Faulk v. Owens Corning: Fifth Circuit Clarifies Limits on Title VII Protected Activity and Comparator Evidence

1. Introduction

In Faulk v. Owens Corning Roofing and Asphalt, L.L.C., No. 25‑10356 (5th Cir. Dec. 18, 2025) (per curiam) (unpublished), the United States Court of Appeals for the Fifth Circuit affirmed summary judgment against a former employee asserting race discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

The decision is doctrinally significant in three main respects:

It reinforces the Fifth Circuit’s strict “nearly identical” comparator standard in Title VII disparate-treatment cases and shows how failure to properly develop comparator evidence can be fatal at summary judgment.
It sharply delineates the boundary of “protected activity” in retaliation claims: internal complaints that concern personal conflicts or jealousy, and are not framed (or reasonably understood) as complaints about race or another protected characteristic, are not protected under Title VII.
It reiterates that retaliation claims require proof that a decision-maker knew about the protected activity; temporal proximity alone cannot establish causation when the employer lacked such knowledge.

Against a background of troubling racial overtones — a supervisor’s reposted photograph containing a Confederate flag and a “WHITE POWER” text message exchange — the court nonetheless held that these facts did not create a jury issue on discrimination or retaliation absent evidence connecting them to the adverse employment decisions and to decision-makers.

2. Factual and Procedural Background

2.1 The Employment Relationship

Owens Corning operates a roofing materials manufacturing plant in Irving, Texas. Charles Faulk, an African-American employee, was hired in 2016 as a utility operator, promoted in 2017 to raw material coordinator driver, and trained in 2019 as an end-of-line driver. He worked primarily the night shift and frequently took overtime.

Michael Brown, a night-shift supervisor, oversaw Faulk when Faulk worked nights. Faulk asserted that Brown treated Black employees differently than White employees. During Faulk’s employment, Brown reposted on his personal Facebook account a Super Bowl–related photo in which a Confederate flag appeared on a wall in the background. Later, after Faulk’s termination, another employee texted Brown “WHITE POWER” along with a GIF; Brown replied, “No sir I’m not a racist,” and the co-worker responded “I’m kidding. Calm down.”

2.2 Revocation of Overtime Access

In February 2022, Faulk complained to human resources (HR) officer Rebecca Pike that Brown had “turned off” his ability to sign up for overtime shifts in the company’s scheduling system. In both his declaration and deposition, however, Faulk attributed Brown’s conduct to jealousy over Faulk’s new truck (with new rims and tires), not to race. Pike’s investigation confirmed that Brown had deactivated Faulk’s overtime eligibility for a particular role, purportedly because Brown believed Faulk was not qualified for that role. Pike testified that:

Brown’s action was unauthorized under company policy,
this was the first time she had known Brown to deactivate an employee’s overtime access, and
Faulk’s overtime access was restored after HR intervened.

2.3 Safety Incidents, Drug Test, and “Last Chance” Agreement

Owens Corning maintained a workplace substance policy prohibiting, among other things, the use of THC (the psychoactive component of marijuana). Random THC testing had been discontinued as of August 2021, but testing could occur:

on reasonable suspicion, or
as “post-incident” testing after an employee’s second safety-related incident (including “near misses”) within a 24‑month period.

On June 10 and June 12, 2022, Faulk experienced two safety-related “near misses.” Supervisor Hannah Schyllander reported these incidents to the environmental health and safety representative, Kennedy Reister. Pursuant to the policy, Reister directed that Faulk be drug tested. Faulk tested positive for marijuana.

On June 21, 2022, Faulk signed a “continued employment agreement” (essentially a last chance agreement), acknowledging that:

he had violated the company drug policy,
his continued employment was conditioned on compliance with all company policies and satisfactory performance, and
any failure to comply with the agreement would result in automatic termination and constitute “just cause” for discharge.

2.4 AirPods Violation and Termination

Less than a month later, on July 14, 2022, Owens Corning received two separate reports that Faulk was wearing Apple AirPods while operating a forklift. The company’s safety policy:

required use of authorized hearing protection devices, and
explicitly prohibited Bluetooth headphones and similar devices like AirPods.

On July 18, 2022, Owens Corning terminated Faulk’s employment for violating the safety policy (by using AirPods) after he had already violated the drug policy and signed the continued employment agreement.

Importantly, the record showed that:

Brown did not make, and was not consulted on, the termination decision;
Reister triggered the drug test after the two near-miss incidents; and
non-Brown employees reported Faulk’s AirPods violation.

At oral argument, Faulk’s counsel conceded that HR personnel such as Pike — not Brown — made the termination decision.

2.5 EEOC Charge and Litigation

Faulk filed an EEOC charge in October 2022, alleging race-based discrimination and retaliation. On January 30, 2023, he filed suit in the Northern District of Texas, asserting:

Title VII race discrimination based on (a) revocation of overtime access and (b) termination; and
Title VII retaliation based on (a) complaining to HR about overtime and (b) contacting the EEOC shortly before termination.

Owens Corning moved for summary judgment, attaching a voluminous record. Faulk opposed, filing a 1,042‑page, unnumbered appendix but largely failing to direct the court to specific record evidence. The district court:

held a hearing to identify the challenged actions and alleged comparators,
required late depositions of two witnesses Faulk had not disclosed during discovery (rather than striking their declarations outright),
nevertheless sifted through the record on its own, and
ultimately granted summary judgment for Owens Corning on all claims.

The district court held that Faulk failed to make out a prima facie case of either discrimination or retaliation and, in any event, could not show pretext in light of the admitted policy violations and absence of a link between Brown and the termination. Faulk appealed, arguing the district court:

applied an unduly strict comparator requirement,
weighed evidence and made credibility determinations, and
improperly rejected his circumstantial evidence of discriminatory and retaliatory motive.

3. Summary of the Fifth Circuit’s Opinion

Applying de novo review, the Fifth Circuit affirmed the district court’s grant of summary judgment in all respects.

On the discrimination claims, the court held:

The alleged revocation of overtime access was not actionable race discrimination because Faulk himself attributed it to Brown’s jealousy about Faulk’s truck, not to race. Title VII does not reach harassment or adverse treatment that is not motivated by protected-class status.
The termination-based discrimination claim failed because Faulk:
- did not identify any similarly situated comparators under the Fifth Circuit’s strict “nearly identical” standard, and
- could not rebut Owens Corning’s legitimate, non-discriminatory reason for termination — his admitted marijuana use (leading to a last chance agreement) and his subsequent AirPods violation in contravention of safety policy.

On the retaliation claims, the court held:

Faulk’s complaint to HR about his overtime was not a “protected activity” under Title VII because, by his own account, it concerned Brown’s personal jealousy, not race or any other protected status.
Faulk’s communications with the EEOC were protected, but he failed the causation element because there was no evidence that any decision-maker knew of his EEOC contact at the time of termination, an essential requirement for a causal link.

Finally, the court rejected Faulk’s contention that the district court improperly weighed evidence or made credibility determinations. Even accepting all of Faulk’s testimony at face value, the court concluded, he could not satisfy the prima facie requirements or show pretext or causation.

4. Detailed Analysis

4.1 Legal Framework: McDonnell Douglas and Ames

The court analyzed Faulk’s Title VII discrimination and retaliation claims under the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden‑shifting framework, as clarified by recent cases including Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025).

4.1.1 Discrimination: Prima Facie Case and Burden Shifting

For a race-based disparate treatment claim, the plaintiff must establish a prima facie case by showing:

Membership in a protected class (here, race);
Qualification for the position at issue;
Subjection to an adverse employment action; and
Being treated less favorably than similarly situated employees outside the protected class under “nearly identical” circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009).

If the plaintiff meets this burden, an inference of discrimination arises and:

the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action; and
if the employer does so, the burden shifts back to the plaintiff to show that the stated reason is pretextual (that is, that it is false and that discrimination was the real reason). McDonnell Douglas; Ames, 605 U.S. at 308–09.

The Fifth Circuit quoted Ames and Burdine for the proposition that a plaintiff “may succeed either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

4.1.2 Retaliation: Prima Facie Case and Causation

Retaliation under Title VII follows a similar burden-shifting pattern, but the prima facie elements differ:

The plaintiff engaged in “protected activity”;
The employer took a materially adverse action; and
A causal connection exists between the protected activity and the adverse action. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008).

“Protected activity” means opposing or complaining about practices rendered unlawful by Title VII or participating in formal processes such as an EEOC charge. Lewis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 134 F.4th 286, 295 (5th Cir. 2025); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003). Critically, the complaint must be about discrimination based on race, color, religion, sex, or national origin. Allen v. Envirogreen Landscape Pros., Inc., 721 F. App’x 322, 327 (5th Cir. 2017).

For causation, the Fifth Circuit reiterated that “the evidence must demonstrate that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity.” Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001); see also Tureaud v. Grambling State Univ., 294 F. App’x 909, 914 (5th Cir. 2008). If the decision-maker was unaware of the protected activity, causation cannot be established.

4.2 Discrimination: Revocation of Overtime and Termination

4.2.1 Revocation of Overtime Access

Faulk claimed that Brown’s revocation of his ability to sign up for certain overtime shifts was discriminatory. The Fifth Circuit never reached the comparator or pretext stages for this claim because it failed at the most basic level: Faulk’s own account of the motive.

Faulk repeatedly testified — both to HR (Pike) and in his deposition — that Brown turned off his overtime opportunities because Brown was jealous of Faulk’s new truck and perceived that Faulk was getting “too much overtime.” Pike similarly testified that Faulk complained about Brown copying him and having the same type of vehicle, leading to interpersonal friction.

The court relied on Eaton-Stephens v. Grapevine Colleyville I.S.D., 715 F. App’x 351, 356 (5th Cir. 2017) (per curiam), and Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002), for the proposition that:

Poor treatment without more is not sufficient to show harassment based on race, even if the plaintiff believes race to be the motivating factor.

Because Faulk affirmatively attributed the overtime revocation to a non-racial, personal motive (jealousy about a vehicle) and never reported it to HR as race-based discrimination, the court held that:

the overtime revocation was not “because of race,” and
thus, it could not support a Title VII discrimination claim, even if it were unfair or unauthorized under company policy.

This underscores a key lesson: plaintiffs must tie alleged adverse actions to their protected status; otherwise, the conduct, no matter how unfair, falls outside Title VII’s scope.

4.2.2 Termination: Comparator Evidence and “Nearly Identical” Standard

For the termination-based discrimination claim, Faulk argued that:

the McDonnell Douglas framework is “not rigid,” and
he could satisfy the fourth prima facie element (less favorable treatment than non-protected employees) without strict comparator evidence.

In practice, however, his argument turned largely on alleged comparators:

Zach Probst, a White employee; and
Ivan Villegas, a Hispanic employee who was allegedly a supervisor whose boss was his father.

The Fifth Circuit, applying Lee v. Kansas City S. Ry. Co., reiterated that comparators must be similarly situated under “nearly identical” circumstances, meaning:

same job or responsibilities,
same supervisor or decision-maker, and
essentially comparable violation histories.

Any “material difference” in conduct that explains differential discipline defeats comparator status. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).

The court faulted Faulk for:

failing to provide record citations or factual detail in his appellate briefing regarding Probst and Villegas’s positions, supervisors, and disciplinary histories, and
forcing both the district court and appellate court to “hunt for truffles” in a massive, poorly organized, largely uncited appendix. United States v. del Carpio Frescas, 932 F.3d 324, 331 (5th Cir. 2019).

Even after independently reviewing the record, the court found insufficient evidence that either Probst or Villegas was similarly situated to Faulk in terms of:

job duties,
shared supervisor (especially given Villegas’s father’s role), and
comparable violations (Faulk had a positive drug test plus a post-agreement safety violation).

The court also noted that Faulk was replaced by someone in his same protected class — another Black employee — which, while not dispositive, is inconsistent with an inference that race motivated the termination.

Accordingly, Faulk failed to carry his burden on the fourth prima facie element regarding termination.

4.2.3 Legitimate Reason and Pretext: Admissions and Lack of Link to Brown

The Fifth Circuit assumed, arguendo, that Faulk might have established a prima facie case via some non-comparator evidence, but held that the claim would still fail at the pretext stage.

Owens Corning articulated a legitimate, non-discriminatory reason for terminating Faulk:

his positive marijuana test after two safety-related incidents, leading to a continued employment (last chance) agreement; and
his subsequent violation of the safety policy by wearing prohibited AirPods while operating a forklift, in direct contravention of that agreement.

The court highlighted two decisive points in rejecting pretext:

Faulk’s own admissions. In deposition, Faulk admitted that he:
- used marijuana during his employment,
- tested positive and was not surprised by the result given his consumption levels,
- understood that he could have been terminated immediately for the drug violation, and
- signed a last chance agreement mandating compliance with all company policies.
He further admitted that he wore AirPods at the plant in violation of the hearing protection policy. On these facts, even crediting Faulk’s testimony entirely, the undisputed violations themselves justified termination under company policy.
Absence of involvement by the allegedly biased supervisor. The record showed that:
- Reister (environmental health and safety) ordered the drug test based on Faulk’s two near misses;
- two non-Brown employees reported the AirPods use; and
- HR officials, such as Pike, made the termination decision.
There was no evidence that Brown participated in, influenced, or even recommended termination.

This combination — clear policy violations plus the structural separation between Brown and the decision-makers — effectively foreclosed any cat’s-paw argument (where a biased supervisor’s influence taints an otherwise neutral decision-maker). Without evidence that Brown’s alleged bias proximately caused the termination, the court held that Faulk could not show that Owens Corning’s stated reason was a pretext for race discrimination.

4.3 Retaliation: Internal Complaint and EEOC Contact

4.3.1 Internal Complaint About Overtime: Not “Protected Activity”

Faulk argued that his February 2022 complaint to HR about Brown revoking overtime access was protected activity, and that “within weeks” he was drug tested, written up, and later terminated, suggesting retaliatory motive.

The Fifth Circuit rejected this at the first prima facie step: whether the internal complaint was protected activity.

Relying on Lewis, Ackel, and Allen, the court emphasized that Title VII protects opposition to unlawful discriminatory acts — i.e., conduct that the employee reasonably believes is discrimination based on race, color, religion, sex, or national origin. General complaints of unfair treatment, personal disputes, or workplace friction are not protected.

Here, Faulk’s own testimony — and Pike’s — showed that his overtime complaint was framed entirely as jealousy about a truck and perception that Brown was “copying” him, not as race-based discrimination. As the court put it, “harassment motivated by something other than a plaintiff’s membership in a protected class lies beyond the scope of Title VII.” Stingley v. Watson Quality Ford, 836 F. App’x 286, 289 (5th Cir. 2020).

Because the internal complaint did not concern a Title VII-qualifying issue, it was not protected activity, and the retaliation claim based on that complaint failed as a matter of law.

4.3.2 EEOC Contact: No Causation Without Employer Knowledge

Faulk also argued that he contacted the EEOC “just a week before he was fired,” and that this temporal proximity supported an inference of retaliation.

The Fifth Circuit agreed that filing an EEOC charge is protected activity. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 439 (5th Cir. 2005). However, the court focused on the third prima facie element: causation.

Under Medina and Tureaud, causation requires proof that the decision-maker knew of the protected activity at the time of the adverse action. If HR and relevant managers were unaware of the EEOC contact when they decided to terminate the employee, the protected activity could not have influenced the decision.

Faulk testified that:

he did not inform Brown, Pike, or any Owens Corning decision-maker about his EEOC meetings, and
he only told a co-worker (the person who told him about the EEOC as a resource).

The court found no evidence that the co-worker conveyed this information to any decision-maker, or that the company otherwise knew about the EEOC contact before the termination.

Without such knowledge, the court held, there could be no causal connection between the protected activity and the termination, regardless of timing. Temporal proximity alone is insufficient where the employer did not know of the protected activity.

4.4 Precedents Cited and Their Influence on the Decision

4.4.1 Summary Judgment Standard: Anderson and Fifth Circuit Authority

The court invoked Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986), for the familiar rule that summary judgment is proper when there is no “genuine dispute as to any material fact,” meaning:

the disputed fact could affect the outcome, and
a reasonable jury could return a verdict for the nonmovant.

The Fifth Circuit reiterated that “the mere existence of some alleged factual dispute” is insufficient if it does not raise a triable issue on the elements of the claim. The court cited Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020), and Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016), for its de novo review standard.

4.4.2 Comparator Standard: Lee and Wallace

Lee and Wallace structured the court’s view of “similarly situated” comparators. These precedents:

create a stringent “nearly identical” comparator requirement,
require same or very similar job duties and supervisors, and
emphasize comparable disciplinary histories and underlying conduct.

Wallace in particular supports the principle that when a “difference between the plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment,” the employees are not similarly situated.

These precedents gave the court a clear basis to reject Probst and Villegas as inadequate comparators and to underscore that vague references to others’ discipline, without specifics about roles, supervisors, and violation histories, will not satisfy the fourth element of a prima facie case.

4.4.3 “Poor Treatment” Not Equal to Discrimination: Eaton-Stephens, Ramsey, and Waggoner

The court used Eaton-Stephens and Ramsey to draw a firm line between:

general mistreatment or hostility, and
mistreatment “because of” a protected class (here, race).

Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993), further supports the proposition that even if a supervisor dislikes an employee, that dislike is irrelevant to a discrimination claim unless there is evidence connecting the dislike to the plaintiff’s protected status.

These cases heavily influenced the court’s treatment of:

Faulk’s “truck jealousy” theory of Brown’s conduct; and
the Confederate flag Facebook photo and “WHITE POWER” text, which, while “alarming,” were insufficient to prove discriminatory motive in the absence of a direct causal connection to the challenged adverse actions.

4.4.4 Retaliation and Knowledge: Aryain, Lewis, Allen, Medina, and Tureaud

On retaliation, the court stitched together several precedents:

Aryain for the three-element prima facie test;
Lewis, Ackel, and Allen for the requirement that protected activity relate to discrimination based on a protected characteristic;
Medina and Tureaud for the need to show that decision-makers knew of the protected activity.

These cases collectively provided the framework to:

deny protected status to Faulk’s internal complaint about overtime, which was not framed as race-based; and
reject causation for his EEOC-based retaliation claim due to the employer’s lack of knowledge.

4.5 Treatment of Background Racial Evidence

The opinion acknowledged several pieces of evidence suggesting racial tension or at least insensitivity:

Brown’s Facebook repost including a photo where a Confederate flag appears in the background; and
the “WHITE POWER” text (with a GIF) from another employee to Brown, sent after Faulk’s termination, to which Brown responded, “No sir I’m not a racist.”

The court called the “WHITE POWER” text “alarming, to say the least,” and recognized that some evidence suggested Brown did not like Faulk. But, consistent with Waggoner and Eaton-Stephens, the court held that:

dislike, even if harsh, is not actionable unless connected to race or another protected trait;
social-media content or casual texts can show racial animus, but they must be tied, temporally and causally, to the adverse employment action and to the decision-maker; and
here, Brown was not the decision-maker for the termination, and the adverse actions that triggered discipline (drug use and AirPods) were both undisputed, policy-based violations.

Thus, while this evidence may suggest a problematic workplace culture or poor judgment by some individuals, it did not, in the court’s view, create a triable issue of race-based discrimination or retaliation as to the specific decisions challenged in the lawsuit.

4.6 Procedural and Litigation-Strategy Lessons

The Fifth Circuit’s discussion contains important implicit guidance for litigants:

Record management and citation. The district court noted that Faulk’s 1,042‑page, unnumbered appendix could have been stricken altogether. Instead, the court exerted considerable effort to comb through it. The Fifth Circuit quoted the “judges are not pigs, hunting for truffles” line to emphasize that courts expect:
- numbered, organized appendices, and
- clear record citations tied to each factual assertion.
Failure to do so can be outcome-determinative where crucial comparator or causation evidence is buried or uncited.
Discovery compliance. The district court ordered depositions of two declarants Faulk had not disclosed during discovery, rather than striking them, but that was an act of leniency. The opinion implies that non-disclosure of key witnesses can seriously compromise a case.
Consistency of theory. Faulk’s own statements — attributing the overtime revocation to jealousy, admitting extensive marijuana use, acknowledging the last chance agreement, and conceding AirPods usage — significantly undercut his legal theories. Employees and counsel must ensure that internal complaints, EEOC charges, and deposition testimony are consistent with a legally cognizable theory of discrimination or retaliation.

5. Complex Concepts Simplified

5.1 Title VII Discrimination (Disparate Treatment)

Title VII makes it unlawful for an employer to take adverse actions (like firing or demoting) against an employee because of the employee’s race, color, religion, sex, or national origin. To prove this, a plaintiff typically must:

Show they are in a protected group (e.g., Black, female, etc.);
Show they were qualified for the job and suffered a negative action (like termination or loss of overtime opportunities);
Show that other, similarly-situated employees outside their group were treated better in nearly identical situations; and
Counter the employer’s explanation by showing it is false or a cover for discrimination.

5.2 “Prima Facie Case”

A “prima facie case” is the basic set of facts that, if assumed true, are enough to create an initial inference of discrimination or retaliation. It does not win the case by itself but shifts the burden of production to the employer to give a non-discriminatory or non-retaliatory reason for what happened.

5.3 “Comparator” and “Nearly Identical” Standard

A “comparator” is another employee who:

is similar to the plaintiff in job position and responsibilities,
had the same supervisor or decision-maker, and
engaged in similar misconduct or performance issues.

Under Fifth Circuit law, these circumstances must be “nearly identical” to count, meaning that minor differences can defeat comparator status if they plausibly explain why the discipline was different.

5.4 “Protected Activity” in Retaliation Claims

“Protected activity” includes:

complaining to HR or management about discrimination or harassment because of race, sex, etc.;
filing an EEOC charge; or
participating in an investigation, hearing, or lawsuit related to Title VII violations.

Complaints about general unfairness, personality conflicts, favoritism, or jealousy — without a connection to a protected characteristic — are not protected activity under Title VII.

5.5 Causation and Employer Knowledge in Retaliation

A retaliation claim requires a causal link between the protected activity and the adverse action. This means:

someone involved in the decision must have known about the protected activity; and
the protected activity must have influenced the decision at least in part.

If HR or the relevant manager did not know that the employee had gone to the EEOC when they decided to terminate, the firing cannot legally be said to be “because of” the EEOC activity.

5.6 Pretext

“Pretext” is the legal term for an employer’s stated reason that is:

not true (factually incorrect), and
used as a cover for discrimination or retaliation.

To show pretext, a plaintiff must offer evidence that:

undermines the employer’s explanation (e.g., similarly situated employees were not disciplined for the same conduct), or
suggests a more likely discriminatory or retaliatory motive (e.g., biased comments by decision-makers, inconsistent explanations, departures from policy without reason).

6. Likely Impact and Broader Significance

6.1 Reaffirmation of the Fifth Circuit’s Strict Comparator Approach

Faulk reinforces that the Fifth Circuit remains one of the more demanding circuits in terms of comparator evidence. Although the court acknowledged that comparator evidence is “not the only way” to satisfy the fourth McDonnell Douglas element, its analysis:

placed heavy weight on the absence of proper comparators, and
illustrated how a failure to develop and clearly present comparator evidence will often end a case at summary judgment.

Future plaintiffs in the Fifth Circuit should expect courts to:

closely scrutinize whether alleged comparators truly shared the same job, supervisor, and violation history; and
reject vaguely described or poorly documented comparators as insufficient.

6.2 Narrow Construction of Protected Activity

The decision draws a bright line for retaliation claims: unless an internal complaint is reasonably understood as alleging discrimination or harassment because of a protected characteristic, it is not Title VII-protected.

Practically, this means that:

employees should explicitly reference discrimination (e.g., race discrimination, sex discrimination) when they believe that is the root cause of mistreatment; and
lawyers should carefully distinguish between retaliation claims based on anti-discrimination complaints and those based on more general grievances.

6.3 Emphasis on Decision-Maker Knowledge and Causation

Faulk highlights that temporal proximity — even a few days or a week — cannot sustain a retaliation claim absent proof that:

decision-makers knew of the protected activity at the time; and
the protected activity factored into their decision.

This is a significant constraint on retaliation claims, especially where employees file EEOC charges or make internal complaints confidentially or without informing supervisors and HR. Plaintiffs must be able to show, with admissible evidence, that decision-makers were aware of the protected activity, not just that the two events occurred close in time.

6.4 Handling “Background” Evidence of Bias

The opinion illustrates the limitations of using background evidence such as:

social-media posts with racially charged imagery (e.g., Confederate flags); and
racially provocative text messages (“WHITE POWER”).

While potentially powerful in some factual settings, such evidence will not, standing alone, overcome:

undisputed, legitimate reasons for discipline (e.g., admitted drug use plus clear safety violations), and
a demonstrated separation between the allegedly biased individual and the ultimate decision-maker.

This reinforces the need for plaintiffs to connect bias evidence directly to the challenged employment decision, whether through cat’s-paw theory or otherwise.

6.5 Litigation and HR Best Practices

For employers:

Document policy violations (safety incidents, drug tests) and resulting discipline thoroughly.
Ensure that disciplinary decisions are made by those who can be shown to have clear, non-discriminatory rationales and who have not made biased statements.
Train supervisors and employees to avoid racially charged symbols and language that can become evidence in later litigation, even if not ultimately determinative.

For employees and plaintiffs’ counsel:

Frame internal complaints clearly as involving discrimination if that is the contention; vague complaints about “unfairness” may not be protected.
Identify and develop comparator evidence early — including precise job titles, supervisors, and violation histories — and present it in a clear, cited record.
Anticipate that admissions (e.g., drug use, safety-policy violations) will sharply limit discrimination and retaliation theories and focus arguments on pretext or mismatched discipline where possible.

7. Conclusion

Faulk v. Owens Corning is an unpublished but instructive Fifth Circuit decision that:

reaffirms the strict “nearly identical” comparator standard in Title VII disparate treatment cases;
clarifies that internal complaints must relate to protected characteristics to qualify as “protected activity” in retaliation claims;
emphasizes that retaliation requires proof that decision-makers knew of the protected activity; and
demonstrates how admitted policy violations and non-involvement of the allegedly biased supervisor can defeat discrimination claims even in the presence of troubling background racial evidence.

The case underscores a fundamental theme in Title VII jurisprudence: courts require a tight causal link between protected status or protected activity and the adverse action. General unfairness, interpersonal conflicts, or even evidence of racial insensitivity will not suffice unless they are connected to the specific employment decisions at issue and to the individuals who made those decisions.

Going forward, Faulk will function as a persuasive reminder to litigants in the Fifth Circuit that careful factual development, precise record citation, and doctrinal fit are crucial in surviving summary judgment on Title VII discrimination and retaliation claims.