggressive and petty.” Id. at 4. Perhaps most
concerning, his fourth complaint charges that Ware’s ex-husband contacted Plaintiff
threatening that “he was sent to kill [Plaintiff,]” causing Plaintiff to be “in fear for
[his] life.” Id. at 5. Nothing in the last three complaints suggests Plaintiff was
opposing employer discrimination based on race, color, religion, sex, or national
origin. See ECF Nos. 40-3 at 3–5; 42 at 10–12. These complaints are about
workplace disputes beyond the scope of Title VII. As the Fifth Circuit has previously
announced, “Title VII of the Civil Rights Act of 1964 does not create a ‘general
civility code’ for the workplace.’” Robinson v. Hometowne on Bellfort, No. CV H-
25-372, 2025 WL 2675957, at *1 (S.D. Tex. Sept. 12, 2025) (quoting West v. City
of Houston, Texas, 960 F.3d 736, 743 (5th Cir. 2020)).
Defendant is entitled to summary judgment on Plaintiff’s retaliation claim.
B. 	Defendant Is Entitled To Summary Judgment Because Plaintiff
Has Not Raised A Fact Question Showing Pretext.
In the alternative, Defendant argues that, even if Plaintiff did engage in
protected 	activity, 	Defendant’s 	decision 	to 	suspend 	and 	ultimately 	terminate
Plaintiff’s employment was motivated by a legitimate, non-discriminatory reasons
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that Plaintiff cannot show as pretextual. ECF No. 41 at 12–16. Its proffered reasons
for firing Plaintiff are two-fold: Plaintiff failed to properly disclose two arrests to
Human Resources in contravention to company policy, and Plaintiff lied about the
arrests during the investigation into his fourth complaint. Id. at 12–13. In response,
Plaintiff argues that he informed his supervisor and management was aware of the
arrests, and that he further acted under advice of counsel in not disclosing the details
of those arrests to his employer. ECF No. 42 at 3.
If a plaintiff establishes a 	prima facie 	retaliation case, the burden of
production shifts to the defendant to provide a legitimate, nondiscriminatory reason
for its action. Green v. HCTec Partners, L.L.C., No. 24-20554, 2026 WL 839112,
at *2 (5th Cir. Mar. 26, 2026) (quoting Watkins v. Tregre, 997 F.3d 275, 281 (5th
Cir. 	2021)). 	“A 	violation 	of 	company 	policy 	is 	typically 	a 	legitimate,
nondiscriminatory reason for firing the offending employee.” Ware v. AutoZoners,
L.L.C., No. 22-20422, 2023 WL 2521872, at *1 (5th Cir. Mar. 14, 2023) (citing
Kitchen v. BASF, 952 F.3d 247, 253 (5th Cir. 2020)).
If the defendant provides that reason, then the burden shifts back to the
plaintiff who “must then produce substantial evidence” demonstrating that the
defendant’s “reason is a pretext for discrimination.” Id. (internal citations omitted).
At the summary judgment stage, “the question is not whether the plaintiff proves
pretext, but rather whether the plaintiff raises a genuine issue of fact regarding
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pretext.” Id. (quoting Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017)).
Plaintiffs can “establish pretext through evidence of disparate treatment or, in some
instances, by showing the defendant’s proffered explanation is false or unworthy of
credence,” including in retaliation claims. Id. (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000); January v. City of Huntsville, 74 F.4th 646,
653 (5th Cir. 2023)).
In 	the 	summary 	judgment 	context, 	courts 	consider 	“numerous 	factors,
including the strength of the plaintiff’s prima facie case, the probative value of the
proof that the employer’s explanation is false, and any other evidence that supports
the employer’s case and that properly may be considered.” Id. (quoting January, 74
F.4th at 654). Another relevant consideration “is the proximity of time between the
protected activity and the termination,” because if there is both suspicious timing
and other significant evidence of pretext, that can be sufficient to survive summary
judgment. Id. (quoting January, 74 F.4th at 655).
Defendant has offered two legitimate, non-discriminatory reasons for firing
Plaintiff: he was arrested and failed to notify Human Resources as company policy
required, and when he was asked about it, he lied. ECF No. 41 at 12–13. As for
suspending Plaintiff, Defendant explains that the decision was made based on the
nature of the allegations Plaintiff and Ware made. ECF No. 41 at 6; see also ECF
No. 40-4 ¶ 7. Defendant’s evidence of Ware’s allegations shows that Plaintiff
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allegedly threatened to kill her at work. See ECF No. 40-7 (Ware’s statement
alleging that Plaintiff had “been making threats stating to [Ware’s] daughter that he
was going to kill [Ware] at the job”). Defendant’s “Associate Behavior and Work
Rules Policy” provides a list of prohibited behaviors that “may result in disciplinary
action” without any guarantee of “progressive discipline.” ECF No. 40-5 at 3–4.
Included in the list of prohibited behaviors is “threatening, intimidating, fighting
with, or assaulting another associate, customer or individual in the workplace.” Id.
at 3. These violations of company policy are sufficient to demonstrate that Defendant
had 	legitimate, 	non-discriminatory 	reasons 	for 	suspending 	and 	ultimately
terminating Plaintiff’s employment. Ware, 2023 WL 2521872, at *1.
Because Defendant has met its burden of production, the burden shifts back
to Plaintiff to demonstrate that these reasons are pretextual. Plaintiff responds that
he informed his supervisor about the arrest, and that he disputes having been
“terminated for allegedly lying about his arrest.” ECF No. 42 at 3. He further
contends that the “[a]rrest was minor, unrelated to job performance, and resolved
through diversion,” and that there is “[e]xcessive focus on the arrest as a termination
justification” which demonstrates pretext. Id. at 4.
Even if informing his supervisor of the arrest could be considered sufficient
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under Defendant’s policy,3 he does not deny that Ware claimed he made a threat to
her life while she was at work or that he lied about the arrests during the
investigation.4 Plaintiff has not produced evidence tending to demonstrate either
reason as pretextual, as is required at this stage. See Green, 2026 WL 839112, at *2
(noting that once a defendant articulates a legitimate, non-discriminatory reason for
its action, “the plaintiff ‘must then produce substantial evidence’” indicating the
reason 	is 	pretextual). 	The 	proximity 	of 	time 	between 	the 	complaints—even
assuming they are protected activity—and the termination is not sufficient to survive
summary judgment because there is no other evidence of pretext—let alone
significant evidence. Ware, 2023 WL 2521872, at *1. Plaintiff has not raised a fact
question that Defendant’s legitimate, non-discriminatory reasons for suspending and
ultimately terminating his employment were pretextual. See id.
Defendant is entitled to summary judgment because Plaintiff cannot establish
pre-text.
V. 	CONCLUSION
Because Defendant has demonstrated it is entitled to summary judgment on
3 The Policy requires employees “who are arrested or charged with a felony or any crime that
relates to theft, threat, violence, sexual misconduct or drug- or alcohol-related crimes are required
to notify Human Resources within three (3) business days of the arrest.” ECF No. 40-5 at 2.
4 Plaintiff was arrested on two misdemeanor charges, one for driving while intoxicated and with
an open container, and one for unlicensed carrying of a gun. ECF No. 40-7 at 7. While the second
charge may not fit within the type of arrests enumerated in Defendant’s policy, the first one is an
“alcohol-related crime” such that the policy was applicable.
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Plaintiff’s retaliation claim, the Court RECOMMENDS GRANTING Defendant’s
motion for summary judgment, ECF No. 40.
It is further ORDERED that Plaintiff’s motion to compel, ECF No. 45, is
DENIED.
The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); F ED. R.
C IV . P. 72(b). Failure to file timely objections will preclude review of factual
findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d
353, 358 (5th Cir. 2017).
IT IS SO ORDERED.
Signed at Houston, Texas, on May 20, 2026.
Dena Hanovice Palermo
United States Magistrate Judge
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