Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—5th Cir.: Proctor & Gamble wins dismissal of race, retaliation claims due to insufficient pretext evidence, (Aug 4, 2026)

By Tulay Turan, J.D.

The employee admitted he had no evidence the company treated his coworkers better than him.

Affirming a district court’s grant of summary judgment in Proctor & Gamble’s favor on an employee’s race discrimination and retaliation claims, the Fifth Circuit found the employee failed to show the company’s legitimate, nondiscriminatory reason for his termination – violation of company policies – was pretext. In addition, the court affirmed summary judgment in the company’s favor on his state whistleblower claim because he failed to show an actual violation of state law. In a separate concurring opinion, Judge Ho, joined by Judge Elrod, argued the McDonnell Douglas framework is flawed and that no Supreme Court precedent requires the appeals court to use the framework rather than the plain text of Rule 56 and Title VII (Holloway v. Proctor & Gamble Manufacturing Co., No. 25-30556 (5th Cir. Aug. 3, 2026)).

The employee began working for Proctor & Gamble in 2007. His role required him to coordinate with sub-vendors, supervise the loading of non-hazardous waste, and confirm the transport and removal of such loads through the completion of waste manifest forms. P&G used these forms to monitor waste and provide accurate billing statements for vendors.

Policy violations. In November 2020, the employee violated P&G’s Sourcing, Accountability, Fairness, and Ethics (SAFE) procurement policies by directly contacting suppliers for loading and transportation quotes, bypassing P&G’s procurement department. The company issued the lowest disciplinary action for the violation.

P&G later conducted an internal audit and discovered errors in the employee’s forms that affected the validity of vendor invoices. The employer reassigned him and transferred responsibility for the forms to another team member. However, the employee insisted on continuing to sign the manifests as he believed the law required him to do so. He claimed he informed the safety manager that the manifest signing practices violated certain federal and state regulations. He also claimed he submitted a complaint of race discrimination to the safety manager, alleging he was being treated differently than his similarly situated non-white counterparts.

Additional violations. In August 2022, P&G discovered the employee used his corporate credit card for personal expenses. The following month, he acknowledged that he violated company policy in an HR meeting. A few months later, another internal audit found that a sub-vendor had been overbilling the company. The report found the employee failed to review sub-vendor timesheets for accuracy.

The report also recommended further disciplinary action for reaching out directly to suppliers a month prior, the same SAFE procurement policy violation he was disciplined for in November 2020.

Termination, lawsuit. P&G terminated the employee in December 2022, citing the SAFE procurement policy violations and misuse of the company credit card. Thereafter, he filed suit, alleging P&G fired him in retaliation for his complaints to the safety manager regarding the alleged violations of federal and state regulations and his claim of race discrimination.

Lower court proceedings. The district court granted P&G’s motion for summary judgment, finding the employee had failed to rebut the employer’s legitimate reason for firing him and had failed to show a violation of law as a prerequisite for his whistleblower claim. The employee appealed the district court’s order granting summary judgment on his race discrimination, retaliation, and state whistleblower claims.

McDonnell Douglas framework. As a threshold matter, the employee asked the appeals court to abandon the McDonnell Douglas test. He pointed only to a concurrence by Justice Thomas that argued the Supreme Court should reconsider the McDonnell Douglas framework in a future case. The employee also argued the appeals court could abandon the test because no Supreme Court case requires its use. “However convincing this call may be, this court remains bound by the rule of orderliness,” the court wrote. Thus, it found no error in the district court’s use of the McDonnell Douglas test.

No pretext. Turning to the employee’s race discrimination claim, the appeals court affirmed summary judgment to P&G, finding he failed to establish that the company’s reason for firing him was pretextual. Although he claimed his deposition testimony was sufficient to create a genuine dispute of material fact as to whether the reason was pretextual, the court disagreed, finding he failed to present evidence of discrimination. He admitted in his deposition that he did not “have black and white evidence fact that [his coworkers] were treated better than [him].” He stated that “[e]verything I have is based off of how I feel and off of how other people feel.” The court noted he conducted no discovery on this point.

Policy violations. The court also found he failed to discredit P&G’s proffered legitimate reason for terminating him. The employer provided documentation showing he violated company credit card policy and SAFE procurement policy. He admitted to the credit card violations. His only response was that his second SAFE procurement did not actually violate the company’s policies. However, his alternative interpretation was insufficient to demonstrate that the reason for firing him was pretextual, the court found. Thus, the court affirmed the district court’s grant of summary judgment on his race discrimination claim.

Timing of termination. Likewise, the appeals court affirmed the district court’s grant of summary judgment in P&G’s favor on the employee’s retaliation claim. The employee’s argument relied on the temporal proximity between his alleged complaints to the safety manager about race discrimination and his termination. He also asserted that P&G previously told him that his credit card policy violation in August 2022 did not warrant termination. As such, he claimed that because he was terminated after his discrimination complaint, the escalation of discipline after his protected activity would allow a jury to conclude the stated reasons were pretextual.

The court disagreed, finding his theory was confounded by his second violation of the SAFE procurement policies, which the company discovered shortly before his termination. The internal audit that led P&G to discover his second violation occurred in November 2022 at the same time as his alleged complaints to the safety manager and just a few weeks before his termination. Enforcing company policy was a legitimate, non-retaliatory reason to terminate him, the court said. His claim that P&G did not seek to terminate his employment before his complaints did not constitute “significant record evidence,” especially considering his interim violations of policy, according to the court.

Whistleblower claim. Finally, the appeals court affirmed summary judgment on the employee’s state whistleblower claim. The employee argued the employer asked him to falsify government documents in violation of state law. Specifically, he testified the employer wanted him to load the hazardous waste but let someone else sign the paperwork. He cited a federal regulation and two statutes to prove that another person signing the transportation documents would be a violation of the law.

The appeals court agreed with the district court that none of the laws the employee cited proved that another P&G worker signing the transportation paperwork would make that paperwork a false public record or document. He failed to introduce any evidence that would allow a trier of fact to determine that these forms would be false if signed by someone else.

Concurrence. In a separate concurrence, Judge Ho, joined by Judge Elrod, argued the McDonnell Douglas framework is flawed in several ways and that no Supreme Court precedent requires the appeals court to use the framework rather than the plain text of Rule 56 and Title VII. He explained that McDonnell Douglas conflicts with both Rule 56 and Title VII’s statutory language. Rule 56 requires only enough evidence to create a genuine dispute of material fact at summary judgment, whereas McDonnell Douglas requires that plaintiffs prove a prima facie case and rebut the employer’s stated reasons by a preponderance of the evidence, effectively imposing a heavier burden than the rule requires. He also argued the framework’s pretext requirement is inconsistent with Title VII’s “motivating factor” standard, which allows liability even when discrimination is only one of several reasons for an employment decision.

He concluded that the Fifth Circuit should be willing, in an appropriate future case, to reconsider its reliance on the framework and align its discrimination jurisprudence more closely with the text of Title VII and Rule 56.

The case is No. 25-30556.

Judge: Per Curiam.

Attorneys: Allison Anne Jones (Downer, Jones, Marino & Wilhite) for Brandon Holloway. Michael B. Taylor (Jackson Lewis) for Procter & Gamble Manufacturing Co.

Companies: Procter & Gamble Manufacturing Co.

Cases: Discrimination RaceDiscrimination Discharge Retaliation StateLawClaims Whistleblowers LouisianaNews MississippiNews TexasNews