Next, under the third step of the McDonnell Douglas framework, Normore must counter the Painting Incident and Punching Incident reasons with "substantial evidence" for her respective AAC removal and termination as pretextual. See Owens, 33 F.4th at 825; 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:

She must "prove either that [IISD's] articulated reason is merely a pretext for race discrimination (the pretext alternative), or that [IISD's] reason, while true, is only one of the reasons for its decision, and another 'motivating factor' is [Clemmer's] protected characteristic (the mixed-motives alternative)." Autry, 704 F.3d at 347 (citing Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011)). "Although intermediate evidentiary burdens shift back and forth under this framework, '[t]he ultimate burden of persuading the trier of fact that [IISD] intentionally discriminated against [Clemmer] remains at all times with [Clemmer].'"

Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of intentional discrimination. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011); see also McDonnell Douglas, 411 U.S. at 802. To do so, the plaintiff must show she (1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class.

If the defendant meets that burden, "the presumption of discrimination disappears," and the plaintiff must produce substantial evidence indicating that the defendant's proffered reason is pretext for discrimination. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011); see also Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016).

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:

See Lee, 574 F.3d at 262. While the question of whether an employee is an appropriate comparator is a question of fact for the jury (see Perez v. Tex. Dep't of Crim. Just., Institutional Div., 395 F.3d 206, 215 (5th Cir. 2004)), the question of whether a reasonable factfinder could find that the plaintiff is similarly situated to the comparator employee is a question of law (see, e.g., Owens, 33 F.4th at 827-28; Vaughn v. Woodforest Bank, 665 F.3d 632, 640 (5th Cir. 2011)).

Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.2001); McCoy, 492 F.3d at 557. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). Under the pretext alternative Roberts must produce "evidence sufficient to create a genuine [dispute] of material fact that the . . . proffered explanation was a pretext for racial discrimination."

However, the McDonnell Douglas framework has been used by the Fifth Circuit in a variety of cases to assess circumstantial evidence of discrimination by looking to disparate treatment of different classes of people. See Vaughan v. Woodforest Bank, 665 F.3d 632, (5th Cir. 2011) (applying McDonnell framework to Title VII claims for race-based discrimination in employment); Long v. Eastfield Coll., 88 F.3d 300, 304-05 (5th Cir. 1996) (applying McDonnell framework to Title VII claims for gender discrimination, national origin discrimination, and retaliation in employment); Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (applying McDonnell framework to ADEA claims for age-based discrimination); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015) (applying McDonnell framework to ADA claims for discrimination on the basis of disability); Brady v. Fort Bend Cty, 145 F.3d 691, 712 (considering, but not deciding, whether McDonnell framework has potential application in § 1983 claims for patronage dismissals and free-speech retaliation in violation of the First Amendment); Simms v. First Gibraltar Bank, 83 F.3d 1546, 1558 (5th Cir. 1996) (applying McDonnell framework to a Fair Housing Act claim, noting there was no evidence pre

Chhim also has not alleged that after he was terminated he was replaced by someone outside of his protected class. See Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.2011). Chhim's allegations, accordingly, are insufficient to state a prima facie claim for discrimination under Title VII, and thus this claim is dismissed under Federal Rule of Civil Procedure 12(b)(6).

She can do so “by producing circumstantial evidence sufficient to create a fact issue as to whether the employer's nondiscriminatory reasons are merely pretext for discrimination,” Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir.2005), or by demonstrating that the proffered reasons are false or “unworthy of credence.” Bourgeois v. Mississippi Valley State Univ., 507 Fed.Appx. 386, 388 (5th Cir.)cert. denied, ––– U.S. ––––, 134 S.Ct. 163, 187 L.Ed.2d 41 (2013) (quoting Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir.2011) ); see also Gee v. Principi, 289 F.3d 342, 347–48 (5th Cir.2002) (an employer's inconsistent explanations for its employment decisions at different times permits a jury to infer that the employer's proffered reasons are pretextual). Brooks first argues that the write-ups were pretextual because she received a generally positive performance review in October 2011. Brooks's evaluation was performed by Marshall, who was replaced as Brooks's supervisor in December 2011. Marshall did not issue the write-ups, and they were based on conduct occurring after the evaluation period.