*1 Pending before the court are Plaintiff Gaylon Caldwell's motion for summary judgment, ECF No. 56; Caldwell's motion for sanctions for spoliation of evidence, ECF No. 58; Defendant Harris County's motion for summary judgment, ECF No. 59; Caldwell's motions in limine, ECF Nos. 61, 66; and Caldwell's supplemental motions for sanctions and in limine, ECF Nos. 75, 76. The parties consented to the jurisdiction of the magistrate judge, and the district judge transferred the case to the undersigned for all further proceedings, including entry of final judgment. ECF Nos. 53, 55. Caldwell's motion for summary judgment is denied, and Harris County's motion for summary judgment is granted. Caldwell's motions in limine and motions for sanctions are granted in part and denied in part as discussed below.

1. Procedural and Factual Background

Caldwell, pro se, filed this case on April 19, 2021. ECF No. 1. Caldwell's third amended complaint, read broadly, alleges that Harris County and others, who have since been dismissed from the case, discriminated against him because of his race and retaliated against him for reporting discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act (TCHRA). ECF No. 28 at 2, 7–8; see also ECF Nos. 50, 52.

Caldwell filed a motion for summary judgment in February 2022, and Harris County filed a motion for summary judgment in March 2022. ECF Nos. 56, 59. The parties filed responses in April 2022. ECF Nos. 64, 67. Caldwell filed an amended response to Harris County's motion for summary judgment in May 2022, fully supplanting his first response. ECF No. 74.

Harris County Office of Homeland Security and Emergency Management (HCOHSEM) employed Caldwell in the position of “Homeland Security Planner.” ECF No. 74 at 79. Harris County terminated his employment on February 4, 2021. Id.; ECF No. 56 at 7. Here is a chronology of relevant events based on the competent summary judgment evidence:

2. Summary Judgment Standard

“Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the nonmovant, ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Davenport v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact exists if a rational jury could not find for the nonmoving party based on the complete record. McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

Initially, “[t]he movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant must then “go beyond the pleadings,” using competent summary judgment evidence to cite to “specific facts” showing a genuine issue for trial. Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010) (quoting Celotex Corp., 477 U.S. at 324).

The court reviews all evidence and reasonable inferences in the light most favorable to the nonmoving party. Lincoln Gen. Ins. Co., 401 F.3d at 350. Still, the nonmovant must “articulate the precise manner in which the submitted or identified evidence supports [the] claim.” CQ, Inc. v. TXU Min. Co., 565 F.3d 268, 273 (5th Cir. 2009) (quoting Smith ex. rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004)). “[C]onclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence” ’ are not enough to defeat a properly supported motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). Nor is the “mere existence of a scintilla of evidence” sufficient; “there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

*4 “The filings of a pro se litigant are to be liberally construed” and are “held to less stringent standards” than attorney-drafted filings. Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019) (internal alterations and quotation marks omitted) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Still, all litigants must comply with the rules governing federal courts, including the requirement to present proper summary judgment evidence. E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014).

3. Analysis

A. Motions for Sanctions and In Limine

As a preliminary matter, the court addresses Caldwell's nondispositive motions. The court previously informed the parties that it would address objections to evidence raised in these motions when considering the summary judgment motions. See ECF No. 73.

Caldwell's motions for sanctions seek multiple forms of relief for Harris County's alleged destruction or alteration of the video footage showing the knife incident between him and Trammell. See ECF Nos. 58, 75. Caldwell merely offers his belief that the video footage is not an accurate portrayal of his encounter with Trammell in the hallway that day. See ECF No. 74 at 80 (stating that the video footage “did not show what actually took place in the hallway”). Inconsistencies between Caldwell's memory and the video footage do not amount to evidence of spoliation. Cf. Taylor v. Wal-Mart Stores, Inc., 464 F. App'x 337, 339 (5th Cir. 2012) (disallowing “mere speculation or suggestion” as evidence to contradict video footage in a slip-and-fall case). The only other evidence that Caldwell offers are two hand-drawn diagrams that fail to support his allegation that Harris County tampered with the video footage. For the sake of simplicity, however, the court assumes that the encounter between Caldwell and Trammell happened as Caldwell describes it. The court need not consider the video. Therefore, Caldwell's objections to the video are DENIED as MOOT.

Caldwell's motions in limine seek to exclude, not only the video evidence, but also the police offense report and the witnesses' declarations, specifically the testimony that relies on the contents of the offense report. See ECF Nos. 61, 66, 76. The court has considered the police offense report solely for the fact that Caldwell filed a police report based on the knife incident. Caldwell's objection to the court's consideration of the contents of police offense report is therefore GRANTED.

Caldwell also seeks to exclude Harris County's witnesses' declarations as hearsay and to exclude Drouet's declaration because it relies on “the police offense report as a speculative tool to discredit [Caldwell's] discrimination and workplace violence complaints and introduce erroneous secondhand statements[.]” ECF No. 66 at 2–4. Declarations are competent summary judgment evidence if they are “made on personal knowledge, set out facts that would be admissible in evidence, and show that the ... declarant is competent to testify on the matters stated.” Fed. R. Civ. R. 56(c)(4). The court agrees that any statements in declarations that are taken from the police report and not personal knowledge are not competent summary judgment evidence. See id. The court has not considered the declarations to the extent that they repeat the contents of the offense report. Caldwell's objections to the declarations are therefore GRANTED in PART and DENIED in PART.

B. Title VII and TCHRA

*5 Caldwell raises discrimination and retaliation claims under Title VII and the TCHRA. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The TCHRA is modeled after Title VII, and thus the analysis of TCHRA claims follows the same framework that is applied to Title VII claims. Tex. Lab. § 21.001(1); Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 321 (5th Cir. 2021). The court thus analyzes the Title VII and TCHRA claims together.

To survive a motion for summary judgment, Caldwell must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If a prima facie case is established, the defendant must provide the court with a legitimate, nondiscriminatory reason for the adverse employment action taken against the plaintiff. Id. If the employer does so, the plaintiff has the burden to raise a genuine issue of material fact that the defendant's stated reason is mere pretext for unlawful discrimination. Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003).

To satisfy his prima facie burden, Caldwell must produce evidence showing that he: (1) is a member of a protected group; (2) was qualified for the position of Homeland Security Planner; (3) was the subject of an adverse employment action; and (4) was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside his protected group. Hamilton v. Dallas Cnty., 42 F.4th 550, 554 (5th Cir. 2022).

Caldwell is an African American man who was terminated from a position for which he was qualified and thus satisfies the first three elements of a prima facie case for having his employment terminated. However, Caldwell also argues that the December 18, 2020 order to work from home and the referral to EAP were also adverse employment actions. ECF No. 56 at 3. Because neither of these is an “ultimate employment action,” neither satisfies the third element of a prima facie case. See Ellis v. Compass Grp. USA, Inc., 426 F. App'x 292, 296 (5th Cir. 2011) (“Adverse employment actions include only ultimate employment actions, such as hiring, firing, promoting, compensating, or granting leave.”).

Harris County does not dispute that Caldwell satisfies the first three elements of the prima facie case because his employment was terminated but argues that Caldwell cannot produce evidence that he was replaced by someone who is not African American or than he was treated less favorably that other similarly situated non-African American employees under nearly identical circumstances. In response, Caldwell offers the LinkedIn page of a white man who identified himself as Homeland Security Planner for HCOHSEM as of April 2021. ECF No. 74 at 67-68, 80. The court has no information about the person depicted in Linkedln profile. The court does not know when he was hired, who hired him, what his qualifications are, or whether he is, in fact, Caldwell's replacement. The court has only Caldwell's conclusory allegation that “Mason Martin, a White/Caucasian male, filled Mr. Caldwell's position in April of 2021. ECF No. 74 at 9. The court assumes for the sake of argument that Caldwell could clarify and supplement his statement if called upon to do so and will therefore accept this evidence to satisfy the fourth element of the prima facie case.

*6 The burden of production thus shifts to Harris County to articulate a legitimate, nondiscriminatory reason for terminating Caldwell's employment. The evidence shows that Harris County terminated Caldwell's employment because his behavior created “a level of discomfort” that would not allow “smooth operations in the office particularly during the mandatory, overnight activations” and because his refusal to accept the results of the investigation into the knife incident caused anxiety and apprehension in the workplace. ECF No. 56 at 7. Caldwell disagrees, pointing to the Texas Workforce Commission's (TWC) decision finding that Harris County failed to establish that Caldwell's action constituted misconduct under the Texas Unemployment Compensation Act. See ECF No. 56 at 31–34. The TWC's decision that Caldwell's conduct did not rise to the level of misconduct for purposes of unemployment does not mean that Harris County's reason for terminating Caldwell was not a legitimate, nondiscriminatory reason under applicable law. Harris County's stated reason satisfies its burden.

Because Harris County has met its burden, Caldwell has the burden to show that Harris County's stated reason was merely pretext for racial discrimination or that the motivating factor for terminating his employment was his race. See Sacchetti v. Optiv Sec., Inc., 819 F. App'x 251, 254 (2020). For discrimination claims, pretext can be established either by showing that the employer's reason was false or by showing disparate treatment. Allaudin v. Perry's Rests., Ltd., 805 F. App'x 297, 299 (5th Cir. 2020). Other than disputing Harris County's characterization of his behavior, Caldwell offers no evidence that it was false. Caldwell's “uncorroborated self-serving testimony cannot prevent summary judgment,” especially considering the evidence of the behavior underlying Harris County's stated reason. See Vinewood Capital, LLC v. Dar Al-Maal Al-Islami Tr., 541 F. App'x 443, 447 (5th Cir. 2013).

Caldwell also cannot show that Harris County gave preferential treatment to any other employee under “nearly identical” circumstances. See Sacchetti, 819 F. App'x at 254 (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)) (stating that the plaintiff's conduct on which the adverse employment action was based must have been “nearly identical” to that of the proffered comparator who was treated more favorably). The only comparator Caldwell identifies is Trammell whom, Caldwell argues, was treated more favorably than Caldwell when Harris County provided Trammell counsel in the civil suit Caldwell brought against Trammell. ECF No. 74 at 7. Trammell's circumstances were not identical to Caldwell's. There is no evidence that Trammel was exhibiting “uncommunicative, volatile and unreasonable behavior” or that he was making accusations after an investigation found them to be unfounded. Moreover, Caldwell's HRRM complaints never mentioned any specific instance of discrimination based on race. Caldwell has not raised a genuine issue of material fact on pretext for discrimination.

Title VII prohibits retaliation against persons who oppose unlawful employment practices or participate in an investigation or hearing under the statute. 42 U.S.C. § 2000e-3(a). The McDonnell Douglas analysis discussed above applies to retaliation claims. Wallace v. Seton Family of Hosps., 777 F. App'x 83, 91 (5th Cir. 2019). To meet his prima facie burden, Caldwell must show that: (1) he engaged in activity protected by Title VII; (2) he “suffered a materially adverse [employment] action;” and (3) “a causal connection exists between the protected activity and the adverse action.” Id. (quoting Jenkins v. City of San Antonio Fire Dep't, 784 F.3d 263, 269 (5th Cir. 2015)) (alteration in original).

Protected activity includes opposing any practice made unlawful by Title VII, and making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. Anderson v. La. Dep't of Transp. & Dev., 836 F. App'x 304, 307 (5th Cir. 2020) (quoting Douglas v. DynMcDermott Petrol. Operations Co., 144 F.3d 364, 372 (5th Cir. 1998)). “[A] vague complaint, without any reference to an unlawful employment practice under Title VII, does not constitute protected activity.” Davis v. Dallas Indep. Sch. Dist., 448 F. App'x 485, 493 (5th Cir. 2011) (collecting cases). Caldwell's reporting of bullying, threatening, or harassing behavior because of any reason other than Caldwell's protected class was not protected activity.

*7 In his declaration, Caldwell asserts that Harris County retaliated against him for “oppos[ing] discriminatory and hostile behavior that was directed toward [him] because of [his] race.” ECF No. 74 at 79. This statement and his assertions of discrimination in his complaints discussed above is precisely the type of “vague complaint” that does not identify any unlawful practice prohibited by Title VII. For this reason, the court finds that none of Caldwell's complaints qualify as protected activity. Caldwell cannot meet his prima facie burden for the retaliation claim. However, for the sake of a full analysis, the court continues through the prima facie elements.

A materially adverse employment action is an employment action “that is ‘harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Paul v. Elayn Hunt Corr. Ctr., 666 F. App'x 342, 346 (5th Cir. 2016) (quoting Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 945 (5th Cir. 2015)). The materiality requirement is intended to “separate significant from trivial harms.” Id. (quoting Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)). “To determine whether an action is materially adverse, [the Fifth Circuit] look[s] to indicia such as whether the action affected ‘job title, grade, hours, salary, or benefits’ or caused ‘a diminution in prestige or change in standing among ... co-workers’ ” Id. (quoting Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 332 (5th Cir. 2009)).

Caldwell claims the following actions, in addition to his termination, were taken in retaliation for making reports to HRRM: (1) mandating that he participate in an EAP; (2) “restricting [his] access to the workplace[;]” (3) “calling the accusations as unfounded[;]” and (4) “slander[ing] [his] reputation as an employee by referring to [his] mental capacity behaviors and inability to handle stress[.]” ECF No. 74 at 79. Termination qualifies as a materially adverse employment action. Paul, 666 F. App'x at 346 (citing Wheat v. FI. Par. Juv. Just. Comm'n, 811 F.3d 702, 710 (5th Cir. 2016)). None of the remaining claimed retaliatory actions rise to the level of materially adverse employment actions. None affected Caldwell's job title, grade, hours, salary or benefits, and none imposed significant harm. Caldwell implies that his reputation was damaged but cites no evidence that anyone outside of the process he initiated was aware of the findings of or actions taken by HRRM. Moreover, there is no evidence that the continuation of Caldwell's work-from-home arrangement amounted to a ban from the office. In fact, Caldwell was allowed back into the office before he was terminated. See ECF No. 74 at 5 (Caldwell explaining that he was allowed back to work in the office in early December 2020, but was ordered to work from home again after he sued Trammell).

The fourth element of the retaliation prima facie case requires causal connection between the protected activity and the adverse action. Wallace., 777 F. App'x at 91. Caldwell does not address this element in his motion for summary judgement. See ECF No. 56 at 4. In his response to Harris County's motion for summary judgment, Caldwell does not cite to evidence of a causal connection. See ECF No. 74. The court's review of the record reveals that the only summary judgment evidence in support of the fourth element is evidence of temporal proximity between the alleged protected activity and his termination. Assuming that Caldwell's November 3, 2020 complaint about the knife incident qualified as protected activity, it was the closest in time to his termination. Even so, he was terminated just over three months after it was filed. Although the fourth element may be met by temporal proximity, the Supreme Court has indicated that a three-month gap is insufficient to show causation. Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)). Caldwell cannot meet his burden to demonstrate a prima facie case of retaliation.

*8 Had Caldwell met his initial burden, as discussed above, Harris County produced evidence of a legitimate, nondiscriminatory reason for terminating Caldwell's employment. Thus, the burden shifts to Caldwell to show pretext. For retaliation claims, this element requires evidence that but-for the engagement in protected activity, Caldwell would not have been terminated. See Wallace, 777 F. App'x at 90 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)). Because Caldwell presents no evidence other than temporal proximity, he has not shown that he was terminated but-for his filing of complaints. See Garcia, 938 F.3d at 241–42.

Caldwell fails to present evidence in support of all elements of a prima facie case of retaliation or any evidence of pretext.

4. Conclusion

The summary judgment record does not raise any genuine issue of material fact as to Caldwell's claims of discrimination and retaliation. Accordingly, Caldwell's motion for summary judgment is DENIED and Harris County's motion for summary judgment is GRANTED.