No Comparator, No Case: Fifth Circuit Reaffirms Strict Comparator Requirement and Forfeiture of Unraised Discovery/Sealing Challenges in Title VII Litigation

Introduction

This commentary analyzes the Fifth Circuit’s unpublished per curiam decision in Emily Dixon, Psy.D. v. Merrick Garland (No. 24-10215, Dec. 3, 2024), affirming summary judgment against a federal employee’s Title VII sex discrimination and retaliation claims. Dr. Emily Dixon, a psychologist at the Federal Bureau of Prisons’ Federal Medical Center Carswell, alleged long-running harassment, sex-based disparate treatment, and retaliation tied to her complaints about a supervisor and assistance with co-workers’ claims. The district court granted summary judgment to the Bureau; Dixon appealed.

On appeal, the Fifth Circuit framed three issues:

Whether Dixon identified a similarly situated comparator outside her protected class sufficient to satisfy her prima facie case of sex discrimination;
Whether Dixon established a prima facie case of retaliation, including a causal connection between protected activity and adverse action; and
Whether the district court denied Dixon due process in discovery and case-management rulings (protective order, sealing, deposition participation, and “Attorney’s Eyes Only” designations).

The court affirmed across the board. The opinion’s touchstones are familiar but consequential: a strict application of the comparator requirement for disparate treatment, insistence on record-supported causation for retaliation, and rigorous enforcement of forfeiture/abandonment principles when litigants do not timely object to protective orders and sealing or do not comply with procedures for challenging confidentiality designations.

Summary of the Opinion

The Fifth Circuit affirmed summary judgment for the Bureau of Prisons on all claims. It held:

Sex discrimination (disparate treatment): Dixon failed to identify a similarly situated comparator outside her protected class “in nearly identical circumstances,” as required by Fifth Circuit precedent. Her alleged comparators were female colleagues, and her generalized assertions about male-female distinctions lacked specificity. The court therefore did not reach whether her temporary night-shift reassignment (related to an injury accommodation) was an adverse employment action under Title VII.
Retaliation: Dixon did not present specific, non-conclusory evidence establishing a materially adverse action caused by her protected activity. Her declaration-based assertions—without corroborating documents or testimony—were insufficient to create a genuine dispute of material fact on causation.
“Due process”/discovery and sealing challenges: Dixon forfeited objections to the protective order and sealing by failing to timely oppose them in the district court (and, as to the protective order, by initially approving its form). Her complaints about being excluded from depositions and about “Attorney’s Eyes Only” designations failed to show an abuse of discretion, especially where she did not follow the protective order’s meet-and-confer and challenge procedures.

Accordingly, the judgment of the district court was affirmed.

Analysis

Precedents Cited and Their Role

Hamilton v. Dallas County, 79 F.4th 494 (5th Cir. 2023): Cited for the elements of a Title VII disparate-treatment claim post-en banc correction of the “ultimate employment decision” rule. Hamilton confirms that adverse employment actions are not confined to ultimate decisions. Here, however, the Fifth Circuit did not need to resolve whether reassignment to the night shift constituted an adverse action because Dixon’s claim failed on comparator grounds.
Cicalese v. University of Texas Medical Branch, 924 F.3d 762 (5th Cir. 2019) (en banc, as cited): Quoted for general Title VII pleading standards. It underscores that a plaintiff must plausibly allege adverse action because of protected status, guiding the court’s threshold framing.
Saketkoo v. Administrators of Tulane Educational Fund, 31 F.4th 990 (5th Cir. 2022): Provides the framework for using circumstantial evidence and, critically, the strict “similarly situated” comparator requirement. The court relied on Saketkoo to insist on nearly identical circumstances for comparator proof.
Herster v. Board of Supervisors of LSU, 887 F.3d 177 (5th Cir. 2018): Amplifies what “similarly situated” means—same job responsibilities, experience, and qualifications. The court used Herster to show why Dixon’s comparators (primarily female colleagues) and her generalized assertions did not suffice.
Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422 (5th Cir. 2017): Emphasizes that failure to identify a valid comparator can be fatal to a Title VII claim. The court cited it to justify affirmance based solely on comparator failure.
Ricci v. DeStefano, 557 U.S. 557 (2009): Differentiates disparate treatment from disparate impact; the court noted Dixon alleged intentional discrimination (disparate treatment), not impact, shaping the analytical lens.
Hudson v. Lincare, Inc., 58 F.4th 222 (5th Cir. 2023) and Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017): Set out the prima facie elements for retaliation: protected activity, materially adverse action, and causal connection. The court invoked these cases to assess Dixon’s failure to present specific causation evidence.
Boudreaux v. Swift Transportation Co., 402 F.3d 536 (5th Cir. 2005) and RAGAS v. TENNESSEE GAS PIPELINE CO., 136 F.3d 455 (5th Cir. 1998): Clarify that unsubstantiated, conclusory assertions and “only a scintilla of evidence” cannot defeat summary judgment; a party must identify record evidence and articulate how it supports the claim. These cases were central to rejecting Dixon’s retaliation proof.
Terry Black’s Barbecue, L.L.C. v. State Automobile Mutual Insurance Co., 22 F.4th 450 (5th Cir. 2022) and McClelland v. Katy Independent School District, 63 F.4th 996 (5th Cir. 2023): Address abandonment/waiver of arguments not raised or opposed in the district court. They underpin the court’s forfeiture holdings regarding the protective order and sealing.
UNITED STATES v. OLANO, 507 U.S. 725 (1993) and NICHOLS v. ENTERASYS NETWORKS, Inc., 495 F.3d 185 (5th Cir. 2007): Establish that a failure to timely assert a right is forfeiture and that appellate review is limited where issues were not raised below. These authorities supported declining to consider Dixon’s late objections.
Crosby v. Louisiana Health Service & Indemnity Co., 647 F.3d 258 (5th Cir. 2011) and Bradley ex rel. AJW v. Ackal, 954 F.3d 216 (5th Cir. 2020): Provide the standard for reviewing discovery rulings for abuse of discretion. The court found no abuse in maintaining confidentiality designations or in discovery management.
Rogers v. Bromac Title Services, L.L.C., 755 F.3d 347 (5th Cir. 2014) and FED. R. CIV. P. 56(a): Recite the de novo standard for summary judgment and the requirement of a genuine dispute of material fact.

Legal Reasoning

A. Disparate Treatment: The Comparator Prong Is Dispositive

The court reaffirmed a strict comparator requirement at the prima facie stage: a plaintiff must show that “others similarly situated but outside the protected class were treated more favorably,” and the comparator must be similarly situated “in nearly identical circumstances.” Matching job responsibilities, experience, and qualifications are central to that assessment.

Dixon’s proof failed in two ways:

Her identified comparators (Drs. Blackwood, Wenzel, and Galvan) were female, placing them within the same protected class—undercutting the disparate treatment inference.
Her general allegation that “male psychologists were not treated the same way” as female psychologists lacked specifics. Without identifying a particular male psychologist with comparable duties, credentials, and circumstances who received better treatment, Dixon could not satisfy the comparator prong.

Because Dixon failed the fourth element, the court did not need to adjudicate whether her temporary night-shift assignment—implemented as a workplace accommodation following a 2019 shoulder injury—amounted to an adverse employment action. That question remains unaddressed in this decision.

B. Retaliation: Conclusory Assertions Cannot Establish Causation

For retaliation, the Fifth Circuit required Dixon to show protected activity, a materially adverse action, and a causal connection. The court faulted Dixon’s showing in two respects:

She did not identify a materially adverse action attributable to the alleged retaliation (for example, she mentioned “Threat Assessment” meetings but did not connect them to any adverse employment consequence).
She offered no specific record evidence of causation beyond her own declaration. Under Ragas and Boudreaux, unsubstantiated assertions are not competent summary judgment evidence; a plaintiff must point to specific evidence and articulate precisely how it supports the claim.

Because Dixon relied on conclusory statements without corroborating documents, timelines, or testimony, she did not raise a triable dispute on causation—an “essential component” of retaliation.

C. “Due Process” and Discovery/Sealing Issues: Forfeiture and No Abuse of Discretion

The court characterized Dixon’s procedural complaints as falling into three buckets:

Protective Order: Forfeited. Dixon’s counsel approved the form in February 2023 without objection and raised no timely challenge. Under Terry Black’s and McClelland, unraised objections are abandoned, and Olano makes plain that failure to timely assert a right is forfeiture on appeal.
Sealing: Forfeited. Dixon did not oppose the Bureau’s motion to seal its summary judgment appendix; the district court granted it as unopposed. Dixon also sought to file her own appendix under seal. Having failed to object below, she could not revive the issue on appeal.
Discovery/Depositions and “Attorney’s Eyes Only” designations: No abuse of discretion. The district court required compliance with the protective order’s good-faith procedures for challenging confidentiality (e.g., meet-and-confer, redacted alternatives, then written objection and motion). Dixon’s blanket objections to “every single document” fell short of that process. On this record, the Fifth Circuit found no erroneous factfinding, legal error, or misapplication of law.

Impact

Although unpublished and non-precedential under 5th Cir. R. 47.5, the decision is a crisp restatement of several practical and doctrinal points that will influence day-to-day Title VII litigation in the Fifth Circuit:

Strict comparator proof remains dispositive. Even after Hamilton broadened the notion of “adverse employment action” in disparate-treatment cases, plaintiffs still must tie their treatment to a similarly situated comparator outside their protected class. Without that, courts may affirm without reaching other disputed elements.
Retaliation requires more than narrative. Plaintiffs should marshal documentary evidence, testimony, or temporal/contextual specifics to establish causation. Bare assertions—even in a sworn declaration—may be insufficient if they remain conclusory and uncorroborated.
Procedural vigilance is essential. Parties must object timely to protective orders and sealing motions and must scrupulously follow procedures for challenging confidentiality designations. Abandonment and forfeiture doctrines can independently dispose of such challenges.
Discovery designations will be respected when challenge procedures are ignored. Courts are more likely to uphold “Attorney’s Eyes Only” and “Confidential” designations if a party resists the meet-and-confer and targeted, document-by-document approach required by protective orders.
Unreached questions remain open. Whether a short-term night-shift reassignment given as a medical accommodation constitutes an adverse employment action under Title VII was not decided here, leaving room for future litigation under Hamilton’s framework.

Complex Concepts Simplified

Prima facie case (Title VII): An initial, minimal showing required to shift the burden of production to the employer. For disparate treatment, it typically includes showing protected status, qualification, adverse action, and a comparator outside the protected class treated more favorably.
“Similarly situated” comparator: A colleague outside the plaintiff’s protected class whose job duties, qualifications, and relevant circumstances closely match the plaintiff’s. The comparator must be “nearly identical” to permit an inference of discrimination.
Materially adverse action (retaliation): An action that might dissuade a reasonable worker from engaging in protected activity. It is broader than “ultimate employment decisions,” but it still requires concrete, adverse consequences.
Summary judgment standard: Granted when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. Courts require specific citations to record evidence; conclusory allegations are insufficient.
Forfeiture/abandonment: If a party fails to timely object or to brief an issue in the district court, appellate courts treat the argument as forfeited or abandoned and will not consider it for the first time on appeal.
Protective order: A court order governing confidentiality and use of discovery materials. Typically includes a process for challenging designations (meet-and-confer, redactions, written objections).
Attorney’s Eyes Only (AEO): A confidentiality designation limiting document access to counsel (and sometimes experts), used when disclosure to parties could risk sensitive information. Challenges require targeted, good-faith procedures.

Conclusion

Dixon v. Garland underscores three enduring truths in Fifth Circuit Title VII practice. First, the comparator element remains a gatekeeper for disparate-treatment claims: without a similarly situated comparator outside the protected class, a plaintiff’s case falters, even when other elements are disputed. Second, retaliation claims live or die on specific, record-supported evidence of causation; conclusory declarations will not withstand summary judgment. Third, procedural rigor matters: litigants who fail to timely object to protective orders or sealing—and who do not follow prescribed challenge procedures—risk forfeiture and will face a steep uphill battle on appeal.

Although unpublished, the decision offers clear, practitioner-focused guidance. Plaintiffs should identify concrete comparators early, build a documentary record tying protected activity to adverse consequences, and engage meticulously with protective-order procedures. Defendants, conversely, will see in this opinion a reaffirmation that courts demand specificity, adherence to process, and evidence—not generalized grievances—to advance Title VII claims beyond summary judgment.