Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—S.D. Tex.: Marketing manager’s allegations of intimidating atmosphere not enough to support bias claim, (Aug 11, 2026)

By Nicholas Kaster, J.D.

Threats of termination, unfair criticism, and the absence of praise were not themselves discrimination with respect to the employee’s terms, conditions, or privileges of employment.

Granting summary judgment against the Title VII claims brought by a marketing manager of an online travel agency, a federal district court in Texas found her general allegations that there was an atmosphere of intimidation and fear were insufficient to establish sex discrimination and she failed to produce evidence that she was treated differently than her male comparator. Because she failed to produce enough evidence to allow a jury to infer that the actual reason for her termination was discriminatory, the court also granted the employer summary judgment on her retaliation claim (LaKemper v. Hopper (USA) Inc., No. H-25-2881 (S.D. Tex. Aug. 5, 2026)).

The marketing manager for an online travel agency alleged that her supervisor frequently treated her and female coworkers worse than the supervisor treated a male coworker. She alleged that the supervisor refused to reimburse her expenses, credited the male employee’s contributions more than similar ones that she and her female coworkers made, attempted to avoid paying her bonuses and commissions, and joked about her losing her job.

In August 2022, the employee and her female coworkers complained about the supervisor to HR. In late October 2022, the employer reorganized its sales team and transferred the employee to a new supervisor.

Performance metrics. The employer used different and varying metrics to track the success of its employees. For the first quarter of 2022, the employee did not achieve a success level on any of the categories, and she did not receive a quarterly bonus. Subsequently she achieved some of her targets and received bonuses. The new supervisor eventually terminated her in 2023 for failing to meet performance metrics.

The employee sued, asserting claims for sex discrimination and retaliation under Title VII. The employer moved for summary judgment on both claims.

Sex discrimination claim. The employee alleged that her former supervisor treated her male coworker more favorably than her and her female colleagues with respect to reimbursements, bonuses, and termination. The court found three problems with this claim. First, said the court, threats of termination, unfair criticism, and the absence of praise, are not themselves discrimination with respect to an employee’s “terms, conditions, or privileges of employment.” Harassment and comments at work “must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.”

Atmosphere of intimidation. The employee testified generally that there was an atmosphere of intimidation and fear. This evidence was not sufficient to establish sex discrimination, said the court. The work environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.”

Moreover, said the court, there was no evidence that the allegedly discriminatory threats or comments materially impacted the employee’s work performance. She was consistently toward the bottom of the employer’s performance metrics. Also, the employer remedied the employee’s claims about threats of termination, unfair criticism, and her generalized fears through the reorganization and transfer.

Comparator treatment. The employee failed to provide evidence showing that she was treated differently than her male comparator with respect to reimbursements, bonuses, or other tangible terms and conditions of her employment. Without deposition testimony from that the male comparator or business records from the employer showing his reimbursements and bonuses, there was no way to determine whether the employee and the male comparator were so similarly situated that disparate treatment created an inference of sex discrimination.

Finally, the court noted that the former supervisor was the only individual alleged to have treated the employee unfairly because of her sex, and he was not involved in her termination.

Accordingly, the court held that the employer was entitled to summary judgment on the sex discrimination claim.

Retaliation claim. The core of the employee’s retaliation claim was that she was terminated after she engaged in protected activity by filing a complaint about her former supervisor’s discriminatory behavior. But the court found that her claim started from a weak factual position because of the length of time between her complaint about her former supervisor and her termination. She went to HR in August 2022, the investigation concluded in mid-October 2022, and she was terminated in May 2023. That is a substantial lapse that by itself was “insufficient to show a causal link,” said the court.

In addition, there was no evidence that her new supervisor knew of her complaints about the former supervisor. The new supervisor issued a scathing review of the employee’s performance, in which she recommended terminating her.

There was no dispute that the employer constantly changed its performance metrics. But there was also no dispute that the employer constantly changed its metrics for everyone. Whether or not it was wise for the employer to constantly change its metrics was irrelevant, said the court, because Title VII does not condemn poor business judgments. Because the employer’s metrics changed for everyone, it did not create an inference that the employer retaliated against the employee, the court concluded.

There was no evidence in the record that the employee’s performance was so strong that the employer’s decision to fire her on her new supervisor’s review was a pretext for retaliation.

Because the burden to prove the “ultimate question” of intentional discrimination rested with the employee and because she did not submit or identify enough evidence to allow a jury to infer that the actual reason for her termination was discriminatory, the court granted summary judgment on the retaliation claim.

The case is No. H-25-2881.

Judge: Rosenthal, L.

Attorneys: Melissa Moore (Moore & Associates) for Elizabeth Lakemper. Carolyn A. Russell (Ogletree Deakins) for Hopper [USA] Inc.

Companies: Hopper (USA) Inc.

Cases: SexDiscrimination Discrimination Discharge Retaliation TexasNews