Opinion

UNITED STATES DISTRICT COURT July 01, 2026

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

Drake Alexander-Sterling Hodge, §

Plaintiff, §

§

v. § Civil Action H-25-3276

§

Family Dollar Stores of Texas, §

LLC, §

Defendant. §

ORDER ON DEFENDANT’S MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM

Pending before the court is Defendant’s Motion to Dismiss.

ECF No. 15. The Motion to Dismiss is GRANTED, and this case

is DISMISSED with prejudice.

1. Background Facts and Procedural History

Plaintiff Drake Alexander-Sterling Hodge, proceeding pro

se, alleges that he was wrongfully terminated by Defendant

Family Dollar Stores of Texas, LLC after he was accused of sexual

harassment by another employee. ECF No. 14 at 1–4. Plaintiff

seeks $4 million in damages and payment of past-due rent. Id. at 7.

The court liberally construes pro se pleadings. Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted). In

deciding the instant Motion, the court has considered the facts set

forth in Plaintiff’s Amended Complaint, ECF No. 14, as well as

those in Plaintiff’s Original Complaint, ECF No. 4, and its

attachments.1 The attachments to Plaintiff’s Original Complaint

1 The court notes that in its order granting Plaintiff leave to amend his complaint, it

specifically directed Plaintiff not to “make reference to earlier-filed documents or

pleadings.” ECF No. 11 at 1. Plaintiff ignored the court’s order. ECF No. 14 at 1.

Nevertheless, for the sake of fairness and completeness, and given Plaintiff’s pro se

include a Determination on Payment of Unemployment Benefits

letter issued by Texas Workforce Commission (TWC), ECF No. 4- 3

at 2– 3; screenshots and transcriptions of text messages that were

purportedly exchanged between Plaintiff and his co-workers and

management, ECF Nos. 4-4, 4-5, 4-7; portions of employee work

schedules, ECF No. 4-6 at 2–7; Plaintiff’s Letter of Intent to Sue,

ECF No. 4-9 at 2–10; and a February 2025 email to Plaintiff from

Dollar Tree Management, Inc., ECF No. 4-10 at 2.

A. Background Facts

Because Plaintiff’s Original Complaint goes into

significantly more factual detail than the Amended Complaint,

most of the facts in this section are taken from the Original

Complaint.

According to the Original Complaint, Plaintiff worked at one

of Defendant’s stores for four years as an assistant store manager

and then as store manager. ECF No. 4 at 1. In February 2025,

Defendant terminated Plaintiff after accusing him of sexual

harassment of a co-worker. Id. The co-worker filed a sexual

harassment complaint with Defendant’s human resources

department and provided evidence in the form of screenshots of

her text message conversations with Plaintiff. Id. Defendant’s

human resources manager and district manager, along with

representatives of a third-party entity, questioned Plaintiff about

the communications and offered him the opportunity to prepare a

written statement in response to the allegations. Id. at 1–2.

Plaintiff did not submit a statement. ECF No. 14 at 3. He asserts

that because he was suspended from his position, he was not

provided with the opportunity to prepare his written statement

during working hours, which prevented him from completing it. Id.

status, the court has considered all of the documents that appear to contain the facts

Plaintiff has at his disposal.

After his termination, Plaintiff submitted an application for

unemployment benefits to TWC. ECF No. 4 at 3. During TWC’s

evaluation of Plaintiff’s application, Defendant presented evidence

to TWC related to his termination. ECF No. 14 at 2. TWC

ultimately concluded that “[t]he available evidence did not

establish misconduct connected with the work” and granted

Plaintiff’s request for unemployment benefits. ECF No. 4-3 at 2.

In addition to his complaints about his termination, Plaintiff

alleges that he was forced to work nearly every day of his last

four months of employment and was only given two days off.

ECF No. 4 at 3. Plaintiff further alleges that was not “paid more

because [he] was a salaried employee . . . .” Id. Plaintiff states that

the extensive working hours negatively impacted his university

grades and class attendance. Id. Plaintiff alleges that his district

manager, who was aware of his student status, “threatened to talk

to [his] HR manager about demoting [him] . . . just because [he]

was in college which is kind of discrimination in a way[.]” Id.

B. Procedural History

Plaintiff filed this lawsuit on May 30, 2025, in the 164th

Civil District Court of Harris County, Texas. ECF No. 1-2 at 2.

Defendant filed its General Denial on July 7, 2025. ECF No. 1-4.

One week later, Defendant removed the case to federal court

based on diversity jurisdiction. ECF No. 1 at 2–3 (citing 28 U.S.C.

§ 1332(a)(1)). Following removal, Plaintiff filed an Original

Complaint that was nearly identical to his earlier Original

Petition—the only material difference was a correction to

Defendant’s name. Compare ECF No. 4 at 1 (naming Family

Dollar Stores of Texas, LLC as defendant), with ECF No. 1-2

(naming Family Dollar, LLC as defendant); see also ECF No. 1

at 1 n.1 (stating that Family Dollar Stores of Texas, LLC is

Plaintiff’s former employer, while Family Dollar, LLC is a

Virginia-based entity that has no employees and never employed

Plaintiff).

In October 2025, the court held the initial conference in the

case. ECF No. 11. The court explained to Plaintiff that on the face

of his Original Petition and Original Complaint, it was difficult to

discern the nature of Plaintiff’s allegations and stated causes of

action. The court granted Plaintiff leave to amend his complaint.

Id. It explained that “[t]he amended complaint shall contain all the

facts, causes of action, and legal theories Plaintiff intends to assert

in the case.” Id. Moreover, it ordered that Plaintiff’s “amended

complaint shall not make reference to [his] earlier-filed documents

or pleadings.” Id. Plaintiff filed the third version of his complaint—

his Amended Complaint—which added claims for “workplace

sabotage,” criminal conspiracy, and “concealment- failure to

disclose.” ECF No. 14.

Generally, Plaintiff takes issue with Defendant’s

investigation into the sexual harassment allegations against him

and his resulting termination, which he believes was unlawful.

Plaintiff alleges that the investigation was “very unfair,

incompetent/negligent, and foul for a professional setting.”

ECF No. 4 at 2. He asserts that Defendant failed to properly define

and understand the legal meaning of sexual harassment, and that

it falsified the allegations against him. ECF No. 14 at 2. According

to Plaintiff, the text messages that he sent to his co-worker were

taken out of context and not reviewed in full. Id. at 3. He believes

that his termination was unlawful. He also asserts that Defendant,

through its general denial (ECF No. 1-4) filed in response to

Plaintiff’s Original Petition, concealed “the facts of the case based

on what happened and the evidence [he] provided.” ECF No. 14

at 4. Plaintiff also raises several complaints about the

representations that Defendant made to TWC during its

investigation into his application for benefits. He asserts that

Defendant “potentially stopp[ed] [him] from getting [his] benefits”

by telling TWC that his employment was terminated for sexual

harassment. Id. at 2. He also alleges that Defendant told TWC

that he “was racist to [another employee].” ECF No. 4 at 4.

Within two weeks of Plaintiff filing his Amended Complaint,

Defendant filed the instant Motion to Dismiss for failure to state a

claim under Rule 12(b)(6). ECF No. 15. Defendant argues that

Plaintiff failed to respond to the Motion. Therefore, the Motion is

considered unopposed. See S.D. Tex. L.R. 7.4 (stating that failure

to respond to a motion is “taken as a representation of no

opposition”). At the same time, however, the court will not grant a

dispositive motion merely because it is unopposed. See Ramsey v.

Signal Delivery Serv., Inc., 631 F.2d 1210, 1214 (5th Cir. 1980)

(vacating and remanding after the district court granted

defendants’ motions to dismiss merely because they were

unopposed). Instead, the court considers the Motion on its merits.

In doing so, the court may accept the unopposed facts set forth in

the motion to dismiss as undisputed. See Eversley v. MBank Dall.,

843 F.2d 172, 174 (5th Cir. 1988) (affirming summary judgment

for the defendant when the district court accepted as undisputed

the facts presented defendant’s motion, where the plaintiff made

no opposition to the motion).

2. Legal Standard

Rule 12(b)(6) authorizes the court to dismiss a complaint for

“failure to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). Generally, when considering a motion to dismiss,

the court must limit itself to (1) the facts in the complaint;

(2) documents attached to the complaint; and (3) matters of which

the court may take judicial notice. Walker v. Beaumont Indep. Sch.

Dist., 938 F.3d 724, 735 (5th Cir. 2019) (citation omitted). The

court also has discretion to consider exhibits attached to the

complaint, as well as exhibits attached to a motion to dismiss, if

they “are central to the claim and referenced by the complaint.”

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383,

387 (5th Cir. 2010) (citation omitted).

Under Rule 12(b)(6), the court determines whether the

plaintiff’s complaint contains “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). “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.” Calogero v. Shows, Cali & Walsh, L.L.P.,

970 F.3d 576, 580 (5th Cir. 2020) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). “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.

Courts accept “all well-pleaded facts as true” and “view[]

them in the light most favorable to the plaintiff.” Allen v. Walmart

Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) (quoting Jones v.

Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). “[A] plaintiff need

only plausibly allege facts going to the ultimate elements of the

claim to survive a motion to dismiss.” Cicalese v. Univ. of Tex. Med.

Branch, 924 F.3d 762, 768 (5th Cir. 2019). “Factual allegations

must be enough to raise a right to relief above the speculative

level . . . on the assumption that all allegations in the complaint

are true (even if doubtful in fact).” Twombly, 550 U.S. at 555

(internal citations omitted). “[A] well-pleaded complaint may

proceed even if it strikes a savvy judge that actual proof of those

facts is improbable[.]” Id. at 556 (internal citation omitted).

Only statements of fact are to be taken as true. “Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Conclusory allegations are “disentitle[d] . . . to the presumption of

truth.” Id. at 681. Thus, the court, in reviewing the plaintiff’s

complaint, may neither “accept conclusory allegations” nor “strain

to find inferences favorable to the plaintiffs.” Southland Sec. Corp.

v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004)

(internal citations omitted).

3. Analysis of Plaintiff’s Claims

Plaintiff asserts claims for wrongful termination,

defamation, incompetence/negligence, violation of state labor laws,

perjury, tampering with evidence, workplace sabotage, criminal

conspiracy, and concealment–failure to disclose. ECF No. 14.

Under the two-step inquiry outlined in Iqbal, the court first

identifies and disregards conclusory allegations. 556 U.S. at 664.

Legal conclusions, or “threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements” are not

entitled the assumption of truth. Id. at 678. Neither “unsupported

conclusions . . . of mixed fact and law” nor “unwarranted

deductions” are acceptable. Stanton v. United States, 434 F.2d

1273, 1276 (5th Cir. 1970); Southland, 365 F.3d at 361. Second, the

court “consider[s] the factual allegations in [the complaint] to

determine if they plausibly suggest an entitlement to relief.” Iqbal,

556 U.S. at 664. The court addresses each of Plaintiff’s claims in

turn.

A. Wrongful Termination

Plaintiff asserts that Defendant wrongfully terminated his

employment for “no legal reason.” ECF No. 4 at 2. Under Texas

law, “an at-will employee may be fired for a good reason, a bad

reason, or no reason at all.” Safeshred, Inc. v. Martinez, 365 S.W.3d

655, 660 (Tex. 2012) (citing Montgomery Cnty. Hosp. Dist. v.

Brown, 965 S.W.2d 501, 502 (Tex. 1998)). There is no indication

that Plaintiff was under an employment contract. Thus, Plaintiff

appears to have been an at-will employee. Defendant did not need

a reason to terminate Plaintiff.

Plaintiff’s pleadings do not indicate that Defendant fired him

for an illegal reason. For example, there is nothing to indicate that

he was fired because of his gender, race, age, or any other protected

characteristic. There is also no indication that Plaintiff was fired

for refusing to commit an illegal act in the scope of his employment.

See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.

1985) (recognizing a “narrow exception” to the at-will employment

doctrine when an employee is terminated solely for refusing to

perform an illegal act at their employer’s direction).

It is uncontested that Defendant fired Plaintiff because it

perceived that Plaintiff had exchanged inappropriate texts with a

co-worker. While reasonable minds could differ about whether

Defendant correctly perceived the text messages and reacted

appropriately, there is no indication that there was anything

illegal about Plaintiff’s termination. The court, therefore,

GRANTS Defendant’s Motion to Dismiss as to Plaintiff’s claim for

wrongful termination.

B. Defamation

Plaintiff alleges that Defendant defamed him by

communicating with TWC and providing it with evidence during

the investigation into his claim for unemployment benefits. ECF

No. 14 at 2–3. Under Texas law, a defamation claim requires the

plaintiff to show that (1) the defendant published to a third party

a false statement, (2) the statement was defamatory to the

plaintiff, (3) the defendant acted with the requisite degree of fault.

In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). Defamatory

statements are “published” if they are communicated orally, in

writing, or in print to some third person capable of understanding

their defamatory import and in such a way that the third person

did so understand. Ramos v. Henry C. Beck Co., 711 S.W.2d 331,

335 (Tex. App.—Dallas 1986, no writ).

Plaintiff’s allegations fail to establish a prima facie claim of

defamation. Plaintiff alleges Defendant told TWC that it had

terminated Plaintiff’s employment for sexual harassment. ECF

No. 14 at 2. He asserts that TWC found that Defendant’s

statement was not true. Id. In support, Plaintiff attached a copy

of TWC’s letter explaining its determination on his benefits

claim. ECF No. 4- 3 at 2– 3. The letter concludes that “[t]he

available evidence did not establish misconduct,” as defined by

Texas Labor Code § 201.012. See Tex. Lab. Code Ann. § 207.044(a)

(“An individual is disqualified for benefits if the individual was

discharged for misconduct connected with the individual’s last

work.”). That conclusion, however, merely reflects the fact that

Defendant and TWC disagreed about whether Plaintiff’s actions

rose to the level of misconduct. It does not support Plaintiff’s

assertion that Defendant made a false statement in the course of

the investigation. It is undisputed that Defendant terminated

Plaintiff because it believed that the text messages that he sent to

his co-worker constituted sexual harassment. Plaintiff clearly

disagrees with Defendant’s interpretation of those text messages.

That disagreement, however, does not change Defendant’s

interpretation of the messages, and it does not make that

interpretation “false.”

Plaintiff’s defamation claim also fails because he has not

alleged that Defendant made the statement with the requisite

degree of fault. A plaintiff who is a private individual, as opposed

to a public figure, must show that the defendant acted negligently

in making the defamatory statement. Lipsky, 460 S.W.3d at 593

(citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.

1998)). The defendant acts negligently if they knew or should have

known that the defamatory statement was false. WFAA-TV, 978

S.W.2d at 571 (citation omitted). Plaintiff appears to assert that

Defendant’s statement to TWC was negligent because Defendant

should have known that the alleged defamatory statement—that

it terminated Plaintiff for sexual harassment—was false.

ECF No. 14 at 2. Again, Defendant believed that the text messages

that Plaintiff sent to his co-worker constituted sexual harassment.

Defendant was not negligent in reporting to TWC that it

terminated Plaintiff for sexual harassment.

Further, an employer has a qualified privilege against

defamation liability for “communications made in the course of an

investigation following a report of employee wrongdoing.”

Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.

1995) (citation omitted). The privilege remains intact as long as

“communications pass only to persons having an interest or duty

in the matter to which the communications relate.” Id.

Here, the alleged defamatory statement was communicated

directly to TWC by Defendant during an investigation into

Plaintiff’s eligibility for unemployment benefits. ECF No. 14 at 2.

TWC conducted that investigation upon receiving information that

Defendant terminated Plaintiff’s employment for alleged sexual

harassment. Defendant’s communication of the alleged

defamatory communication thus falls within the employer

qualified privilege. Accordingly, Defendant cannot be held liable

for defamation based on the communications made to TWC.

For these reasons, the court GRANTS Defendant’s Motion

to Dismiss as to Plaintiff’s defamation claim.

C. Incompetence/Negligence

Plaintiff alleges that Defendant was incompetent and

negligent because Defendant did not understand “what sexual

harassment was,” and did “not [] know State of Texas labor Laws

regarding employee off time and payment of wages . . . .” ECF

No. 14 at 2. Plaintiff has not identified a specific tort or cause of

action that Defendant committed as a result of its alleged

incompetence or lack of knowledge. Generally, incompetence “is

not a cause of action recognized by law.” Karchin v. Metzenbaum,

587 F. Supp. 563, 565 (N.D. Ohio 1983). Plaintiff’s allegations

under the “Incompetence/Negligence” heading appear to be a

recasting of Plaintiff’s wrongful termination claim. But, again,

termination for any reason—or no reason at all—is allowed under

Texas law, as long as it is not for an illegal reason. Plaintiff’s claim

of incompetence is DISMISSED for failure to state a claim.

Based on the same assertions that purportedly underlie his

claim for “incompetence,” Plaintiff asserts a claim for negligence.

ECF No. 14 at 2. Under Texas law, a prima facie claim for

negligence requires a showing of (1) a legal duty; (2) breach of that

duty; and (3) damages proximately resulting from the breach.

Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998). The existence

of a legal duty is a threshold question of law. St. John v. Pope, 901

S.W.2d 420, 424 (Tex. 1995) (citing Bird v. W.C.W., 868 S.W.2d

767, 769 (Tex. 1994)).

Plaintiff does not identify nor explain what legal duty

Defendant owed to him. He appears to argue that Defendant had

a duty to know about certain aspects of the law. The court is not

aware of any duty to know the law, unless perhaps that failure

resulted in an illegal act, such as a failure to pay minimum wage,

or to take an adverse action based on an employee’s protected

characteristic. But those types of actionable wrongs are grounded

in specific statutory causes of action that are not at issue here.

Again, this appears to be an attempt to recast the wrongful

termination claim, which the court has already addressed.

Because Plaintiff has not alleged that Defendant owed him a legal

duty, Defendant’s Motion to Dismiss is GRANTED as to Plaintiff’s

claims for negligence.

D. Claims under Texas Labor Laws

Plaintiff does not specify which provisions of Texas labor

laws apply to his claims. In his Amended Complaint, under the

heading for “Breaking of State of Texas Labor Laws,” Plaintiff

asserts:

An employee is supposed to have a 24hr rest period

every 7 days that I was denied of for about 4 months

straight right before being wrongfully terminated.

Also in that 4 months [Defendant] knew that I was

only supposed to work 48 hours a week. They also

knew that I was a salaried employee working 70 plus

hours and not being paid more for it.

ECF No. 14 at 2.

Under Section 52.001 of the Texas Labor Code, an employer

must not deny its employees “at least one period of 24 consecutive

hours of time off for rest or worship in each seven-day period.”

“The time off must be in addition to the regular periods of rest

allowed during each day worked.” Tex. Lab. Code Ann. § 52.001.

However, the Texas Labor Code specifies that “[a]n offense under

this section is a Class C misdemeanor.” Id. § 52.003. The Code

does not provide a private cause of action for violations of

Section 52.001.

Because there is no private cause of action for offenses of

Section 52.001, to the extent that Plaintiff intended to bring a

claim under this provision, his claim fails. Cf. Chandler v.

Pilgrim’s Pride Corp., No. 20-0344, 2021 WL 2786558, at *2 (E.D.

Tex. Mar. 22, 2021) (citing Brown v. De La Cruz, 156 S.W.3d 560,

567 (Tex. 2004) for the proposition that that a private cause of

action will not be implied in a Texas statute absent explicit

legislative intent) (dismissing a civil action because Texas Labor

Code § 52.031 does not create an implied private cause of action).

While Plaintiff does not mention any federal labor laws and

limits his claims to “State of Texas Labor Laws,” he does mention

the number of hours he worked. ECF No. 14 at 2. The court thus

considers whether Plaintiff has stated a claim under the Fair

Labor Standards Act (FLSA). An employee bringing an action for

unpaid overtime compensation under the FLSA must show (1) that

there was an employer–employee relationship during the unpaid

overtime periods claimed; (2) that the employee engaged in

activities within the FLSA’s coverage; (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). Under

federal labor regulations, for employees engaged in interstate

commerce, “[e]xcept as otherwise provided in this section, no

employer shall employ any of his employees . . . for a workweek

longer than forty hours unless such employee receives

compensation for his employment in excess of the [forty]

hours . . . .” 29 U.S.C. § 207.

Plaintiff has not alleged facts sufficient to establish the last

two elements. In his complaint, Plaintiff states that he was a

“salaried employee.” ECF No. 14 at 2. He asserts that he “was only

supposed to work 48 hours a week.” Id. at 2. He alleges that

Defendant “knew that [he] was a salaried employee working 70

plus hours and not being paid more for it.” Id. Plaintiff asserts that

one of the exhibits attached to his complaint “show[s] that [he] was

working multiple weeks every day of the week and sometimes from

open to close . . . .” Id. at 5 (citing ECF No. 4-6).

Again, in evaluating a complaint under Rule 12(b)(6),

the court “will not strain to find interferences favorable

to the plaintiffs.” Southland, 365 F.3d at 361 (internal quotation

omitted). It is not clear from Plaintiff’s pleadings whether he is

entitled to overtime wages under federal law. He does not state

whether he was an exempt or non-exempt employee. See 29 U.S.C.

§ 213(a)(1) (exempting “employee[s] employed in a bona fide

executive, administrative, or professional capacity” from minimum

wage and maximum hour requirements); 29 C.F.R. § 541.100

(defining the term “employee employed in a bona fide executive

capacity”).

Even if Plaintiff had pleaded that he was a non-exempt

salaried employee, he fails on the fourth element. He has not

pleaded facts sufficient to show the amount of overtime

compensation that he believes he is entitled to. While the work

schedules that Plaintiff provided show that he worked in excess of

forty hours for some seven-day periods, the court cannot determine

whether that was a routine or reoccurring event, and it cannot

determine what hours Plaintiff was expected to work. Moreover,

Plaintiff does not specify what hours he was paid for. He merely

states that he was “not being paid more” for the hours he worked.

For these reasons, Plaintiff has failed to state a claim under

the FLSA. Defendant’s Motion to Dismiss is GRANTED as to

Plaintiff’s claims under the Texas Labor Code and the FLSA.

E. Perjury

Plaintiff alleges that Defendant’s general denial, ECF No. 1-

4, “was full of lies and partial lies.” ECF No. 14 at 2. Under Texas

law, “[a] person commits an offense if, with intent to deceive and

with knowledge of the statement’s meaning: he makes a false

statement under oath or swears to the truth of a false statement

previously made and the statements is required or authorized by

law to be made under oath; or he makes a false unsworn

declaration.” Tex. Penal Code Ann. § 37.02. Plaintiff does not

explain how a general denial, which is allowed under Texas Rule

Civil Procedure 85, rises to the level of perjury.

Moreover, there is no private cause of action for civil perjury

under Texas law. Tummel v. Milane, No. 18-0339, 2019 WL

366708, at *8 (S.D. Tex. Jan. 30, 2019). Accordingly, Defendant’s

Motion to Dismiss Plaintiff’s claim of perjury is GRANTED.

F. Tampering with Evidence and Criminal

Conspiracy

Plaintiff asserts that Defendant tampered with evidence

during the internal investigation of the sexual harassment

allegation against him and criminally conspired with the third

party conducting the investigation. ECF No. 14 at 2–4. Tampering

with evidence and criminal conspiracy are criminal offenses under

state law. Tex. Penal Code Ann. §§ 15.02, 37.09. A private right of

action was not explicitly created for either offense. Plaintiff does

not argue that either criminal code section should be construed to

create a private right of action. Absent some clear indication that

the Texas legislature intended to create a private right of action,

the court should not construe a statute to create one. Brown, 156

S.W.3d at 567.

Because there is no private right of action for either alleged

claim, Defendant’s Motion to Dismiss is GRANTED as to

Plaintiff’s claims of tampering with evidence and criminal

conspiracy.

G. Workplace Sabotage

Plaintiff alleges that the treatment he received by

Defendant’s managers sabotaged his ability to perform his work

duties and resulted in him working seventy-plus hour weeks. ECF

No. 14 at 3. Plaintiff also asserts that Defendant’s district

manager “said to [him] in a few different ways that she never

would of [sic] hired [him] as a Store Manager.” Id. Sabotage,

according to Plaintiff, also occurred when he was not given an

opportunity during work hours to prepare a written statement

concerning the allegations against him because he was terminated

from his position. Id.

Workplace sabotage is not a recognized claim in Texas. The

court is not aware of any cause of action that would provide

recovery based on the facts alleged. Plaintiff merely makes general

complaints about work conditions and management, which are not

sufficient to recover damages under any cause of action.

Defendant’s Motion to Dismiss is GRANTED as to

Plaintiff’s claim of workplace sabotage.

H. Concealment (Failure to Disclose)

Under a heading titled “Concealment- Failure to Disclose,”

Plaintiff alleges that Defendant’s general denial (ECF No. 1-4)

“seems like a cover-up, of the facts of the case based on what

happened and the evidence provided . . . .” ECF No. 14 at 4. The

court construes Plaintiff’s allegations as an attempt to state a

claim for fraudulent concealment.

In Texas, a claim for fraudulent concealment requires the

plaintiff to prove that (1) the defendant concealed or failed to

disclose a material fact within the defendant’s knowledge; (2) the

defendant knew that the plaintiff was ignorant of that material

fact and did not have an equal opportunity to discover the truth;

(3) the defendant concealed or failed to disclose the material fact

with the intent to induce the plaintiff to take some action; and

(4) the plaintiff suffered an injury as a result of acting without

knowledge of the undisclosed fact. Bradford v. Vento, 48 S.W.3d

749, 754–55 (Tex. 2001).

Plaintiff has not alleged facts sufficient to establish any of

these elements. As stated above, it is not clear how Defendant’s

legally permissible general denial could form the basis for

fraudulent concealment. It is also clear that the facts of this case

are known to Plaintiff. Further, Plaintiff makes no allegation that

the Defendant filed its general denial in an effort to induce

Plaintiff to take an action. He has not stated a claim for fraudulent

concealment. Defendant’s Motion to Dismiss is GRANTED as to

Plaintiff’s claim for fraudulent concealment.

4. Leave to Amend is Denied

“Dismissing an action after giving the plaintiff only one

opportunity to state his case is ordinarily unjustified.” Davoodi v.

Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (quoting

Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). If the

plaintiff seeks leave to amend, they “must give the court at least

some notice of what . . . [their] amendments would be and how

those amendments would cure the initial complaint’s defects.”

Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021)

(citation omitted). The court may deny leave “[i]f the plaintiff does

not provide a copy of the amended complaint [or] explain how the

defects could be cured[.]” Id. (citation omitted). The court may also

deny leave to amend when amendment would be futile or when the

plaintiff chooses to stand on her complaint and argues that it

satisfies the pleading requirements. See Khoury v. Thota, No. 20-

20578, 2021 WL 3919248, at *4 (5th Cir. Sep. 1, 2021) (affirming

the district court’s denial of leave to amend when the plaintiff

chose to stand on his complaint and argued that it satisfied the

pleading requirements); Wimm v. Jack Eckerd Corp., 3 F.3d 137,

139 (5th Cir. 1993) (discussing futility of amendment as

justification for denying leave to amend).

Here, Plaintiff has not requested to amend again or

submitted proposed amendments. He did not respond to

Defendant’s Motion to Dismiss. He has already amended his

complaint twice—once as a matter of right following removal, and

once with leave of court after the initial conference. He failed to

comply with the court’s directives concerning his amended

complaint, including the court’s order to not make reference to

earlier-filed documents or pleadings within the amended

complaint. The court has no reason to believe that Plaintiff could

amend his petition in such a way to remedy its defects and thus

concludes that amendment would be futile. Any request for leave

to amend is denied.

5. Conclusion

Because Plaintiff failed to state a claim against Defendant,

Defendant’s Motion to Dismiss, ECF No. 15,is GRANTED and all

of Plaintiffs claims against Defendant are DISMISSED with

prejudice. The court will separately enter final judgment.

Signed at Houston, Texas, on July 1, 2026.

Peter Bray

United States Magistrate Judge

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