McDonnell Douglas Remains Binding Despite a Supreme Court Concurrence; Title VII Claims Fail Without Proper Comparators and But-For Pretext Proof

I. Introduction

Case: White v. North Louisiana Criminalistics Laboratory (5th Cir. May 4, 2026) (per curiam) (unpublished).
Parties: Carla White (Plaintiff–Appellant) vs. North Louisiana Criminalistics Laboratory (“NLCL”) (Defendant–Appellee).
Posture: Appeal from summary judgment for NLCL on Title VII and Louisiana Employment Discrimination Act (“LEDA”) claims.

After NLCL terminated White—an employee who had served as a firearms examiner, interim firearms supervisor, and NIBIN coordinator—White sued alleging (1) sex discrimination and (2) retaliation. The Fifth Circuit affirmed summary judgment, holding that White failed to establish a prima facie case of sex discrimination and failed to create a triable issue that NLCL’s stated reasons for termination were pretext for retaliation.

Two doctrinal themes frame the decision: (a) the continued binding force of the McDonnell Douglas burden-shifting framework in the Fifth Circuit despite arguments based on a Supreme Court concurrence, and (b) the rigor of comparator and pretext requirements at summary judgment, especially the “but-for” causation standard for retaliation.

II. Summary of the Opinion

  • Sex discrimination: White could not satisfy the fourth prong of the prima facie case because she was not replaced by someone outside her protected class and did not identify a valid, similarly situated male comparator treated more favorably.
  • Retaliation: Even assuming White could establish a prima facie case, NLCL articulated multiple legitimate, non-retaliatory reasons for termination (insubordination, dishonesty, tardiness, evidence-handling violations, morale issues, and disability-related misconduct toward a trainee), and White failed to produce substantial evidence of pretext or “but-for” causation.
  • Procedural point: A Supreme Court concurrence (White cited Justice Thomas’s concurrence in Ames v. Ohio Dep't of Youth Servs.) does not permit a Fifth Circuit panel to depart from circuit precedent applying McDonnell Douglas, under the “rule of orderliness.”

III. Analysis

A. Precedents Cited

1. Summary judgment standards and appellate posture

  • SCA Promotions, Inc. v. Yahoo!, Inc. and Vela v. City of Houston: Confirm de novo review and the Rule 56 framework. The panel uses these cases to anchor its independent review of the record rather than deference to the district court’s reasoning.
  • Anderson v. Liberty Lobby, Inc.: Supplies the “no reasonable jury could differ” articulation; the court uses it to justify resolving the claims as a matter of law where evidentiary gaps remain.
  • Smith v. Reg'l Transit Auth. and Hightower v. Tex. Hosp. Ass'n: Reinforce that evidence is viewed in the light most favorable to the nonmovant, but do not relieve the nonmovant of producing competent evidence on essential elements.
  • McGruder v. Will: Allows affirmance “on any grounds supported by the record,” which the panel leverages notably on retaliation by focusing on pretext even where the district court emphasized prima facie deficiencies.

2. Title VII and LEDA congruence

  • Nichols v. Lewis Grocer: Establishes that the same analytical framework applies to Title VII and LEDA; this permits the court to resolve both statutory claims in a single analysis.

3. The binding McDonnell Douglas framework and the rule of orderliness

  • Davis v. Dall. Area Rapid Transit, McDonnell Douglas Corp. v. Green, and Septimus v. Univ. of Houston: Supply the controlling burden-shifting framework and the specific prima facie elements applied to White’s discrimination and retaliation claims.
  • Ames v. Ohio Dep't of Youth Servs.: White invoked a two-Justice concurrence to argue McDonnell Douglas was “abandoned.” The panel rejects the move as nonbinding.
  • Ford v. Mckesson and United States v. Alcantar: These cases do the work of doctrinal gatekeeping—only the en banc Fifth Circuit or the Supreme Court can overrule circuit precedent, and a “mere hint” of future Supreme Court direction is insufficient. This becomes a key interpretive holding of the opinion: litigants cannot use concurrences to bypass settled Fifth Circuit doctrine.

4. Prima facie sex discrimination—comparators, replacement, and forfeiture

  • Septimus v. Univ. of Houston: Provides the contested fourth element (replacement outside the protected class or more favorable treatment of similarly situated persons).
  • Rollins v. Home Depot USA: Supports forfeiture—arguments not presented in the district court (White’s comparator argument about Richard Beighley) cannot be raised for the first time on appeal.
  • Herster v. Bd. of Supervisors of La. State Univ.: Defines “similarly situated” comparators by “job responsibility, experience, and qualifications,” tightening comparator use and requiring meaningful similarity.
  • Lee v. Kan. City S. Ry. Co. and Perez v. Tex. Dep't of Crim. Just., Institutional Div.: Establish the “nearly identical” misconduct requirement for comparator discipline cases, which the panel applies to reject White’s proposed comparators (Alex King and Joshua DeBord).

5. Retaliation—protected activity, pretext, and but-for causation

  • Shahrashoob v. Tex. A&M Univ.: Confirms McDonnell Douglas applies to retaliation and outlines the burden to articulate a legitimate, non-retaliatory reason (production, not persuasion).
  • Turner v. Baylor Richardson Med. Ctr. and Little v. Liquid Air Corp.: Reject conclusory and unsubstantiated assertions at summary judgment; these cases underpin the district court’s skepticism toward an affidavit lacking corroborating evidence.
  • Hagan v. Echostar Satellite: Defines actionable protected activity versus “abstract grumblings or vague expressions of discontent,” and requires that an employee make clear she is opposing unlawful conduct.
  • Reeves v. Sanderson Plumbing Prod., Inc.: Cited through Shahrashoob to underscore that the employer’s burden is non-credibility-based at the production stage.
  • Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen., Univ. of Texas Sw. Med. Ctr. v. Nassar, and Long v. Eastfield Coll.: Supply the decisive retaliation rule—plaintiff must show pretext and “but for” causation, and at summary judgment must show “a conflict in substantial evidence” on whether protected activity was the but-for cause.

B. Legal Reasoning

1. Sex discrimination: the fourth prima facie element is not a formality

The panel treats the prima facie case as a real evidentiary threshold. White could not show replacement outside her protected class because the post-termination hire (Sonia Nunnery) was female. The opinion also rejects the idea that a later-filling of the supervisor role by a male matters, because White was not in that role at the time of the adverse action (termination from her non-supervisory position after she had requested to step down).

On comparators, the court applies a layered approach:

  1. Forfeiture: White’s Beighley comparator argument was not raised below; it is forfeited under Rollins v. Home Depot USA.
  2. Similarity in role: The remaining comparators (King and DeBord) were in drug chemistry sections, not firearms; under Herster v. Bd. of Supervisors of La. State Univ., White needed to address similarity in job responsibility, experience, and qualifications. The panel finds she did not.
  3. Similarity in conduct: Under Lee v. Kan. City S. Ry. Co. and Perez v. Tex. Dep't of Crim. Just., Institutional Div., the misconduct must be “nearly identical.” The court concludes White’s alleged conduct (insubordination, dishonesty, morale impact, disability-related accusations, etc.) was not comparable to the others’ infractions.

With the fourth element missing, the sex discrimination claim fails at step one—no presumption arises, and the court need not proceed to pretext.

2. Retaliation: the panel resolves the case at pretext/but-for causation

The court signals skepticism that White’s alleged informal complaints qualify as protected activity under Hagan v. Echostar Satellite, and it notes the evidentiary weakness of relying on a largely uncorroborated affidavit under Turner v. Baylor Richardson Med. Ctr. and Little v. Liquid Air Corp.. But it ultimately assumes a prima facie case and affirms because White cannot show pretext.

Applying Shahrashoob v. Tex. A&M Univ. (and Reeves v. Sanderson Plumbing Prod., Inc.), NLCL’s burden is satisfied by articulating legitimate non-retaliatory reasons, including: insubordination (contacting ATF after confidentiality instruction), dishonesty about that contact, tardiness, evidence-handling violations, negative workplace impact, and problematic conduct toward a trainee (accusing him of dyslexia and disparaging hiring someone “with a learning disability”).

The final step is dispositive: under Feist v. Louisiana, Dep't of Just., Off. of the Atty. Gen. and Univ. of Texas Sw. Med. Ctr. v. Nassar, White had to produce evidence that retaliation was the but-for cause of termination, and under Long v. Eastfield Coll. she had to show a “conflict in substantial evidence” on that question. The panel emphasizes chronology and intervening events: after the alleged complaints, White’s supervisory performance issues and subsequent misconduct escalated, culminating in an instruction violation and perceived dishonesty during investigation. On this record, the “natural chronology” supports NLCL’s reasons as but-for causes; White produced no substantial conflicting evidence to create a jury issue.

3. A notable doctrinal clarification: concurrences do not displace binding circuit frameworks

Although the opinion is unpublished, its reasoning is pointed: a two-Justice concurrence in Ames v. Ohio Dep't of Youth Servs. is not a basis for abandoning McDonnell Douglas. Citing Ford v. Mckesson and United States v. Alcantar, the panel reaffirms that only the Supreme Court (through a holding) or the en banc Fifth Circuit can overrule binding Fifth Circuit precedent. This is an important caution to litigants attempting to recast doctrinal standards based on non-majority writings.

C. Impact

  • Comparator rigor remains high: The opinion reinforces that plaintiffs must do more than identify other employees who were disciplined differently; they must establish similarity in position and “nearly identical” conduct, and must preserve those arguments in the district court.
  • Retaliation cases will often turn on pretext and but-for causation: Even where protected activity and timing are contested, the Fifth Circuit may affirm on pretext grounds if the employer’s reasons are well-documented and the plaintiff lacks “substantial evidence” of conflict.
  • Limited leverage from Supreme Court concurrences: The decision underscores that panels will not treat concurrences as doctrinal change; litigants must still satisfy established circuit frameworks until a binding overruling occurs.
  • Practical litigation consequence: Summary judgment records should include corroboration of complaints (emails, witness testimony, HR reports), comparator job/discipline evidence, and specific proof undermining the employer’s stated reasons—not merely denials.

IV. Complex Concepts Simplified

McDonnell Douglas framework
A three-step method used when there is no direct evidence of discrimination/retaliation: (1) plaintiff must establish a prima facie case; (2) employer must produce a legitimate reason; (3) plaintiff must show the reason is a pretext masking unlawful motive.
Prima facie case
The minimum set of facts that, if shown, creates an initial inference of unlawful discrimination/retaliation.
Similarly situated comparator
Another employee used as a benchmark. The comparator must be similar in relevant ways (role, duties, qualifications) and must have engaged in “nearly identical” misconduct to make different discipline meaningful evidence.
Pretext
Proof that the employer’s stated reason is not the real reason. It is not enough to show the employer was mistaken; the plaintiff must show the stated reason is a cover for unlawful motive.
But-for causation (retaliation)
The plaintiff must show the adverse action would not have happened without the retaliatory motive—i.e., retaliation was the determinative cause, not just one of several possible motives.
Rule of orderliness
In the Fifth Circuit, a panel must follow prior Fifth Circuit precedent unless overruled by the en banc court or a Supreme Court holding; concurrences and dicta do not suffice.

V. Conclusion

White v. North Louisiana Criminalistics Laboratory affirms summary judgment by enforcing two demanding gates in employment litigation: the prima facie comparator/replacement showing for disparate-treatment discrimination, and the requirement of substantial evidence of pretext and but-for causation for retaliation. It also delivers a clear institutional message: Fifth Circuit panels remain bound to apply McDonnell Douglas notwithstanding litigants’ reliance on nonbinding Supreme Court concurrences. Even as an unpublished decision, the opinion is a useful roadmap of what evidentiary failures—unpreserved comparator theories, underdeveloped similarity showings, and a lack of concrete pretext evidence—will be fatal at the summary judgment stage.