Gunter

IN THE UNITED STATES DISTRICT COURT April 21, 2026

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

KYLE GUNTER, §

§

Plaintiff, §

v. § CIVIL ACTION NO. H-25-6356

§

XTO ENERGY, et al., §

§

Defendants. §

§

§

MEMORANDUM OPINION AND ORDER

The plaintiff, Kyle Gunter, has sued ExxonMobil, XTO Energy, and three Exxon

employees for alleged discrimination and retaliation related to his employment and termination

from Exxon. (Docket Entry No. 1). The defendants have moved to dismiss under both Rule

12(b)(5) and Rule 12(b)(6). (Docket Entry No. 9). For the reasons explained below, the court

grants the motion to dismiss and grants Gunter leave to amend. Gunter must properly serve each

defendant with a copy of the summons and amended complaint no later than May 22, 2026.

I. Background

Gunter alleges that he was employed as a developer at Exxon from January 2022 through

December 2024. (Docket Entry No. 1 at 5). He was “onboarded using a Veteran connected ‘Coder

Fusion’ program as a disabled veteran.” (Id.). During his time at Exxon, he was under the

management and supervision of Bryan Bollinger, Dylan Tumblin, Jijesh Varghese, and Preeti

Chewle.1 (Id.). At an employee introduction in February 2023, Gunter gave a presentation that

included his military service photo. (Id.). Gunter alleges that Bollinger made a rude comment

1 The exhibits attached to the complaint clarify that the proper spelling is “Chewle” and not “Chewlee.”

(See, e.g., Docket Entry No. 1 at 25; see also Docket Entry No. 9 at 5 n.1).

about Gunter’s military service photo, stating “[t]hat’s an old photo, how are they going to be able

to identify your dead body.” (Id.).

In August 2023, Tumblin categorized Gunter as “Needing Significant Improvement.” (Id.).

During the implementation of this improvement plan, Gunter was switched to a new role with

more responsibility and a new supervisor. (Id.). He completed the plan in November 2023 with

comments from Chewle stating “[u]pdates were very well received by the business team.” (Id. at

5–6, 15). On August 8, 2024, Gunter emailed a human resources contact about the so-called “death

threat” from Bollinger and other comments from Varghese about Gunter’s education and

competence, to which he did not receive a response. (Id. at 6, 19). In September 2024, Gunter

was again assigned as Needing Significant Improvement. (Id. at 6). During the implementation

of this next improvement plan, Gunter met with Chewle for one-one-one meetings. Chewle

allegedly made remarks about Gunter’s “disinterested behavior.” (Id.). Gunter responded by

voicing concerns “regarding a personal bias” and that the plan was “implemented to be

impassable.” (Id. at 6, 17–18). After Gunter “voiced his concerns” (it is unclear to whom) about

the plan and Chewle’s comments, he was issued another letter by his supervisor for a “pay-in-lieu”

option to discontinue the plan sometime in October 2024. (Id. at 6). Gunter denied the option and

kept going with the plan. (Id.). In December 2024, Gunter was terminated. (Id.). Exxon allegedly

withheld his accrued pay. (Id.).

In December 2025, Gunter sued Exxon, XTO Energy,2 Bollinger, Chewle, and Varghese.

(Docket Entry No. 1). He brought claims under the Uniformed Services Employment and

Reemployment Rights Act (USERRA), the Americans with Disabilities Act (ADA), Title VII of

2 The motion to dismiss states that XTO is a separately incorporated subsidiary of Exxon. (Docket Entry

No. 9 at 8 n.5).

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the Civil Rights Act of 1964, the Fair Labor Standards Act (FLSA), and Chapter 61 of the Texas

Labor Code. He requested damages, including punitive damages. (Id. at 7). The defendants

moved to dismiss under both Rule 12(b)(5) and Rule 12(b)(6), arguing that none of the defendants

have been properly served and that Gunter fails to state claims upon which relief can be granted.

(Docket Entry No. 9). Gunter filed a response, (Docket Entry No. 10), as well as a second

response, (Docket Entry No. 12), which he did not receive leave from the court to file.

II. The Legal Standard

A. The Rule 12(b)(5) Standard

“A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the service

of process.” Holly v. Metro. Transit Auth., 213 F. App’x 343, 344 (5th Cir. 2007). “The party

making service has the burden of demonstrating its validity when an objection to service is made.”

Id. For service to be effective, a plaintiff must comply with the requirements of Rule 4.

“Importantly, pro se litigants are not absolved from compliance with the requirements of Rule 4.”

Coleman v. Carrington Mortg. Servs., LLC, No. 4:19-CV-00231-ALM-CAN, 2021 WL 1725523,

at *1 (E.D. Tex. Apr. 12, 2021), report and recommendation adopted, 2021 WL 1721706 (E.D.

Tex. Apr. 30, 2021). “Without either proper service of process or waiver of that service, a federal

court cannot exercise personal jurisdiction over the defendant.” Dennis v. Eryngo Hills

Apartments, No. 1:22-CV-00683-DAE, 2023 WL 3855066, at *1 (W.D. Tex. June 6, 2023), report

and recommendation adopted, 2023 WL 4277345 (W.D. Tex. June 29, 2023).

B. The Rule 12(b)(6) Standard

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),

which requires “a short and plain statement of the claim showing that the pleader is entitled to

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relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require

‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. 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.” Id. “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.” Id. (quoting Twombly, 550 U.S. at 556).

III. Analysis

A. Insufficient Service of Process

The defendants argue that dismissal is warranted because there are multiple flaws with

Gunter’s attempt to serve each defendant. First, the defendants argue that because Gunter concedes

that he personally attempted service on each defendant via certified mail, there has been no proper

service of process. (Docket Entry No. 9 at 13). Under both Rule 4 and Texas law, a plaintiff

cannot send the summons and complaint themselves, even via certified mail. “[W]here a plaintiff

is the person who sends the registered or certified mail to a defendant, such service is invalid.”

See Sharma v. City of Dallas, No. 3:24-cv-1310-D-BN, 2026 WL 183777, at *3 (N.D. Tex. Jan.

23, 2026) (collecting cases). Because Gunter’s proofs of service stated that he “served the

documents via certified mail to the corporate headquarters location in Spring,” (Docket Entry Nos.

4, 5, 6, 7, 8; see also Docket Entry No. 10 at 6 (admitting that he sent the mail)), the court agrees

with the defendants that Gunter has not properly effected service on any defendant. See Le v. Gen.

Motors Co., Civ. Action No. H-25-209, 2026 WL 1010114, at *3 (S.D. Tex. Apr. 13, 2026).

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Even if Gunter had not personally sent the summons and complaint, however, there are

other errors in Gunter’s attempt to serve the defendants. Vanessa McLendon, the employee in the

legal department at Exxon who ultimately received a package (which was not addressed to any

particular person, (Docket Entry No. 8 at 3)) containing the lawsuit, has provided an affidavit

stating that she is not an agent authorized to receive service of process for any of the defendants.

(Docket Entry No. 9-1). Gunter has provided no evidence to challenge McLendon’s affidavit but

merely asserts that because she is an employee in the legal department and all the defendants must

have known about the suit, service is proper. (Docket Entry No. 10 at 6–7). Neither argument is

sufficient to overcome Exxon’s challenge to the service of process. See, e.g., Ellibee v. Leonard,

226 F. App’x 351, 356 (5th Cir. 2007); Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir.

1988). Similarly, Gunter has also provided no evidence that “W. Holland,” who signed the receipt

submitted in support of the proof of service for Exxon, (Docket Entry No. 8 at 3), was authorized

to accept service of process on behalf of any defendant. See Smith v. Womans Hosp., 671 F. App’x

884, 887 (5th Cir. 2016).

Next, the individual defendants cannot be served by mail at their place of work absent a

motion supported by an affidavit. See FED. R. CIV. P. 4(e); Brackens v. Woods, Civ. Action No.

H-13-3743, 2014 WL 1255879, at *2 (S.D. Tex. Mar. 26, 2014) (“Texas law does not permit

service of process on individuals at their place of employment, except on motion supported by

affidavit.”); Allen v. Travis, Civ. Action No. 3:06-CV-1361-M, 2007 WL 1989592, at *8 (N.D.

Tex. July 10, 2007) (noting that “service at a defendant’s place of employment is insufficient under

Rule 4” and that under Texas law, a plaintiff can only be served at their usual place of business

“pursuant to a motion support[ed] by an affidavit specifically stating the location at which the

defendant can be found”). In any event, the proofs of service that Gunter submitted did not contain

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signatures from Bollinger, Chewle, or Varghese verifying receipt, which is also independently

fatal to Gunter’s attempts to serve them. See Brackens, 2014 WL 1255879, at *2 (“The absence

of the defendants’ signatures on the return receipts also makes them ineffective” (citing Ayika v.

Sutton, 378 F. App’x 432, 435 (5th Cir. 2010)).

Because no defendant has been properly served, the court grants the motion to dismiss

under Rule 12(b)(5). The court denies Gunter’s request, buried within his first response to the

motion to dismiss, for default judgment against the individual defendants. (Docket Entry No. 10

at 10). The court also denies Gunter’s request to serve the defendants through email and through

CM/ECF filings. (Id.). Gunter has not met the strict requirements for requesting substitute

service.3 See Ancrum v. Lyft, 722 F. Supp. 3d 642, 646–47 (N.D. Tex. 2024).

B. Failure to State a Claim

Even if Gunter had properly served the defendants, however, he has still failed to state a

claim upon which relief could be granted. The court can address the Rule 12(b)(6) arguments even

without proper service on the defendants under Rule 12(b)(5). See, e.g., Robinson v. Jackson, No.

2:23-cv-1078, 2023 WL 5938744, at *2 (E.D. La. Sep. 12, 2023); Pena v. Dallas Police Ass’n,

No. 3:22-CV-098-N-BH, 2023 WL 2144296, at *4 (N.D. Tex. Jan. 17, 2023) (considering the

defendant’s alterative arguments for dismissal under Rule 12(b)(6) even though dismissal under

Rule 12(b)(5) was also proper), report and recommendation adopted, 2023 WL 2142973 (N.D.

Tex. Feb. 21, 2023); Coleman v. Bank of N.Y. Mellon, 969 F. Supp. 2d 736, 746 (N.D. Tex. 2013)

(same).

3 Gunter asserts that he has “attempted to resolve and request access multiple times with the court in order

to expedite the service and filing process and has been denied multiple times.” (Docket Entry No. 10 at

10). The docket does not reflect that Gunter has ever filed a motion for CM/ECF access or a motion for

substitute service.

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1. The Title VII Claims

Gunter does not identify the basis for his Title VII claims.4 (See generally Docket Entry

No. 1). His pleadings are concerned with purported disability discrimination and retaliation only.

But “Title VII prohibits employers from discriminating against employees on the basis of race,

color, religion, sex, or national origin.” Boyd v. State Farm Ins. Co., 158 F.3d 326, 328 (5th Cir.

1988). It does not extend to discrimination based on disability. See Avina v. JP Morgan Chase

Bank, N.A., 413 F. App’x 764, 766 n.4 (5th Cir. 2011) (“Title VII does not prohibit discrimination

because of a disability”); accord Paige v. Pellerin Milnor Corp., Civ. Action No. 16-17785, 2017

WL 1251203, at *2 (E.D. La. Apr. 5, 2017); Milteer v. Navarro County, Tex., No. 3:210-CV-2941-

D, 2022 WL 1321555, at *5 n.9 (N.D. Tex. May 3, 2022). There are no allegations that Gunter

was discriminated against on the basis of race, color, religion, sex, or national origin. Without

such allegations, Gunter’s Title VII discrimination claim cannot proceed.

For these reasons, retaliation for complaining about disability discrimination is not a basis

for a Title VII claim, either. See Paige 2017 WL 1251203, at *2 (“Because Paige does not allege

that he engaged in any activity based on any of the characteristics protected by Title VII, he cannot

state a retaliation claim under that statute.”); Stratton v. Jackson State Univ., No. 3:20-CV-00202,

2021 WL 1268381, at *1 n.1 (S.D. Miss. Apr. 6, 2021) (“Plaintiff’s Title VII claim is purportedly

based on retaliation for his having complained about disability discrimination. This is not a

cognizable claim, as Title VII does not provide protection against retaliation based on complaints

of disability discrimination.”); Omogbehin v. Cino, 485 F. App’x 606, 611 (3d Cir. 2012);

Branscomb v. Sec’y of Navy, 461 F. App’x 901, 906 (11th Cir. 2012). Because Gunter has not

4 Gunter does not clearly identify whether he is bringing claims for discrimination and retaliation under

Title VII and the ADA, or just claims for retaliation. Construing his pleadings liberally, he is attempting

to assert both kinds of claims under both statutes.

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pleaded facts showing that he was retaliated against for engaging in activity protected by Title VII,

the retaliation claim is dismissed as well.

Gunter’s Title VII claims are dismissed, without prejudice, as to Exxon and XTO.5 Gunter

may amend his Title VII claims to assert facts showing discrimination or retaliation based on

characteristics protected by Title VII. To the extent that the Title VII claims are asserted against

the individual defendants, however, those claims are dismissed, with prejudice. See Indest v.

Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (“[A] party may not maintain a suit

against both an employer and its agent under Title VII”); Umoren v. Plano Indep. Sch. Dist., 457

F. App’x 422, 425 (5th Cir. 2012) (Table) (“Relief under Title VII is only available against an

employer, not an individual supervisor or fellow employee.” (cleaned up)); Marbley v. Teamster

Local 988, Civ. Action No. 4:22-cv-3396, 2023 WL 4712825, at *7 (S.D. Tex. July 24, 2023)

(“Put simply, there is no individual liability under Title VII.”).

2. ADA

“The ADA seeks to eliminate unwarranted discrimination against disabled individuals in

order both to guarantee those individuals equal opportunity and to provide the Nation with the

5 The court declines the defendants’ request at this time to dismiss the Title VII claims against Exxon and

XTO, with prejudice, for failure to exhaust. (Docket Entry No. 9 at 16–17 & n.8). “A failure to exhaust

defense can be asserted at the motion to dismiss stage ‘only if the defense is evident on the face of the

complaint.’” Sollazzo v. Allied Universal, Civ. Action No. 22-237, 2023 WL 5969220, at *3 (W.D. La.

Sep. 12, 2023) (quoting Luebano v. Office Depot, L.L.C., No. 22-050767, 2023 WL 4249268, at *3 (5th

Cir. June 29, 2023)). Gunter does not discuss exhaustion in his complaint, nor does he mention his EEOC

Charge. At the motion to dismiss stage, a district court’s consideration is “limited to the complaint, any

documents attached to the complaint, and any documents attached to the motion to dismiss that are central

to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), LP v. Barclays Bank PLC, 594

F.3d 383, 387 (5th Cir. 2010). Although the defendants attached the EEOC Charge to their motion to

dismiss, the court cannot consider that document based on the record before it. See Lopez v. Kendall, No.

22-50411, 2023 WL 2423473, at *2 (5th Cir. 2023). And because exhaustion is typically an affirmative

defense, Gunter’s silence in his complaint as to exhaustion is not a basis for dismissal, either. See Carbe v.

Lappin, 492 F.3d 325, 328 (5th Cir. 2007).

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benefit of their consequently increased productivity.” Cleveland v. Policy Mgmt. Sys. Corp., 526

U.S. 795, 801 (1999). “To prevail on a claim of disability discrimination under the ADA, a party

must prove that (1) he has a disability; (2) he is qualified for the job, and (3) the covered entity

made its adverse employment decision because of the party’s disability.” Neely v. PSEG Tex., Ltd.

P’Ship, 735 F.3d 242, 245 (5th Cir. 2013) (cleaned up). “To recover under the ADA, the plaintiff

must prove that he was discriminated against on the basis of his disability.” Bennet v. Calabrian

Chems. Corp., 324 F. Supp. 2d 815, 824 (E.D. Tex. 2004).

In addition, “[t]he ADA prohibits an employer from ‘discriminat[ing] against any

individual because such individual has opposed any act or practice made unlawful by [the ADA]

or because such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [the ADA].’” Lyons v. Katy Indep. Sch. Dist., 964 F.3d

298, 303–04 (5th Cir. 2020) (alterations in original) (quoting 42 U.S.C. § 12203(a)). “When a

plaintiff presents indirect evidence of unlawful retaliation under the ADA, we apply the burden-

shifting framework established in McDonnell Douglas Corp. v. Green.” Id. at 304. “To establish

a prima facie case of unlawful retaliation under the ADA, the plaintiff must show that: (1) she

engaged in an activity protected by the ADA, (2) she suffered an adverse employment action, and

(3) there is a causal connection between the protected activity and the adverse action.” Id.

There are several issues with Gunter’s ADA discrimination and retaliation claims. First,

as with the Title VII claims, the ADA does not provide a cause of action against an individual.

See McLennan v. Oncor Elec. Delivery Co. LLC, No. 3:12-CV-00531-G, 2012 WL 3072340, at

*3 (N.D. Tex. July 6, 2012), report and recommendation adopted, No. 3:12-CV-0531-G BF, 2012

WL 3079063 (N.D. Tex. July 30, 2012), aff’d sub nom. McLennan v. Veitch, 519 F. App’x 260

(5th Cir. 2013); Ancar v. LCMC Health, Civ. Action No. 25-618, 2025 WL 3187083, at *2 (E.D.

9

La. Nov. 14, 2025); Estate of A.R. v. Grier, Civ. Action No. H-10-0533, 2011 WL 3813253, at *7

(S.D. Tex. Aug. 26, 2011). To the extent Gunter is attempting to assert ADA claims against

individual defendants, those are dismissed, with prejudice. Second, the claims against XTO are

dismissed, without prejudice, because Gunter has failed to allege that XTO was an employer. See

Reed v. City of Floresville, No. SA-24-CV-00701, 2026 WL 753541, at *4 (W.D. Tex. Mar. 16,

2026) (“To plead a cause of action for liability under the ADA and FMLA, a plaintiff must allege

sufficient facts to support the requirement that the defendant qualifies as an ‘employer’ under the

statutes and that an employment relationship existed between the plaintiff and that defendant.’”);

accord Patterson v. Yazoo City, 847 F. Supp. 2d 924, 932 (S.D. Miss. 2012).

But even as to Exxon—undisputably identified as Gunter’s employer in the complaint—

Gunter has failed to meet the requirements of Rule 8. There are no facts plausibly alleging any

discrimination or retaliation against him based on his disability. The only time Gunter’s disability

is mentioned is when he notes that he was hired through a program for disabled veterans. (Docket

Entry No. 1 at 5). And the complaint merely alleges that Gunter “voiced his concerns” that the

2024 improvement plan was biased and unfair. (Docket Entry No. 1 at 6–7). The general assertion

of “bias” is insufficient for this court to conclude that there are viable ADA claims. See Arocha v.

Ministries, No. 5-18-CV-01251-XR-RBF, 2019 WL 13254069, at *2 (W.D. Tex. Jan. 14, 2019)

(“To survive a motion to dismiss, a plaintiff’s complaint must identify more than the plaintiff’s

subjective belief that he or she was discriminated against; it must describe specific facts that

support the plaintiff’s claim that the employer acted in an unlawfully discriminatory manner.”).

Even taking all facts as true, there are simply insufficient facts alleged for this court to conclude

that Gunter has plausibly pleaded claims under the ADA.

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The ADA discrimination and retaliation claims are dismissed, without prejudice, as to

Exxon and XTO. Gunter may amend his complaint to allege sufficient facts plausibly pleading

that Exxon and XTO discriminated and retaliated against him in violation of the ADA. The ADA

claims against the individual defendants are dismissed, with prejudice.

3. USERRA

“USERRA is a federal law that protects employees from being discriminated against by

their employers because of their military service.” McIntosh v. Partridge, 540 F.3d 315, 320 (5th

Cir. 2008). “USERRA’s anti-discrimination provision prohibits an employer from denying initial

employment, reemployment, retention in employment, promotion, or any benefit of employment

to a person on the basis of membership, application for membership, performance of service,

application for service, or obligation of service.” Rogers v. City of San Antonio, 392 F.3d 758,

762 (5th Cir. 2004) (citing 38 U.S.C. § 4311(a)). “Additionally, ‘an employer must not retaliate

against a person by taking adverse employment action against that person because he or she has

taken an action to enforce a protection afforded under USERRA.’” Garcia-Ascanio v. Spring

Indep. Sch. Dist., 74 F.4th 305, 309 (5th Cir. 2023) (quoting Rogers, 392 F.3d at 762).

“To establish a USERRA claim, a plaintiff must prove that his or her ‘membership,

application for membership, service, application for service, or obligation for service in the

uniformed services is a motivating factor in the employer’s action.’” Id. (quoting Bradberry v.

Jefferson County, 732 F.3d 540, 547 (5th Cir. 2013)). “The Act does not define ‘motivating

factor,’ but ‘[b]y referring to a ‘motivating factor, the statute does not textually suggest that

military service be the sole factor.’” Id. (alterations in original) (quoting Bradberry, 732 F.3d at

547). “USERRA also provides employers with an affirmative statutory defense: An employer is

not liable ‘if it can prove that the action would have been taken in the absence of such military

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status.’” Id. (quoting Bradberry, 732 F.3d at 547) (cleaned up). “[T]he employer has the burden

to prove the affirmative defense that it would have taken the action anyway.” Id. (alteration in

original) (quoting Bradberry, 732 F.3d at 547).

The court dismisses the USERRA claims, without prejudice. Although this court “must

accept as true the allegations in the complaint and construe them in the light most favorable to the

plaintiff,” the court “will not strain to find inferences favorable to the plaintiffs” and will “not

accept conclusory allegations, unwarranted deductions, or legal conclusions.” R2 Investments

LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (cleaned up). There are no alleged facts giving

rise to a reasonable inference that Gunter was discriminated or retaliated against because of his

past service. Gunter merely alleges that (1) he was hired through a “Veteran connected” program,

and (2) in February 2023, Bollinger commented on Gunter’s military photo (in a comment that

concerned the age of the photo, not his status as a veteran) in a manner that Gunter interprets as a

“death threat.” (Docket Entry No. 1 at 5). Gunter was not assigned as “Needing Significant

Improvement” until August 2023 (six months after that comment) and was not terminated until

December 2024 (nearly two years after that comment). (Id. at 5–6). Gunter also asserts no facts

plausibly linking his complaint about Bollinger’s comment with his first “Needing Significant

Improvement” assignment and his status as a veteran. In short, the court cannot make the

speculative and conclusory leaps necessary to find that Gunter has plausibly pleaded a claim under

the USERRA. See Bennett v. Dallas Indep. Sch. Dist., 936 F. Supp. 2d. 767, 788 (N.D. Tex. 2013)

(noting that the plaintiff “fail[ed] to point to any evidence of a connection between his USERRA-

protected actions and [his employer’s] decisionmaking”).

The court dismissed this claim, without prejudice. Gunter may amend to allege facts that

would allow this court to make a reasonable inference—rather than an “unwarranted deduction”—

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that he has stated a claim under the USERRA and that all the defendants qualify as “employers”

within the meaning of the statute.

4. FLSA

Gunter also brings claims under the FLSA. The basis for his claim appears to be that after

he was terminated, Exxon withheld his accrued pay. (Docket Entry No. 1 at 6; Docket Entry No.

12 at 4). Gunter provides, as part of the exhibits attached to his complaint, the Texas Workforce

Commission decision stating that he was not entitled to $3,902.08 in unpaid vacation pay because

Exxon had already paid that amount, albeit after the wage claim was filed. (Docket Entry No. 1

at 24). This unpaid vacation pay (which was later paid) cannot form the basis of an FLSA claim.

See Owens v. CEVA Logistics/TNT, Civ. Action No. H-11-2237, 2012 WL 6691115, at *11 (S.D.

Tex. Dec. 12, 2012) (“The FLSA does not contain a requirement to pay unused vacation time when

an employee leaves.”); Young v. Excellence Mortg., Ltd., No. SA-10-CA-314-FB, 2010 WL

11575618, at *10 (W.D. Tex. Sep. 15, 2010) (“[N]o provision of the FLSA has been construed to

afford a cause of action for unpaid vacation alleged to be due at termination.”), report and

recommendation adopted, No. SA-10-CA-314-FB, Docket Entry No. 20; Field v. Am. Mortg.

Express, Corp., No. C 09-01439 MHP, 2009 WL 3562423, at *4 (N.D. Cal. Oct. 27, 2009) (“[T]he

FLSA does not provide a cause of action for individuals, like [the plaintiff], who claim they were

denied wages, benefits, or vacation pay due to them at termination.”).

This claim is dismissed, without prejudice. Gunter may amend his complaint to assert facts

demonstrating a plausible violation of the FLSA.

5. Texas Payday Law Claim

Chapter 61 “does not allow a private cause of action.” McLaughlin v. Monarch Dental

Corp., No. 3:12-CV-4925-G, 2014 WL 3818290, at *2 n.2 (N.D. Tex. Aug. 4, 2014); accord

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Ihegword v. Harris Cnty. Hosp. Dist., 929 F. Supp. 2d 635, 668–69 (S.D. Tex. 2013), aff’d, 555

F. App’x 372 (5th Cir. 2014). Rather, “Chapter 61 creates a detailed administrative enforcement

scheme through the TWC and allows the possibility for enforcement by the attorney general. There

is nothing within Chapter 61 that suggests an intent to also allow a plaintiff to invoke its provisions

through a private right of action, especially given the existence of the available administrative

remedy.” Doan v. Portable Prod. Servs., LP, Civ. Action No. H-11-0261, 2011 WL 2038580, at

*2 (S.D. Tex. May 19, 2021) (citation omitted). Because Chapter 61 does not provide a private

cause of action, this claim is dismissed, with prejudice.

IV. Conclusion

For the reasons explained above, the court grants the defendants’ motion to dismiss.

(Docket Entry No. 9). The Title VII and ADA claims against Exxon and XTO are dismissed,

without prejudice. The Title VII and ADA claims against the individual defendants are dismissed,

with prejudice. The USERRA claim is dismissed, without prejudice. The FLSA claim is

dismissed, without prejudice. The Texas Payday Act claim is dismissed, with prejudice. Gunter

may amend his complaint and, if he does so, must properly serve each defendant with a copy of

the summons and amended complaint no later than May 22, 2026. Because the court has denied

Gunter’s motion to proceed in forma pauperis, (Docket Entry No. 13), he must also pay the filing

fee before this case can proceed.

Finally, the court also notes that Gunter asserted facts and claims in his briefing that were

not included in the original complaint. (See, e.g., Docket Entry No. 12 at 5 (asserting unlawful

enforcement of a non-compete)). Any facts and claims that Gunter wants this court to consider

must be included in the amended complaint, not in his briefing. See, e.g., Cutera v. Bd. of Sup’rs

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of La. State Univ., 429 F.3d 108, 113 (Sth Cir. 2005); Middleton v. Life Ins. Co. of N. Am., H-09-

CV-3270, 2010 WL 582552, *5 (S.D. Tex. Feb. 12, 2010).

SIGNED on April 21, 2026, at Houston, Texas.

LW Cnt

Lee H. Rosenthal

Senior United States District Judge

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