Daniel v. Logoplaste

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVEN DANIEL, §

§

Plaintiff, §

§

V. § No. 3:25-cv-250-E

§

LOGOPLASTE, AND DOES 1-25 §

INCLUSIVE, §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Steven Daniel filed a petition in state court on December 23, 2024

alleging claims (1) of disparate treatment and retaliation under Title VII of the Civil

Rights Act of 1964 and Chapter 21 of the Texas Labor Code, (2) under the

Occupational Safety and Health Act and the Texas Whistleblower Act, and (3) for

breach of an implied contract and intentional infliction of emotional distress (“IIED”).

See Dkt. No. 1, Ex. 2; cf. Reed v. Neopost USA, Inc., 701 F.3d 343, 437 (5th Cir. 2012)

(noting that Chapter 21 was formerly known as the Texas Commission on Human

Rights Act (the “TCHRA”), a term some courts and parties continue to use).

Defendant Logoplaste Dallas LLC (incorrectly named in the state court

petition) removed under the Court’s federal-question subject-matter jurisdiction. See

Dkt. No. 1.

Logoplaste then moved to dismiss Daniel’s complaint under Federal Rule of

Civil Procedure 12(b)(6). See Dkt. Nos. 6-8. And, after Daniel responded, Logoplaste

replied, and the Court denied Daniel leave to file a sur-reply, see Dkt. Nos. 11-13 &

15, United States District Judge Ada Brown referred the motion to dismiss to the

undersigned United States magistrate judge for recommendation under 28 U.S.C. §

636(b), see Dkt. No. 14; 28 U.S.C. § 636(b)(1).

For the reasons set out below, the undersigned recommends that the Court

grant the motion.

Legal Standards

Considering a motion under Rule 12(b)(6), the Court “accepts all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina

Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).

Even so, a plaintiff must plead “enough facts to state a claim to relief that is

plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must

plead those facts with enough specificity “to raise a right to relief above the

speculative level,” id. at 555.

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); cf. Bryant v. Ditech

Fin., L.L.C., No. 23-10416, 2024 WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as

plaintiffs cannot state a claim using speculation, defendants cannot defeat plausible

inferences using speculation.”).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556

U.S. at 678.

So, “[w]here a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g.,

Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random

puffs of smoke but nothing resembling real signs of fire, the plausibility standard is

not satisfied.”).

And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed

factual allegations, it does require that a plaintiff allege more than labels and

conclusions, and, so, while a court must accept a plaintiff’s factual allegations as true,

it is “not bound to accept as true a legal conclusion couched as a factual allegation.”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Consequently, a threadbare or formulaic recitation of the elements of a cause

of action, supported by mere conclusory statements, will not suffice. See id.;

Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume

true a number of categories of statements, including legal conclusions; mere labels;

threadbare recitals of the elements of a cause of action; conclusory statements; and

naked assertions devoid of further factual enhancement.’” (quoting Harmon v. City of

Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).

And, so, “to survive a motion to dismiss” under Twombly and Iqbal, plaintiffs

must “plead facts sufficient to show” that the claims asserted have “substantive

plausibility” by stating “simply, concisely, and directly events” that they contend

entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per

curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)).

Aside from “matters of which judicial notice may be taken under Federal Rule

of Evidence 201,” Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d

890, 900 (5th Cir. 2019) (citations omitted), a court cannot look beyond the pleadings

in deciding a Rule 12(b)(6) motion, see Spivey v. Robertson, 197 F.3d 772, 774 (5th

Cir. 1999); see also Basic Capital Mgmt., Inc. v. Dynex Capital, Inc., 976 F.3d 585,

589 (5th Cir. 2020) (Federal Rule of Evidence 201(d) “expressly provides that a court

‘may take judicial notice at any stage of the proceeding,’ and our precedents confirm

judicially noticed facts may be considered in ruling on a 12(b)(6) motion.” (citations

omitted)).

But pleadings in the Rule 12(b)(6) context include attachments to the

complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); see

also Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir. 2019) (“The

Civil Rules provide that an attachment to a complaint generally becomes ‘part of the

pleading for all purposes,’ including for ruling on a motion to dismiss.” (quoting FED.

R. CIV. P. 10(c); citations omitted)).

And, “[w]hen an allegation is contradicted by the contents of an exhibit

attached to the pleading,” “the exhibit and not the allegation controls.” Rogers v. City

of Yoakrum, 660 F. App’x 279, 285 n.6 (5th Cir. 2016) (per curiam) (cleaned up;

quoting United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377

(5th Cir. 2004) (citing Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th

Cir. 1940))).

Documents “attache[d] to a motion to dismiss are considered to be part of the

pleadings, if they are referred to in the plaintiff’s complaint and are central to her

claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)

(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.

1993)).

And, while the United States Court of Appeals for the Fifth Circuit “has not

articulated a test for determining when a document is central to a plaintiff’s claims,

the case law suggests that documents are central when they are necessary to

establish an element of one of the plaintiff’s claims. Thus, when a plaintiff’s claim is

based on the terms of a contract, the documents constituting the contract are central

to the plaintiff’s claim.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D.

Tex. 2011).

But, “if a document referenced in the plaintiff’s complaint is merely evidence

of an element of the plaintiff’s claim, then the court may not incorporate it into the

complaint.” Id.

And a plaintiff may not amend his allegations through a response to a motion

to dismiss. “[A] claim for relief” must be made through a pleading, FED. R. CIV. P. 8(a),

and a response to a motion is not among the “pleadings [that] are allowed” under the

Federal Rules of Civil Procedure, FED. R. CIV. P. 7(a); see, e.g., Klaizner v.

Countrywide Fin., No. 2:14-CV-1543 JCM (PAL), 2015 WL 627927, at *10 (D. Nev.

Feb. 12, 2015) (“All claims for relief must be contained in a pleading. A response to a

motion is not a pleading and it is improper for the court to consider causes of action

not contained in the pleadings.” (citations omitted)).

Analysis

I. The Court should dismiss Daniel’s disparate-treatment and retaliation claims

under Title VII and Chapter 21.

In general, “[c]ourts apply the same standards when analyzing claims under

Title VII and Chapter 21 of the Texas Labor Code.” Mott v. Schneider Elec. Sys., USA,

Inc., No. 4:24-cv-3084, 2025 WL 1549461, at *2 (S.D. Tex. May 30, 2025) (citing

Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004)).

But different standards can apply when courts consider whether such claims

have been timely exhausted:

In Texas, which has a state fair employment agency (the Texas

Workforce Commission – “TWC”) that has a work-sharing agreement

with the EEOC, a Title VII plaintiff must file a charge of discrimination

with the EEOC within 300 days of the alleged discriminatory act. Fort

Bend Cnty., Tex. v. Davis, 587 U.S. 541, 544 (2019). “The time period

generally begins to run when the employee receives notice of the

allegedly discriminatory decision, not when the employment actually

ceases.” Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir.

1992). Failure to file a charge with the EEOC and exhaust

administrative remedies before filing a Title VII action will result in

dismissal. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.

1996). The TCHRA also requires a plaintiff to exhaust administrative

remedies, and the relevant time period is shorter: 180 days rather than

300. TEX. LAB. CODE § 21.202(a); see also Hinkley v. Envoy Air, Inc., 968

F.3d 544, 552-53 (5th Cir. 2020). Filing a charge with the EEOC satisfies

the complaint-filing requirement for the TCHRA, but the 180-day time

limit under the TCHRA still applies. Griffin v. City of Dall., 26 F.3d 610,

612-13 (5th Cir. 1994); see also Adams v. DaimlerChrysler Servs. NA

LLC, 252 F. App’x 681, 683 (5th Cir. 2007) (affirming district court’s

dismissal of TCHRA claims as time-barred when those claims accrued

more than 180 days before the plaintiff filed her EEOC charge).

Doe v. Univ. of Tex. M.D. Anderson Cancer Ctr., 653 F. Supp. 3d 359, 371 (S.D. Tex.

2023) (cleaned up); accord Trevino v. Mouser Elecs., No. 4:22-cv-610-P, 2023 WL

3984668, at *3 (N.D. Tex. May 11, 2023), rec. accepted, 2023 WL 3984840 (N.D. Tex.

June 13, 2023).

The purpose of exhaustion “is to facilitate the administrative agency’s

investigation and conciliatory functions and to recognize its role as primary enforcer

of anti-discrimination laws.” Davis v. Fort Bend Cnty., 893 F.3d 300, 307 (5th Cir.

2019) (quoting Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012)). Administrative

exhaustion therefore “provides an opportunity for voluntary compliance before a civil

action is instituted.” Id.; cf., e.g., Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th

Cir. 2021) (“To exhaust, a plaintiff must file a timely charge with the EEOC and then

receive a notice of the right to sue.” (citation omitted)).

But these “charge-filing instruction[s are] not jurisdictional…. [Instead,] they

are properly ranked among the array of claim-processing rules that must be timely

raised to come into play.” Davis, 587 U.S. at 543-44; see also Hinkley, 968 F.3d at 554

(concluding that “Texas Labor Code § 21.202’s 180-day filing requirement is

mandatory but not jurisdictional”).

That is, “[f]ailure to exhaust is an affirmative defense that should be pleaded.”

Davis, 893 F.3d at 307 (citations omitted).

And Daniel does plead that he filed a charge of discrimination with the EEOC

“within 180 days after [he] was terminated” and that “[a] Right to Sue has been issued

on the Charge.” Dkt. No. 1-1 at 15, ¶¶ 41-44.

And, while Daniel does not attach the charge to the complaint, the Court may

still take judicial notice of the charge, filed with the motion to dismiss [Dkt. No. 8,

Ex. A], “as a matter of public record.” King v. Life School, 809 F. Supp. 2d 572, 579

n.1 (N.D. Tex. 2011) (taking judicial notice of the charge to address exhaustion raised

in a motion to dismiss); see also Prewitt v. Cont’l Auto., 927 F. Supp. 2d 435, 447-48

(W.D. Tex. 2013) (same; collecting cases); West v. R&K Enters. Solutions, No. 3:23-cv-

1371-G-BN, 2024 WL 3891533, at *5 (N.D. Tex. July 19, 2024) (“[E]ven if not

referenced in the complaint and central to West’s claims, the Court can take judicial

notice of the EEOC charge as a public record.” (citing King, 809 F. Supp. 2d at 579

n.1)), rec. accepted, 2024 WL 3891838 (N.D. Tex. Aug. 21, 2024); Golden v. Mgmt. &

Training Corp., 319 F. Supp. 3d 358, 366 n.2 (D.D.C. 2018) (“In employment

discrimination cases, courts often take judicial notice of EEOC charges and EEOC

decisions.” (collecting cases)); cf. Boshears v. Polaris Eng’g, No. 3:22-cv-00053, 2023

WL 2844930, at *3 (S.D. Tex. Mar. 27, 2023) (refusing to take judicial notice of the

Charge Detail Inquiry where the parties disputed its application to the timeliness of

plaintiff’s complaint), rec. adopted, 2023 WL 3305165 (S.D. Tex. May 8, 2023).

Through the charge that Daniel filed on December 26, 2024 – three days after

his filed this action in state court – Daniel alleges that he was terminated on June 7,

2024 – more than 180 days prior to his filing the charge. See Dkt. No. 8 at 4-5.

And, to the extent that the charge itself conflicts with Daniel’s allegations that

it “was filed within 180 days after [he] was terminated” and that this lawsuit was

filed after “[a] Right to Sue [was] issued on the Charge,” Dkt. No. 1-1 at 15, ¶¶ 42 &

43, like an exhibit that is part of the pleadings, the Court need not accept procedural

or temporal allegations of fact that are disproved by a document that is subject to

judicial notice and thus may be considered under Rule 12(b)(6)’s standards, cf.

Hoffman v. L & M Arts, No. 3:10-cv-953-D, 2011 WL 3567419, at *9 (N.D. Tex. Aug.

15, 2011) (Simmons “instruct[s] that a genuine conflict between the complaint and a

pleading exhibit requires that the court accept the exhibit rather than the factual

allegations as true.”).

So, based on the established Rule 12(b)(6) framework of what may be

considered and how a court resolves conflicts within that material, Daniel failed to

initiate – and thus failed to exhaust – administrative remedies prior to instituting

this civil action. The Title VII and Chapter 21 claims should be dismissed for this

reason alone. See, e.g., Greggs v. Autism Speaks, Inc., 935 F. Supp. 2d 9, 13 (D.D.C.

2013) (“Because plaintiff deprived the EEOC of the opportunity to resolve the present

matter administratively, her claims under Title VII … in this court must be dismissed

for failure to exhaust administrative remedies.” (citations omitted)); see also Morgan

v. Bray, 1:23-CV-72-MPM-DAS, 2024 WL 780421, at *1 (N.D. Miss. Feb. 26, 2024) (“It

is undisputed that Dr. Morgan failed to administratively exhaust her claims before

filing this lawsuit. This precludes the Court from considering her claims.”).

And the Court must dismiss the Chapter 21 claims with prejudice since Daniel

failed to file a charge within 180 days of his termination. See, e.g., Clark v. Champion

Nat’l Sec., Inc., 952 F.3d 570, 586 n.5 (5th Cir. 2020) (“Clark also asserted disability-

based harassment claims under the Texas Labor Code, pursuant to which a charge

‘must be filed not later than the 180th day after the date the alleged unlawful

employment practice occurred.’ TEX. LAB. CODE § 21.202(a). As the district court

explained, ‘[a] charge filed with the EEOC, more than 180 days after the occurrence

of an alleged unlawful employment practice under the [TCHRA], is subject to

dismissal as time-barred. See Adams v. DaimlerChrysler Servs. NA LLC, 252 F. App’x

681, 683 (5th Cir. 2007).’ Clark filed his EEOC charge on January 10, 2017. Applying

the limitation imposed by the TCHRA, the district court concluded that ‘all state law

claims arising before July 14, 2016[ ] must be dismissed as time-barred.’ We agree

with the district court’s analysis.” (cleaned up)).

And, even if Daniel had exhausted his Title VII claims and timely exhausted

his Chapter 21 claims, they remain subject to dismissal as not plausibly pleaded.

Treating the federal- and state-law claims as substantively the same and

analyzing them under Title VII, that statute’s “disparate-treatment provision bars

employers from intentionally discriminating against their employees on the basis of

race, color, religion, sex, or national origin.” Ames v. Ohio Dep’t of Youth Servs., 605

U.S. ___, 145 S. Ct. 1540, 1545 (2025) (citing 42 U.S.C. § 2000e-2(a)(1))); cf. TEX. LAB.

CODE § 21.001(1) (observing that the first “general purpose[] of this chapter” is to

“provide for the execution of the policies of Title VII of the Civil Rights Act of 1964

and its subsequent amendments”).

42 U.S.C. § 2000e-3(a), “[t]he antiretaliation provision of Title VII[,] prohibits

an employer from discriminating against an employee or job applicant because that

individual opposed any practice made unlawful by Title VII or made a charge,

testified, assisted, or participated in a Title VII proceeding or investigation.” Ayorinde

v. Team Indus. Servs. Inc., 121 F.4th 500, 507-08 (5th Cir. 2024) (quoting Brown v.

Wal-Mart Stores E., L.P., 969 F.3d 571, 576-77 (5th Cir. 2020), as revised (Aug. 14,

2020)).

And, when a court applies Rule 12(b)(6)’s standards to a Title VII claim, the

complaint “need not contain specific facts establishing a prima facie case of

discrimination [or retaliation] under the framework set forth ... in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).” Norsworthy v. Hous. Indep. Sch. Dist., 70 F.4th

332, 336 (5th Cir. 2023) (cleaned up); accord Hamilton v. Dall. Cnty., 79 F.4th 494,

502 n.45 (5th Cir. 2023) (en banc).

“But a plaintiff is still required to plead sufficient facts on all of the ultimate

elements of [each] claim.” Norsworthy, 70 F.4th at 336 (cleaned up; emphasis in

original).

And, at this stage, “a plaintiff must plead two ‘ultimate elements’ in order ‘to

support a disparate treatment claim … : (1) an ‘adverse employment action,’ (2) taken

against a plaintiff ‘because of [a] protected status.’” Thomas v. Dall. Indep. Sch. Dist.,

No. 23-10882, 2024 WL 2874367, at *4 (5th Cir. June 7, 2024) (quoting Cicalese v.

Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019); emphasis in Cicalese).

That is,

[a] complaint need not allege each prong of the prima facie test for

disparate treatment … ; to support a disparate treatment … , though, it

must plausibly set out facts that the defendant took the adverse

employment action against a plaintiff because of [a] protected status.

[Accordingly, a] plaintiff must allege facts, direct or circumstantial, that

would suggest [the employer’s] actions were based on [the plaintiff’s

protected status] or that [the employer] treated similarly situated

employees [not of the plaintiff’s protected status] more favorably.

Sanchez v. Chevron N. Am. Exploration & Prod. Co., No. 20-30783, 2021 WL 5513509,

at *5 (5th Cir. Nov. 24, 2021) (per curiam) (cleaned up; emphasis in original).

“Similarly, for a retaliation claim, a plaintiff only needs to plausibly ‘allege

facts going to the ultimate elements of the claim to survive a motion to dismiss.’”

Smith v. Kendall, No. 23-50713, 2024 WL 4442040, at *4 (5th Cir. Oct. 8, 2024) (per

curiam) (quoting Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021)).

And those “ultimate elements” are “that 1) [the plaintiff] engaged in protected

activity, 2) she suffered an adverse employment action, and 3) a causal link exists

between the protected activity and the adverse employment action.” Wright, 990 F.3d

at 433 (cleaned up).

Daniel fails to plead a plausible disparate-treatment claim where he alleges no

facts from which the Court may infer that he was discriminated against because of

race, color, religion, sex, or national origin. And Daniel’s retaliation claim is similarly

defective because no allegations allow for a reasonable inference that he engaged in

protected activity. See, e.g., Dkt. No. 8 at 4 (EEOC charge) (“Steven Daniel was

subjected to unlawful employment practices by Logoplaste in violation of Texas and

federal laws. Hired as a Material Handler, Mr. Daniel was compelled to perform

duties beyond his job scope, including operating unsafe machinery without proper

training or compensation. He reported unsafe working conditions and discriminatory

treatment, which he claims violated OSHA regulations and Title VII protections.

Following his complaints, Mr. Daniel was unlawfully terminated in retaliation for his

protected activities, causing significant financial, emotional, and professional

harm.”).

While Daniel may not amend his claims through his response to the motion to

dismiss, that response does help the Court better understand the protected class to

which Daniel claims he belongs, the protected activity in which Daniel claims he

engaged, and why he believes his allegations plausibly plead claims under Title VII

and Chapter 21. For example, Daniel contends that,

“[w]hile it is true that Title VII and the Texas Labor Code prohibit

discrimination based on specific protected categories such as race, color,

religion, sex, national origin, age, and disability, Plaintiff does not need

to identify a protected category explicitly in every instance in order to

make a valid claim. In this case, Plaintiff has sufficiently alleged

discriminatory treatment related to his position as a contract employee,

which is tied to the discriminatory and retaliatory actions taken by

Defendant. Although Defendant asserts that Plaintiff’s status as a

contract worker is not a protected category under either statute,

Plaintiff’s allegations involve more than just his status as a contract

employee; they also implicate retaliatory actions following Plaintiff’s

complaints regarding unsafe working conditions and inequitable

treatment.

Dkt. No. 9, ¶ 38.

Similarly, Daniel asserts that his

complaints regarding unsafe working conditions and inequitable

treatment as a contract worker are sufficient to qualify as protected

activity. Complaints about unsafe working conditions are recognized as

protected activity when they implicate discriminatory or retaliatory

practices under Title VII. Plaintiff’s concerns about hazardous working

conditions and unfair treatment are directly related to retaliation, and

therefore, his actions qualify as protected activity under both Title VII

and the Texas Labor Code.

Id., ¶ 31; see also id., ¶¶ 34 & 35 (“The law requires only that Plaintiff show that he

engaged in protected activity, suffered an adverse employment action, and that there

is a causal connection between the two. Plaintiff has adequately alleged all three

elements of a retaliation claim. Plaintiff raised concerns regarding workplace safety,

which constitutes protected activity. Defendant took an adverse action against

Plaintiff by terminating him, and there is a clear causal connection between

Plaintiff’s complaints and his termination. The facts presented in the Petition clearly

state a plausible claim for retaliation under both Title VII and the Texas Labor Code,

and Plaintiff is entitled to proceed to discovery. Plaintiff’s wrongful termination claim

is also adequately pled. Like the retaliation claim, Plaintiff has shown that his

termination was based on his engagement in protected activity. Plaintiff’s complaints

about unsafe working conditions and discriminatory treatment led to adverse

employment action, and this causal connection supports his claim for wrongful

termination. As with the retaliation claim, Plaintiff has met the necessary pleading

standards under both Title VII and the Texas Labor Code to proceed with his

wrongful termination claim.”).

The undersigned cannot agree with Daniel that his alleged status as a contract

employee who complained about unsafe working conditions and unequal treatment

not based on a category protected by Title VII and Chapter 21 but instead “related to

his position as a contract employee” is enough to plausibly plead disparate-treatment

and retaliation claims under either statute.

Again, missing from Daniel’s allegations are facts from which the Court may

infer that an adverse employment action was “take against [him] because of a

protected status.” Thomas, 2024 WL 2874367, at *4 (cleaned up).

Neither Daniel’s alleged status as a contract employee nor as a contract

employee who complained about workplace safety counts as a statutorily-protected

status.

Daniel’s retaliation claim similarly fails. While internal complaints may

constitute a protected activity for purposes of a retaliation claim, such complaints

must “oppose[ a] practice made unlawful by Title VII.” Ayorinde, 121 F.4th at 507-08;

Brown, 969 F.3d at 576-77 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 56 (2006) (quoting 42 U.S.C. § 2000e-3(a))); see, e.g., Rodriguez v. Wal-Mart

Stores, Inc., 540 F. App’x 322, 328 (5th Cir. 2013) (per curiam) (“An employee that

files an internal complaint of discrimination engages in a protected activity.” (citing

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001))); Walker v. Univ. of

Tex. Med. Branch – Galveston, No. 3:17-CV-00313, 2018 WL 3850827, at *4 (S.D. Tex.

July 3, 2018) (noting that courts in this circuit “uniformly hold that an informal

complaint must reference a discriminatory practice to constitute a protected activity”

(citations omitted)), rec. adopted, 2018 WL 3844691 (S.D. Tex. Aug. 13, 2018); cf.

Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010) (per curiam)

(“Magic words are not required, but protected opposition must at least alert an

employer to the employee’s reasonable belief that unlawful discrimination is at

issue.” (collecting cases)).

Complaining about workplace safety does not, without more, qualify as a

protected activity.

II. The Court should dismiss Daniel’s remaining claims.

First, to the extent that Daniel brings a standalone claim under the

Occupational Safety and Health Act (the “OSHA”), see Dkt. No. 1-1 at 18-20, ¶¶ 58-

64, he fails to show that the OSHA provides a private right of action, cf., e.g., Haddix

v. CentraSol, LLC, No. 3:20-cv-1995-X-BT, 2021 WL 3476811, at *3-*4 (N.D. Tex. July

21, 2021) (concluding, the plaintiff’s “disapproval of the statute notwithstanding, the

Fifth Circuit has made clear that [29 U.S.C.] §§ 654 and 660(c) do not provide private

causes of action,” and, so, “the District Court should dismiss Haddix’s §§ 654 and

660(c) claims with prejudice for failure to state a claim”), rec. accepted, 2021 WL

3475562 (N.D. Tex. Aug. 6, 2021).

As a claim made by a “private whistleblower,” Daniel’s standalone claim under

the Texas Whistleblower Act (the “TWA”), see Dkt. No. 1-1 at 20-21, ¶¶ 65-71 (citing

TEX. GOV’T CODE ANN. § 554.001 et seq.), should also be dismissed with prejudice.

“There is no cause of action under the TWA for employees of private entities who

report illegal activity, also known as private whistleblowing.” Reed v. Mgmt. &

Training Corp., No. 3:02-cv-367-H, 2002 WL 1812092, at *2 (N.D. Tex. Aug. 5, 2002)

(citing Thompson v. El Centro Del Barrio, 905 S.W.2d 356, 359 (Tex. App. – San

Antonio 1995, writ denied)); cf. Austin v. HealthTrust, Inc. – The Hosp. Co., 967

S.W.2d 400, 401-02 (Tex. 1998) (“Rather than create a one-size-fits-all whistleblower

statute, the Texas Legislature has instead opted to enact statutes that protect specific

classes of employees from various types of retaliation. For example, section 554.002

of the Government Code protects public employees from retaliation for reporting, in

good faith, the employing governmental entity’s or fellow employees’ violations of law

to an appropriate law enforcement agency.” (citation omitted)).

Daniel’s breach-of-an-implied-contract claim, based on the employee

handbook, also fails where “[a]s a general rule employee handbooks and policy

manuals constitute general guidelines in the employer/employee relationship and do

not create implied contracts between the employer and employee.” Brown v. Sabre,

Inc., 173 S.W.3d 581, 585-86 (Tex. App. – Fort Worth 2005, no pet.) (collecting cases);

Young-Trezant v. Lone Star Coll. Sys., No. 23-20551, 2024 WL 2794483, at *2 (5th

Cir. May 31, 2024) (per curiam) (“Employer policies do not qualify as contracts, and

their ‘breaches’ do not create causes of action under Texas law.” (citing Brown, 173

S.W.3d at 585)).

“This is particularly true if the handbook contains a disclaimer.” Brown, 173

S.W.3d at 586 (citation omitted); compare McAllen Hosps., L.P. v. Lopez, 576 S.W.3d

389, 396 (Tex. 2019) (“As we have previously held, an employee handbook that

contains [ ] a disclaimer of contractual intent ‘is not a contract.’” (quoting In re 24R,

Inc., 324 S.W.3d 564, 567 (Tex. 2010) (per curiam); citations omitted)), with Dkt. No.

8, Ex. B (Logoplaste’s handbook containing such a disclaimer); cf. Kaye, 453 B.R. at

662 (under the applicable test the Court may consider the employee handbook excerpt

filed with the motion to dismiss because the handbook is mentioned in the complaint

and its terms are central to the Daniel’s breach-of-implied-contract claim).

Last up, Daniel’s IIED claim against his employer based on the same factual

allegations that underly his statutory discrimination and retaliation claims also fails

as a matter of law. See, e.g., Stelly v. Duriso, 982 F.3d 403, 408 (5th Cir. 2020) (“[A]

plaintiff generally cannot sustain an IIED claim if the plaintiff could have brought a

sexual harassment claim premised on the same facts: ‘when the gravamen of the

plaintiff’s complaint is for sexual harassment, the plaintiff must proceed solely under

a statutory claim unless there are additional facts, unrelated to sexual harassment,

to support an independent tort claim for intentional infliction of emotional distress.”

(quoting Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 441 (Tex. 2004))).

Recommendation

The Court should grant Defendant Logoplaste Dallas LLC’s motion to dismiss

[Dkt. No. 6].

A copy of these findings, conclusions, and recommendation shall be served on

all parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, and recommendation must file specific written objections

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIv.

P. 72(b). In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure

to file specific written objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain error. See Douglass v.

United Servs. Auto. Assn, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: July 30, 2025

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

-18-