Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—E.D. Tex.: Longtime Dow analyst wins discovery fight in age discrimination case, (May 19, 2026)

By Kathleen Kapusta, J.D.

The court, granting the employee’s motion to compel, rejected Dow’s claim a PowerPoint displayed during the termination meeting was subject to the attorney-client privilege.

A long-tenured Dow Chemical Company employee with an allegedly sterling record, who was given a Last Chance Letter after purportedly committing two back-to-back serious infractions and then terminated three months later for violating the letter, is entitled to the production of requested data sheets from the night of her first alleged infraction, a federal district court in Texas ruled, finding the information contained in the sheets could reasonably lead to the discovery of evidence relevant to her age discrimination claim or Dow’s defenses. The court, granting her motion to compel, also found the attorney-client privilege did not apply to a PowerPoint presentation displayed during the meeting that led to her termination (Oubre v. Dow Chemical Co., No. 1:25-CV-188 (E.D. Tex. May 12, 2026)).

According to the employee, during her nearly 30 years of employment with Dow and its predecessor working with the plant’s Analytical Technician team, she received awards for her work, was continually commended for her performance, served on various leadership teams, and was annually among the highest wage earners due to her seniority and willingness to accommodate the plant’s overtime needs.

Last Chance Letter. Despite this, in November 2024, she received a Last Chance Letter informing her that she had committed a very serious infraction on October 2 that led to a $3,000 loss for the company as well as a second infraction on October 13. The letter, which was signed by her supervisor, stated that if any further misconduct occurred within the next 24 months, she could be terminated.

In late January 2025, her supervisor claimed the employee failed to perform an Analytical Work Request Caplin test, which the supervisor contended, violated the letter. During a subsequent Employment Review Meeting (ERM), the supervisor presented the ERM team, of which she was part, with records she believed supported the employee’s termination.

Retire or be fired. The employee was then required to attend a “neutral meeting” where she was told she was suspended and was escorted out of the plant. Several days later, she was again told to attend a neutral meeting within the hour. During that meeting, she was given the choice to retire or be terminated. Concerned about the loss of her accrued benefits, she retired.

Motion to compel. She subsequently sued for age discrimination in violation of the Texas Commission on Human Rights Act and ultimately moved to compel Dow to produce certain data sheets with photos for another group, the Log-In Group, for October 2 and 3, 2024 as well as the ERM file.

Data sheets. In support of her request for the data sheets, the employee argued they were relevant to the identification and veracity of Dow’s stated basis for firing her. According to the employee, Dow’s reason for terminating her were untruths and pretexts for age discrimination. Indeed, she argued, the data sheets and her supervisor’s deposition testimony showed that she performed the tests she was accused of not performing and Dow’s discovery responses revealed that her supervisor knew she performed those tests, even before the Last Chance Letter was written.

Because of this, she asserted, Dow’s stated basis for her termination changed throughout litigation and instead of maintaining that she did not perform the test, as was alleged in the Last Chance Letter, Dow now contended she caused delay by telling the operators that the test numbers could not be trusted. She also claimed the data sheets showed the Login group, not her group, was responsible for not running the tests.

Relevance. Although Dow countered that the date sheets pertain to other work groups with which the employee had no involvement and thus would not tend to show she faced unlawful age discrimination, the court found the requested documents were relevant. “Evidence that another group failed to run certain tests on the same night [the employee] was accused of not running the MI tests could be probative of disparate treatment and pretext, which [she] may be required to prove in order to prevail on her claim,” said the court, noting that if “similarly situated employees failed to complete their assigned tests but were not disciplined, that disparity supports an inference of discrimination by suggesting that [the employee] was treated differently for comparable conduct.”

Moreover, the court continued, evidence those employees were significantly younger than the employee would strengthen her age discrimination claim but if those employes were similarly disciplined, such evidence would undermine her claim that the stated reason for her termination was a pretext for age discrimination. Accordingly, the court found the information contained in the requested data sheets could reasonably lead to the discovery of evidence relevant to the employee’s claims or Dow’s defenses.

ERM file. Regarding the employee’s request for the ERM file displayed during the termination meeting, the court observed that her supervisor had, in preparation for the meeting, created the PowerPoint presentation containing evidence she believed supported the termination decision, including information regarding instances of alleged misconduct.

And while the employee contended that the ERM file was not covered by attorney-client privilege, as it was not turned over to legal and was created for review by the ERM team in the termination decision-making meeting, Dow countered that it was covered by the privilege because it was prepared for Dow’s legal counsel to provide advice regarding any proposed action relating to the employee’s employment.

Here, even though the supervisor and the other members of the ERM team may have intended that the PowerPoint be kept confidential and HR legal was present during the ERM, the court found it still could not conclude that the creation of the file was “for the primary purpose of securing either a legal opinion or legal services.”

Not only did a company representative testify that “the purpose [of the ERM] is to have a discussion” and to ensure that the decisions made during the meeting are “fair and equitable,” the supervisor created the PowerPoint to communicate to legal and non-legal members of the team the reasons supporting the termination decision. “Thus,” said the court, “it appears the primary purpose of the ERM, and the documents prepared in conjunction with the ERM, was business-related, as the participants were tasked with determining whether [the employee] should be disciplined or terminated.” That legal counsel may have been present during the meeting did not alone render all communications or documents prepared for the meeting protected by the privilege.

For all these reasons, the court granted the employee’s motion to compel.

The case is No. 1:25-CV-188.

Judge: Crone, M.

Attorneys: Tony Renard Taft (The Taft Law Firm) for Stephanie J. Oubre. Kevin Michael Jordan (Jordan, Lynch & Cancienne) for The Dow Chemical Co.

Companies: The Dow Chemical Company

Cases: EvidenceDiscovery AgeDiscrimination Discrimination Discharge TexasNews