The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TIMOTHY DAVIS, §
Plaintiff, §
§
v. § No. 3: 25-CV-901-K-BW
§
IRVING INDEPENDENT §
SCHOOL DISTRICT, §
Defendant. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Irving Independent School District’s (“IISD”)
Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint and Brief in
Support, filed on September 3, 2025. (See Dkt. No. 13 (“the Motion” (“Mot.”).) The
action was referred to the undersigned magistrate judge for pretrial management and
recommendation on claim-dispositive motions pursuant to 28 U.S.C. § 636(b) and
Special Order No. 3-251. (See Dkt. No. 3.)
Based on the relevant filings and applicable law, the undersigned recommends
that the Motion (Dkt. No. 13) be GRANTED as set forth below.
I. BACKGROUND
Plaintiff Timothy Davis, proceeding pro se, filed a lawsuit against IISD on
March 21, 2025, in the 68th Judicial District Court in Dallas County, Texas. (See
Dkt. No. 1-1 (“Original Petition”) (“Pet.”).) Davis alleged racial discrimination and
retaliation under Title VII of the Civil Rights Act of 1964. (See id. at ECF p. 2.)
Davis attached to his Original Petition a copy of his Notice of Right to Sue letter
from the Equal Employment Opportunity Commission (“EEOC”), issued on
December 23, 2024, notifying Davis that he had 90 days to file suit.1 (See Dkt. No.
1-1 at ECF. p. 7.) IISD timely removed the action to this Court pursuant to 28
U.S.C. § 1446(b) on April 11, 2025. (Dkt. No. 1.)
On the same day, IISD moved to dismiss Davis’s Original Petition pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which
relief can be granted. (Dkt. No. 6.) On May 1, 2025, Davis filed a response
consisting of a one-page letter lacking any legal argument or reference to the
arguments asserted in IISD’s motion (Dkt. Nos. 8), along with several pages of
“supporting documents” that Davis alleged support his claim (Dkt. No. 8-1).2 IISD
filed a reply on May 6, 2025. (Dkt. No. 9.)
On August 8, 2025, the undersigned issued findings, conclusions, and
recommendation (“FCR”), recommending that IISD’s Motion to Dismiss be granted
and Davis may be given an opportunity to amend his complaint. (See Dkt. No. 10.)
The Court accepted the FCR on August 25, 2025 (see Dkt. No. 11), and Davis filed
his Amended Complaint one day later. (See Dkt. No. 12.)
Thereafter, on September 3, 2025, IISD filed the present Motion to Dismiss.
(Dkt. No. 13.) Davis’s response to the Motion, if any, was due on September 24,
1 Davis did not attach a copy of the EEOC Charge of Discrimination to his Original
Petition.
2 Among other things, the attachments included a copy of Davis’s EEOC Charge of
Discrimination, dated September 26, 2024. (See Dkt. No. 8-1 at ECF p. 3-4.)
2025. See N.D. Tex. L.R. 7.1 (e) (A response and brief to an opposed motion must
be filed within 21 days from the date the motion is filed.). Davis did not file a
response within the required deadline, but the undersigned nevertheless granted
Davis an additional opportunity to respond to the Motion, extending his deadline to
file a response to October 8, 2025. (Dkt. No. 14.) Davis still did not file a response.
Because Davis has not filed a response to the Motion (despite being given ample time
to do so), the Court may consider the Motion ripe and ready for determination.
Davis’s Amended Complaint (Dkt. No. 12 (“Am. Compl.”)) remains the operative
complaint.
Davis alleges the following facts in his three-page Amended Complaint.
While he was employed as a special education classroom teacher at IISD, he was
subjected to “discriminatory practices based on race and gender starting on or about
August 22, 2022.” (Am. Compl. ¶¶ 4.1-4.2.) He alleges that, as the only black male
teacher on campus, he was reprimanded by Assistant Principal Angelica Fountain
“for going to the bathroom” and she made “inappropriate comments” to Davis
regarding his work performance and stating that “he could ‘do whatever to [a Sped
student] as long as the camera’s don’t catch you.’” (Id. ¶ 4.3.) Davis also alleges that
two black employees were injured by a student “including one employee filing a
police report,” and the student “received no consequences.” (Id.)
Davis also alleges that in November 2022 he was injured apparently by this
same student and “sent to Urgent Care.” (Id.) “The student received no
consequences.” (Id.) Davis asserts that “[o]n several occasions throughout October
[to] December 2022, Non-black employees (including Ms. Fountain) were injured by
the student[,] and [the student] did receive consequences.” (Id.) Davis then alleges
that “[p]ursuant to state law,” he requested the student be removed from his
classroom, but IISD failed to do this for “over two months.” (Id.) The complaint
provides no additional facts regarding the alleged injury that caused him to be sent to
urgent care, IISD’s alleged failure to discipline the student, or the alleged similar
assaults on “other non-black staff members” for which the student was disciplined.
(See id.)
Davis next alleges that “[t]he stress and bodily injury [he] experienced placed
him on leave starting in January 2023.” (Id.) Then, in April 2023, IISD “threatened
to non-renew his contract due to him being unable to complete an ESL [English as
Second Language] certification, but according to Davis, he was unable to complete
this certification “due to being on leave.” (Id.) IISD then “refused [his] request for
more time to complete the certification once the doctor approved the end of his
leave, so [he] was forced to resign in order to keep his Teaching certification to be
able to continue to provide for his family.” (Id.) Davis does not provide any
additional details regarding his placement on leave, his approval to return to work, or
any communications between himself and IISD regarding the leave or the
certification requirement. (See id.)
Davis further alleges that throughout August to December 2022, he and his
black co-teacher were “continually denied breaks and planning periods” while other
non-black employees “were not denied their breaks and planning periods.” (Id.)
Davis went through the grievance process with IISD, where he “provided any
documentation requested throughout all events” and “was told he would receive
copies of all documentation, but when his attorney requested the documents, IISD
“continually denied their requests.” (Id.)
Davis then reported this discrimination to Assistant Principal Fountain,
Principal Amara Bravo, and Human Resources, but IISD “failed to take appropriate
corrective action.” (Id. ¶ 4.3.)
II. LEGAL STANDARDS
In deciding a motion to dismiss for failure to state a claim on which relief may
be granted under Rule 12(b)(6), the Court “accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). A plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), and must plead those facts with enough specificity “to raise a right
to relief above the speculative level.” Id. at 555.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A recitation of the
elements of a cause of action, supported merely by conclusory statements, do not
suffice. See 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. So, “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557 (cleaned up)).
Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed factual
allegations, but it does require that a plaintiff allege more than labels and
conclusions. And, while a court must accept a plaintiff’s factual allegations as true, it
is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Consequently, a
threadbare or formulaic recitation of the elements of a cause of action, supported by
mere conclusory statements, will not suffice. See id. And so, “to survive a motion to
dismiss” under Twombly and Iqbal, plaintiffs must “plead facts sufficient to show”
that the claims asserted have “substantive plausibility” by stating “simply, concisely,
and directly events” that they contend entitle them to relief. Johnson v. City of Shelby,
Miss., 574 U.S. 10, 12 (2014) (citing Fed. R. Civ. P. 8(a)(2)-(3), (d)(1), (e)).
Aside from “matters of which judicial notice may be taken under Federal Rule
of Evidence 201,” Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890,
900 (5th Cir. 2019) (citations omitted), a court cannot look beyond the pleadings in
deciding a Rule 12(b)(6) motion, see Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.
1999). Pleadings in the Rule 12(b)(6) context include attachments to the complaint.
In re Katrina Canal Breaches Litig., 495 F.3d at 205; see also Gill as Next Friend of K.C.R.
v. Judd, 941 F.3d 504, 511 (11th Cir. 2019). And “[w]hen ‘an allegation is
contradicted by the contents of an exhibit attached to the pleading, then indeed the
exhibit and not the allegation controls.’” Rogers v. City of Yoakum, 660 F. App’x 279,
285 n.6 (5th Cir. 2016) (internal citations and quotations omitted).
Documents “attach[ed] to a motion to dismiss are considered to be part of the
pleadings, if they are referred to in the plaintiff’s complaint and are central to [his]
claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)
(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993)). Fifth Circuit case law suggests that documents are central when they are
necessary to establish an element of one of the plaintiff’s claims. See, e.g., Kaye v.
Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011).
But “if a document referenced in the plaintiff’s complaint is merely evidence
of an element of the plaintiff’s claim, then the court may not incorporate it into the
complaint.” Id.; see also Carter v. First Nat’l Collection Bureau, Inc., 135 F. Supp. 3d
565, 574 n.11 (S.D. Tex. 2015) (“The Court may consider, in a Rule 12(b)(6)
analysis, documents attached to a motion to dismiss—or, as here, to a response in
opposition to a motion to dismiss—if the documents are ‘sufficiently referenced in
the complaint.’”) (citing Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 294 (5th
Cir. 2008)).
Pro se complaints receive a “liberal construction.” Brown v. Tarrant Cnty.,
Tex., 985 F.3d 489, 494 (5th Cir. 2021) (citations omitted). A “pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal
quotations omitted). But “mere conclusory allegations on a critical issue are
insufficient.” Id. “Liberal construction does not require that the Court . . . create
causes of action where there are none.” Smith v. CVS Caremark Corp., No. 3:12-CV-
2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013).
The Fifth Circuit has consistently held that the mere failure to respond to a
motion is insufficient to justify dismissal with prejudice. See Watson v. U.S. ex rel.
Lerma, 285 F. App’x 140, 143 (5th Cir. 2008); John v. Louisiana (Bd. of Trs.), 757 F.2d
698, 713 (5th Cir. 1985). When a nonmoving party does not file any response to a
motion to dismiss, the Court cannot properly grant “the motion to dismiss for failure
to state a claim solely because the [nonmoving party] failed to oppose the motion.”
Webb v. Morella, 457 F. App’x 448, 452 n.4 (5th Cir. 2012) (citing John, 757 F.2d at
707-10) (“[A]lthough we have endorsed the adoption of local rules that require
parties to file responses to opposed motions, we have not approved the automatic
grant, upon failure to comply with such rules, of motions that are dispositive of the
litigation.”).
As the Fifth Circuit has explained, “Rule 12 does not by its terms require an
opposition; failure to oppose a 12(b)(6) motion is not in itself grounds for granting
the motion. Rather, a court assesses the legal sufficiency of the complaint.” See
Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806
(5th Cir. 2012) (citing John, 757 F.2d at 707–10; McCall v. Pataki, 232 F.3d 321, 322
(2d Cir. 2000) (“[F]ailure to oppose a 12(b)(6) motion cannot itself justify dismissal
of a complaint.”)). And, by dismissing claims under Federal Rule of Civil Procedure
12 based on only a nonmovant’s lack of action at all (that is, not filing a response
that Rule 12 itself does not require to be filed), a district court would be improperly
dismissing with prejudice without the findings or factual support required under
either Rule 12 or Federal Rule of Civil Procedure 41(b) for such a dismissal. See
Servicios Azucareros, 702 F.3d at 806; Webb, 457 F. App’x at 452-54 & n.4; John, 757
F.2d at 707-10.
III. ANALYSIS
Davis asserts causes of action for discrimination and retaliation under Title
VII of the Civil Rights Act. (Am. Compl. ¶¶ 5.1-5.2.) Title VII prohibits
discrimination against “any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e–2. As discussed further below,
Davis’s Amended Complaint consists of vague and conclusory factual statements
that offer few explanatory details about the events alleged, and many of the events
alleged are time barred because they did not occur with the limitations period for
Title VII claims. Accordingly, Davis’s Title VII claims should be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a legally cognizable
claim.
A. Some of the alleged discriminatory actions underlying Davis’s claims are
barred by limitations.
Before an individual may pursue a Title VII claim in federal court, he must
timely exhaust administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376,
378–79 (5th Cir. 2002). In Texas, which provides a state administrative mechanism
to address claims of employment discrimination, a Title VII plaintiff must file a
charge of discrimination with the EEOC within 300 days after the alleged
discrimination occurred. See 42 U.S.C. § 2000e-5(e)(1); Griffin v. City of Dallas, 26
F.3d 610, 612-13 (5th Cir. 1994); see also Stith v. Perot Sys. Corp., 122 F. App’x 115,
117 (5th Cir. 2005); see Pacheco v. Mineta, 448 F.3d 783, 788–91 (5th Cir. 2006);
Drerup v. Consol. Nuclear Sec., L.L.C., No. 21-10600, 2022 WL 3335780, at *2 (5th Cir.
Aug. 12, 2022) (unpublished).
In general, exhaustion occurs when a charge is filed, and a right-to-sue letter is
subsequently received. Josey v. Caris Life Scis., Inc., No. 3:23-CV-1297-B, 2024 WL
1122049, at *2 (N.D. Tex. Mar. 14, 2024). This first administrative step is in place to
put employers on notice of the “‘existence and nature of the charge against them.’”
Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003) (quoting EEOC v.
Shell Oil Co., 466 U.S. 54, 55 (1984)). In the event that administrative remedies are
not exhausted, it is proper for a court to dismiss the associated claims. See Ernst v.
Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (upholding a dismissal when the
administrative remedies were not exhausted). Similarly, if a charge is not filed
within the prescribed timeframe, the claims are time barred. See Drerup, 2022 WL
3335780, at *2 (upholding that a charge filed after the time limit was properly
barred). This 300-day time limit also operates as a statute of limitations. Storbeck v.
Saks Fifth Ave., 224 F.3d 764, 764 (5th Cir. 2000). Claims that are not based on any
alleged discrimination that occurred within the 300-day window must be dismissed.
Woods v. Lancaster Indep. Sch. Dist., 834 F. Supp. 2d 512, 516 (N.D. Tex. 2011) (citing
Taylor, 296 F.3d at 379).
“[B]ut the 300–day filing period is not jurisdictional; it is more akin to and
operates as a limitations period, commencing on the date the alleged unlawful
practice occurred.” Clemmer v. Irving Indep. Sch. Dist., No. 3:13-CV-4997-D, 2015
WL 1757358, at *2 (N.D. Tex. Apr. 17, 2015) (citing Adams v. Cedar Hill Indep. Sch.
Dist., No. 3:13-CV-2598-D, 2014 WL 66488, at *2 (N.D. Tex. Jan. 8, 2014)). When
asserted in response to a Title VII claim, limitations is an affirmative defense that
“must appear clearly on the face of the pleadings.” Taylor v. Lear Corp., No. 3:16-CV-
3341-D, 2017 WL 6209031, at *2 (N.D. Tex. Dec. 8, 2017). “Stated another way,
the defendant is not entitled to dismissal under [either Rule 12(b)(6) or Federal Rule
of Civil Procedure] 12(c) unless the plaintiff has pleaded [him]self out of court by
admitting to all of the elements of the defense.” Clemmer, 2015 WL 1757358, at *2
(cleaned up).
Davis’s EEOC charge is properly before the Court. Although the Amended
Complaint (Dkt. No. 12) is the operative complaint, Davis attached a copy of his
EEOC Notice of Right to Sue letter to his Original Petition (see Dkt. No. 1-1 at ECF.
p. 7), and he attached a copy of the EEOC charge to his response to IISD’s first
motion to dismiss (see Dkt. No. 8-1). Thus, arguably, these documents have been
made part of the pleadings. See Katrina, 495 F.3d at 205; Gill, 941 F.3d at 511. But
even if not referenced in the complaint and central to Davis’s claims, the Court can
take judicial notice of the EEOC charge as a public record. West v. R&K Enter. Sols.,
No. 3:23-CV-1371-G-BN, 2024 WL 3891533, at *5 (N.D. Tex. July 19, 2024),
adopted, 2024 WL 3891838 (N.D. Tex. Aug. 21, 2024) (“Even though the EEOC
charge is a matter outside the pleading, judicial notice of it may be taken as a matter
of public record when deciding a Rule 12(b)(6) motion, especially since its
authenticity is uncontested.”) (citing King v. Life Sch., 809 F. Supp. 2d 572, 579 n.1
(N.D. Tex. 2011)).
Davis filed his EEOC charge on September 26, 2023 (see Dkt. No. 8-1 at ECF
p. 4), so to pursue a Title VII claim, he must plausibly assert discrimination that
occurred within 300 days before September 26, 2023, the date he filed his filed his
EEOC charge, which is November 30, 2022. See Anderson v. City of Dallas, 116 F.
App’x 19, 27 (5th Cir. 2004) (“An individual [raising claims] under Title VII must
file a charge of discrimination with the EEOC within 300 days of learning of the
allegedly adverse employment action.”); Hendricks v. Boy Scouts of America, No. 3:15-
CV-304-M, 2015 WL 5459612, at *5–6 (N.D. Tex. Sept. 16, 2015); Stith, 122 F.
App’x at 117.
Here, Davis’s complaint describes several events that occurred before
November 30, 2022. For example, the bathroom reprimand incident took place in
August 2022, the injuries to two Black employees occurred in September 2022, and
Davis’s injury at the hands of a student occurred on November 7, 2022. (See Am.
Compl. ¶ 4.3.) Because these incidents preceded the limitations window, they
cannot independently support a Title VII claim. See Kelley, 2023 WL 4003299, at
*14. Similarly, Davis’s allegation that “[he] reported the discrimination to Assistant
Principal Angelica Fountain, Principal Amara Bravo and Human Resources, but
Defendant failed to take appropriate corrective action” provides no dates or other
factual matter to establish that this alleged report was made within 300 days before
the filing of his EEOC charge on September 26, 2023—that is before November 30
2022. (See Am. Compl. ¶ 4.4.) Accordingly, it is unclear whether he exhausted his
administrative remedies with respect to this alleged report of discrimination. A
plaintiff alleging employment discrimination or retaliation under Title VII must
exhaust administrative remedies before pursuing his claims in federal court. Owens v.
Dallas Cnty. Cmty. Coll. Dist., 793 F. App’x 298, 300 (5th Cir. 2019); Jefferson v.
Christus St. Joseph Hosp., 374 F. App’x 485, 489–90 (5th Cir. 2010). As explained
above, only acts on or before November 30, 2022 have been exhausted, and lacking
any specific dates, it is unclear whether or not this alleged report f has been properly
exhausted.
Additionally, although the Amended Complaint references gender-based
discrimination (see Am. Compl. ¶ 4.2), Davis’s EEOC charge alleged only race
discrimination (see Dkt. No. 8-1 at ECF p. 3-4), and therefore, no gender-based
claims were presented to the EEOC for investigation. Because Davis’s EEOC charge
does not mention gender-based discrimination, that claim has not been
administratively exhausted and should be dismissed. Brooks v. Firestone Polymers,
LLC, 70 F. Supp. 3d 816, 841 (E.D. Tex. 2014) (“It is well settled that courts may
not entertain claims brought under Title VII as to which an aggrieved party has not
first exhausted his administrative remedies by filing a charge of discrimination with
the EEOC.”).
B. Davis has failed to plausibly plead a Title VII discrimination claim.
Even if some of the alleged incidents described above were timely, they
nevertheless fail to set forth a prima facie case of Title VII discrimination or
retaliation because the Amended Complaint lacks sufficient factual matter, even if
accepted as true, to state a claim to relief that is plausible on its face. Iqbal, 556 U.S.
at 678 (2009).
A plaintiff establishes a prima facie case for discrimination when he shows
that he: “(1) is a member of a protected class; (2) was qualified for the position;
(3) was subject to an adverse employment action; and (4) was replaced by someone
outside of the protected class, or, in the case of disparate treatment, shows that other
similarly situated employees were treated more favorably.” Jackson v. Dallas Cnty.
Juv. Dep’t, 288 F. App’x 909, 911 (5th Cir. 2008) (quoting Bryan v. McKinsey & Co.,
375 F.3d 358, 360 (5th Cir. 2004)); see also Cicalese v. Univ. of Tex. Med. Branch, 924
F.3d 762, 766 (5th Cir. 2019) (“Disparate-treatment discrimination addresses
employment actions that treat an employee worse than others based on the
employee’s race, color, religion, sex, or national origin.”).
At the Rule 12(b)(6) stage, however, a plaintiff need not plead sufficient facts
on the prima facie elements of a disparate treatment claim. Cicalese, 924 F.3d at 766.
Plaintiffs instead must plead two “ultimate elements” to support a disparate
treatment claim: (1) an adverse employment action (2) that was taken against a
plaintiff because of his protected status. Smith v. Kendall, No. 23-50713, 2024 WL
4442040, at *4 (5th Cir. Oct. 8, 2024) (unpublished). Even under this more forgiving
standard, a plaintiff must still “plead specific facts, not mere conclusory allegations,”
and the court “will not accept as true conclusory allegations or unwarranted
deductions of fact.” Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir.
1994).
On the first element, the Amended Complaint fails to identify a cognizable
adverse employment action. An “adverse employment action” includes “'ultimate
employment decisions’ such as hiring, firing, demoting, promoting, granting leave,
and compensating” and the “terms, conditions, or privileges of employment.” See
Smith v. Kendall, No. 23-50713, 2024 WL 4442040, at *5 (5th Cir. Oct. 8, 2024)
(unpublished); see also Hamilton v. Dallas Cty., 79 F.4th 494, 503 (5th Cir. 2023) (en
banc). Davis does not claim that he was fired, demoted, failed to be promoted, or
unfairly compensated. (See generally Am. Compl.) He merely alleges that while he
was on medical leave, IISD “threatened to non-renewed [sic] [his] contract due to
him being unable to complete an ESL certification[,]” and when IISD refused
Davis’s request for more time to complete the certification, “[he] was forced to resign
in order to keep his Teaching certification to be able to continue to provide for his
family.” (Am. Compl. ¶ 4.3.)
Importantly, Davis does not allege any coercive or discriminatory action by
IISD, but rather, attributes his resignation to personal considerations. (See Am.
Compl. ¶ 4.3. (“Plaintiff was forced to resign . . . to continue to provide for his
family”).) Moreover, Davis acknowledges that the threatened nonrenewal was
because he lacked an ESL certification (see id.)—a race-neutral qualification
requirement, see Tex. Educ. Code § 21.0031(a)(1-2), not his race. Furthermore,
Davis pleads no specific facts regarding his bare allegation that IISD “refused” his
request for more time to meet this requirement. He does not plead when he made
the request, to whom the request was made, and who refused the request. Davis also
does not assert that IISD’s alleged refusal to grant him an extension was a race-based
decision.
Moreover, although Davis expresses a belief that IISD should have given him
more time, he does not address exactly how being on leave prevented him from
obtaining the state-required certification or whether he made any attempt to obtain
the recertification while on leave. (See generally Am. Compl.) As IISD points out, in-
person training is not required, and the requisite hours can be obtained via
“interactive distance learning, video conferencing, [or other] online activities.”
((Mot. at 11 n.30 (citing 19 Tex. Admin. Code § 232.15(a)(1); § 232.7(c)(1);
232.11(d)). Thus, it appears that Davis simply failed to timely complete his
recertification requirements while he was on leave—requirements that he could have
satisfied remotely—and now attempts to hold IISD responsible for his failure.
While pro se pleadings are entitled to liberal construction, that principle does
not excuse a plaintiff from alleging facts that, if taken as true, plausibly establish an
adverse action—and Davis’s framing of his resignation as a voluntary career-
preservation measure undermines any such inference. See Estelle, 429 U.S. at 106.
Thus, as Davis himself recites—his allegation that he was threatened with
nonrenewal of his contract was because he was not properly certified (see Am.
Compl. ¶ 4.3), not because of his race. Smith, 2024 WL 4442040, at *4 (regardless of
the adverse action alleged, plaintiff must still satisfy the second pleading
requirement—that the action was taken because of his protected status).
Next, considering the broad catchall category, “terms, conditions, or
privileges” of employment, determining what falls within this category is a fact-
specific inquiry, but hallmarks of these types of adverse employment actions include
changes to “job title, grade, hours, salary, or benefits,” as well as “diminution[s] in
prestige or change[s] in standing among . . . co-workers.” Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 332 (5th Cir. 2009). Davis merely describes incidents that he
found disagreeable or unpleasant. (See Am. Compl. ¶ 4.3.) For example, he alleges
the following actions:
• From August to December 2022, Davis and his Black co-teacher were
denied breaks and planning periods, while non-Black employees were
not denied their breaks and planning periods.
• In September 2022, two Black employees were injured by a student, and
on or about November 7, 2022, Davis was injured seemingly by the
student, and in both cases, “the student received no consequences.”
• On “several occasions” from October to December 2002, “non-[B]lack
employees” were injured by the student, for which IISD disciplined the
student but allegedly did not discipline the student when Davis was
previously injured by the same student.
• In November 2022, Davis requested that the student be removed from
his classroom “[p]ursuant to state law,” which IISD failed to do for
over two months.
(Am. Compl. ¶ 4.3.) These alleged events are closer in kind to “normal[ ] petty
slights” and “minor annoyances” that are the ordinary tribulations of the workplace,
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), than to the adverse
actions which materially alter the “terms, conditions, or privileges of employment,”
Hamilton, 79 F.4th at 503. More importantly, Davis’s pleadings do not create the
“reasonable inference” that any of these events occurred because of his race. See
Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021).
First, regarding denial of breaks and planning periods, Davis broadly asserts
that this occurred from “August—December 2022,” a time period that arguably
includes at least some dates that are barred by the November 30, 2022 limitations
deadline. (See id.) Davis describes being denied breaks and planning periods, but he
does not explain what “breaks” he was allegedly denied that were given to other
races and does not plead how he qualified for any planning periods. (See id.)
Therefore, he fails to plead that breaks and planning periods were somehow
allocated on the basis of race. He merely alleges that he and one unnamed co-
teacher did not receive breaks and planning periods while unnamed others did,
allegations which do not plausibly establish that these scheduling decisions were due
to racial bias. See, e.g., Keplar v. Google, LLC, No. 3:22-CV-2281-B, 2023 WL
7360891, at *4 (N.D. Tex. Nov. 7, 2023); Kent v. Vicksburg Healthcare, LLC, No. 5:10-
CV-195 DCB-RHW, 2012 WL 1556511, at *11 (S.D. Miss. Apr. 30, 2012), aff'd sub
nom. Kent v. Vicksburg Healthcare, L.L.C., 534 F. App’x 229 (5th Cir. 2013).
Because Davis does not plead specific facts but mere conclusory allegations,
the Court is not required, without any other context, to make “unwarranted
deductions of fact” that these alleged denials were due to Davis’s race. See Tuchman,
14 F.3d at 1067. Lacking any facts plausibly stating that IISD’s actions relating to
breaks and planning periods were taken because of his race, Davis’s allegations do
not rise “above the speculative level” to survive a motion to dismiss. Raj v. La. State
Univ., 714 F.3d 322, 331 (5th Cir. 2013).
Davis next alleges that when he and other Black employees were injured by a
student, the student received no consequences, but when non-Black employees were
injured by the same student, the student received consequences. (Am. Compl. ¶ 4.3.)
Davis does not identify either the Black or non-Black coworkers by name, does not
specify which incidents occurred within the limitations period, does not identify who
made the relevant decisions, and does not explain whether the coworkers were
similarly situated in all material respects. (See id.) Instead, Davis asks the court to
infer that the sole reason a student was not disciplined for injuring Black employees
must have been race, without any allegations regarding the specific circumstances,
the rules governing student discipline, the identity of the decisionmaker, or any
allegations of any pattern or practice of race-based discipline decisions at the school.
(See id.) Without more, the undersigned cannot infer that these alleged student
disciplinary decisions were due to Davis’s race. See Tuchman, 14 F.3d at 1067 (The
court “will not accept as true conclusory allegations or unwarranted deductions of
fact.”).
Davis’s allegation that in November 2022, he requested to have a student
removed from his classroom, but “the student was not removed for the next two
months” fails for similar reasons. (Am. Compl. ¶ 4.3.) Davis does not allege that the
student was not removed because Davis is Black, and nowhere in the Amended
Complaint does Davis allege that students were removed from the classrooms of
non-Black teachers, but not Black teachers’ classrooms. (See id.) And again, Davis
fails to plead who made the decision, that the decision was based on the race of the
teacher requesting the removal, or that there was a pattern or practice of
discrimination on the campus with respect to granting or denying student removal
requests based on teacher race. (See generally id.)
Moreover, although Davis refers to an unspecified “state law,” he fails to cite
to any specific Texas statute providing that a student may be removed simply based
on a teacher’s request. (See Am. Compl. ¶ 4.3.) He also does not plead what, if any,
documentation was submitted to support the removal request or explain how the
incident was racially motivated. (Id.) Accordingly, Davis’s conclusory allegation
that IISD “failed” to remove a student solely based on Davis’s race does not meet the
“facial plausibility” standard necessary to survive a motion to dismiss. See Iqbal, 556
U.S. at 678; id. at 663 (citing Twombly, 550 U.S. at 555).
For all these reasons, the undersigned concludes that Davis has failed to
plausibly plead a Title VII discrimination claim. The Amended Complaint does not
identify an adverse employment action, nor does it plausibly connect any specific
action or event to racial animus. Accordingly, IISD’s motion to dismiss should be
granted as to Davis’s racial discrimination claim.
C. Davis has failed to plausibly plead a Title VII retaliation claim.
“Title VII’s anti-retaliation provision forbids employer actions that
discriminate against an employee . . . because [he] has opposed a practice that Title
VII forbids or has made a charge, testified, assisted, or participated in a Title VII
investigation, proceeding, or hearing.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 59 (2006) (internal citations and quotation marks omitted).
To support a Title VII retaliation claim, a plaintiff must establish that he:
(1) engaged in an activity protected by Title VII; (2) the employer took an adverse
employment action against the employee; and (3) a causal connection exists between
the protected activity and the adverse employment action. See, e.g., Cooper v. Dallas
Police Ass’n, 278 F. App’x 318, 320 (5th Cir. 2008). In the context of a retaliation
claim, an adverse employment action must “dissuade a reasonable worker from
making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68. A
threat of termination does not constitute an adverse employment action. See Mattern
v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997), abrogated on other grounds by
Burlington, 548 U.S. 53.
As an initial matter, it is unclear from the Amended Complaint what
“retaliation” Davis alleges, or the facts that support such a claim. (See Am. Compl.
¶ 5.2.) The closest Davis comes to identifying any protected activity is his allegation
that he “reported the discrimination to Assistant Principal Angelica Fountain,
Principal Amara Bravo and Human Resources, but [they] failed to take appropriate
corrective action.” (Am. Compl. ¶ 4.4.) But Davis does not specify when he made
the report, what he reported, or whether the actions he reported constituted
“opposition to discrimination based on ‘race, color, religion, sex, or national
origin,’” as Title VII requires. Pitts v. Waffle House, Inc., No. 23-60436, 2024 WL
1904556, at *6 (5th Cir. May 1, 2024) (unpublished) (quoting Brown v. United Parcel
Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010)).
Davis’s retaliation claim also fails on the second and third elements. He has
not pleaded that an “adverse employment action” occurred based on his opposition
of an unlawful practice, or that any “casual connection” existed between any
protected activity and an adverse employment action. (See generally Am. Compl.)
For the reasons previously explained, the threatened non-renewal of his contract,
denial of breaks, failure to remove the student, and any other challenged conduct, do
not constitute an adverse employment action. Nor does Davis allege that this
conduct occurred because he reported discrimination. (See id.) He also does not
allege temporal proximity between his report and any adverse action, does not allege
that the individuals to whom he reported were the same individuals who took
adverse action against him, and does not allege any facts from which retaliation
could be inferred. (See id.)
Davis also vaguely alleges that “[he] went through the grievance process with
[IISD],” during which he provided copies of documents and was “told he would
receive copies of all documentation [but w]hen he or his attorney requested
documents, [IISD]continually denied their requests.” (Am. Compl. ¶ 4.3.) It is
unclear if this allegation is intended as part of his discrimination claim or his
retaliation claim, but because Davis does not state when this “grievance process”
occurred, the undersigned is unable to discern whether the claim is administratively
exhausted or otherwise barred by limitations; nor does Davis allege that he was
denied the documents due to his race. (See id.) Accordingly, the undersigned does
not presume these threadbare, conclusory allegations to satisfy the pleading
requirements for either cause of action under Title VII. See Armstrong v. Ashley, 60
F.4th 262, 269 (5th Cir. 2023) (quoting Harmon v. City of Arlington, 16 F.4th 1159,
1162–63 (5th Cir. 2021)).
For all these reasons, the undersigned concludes that Davis has failed to
sufficiently plead a Title VII retaliation cause of action, and IISD’s motion to dismiss
should be granted as to Davis’s retaliation claim.
D. Davis should not be allowed to amend his complaint.
The Fifth Circuit advises courts to give pro se plaintiffs reasonable
opportunities to state a claim upon which relief can be granted. See Scott v. Byrnes,
No. 3:07-CV-1975-D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008); Sims v.
Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001).
District courts therefore typically allow pro se plaintiffs an opportunity to amend
their complaints when the action is to be dismissed pursuant to a court order. See
Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL
789870, at *2 (N.D. Tex. Apr. 12, 2004); Sims, 2001 WL 627600, at *2.
“[T]he grant of leave to amend the pleadings pursuant to [Federal Rule of
Civil Procedure 15(a)] is within the discretion of the trial court.” Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). Under Rule 15(a)(2), “the court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Rule
15(a)’s liberal amendment policy compels that leave to amend should be granted
absent some justification for refusal, such as undue delay, bad faith, dilatory motive
on the part of movant, repeated failure to cure deficiencies by amendments
previously allowed, or undue prejudice to the opposing party by virtue of allowance
of the amendment.” Kirkland v. Racetrac Petroleum, Inc., No. 3:13-CV-1754-N, 2014
WL 982852, at *4 (N.D. Tex. Mar. 13, 2014) (citing United States ex rel. Willard v.
Humana Health Plan of Tex. Inc., 336 F.3d 375, 386 (5th Cir.2003)). The Court,
however, need not grant leave to amend “‘if the plaintiff has already pleaded his best
case.’” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009).
Here, the relevant factors weigh in favor of dismissal without leave to amend.
Davis has failed to allege sufficient facts to state a claim for relief, despite being given
an opportunity to amend his complaint. (See generally Am. Compl.) Furthermore,
Davis was previously instructed that “the Court will consider his amended complaint
to be his best pleaded case.” (Dkt. No. 10.) And although a pro se plaintiff’s
pleadings are held to less stringent standards than pleadings drafted by lawyers,
Estelle, 429 U.S. at 106, those “pleadings must show specific, well-pleaded facts, not
mere conclusory allegations to avoid dismissal.” Coleman v. Bank of N.Y. Mellon, 969
F. Supp. 2d 736, 747 (N.D. Tex. 2013) (citing Guidry v. Bank of LaPlace, 954 F.2d
278, 281 (5th Cir.1992)).
The deficiencies in Davis’s Amended Complaint are substantial and appear to
reflect the nonexistence of facts rather than mere drafting failures by a pro se litigant.
See Coleman, 969 F. Supp. 2d at 747. Davis’s own allegations establish that his
resignation was voluntary and motivated by personal career concerns, that the
“threatened” nonrenewal was based on a race-neutral certification requirement, and
he has no specific facts connecting any alleged conduct to racial hostility. (See
generally Am. Compl.) Under these circumstances, allowing Davis another
opportunity to amend his claims would be futile. See Reliance Ins. Co. v. La. Land &
Expl. Co., 110 F.3d 253, 258 (Sth Cir. 1997).
IV. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that IISD’s
Motion to Dismiss (Dkt. No. 13) be GRANTED.
SO RECOMMENDED on May 11, 2026.
wn
UNITED STATES MAGISTRATE JUDGE
25
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).