govinfo:USCOURTS-ksd-2_25-cv-02037-0

1 
 
In the United States District Court 
for the District of Kansas 
_____________ 
 

_____________ 
 
DAMIN WHITE, 
 
Plaintiff 
 
v. 
 
FIVE STAR TRUCKING, LLC, A/K/A 
RICHARDSON HAULING, INC. 
 
Defendant 
_____________ 
 
MEMORANDUM AND ORDER 
 
Damin White sued his former employer, Five Star Trucking, al-
leging that Five Star unlawfully terminated him in retaliation for engag-
ing in a protected activity. Doc. 32 at ¶ 4.a. Five Star moves for sum-
mary judgment on all claims. Doc. 33. For the following reasons, that 
motion is granted. 
I 
A 
Summary judgment is proper under the Federal Rules of Civil 
Procedure when the moving party demonstrates “that there is no gen-
uine dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” 
when it is necessary to resolve a claim. Adler v. Wal-Mart Stores, Inc., 144 
F.3d 664, 670 (10th Cir. 1998). And disputes over material facts are 
“genuine” if the competing evidence would permit a reasonable jury 
to decide the issue in either pa rty’s favor. Id. Disputes—even hotly 
contested ones—over facts that are not essential to the claims are ir-
relevant. Brown v. Perez, 835 F.3d 1223, 1233 (10th Cir. 2016). Indeed, 
belaboring such disputes undermines the efficiency that Rule 56 seeks 
to promote. Adler, 144 F.3d at 670. 
At the summary judgment stage, material facts “must be identified 
by reference to affidavits, deposition transcripts, or specific exhibits 

2 
 
incorporated therein.” Adler, 144 F.3d at 671; see also D. Kan. R. 
56.1(a)–(c). To determine whether a genuine dispute exists, the court 
views all evidence, and draws all reasonable inferences, in the light 
most favorable to the nonmoving party. See Allen v. Muskogee, Okl a., 
119 F.3d 837, 839–40 (10th Cir. 1997). That said, the nonmoving party 
cannot create a genuine factual dispute by making allegations that are 
purely conclusory, Adler, 144 F.3d at 671–72, 674, or unsupported by 
the record. See Scott v. Harris, 550 U.S. 372, 378–81 (2007). 
The moving party bears the initial burden of showing the absence 
of any genuine issue of material fact and entitlement to judgment as a 
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Savant 
Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). Once the 
moving party meets its burden, the burden shifts to the nonmoving 
party to demonstrate that genuine issues as to those dispositive matters 
remain for trial. Celotex, 477 U.S. at 324; Savant Homes, 809 F.3d at 1137. 
B 
This case involves a claim for retaliation under 42 U.S.C. § 1981 
and Title VII, 42 U.S.C. § 2000e et seq. Doc. 32 at ¶ 4.a.1 White asserts 
that Five Star terminated him for making a complaint of racial discrim-
ination. The following facts reflect the context in which this lawsuit 
arose. 
Five Star operates a fleet of dump trucks. Doc. 34 at ¶ 1. White, 
who is a black male, started working for Five Star as a dump truck 
operator in April 2021 . Doc. 32 at ¶¶ 2.a.ii, 2.a.v. Kit Powell and 
Branden Powell were responsible for hiring White. 2 Id. at ¶ 2.a.vi. At 
all relevant times, Kit and Branden owned and operated Five Star. Id. 
at ¶ 2.a.iv. 
White contends that he was unlawfully terminated in retaliation 
for reporting an incident involving him and a coworker in February 
2024. That day, White and other dump truck operators were hauling 
construction aggregate. Doc. 32 at ¶ 2.a.viii. At approximately 2:07 
p.m., White sent a text message to Kit, reporting an incident that oc-
curred between him and another employee named Addison Dunn. See 
 
1 All document citations are to the document and page number assigned in 
the CM/ECF system. All facts are uncontroverted or, to the extent contro-
verted, viewed in the light most favorable to White, the nonmoving party. 
2 Because they share a last name, Kit and Branden Powell will be referred to 
by their first names. 

3 
 
id. at ¶ 2.a.ix; see also Doc. 35 at 1. White told Kit that Dunn almost ran 
into him. In particular, he stated: “You better tell that old m&s driver 
in one of the strong arm trucks to slow his ass down cause he damn 
near ran into the back of me me following too closely, idk if he don’t 
like black ppl or what but I will brake check him next time.” 3 Doc. 32 
at ¶ 2.a.ix. Kit responded: “How could someone following someone 
to [sic] closely have anything to do with someone being black. That 
makes no sense. Maybe he just wasn’t paying attention. and you better 
not be brake checking anybody.” Id. at ¶ 2.a.x. White replied: “because 
everything I have to work with him he does this.” Doc. 35 at 10, ¶ 1. 
Following the incident, White parked his truck in Five Star’s park-
ing lot and left work. See Doc. 32 at ¶ 2.a.xi; see also Doc. 35 at 1. When 
White left work, his workday was not over and he had outstanding 
work tasks that he could perform. Doc. 32 at ¶ 2.a.xiii. This was a vio-
lation of company policy: Five Star’s employee handbook requires em-
ployees to notify their supervisor if they are unable to report to work 
for any reason. Id. at ¶ 2.a.xviii. White did not tell anyone at Five Star 
that he was leaving or why. Id. at ¶ 2.a.xvii. Although he never sought 
permission to leave early, White now argues that he left work early 
because he did not have time to return to the jobsite to finish the job 
before his shift ended. Doc. 35 at 11, ¶ 9. And under these circum-
stances, he argues, he was not required to notify Kit that he was leav-
ing, nor had he done so in the past. See id. at 6, ¶ 14. 
Five Star considered White ’s actions—leaving work while there 
was still work to be done —to be a resignation. See Doc. 34 at ¶¶ 21–
22. After Kit learned that White left early, he tried to call White twice, 
but White did not answer either time. Doc. 32 at ¶ 2.a.xii. Later that 
evening, White messaged Kit about work for the next day. Id. at 
¶ 2.a.xiv. But Kit responded: “I assumed you quit when you left early 
and parked it today with no call or text.” Id. at ¶ 2.a.xv. White replied, 
“I was pretty upset, I wouldn’t of been any good working so I left...u 
wasn’t trying to hear me out no way soo it wasn’t a reason to talk or 
text.” Id. at ¶ 2.a.xvi. 
Although White had initially conversed with Kit, he began com-
municating with Branden—and not Kit—the following day. The next 
morning, White messaged Branden to ask if he was going to be fired. 
Doc. 35 at 11, ¶ 2. Branden responded: “I have no idea what u r talking 
 
3 Most of the recounted interactions occurred on a text-messaging platform. 
That medium is known for its informal, quick, frequently abbreviated, and 
rarely edited syntax. As a result, this Memorandum and Order replicates the 
messages verbatim. 

4 
 
about.” Id. at 11, ¶ 3. White replied: “ask kit cause he isn’t texting me 
back, since yesterday I need to know .” Id. at 11, ¶ 4. Later that day, 
White messaged Branden: “Hey he must of made he decision, because 
someone else is in my truck. I never said I quit, he never fired me?? So, 
what I’m looking at is something yall doing illegally so I’m contacting 
lawyers today thanks .” Id. at 11, ¶ 5. Branden responded that he had 
no idea what White was talking about and that he would talk to Kit , 
but Branden later decided to end his communications with White in 
light of White’s threat of litigation. See id. at 11, ¶¶ 6–7. 
After filing a charge of discrimination with the Equal Employ-
ment Opportunity Commission, White sued Five Star for retaliation . 
Doc. 1 at ¶¶ 15, 18. He contends that Five Star terminated his employ-
ment in retaliation for complaining about race discrimination in viola-
tion of 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e et seq. Doc. 
32 at ¶ 4.a. Five Star requests summary judgment on both counts. Doc. 
33. It argues that White has failed to make a prima facie claim of retal-
iation on both counts, that it had a legitimate business reason for ter-
minating White, and that its reason was not pretextual. See generally id. 
II 
White contends that he was terminated for reporting his belief 
that a coworker engaged in conduct that was racially motivated. Alt-
hough White has made a prima facie case of retaliation, Five Star had 
a legitimate reason for White’s termination and White lacks evidence 
that the proffered reason was pretext. Accordingly, Five Star’s motion 
for summary judgment is granted. 
A 
White raises his retaliation claim under Title VII and Section 1981. 
Title VII prohibits an employer from retaliating against an individual 
who has “opposed any practice made an unlawful employment prac-
tice by the statute.” Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th 
Cir. 2021) (quoting 42 U.S.C. § 2000e-3(a)) (quotation marks omitted). 
To state a Title VII claim, a plaintiff must show that he engaged in 
protected opposition to discrimination, that a reasonable employee 
would have found the employer’s action materially adverse, and that a 
causal connection existed between the plaintiff’s protected activity and 
the materially adverse action. Bekkem v. Wilkie , 915 F.3d 1258, 1267 
(10th Cir. 2019). 
Section 1981 concerns a plaintiff’s opposition to race -based dis-
crimination. See Parker Excavating, Inc. v. Lafarge W., Inc., 863 F.3d 1213, 
1220 (10th Cir. 2017). Section 1981 mandates that “[a]ll persons within 

5 
 
the jurisdiction of the United States [ ] have the same right in every 
State and Territory to make and enforce contracts, to sue, be parties, 
give evidence, and to the full and equal benefit of all laws and proceed-
ings for the security of persons and property as is enjoyed by white 
citizens.” 42 U.S.C. § 1981. Accordingly, Section 1981 prohibits retal-
iation against those who oppose racial discrimination. Parker Excavat-
ing, Inc., 863 F.3d at 1220. 
Although White raises his retaliation claim under Title VII and 
Section 1981, the two claims are analyzed indistinguishably. Parker Ex-
cavating, Inc., 863 F.3d at 1220; accord Lindsay v. Denver Pub. Schs., 88 F.4th 
1323, 1327 (10th Cir. 2023). Both statutes require a plaintiff to prove 
that “retaliation played a part in the employment decision.” Parker Ex-
cavating, Inc., 863 F.3d at 1220 (citation omitted). This can be done with 
direct evidence by showing “that retaliatory animus played a ‘motivat-
ing part’ in the employment decision,” or with indirect evidence. Id. 
(citation omitted). But, where, as here, the plaintiff only has indirect 
evidence of retaliation, the case proceeds under the burden-shifting 
framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 
(1973).4 Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202, 1224 (10th Cir. 
2022) (providing that the burden-shifting framework applies the same 
way in discrimination and retaliation cases). 
Under the McDonnell Douglas framework, the plaintiff has the ini-
tial burden of establishing a prima facie claim of unlawful retaliation. 
Ford, 45 F.4th at 1224. The elements to state a prima facie claim for 
retaliation under either Title VII or Section 1981 are indistinguishable: 
A plaintiff must have evidence that he engaged in protected opposi-
tion, that the defendant took a materially adverse action against him, 
and that a causal connection existed between the protected opposition 
and the materially adverse action. Payan v. UPS, 905 F.3d 1162, 1172 
(10th Cir. 2018) (citing Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 
1202 (10th Cir. 2008)); Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 
998 (10th Cir. 2011) (“[T]he principles set forth in Title VII retaliation 
cases apply with equal force in § 1981 retaliation cases.”). 
If the plaintiff carries the initial burden, it shifts to the defendant 
to articulate a legitimate nondiscriminatory reason for its employment 
decision. Kincaid v. Unified Sch. Dist. No. 500, Kan . City, Kan., 94 F.4th 
936, 943 (10th Cir. 2024). That burden is “exceedingly light.” DePaula 
v. Easter Seals El Mirador , 859 F.3d 957, 970 (10th Cir. 2017) . On a 
 
4 Neither party contends that there is any direct evidence of discrimination, 
and each analyzes White’s claims under McDonnell Douglas. See Docs. 34 at 5 
& 35 at 13. 

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motion for summary judgment, a defendant need only “articulate a 
reason for the [action] that is not, on its face, prohibited and that is 
reasonably specific and clear.” Frappied v. Affinity Gaming Black Hawk, 
LLC, 966 F.3d 1038, 1058 (10th Cir. 2020) (quotations omitted). The 
burden is “one of production, not persuasion; it can involve no credi-
bility assessment. ” Mauldin v. Driscoll , 136 F.4th 984, 995 (10th Cir. 
2025) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 
(2000)). 
And then, if the defendant satisfies that burden, the burden re-
turns to the plaintiff to prove that the defendant’s proffered reasons 
were pretextual—i.e., “unworthy of credence.” Mauldin, 136 F.4th at 
997. Once an employer satisfies its obligation to identify a lawful rea-
son for the adverse employment decision, the burden returns to the 
employee to show that the reason was pretext for discrimination. Kin-
caid, 94 F.4th at 943. A plaintiff “may show pretext by demonstrating 
the proffered reason is factually false, or that discrimination was a pri-
mary factor in the employer’s decision.” Lincoln v. BNSF Ry. Co. , 900 
F.3d 1166, 1193 (10th Cir. 2018) (quoting DePaula, 859 F.3d at 970). 
In other words, a plaintiff may show that the defendant’s reason is “so 
incoherent, weak, inconsistent, or contradictory that a rational fact-
finder could conclude [it is] unworthy of belief.” EEOC v. C.R. Eng-
land, Inc., 644 F.3d 1028, 1039 (10th Cir. 2011); see also Bekkem, 915 F.3d 
at 1267. 
Pretext probes the true intentions of the defendant, so the focus 
is limited to “whether the employer honestly believed its reasons and 
acted in good faith upon them.” Riggs v. AirTran Airways, Inc., 497 F.3d 
1108, 1119 (10th Cir. 2007). A court’s role “is to prevent intentional 
discriminatory . . . practices, not to act as a ‘super personnel depart-
ment,’ second guessing employers’ honestly held (even if erroneous) 
business judgments.” Dewitt v. S w. Bell Tel. Co. , 845 F.3d 1299, 1312 
(10th Cir. 2017) (quoting Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 
(10th Cir. 2006)). All facts are examined “as they appear to the person 
making the decision, not as they appear to the plaintiff.” Debord v. Mercy 
Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir. 2013) (citation and 
internal quotations omitted) (emphasis in original). Any doubts con-
cerning pretext are resolved in the plaintiff’s favor, but conjecture and 
bare allegations are not enough to show pretext. Jencks v. Modern Wood-
men of Am., 479 F.3d 1261, 1267 (10th Cir. 2007). 
B 
Five Star filed a motion for summary judgment on both claims, 
asserting that White fails to satisfy his initial burden of establishing a 

7 
 
prima facie case and has no evidence of pretext. Although White has 
established his prima facie case, he lacks evidence that Five Star’s rea-
son for terminating him was pretextual. As a result, Five Star’s motion 
for summary judgment is granted. 
1 
Five Star first argues that White cannot satisfy any of the elements 
of his prima facie burden for either his Title VII or Section 1981 claim. 
Doc. 34 at 6–9. As noted, the elements to state a prima facie claim for 
retaliation under either Title VII or Section 1981 are indistinguishable: 
A plaintiff must have evidence that he engaged in protected opposi-
tion, that the defendant took a materially adverse action against him, 
and that a causal connection existed between the protected opposition 
and the materially adverse action. Payan, 905 F.3d at 1172. 
Protected opposition can range from filing formal charge s to 
communicating informal complaints to superiors. Iweha v. State of Kan., 
121 F.4th 1208, 1233 (10th Cir. 2024). Although no magic words are 
required, to qualify as protected opposition, the employee “must con-
vey to the employer his or her concern that the employer has engaged 
in a practice made unlawful by [Title VII]” or Section 1981. Iweha, 121 
F.4th at 1233–34 (alterations in original); see Twigg, 659 F.3d at 998 (ex-
plaining that the same princi ple applies in a Section 1981 retaliation 
case). 
A plaintiff need not prove an actual violation of the statute, but 
must have “a reasonable good-faith belief” that he was reporting con-
duct prohibited by federal law. Fassbender v. Correct Care Sols., LLC, 890 
F.3d 875, 890 (10th Cir. 2018) (quoting Hertz v. Luzenac Am., Inc., 370 
F.3d 1014, 1015–16 (10th Cir. 2004)). The reasonable, good-faith be-
lief standard has subjective and objective components. See Reznik, 18 
F.4th at 1261 (citing Crumpacker v. Kan. Dep’t of Human Res. , 338 F.3d 
1163, 1171–72 (10th Cir. 2003)) . To meet this standard, a plaintiff’s 
subjective belief that his complaint was made in good faith must be 
objectively reasonable. See id. 
In Reznik, the Tenth Circuit articulated the standard governing 
whether a plaintiff’s belief that he or she is reporting conduct prohib-
ited by federal law is objectively reasonable. See Reznik, 18 F.4th at 
1260. The standard considers “what a reasonable employee would un-
derstand about the law and believe in the same or similar circum-
stances.” Id. at 1263. This inquiry “involves analyzing the law, the rel-
evant attendant circumstances of [the plaintiff’s] job, and the severity, 
pervasiveness, and duration of the alleged discrimination.” Id. at 1264. 

8 
 
There are four distinct inquiries: the relevant attendant circumstances 
of the plaintiff’s job, the severity of the alleged discrimination, the per-
vasiveness of it, and the duration of it. See id.at 1264–65. The less the 
alleged offensive conduct has to do with an employee’s duties, the 
more reasonable it is for an employee to identify the conduct as pro-
hibited behavior. Id. at 1265. 
It is a close call at best w hether White can establish that he en-
gaged in a protected activity. As noted, th e inquiry has subjective and 
objective components. It is not clear that , at the time White com-
plained to Kit, White subjectively believed he was engaging in pro-
tected conduct, that is, opposing unlawful employment activity. It 
seems more likely that he was only reporting that a colleague “was 
treating him differently due to the fact that he was black, i.e., driving 
too close and dangerously to [White’s] truck while working.” Doc. 35 
at 16. But based on the text message’s invocation of race, viewing that 
evidence in the light most favorable to White, and the express argu-
ment White makes against summary judgment, this Memorandum and 
Order assumes without deciding that White subjective ly believed that 
Dunn had violated federal law. 
Likewise, it is not obvious that White’s text message would satisfy 
the objective standard of reporting a violation of federal law. Because 
federal law does not typically make unlawful an employee’s conduct 
and instead only imposes liability on the employer, it seems more likely 
that White’s text message would be construed as evidence of a possible 
claim alleging a hostile work environment .5 For a hostile work envi-
ronment claim, a plaintiff must allege membership in a protected class, 
he was subjected to unwelcome harassment, the harassment was due 
to race, and the harassment was so severe or pervasive that it changed 
the terms and conditions of his employment. See Young v. Colo. Dep’t of 
Corr., 94 F.4th 1242, 1249 (10th Cir. 2024); see also Lounds v. Lincare, Inc., 
812 F.3d 1208, 1221 (10th Cir. 2015) (noting that the analysis is indis-
tinguishable under Title VII and Section 1981). 
When assessing a hostile work environment claim, facially race-
neutral conduct becomes relevant in light of race -based behavior. See 
Lounds, 812 F.3d at 1227. In Reznik, the Tenth Circuit explained that 
courts evaluating a retaliation claim have concluded that retaliation “re-
quire[s] a ‘lesser showing’ than necessary to meet the legal standard of 
 
5 The parties’ briefs do not explore what possible violations of federal law 
White might have thought he was reporting, opting instead to only superfi-
cially argue that he was or was not reporting an unspecified violation of fed-
eral law. See Docs. 34 at 6, 35 at 15–16, 38 at 9. 

9 
 
establishing an actual hostile work environment claim .” Reznik, 18 
F.4th at 1264 (quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 
285 (4th Cir. 2015)). “[A]n employee is protected from retaliation when 
[]he opposes a hostile work environment that, although not fully 
formed, is in progress .” Boyer-Liberto, 786 F.3d at 282. Even a single 
incident is sufficient if “it is physically threatening or humiliating.” See 
id. at 284–85. 
Viewed in the light most favorable to White, there is reason to 
find White’s belief objectively reasonable. For example, he reported 
Dunn’s conduct after claiming to have encountered it on several occa-
sions and expressed a belief that Dunn’s conduct was motivated by 
race. See Doc. 35 at 16 (citing Docs. 32 at ¶ 2.a.ix & 35 at 10, ¶ 1). This 
Memorandum and Order therefore assumes that White’s subjective 
belief that he was reporting unlawful conduct that would contribute to 
a hostile work environment is objectively reasonable. Cf. Bouknight v. 
S.C. Dep’t. of Corr., 487 F. Supp. 449, 479 n.5 (D.S.C. 2020) (concluding 
that it was reasonable for the plaintiff to believe that her male supervi-
sor’s bullying directed at her was due to sex even if she could not ulti-
mately prove the acts were based on sex). 
The other two elements —materially adverse action and causa-
tion—are more readily satisfied. Five Star took a materially adverse ac-
tion. Contra Doc. 34 at 7. Termination is an adverse action. Fye v. Okla. 
Corp. Comm’n, 516 F.3d 1217, 1228 (10th Cir. 2008). In this case, Five 
Star refused to allow White to return to work because it believed he 
had abandoned his job. See Doc. 34 at ¶¶ 21–22. That is sufficient to 
satisfy the adverse employment element even though Five Star asserts 
White abandoned his job. Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 
1216 (10th Cir. 2003) (concluding that there was an adverse employ-
ment action even though the action was the natural consequence of 
the employee’s choice not to return to work); accord McInerney v. United 
Air Lines, Inc., 463 F. App’x 709, 717 (10th Cir. 2011) (citing Wells and 
concluding that a jury could reasonably find that United terminated 
McInerney where McInerney failed to return to work on her scheduled 
return date and then refused to return to work when as ked). And the 
temporal proximity between White reporting Dunn’s behavior to Kit 
at 2:07 p.m. on February 14, 2024, and Kit terminating him at approx-
imately 6:00 p.m. that day establishes causation. See Meiners v. Univ. of 
Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (concluding that “[a] six -
week period between protected activity and adverse action may be suf-
ficient, standing alone, to show causation”); accord Spinelli v. Coherus Bi-
osciences, Inc., 167 F.4th 1274, 1282 (10th Cir. 2026). Five Star does not 
meaningfully argue to the contrary. 

10 
 
2 
Assuming White has satisfied his burden of establishing a prima 
facie case of retaliation , this shifts the burden to Five Star to offer a 
legitimate, non -discriminatory reason for its employment decision. 
Five Star asserts that it terminated White because he left work early—
in violation of Five Star’s employee handbook—without notifying an-
yone and there was still work available to be performed. Doc. 34 at 9 
(citing Doc. 34 at ¶¶ 11, 13). That is sufficient. See Dewitt v. Sw. Bell Tel. 
Co., 845 F.3d 1299, 13 20 (10th Cir. 2017) (concluding that the em-
ployer had proffered a legitimate nondiscriminatory reason for termi-
nating plaintiff for committing a work rule violation). And White fails 
to argue to the contrary. 
3 
The burden returns to White, requiring that he produce evidence 
that Five Star’s reason for termination is unworthy of belief.6 He makes 
three primary arguments. Doc. 35 at 17–18. None suggest that his case 
should proceed to trial. 
First, White points to differential treatment between him and 
other employees. Doc. 35 at 18. Generally speaking, differential treat-
ment is a valid way to undermine pretext. To succeed on h is conten-
tion, White must present evidence that he and the other employees 
were similarly situated and engaged in misconduct of comparable seri-
ousness. See, e.g., Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1116–17 
(10th Cir. 2007); McGowan v. City of Eufaula, 472 F.3d 736, 745 (10th 
Cir. 2006) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 
1230 (10th Cir. 2000)); Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 
1120 (10th Cir. 2007) (applying Kendrick). Similarly situated employees 
 
6 The parties dispute whether the same actor inference applies. See Docs. 34 
at 10 & 35 at 16 –17. Where, as here, the plaintiff was hired and discharged 
by the same person, “there is a strong inference that the employer’s stated 
reason for acting against the employee is not pretextua l.” Antonio v. Sygma 
Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006). That inference is prem-
ised on the notion that a person who hired the plaintiff with full knowledge 
of their protected characteristics is unlikely to later terminate the plaintiff 
within a short period of time because of those same characteristics . See id. 
The inference does not appear to apply in this case because White’s protected 
status—engaging in opposition to unlawful conduct—occurred well after Kit 
hired him. See Doc. 34 at ¶ 23; Martin v. Olathe Health Sys., Inc., No. 11-2179, 
2012 WL 2874062, at *5 (D. Kan. July 13, 2012) (declining to apply the in-
ference because the protected status was not known when the hiring decision 
was made). 

11 
 
are those who deal with the same supervisor and are subject to the 
same standards governing performance evaluation and discipline. Tim-
merman, 483 F.3d at 1120. That is not to say every employment decision 
must be identical because “[a] company must be allowed to exercise its 
judgment in determining how severely it will discipline an employee 
for different types of conduct.” Kendrick, 220 F.3d at 1233. Instead, the 
point is that differential treatment may imply unlawful retaliation was 
the motivating factor. See Wright v. Portercare Adventist Health Sys. , 52 
F.4th 1243, 1254 (10th Cir. 2022). 
White’s evidence fails to identify a comparable employee that 
would support his pretext argument. Instead, he makes only a general 
assertion that Five Star “ has had other employees ‘leaving early’ but 
the employees who did not engage in a protected activity like the plain-
tiff, were not terminated.” Doc. 35 at 12, ¶ 15 (citing Doc. 35-2 at 4); 
id. at 12, ¶ 16 (citing Doc. 35-4 at ¶¶ 9–10). He fails to identify who 
these employees are, the conduct they undertook, their supervisor, or 
the context of the actions. In other words, his argument is nothing 
more than a conclusory statement that is insufficient to satisfy his bur-
den of proof at the summary judgment stage. See MacArthur v. San Juan 
Cnty., 495 F.3d 1157, 1160 –61 (10th Cir. 2007) (“ [M]ere conclusory 
allegations with no citations to the record or any legal authority for 
support does not constitute adequate briefing.”) (quotation marks 
omitted) (alterations in original). Failure to identify other, comparable 
employees—by name, race or ethnicity, and supervisor—is fatal to a 
comparable-employee argument . See Lindsay v. Denver Pub. Schs. , 88 
F.4th 1323, 1329 (10th Cir. 2023). 
White’s reliance on interrogatory responses reflects his eviden-
tiary insufficiency on this point. He points to two responses where Five 
Star admitted that no former employee had made a complaint “report-
ing racial harassment and/or offensive comments and [been] subjected 
to or [witnessed] unfair treatment/retaliation for reporting racial har-
assment” and that Five Star had never fired an employee for the same 
or similar reasons as White. See Doc. 35-4 at ¶¶ 9–10. These responses 
do not identify any retaliatory conduct, much less from a similarly sit-
uated current o r former employee. To the contrary, these responses 
support Five Star’s position that it has never retaliated against any cur-
rent or former employee for complaining about race discrimination, 
including White. That dooms White’s claim. See, e.g., Kincaid, 94 F.4th 
at 946 (concluding that the plaintiff failed to establish pretext because 
she “cannot point to another similarly situated employee ‘who violated 
work rules of comparable seriousness’” (quoting Kendrick, 220 F.3d at 
1232)). 

12 
 
Nor does White’s invocation of Kit’s deposition testimony 
demonstrate incongruent treatment between him and others . Contra 
Doc. 35 at 12, ¶ 15 (citing Doc. 35-2 at 4). The cited testimony gener-
ally describes Kit’s approach to violations of the employee handbook 
he sees and how he and Branden , the other owner, have addressed 
those violations. See Doc. 35-2 at 4; see also Doc. 32 at ¶¶ 2.a.iv. Kit 
testified that employees usually violate the handbook by leaving early, 
arriving to work late, or not properly inspecting their trucks. Doc. 35-
2 at 4. When an employee violates a policy, Kit testified that he typically 
has a conversation with the employee—which may or may not be doc-
umented—and that he decides whether to terminate the employee for 
committing the violation. See id. Kit explained that he usually confers 
with Branden before deciding whether to terminate an employee, but 
that either one of them can terminate an employee on his own. See id. 
This testimony is unavailing because it fails to show differential 
treatment. To the contrary, it confirms Kit’s self -described typical re-
sponse process mirrored what the record shows he attempted to do 
here—follow up with White about his decision to leave early and then 
make a decision. The problem for White is that not only did he leave 
work early, he precluded this interaction by refusing to speak with Kit 
that evening. The cited testimony confirms an ad hoc approach that Five 
Star utilized and is devoid of any reason to believe that race, ethnicity, 
or anything other than a business judgment factored into the decision. 
As the Tenth Circuit has explained, pretext is not established by chal-
lenging the employer’s business judgment unless a plaintiff can tie it to 
retaliatory intent. See Plump v. Gov’t Emps. Ins. Co., 161 F.4th 1222, 1236 
(10th Cir. 2025) (concluding that the plaintiff’s bare assertion that “the 
investigation was unfair because it reached the wrong result” is not 
sufficient to establish pretext). That is lacking because there is no indi-
cation Kit treated others, including White, differently based on claims 
of racial animus. 
Second, White argues that the circumstances surrounding Kit’s de-
cision suggest pretext. Doc. 35 at 18 –19. In particular, he points to 
Five Star’s alleged equivocation about whether White was fired or quit 
and the lack of communication between Kit and Branden. 
When assessing pretext, what matters is how the facts appeared 
to the decisionmakers. Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 
991 (10th Cir. 2021). In this case, that means Kit. And it does not mat-
ter whether the decisionmaker’s reasoning was correct, “ just whether 
it honestly believed in the reason for the termination.” Id. But a plain-
tiff can establish pretext by showing contradictions or inconsistencies 
in the decisionmaker’s reasoning that a reasonable factfinder could find 

13 
 
the reasoning unworthy of belief. Id.; Litzsinger v. Adams Cnty. Coroner’s 
Off., 25 F.4th 1280, 1288 (10th Cir. 2022). 
White’s assertions of inconsistencies and contradictions sur-
rounding his termination lack merit. Contra Doc. 35 at 18. To begin 
with, White principally asserts that he had no intention to quit and 
claims that he did not believe that he had abandoned his job. See id. at 
18. That argument is foreclosed because it does not matter what White 
thought or intended; the focus is on the decisionmaker’s intent. See 
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1179 (10th 
Cir. 2006) (concluding that the plaintiff’s subjective beliefs surround-
ing her termination did not raise a genuine dispute of material fact re-
garding the employer’s stated bases for her termination). The parties 
have stipulated that Kit believed White abandoned his job because 
White left early without notifying him first. Id. at ¶ 2.a.xv. Then White 
declined to speak with Kit that evening. Even if Kit misread White’s 
actions or made a rash decision, that is not indicative of unlawful re-
taliation. See Plump, 161 F.4th at 1236 (noting that evidence of an em-
ployer’s poor business judgment, standing alone, is not sufficient to 
establish pretext). 
The alleged inconsistency between Kit and Branden fails to per-
suade. Viewed in the light most favorable to White, the evidence sug-
gests that White and Kit were engaged in the conversation that resulted 
in Kit construing White’s actions as an abandonment of his job and 
then, the following day, White attempting to engage Branden on a 
topic Branden expressed no awareness about. It is not immediately 
clear—and White fails to explain—how Branden’s unawareness of the 
situation undermines Kit’s belief when making the termination deci-
sion. See Doc. 34 at ¶ 22 (noting Kit’s deposition testimony wherein he 
stated that White was not allowed to return to work because he left 
work early without notifying anyone). In other words, White does not 
explain why the assessment of pretext should not be focused on Kit , 
who was involved in and made the determination, and instead on 
Branden, who was neither involved in nor aware of what had unfolded. 
Kit, as the parties’ stipulations show, has been consistent in his view 
of White’s conduct. And there is no evidence of inconsistency with 
Branden. Yet even if there were, it would not matter, as t his is not a 
situation where the termination decision “is contingent on the inde-
pendent affirmation of a higher-level manager,” which would shift the 
pretext focus to the final decisionmaker, or one where “the final deci-
sionmaker merely relies on possibly biased reports or conclusions of 
others, rather than conducting an independent investigation.” Macon v. 
UPS, 743 F.3d 708, 715 (10th Cir. 2014) . Accordingly, the inquiry is 
properly focused on Kit—the final decisionmaker. 

14 
 
Third, he argues that Five Star’s conduct was inconsistent with its 
unwritten practices. Doc. 35 at 18 –19. It is true that a plaintiff may 
demonstrate pretext by presenting evidence that the defendant acted 
contrary to an unwritten policy or practice. DePaula, 859 F.3d at 970 
(citation omitted). But here, White lacks evidence of any inconsistency. 
White claims Five Star had an unwritten practice that employees 
did not have to communicate with their supervisors if they left work 
early because “there was just no work or if it was just slow.” Doc. 35 -
1 at 3. He claims that he had left work early in the past in accordance 
with that unwritten practice without any issue. See Doc. 35 at 19; id. at 
17; see also id. at 3, ¶ 8 (citing Doc. 35-1 at 2–3). And, he continues, Five 
Star acted contrary to its unwritten policy or practice when it termi-
nated him for leaving work early without notifying Kit first only after 
he raised an issue regarding race. 
White’s evidence fails to suggest any inconsistency. His descrip-
tion of the policy permitting early departures applies, by its own terms, 
only to situations where there was no work or it was slow. But White 
stipulated that was not the case: White stipulated that his departure 
occurred when “his workday was not over and there was work availa-
ble to be done.” Doc. 32 at ¶ 2.a.xiii. So, even if the policy that White 
describes existed (or still exists), White plainly does not fall within it 
because he left the jobsite without authorization when there was work 
left to do. Although White now tries to explain the rational e for or 
otherwise justify his decision to leave early, Doc. 35 at 6, ¶ 13, that 
explanation does not refute the point that he left when there was work 
left to do and he has no evidence Five Star violated any policy by ter-
minating him for abandoning his job under these circumstances . See 
Markley v. U.S. Bank, N.A. , 59 F.4th 1072, 1084 (10th Cir. 2023) (af-
firming the district court’s finding that the plaintiff failed to provide 
evidentiary support for his pretext argument to survive summary judg-
ment). 
III 
For the foregoing reasons, Five Star’s Motion for Summary Judg-
ment, Doc. 33, is GRANTED. 
It is so ordered. 
 
Date: June 12, 2026 s/ Toby Crouse 
 Toby Crouse 
United States District Judge 

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