Dante

UNITED STATES DISTRICT COURT October 22, 2025

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RUBEN LANDON DANTE, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 4:24-cv-3099

§

POWER HOME REMODELING §

GROUP LLC, DBA PHRG LLC, §

POWER HRG, §

§

Defendant. §

MEMORANDUM AND RECOMMENDATION

Pending before the Court1 is Defendant Power Home Remodeling Group,

LLC, DBA PHRG LLC, Power HRG’s (“Defendant”) Motion for Summary

Judgment. (ECF No. 42). Based on a review of the motion, arguments, and

relevant law, the Court RECOMMENDS Defendant’s Motion for Summary

Judgment (id.) be GRANTED. The Court FURTHER RECOMMENDS

Defendant’s Motion in Limine (ECF No. 47) be DENIED AS MOOT.

I. Background2

This is an employment discrimination case, arising out of Plaintiff Ruben

Landon Dante’s (“Plaintiff”) employment with Defendant. Plaintiff states he

1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.

§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 5).

2 “In evaluating a motion for summary judgment, a court must construe all facts and

inferences in the light most favorable to the nonmoving party.” Sanchez v. Oliver, 995 F.3d

461, 466 (5th Cir. 2021) (internal quotations omitted).

interviewed with Defendant through Joseph Green (“Green”) for the position

of “Remodeling Consultant” with a salary listed in the range of $130,000 to

$180,000 per year. (ECF No. 1-3 at 15). Plaintiff alleges Green stated Plaintiff

would “start near the higher end of [$]180,000 per year.” (Id.). However,

Plaintiff claims he was placed into an entry level role. (Id. at 16). During his

training for the role, Plaintiff states he brought up issues regarding race, sex,

and gender discrimination. (Id.). After expressing “Department of Labor

concerns,” Plaintiff alleges he received a suggestion that he quit. (Id. at 17).

Plaintiff stated he had no intention to quit. (Id.). Nevertheless, Plaintiff

contends he was ultimately terminated for expressing his Department of Labor

concerns. (Id.).

On April 23, 2024, Plaintiff filed his Original Petition against Defendant

in the 270th Judicial District Court of Harris County, Texas, Cause No. 2024-

26260. (ECF No. 1-2 at 1–22). Plaintiff filed his First Amended Original

Petition (“Amended Petition”) on May 1, 2024. (ECF No. 1-3 at 1–47).

Plaintiff’s Amended Petition asserts the following claims: (1) Fraudulent

Inducement (id. at 26–28); (2) Violations of the Fair Labor Standards Act

(“FLSA”) (id. at 28–32, 37–40); (3) Sexual Harassment and Hostile Work

Environment (id. at 32–34); (4) Claims for alleged “Individual Liability and

“Respondeat Superior” (id. at 34–35); (5) Retaliation under the FLSA (id. at

2

35–36); (6) Retaliation under Title VII (id. at 36); (7) Race Discrimination

under Section 1981 (id. at 32–33, 37); (8) Pain and Suffering, Inconvenience,

Mental Anguish, and Loss of Enjoyment of Life (id. at 41–42); and (9)

Recordkeeping (id. at 42–45). On August 20, 2024, Defendant removed the

case to this Court. (See ECF No. 1).

Defendant seeks dismissal of all Plaintiff’s claims. (See ECF No. 42).

II. Legal Standard

Motions for summary judgment are governed by Federal Rule of Civil

Procedure (“Rule”) 56. Rule 56(a) instructs the Court to “grant summary

judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” See

Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). “Summary judgment

is appropriate ‘if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.’” Talasek v. Nat’l Oilwell Varco, L.P., 16 F.4th

164, 168 (5th Cir. 2021) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). A material fact is one that “might affect the outcome of the suit under

the governing law.” Bazan ex rel. v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir.

2001) (emphasis omitted); see Aguirre v. City of San Antonio, 995 F.3d 395, 406

3

(5th Cir. 2021). “An issue is ‘genuine’ if it is real and substantial, as opposed

to merely formal, pretended, or a sham.” Bazan, 246 F.3d at 489 (emphasis

omitted). The Court must view the evidence in a light most favorable to the

nonmovant. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.

1997).

The movant is tasked with the initial burden of informing the Court of

the basis for the motion and pointing to relevant excerpts in evidence that

demonstrate the absence of genuine issues of material fact. See Coastal Agric.

Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014)

(quoting Celotex Corp., 477 U.S. at 323). The movant may also argue that the

nonmovant failed to produce evidence in support of at least one element of a

cause of action for which he bears the burden of proof. See Austin v. Kroger

Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017).

If the movant satisfies the initial burden, it shifts to the nonmovant who

must produce evidence of a genuine factual dispute; he may not merely rest on

the allegations in his pleading. See Coastal Agric. Supply, Inc., 759 F.3d at

505 (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.

2005)). The Court should not accept “[u]nsubstantiated assertions, improbable

inferences, [or] unsupported speculation” as sufficient to carry the

nonmovant’s burden. Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th

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Cir. 2003). However, where there is evidence of a genuine factual dispute, such

disputes are resolved in favor of the nonmoving party “when an actual

controversy exists, that is, when both parties have submitted evidence of

contradictory facts.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525

(5th Cir. 1999); McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th

Cir. 2017). Further, a genuine issue of material fact exists “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. Coburn, 68

F.4th 240, 244 (5th Cir. 2023), as revised (May 19, 2023).

III. Discussion

Defendant seeks dismissal on each of Plaintiff’s claims. (ECF No. 42 at

10).

a. Fraudulent Inducement (Count 1)

Defendant argues Plaintiff’s fraudulent inducement claim fails as a

matter of law because Plaintiff cannot offer any evidence as to his claim. (ECF

No. 42 at 16–17).

To recover on an action for fraudulent inducement, Plaintiff must prove

that:

(1) a material representation was made, (2) the representation was

false, (3) when the representation was made, the speaker knew the

representation was false or made it recklessly without knowledge

of the truth as a positive assertion, (4) the representation was

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made with the intention that it should be acted upon by the party,

(5) the party acted in reliance upon it, and (6) the party thereby

suffered injury.

Siddiqui v. Fancy Bites, LLC, 504 S.W.3d 349, 369 (Tex. App.—Houston [14th

Dist.] 2016, pet. denied); W. Power, Inc. v. TransAmerican Power Products,

Inc., 316 F. Supp. 3d 979, 995 (S.D. Tex. 2018). Further, “[b]ecause fraudulent

inducement arises only in the context of a contract, the existence of a contract

is an essential part of its proof.” Anderson v. Durant, 550 S.W.3d 605, 614

(Tex. 2018); see Stabilis Fund II, LLC v. Compass Bank, No. 3:18-cv-283, 2020

WL 487497, at *4 (N.D. Tex. Jan. 30, 2020).

In Plaintiff’s Amended Petition, Plaintiff alleges he interviewed with

Defendant for a “Remodeling Consultant” position with a salary of “130,000

Dollars up to 180,000 Dollars.” (ECF No. 1-3 at 27). Plaintiff claims that “Joe

Green, who is titled Vice President for Defendant assured that based on

plaintiff [sic] resume and background 180,000 [sic] was no issue to be met.”

(Id.). Plaintiff attached a document to his Amended Petition that simply

states, “Salary Details for a Remodeling Consultant at Power Home

Remodeling” and “$132,936/yr.” (Id. at 49).

In its Motion for Summary Judgment, Defendant contends Plaintiff’s

fraudulent inducement claim is solely based on an “expected salary range

posted on Indeed.com by an unknown person.” (ECF No. 42 at 16). For

support, Defendant relies on Plaintiff’s deposition transcript where counsel

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asked, “is this fraudulent inducement based on the alleged statement Joseph

Green made to you?” and Plaintiff responded:

The salary -- the fraudulent inducement would have been Power

posting on Indeed 130 to 180 as a salary with a legal definition that

is not mutable based on what have you, then Joseph Green again

sustaining that in person in Texas, which is a verbal agreement

that is legally binding and overrides a written one should there be

being [sic] something to construe that it is true, in which case it is

both the salary listed on Indeed and that they could very easily

alter in accordance to the 26k they allege.

(ECF No. 42-9 at 201–02). Defendant also states that its offer letter to Plaintiff

clearly set forth his compensation. (ECF No. 42 at 17). For support, Defendant

relies on the relevant offer letter, which states,

During your training in the Marketing Department, you will earn

$500 per workweek as a base salary and you will earn commissions

and bonuses based on production, in accordance with the

Company’s current Marketing commission and bonus schedule.

. . .

Once you have completed your training in Marketing, you will

begin 5 weeks of Sales specific training. For your 5-week Sales

training, you will earn $500 per workweek. In addition, upon

successfully completing the 5-week Sales training, you will receive

a $4,000 bonus.

. . .

As a new hire, you are eligible to earn double your base

compensation for the days worked during your first 8 weeks of

employment.

(ECF No. 42-3 at 2). Defendant also points to the Customer Development

Representative Pay Plan, which Plaintiff signed, that states Plaintiff’s

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compensation “is subject to change at anytime at the sole discretion of

[Defendant].” (ECF No. 42 at 19 (citing ECF No. 42-10 at 4)).

In summary, Defendant argues Plaintiff cannot offer any admissible

evidence that (1) Defendant made a materially false misrepresentation; (2) at

the time any alleged misrepresentation was made, Defendant knew it was false

or made the statement without any knowledge of its truth; (3) Defendant

intended that Plaintiff rely on any false misrepresentation; (4) Plaintiff relied

on any false misrepresentation; or (5) Plaintiff sustained actual damages as a

result of any false misrepresentation. (See ECF No. 42 at 17–19).

Because Plaintiff will have the burden of proof on his fraudulent

inducement claim, Defendant has met its summary judgment obligation by

pointing the court to the absence of admissible evidence to support Plaintiff’s

claim. See Celotex Corp., 477 U.S. at 325. As such, Plaintiff must go beyond

his pleadings and designate specific facts showing there is a genuine issue for

trial. See id. at 324.

As an initial matter, it is unclear what contract Plaintiff contends is at

issue. See Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001) (noting that

“nature a fraudulent inducement claim presupposes that a party has been

induced to enter a contract. When a party has not been induced into a contract,

. . . there is no detrimental reliance and therefore no fraudulent inducement

8

claim.”). The Court assumes Plaintiff asserts Green made material fraudulent

misrepresentations intended to induce Plaintiff to enter into an employment

contract. While Plaintiff does not refer to an employment contract, Defendant’s

summary judgment evidence includes a “Customer Development

Representative Pay Plan” that was signed by Plaintiff. (ECF No. 42-10 at 2–

4).

The Court is inclined to recommend dismissal of Plaintiff’s fraudulent

inducement claim because his allegations do not meet Rule 9(b)’s heightened

pleading standard. FED. R. CIV. P. 9(b) (requiring a party alleging fraud or

mistake to “state with particularity the circumstance constituting fraud or

mistake”). However, due to Plaintiff’s pro se status, the Court will construe

the “Customer Development Representative Pay Plan” as the contract at issue.

Turning to the first element, whether Defendant made a materially false

misrepresentation, Plaintiff mostly argues a “recruiter” made the

representation about his salary (ECF No. 43 at 12, 17–18, 20, 23) but also

mentions Green within his argument (id. at 20–21). To the extent Plaintiff

argues a “recruiter” made a materially false misrepresentation, Plaintiff has

failed to provide evidence connecting this “recruiter” with Defendant. Plaintiff

typically mentions a “recruiter” when referring to a posting on Indeed.com.

(See ECF No. 42-9 at 67; ECF No. 43 at 12). However, Plaintiff acknowledges

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Defendant has no exclusive control over the content on Indeed.com. (ECF No.

42-9 at 67–69). As to Plaintiff’s allegations regarding Green, Plaintiff provides

no evidence Green made a materially false misrepresentation other than

Plaintiff’s own unsupported assertion. See Sanches v. Carrollton-Farmers

Branch Ind. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (“Conclusional

allegations and denials, speculation, and unsupported assertions are

insufficient to avoid summary judgment.”).

Further, Plaintiff’s fraudulent inducement claim is called into question

by the fact that Plaintiff signed a Pay Plan agreement in which he

acknowledged that his compensation schedule was subject to change at

Defendant’s discretion. (ECF No. 42 at 19 (citing ECF No. 42-10 at 2–6)). The

“Customer Development Representative Pay Plan” also clearly states that

Plaintiff’s base salary was “$26,000 annually.” (ECF No. 42-10 at 2). Plaintiff

signed this document on April 18, 2022, at 11:24 a.m. (Id. at 4).

As to the last element of a fraudulent inducement claim, in considering

whether Plaintiff sustained actual damages as a result of any false

misrepresentation, Plaintiff states, “[w]ith [d]amages causing the refinance of

his mortgage at a much higher interest rate.” (ECF No. 43 at 13). It appears

Plaintiff pasted an image in his Response related to this assertion. (See id.).

However, the image is unreadable. Outside of this, Plaintiff provides no

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evidence to create a fact question as to whether he sustained actual damages

as a result of any false misrepresentation.

For the reasons discussed above, the Court recommends Defendant’s

motion for summary judgment be granted as to Plaintiff’s fraudulent

inducement claim.

b. Violations of the FLSA (Counts 2 and 11)

Defendant argues Plaintiff’s FLSA claims3 fail because Plaintiff fails to

plead sufficient facts supporting his claim. (ECF No. 42 at 19).

“If a summary judgment motion depends entirely on the pleadings and

exhibits it functions as a Rule 12(c) motion for judgment on the pleadings.” Hu

v. Haneda, No. 13-cv-798, 2015 WL 12831484, at *5 (W.D. Tex. Jan. 16, 2015),

report and recommendation adopted, No. 13-cv-798, 2015 WL 12831726 (W.D.

Tex. Feb. 23, 2015), aff’d, 627 F. App’x 359 (5th Cir. 2015), as revised (Dec. 22,

2015) (citing Dyal v. Union Bag-Camp Paper Corp., 263 F.2d 387, 391 (5th Cir.

1959)). A motion for judgment on the pleadings, like a motion for summary

judgment, should be granted only if there is no issue of material fact, and if the

pleadings show that the moving party is entitled to prevail as a matter of law.

See Smith v. McMullen, 589 F. Supp. 642, 644 (S.D. Tex. 1984). Because

3 Defendant refers to Plaintiff’s wage theft claim (count 2) and backpay claim (count

11) together as Plaintiff’s FLSA claims. (See ECF No. 1-3 at 28–32, 37–40).

11

Defendant relies on the purported defects in Plaintiff’s pleadings, the Court

will construe Defendant’s motion for summary judgment as seeking judgment

on the pleadings under Rule 12(c). See ABN-AMRO Mortgage Group, Inc. v.

Mikel, No. 04-cv-617, 2005 WL 8155229, at *1 n.1 (W.D. Tex. Dec. 12, 2005),

report and recommendation adopted, No. 04-cv-617, 2006 WL 8432137 (W.D.

Tex. June 8, 2006).

Specifically, Defendant argues Plaintiff’s Amended Petition fails to plead

facts to allege he was misclassified, worked in excess of forty hours at any time,

and/or was not paid overtime. (ECF No. 42 at 19). Defendant adds that

Plaintiff failed to plead any specific week, pay period, or even general time

period during which he worked in excess of forty hours a week. (Id.).

In Plaintiff’s Amended Petition, he alleges he has a “private right of

action for full compensation . . . of unpaid wages or unpaid overtime

compensation.” (ECF No. 1-3 at 28). Plaintiff does not provide any factual

allegations to support his claim other than stating, “Power Home Remodeling

tells [Department of Labor] no one ever worked past 6:00PM where [Plaintiff]

provided evidence of management and leadership telling them to lie soon

after.” (Id. at 17). In Plaintiff’s Response, he contends his FLSA claims do not

fail as a matter of law and inserted three images into his document. (ECF No.

43 at 25–26). The low-resolution images allegedly show a work schedule from

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June 13, 2022, a pay stub, and an “instruction to lie about hours worked from

management.” (Id.). However, the images are of poor quality and are

essentially imperceptible. Nevertheless, neither Plaintiff’s Amended Petition

nor his Response addresses whether Plaintiff was misclassified, worked in

excess of forty hours at any time, and/or was not paid overtime.

The FLSA requires overtime pay when “a workweek [is] longer than forty

hours.” 29 U.S.C. § 207(a)(1). If an employer violates the overtime-

compensation requirement, it is “liable to the employee or employees affected

in the amount of their unpaid minimum wages, or their unpaid overtime

compensation, as the case may be, and in an additional equal amount as

liquidated damages.” Id. § 216(b).

Plaintiff must prove four elements to make a prima facie case: “(1) that

there existed an employer-employee relationship during the unpaid overtime

periods claimed; (2) that the employee engaged in activities within the

coverage of the FLSA; (3) that the employer violated the FLSA’s overtime wage

requirements; and (4) the amount of overtime compensation due.” Johnson v.

Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014) (citations

omitted).

As noted by Defendant, Plaintiff has “failed to plead any specific week,

pay period, or even general time period during which he worked in excess of 40

13

hours a week” and “plead no allegations that provide any factual context that

form the basis for the claimed FLSA violation.” (ECF No. 42 at 19–20). As

such, Plaintiff’s minimal allegations are not enough to state a claim under the

FLSA. See Hernandez v. Praxair Distrib., Inc., No. 4:14-cv-1915, 2015 WL

4393105, at *1 (S.D. Tex. July 15, 2015) (collecting cases to show general

allegations are not enough to state an FLSA claim); see also Twombly, 550 U.S.

at 550 (“[A] formulaic recitation of the elements of a cause of action will not do

. . . .”). For these reasons, the Court recommends Plaintiff’s wage theft claim

(count 2) and backpay claim (count 11) (see ECF No. 1-3 at 28–32, 37–40) be

dismissed.

c. Sexual Harassment and Hostile Work Environment (Counts 3 and

4)

Defendant argues Plaintiff’s sexual harassment and hostile work

environment claims fail because (1) Plaintiff failed to exhaust administrative

remedies under Title VII regarding alleged sexual harassment or an alleged

hostile environment, and (2) even if Plaintiff had exhausted administrative

remedies, Plaintiff cannot establish that any alleged unwelcome harassment

was based upon sex or race. (ECF No. 42 at 20–23).

As a prerequisite to judicial relief, Title VII requires a plaintiff file an

EEOC complaint and receive a “right to sue” letter. See Honea v. SGS Control

Services Inc., 859 F. Supp. 1025, 1029 (E.D. Tex. 1994); Lopez v. AT&T Mobility

14

Services LLC, 767 F. Supp. 3d 406, 421 (W.D. Tex. 2025) (detailing the process

a plaintiff must follow before filing a Title VII claim in federal court). This

requirement assures that (1) the EEOC is able to fulfill its dual investigatory

and conciliatory functions and (2) the named defendant is put on notice of the

charges against it. Honea, 859 F. Supp. at 1029.

Because many complainants are laypersons, courts regularly construe

EEOC charges liberally when determining the permissible breadth of a judicial

complaint. See Danner v. Phillips Petroleum Co., 447 F.2d 159, 161–62 (5th

Cir. 1971). As a result, the judicial complaint properly encompasses any

discrimination “like or reasonably related” to the charge and growing out of

such allegations. Id. at 162; Clemmer v. Enron Corp., 882 F. Supp. 606, 610

(S.D. Tex. 1995) (“Civil complaints filed under Title VII may only encompass

discrimination like or related to allegations contained in the [EEOC] charge

and growing out of such allegation during the pendency of the case before the

Commission.”) (internal quotations omitted). In other words, the suit filed

should be limited to “the discrimination stated in the charge itself or developed

in the course of a reasonable EEOC investigation of that charge.” Nat’l Ass’n

of Gov’t Emps v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 712 (5th

Cir. 1994) (internal quotation omitted).

15

In his charge filed with the EEOC on January 17, 2023, Plaintiff, a non-

binary individual and fluid man, complained of sex discrimination and

retaliation. (See ECF No. 42-7 at 2–3). Plaintiff also stated an individual made

“very crude and sexist comments” when advising how to make sales. (Id. at 2).

Plaintiff provided two examples of these comments, which contained graphic,

sexual language. (See id.). Plaintiff stated he sent an email to HR to complain.

(Id.). Plaintiff also stated he had a conversation with “Houston VP Joe Green”

to discuss to the complaint and was told “you are not a girl so this shouldn’t

bother you.” (Id.).

Turning first to Plaintiff’s hostile work environment claim,

“discrimination and harassment are ‘distinct’ claims.” Trevino v. SAIA Motor

Freight Line, LLC, No. 4:20-cv-825, 2021 WL 1009317, at *4 (N.D. Tex. Jan.

26, 2021), report and recommendation adopted, No. 4:20-cv-825, 2021 WL

977096 (N.D. Tex. Mar. 16, 2021). “For a claim of hostile work environment to

reasonably be expected to grow out of an employee’s charge of discrimination,

the employee must allege more than just discrete actions of discrimination.”

Id. Broadly construing Plaintiff’s EEOC Charge, the Court finds an

investigation concerning the existence of a hostile work environment would not

reasonably be expected to grow out of Plaintiff's allegations. See Payne v.

Hammond City, No. 24-cv-1857, 2025 WL 549360, at *10 (E.D. La. Feb. 19,

16

2025) (dismissing a hostile work environment claim for failure to exhaust

where plaintiff (1) did not mention the term hostile work environment and (2)

only alleged “discrete actions of discrimination”); Brooks v. Firestone Polymers,

LLC, 70 F. Supp. 3d 816, 850 (E.D. Tex. 2014), aff’d sub nom. Brooks v.

Firestone Polymers, L.L.C., 640 F. App’x 393 (5th Cir. 2016) (finding a hostile

work environment claim could not be deemed to fall within the scope of the

investigation that reasonably could have been expected to grow out of an EEOC

charge that did not mention or allude to facts that would have put defendants

on notice about the possibility of a hostile work environment claim). As such,

Plaintiff failed to exhaust his administrative remedies before the EEOC, and

the Court recommends summary judgment be granted as to Plaintiff’s hostile

work environment claim. See Brooks, 70 F. Supp. 3d at 850.

Conversely, while Plaintiff does not mention a claim for sexual

harassment, the Court finds Plaintiff’s allegations were broad enough to

encompass a claim for sexual harassment. See Honea, 859 F. Supp. at 1030

(finding the EEOC was on notice of a sexual harassment claim because such a

claim is a type of gender discrimination); cf. Reno v. Metro. Transit Auth., 977

F. Supp. 812, 818 (S.D. Tex. 1997) (finding a sexual harassment claim would

not have developed and been investigated during EEOC proceedings where the

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facts that formed the basis of the age, race and sex discrimination charge were

completely unrelated to the allegations that the plaintiff was harassed).

The Fifth Circuit defines “unwelcome sexual harassment” as “sexual

advances, requests for sexual favors, and other verbal or physical conduct of a

sexual nature that is unwelcome in the sense that it is unsolicited or unincited

and is undesirable or offensive to the employee.” Wyerick v. Bayou Steel Corp.,

887 F.2d 1271, 1274 (5th Cir. 1989). When liberally construing Plaintiff’s

EEOC charge, the Court finds Plaintiff’s allegations would be reasonably likely

to put Defendant on notice that Plaintiff intended to pursue a sexual

harassment claim. See Lopez v. AT&T Mobility Services LLC, 767 F. Supp. 3d

406, 425 (W.D. Tex. 2025) (noting an incident where a manager touched an

employee’s thigh without consent may plausibly support a claim for sexual

harassment even though a sexual harassment claim was not alleged in the

EEOC charge).

However, even if Plaintiff had exhausted administrative remedies,

Defendant argues Plaintiff cannot offer evidence that any alleged unwelcome

harassment was based upon sex or race. (ECF No. 42 at 22–23). In his

Response, Plaintiff acknowledges Defendant’s argument but fails to provide

any evidence to support his claim. (See ECF No. 43 at 26–27). Because

Plaintiff has failed to offer evidence in response to the motion for summary

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judgment in order to create a fact issue as to the alleged harassment, the Court

recommends summary judgment be granted as to Plaintiff’s sexual

harassment claim. See Walters v. BG Foods, Inc., No. 1:14-cv-96, 2015 WL

1926224, at *6 (E.D. Tex. Apr. 25, 2015).

d. Race Discrimination Claims under Section 1981 (Counts 4 and 10)

Defendant argues Plaintiff fails to make a prima facie showing of

discrimination because (1) the alleged discriminatory actions taken against

him are not adverse actions as a matter of law and (2) Plaintiff cannot show

that another employee similarly situated to him and outside any of his

protected categories was treated more favorably under nearly identical

circumstances. (ECF No. 42 at 25–29).

To establish a prima facie case of race discrimination, the plaintiff must

demonstrate that he is: (1) a member of a protected class; (2) qualified for the

position; (3) suffered an adverse employment action; and (4) was replaced by

someone outside of the protected class, or that others outside of the protected

group and similarly situated were treated more favorably.4 Okoye v. University

4 A plaintiff’s prima facie case creates an inference of discrimination that shifts the

burden of production to the defendant to come forward with evidence that the adverse

employment action was taken for a legitimate, nondiscriminatory reason. See Corley v.

Louisiana ex rel. Div. of Admin., Office of Risk Mgmt., 816 F. Supp. 2d 297, 309–10 (M.D. La.

2011), aff’d, 498 F. App’x 448 (5th Cir. 2012). Once the employer articulates a legitimate

nondiscriminatory reason and produces competent summary judgment evidence in support

of it, the inference created by the prima facie case drops out of the picture. Russell v.

McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). The plaintiff must then

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of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001). An

adverse employment action in the discrimination context refers to “ultimate

employment decisions such as hiring, granting leave, discharging, promoting,

and compensating.” Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002),

overruled on other grounds by Burlington Northern & Santa Fe Ry. Co. v.

White, 548 U.S. 53 (2006).

Here, Plaintiff Amended Petition alleges Defendant is liable for race

discrimination “based on tangible actions [d]uring training.” (ECF No. 1-3 at

37). Plaintiff adds the following:

During training, plaintiff and class suffered open and brazen race

discrimination with premier territory openly given to an all

straight white cis male team, . . . creating an additional layer of

hostility to the work environment. They were also permitted to

leave early without having tell anyone else, “Listed worst

performers” or other races, false performance claims and eventual

demotions. This [sic] demotions, promotion denials, and getting

fired or laid off.

identify or offer evidence to create a fact issue “either (1) that the defendant’s reason is not

true, but is instead a pretext for discrimination (pretext alternative); or (2) that the

defendant’s reason, while true, is only one of the reasons for its conduct, and another

motivating factor is the plaintiff’s protected characteristic (mixed-motives alternative).”

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (internal quotation and

alteration marks omitted). The plaintiff has the ultimate burden of showing a genuine issue

of material fact on whether the defendant discriminated against him on the basis of the

plaintiff’s membership in the protected class. Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 143 (2000).

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(Id.). In his Response, Plaintiff reiterates that he disagrees with Defendant’s

argument. (ECF No. 43 at 27). Plaintiff also inserts blurry, unreadable images

of what appear to be screenshots of text messages. (Id. at 28).

In its Motion for Summary Judgment, Defendant cites to deposition

testimony where Plaintiff explained the alleged actions that led to his claims.

(ECF No. 42 at 26 (citing ECF No. 42-9 at 151–52, 232)). In one instance,

Plaintiff testified that his race discrimination claim is based on the delegation

of teams and territories. (See ECF No. 42-9 at 232–33). Plaintiff also testified

that straight, white men were given the “best” territories and could leave after

“three appointments.” (See id. at 151–52).

Having reviewed Plaintiff’s Amended Petition, Response to Defendant’s

motion, and his deposition testimony, the Court finds the alleged actions

behind Plaintiff’s race discrimination claim, the delegation of teams and

territories, do not qualify as adverse employment actions. See Memon v.

Deloitte Consulting, LLP, 779 F. Supp. 2d 619, 637 (S.D. Tex. 2011) (“An

employee’s subjective belief that a new position is less prestigious is

insufficient to show an adverse action.”) (citing Lee v. City of New Orleans, 156

F. App’x 618, 619 (5th Cir. 2005)); see also Serna v. City of San Antonio, 244

F.3d 479, 485 (5th Cir. 2001) (holding claim that a transfer from a unit

considered desirable to another unit that was less desirable would be

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insufficient absent showing that new transfer was accompanied by lost

compensation, duties, or benefits); Jackson v. Lowndes Cnty. Sch. Dist., 126 F.

Supp. 3d 772, 777 (N.D. Miss. 2015) (noting that actions that do “not affect job

duties, compensation, or benefits” are not considered adverse employment

actions).

Defendant appears to acknowledge that Plaintiff’s employment

termination was an adverse employment action. (ECF No. 42 at 27). As such,

the question becomes whether Plaintiff was replaced by someone outside of his

protected class, or that others outside of the protected group and similarly

situated were treated more favorably. Defendant argues that “Plaintiff simply

has no evidence that any other similarly situated employee received more

favorable treatment.” (Id. at 29). Plaintiff does not appear to respond to this

argument. (See ECF No. 43 at 28–29). Nor does Plaintiff allege he was

replaced by someone outside of his protected class, or that others outside of the

protected group and similarly situated were treated more favorably. (See ECF

No. 1-3 at 32–33, 37).

Without more, Plaintiff has failed to satisfy his prima facie burden, and

the Court recommends summary judgment be granted as to Plaintiff’s race

discrimination claim.

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e. Claims for alleged “Individual Liability and “Respondeat Superior”

(Counts 5 and 6)

Defendant argues Plaintiff’s claims for “individual liability” and

“respondeat superior” fail as a matter of law for a variety of reasons. (ECF No.

42 at 29). Specifically, Defendant contends (1) Plaintiff lists numerous

individuals as “defendants” when there is only one Defendant in this case; (2)

“individual liability” and “respondeat superior” are not independent causes of

action; and (3) there is no individual liability under Title VII for retaliation,

discrimination, or harassment. (Id.).

Plaintiff’s Amended Petition states, “Count 5: retaliation,

discrimination, harassment and negligence individual liability” and “Count 6:

retaliation, discrimination, harassment and negligence respondeat superior.”

(ECF No. 1-3 at 34–35). Under “Count 5,” Plaintiff lists the names of

approximately six individuals. (Id. at 34). However, none of these individuals

are named in this lawsuit.

In his Response, Plaintiff states the following:

Finally, defendant[’s] objection to Respondeat Superior and

individual liability is fundamentally misappropriated and

miscategorized. Plaintiff is citing Texas state statutes such as Tex.

Lab. Code § 21.141 that extends liability for damages to

supervisors and individuals. This is perhaps morn akin to piercing

a corporate veil than arbitrarily adding defendants in the way

defendant counsel frames. Neither Respondeat Superior or the

state statutes preclude or exempt corporate liability, and certainly

not for any one specific claim or stand-alone causes of action.

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(ECF No. 43 at 2).

The Court agrees with Defendant that, to the extent Plaintiff asserts

“individual liability” and “respondeat superior” as claims, these are not viable

causes of actions. See Kiper v. Ascension Par. Sch. Bd., No. 14-cv-313, 2015

WL 2451998, at *1 (M.D. La. May 21, 2015) (“A liberal reading of plaintiff’s

pleadings is the only special treatment afforded pro se plaintiffs by the courts.

The court is not required to search for or try to create causes of actions or find

material issues of fact for pro se plaintiffs.”). Further, the individuals named

by Plaintiff under “Count 5” are not parties to this suit. Finally, as noted by

Defendant, “it has long been established that individuals are not liable under

Title VII in either their individual or official capacities.” Murphy v. Pine Belt

Fed. Credit Union, No. 2:19-cv-143, 2019 WL 6311994, at *3 (S.D. Miss. Nov.

25, 2019) (citing Smith v. Amedisys Inc., 298 F.3d 434, 448–49 (5th Cir. 2002)).

As such, the Court recommends Plaintiff’s claims for “individual liability” and

“respondeat superior” be dismissed. (See ECF No. 1-3 at 34–35).

f. Retaliation Claims (Counts 7, 8, and 9)

Defendant argues Plaintiff’s retaliation claims (counts 7, 8, and 9) fail as

a matter of law because Plaintiff cannot establish a prima facie case of

retaliation. (ECF No. 42 at 30). Plaintiff responds that “[t]his matter is in

dispute and subject to a [jury trial].” (ECF No. 43 at 29). Plaintiff also adds

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that his termination was in “direct response” to raising “protected concerns,”

and then inserted an unreadable image into his Response. (See id.).

Without direct evidence of retaliation, Plaintiff’s claims are subject to the

McDonnell Douglas framework, which requires prima facie proof that (1) the

plaintiff engaged in protected activity; (2) the employer took adverse action

against the plaintiff; and (3) there is a causal connection between the two. See

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). If Plaintiff

meets his initial burden, then Defendant “must come forward with a

legitimate, non-discriminatory reason for the adverse action.” January v. City

of Huntsville, 74 F.4th 646, 653 (5th Cir. 2023). Once Defendant does so,

Plaintiff “must then show ‘sufficient evidence that the proffered reason is a

pretext for retaliation.’” Id. (quoting Nall v. BNSF Ry., 917 F.3d 335, 340 (5th

Cir. 2019)).

As discussed above, Plaintiff disputes Defendant’s argument and

contends his termination was a result of raising certain concerns. (See ECF

No. 43 at 29). However, Plaintiff has the burden to raise a genuine issue of

material fact, and his Response fails to identify any evidence that supports

each requirement of his retaliation claims. As such, the Court recommends

summary judgment be granted as to Plaintiff’s retaliation claims. See Vasquez

v. Nelson, No. 4:23-cv-3620, 2025 WL 1456669, at *8 (S.D. Tex. May 12, 2025),

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report and recommendation adopted, No. 4:23-cv-3620, 2025 WL 1458538 (S.D.

Tex. May 19, 2025).

g. Pain and Suffering, Inconvenience, Mental Anguish, and Loss of

Enjoyment of Life (Count 12)

Defendant argues Plaintiff’s “private right of action” for mental anguish

damages should be dismissed because there is no such recognized cause of

action. (ECF No. 42 at 31). Plaintiff responds that this “[s]ubject is in dispute.”

(ECF No. 43 at 30).

Mental anguish damages are “not an independent cause of action in and

of itself—rather, ‘[m]ental anguish damages are recoverable when certain

other legal duties are breached.’” White v. United States, 471 F. Supp. 3d 780,

790 (W.D. Tex. 2020) (quoting SCI Texas Funeral Servs., Inc. v. Nelson, 540

S.W.3d 539, 543 (Tex. 2018)). As such, the Court recommends Plaintiff’s

“Count 12: Pain and Suffering, Inconvenience, Mental Anguish, and Loss of

Enjoyment of Life” claim be dismissed. (See ECF No. 1-3 at 41).

h. Recordkeeping (Count 13)

Lastly, Defendant argues Plaintiff’s “Count 13: Recordkeeping” claim be

dismissed because there is no private cause of action for failure to maintain

records under the FLSA. (ECF No. 42 at 31). In response, Plaintiff states,

“[t]his is not in relation to recordkeeping [sic] it is in relation to retaliation.

This matter is in dispute and subject to Jury Trial.” (ECF No. 43 at 30).

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The Court agrees with Defendant, and Plaintiff fails to provide the Court

with authority establishing recordkeeping as a cause of action. See Lobo v.

Sprint Safety, Inc., No. 4:19-cv-3934, 2020 WL 1659888, at *2 n.14 (S.D. Tex.

Mar. 30, 2020) (“It is well settled that there is no private cause of action for

violations of the FLSA’s recordkeeping provisions.”) (collecting cases). As such,

the Court recommends Plaintiff’s “Count 13: Recordkeeping” claim be

dismissed.

IV. Conclusion

Based on the foregoing, the Court RECOMMENDS Defendant’s Motion

for Summary Judgment (ECF No. 42) be GRANTED.5 The Court FURTHER

RECOMMENDS Defendant’s Motion in Limine (ECF No. 47) be DENIED AS

MOOT.

The Clerk shall send copies of this Memorandum and Recommendation

to the respective parties who have fourteen days from the receipt thereof to file

written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)

and General Order 2002-13. Failure to file written objections within the time

5 In summary, the Court recommends the following claims be dismissed: wage theft

(count 2); individual liability (count 5); respondeat superior (count 6); backpay (count 11);

“Pain and Suffering, Inconvenience, Mental Anguish, and Loss of Enjoyment of Life” (count

12); and recordkeeping (count 13). The Court recommends summary judgment be granted as

to the following claims: fraudulent inducement (count 1); sexual harassment (count 3); hostile

work environment (count 4); race discrimination (counts 4 and 10); and retaliation (counts 7,

8, and 9).

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period mentioned shall bar an aggrieved party from attacking the factual

findings and legal conclusions on appeal.

SIGNED in Houston, Texas on October 22, 2025.

Richard W. Bennett

United States Magistrate Judge

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