Abajian-Salon v. City of San Antonio: Reaffirming McDonnell Douglas at Summary Judgment and Enforcing Appellate Waiver of Unbriefed/Unpleaded Title VII Theories

1. Introduction

In Abajian-Salon v. City of San Antonio (5th Cir. Feb. 5, 2026) (per curiam) (unpublished), the Fifth Circuit affirmed summary judgment for the City of San Antonio on a former probationary police officer’s Title VII discrimination suit. The plaintiff, Lucy Abajian-Salon, alleged that the City terminated her because of protected characteristics (including national origin and sex). The City responded that she was terminated during her probationary period due to an off-duty neighborhood confrontation that Internal Affairs concluded violated SAPD conduct rules.

The appeal centered on two practical gatekeeping issues—what claims are preserved for appellate review and what evidence suffices to show pretext under the familiar burden-shifting framework—along with an explicit reaffirmation that the Fifth Circuit continues to apply McDonnell Douglas Corporation v. Green at the summary-judgment stage, notwithstanding arguments inspired by the D.C. Circuit’s approach in Brady v. Office of Sergeant at Arms.

2. Summary of the Opinion

  • Abandonment/waiver: The court held Abajian-Salon abandoned (by not pressing on appeal) her Texas Labor Code claims, her claims under § 1981, and her Title VII age- and race-discrimination claims. It also refused to entertain retaliation, because it was not pleaded and was raised (at most) only for the first time on appeal.
  • Merits (Title VII national origin and sex): Assuming a prima facie case, the City articulated a legitimate, non-discriminatory reason—her conduct during the “Incident” and the Internal Affairs findings that such conduct violated SAPD rules. The plaintiff failed to raise a genuine dispute of material fact that this reason was pretextual.
  • Result: The Fifth Circuit affirmed summary judgment and dismissal with prejudice.

3. Analysis

A. Precedents Cited

The panel’s reasoning is built from well-established Fifth Circuit and Supreme Court doctrine, deployed in three clusters: (i) standards of review and summary judgment; (ii) preservation/waiver rules on appeal; and (iii) the Title VII evidentiary framework.

1) Summary judgment and appellate review

  • Hagen v. Aetna Ins. Co., 808 F.3d 1022, 1026 (5th Cir. 2015): Cited for the de novo standard of review of summary judgment—an anchor that frames the Fifth Circuit’s independent review of the record.
  • Badgerow v. REJ Props., Inc., 974 F.3d 610, 616 (5th Cir. 2020): Used to define when a “genuine dispute of material fact” exists (i.e., evidence permitting a reasonable jury to return a verdict for the nonmovant).
  • Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010): Reinforces that all facts and inferences are construed in the nonmovant’s favor at summary judgment.

2) Appellate abandonment and waiver

  • Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987), and Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (per curiam): Together support the panel’s holding that issues not meaningfully asserted on appeal are abandoned and will not be raised by the court. This provided the doctrinal basis to dispose of multiple categories of claims without reaching their merits.
  • LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007): Cited for the rule that arguments not raised before the district court are waived and cannot be raised for the first time on appeal. This authority underpins the panel’s refusal to entertain a retaliation theory not pleaded in the complaint.

3) Title VII proof structure and evidentiary categories

  • McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973): Supplies the three-step burden-shifting framework for circumstantial-evidence Title VII claims.
  • McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007) (per curiam), abrogated on other grounds by, Hamilton v. Dall. Cnty., 79 F.4th 494 (5th Cir. 2023) (en banc): Cited for the Fifth Circuit’s articulation of the McDonnell Douglas steps, including the employer’s “production” (not persuasion) burden at step two. The panel noted the limited abrogation to show continued vitality of the burden-shifting account it relied on.
  • Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981): Provides the pretext step: the plaintiff must show the employer’s stated reason was not the true reason but a pretext for discrimination.
  • Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017): Clarifies the summary-judgment framing: the question is whether the plaintiff raises a genuine issue of fact regarding pretext, not whether pretext is definitively proven at that stage.
  • Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995): Emphasizes that courts do not second-guess whether the employer’s decision was correct; they examine whether it was motivated by discrimination. This principle supported affirmance even if the plaintiff disputed the investigation’s quality or conclusions.
  • Palacios v. City of Crystal City, 634 F. App'x 399, 402 (5th Cir. 2015) (per curiam), and Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897–98 (5th Cir. 2002): Define “direct evidence” versus “circumstantial evidence,” justifying the court’s use of McDonnell Douglas.
  • Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983), Hague v. Univ. of Tex. Health Sci. Ctr. at S.A., 560 F. App'x 328, 335 (5th Cir. 2014), and Stallworth v. Singing River Health Sys., 469 F. App'x 369, 372 (5th Cir. 2012) (per curiam): This chain of authority addresses an attempted doctrinal detour—whether McDonnell Douglas should drop out at summary judgment. The panel reaffirmed the Fifth Circuit’s rejection of Brady, cabined Aikens to trials on the merits (consistent with Hague), and relied on the Supreme Court’s actual decision in Ames to confirm McDonnell Douglas remains applicable.
  • Sreeram v. La. State Univ. Med. Ctr.-Shreveport, 188 F.3d 314, 320–21 (5th Cir. 1999): Cited to support the court’s statement that it has historically used “national origin” and “ethnicity” interchangeably in the Title VII context.

B. Legal Reasoning

1) Narrowing the appeal through abandonment and waiver

The court first reduced the case to its litigable core by applying strict preservation rules. Under Brinkmann v. Dall. Cnty. Deputy Sheriff Abner and Davis v. Maggio, claims not pressed on appeal are abandoned. This eliminated the Texas Labor Code claims, § 1981 claims, and Title VII age and race theories. Under LeMaire v. La. Dep't of Transp. & Dev., the court refused to consider retaliation because the complaint never pleaded it and the argument surfaced only in appellate briefing.

Practically, this portion of the opinion underscores that Title VII litigation is not only about evidence, but about disciplined issue selection: the Fifth Circuit will not reconstruct claims that a litigant has not properly pleaded, preserved, and briefed.

2) Confirming the governing framework: McDonnell Douglas still applies at summary judgment

The plaintiff urged the court to anticipate a shift away from McDonnell Douglas, pointing to the D.C. Circuit’s Brady v. Office of Sergeant at Arms and the Supreme Court’s earlier language in United States Postal Service Board of Governors v. Aikens. The panel rejected that invitation by invoking Fifth Circuit precedent (Stallworth v. Singing River Health Sys.; Hague v. Univ. of Tex. Health Sci. Ctr. at S.A.) and by observing that the Supreme Court in Ames v. Ohio Department of Youth Services ultimately applied, rather than displaced, the McDonnell Douglas structure.

The result is a clear operational rule for Fifth Circuit practitioners: in circumstantial-evidence Title VII cases at the summary-judgment stage, McDonnell Douglas remains the governing analytic framework.

3) Application to pretext: disputing the investigation was not enough

The district court assumed (despite reservations about “similarly situated” comparators) that the plaintiff made a prima facie case. The City then satisfied step two by articulating a legitimate, non-discriminatory reason: the off-duty “Incident” and the Internal Affairs conclusion that her conduct violated SAPD rules requiring members to avoid behavior that brings “reproach or discredit.”

At step three, the panel held the plaintiff failed to raise a genuine fact issue of pretext under Tex. Dep't of Cmty. Affs. v. Burdine and Caldwell v. KHOU-TV. Three points were decisive:

  1. Mischaracterization of the termination rationale: The plaintiff attempted to recast the termination as premised on a criminal case. The panel credited the Chief’s testimony that the termination was “about her actions,” consistent with SAPD conduct rules, not contingent on a criminal prosecution.
  2. Conditional testimony was not an admission of wrongful termination: The Chief’s statement that he would not terminate without sufficient proof, and that termination would be wrongful if she were not involved, did not create a pretext issue because he also testified he believed she was involved and that he had sufficient basis during probation.
  3. Probationary discretion and adequacy of the Internal Affairs basis: Even accepting criticism of the investigation’s thoroughness, the record reflected an Internal Affairs result supporting termination; moreover, the cited Collective Bargaining Agreement authorized discipline or discharge of probationary officers “without written notice and/or without cause” at the Chief’s discretion. Under Mayberry v. Vought Aircraft Co., the court’s focus remained on motive, not on whether the decision was optimal or the investigation perfect.

The sex-discrimination claim failed for a simpler reason: the plaintiff incorporated prior arguments by reference and offered no distinct basis to infer sex-based motive, so it fell with the national-origin claim on the same pretext analysis.

C. Impact

Although the opinion is “not designated for publication” and thus lacks precedential force under Fifth Circuit rules, it has practical significance in at least four ways:

  • Appellate practice discipline: The decision reinforces that unbriefed issues are abandoned and that new theories (like retaliation) cannot be introduced on appeal. This is especially consequential in employment cases that often involve multiple overlapping statutory theories.
  • Framework stability after Ames: The panel treats Ames v. Ohio Department of Youth Services as confirming, not disrupting, continued reliance on McDonnell DouglasBrady
  • Pretext requires evidence of discriminatory motive, not merely disagreement: A plaintiff’s contention that an investigation was weak, or that a criminal charge did not proceed, will not alone create a pretext issue where decisionmakers testify credibly (and consistently with records) that termination rested on conduct.
  • Probationary employment context matters: Where an employer retains broad discretion to terminate probationary personnel, a plaintiff’s pretext showing may need to be correspondingly stronger—focused on comparators and discriminatory statements or patterns—rather than procedural quibbles.

4. Complex Concepts Simplified

Summary judgment (Fed. R. Civ. P. 56)
A pretrial ruling that ends the case if there is no genuine dispute over material facts and the moving party is entitled to judgment as a matter of law. The court does not decide who is “more believable”; it asks whether a reasonable jury could rule for the nonmovant.
Direct vs. circumstantial evidence
Direct evidence proves discrimination without inference (e.g., an explicit statement tying termination to national origin). Circumstantial evidence requires inference (e.g., comparators allegedly treated better). The court found only circumstantial evidence here, so McDonnell Douglas applied.
The McDonnell Douglas framework
Step 1: plaintiff makes a basic (prima facie) showing suggesting discrimination. Step 2: employer produces a legitimate, non-discriminatory reason. Step 3: plaintiff shows that reason is pretext—i.e., not the real reason—and that discrimination was the actual motive.
Pretext
Not simply that the employer was wrong, unfair, or sloppy; it is evidence suggesting the stated reason is a cover for discrimination. Here, the court held the plaintiff did not raise a fact issue that the City’s conduct-based rationale was a cover for national-origin or sex discrimination.
Abandonment and waiver
Abandonment occurs when a party does not meaningfully argue a claim on appeal. Waiver occurs when a party did not raise an argument in the district court. The court applied both to narrow the case dramatically.

5. Conclusion

Abajian-Salon v. City of San Antonio is a procedural-and-evidentiary affirmance that highlights the Fifth Circuit’s insistence on (1) strict claim preservation on appeal and (2) a concrete, evidence-based showing of pretext under the McDonnell Douglas framework. The panel rejected any suggestion that McDonnell Douglas has been displaced at summary judgment, pointing to the Supreme Court’s application of that test in Ames v. Ohio Department of Youth Services and to Fifth Circuit precedent rejecting Brady v. Office of Sergeant at Arms. On the merits, the plaintiff’s challenges to how the incident was characterized and investigated did not generate a triable issue that the City’s stated reason for termination—off-duty conduct violating departmental expectations—masked discrimination based on national origin or sex.