Next, under the third step of the McDonnell Douglas framework, Washington must counter this evidence regarding the Second Mandate and Edwards's inability to secure further work with “substantial evidence” for the termination as pretextual. See Owens, 33 F.4th at 82527; see also Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011). For pretext in the discrimination context, the Fifth Circuit has explained:

Next, under the third step of the McDonnell Douglas framework, Stark must counter this evidence with “substantial evidence” for the termination as pretextual. See Owens, 33 F.4th at 825-27; see also Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011). For pretext in the discrimination context, the Fifth Circuit has explained:

Mays Jackson's allegations plausibly raise the inference of sex discrimination, so Defendants “must proffer a legitimate, non-discriminatory reason for” not promoting Mays Jackson. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). And they must do it “through the introduction of admissible evidence ....”Id.

Finally, if Wonderland meets its production burden, Alford may prove intentional discrimination by proceeding under one of two alternatives: the pretext alternative or the mixed-motives alternative. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (age discrimination case); see also Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (Title VII race discrimination case). Under the pretext alternative, Alford must “offer sufficient evidence to create a genuine issue of material fact . . . that [Wonderland's] reason is not true, but is instead a pretext for discrimination[.]” Rachid, 376 F.3d at 312 (citation and internal quotation marks omitted).

Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011).

Further, even if Gibbons had made a prima facie case of discrimination, which he has not, there is evidence, by Gibbons' own admission, of a legitimate, nondiscriminatory reason for his demotion and later termination. See Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (noting that under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the plaintiff must first demonstrate a prima facie case, and then the burden of production shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its action). Gibbons had at least two professional counseling sessions with Brookside administration for workplace misconduct, and several recorded conversations with Holliman (attached to Gibbons' Complaint) about his poor work performance.

Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003); Reeves, 530 U.S. at 142; McDonnell Douglas Corp., 411 U.S. at 802; Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020). “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.'” Reeves, 530 U.S. at 142 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993), overruled in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 169-70 (2009)); accord Park v. Direct Energy GP, L.L.C., 832 Fed.Appx. 288, 295 (5th Cir. 2020); Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). “The [employer] can meet this burden by submitting evidence that if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Sullivan v. Worley Catastrophe Servs., L.L.C., 591

Auth. Bd. of Comm'rs, 810 F.3d 940, 948 (5th Cir. 2015). Not only does this framework apply at trial, see McDonnell, 411 U.S. at 802, but it also applies on summary judgment, see Vaughn v. Woodforest Bank, 665 F.3d 632, 635-36 (5th Cir. 2011).

If the defendant succeeds in rebutting the presumption, the plaintiff must establish that the defendant's proffered reason for its action is pretextual-either by showing the employer's proffered reasons are false or that another motiving factor is the protected class. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (citation omitted). To carry that burden, the plaintiff must produce substantial evidence of pretext:

If the defendant makes such a showing, the burden shifts back to the plaintiff to present evidence of a genuine dispute that the articulated “reason is not true, but instead a pretext for discrimination,” or that the defendant's “reason, while true, is only one of the reasons for its conduct, and another ‘motivating factor' is [the Plaintiff's] protected characteristic.” Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (citation omitted).