Full opinion text
MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This is an employment discrimination suit. Leandros Cooper, a truck driver who worked for Wal-Mart Transportation, LLC and Wal-Mart Stores, Inc., alleges discrimination and a hostile work environment based on his race. He also alleges that he was terminated from his job in retaliation for filing a Charge of Discrimination with the Equal Employment Opportunity Commission and the Texas Workforce Commission. His final claim is that he was assaulted by a Wal-Mart manager. Wal-Mart has moved for summary judgment. (Docket Entry No. 31). Cooper has responded to the summary judgment motion, (Docket Entry No. 35), Wal-Mart has replied, (Docket Entry No. 36), and Cooper has filed a surreply, (Docket Entry No. 37). Wal-Mart has also moved to strike two of Cooper’s potential witnesses, (Docket Entry Nos. 24 and 25); no response has been filed. Based on a careful review of the complaint; the motions, responses, and replies; the summary judgment record; and the applicable law, this court denies WalMart’s motion for summary judgement as to the hostile work environment claim but otherwise grants the motion. Both motions to strike are granted. The parties are ordered to appear for a status conference on Thursday, October 15 at 3:30 p.m. in Courtroom 11-B to set a schedule and trial date. The reasons for these rulings are explained below. I. The Evidence in the Summary Judgment Record Leandros Demetrous Cooper is an African-American male born in June 1959. He is an Army veteran, the father of two adult children, and a truck driver by trade. (Docket Entry No, 24, Ex. 2 at 9-10). Cooper began working as an interregional truck driver for Wal-Mart on October 4, 2005. (Docket Entry No. 31, Ex. 1 at 75, Ex. 5 at ¶ 2). During the first several months of his employment, Cooper was assigned to Wal-Mart’s distribution center in Hurricane, Utah. (Id.). He later asked for, and received, a transfer to the Sealy, Texas distribution center, where he began working on January 27, 2006. (Docket Entry No. 35, Ex. 3). In an affidavit, Dana Fuller, Regional Human Resources Manager for Wal-Mart, stated that the transfer was granted “in order to resolve ‘issues’ that had arisen between [Cooper] and other drivers, including [his] team driver with whom he jointly operated a commercial Wal-Mart truck.” (Docket Entry No. 31, Ex. 5, ¶ 3). Cooper has submitted a declaration stating that while he worked at the Hurricane Distribution Center in Utah, several persons made racially discriminatory comments. (Docket Entry No. 35, Ex. 5, ¶ 1). In October 2005, Eric Lasher, the General Terminal Manager, told Cooper “no guns,” which Cooper thought was an offensive reference to a stereotype of African-Americans as gun owners. The next month, Lasher said that Cooper would “run right through this place.” Also in November, a coworker said “monkey’s dress like that.” Cooper complained about the coworker’s comment to Michael DiGioia, an operations manager. In December 2005 or January 2006, a “husband and wife team” said “here comes the nigger.” In January 2006, a driver named Don said “I can’t be seen riding around with a burnt co-driver,” which Cooper took as a reference to his skin color. Cooper complained about Don’s comment to Julie Winterton, the Human Resources Manager. Winterton said “that she thought [Cooper] wanted to join the Klan.” Cooper lodged discrimination complaints with two internal entities: Wal-Mart’s Resources for Living and Wal-Mart’s Ethics Committee. He also complained to Darwin Jones, the regional personnel manager. Just before Cooper transferred to Sealy, where Paul Peterson is the general terminal manager, Lasher told Cooper that “Paul Peterson is my peezoe.” The record does not reveal what “peezoe” means or what Cooper interpreted it to mean. (Docket Entry No. 35, Ex. 3). Soon after Cooper began working at Sealy, he accused his team driver — WalMart’s drivers work in teams of two in a single truck — of trying to kill him. The team driver reported that Cooper began yelling profanities at him, encouraging him to cross the median and to “go ahead and kill us both, kill us now.” (Id. at ¶ 4). Some time later, Cooper’s truck caught fire. Cooper told his manager that the team driver had started the fire. Cooper reported to his manager that he thought his team driver “might have messed with the wiring” because he had asked Cooper to put his sleeping bag and blankets under the truck’s bunk, which Cooper believed was for the purpose of causing the fire. (Id.). Cooper’s manager told him that the allegations were outlandish. Cooper responded that he was “just paranoid.” (Id.). Cooper felt mistreated starting on his first day at Wal-Mart’s Sealy Distribution Center. He alleges that he was forced to sit outside the office of human resources manager Kay Murphy while she and three drivers “went over my personal information on Ms. Murphy’s computer.” (Id. at ¶ 2). Cooper’s dissatisfaction continued: Then they made me go through a second orientation. They also made me sit in a third orientation for one day. When I was trained they overbooked my loads and I did not have time to take lunch breaks. This lasted 7 to 8 days. Management did not train any of the other white drivers (Don, Dennis, Darren, and Mike) who went to orientation with that way. Two of them (Darren and Dennis) became store ambassadors. Further, when I first started at Sealy, they made me run local and domicile even though I bid for and was awarded interregional. White drivers (George Murdock, Calvin Johnson, Michael Chmelik, Dennis Ramsey, Roy Whatley and Dennis Miller) were permitted to run the routes they bid for. (Id.). According to Cooper, in “September/October of 2006, I complained to Dana Fuller, the Regional Human Resources Manager that white drivers are given more favorable routes, better mileage, and better pay.” (Id.). Cooper’s specific complaint about pay, by his own admission, was that “my pay was lower then it was at the Hurricane Distribution Center.” (Id. at ¶ 4). Cooper also asserts that he complained about having to pass six drug screens, which was more than white drivers. “I specifically complained,” he states, “that I was being discriminated against.” (Id.). Fuller remembers differently, testifying in her declaration that “at no time did [Cooper] ever inform me or any other member of management that he believed any alleged conduct directed towards him was on account of his membership in any protected classification.” (Docket Entry No. 31, Ex. 5). For the purposes of this summary judgment motion, Cooper’s version must be accepted as true. Fuller and Murphy investigated Cooper’s complaints “seriously and promptly and thoroughly,” finding that “[n]one of his complaints could be substantiated.” (Id.). Fuller testified in her deposition that when she looked at Cooper’s drug-testing record, it showed that he had only been tested twice, which was “not unusual” and “not a lot.” (Docket Entry No. 31, Ex. 4 at 36-37). She found no signs of deviation from Wal-Mart’s randomized testing program. (Id.). When Fuller investigated Cooper’s pay complaint, she found that his Average Day’s Pay (ADP)' — the metric Wal-Mart uses for measuring pay, because wages vary daily based on miles driven — had actually increased since he transferred to Sealy. (Id.). Finally, with respect to route assignments and mileage allocations, Wal-Mart used its blind, computer-operated system in assigning work to Cooper. Fuller explained how the assignment system works: Drivers operating out of the Sealy Distribution Center ... are given their load assignments by dispatchers located at the Regional Operations Center (“ROC”), which is an off-site facility located in Bentonville, Arkansas. All trucks have an on-board computer which allows for communication to the ROC.... Thus, although all drivers receive the same pay for the same activities, and miles are paid on a graduated scale determined by a driver’s length of service, a driver’s pay can be affected by the accuracy of the driver’s [time entries in the on-board computer], which, in turn impacts how much activity and/or how many miles a driver is assigned during each work week. Additionally, the only identifying characteristic of truck drivers available to the ROC dispatchers is the driver’s identification number, not the driver’s race, or any other personal characteristic. Additionally, Wal-Mart executes a bid process twice a year; during which changes to driver schedules and depart days/times are made.... Through the bid process, drivers rank their route/ load choices in order of preference, allowing for individual driver preferences on matters such as the first load of the week, departure day/time and the type of program, i.e., whether they would prefer local driving routes or interregional driving. Each bid is measured solely by the longevity of the driver’s employment at the facility at which they are working. Therefore the drivers with the longest tenure at each facility will usually get their top choices. (Docket Entry No. 31, Ex. 5 at ¶¶ 12, 14). Fuller found no evidence that Wal-Mart had deviated from the system in Cooper’s case. (Id.). Cooper lodged several other internal complaints while working in Sealy. In October 2006, he complained to Murphy that someone had torn his paycheck or pay stub. Murphy explained to Cooper that the checks are prepared in the payroll department in Bentonville, Arkansas and sent to Sealy in sealed envelopes. As a result, nobody at the Sealy Distribution Center could have torn Cooper’s paycheck. Murphy concluded that Cooper’s complaint could not be substantiated. (Docket Entry No. 31, Ex. 6 at ¶¶ 4-5). In November or December 2006, Cooper complained to Paul Peterson, the General Warehouse Manager, that someone had rubbed poison ivy on his uniform. He made the complaint because his uniform gave him a skin rash. In his deposition, Cooper testified that he thought more senior drivers may have rubbed poison ivy on his uniform as a form of hazing, “trying to get rid of him.” (Docket Entry No. 31, Ex. 1 at 80-82). Wal-Mart found no evidence to substantiate Cooper’s allegation. (Docket Entry No. 31, Ex. 7 at ¶ 5). Peterson suggested to Cooper that “perhaps a better explanation ... was an allergy to the cleaning agent used for the uniforms.” (Id. at ¶ 6). In December 2006, Cooper complained to Peterson that someone had contaminated his container of baby wipes with poison ivy. Cooper’s accusation was based on a skin rash that he believed was caused by the baby wipes. Peterson found no evidence to substantiate the claim that someone had deliberately contaminated the wipes with poison ivy. Peterson offered to reimburse Cooper for the cost of the wipes, but Cooper refused. (Id. at ¶¶ 5-6). In February 2007, Cooper told Larry Estes, the operations manager, that another driver had urinated in his truck. WalMart could not investigate the claim because Cooper had already cleaned his truck with a disinfectant by the time he reported it. (Docket Entry No. 31, Ex. 9, ¶ 21). Wal-Mart managers were concerned, however, that the accusation “made no sense” because the other driver shared the truck with Cooper. (Docket Entry No. 31, Ex. 6, Attachment C). That same month, Cooper complained that an unidentified person had “tainted the seat-belts of his truck with foul-smelling cologne.” (Id., ¶ 23). Cooper was asked to clean the seatbelts with cleaning wipes. (Id.). With the apparent exception of the seat-belt incident, Fuller was informed of each of Cooper’s complaints. She found the repeated “bizarre” and unsubstantiated complaints to be “strange conduct” and with each incident became increasingly concerned about Cooper’s “irrational conduct and integrity.” (Docket Entry No. 31, Ex. 5, ¶¶ 20, 22). In addition to these incidents, Cooper also testified in his declaration about discriminatory comments he heard while working at the Sealy Distribution Center. In February 2006, two drivers asked Marvin Jones, Cooper’s “mentor,” to ask Cooper for Zig-Zags, which are used for smoking marijuana. In March 2006, Peterson said “I hope you learned a lesson” and “we are a family here.” In June 2006, John, a driver at the Hurricane Distribution Center, called Cooper a monkey in a telephone conversation. In July or August of 2006, an operations manager named Rob told Cooper he “could not hang in my neighborhood.” Sometime that year, Rob punched Cooper in the arm and stomach and told him that his apartment might be on fire. In October 2006, a white driver at Wal-Mart’s warehouse in Palestine, Texas said the word “nigger” after Cooper arrived. In December 2006, Charise Lam-bros “in Safety” told Cooper that he “need[ed] to be careful.” In January 2007, dispatch coordinator Ruth Johnson asked Cooper, “has anybody whipped you yet?” On April 27, 2007, George Murdock, another driver, told the doctor performing a physical on Cooper to “bury him deep.” (Docket Entry No. 35, Ex. 3, ¶ 3). In February 2007, Cooper complained to Estes, Murphy, and Peterson about Mike Hansen, Wal-Mart’s regional transportation manager. (Docket Entry No. 35, Ex. 3, ¶ 5). Cooper alleged that Hansen had “assaulted” him on three separate occasions. The first took place sometime near the end of 2006, when, according to Cooper’s affidavit, Hansen “deliberately walked up to me and smacked me on the shoulder spilling hot coffee all over my wrist and hand.” Cooper described Hansen as having a “sinister look on his face.” (Id.). Hansen, who supervises 1,200 employees at 10 locations, did not remember “meeting, speaking with, or even seeing Mr. Cooper” on that occasion. (Docket Entry No 31, Ex. 8, ¶ 2). When Hansen visits Wal-Mart distribution centers, he often “meet[s] several drivers and engages in friendly conversation with them,” which includes shaking the drivers’ hands and patting them on the shoulder or back. Hansen surmised that is what he was doing on the first occasion Cooper claims he was assaulted, and that “if I did make any contact with him that caused him to spill his coffee, it would have been an accidental bump.” (Id.). The second and third alleged assaults both took place on January 31, 2007 at the Sealy Distribution Center. Cooper testified that early that morning, as he was driving in the parking lot, Hansen “pulled [him] over,” questioned him, and “smacked [him] on the shoulder twice.” (Docket Id., Ex. 3). Because he was wearing a jacket, Cooper did not feel any pain. In his deposition, Cooper described the contact as “[j]ust — you know how you hit somebody on the back of the shoulder.” (Id., Ex. 1 at 103). Hansen testified that, early that morning, he saw Cooper drive his car through the parking lot at an unsafe speed. Hansen pulled up behind where Cooper had parked, got out of his car, and had a “friendly conversation” with Cooper about driving safely in the parking lot. During the conversation, Hansen “patted [Cooper] on the shoulder in what [Hansen] believed was a friendly and courteous manner.” (Docket Entry No 31, Ex. 8, ¶ 3). Cooper did not say anything to Hansen indicating that he did not appreciate the physical contact. (Id., Ex. 1 at 104). Later that same afternoon, Hansen spoke to a group of drivers, including Cooper, at a meeting about defensive driving. When Hansen finished speaking, Wal-Mart surprised him with a small party to celebrate his 20-year anniversary with the company. Hansen and the other drivers chatted and ate the cake that had been provided. Hansen does not recall any specific interaction with Cooper but does remember seeing him there and in apparently good spirits. (Id., Ex. 8, ¶4). According to Cooper, however, Hansen “deliberately ran over four or five drivers” to reach Cooper to “smack” him on the shoulder. “The hit was painful and stung.” (Docket Entry No. 35, Ex. 3, ¶ 5). Cooper called Murphy and Estes on February 15, 2007 to tell them that he was in need of medical treatment because he had been injured by someone at work. Cooper was told to come to the Distribution Center so that he could be sent for medical treatment. Cooper informed Murphy and Estes that he had already sought treatment at the VA Hospital on February 13, receiving antibiotics or a tetanus shot for a puncture wound on his shoulder. Cooper testified that he went to the hospital that day because, after not feeling well for two weeks following the defensive driving meeting, he noticed in the mirror a purple or black mark on his shoulder. At that point, “everything just registered.” He concluded that Hansen “actually did stick [him] with something.” (Docket Entry No. 31, Ex. 1, Cooper Depo., at 112-13). Cooper concluded that Hansen must have had a hidden object in his hand that he used to puncture Cooper’s skin while patting his shoulder during the surprise party. (Id. at 111-13). On the morning of February 15, 2007, however, when Cooper first spoke to Murphy and Estes, he told them he was feeling “okay” and that he would come into the distribution center once he had completed his current delivery. (Docket Entry No. 31, Ex. 6, ¶ 8). Before Cooper came in, Lieutenant Fair-cloth of the Sealy Police Department came to the Sealy Distribution Center and told Murphy that Cooper had called the Police Department to file assault charges against Hansen. Faircloth reported that Cooper had told the police that “Hansen probably had a ‘needle under his ring’ and had injected him with the needle.” (Id., ¶ 9). Later that day, Cooper came into the distribution center for a meeting with Peterson, Murphy, and Estes. He told them what he thought Hansen had done. He also told them he did not feel well; that his “equilibrium was off’; and that he did not feel that it was safe for him to drive. (Docket Entry No. 31, Ex. 1 at 114-115). Cooper completed an internal Wal-Mart form laying out the basics of his injury. He reported suffering a “possible puncture wound,” resulting in “bruises” on the “top right shoulder” after a “slap on [the] back by Mike Hanson (sic).” (Docket Entry No. 31, Ex. 5). Murphy recommended that Cooper seek immediate medical treatment, which he did that same day at Memorial Hermann Hospital. Murphy completed an injury report and conducted an investigation into this third alleged assault. As part of the investigation, she interviewed several of the other drivers who had been present at the defensive driving meeting. Murphy was unable to substantiate Cooper’s claim. (Id., Ex. 6, ¶ 27). Murphy informed Fuller of all these developments. Wal-Mart’s worker’s compensation representative took a statement from Cooper, in which Cooper said that his head, neck, and shoulder were injured, his vision was blurred, and “his brain was all out of whack.” (Id., Ex. 5, ¶ 25). Based on this information, Fuller decided to remove Cooper from active duty effective February 15, 2007, placing him on paid medical leave. She did so “out of concern for [Cooper’s] mental and physical health, and out of concern for the motoring public.” (Id., ¶ 26). Fuller required Cooper to obtain a fitness for duty examination before returning to work. (Id.). Murphy conducted a more detailed investigation, in which she interviewed approximately 20 Wal-Mart employees present at the January 31, 2007 meeting, “all of whom denied witnessing Mr. Hansen interact in any unusual manner with [Cooper].” The investigation again revealed no evidence to substantiate Cooper’s claims. (Id., ¶ 27). On February 19, 2007, Cooper submitted a sworn statement to the police, complaining of a puncture wound inflicted by Hansen. (Docket Entry No. 35, Ex. 1 at 115-17). Sometime in February, the Sealy Police Department contacted Hansen, requesting a statement about the January 31 meeting. He complied. On March 14, 2007, the District Attorney’s office notified Hansen and Cooper that no charges would be filed because there was insufficient evidence of criminal wrongdoing. (Docket Entry No. 31, Ex. 5, ¶ 28). Wal-Mart asked Cooper to see Dr. Mark Bing for a physical to determine if he was fit for duty. Wal-Mart has submitted evidence that Dr. Bing was “the doctor who provided Department of Transportation fitness for duty examinations for all truck drivers operating out of the Sealy Distribution Center.” {Id., Ex. 5, ¶ 29). On his first visit, around February 23, 2007, Cooper saw a nurse practitioner, who examined him. Cooper told the nurse practitioner that the injury on his shoulder was from a bug bite and left the office before Dr. Bing could see him. (Docket Entry No. 31, Ex. 7 at 3). Wal-Mart instructed Cooper to return to see Dr. Bing. The doctor examined Cooper, conducted an MRI, and ordered a series of tests. Dr. Bing disqualified Cooper from work for 60 days. He communicated his findings to Wal-Mart in a March 14, 2007 letter, noting a particular concern about unexplained dizziness. {Id., Ex. 6, Attachment B). Dr. Bing also contacted Murphy and suggested that Cooper be given a psychological evaluation. {Id., Ex. 5, ¶ 33). On March 21, Fuller notified Cooper that Wal-Mart was concerned about his mental health and safety, and the safety of others. Fuller told Cooper that, in addition to the 60-day medical disqualification from work, he needed to submit to a psychological fitness-for-duty exam in order to return to work. {Id., ¶ 34). Cooper made an appointment with a psychologist, Dr. Lisa Weaver. Murphy asked Dr. Bing to consult with Dr. Weaver before the examination to discuss Cooper’s case. Murphy provided Dr. Bing a written summary of the problems she and other members of the “management team” at the Wal-Mart Transportation Office had observed that caused “serious concerns about his mental health.” {Id., Ex. 6, Attachment C). The summary listed some basic personal information, the complaints and allegations Cooper had made during his employment, and the events that had transpired since the third alleged assault. {Id., Ex. 6, Attachment C). Dr. Bing contacted Murphy on April 2, 2007, telling her that only a psychiatrist could conduct the type of examination that Cooper required. When Cooper arrived at Dr. Weaver’s office for his April 9 appointment, Dr. Weaver, a psychologist, realized the same thing and did not examine Cooper. {Id., Ex. 6, Attachment D). Murphy attempted unsuccessfully to schedule Cooper for appointments with two psychiatrists. In the meantime, Cooper continued to see Dr. Bing, who certified him to return to work on April 27, 2007. Despite that certification, Fuller did not want Cooper to return to work because he had not yet been evaluated by a mental health professional. {Id., Ex. 5, ¶ 3 5). Fuller sent Cooper a letter on May 3, directing him to see a psychiatrist. On May 9, Cooper sent Wal-Mart progress notes from a May 4 visit with Dr. Aruna Gottumukkala, a psychiatrist at the VA Hospital. The notes did not address whether Cooper was fit for duty. Fuller followed up with Dr. Gottumukkala in a letter asking her opinion as to Cooper’s “fitness for duty as a commercial truck driver.” The doctor did not respond. Murphy sent a second letter, which also drew no response. Fuller explained to Cooper that he still had not provided sufficient documentation to return to active duty. {Id., Ex. 5, ¶¶ 37-40). Just a few days before that, on May 1, 2007, Cooper had filed a Charge of Discrimination with the Texas Workforce Commission (TWC) Civil Rights Division and the United States Equal Employment Opportunity Commission (EEOC). In the part of form asking what the alleged discrimination was “based on,” Cooper checked the boxes for “race” and “retaliation.” He stated that the discrimination began on October 4, 2005 and was ongoing. The Charge of Discrimination stated as follows: I. On October 4, 2005, I was hired as a driver for Wal-Mart. Since the date of my hire, I have noticed difference in treatment in how I am treated compared to the White Drivers that started around the same time as me. White drivers are given more favorable routes, more milage, and better pay. Around September or October 2006,1 complained of the difference in treatment I received in Sealy, TX to Dana Fuller, Regional Personnel Manager. She told me that she would get back in touch with me but never did. On January 31, 2007, I was assaulted by my Regional Manager, Michael Hansen, because I complained of the difference in treatment. II. No reason was given to me concerning the above stated difference in treatment. III. I believe I have been discriminated against because of my race, Black, and retaliated against for opposing an unlawful act, in violation of Title VII Civil Rights Act of 1964, as amended. (Docket Entry No. 35, Ex. 10). Cooper also attached handwritten notes that outlined what he viewed as incidents of discrimination. In addition to the events recounted in his declaration, there are some others. For example, Cooper wrote that he saw a particular type of cross at a dispatcher’s desk, which the dispatcher told Cooper was for her church; Cooper asserted that it was racist because he saw the same type of cross on a Klu Klux Klan website. (Id., Ex. 12 at 5). He reported that Wal-Mart spied on him and that “security or department personnel” followed him in Wal-Mart stores. (Id. at 6-7). Cooper also described a “cover up” of Hansen’s assault involving Dr. Bing, in which the doctor told Cooper that he “couldn’t find anything wrong with [him]” and failed to provide proper care. (Id. at 3). The EEOC investigated under its work-sharing agreement with the TWC. On September 10, 2007, the EEOC issued a Dismissal and Notice of Rights, informing Cooper that it is “unable to conclude that the information obtained establishes violations of the statutes.” (Docket Entry No. 31, Ex. 13). The TWC adopted the EEOC’s findings and sent Cooper a right-to-sue letter on September 26, 2007. (Id., Ex. 14). From April 2007 to September 2007, Cooper was on medical leave of absence. He did not contact Wal-Mart. On September 7, Murphy had received a call from “Rae” at the office of a psychiatrist, Dr. Rakesh Desai. Rae told Murphy that Cooper had come in to request a fitness-for-duty exam. Cooper had told Rae that Wal-Mart would pay for the exam. According to Fuller, “[n]obody at Wal-Mart ever authorized [Cooper] to make such a representation.” (Id., Ex. 5). Murphy never told Cooper that Wal-Mart would pay for that examination. (Id., Ex. 6). On September 19, Cooper obtained a fitness-for-duty letter from Dr. Desai. Cooper paid for Dr. Desai’s examination himself. He instructed Dr. Desai’s office to fax the letter to Wal-Mart’s attorney, Linda Noel Fleunmond. Cooper spoke to Fleunmond that same day; she told him she had received the fax. (Docket Entry No. 35, Ex. 3). On September 18, 2007, Fuller and Ed Parrish, the Director of Human Resources for Transportation, decided to terminate Cooper’s employment. Fuller explained her reasoning as follows: [Throughout [Cooper’s] employment at the Sealy Distribution Center, I had grown concerned regarding [Cooper’s] mental health and fitness to function as a commercial truck driver. My concerns were first based on [Cooper’s] outlandish complaints that could not be substantiated, which also caused me to question [Cooper’s] integrity. When [Cooper] ultimately complained that a Regional Transportation Manager had “assaulted him” by puncturing his shoulder with ring containing a needle full of poison, I felt that it was absolutely necessary for [Cooper] to be certified as fit for duty before operating a Wal-Mart truck again. When Dr. Bing confirmed my concern by disqualifying [Cooper] from work and expressing his own concern for [Cooper’s] well being, I determined that [Cooper] could not be returned to work as a commercial truck driver until a qualified mental health professional examined [Cooper] and a physician with appropriate experience certifying truck drivers as fit for duty under the Department of Transportation Regulations determined that [Cooper] was fit to perform such duties. By September 18, 2007, I felt that, although [Cooper] had been provided repeated opportunities to seek the required fitness for duty examination, he was intentionally avoiding doing so. Indeed, in making my decision to terminate [Cooper’s] employment, among other things, I noted that: (1) although Dr. Bing offered to arrange a meeting for [Cooper] with a psychiatrist, [Cooper] declined Dr. Bing’s assistance because he “didn’t want to go” and (2) [Cooper] intentionally failed to disclose all of the relevant facts to Dr. Gottumukkala and otherwise failed to obtain her professional opinion regarding his fitness for duty. Additionally, I felt that, through his employment with the Sealy Distribution Center, [Cooper] repeatedly made inaccurate statements regarding his co-Associates and members of Wal-Mart management that were essentially lies. (Id, Ex. 5, ¶¶ 44, 45). On September 20, 2007, Peterson and Murphy conducted Cooper’s exit interview. Otis Laskey was also present. Fuller spoke to Peterson and Murphy before the meeting to discuss what Peterson should say to Cooper. Peterson told Cooper that Wal-Mart had investigated all his complaints in good faith, as had the Sealy Police and the EEOC. Peterson said that Wal-Mart had seen a “pattern of integrity issues” and noted specifically Cooper’s accusations against coworkers and Hansen and the representation made to Dr. Desai that Wal-Mart would pay for the examination. Peterson told Cooper that Wal-Mart does not allow, accept, or tolerate integrity issues,” and that Cooper’s employment was terminated. (Docket Entry No. 35, Exs. 14, 15). Cooper refused to sign the exit interview form because it said “Continued integrity issues, gross misconduct, and non-rehirable,” which he thought might implicate him in “fraudulent activity.” (Id.). Cooper sued Wal-Mart in Texas state court on November 16, 2007, alleging employment discrimination and retaliation under Texas statutory law, See Tex. Lab.Code §§ 21.051, 21.055, as well as a common-law assault claim. Wal-Mart removed to this court on January 7, 2008 on the basis of diversity jurisdiction. (Docket Entry No. 1). The parties engaged in extensive discovery, which included several oral depositions. As of October 31, 2008, when he was deposed, Cooper was employed by Crete Carrier Corp. as a truck driver. He testified in his deposition that during his orientation with Crete in 2008, an “elderly gentleman” assaulted him at a restaurant for which Crete had given Cooper and the other drivers a $10 gift card. Cooper testified that he was walking out of the restaurant with a sandwich in one hand and a beverage in the other, and this elderly gentleman and his wife were walking in. The man started laughing and engaging in a “nonchalant conversation” with Cooper, in which he referred to Cooper’s meal and asked, “[w]ell, is that for me?” At the same time, according to Cooper, the man “grabbed” Cooper on his shoulder and with his other hand “smack[ed]” Cooper on the back of his tricep. “[D]ays later, a welt showed up” in the same location. Cooper photographed the welt with his camera phone. (Docket Entry No. 31, Ex. 1, Cooper Depo. at 34-37). In his deposition, Cooper speculated that there was some association between this restaurant incident and the alleged assault by Hansen. Cooper alleges that, because Wal-Mart has some business dealings with Crete and Crete knew Cooper would be at the restaurant, the event was “an outright racist-terrorist assault on me, against me” by Wal-Mart and Crete. (Id. at 38-41). Cooper also believed that he was being followed in his truck and spied on by individuals sent by Wal-Mart security and the Klu Klux Klan because “it would benefit Wal-Mart to just have [him] incarcerated.” (Id. at 48-50). Wal-Mart has moved for summary judgment on all Cooper’s claims. Cooper has responded, Wal-Mart has replied, and Cooper has file a surreply. Wal-Mart has also moved to strike two of Cooper’s potential witnesses. Each of these motions is examined below. II. Wal-Mart’s Motions to Strike Wal-Mart has moved to preclude Cooper from calling two witnesses at trial: Dr. Aruna Gottumukkala and Dr. Paul Rousseau. (Docket Entry Nos. 24, 25). Cooper designated Rousseau as an expert witness. During discovery, Wal-Mart learned that Gottumukkala could be a potential witness as well. Both these doctors are employed by the Department of Veterans Affairs at the VA Hospital in Houston. Under Federal Regulations, VA personnel may not give “opinion or expert testimony in any legal proceedings concerning official VA information, subjects or activities, except on behalf of the United States or a party represented by the United States Department of Justice.” 38 C.F.R. § 14.808. VA personnel may give factual testimony, but only on written request from the party seeking the testimony and with the approval of “the General Counsel, the Regional Counsel, an attorney in the Office of General Counsel designated by the General Counsel, or an attorney in the Regional Counsel office designated by the Regional Counsel.” 38 C.F.R. §§ 14.805, 14.807(b). Wal-Mart submitted written requests to depose Gottumukkala and Rousseau. The VA denied both requests. Wal-Mart argues instead that because it could not take the doctors’ depositions, it would suffer “unfair prejudice” if Cooper were able to use them as witnesses at trial. (Docket Entry Nos. 24 at 1, 25 at 1). Cooper has not responded to the motions to strike. Wal-Mart is in a position analogous to a party whose opponent is attempting to designate an expert after the deadline for doing so has passed. In those cases, a district court must “consider four factors in determining whether the testimony of a late-designated expert witness should be permitted: (1) the importance of the witness’s testimony; (2) the prejudice to the opposing party if the witness is allowed to testify; (3) the possibility that a continuance would cure potential prejudice; and (4) the explanation given for the failure to identify the witness.” Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir.1998) (citation omitted); see also Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir.1998) (citation omitted). The fourth factor does not apply here because there has been no lapse by Cooper for which he must provide an explanation. As to the first factor, the Fifth Circuit has taken two divergent approaches. See Soliz v. Assocs. in Med., P.A., No. H-06-2785, 2007 WL 2141392, at *2 (S.D.Tex. July 25, 2007). Under one approach, the more important the witness, the more important the need for prompt designation. Id. (citing Geiserman v. MacDonald, 893 F.2d 787, 791-92 (5th Cir.1990)). More recently, however, the Fifth Circuit has recognized that parties should be given more latitude when a witness is more important to them. See id. (citing Betzel v. State Farm Lloyds, 480 F.3d 704, 707-08 (5th Cir.2007)). There is scant evidence in the record about the importance of these witnesses. The analysis must rest on the second and third factors, and both favor striking the doctors as witnesses. Wal-Mart would be prejudiced if the witnesses were permitted to testify with no opportunity to depose them. A continuance would not address this problem if, as the record indicates, the VA continued to prevent the doctors from being deposed. Wal-Mart’s motions to strike Gottumukkala and Rousseau as witnesses are granted. III. Wal-Mart’s Motion for Summary Judgment A. The Legal Standards Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir.2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir.2008). The moving party bears a heavier burden when seeking summary judgment on a claim or defense on which it would bear the burden of proof at trial. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). “Thus, if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Id.; see also Meecorp Capital Markets LLC v. Tex-Wave Industries LP, 265 Fed.Appx. 155, 157 (5th Cir.2008) (per curiam) (unpublished) (quoting Fontenot). Cooper brought his retaliation claim under § 21.055 of the Texas Commission on Human Rights Act (“TCHRA”) and his discrimination and hostile work environment claims under § 21.051 of the same statute. See Tex. Lab.Code §§ 21.051, 21.055. The purpose of the TCHRA is to execute the policies of Title VII of the Civil Rights Act of 1964. Tex. Lab.Code § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001). In applying the Texas statute, courts should rely on “analogous federal statutes and the cases interpreting them [as a] guide.” Quantum, 47 S.W.3d at 476. B. Exhaustion of Administrative Remedies Wal-Mart argues that Cooper’s hostile work environment and retaliatory termination claims are not properly before this court because Cooper did not exhaust his administrative remedies by including those claims in his EEOC charge. “The filing of an administrative complaint is a prerequisite to a Title VII suit.” Thomas v. Atmos Energy Corp., 223 Fed.Appx. 369, 376 (5th Cir.2007); Harris v. Honda, 213 Fed.Appx. 258, 261 (5th Cir.2006); Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.2006); Ridgway’s, Inc. v. Payne, 853 S.W.2d 659, 663 (Tex.App.-Houston [14th Dist.], 1993, no writ.) (“Failure to exhaust administrative remedies set forth in the [TCHRA] constitutes a jurisdictional bar to bringing suit under the Act.”). “A Title VII cause of action may be based, not only upon the specific complaints made by the employee’s initial EEOC charge, but also upon any kind of discrimination like or related to the charge’s allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.” Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir.1993); Pacheco, 448 F.3d at 789 (quoting Fine with approval). An EEOC charge must be filed within 300 days of the alleged discrimination. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In determining whether an allegation in a complaint falls within the scope of an EEOC complaint, a court must “engage in fact-intensive analysis of the statement given by the plaintiff in the administrative charge, and look slightly beyond its four corners, to its substance rather than its label.” Pacheco, 448 F.3d at 789. This rule is designed to balance two competing policies. Id. at 788. On the one hand, the exhaustion requirement “serves the dual purposes of giving the employer some warning as to the conduct about which the employee is complaining and affording the EEOC and the employer an opportunity to settle the dispute through conciliation.” Benson v. Mary Kay Inc., No. 3-06-1911, 2007 WL 1719927, at *1 n. 1 (N.D. Tex. June 11, 2007). On the other hand, “the provisions of Title VII were not designed for the sophisticated, and because most complaints are initiated pro se, the scope of an EEOC complaint should be construed liberally.” Pacheco, 448 F.3d at 788 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir.1970)) (quotations omitted). “[F]or the most part, the desired liberality is achieved by application of the rule that courts will look beyond the scope of the charge’s language to the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge.” Pacheco, 448 F.3d at 789 n. 9. 1. The Hostile Work Environment Claim Wal-Mart argues that Cooper’s hostile work environment claim is outside the scope of the administrative investigation that could reasonably have been expected to result from his EEOC Charge of Discrimination. As Wal-Mart points out, nothing on the face of the Charge states a hostile work environment claim. The factual statement on the Charge form, which is “the crucial element of a charge of discrimination,” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 879 (5th Cir.2003), focuses on disparate treatment and does not mention a hostile work environment. But the seven pages of handwritten notes Cooper attached to the Charge, which include a variety of racially-themed statements attributed to Wal-Mart personnel, indicate that a hostile work environment claim is in play. (Docket Entry No. 35, Ex. 10, 12). A reasonable investigator presented with such a long series of incidents would include a hostile work environment within the investigation’s scope. In determining the scope of a reasonable investigation, this court is not limited to the four corners of Cooper’s Charge of Discrimination but may also consider the notes he attached. In Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280-81 (5th Cir.1994), the Fifth Circuit relied, in part, on the plaintiffs EEOC affidavit and discharge questionnaire in determining that the plaintiffs gender-based disparate treatment claim was like or related to her sexual harassment and retaliation claims. In an unpublished case, the court cited Clark, explaining it in a parenthetical: “questionnaire considered in determining whether the plaintiff had exhausted administrative remedies because during the investigation the EEOC pursued all of the alleged claims.” Harris v. Honda, 213 Fed.Appx. 258, 262 (5th Cir.2006). A district court in the Fifth Circuit has addressed the issue and concluded that to determine whether a claim has been exhausted: the decision is to be based on the four corners of the EEOC charge, but the court may also consult related documents, such as a plaintiffs affidavit, the response to the EEOC questionnaire, and attachments to the response, when (1) the facts set out in the document are a reasonable consequence of a claim set forth in the EEOC charge, and (2) the employer had actual knowledge of the contents of the document during the course of the EEOC investigation. This test is subject, of course, to the established principles that the plaintiffs lawsuit may encompass any kind of discrimination like or related to the allegations contained in the EEOC charge, and that the court must not strictly construe the charge and require the complainant to allege every instance of discrimination. Hayes v. MBNA Technology, Inc., No. 3-03-1766, 2004 WL 1283965, at *6 (N.D.Tex.2004). It is unclear from the record whether the EEOC investigated Cooper’s hostile work environment claim or whether WalMart had actual knowledge of the notes’ contents. Courts have required knowledge by employers to ensure that the administrative-filing prerequisite is serving its purpose of providing employers with notice of claims and an opportunity to resolve them internally. See Hayes, 2004 WL 1283965, at *5-*6, *5 n. 9 (citations omitted). But even if Wal-Mart did not have access to Cooper’s notes, the record shows that he had complained to WalMart about several of the incidents he described in those notes. For example, Cooper complained about the fire in his truck, the rash caused by his uniform, and someone contaminating his baby wipes, all allegations appearing in his notes. WalMart argues that Cooper had not once told anyone at Wal-Mart that he suspected any race-based motivation for the issues he complained about. But the EEOC Charge, which Wal-Mart clearly received, asserts race as its basis. Because WalMart was aware of many of the alleged incidents underlying Cooper’s Charge of Discrimination and described in the notes he attached to that Charge, the notes are appropriately considered in deciding whether the hostile work environment claim would reasonably fall within the scope of the EEOC’s investigation. Reading Cooper’s Charge of Discrimination and his notes together makes it apparent that his hostile work environment claim is like or related to the discrimination claim presented to the EEOC. Cooper’s notes allege many instances of harassment, including a series of racial or quasi-racial comments. A reasonable EEOC official would include the alleged hostile work environment within the scope of the investigation. Cooper’s hostile work environment claim is properly before the court. 2. Retaliation The Fifth Circuit has created an exception to the exhaustion requirement for claims asserting retaliation for filing an EEOC complaint. Gupta v. East Texas State Univ., 654 F.2d 411, 413-14 (5th Cir.1981). In Gv/pta, the plaintiff filed an EEOC charge alleging discrimination in pay and work assignments. During the EEOC investigation, Gupta filed a second EEOC charge claiming that he had been retaliated against for filing the first charge. After the EEOC issued a right to sue letter on the first charge, Gupta sued. The EEOC later issued a right to sue letter on the second charge. After he filed suit, Gupta was told that his contract would not be renewed. He did not file a third EEOC charge based on the nonrenewal but added an allegation to his lawsuit that the nonrenewal was in retaliation for filing the first two EEOC charges. Id. at 412-13. The court held that the exhaustion requirement did not bar the retaliation claims. Additional EEOC filings based on events after a lawsuit was filed “would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII ... especially since the EEOC relies largely upon the private lawsuit to obtain the goals of Title VII.” Id. at 414. The panel decided that Gupta’s “retaliatory discharge” (nonrenewal) claim was within the district court’s jurisdiction. “[I]t is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court.” Id. at 413. Wal-Mart admits that Gupta “might allow” Cooper to proceed on his retaliatory termination claim without filing a second EEOC charge, but argues that Gupta “has been undermined or abrogated by the Supreme Court’s holding in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 [122 S.Ct. 2061, 153 L.Ed.2d 106] (2002).” (Docket Entry No. 36 at 8 n. 5). In Morgan, the Supreme Court held that Title VII plaintiffs could not use a “continuing violation” theory to assert claims that were barred because they were based on employer acts outside the 300-day statutory window for filing an EEOC charge. Morgan, 536 U.S. at 113-14, 122 S.Ct. 2061. After Morgan, “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’ ” Id. at 114., 122 S.Ct. 2061 Although Morgan involved incidents that took place before the EEOC charge was filed, courts have extended it to exclude any acts that occurred after filing from piggybacking onto an earlier-filed charge. See, e.g., Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir.2003); McKenzie v. St. Tammany Parish School Bd., No. 04-0420, 2006 WL 2054391, at *2, *3 (E.D.La. Jul. 19, 2006); Prince v. Rice, 453 F.Supp.2d 14, 23-24 (D.D.C.2006); Romero-Ostolaza v. Ridge, 370 F.Supp.2d 139, 148-50 (D.D.C.2005). Some courts have gone a step further, holding that administrative remedies must be separately exhausted for claims of retaliation based on an earlier-filed EEOC charge that is already properly before the court. See Prince, 453 F.Supp.2d at 23-24; Romero-Ostolaza, 370 F.Supp.2d at 148-50. Courts in the Fifth Circuit have continued to apply Gupta after Morgan. See Lightfoot v. OBIM Fresh Cut Fruit Co., No. 4-07-608, 2008 WL 4449512, at *3 (N.D.Tex. Oct. 2, 2008) (applying Gupta but distinguishing it on the facts); Ocampo v. Laboratory Corp. of America, No. 04-538, 2005 WL 2708790, at *7 (W.D.Tex. Sept. 6, 2005) (“Assuming the claims based on the charge of age discrimination are properly before the Court, and given [Gupta ], Ocampo was not required to file a second charge of discrimination.”); Green v. Louisiana Casino Cruises, Inc., 319 F.Supp.2d 707, 710-11 (M.D.La.2004) (citing Gupta and two later Fifth Circuit cases for the proposition that “a plaintiff is not required to exhaust administrative remedies before seeking review of a retaliation claim that grows out of an earlier EEOC charge”); see also Houston v. Army Fleet Services, LLC, 509 F.Supp.2d 1033 (M.D.Ala.2007) (citing Gupta, which is binding in the Eleventh Circuit as well); White v. Potter, No. 1-06-1759, 2007 WL 1330378, at *7 (N.D.Ga. Apr. 30, 2007) (finding Gupta’s policy rationale persuasive, recognizing the D.C. District Court’s post -Morgan opinions as rejecting Gupta’s holding, but deciding not to follow the D.C. decisions “given that Gupta is binding precedent in [the Eleventh] Circuit”). Under Gupta, Cooper’s retaliatory termination claim is “properly before the court” because it grows out of the earlier filed EEOC and TWC charge. See Gupta, 654 F.2d at 413. On these facts, Gupta places the retaliation claim within this court’s “ancillary jurisdiction.” Id. Because Cooper’s retaliation claim falls within an exception to the exhaustion requirement, this court will consider it on the merits as well. C. The Retaliation Claim On the merits, Cooper’s retaliation claim fails as a matter of law. The McDonnell Douglas burden-shifting framework applies to retaliation claims. See Mota v. Univ. of Texas Houston Health Science Center, 261 F.3d 512, 519-20 (5th Cir.2001); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, the employee’s ultimate burden is to prove that the employer’s stated reason for the adverse action was merely a pretext for the real, retaliatory purpose. If a plaintiff makes a prima facie showing, the burden shifts to the defendant to proffer a legitimate rationale for the underlying employment action. The burden then shifts back to the plaintiff to demonstrate that the employer’s articulated reason for the employment action was a pretext for retaliation. Mota, 261 F.3d at 519-20. The standard of proof on the pretext element of a Title VII retaliation claim is that the adverse employment action taken against the plaintiff would not have occurred “but for” her protected conduct. Septimus v. Univ. of Houston, 399 F.3d 601 (5th Cir.2005); Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir.2004). The elements of a prima facie retaliation claim are that: (1) the plaintiff engaged in an activity protected by the statute; (2) an adverse employment action occurred; and (3) a causal link exists between the protected activity and the adverse employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir.2007). Title VII’s antiretaliation provision encompasses two broad types of protected activity, making it “an unlawful employment practice for an employer to discriminate against any of his employees ... [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The Texas statute is similar: Am employer commits an unlawful employment practice if the employer retaliates against a person who (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. Tex. Lab.Code § 21.055. Under the statute, making internal complaints or filing a charge with the EEOC or the TWC is protected conduct. The Supreme Court recently clarified in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), that an “adverse employment action” is defined differently in the retaliation context than it is in the discrimination context. Id. at 68,126 S.Ct. 2405. In the retaliation context, it is an action that “a reasonable employee would have found ... [to be] materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. (internal quotations omitted). In his opposition to Wal-Mart’s summary judgment motion, Cooper identifies only his termination as a possible adverse employment action. Job termination is clearly an adverse employment action. The causal link required for a prima facie showing of retaliation does not rise to the level of a “but for” standard. Gee, 289 F.3d at 345. A “causal link” for a prima facie showing is established if evidence shows that “the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity.” Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir.2001). “Close timing between an employee’s protected activity and an adverse action against [her] may provide the ‘causal connection’ required to make out a prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997). The Supreme Court has noted that “cases that accept mere temporal proximity ... as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’ ” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). The Fifth Circuit has found temporal proximity of up to four months sufficient to show a causal link. See, e.g., Bell v. Bank of Am., 171 Fed.Appx. 442, 444 (5th Cir.2006) (holding that a seven-month period does not support establish a causal link); Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir.2002) (holding that a five-month period does not support an inference of a causal link); Harvey v. Stringer, 113 Fed.Appx. 629, 631 (5th Cir.2004) (finding that a ten-month period did not create a causal link); Stroud v. BMC Software, Inc., — Fed.Appx. —, 2008 WL 2325639 (5th Cir. Jun. 6, 2008) (finding that a three-week lapse between protected activity and adverse employment action was sufficient to show a causal link); Richard v. Cingular Wireless LLC, 233 Fed.Appx. 334, 338 (5th Cir.2007) (concluding that two-and-one-half months is a short enough period to support an inference of a causal link); Jones v. Robinson Property Group, L.P., 427 F.3d 987, 995 (5th Cir.2005) (finding that a period of less than sixty days was sufficiently close to establish causal link for prima facie case of retaliation); Ware v. CLECO Power LLC, 90 Fed.Appx. 705, 708 (5th Cir.2004) (finding a fifteen-day period sufficient to support an inference of causation); Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir.2001) (finding that “a time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes” (internal citations omitted)); see also Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997) (“Close timing between an employee’s protected activity and an adverse action against him may provide the ‘causal connection’ required to make out a prima facie case of retaliation.”). Cooper filed his charge with the TWC and EEOC on May 1, 2007. He was fired on September 20, 2007, four and one-half months later. Cooper has identified no case in which a period of longer than four months has been found to establish a causal link. Indeed, the cases indicate that after four months — at most — some additional, nontemporal evidence is necessary to support a causation inference. Cooper argues that Wal Mart’s exit-interview colloquy, as recorded by both Paul Peterson and Kay Murphy, provides such evidence. Peterson’s account reads in relevant part: I informed [Cooper] that the time had come for us to discuss some of the issues he had brought up over the last few months. I informed him that in good faith we had investigated all of his allegations. Also that the Sealy police and the EEOC had investigated some of the issues as well. We have seen a pattern of integrity issues with all of the allegations. Then on September 7th you fraudulently requested Dr. Desai to conduct a fitness for duty exam at WalMarts (sic) expense. I informed him that over the past few months he had continued to demonstrate integrity issues and that we cannot accept that and we do not tolerate integrity issues. Therefore your (sic) as of now your employment is terminated. (Docket Entry No. 35, Ex. 14). Murphy’s account is not materially different: Paul [Peterson] informed [Cooper] that the time had come to talk about some of the issues he had brought up to us in the last few months. Paul told him that in good faith we had investigated all of his allegations and that the Sealy police and the EEOC had investigated his allegations. We have seen a pattern of integrity issues with all of his allegations. On September 7th, he requested a psychiatric fitness for duty exam by Dr. Desai and fraudulently informed them that Wal-Mart had requested the exam and would pay for it. He has continued to show integrity issues and we do not allow, accept, or tolerate integrity issues, therefore, he is terminated as of this date. (Id., Ex. 15). Dana Fuller testified in her deposition that she told Peterson what to say to Cooper at the exit interview. Fuller also testified that she, along with Ed Parish, made the decision to fire Cooper. (Id., Ex. 2 at 25, 34). Cooper argues that these statements are evidence that his EEOC complaint was the true reason for Wal-Mart’s decision to fire him. Cooper points to the reference to the EEOC investigation and to Fuller’s reference to “a pattern of integrity issues wit