Esaadi

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WALEED M. ESAADI, §

Plaintiff, §

§

v. § No. 3:26-CV-086-K-BW

§

AMAZON.COM SERVICES, LLC, §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant Amazon.com Services, LLC’s (“Amazon”)

motion to dismiss Plaintiff Waleed M. Esaadi’s lawsuit pursuant to Federal Rules of

Civil Procedure12(b)(5) and 12(b)(6) (Dkt. No. 13 (“Motion” or “Mot.”)),

accompanied by an appendix in support (Dkt. No. 14 (“D. App.”)). Esaadi filed a

response (Dkt. No. 16 (“Resp.”)), and Amazon filed a reply (Dkt. No. 19 (“Reply”)).

This case was automatically referred to the undersigned magistrate judge for

case management and recommendation on claim-dispositive motions pursuant to 28

U.S.C. § 636(b) by Special Order 3-251. (See Dkt. No. 1.) Based on the relevant

filings and applicable law, the undersigned recommends that the Motion (Dkt. No.

13) be granted in part and denied in part such that Esaadi should be required to

properly serve Amazon and have an opportunity to plead his best case.

I. BACKGROUND

Esaadi, proceeding pro se, filed this civil action on January 13, 2026, asserting

claims of discrimination based on race, national origin, and religion, in violation of

Title VII, 42 U.S.C. § 2000e et seq.; age discrimination under the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; retaliation under both Title

VII and the ADEA; and hostile work environment under Title VII. (See Dkt. No. 1

(“Complaint” or “Compl.”).)

Esaadi alleges that he worked at Amazon for about two months—from

October 4 until December 8, 2023. (Id. ¶ 3.) According to the allegations in

Esaadi’s Complaint, he was employed “as a merchandise loader/unloader

responsible for processing items delivered via robotic carts,” performed his duties in a

satisfactory manner, and received positive feedback and compliments from multiple

supervisors. (Id. ¶¶ 5-6.) He alleges that during his employment, a manager

identified as Sherry Willenborg “approached [him] in an inappropriate and harassing

manner,” asked personal questions about his race, national origin, age, and religion,

made unwelcome physical contact, and addressed him “in a hostile and intimidating

tone.” (Id. ¶ 7.)

He further alleges that he reported this conduct to Amazon Human Resources

(“HR”), and thereafter, Amazon engaged in “retaliatory actions” that included

interfering with his work performance by stopping robotic carts and issuing false

disciplinary write-ups alleging poor performance based on the reduced workflow.

(Id. ¶ 9.) According to Esaadi, “[his] younger co-workers (ages 18-25) continued to

receive full workloads via robotic carts, while [he] was denied this opportunity.” (Id.

¶ 10.) He alleges that he “inform[ed] management of this issue, including Ms. Sharer

Brew, [but he] was told the decision came from ‘top management.’” (Id. ¶ 11.)

Esaadi was terminated on December 8, 2023, and alleges that the stated

reason for his termination—poor performance—was pretext for discrimination based

on age, race, national origin, and religion. (Id. ¶ 12.) He filed a discrimination

charge with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 13.)

Although Esaadi did not attach a copy of the EEOC charge or any other materials to

his complaint (see generally Compl.), Amazon submitted a copy of the charge in

support of its motion to dismiss (see D. App. 11). Esaadi later submitted a copy of

EEOC correspondence dated January 6, 2026 (see Dkt. No. 16 at ECF p. 29-30), and

a copy of the Notice of Right to Sue issued on January 12, 2026 (see id. at ECF p. 31-

32).

On January 14, 2026, the Court entered an order apprising Esaadi of his

responsibility to have someone serve Amazon in a manner prescribed by Fed. R.

Civ. P. 4. (Dkt. No. 4.) On January 29, 2026, a proof of service was filed showing

that a process server made an unsuccessful attempt to serve Amazon. (Dkt. No. 6.)

Notes indicate that the process server was told that all legal documents must go to

CSC—the company’s apparent registered agent—in Austin, Texas. (Id.) After a

summons was reissued on January 30, 2026 (Dkt. No. 8), Esaadi filed a proof of

service on February 23, 2026, showing that on February 10, 2026, a process server

delivered documents in person to “Amazon Corporations, Legal Department,” at

“300 Deschutes Way SW Suite 208 MC-CSC1, in Tumwater, WA 98501.” (See Dkt.

No. 9 at ECF p. 1.)

Amazon filed the present motion and appendix on March 24, 2026, after

which Esaadi filed a response on March 30, 2026, attaching forty-eight pages of

documents. Then, on April 6, 2026, Esaadi filed what appears to be a second

response, attaching sixteen pages of documents. (Dkt. No. 18.) The Court’s Local

Rules do not permit a party to file more than one brief in response to a motion. See

N.D. Tex. LR 7.1(d). As the undersigned finds that Esaadi’s second response is

duplicative of the arguments and documents presented in his initial response (compare

Docket No. 16 with Dkt. No. 18), the second response (Dkt. No. 18) is STRICKEN,

and only the initial response (Dkt. No. 16) is considered. Having been fully briefed,

the Motion (Dkt. No. 13) is ripe for consideration.

II. LEGAL STANDARDS

A. Rule 12(b)(5)

“A federal court is without personal jurisdiction over a defendant unless the

defendant has been served with process in accordance with Rule 4 of the Federal

Rules of Civil Procedure.” McAfee v. Lear Corp., No. 3:24-CV-1811-D, 2024 WL

5012063, at *1 (N.D. Tex. Dec. 6, 2024) (internal quotation marks omitted). A

defendant may challenge the method of service that has been attempted under Fed.

R. Civ. P. 12(b)(5). See id. “When such a motion is filed, the serving party bears the

burden of proving the validity of service or good cause for failure to timely serve.”

Id. (internal quotation marks and brackets omitted).

While dismissal for insufficient service of process is proper, “a district court

has discretion to quash service and give the plaintiff an additional opportunity to

properly effect service.” Neely v. Khurana, No. 3:07-CV-1344-D, 2008 WL 938904, at

*2 (N.D. Tex. Apr. 7, 2008). In fact, district courts have the discretion to grant

extensions to effect proper service ‘‘even if there is no good cause shown.’”

Henderson v. United States, 517 U.S. 654, 662 (1996) (citing Advisory Committee's

Notes on Fed. R. Civ. P. 4). Accordingly, a court may decide that quashing service

and extending time for re-service, rather than dismissing the case, is better suited for

cases where there is “a reasonable prospect that Plaintiff will be able to serve

Defendant properly.” Coleman v. Carrington Mortg. Servs., LLC, No.

419CV00231ALMCAN, 2020 WL 4723174, at *5 (E.D. Tex. July 27, 2020).

B. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) authorizes dismissal of a plaintiff’s complaint

for “failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). “In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the

sufficiency of [the plaintiff’s] complaint by ‘accept[ing] all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Bramlett v. Med. Protective

Co. of Fort Wayne, Ind., 855 F. Supp. 2d 615, 618 (N.D. Tex. 2012) (quoting In re

Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (first alteration added,

internal quotation marks omitted)). To state a claim upon which relief can be

granted and defeat a Rule 12(b)(6) motion, 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); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008).

To meet this “facial plausibility” standard, a plaintiff must “plead[] 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). The court must

accept well-pleaded facts as true and view them in the light most favorable to the

plaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007). But

the court does not accept as true “conclusory allegations, unwarranted factual

inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir.

2007) (citation omitted). A plaintiff must provide “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (citation omitted). “Factual allegations must be enough to

raise a right to relief above the speculative level . . . on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. (citations

omitted).

In ruling on a Rule 12(b)(6) motion, the Court limits its review to the face of

the pleadings. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Subject to

the caveats discussed above, the pleadings include the complaint and documents

attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.

2000). The ultimate question is whether the complaint plausibly states a valid claim

when viewed in the light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan

Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002). At the motion to

dismiss stage, the court does not evaluate the plaintiff's likelihood of success. It only

determines whether the plaintiff has stated a claim upon which relief can be granted.

Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).

A pro se plaintiff’s pleadings are liberally construed. Estelle v. Gamble, 429

U.S. 97, 106 (1976). It is well established that a “pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Id. (internal quotations omitted). “Even so, ‘mere conclusory

allegations on a critical issue are insufficient.’” Brown v. Tarrant Cnty., Tex., 985 F.3d

489, 494 (5th Cir. 2021) (quoting Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018);

United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)). And “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).

III. ANALYSIS

Esaadi asserts claims of discrimination and retaliation based on race, national

origin, and religion, in violation of Title VII and the ADEA, and hostile work

environment under Title VII. (See Compl.) Amazon contends that this action

should be dismissed on multiple grounds.

First, Amazon asserts that the case should be dismissed under Fed. R. Civ. P.

12(b)(5) because the record does not reflect that Amazon has been properly served

with a summons and complaint. Second, Amazon advances a motion to dismiss

under Fed. R. Civ. P. 12(b)(6) based on arguments that Esaadi did not exhaust some

of his claims and has not sufficiently stated a claim as to all of them.

In addition, Amazon objects to new factual allegations in Esaadi’s Response

that were not contained in his Complaint, as well as several pages of attachments

submitted by Esaadi in an apparent attempt to support factual allegations asserted in

his Complaint or the newly asserted factual allegations asserted in his Response.

A. Amazon’s Objections to Esaadi’s Response to the Motion to Dismiss

As noted above, Esaadi’s Response includes new factual allegations and

attachments that were not included in his Complaint (see generally Resp.), to which

Amazon filed objections in its Reply (see Reply at 2-4). Although Amazon formally

objects to paragraphs 1-6, 8-9, 11, 13, and 15-17 of Esaadi’s Response (see Reply at 2-

3), the undersigned finds that paragraphs 1, 2, 3, 5, 9, 10, 11 of the Response can be

fairly construed as having been presented in Esaadi’s Complaint.

Paragraph 1 of the Response is sufficiently similar to allegations

contained in paragraphs 3 and 5 of the Complaint. (Compare Resp. ¶ 1

with Compl ¶¶ 3, 5.)

Paragraphs 2, 3, and 5 of the Response are sufficiently similar to

allegations contained in paragraphs 9 and 10 of the Complaint.

(Compare Resp. ¶¶ 2, 3, 5 with Compl ¶¶ 9, 10.)

Paragraphs 9 and 10 of the Response are sufficiently similar to

allegations contained in paragraphs 8 and 9 of the Complaint. (Compare

Resp. ¶¶ 9, 10 with Compl ¶¶ 8, 9.)

Paragraph 11 of the Response is sufficiently similar to allegations

contained in paragraph 11 of the Complaint. (Compare Resp. ¶ 11 with

Compl ¶ 11.)

Accordingly, Amazon’s objections to paragraphs 1, 2, 3, 5, 9, 10, 11 of the Esaadi’s

Response are OVERRULED.

With respect to paragraphs 4, 6, 8, and 13, however, the undersigned finds

that these allegations were not asserted in Esaadi’s Complaint. Specifically, Esaadi

did not allege in his Complaint that:

A supervisor provided a written statement confirming that robotic

systems were placed on hold during Plaintiff’s working hours (Resp.

¶ 4);

[M]anagement manipulated performance conditions in order to justify

termination before the end of the probationary period (Resp. ¶ 6);

[M]anagement made derogatory comments, including calling Plaintiff

‘old man’ and questioning his ability to keep up” (Resp. ¶ 8);

A manager approached Plaintiff in an aggressive and threatening

manner, warning him against contacting Human Resources (Resp.

¶ 13).

“This court has repeatedly held that, when ruling on a motion to dismiss, the court

does not consider additional facts that are alleged in a response brief but not in the

complaint.” Obinyan v. Prime Therapeutics LLC, No. 3:18-CV-0933-D, 2019 WL

5647955, at *3 (N.D. Tex. Oct. 31, 2019) (citing Wilson v. Deutsche Bank Tr. Co. Ams.,

2019 WL 2578625, at *4 (N.D. Tex. June 24, 2019)); see also Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court reviews only the

well-pleaded facts in the complaint, it may not consider new factual allegations made

outside the complaint[.]”). Accordingly, Amazon’s objections to paragraphs 4, 6, 8,

and 13 of Esaadi’s Response are SUSTAINED.

Amazon also objects that Esaadi’s Response “improperly attaches thirty-four

pages of documents . . . in an attempt to support his alleged factual allegations

asserted in his Complaint—or the newly asserted factual allegations asserted in his

Response.” (Reply at 3 (citing Resp. at ECF p. 14-25, 29-51).) Amazon argues that

none of these documents are referenced in Esaadi’s Complaint, and therefore they

should not be considered. (Id.) Contrary to Amazon’s argument, however, Esaadi’s

Complaint can fairly be read to reference the documents related to his EEOC charge

and the EEOC’s subsequent investigation (see Compl. ¶¶ 13-14), as well as the

multiple performance write-ups he received (id. ¶ 9). Therefore, to the extent these

attached documents are referenced in the complaint, the Court may properly

consider them. (See Dkt. No. 16 at ECF p. 17-21, 29-30, 31-36, 47-51.)

B. Esaadi’s Failure to Properly Serve Amazon

It is a plaintiff’s responsibility to properly serve a defendant. See Fed. R. Civ.

P. 4(c)(1). The relevant rule states plainly that “[a] summons must be served with a

copy of the complaint.” Fed. R. Civ. P. 4(c)(1). Serving a defendant with a copy of

the complaint alone does not effect service in compliance with Rule 4. See Al-Harbi v.

Coronado Country Club, No. EP-04-CA-0285-DB, 2005 WL 1020893, at *1-2 (W.D.

Tex. Apr. 29, 2005) (dismissing case where plaintiff failed to show that he served a

summons with complaint).

Amazon asserts that Esaadi has not properly served it in this action because

the papers served did not include a summons. (Mot. at 4-5.) The record supports its

argument. The proof of service filed on February 23 does not show that Amazon

was served with a summons. Rather, the proof of service that was filed is the form

used for non-party subpoenas under Rule 45. (See Dkt. No. 9.) And the process

server’s declaration states that he received a subpoena for Amazon and delivered

“the documents, SUBPOENA; COMPLAINT, to Amazon[.]” (Id.)

Esaadi does not address Amazon’s argument about the failure to properly

serve process in either his response or his second response. (See generally Dkt. Nos.

16, 18.) As such, Esaadi has failed to carry his burden to show that Amazon was

properly served with process in this case, and Amazon’s motion to dismiss can be

granted on this basis.

When a Plaintiff shows good cause for the failure to serve a defendant within

the 90-day period allowed in Rule 4(m), the court is required to extend the time for

service. See McAfee, 2024 WL 5012063, at *1. “But if the plaintiff does not show

good cause, then the ‘court has two choices: it may dismiss the action without

prejudice . . . or direct that service be effected within a specified time.’” McAfee, 2024

WL 5012063, at *1 (quoting Kumar v. Kerry, No. 3:13-CV-2455-B, 2014 WL

4798439, at *2 (N.D. Tex. Sept. 26, 2014) (cleaned up)). Here, the record reflects

that Esaadi—a pro se litigant—has made diligent efforts to serve Amazon. (See Dkt.

Nos. 6, 9.) And it is unclear whether the mistaken documentation concerning

service of a subpoena instead of a summons was caused by Esaadi or the process

server whom he employed.

In any event, dismissal for insufficient service under Rule 12(b)(5) is typically

not appropriate “unless there is no reasonably conceivable means of acquiring

jurisdiction over the person of a defendant” and is “usually without prejudice to

allow plaintiff an opportunity to effect proper service.” Florance v. Buchmeyer, 500 F.

Supp. 2d 618, 633 (N.D. Tex. 2007) (citations omitted). Because Amazon also

moves for dismissal under Rule 12(b)(6) and the undersigned finds the motion should

be granted for the reasons discussed below, dismissal under Rule 12(b)(5) is

unnecessary at this time. See Florance, 500 F. Supp. 2d at 633 (denying defendants’

motion to dismiss under Rules 12(b)(5) and 12(b)(2) because “dismissal for purposes

of allowing plaintiff to serve defendants properly [was] unnecessary” when those

same defendants “also filed motions to dismiss under Rule 12(b)(6)” that were

granted). Accordingly, Amazon’s motion to dismiss for insufficient service should

be denied in favor of allowing Esaadi an opportunity to properly serve Amazon.

C. Timeliness

The undersigned assumes without deciding that Esaadi administratively

exhausted his religious discrimination and hostile work environment claims. “A

person who brings a lawsuit alleging . . . discrimination under Title VII or alleging a

violation of the ADEA must first exhaust his administrative remedies by filing a

charge of discrimination with the Equal Employment Opportunity Commission

(‘EEOC’).” Bernard v. ATC VanCom, No. 3:04-CV-1820-D, 2005 WL 139110, at *2

(N.D. Tex. Jan. 20, 2005). “Exhaustion occurs when the plaintiff files a timely

charge with the EEOC and receives a statutory notice of right to sue.” Mueblas-Curtis

v. American Airlines, Inc., No. 3:25-CV-1201-D, 2025 WL 3022852, at *4 (N.D. Tex.

Oct. 29, 2025) (quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.

2002)). “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.” Id. (quoting Kretchmer v. Eveden, Inc., No. 3:07-CV-1068-D, 2009 WL

854719, at *3 (N.D. Tex. Mar. 31, 2009)). Because failure to exhaust is an

affirmative defense, Amazon can obtain dismissal on this basis only if it “appear[s]

clearly on the face of the pleadings.” Id. at *3 (internal quotation marks omitted).

“But ‘even if not referenced in the complaint and central to [Esaadi’s] claims, the

court can take judicial notice of the [EEOC] charge as a public record.” Id. (quoting

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)).

Amazon argues that Esaadi has not administratively exhausted claims for

religious discrimination or hostile work environment under Title VII and has

provided a copy of his EEOC charge to support its arguments. (Mot. at 12-14, 20-21;

D. App. 11.) In the charge, Esaadi did not complete the boxes to specify

“Discrimination based on.” (D. App. 11.) In the narrative, though, Esaadi stated

that he was told that new trainees would not be disciplined for six weeks because

they were getting used to the work, but he received multiple “write-ups” based on his

slowness and the quality of his work. (D. App. 12.) He asked that his work be

reevaluated because he believed he did meet his goals. (Id.) Although his managers

expected him to perform the job as fast or faster than his peers, he asserted that his

age prevented him from working at the same pace—“I am older than them and I

cannot work at the same level as them.” (Id.)

Esaadi also stated in the charge that “Sherry,” an operations manager

“proceeded to corner [him] and push toward [him], putting her breasts onto [his]

chest.” (D. App. 12.) Esaadi told her that he is a practicing Muslim and needed to

have space between them, but she yelled at him. (Id.) Esaadi stated that, after

mentioning his concerns to a supervisor, she said he was being “targeted” and would

soon be terminated, which happened the following week. (D. App. 12.) In the

“Discrimination Statement,” Esaadi stated that he believed he was “discriminated

against because of [his] age, 62,” that he believed he was “retaliated against in

violation of [the ADEA],” and that he believed he was “discriminated against

because [he is] Middle Eastern and a male[.]” (D. App. 12-13.)

Nowhere in the charge did Esaadi expressly indicate that he believed he was

the victim of discrimination based on his religion. He did not specify religion as a

basis of discrimination in the appropriate box, nor did he identify religion as a reason

he believed he was terminated. The Court may find nonetheless that Esaadi

exhausted a claim for religious discrimination if such a claim “could reasonably be

expected to grow out of the facts [he] alleged in [his] administrative charge.” Byrne v.

Lockheed Martin Corp., No. 4:22-CV-621-O, 2023 WL 11884594, at *3 (N.D. Tex.

Mar. 4, 2023). Here, it is a close call whether, based on Esaadi’s allegation that he

needed separation because he is a practicing Muslim and with belief that he was

discriminated based on national origin, would reasonably be expected to initiate an

investigation for a claim of religious discrimination. Because Esaadi’s claim for

religious discrimination does not survive Rule 12(b)(6) scrutiny as explained below,

the undersigned assumes at this stage that he has administratively exhausted the

claim.

The undersigned also assumes that Esaadi exhausted a claim for hostile work

environment harassment. Discrimination and harassment are distinct claims, and,

“[f]or a claim of hostile work environment to reasonably be expected to grow out of

an employee’s charge of discrimination, the employee must allege more than just

discrete acts of discrimination.” Trevino v. SAIA Motor Freight Line, LLC, No. 4:20-

CV-825-P-BP, 2021 WL 1009317, at *4 (N.D. Tex. Jan. 26, 2021), adopted, 2021 WL

977096 (N.D. Tex. Mar. 16, 2021). “Therefore, administrative exhaustion of a

discrimination claim does not automatically exhaust a harassment claim.” Id. In his

charge, Esaadi did allege that he “experienced sexual harassment from Sherry,” who

put her breasts onto his chest and yelled at him when he requested separation

between them. (D. App. 12.)

D. Esaadi fails to plausibly allege a discrimination claim under Title VII.

Title VII of the Civil Rights Act of 1964 prohibits employers from

discriminating against employees on the basis of race with respect to their

compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-2

(a)(1). This includes a prohibition against creating a hostile work environment that is

“so pervaded by discrimination that the terms and conditions of employment [are]

altered.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) (citing Harris v. Forklift

Sys. Inc., 510 U.S. 17, 21 (1993)).

To establish a prima facie case for disparate treatment discrimination claims, a

plaintiff must show that he (1) “is a member of a protected class”; (2) “was qualified

for [his] position”; (3) “suffered an adverse employment action”; and (4) “others

similarly situated were more favorably treated.” Rutherford v. Harris County, 197 F.3d

173, 184 (5th Cir. 1999). Once the plaintiff establishes the prima facie case, the

burden shifts to the employer to “articulate a legitimate, nondiscriminatory reason

for the employment action.” Rutherford, 197 F.3d at 184. Then, “the plaintiff

counters by offering evidence that the legitimate, non-discriminatory reasons are

really a pretext for discrimination.” Id. at 180 (quoting Casarez v. Burlington

Northern/Santa Fe Co., 193 F.3d 334, 337 (5th Cir. 1999)).

But “a plaintiff need not make out a prima facie case of discrimination [under

McDonnell Douglas] in order to survive a Rule 12(b)(6) motion to dismiss for failure to

state a claim.” Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). Courts use

the McDonnell Douglas framework to assess the ultimate proof that a plaintiff must

furnish to show disparate treatment or retaliation under each of the statutes

governing Esaadi’s claims. See e.g., Smith v. Kendall, No. 23-50713, 2024 WL

4442040, at *3 (5th Cir. Oct. 8, 2024) (unpublished) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–03 (1973); Thomas v. Texas Dep’t of Crim. Just., 220 F.3d

389, 393 (5th Cir. 2000) (Title VII); Allen v. United States Postal Serv., 63 F.4th 292,

300-01 (5th Cir. 2023) (ADEA)); see also Norsworthy v. Hous. Indep. Sch. Dist., 70 F.4th

332, 336 (5th Cir. 2023).

A plaintiff who lacks direct evidence of discriminatory or retaliatory motive

can establish a prima facie case by making certain showings under McDonnell

Douglas. Smith, 2024 WL 4442040, at *3; Allen, 63 F.4th at 300-01. A plaintiff must

plead two “ultimate elements” in order “to support a disparate treatment claim . . . :

(1) an ‘adverse employment action,’ (2) taken against a plaintiff ‘because of [a]

protected status.’” Thomas v. Dallas Indep. Sch. Dist., No. 23-10882, 2024 WL

2874367, at *4 (5th Cir. June 7, 2024) (quoting Cicalese v. Univ. of Tex. Med. Branch,

924 F.3d 762, 767 (5th Cir. 2019) (quoting in turn Raj, 714 F.3d at 331) (emphasis in

Cicalese). Similarly, for a retaliation claim, a plaintiff only needs to plausibly “allege

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

Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021) (quoting Cicalese, 924

F.3d at 768).

“In [all these] context[s], ‘[a] court . . . inappropriately heightens the pleading

standard by subjecting a plaintiff's allegations to a rigorous factual or evidentiary

analysis under the McDonnell Douglas framework in response to a motion to

dismiss.’” Smith, 2024 WL 4442040, at *4 (quoting Cicalese, 924 F.3d at 767).

Even construing Esaadi’s Complaint in the most favorable light, his scant and

conclusory allegations fail to state plausible claims for race, national origin, or

religious discrimination under Title VII, or that he was subjected to a hostile work

environment in violation of Title VII.

1. Esaadi has failed to plausibly plead disparate treatment based on race

or national origin.

As an initial matter, Esaadi’s complaint fails to state a plausible claim for race

and national origin discrimination because he fails to even identify his race or

national origin in the complaint. See Gaumond v. City of Dallas, No. 3:21-CV-00624-

E, 2023 WL 2061170, at *4 (N.D. Tex. Feb. 15, 2023) (“Plaintiff makes a vague

reference to being treated differently based on national origin but fails to identify his

national origin. Thus, he has not stated a plausible claim for discrimination based on

national origin under Title VII.”).

Esaadi vaguely claims that during his employment, a manager “approached

[him] in an inappropriate and harassing manner” and asked personal questions about

his race, national origin, age, and religion. (Compl. ¶ 7.) He does not allege when

during his three-month tenure at Amazon this incident occurred, nor does he allege

that it happened more than once. At best, this constitutes nothing more than a mere

stray remark, which is not evidence of age discrimination. See E.E.O.C. v. Texas

Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (vague or indirect comments on

a protected characteristic are merely “stray remarks” that do not demonstrate age

discrimination). “Mere stray remarks, however distasteful, do not demonstrate

discriminatory animus.” Read v. BT Alex Brown Inc., 72 F. App'x. 112, 120 (5th Cir.

2003) (citing Texas Instruments Inc., 100 F.3d at 1181). To be evidence of

discrimination, comments must be: “(1) related to the protected class of persons of

which plaintiff is a member; (2) proximate in time to the complained-of-adverse

employment decision; (3) made by an individual with authority over the employment

decision at issue; and (4) related to the employment decision at issue. Comments

that do not meet these criteria are considered stray remarks.” Jackson v. Cal-Western

Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).

Here, Esaadi does not specifically identify what “personal questions” the

“manager” asked about his race and national origin; he does not allege that the

“manager” had any supervisory authority over work assignments, disciplinary

actions, or termination. Accordingly, this alleged isolated incident of a “manager

asking personal questions” about Esaadi’s race and national origin constitute nothing

more than stray remarks which are not evidence of discrimination. See Texas

Instruments Inc., 100 F.3d at 118; Jackson, 602 F.3d at 380. Therefore, Esaadi fails to

allege facts sufficient to state a claim for race or national origin discrimination under

Title VII.

2. Esaadi has failed to plausibly plead disparate treatment based on

religion.

Although Esaadi asserts a claim for religious discrimination, his Complaint

lacks any factual allegations to support such a claim. (See generally Compl.) In fact,

Esaadi does not even identify his religion in his Complaint. (See id.) Nor does

Esaadi assert any allegations that he was treated disparately because of his religion.

Although Esaadi states in his EEOC charge that he told manager “Sherry” that he is

a practicing Muslim (see D. App. 12), he still fails to identify any disparate treatment

based on his religion. A plaintiff’s subjective belief of discrimination, however

genuine, and conclusory statements cannot be the basis of judicial relief. See Jones v.

Gulf Coast Rest. Grp., Inc., No. 21-60052, 2021 WL 3465000, at *4 (5th Cir. Aug. 6,

2021).

Because Esaadi has failed to assert his own religion or allege that other

similarly situated non-Muslim employees were treated more favorably, the

undersigned cannot reasonably infer that any adverse employment action against

Esaadi was taken because of his religion. Accordingly, Esaadi’s religious

discrimination claim fails as a matter of law. See Norman v. Beaumont Indep. Sch.

Dist., No. 1:24-CV-00007, 2025 WL 1179983, at *12 (E.D. Tex. Mar. 19, 2025)

(plaintiff’s religious discrimination claim dismissed under Rule 12(b)(6) where he

failed to allege in his complaint that other similarly-situated non-religious employees

were treated more favorably than him), aff’d, No. 25-40215, 2026 WL 1180537 (5th

Cir. Apr. 30, 2026); see also Saunders v. Houston Foam Plastics, No. SA-23-CV-00156-

XR, 2023 WL 3313118, at *4 (W.D. Tex. May 5, 2023) (dismissing plaintiff’s

religious discrimination claim under Title VII “[b]ecause he failed to assert his own

religious affiliation or identify an appropriate comparator outside of his religion”);

Akanno v. Med. City McKinney, No. 4:23-CV-1054-ALM-KPJ, 2024 WL 4272936, at

*6 (E.D. Tex. Aug. 28, 2024) (dismissing religious discrimination claim where

plaintiff “has neither identified her religion, nor has she alleged any facts from which

an inference may be drawn as to her religion,” and therefore, “the Court cannot

draw any reasonable inference that the adverse employment action was taken

because of her religion.”), adopted, 2024 WL 4267190 (E.D. Tex. Sept. 23, 2024).

As with his claim for race or national origin discrimination, Esaadi fails to

allege facts sufficient to state a claim for religious discrimination under Title VII.

3. Esaadi has failed to plausibly plead a claim for hostile work

environment.

“Hostile work environment is a specific discrimination claim under Title VII.”

Hudson v. Lincare, Inc., 58 F.4th 222, 229 (5th Cir. 2023) (citing Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 18-19 (1993)). “When a ‘workplace is permeated with

“discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment,” Title VII is violated.’” Id. (quoting Harris, 510 U.S. at 21

(quoting, in turn, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986))).

To state a claim for hostile work environment, a plaintiff must allege that she:

“(1) belongs to a protected group; (2) was subjected to unwelcome harassment;

(3) the harassment complained of was based on [a protected status]; (4) the

harassment complained of affected a term, condition, or privilege of employment;

[and] (5) the employer knew or should have known of the harassment in question

and failed to take prompt remedial action.” Burchfield v. S. La. Med. Assocs., Civ. A.

No. 23-1501, 2023 WL 5952183, at *11 (E.D. La. Sept. 13, 2023) (quoting Hernandez

v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)); compare Raj v. La. State

Univ., 714 F.3d 322, 330-31 (5th Cir. 2013) (“A hostile work environment claim . . .

necessarily rests on an allegation that an employer has created a working

environment heavily charged with discrimination.” (cleaned up)); Pfang v. Lamar Inst.

of Tech., 685 F. Supp. 3d 425, 444 (E.D. Tex. 2023) (“The ultimate elements of a

hostile work environment claim are an employer has created a working environment

heavily charged with discrimination.” (cleaned up)), with Jasso v. Midland-Odessa

Transit Mgmt., Inc., MO:22-CV-00250-DC-RCG, 2023 WL 6474435, at *2 (W.D.

Tex. Sept. 19, 2023) (“To survive a motion to dismiss, a plaintiff pleading a claim for

hostile work environment must plead two ‘ultimate elements’: 1) an adverse

employment action, 2) taken against a plaintiff because of her protected status.”

(citing Cicalese, 924 F.3d at 767)).

For harassment to be actionable, it must be sufficiently severe or pervasive “to

alter the conditions of [the victim’s] employment and create an abusive working

environment.” See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)

(quoting Meritor Sav. Bank, 477 U.S. at 67). In determining whether an environment

is “hostile” or “abusive,” courts look at the totality of the circumstances, including

“the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance.” Id. (quoting Harris,

510 U.S. at 23). Simple teasing, offhand comments, sporadic use of offensive

language, occasional jokes related to a claimant’s protected trait, and isolated

incidents (unless extremely serious) will generally not amount to discriminatory

changes in the terms and conditions of employment. See EEOC v. Boh Bros. Constr.

Co., L.L.C., 731 F.3d 444, 461 (5th Cir. 2013).

A hostile work environment must be “both objectively and subjectively

offensive, one that a reasonable person would find hostile or abusive, and one that

the victim did in fact perceive to be so.” See Faragher v. City of Boca Raton, 524 U.S.

775, 787 (1998); Harris, 510 U.S. at 21-22; see also Indest v. Freeman Decorating, Inc.,

164 F.3d 258, 263–64 (5th Cir. 1999). The objectionable conduct must affect the

“conditions” of the alleged victim’s employment. Oncale v. Sundowner Offshores Svcs.,

Inc., 523 U.S. 75, 81 (1998). The legal standard requires proof of severe or pervasive

conduct that can be characterized as “extreme.” See Faragher, 524 U.S. at 788. As

the Supreme Court explained, Title VII is not a general civility code for the

American workplace and does not prohibit all perceived harassment in the

workplace. See Faragher, 524 U.S. at 788; Oncale, 523 U.S. at 79–80. A plaintiff must

plausibly plead that the alleged harassment is sufficiently severe or pervasive. Strife v.

Aldine Indep. Sch. Dist., 138 F.4th 237, 248 (5th Cir. 2025) (affirming dismissal of a

hostile work environment claim under Title VII).

Courts analyze whether harassment is sufficiently severe or pervasive by

asking whether a reasonable person would find the conduct to be hostile or abusive.

See Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399–400 (5th Cir. 2021). A hostile

work environment exists when a workplace is “permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive work environment.” Id.

at 399. Conduct is not sufficiently severe or pervasive unless the conduct rises to the

level that it can be considered to affect a term or condition of employment. Id.

Esaadi’s race, national origin and religious-based hostile work environment

claims fail to meet the type of egregious and insensitive conduct necessary to state a

plausible claim for hostile work environment under Title VII. His conclusory

assertions that at some unspecified time, a manager approached him in an

“inappropriate and harassing manner” by “[a]sking personal questions about [his]

race, national origin, age, and religion,” as well as “[i]nvading [his] personal space

and engaging in unwelcome physical conduct” and “[a]ddressing [Esaadi] in a

hostile and intimidating tone” fail to state a plausible claim for harassment as a

matter of law. Esaadi does not allege any facts showing that he was subjected to

unwelcome harassment based on his race, national original, or religion that was

severe or pervasive enough to constitute actionable harassment.

For instance, Esaadi does not allege any specific facts suggesting he was

subjected to any extremely offensive discriminatory comments, hostility, physically

threatening conduct, intimidating or insensitive conduct, or other severe/egregious

conduct based on his race, national origin, or religion on a frequent or ongoing basis.

To the contrary, Esaadi’s Complaint is devoid of any specific allegations relating to

his hostile work environment claim, including the nature of the alleged harassing

conduct, the frequency of the alleged harassing conduct, whether it was physical in

nature, or how it unreasonably interfered with his work performance. See Tran v.

Hous. Housing Auth. Corp., No. 4:25-cv-149, 2025 WL 3906503, at *5 (S.D. Tex. Dec.

19, 2025) (dismissing plaintiff’s national origin hostile work environment claim

where he failed to allege factual particulars regarding the frequency of the claimed

harassment to adequately establish it was severe or pervasive), adopted, 2026 WL

67165 (S.D. Tex. Jan. 8, 2026); Raj, 714 F.3d at 330-31 (affirming dismissal under

Rule 12(b)(6) where plaintiff did “not allege any connection between his race and

national origin and the harassment alleged in the complaint, [so] he has not pled a

claim for hostile work environment that raises his right to relief ‘above the

speculative level’”).

Esaadi’s Complaint is also devoid of any factual allegations that could

plausibly establish severe or pervasive conduct for an actionable hostile work

environment claim. See Faragher, 524 U.S. 775 at 787 (“‘Discourtesy or rudeness

should not be confused with actionable…harassment’” and “‘a lack of . . . sensitivity

does not alone amount to actionable harassment.’”). Nor do Esaadi’s conclusory

allegations constitute the type of severe or pervasive conduct necessary to establish

an actionable claim of hostile work environment, i.e., an environment that a

reasonable person would objectively find to be discriminatorily hostile or abusive.

See Harris, 510 U.S. at 21; Faragher, 524 U.S. at 781; see also Allen v. Amazon, No.

3:24-CV-2846-D, 2025 WL 3059629, at *6 (N.D. Tex. Nov. 3, 2025) (dismissing

plaintiff’s hostile work environment claims under Title VII and the ADA because

plaintiff’s conclusory assertions lacked factual detail and were insufficient to enable

the court to reasonably infer he experienced severe or pervasive harassment on

account of his race or disability where he allege the defendant subjected him “to a

hostile work environment characterized by repeated discriminatory treatment and

failure to accommodate Plaintiff’s needs”).

Because Esaadi’s conclusory assertions lack factual detail, they are insufficient

to enable the undersigned to reasonably infer that Esaadi experienced severe or

pervasive harassment. Therefore, Esaadi fails to state a plausible claim for race,

national origin, and religious-based hostile work environment under Title VII and

these claims should be dismissed pursuant to Rule 12(b)(6). See, e.g., Armstrong v.

Ashley, 60 F.4th 262, 276 (5th Cir. 2023) (affirming dismissal where plaintiff's

allegations were pleaded “in a conclusory fashion without meaningful factual

content”).

E. Even accepting Esaadi’s allegations as true, the undersigned cannot

reasonably infer that any adverse employment action occurred because of

Esaadi’s age or because he engaged in a protected activity.

Esaadi’s ADEA claims include as an ultimate element that Esaadi suffered an

adverse employment action. The ADEA makes it unlawful for an employer to

discriminate against an individual based on age or “because such individual . . . has

opposed any practice made unlawful” by the ADEA. 29 U.S.C. § 623(a)(1), (d).

And for retaliation claims, to establish a prima facie case a plaintiff must show

(1) “she engaged in protected activity”; (2) “she suffered an adverse employment

action”; and (3) “a causal link exists between the protected activity and the adverse

employment action.” Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir.

2021); see also Ayodeji Awe v. Harris Health Sys., 163 F.4th 969, 972 (5th Cir. 2026) (the

standards and prima facie case for establishing a retaliation claim under Title VII and

the ADEA “mirror one another.”).

An adverse employment action “need only be a term, condition, or privilege

of employment.” Hishon v. King & Spalding, 467 U.S. 69, 77 (1984). “This element

has been the subject of great change recently in the Fifth Circuit.” See, e.g., Johnson-

Lee v. Texas A&M Univ. - Corpus Christi, 729 F. Supp. 3d 709, 718 (S.D. Tex. 2024).

Until recently, only “ultimate employment decisions” could constitute an adverse

employment action giving rise to liability in the Fifth Circuit. Hamilton v. Dallas

Cnty., 79 F.4th 494, 502 (5th Cir. 2023) (en banc).

In Hamilton, the United States Court of Appeals for the Fifth Circuit “made

clear that Title VII requires a broader reading than [its] ‘ultimate employment

decision’ line of cases permitted and thus ‘end[ed] that interpretive incongruity’ by

removing that requirement.” Harrison v. Brookhaven Sch. Dist., 82 F.4th 427, 428 (5th

Cir. 2023). As this Court has found, Hamilton’s holdings as to Title VII, and as

applied in subsequent decisions, are applicable to the ADEA. See Farlow v. L3

Commc'ns Integrated Sys. LP, No. 3:23-cv-1661-B, 2024 WL 3683717, at *4 (N.D. Tex.

Aug. 6, 2024) (“Because the ADEA also includes the same catch-all ‘terms,

conditions, or privileges of employment’ language as contained in Title VII, the

holdings in Hamilton and Harrison expanding the definition of adverse employment

action likely also apply to claims brought under the ADEA.

And, although “Hamilton recognized that Title VII ‘does not permit liability

for de minimis workplace trifles,’” the Court of Appeals “declined to address ‘the

precise level of minimum workplace harm’ necessary to sustain a discrimination

claim.’” Yates v. Spring Indep. Sch. Dist., 115 F.4th 414, 420 (5th Cir. 2024) (quoting

Hamilton, 79 F.4th at 506); see also Fleming v. Methodist Healthcare Sys. of San Antonio,

Ltd., L.L.P., SA-21-CV-01234-XR, 2024 WL 1055120, at *12 (W.D. Tex. Mar. 11,

2024) (“Although the Fifth Circuit declined to provide a minimum standard for

adverse actions in Hamilton, it later clarified in Harrison that an adverse employment

action requires: (1) employment discrimination – the ‘adversity’ requirement – that

(2) causes the plaintiff a non-de minimis injury – the ‘materiality’ requirement. The

materiality requirement ensures that the Fifth Circuit's relaxed definition of adversity

will not ‘transform Title VII into a general civility code for the American workplace.’

The challenged action must not only ‘involve a meaningful difference in the terms of

employment’ but also ‘injure the affected employee.’” (cleaned up)).

In support of his age discrimination claim, Esaadi alleges that he was not

provided with robotic carts while “younger co-workers (ages 18-25) continued to

receive full workloads via robotic carts.” (See Compl. ¶¶ 9-10.) He also alleges that

he received false disciplinary write-ups, and his termination for poor performance

was a pretext for discrimination. (Id. ¶¶ 9, 12.) Amazon argues in response that

these allegations do not constitute an adverse employment action. (See Mot. at 10-

11.) But Hamilton appears to have abrogated the precedent cited by Amazon. See id.

(citing McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (placing

employee on paid leave was not an adverse employment action, abrogated by

Hamilton, 79 F.4th at 494); Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824 (5th

Cir. 2019) (“mere ‘loss of some job responsibilities’ does not constitute an adverse

employment action”), abrogated by Hamilton, 79 F.4th at 494 (5th Cir. 2023).)

In Hamilton, female correctional officers brought claims against the County for

sex discrimination after the County changed their shift schedule from seniority-based

to sex-based and prevented the female officers from taking both weekend days off.

Hamilton, 79 F.4th at 497. The Fifth Circuit concluded that the female officers

plausibly alleged discrimination because the days and hours employees are assigned

to work are quintessential “terms or conditions” of employment because they “go to

the very heart of the work-for-pay arrangement.” Id. at 503 (internal citations

omitted). Like the time-shifts in Hamilton, access to robotic carts could be considered

an essential term or condition of Esaadi’s productivity-based employment with

Amazon because it “go[es] to the very heart of the work-for-pay arrangement.” See

id. at 503.

In any event, however, Esaadi was ultimately terminated for poor

performance, which he alleges was “a pretextual reason used to conceal retaliation

and discrimination based on age, race, national origin, and religion.” (Compl. ¶12.)

Because Esaadi was discharged from his position, he has alleged the adverse-

employment-action requirement for the purpose of resolving this motion to dismiss.

But Esaadi still must allege facts to show, or that raise a reasonable inference, that an

adverse action occurred because of his age (as to disparate treatment under the

ADEA), or because of his race, national origin, or religion (as to the same under

Title VII), or because he engaged in an activity protected by the ADEA or Title VII

(as to retaliation).

And, as to these claims, Esaadi is not required to, at this stage, to “establish[ ]

a prima facie case . . . under the framework set forth . . . in McDonnell Douglas.”

Norsworthy, 70 F.4th at 336. And the Court may not subject his “allegations to a

rigorous factual or evidentiary analysis under [that] framework in response to a

motion to dismiss.” Cicalese, 924 F.3d at 767 (citing Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512 (2002)). Even so, “when a complaint purports to allege a case of

circumstantial evidence of discrimination, it may be helpful to refer to McDonnell

Douglas to understand whether a plaintiff has sufficiently pleaded an adverse

employment action taken “because of” his protected status as required under

Swierkiewicz.” Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021)

(emphasis in original); see also Norsworthy, 70 F.4th at 336 (Because “a plaintiff is still

required to plead sufficient facts on all of the ultimate elements of her claim,” “to

frame that inquiry, a district court may find it helpful to reference McDonnell

Douglas.” (cleaned up)).

Esaadi’s contentions as to the cause of his termination rest on circumstantial

evidence. And even accepting Esaadi’s evidence as true at this stage, as non-

conclusory factual allegations, does not allow the undersigned to plausibly infer that

an adverse action occurred because of a protected status or because Esaadi engaged

in a protected activity.

An employee engages in a protected activity under Title VII or the ADEA if

he opposes any practice made an unlawful employment practice under Title VII or

the ADEA. See Adams v. Vaughn, No. 3:18-CV-1109-B-BT, 2019 WL 1003845, at *3

(N.D. Tex. Feb. 12, 2019) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,

348 (5th Cir. 2007)), adopted, 2019 WL 1001213 (N.D. Tex. Mar. 1, 2019). The Fifth

Circuit has “consistently held that a vague complaint, without any reference to an

unlawful employment practice under Title VII [or the ADEA], does not constitute

protected activity.” Wright v. Chevron Phillips Chem. Co, 734 F. App’x 931, 935 (5th

Cir. 2018) (internal citations omitted).

All that Esaadi has alleged is that he made an unspecified report to HR after

“a manager identified as Ms. Sherry Willenborg approached [him] in an

inappropriate and harassing manner by asking personal questions about his race,

national origin, age, and religion,” “invad[ed] his personal space and made

unwelcome physical contact,” and “address[ed] him in a hostile and intimidating

tone.” (Compl. ¶¶ 7-9.) Esaadi does not indicate when these events occurred or

identify the specific questions Ms. Willenborg asked about his race, national origin,

age, and religion. (See id.)

Nor does Esaadi identify whether Ms. Willenborg had any decision-making

authority with respect to assignment of robotic carts, issuance of disciplinary write-

ups, or termination of Esaadi’s employment. As such, Esaadi’s allegations are

“random puffs of smoke but nothing resembling real signs of” age-based

discrimination. See Stancu v. HRI Lodging/Hilton Garden Inn, No. 3:23-CV-2566-K-

BN, 2024 WL 5294663, at *1 (N.D. Tex. Nov. 20, 2024) (citing Parker v. Landry, 935

F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random puffs of smoke but

nothing resembling real signs of fire, the plausibility standard is not satisfied.”)),

adopted, (N.D. Tex. Jan. 7, 2025), aff’d, No. 25-10242, 2025 WL 2126626 (5th Cir.

July 29, 2025); see also Owen v. STMicroelectronics, Inc., No. 3:15-cv-1186-B, 2016 WL

2757368, at *5 (N.D. Tex. May 12, 2016) (“[B]ecause liability for disparate treatment

under the ADEA depends on whether age actually motivated the employer's

decision, a plaintiff must set forth allegations that would enable the court to

reasonably infer that the employer took the adverse employment action because of

the plaintiff's age.”); Farlow v. L3 Commc'ns Integrated Sys. LP, No. 3:23-CV-01661-B,

2024 WL 3683717, at *4 (N.D. Tex. Aug. 6, 2024) (allegations of “humiliating and

berating treatment” without any facts linking termination to age-based

discriminatory animus was insufficient to conclude that the employee was

terminated because of his age).

When a “[p]laintiff alleges no facts other than the fact he was denied

opportunities, [his] bare assertions, without more, are ‘not enough to allow [his]

claims of age discrimination to proceed.’” Gaines v. City of Dallas, No. 3:17-CV-1867-

L, 2018 WL 7078541, at *4 (N.D. Tex. Dec. 28, 2018), adopted, 2019 WL 266855

(N.D. Tex. Jan. 18, 2019) (citing Lacey v. City of Desoto Texas, No. 3:04-CV-1277-M,

2005 WL 17656, at *3 (N.D. Tex. Jan. 3, 2005) (finding that the plaintiff did not

sufficiently state a claim for age discrimination)). Esaadi must allege some non-

conclusory facts to show that he was terminated or denied robotic carts because of

his age, and he does not do so. Accordingly, these allegations do not show “above

the speculative level” that Esaadi was terminated because of his age or because he

participated in a protected activity related to his age. Twombly, 550 U.S. at 555.

Esaadi alleges that his non-assignment of robotic carts and issuance of

disciplinary write-ups began “shortly after [his] complaint” and that he was

subsequently terminated on December 8, 2023, but here again he fails to provide any

specific dates or other details to support his allegations. Esaadi does not describe

what he reported to HR or when the report was made, nor does he allege that his

report to HR was ever communicated to any decisionmaker. (See generally Compl.)

“Although the plaintiff's burden at the prima facie stage is not onerous, the plaintiff

must produce at least some evidence that the decisionmakers had knowledge of his

protected activity.” Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003).

In this case, Esaadi’s Complaint contains no plausible allegations to suggest that any

decision maker was aware of his alleged protected activity or otherwise causally

connecting any alleged adverse employment action to engagement in a protected

activity.

Furthermore, Esaadi’s allegation, based on his belief that he “consistently

performed his job duties in a satisfactory manner and received positive feedback”

(Compl. ¶ 6), and therefore his termination for poor performance could only be a

pretext (Id. ¶ 12) is not plausibly supported by the record. Iqbal, 556 U.S. at 678 (“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.”); see also Jones, 2021 WL 3465000, at *4 (finding that evidence in the record

supported the employer’s asserted reason for termination and not the plaintiff’s

claims of pretext); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir.

1999) (“Merely disputing” the employer's assessment of the plaintiff's work

performance “will not necessarily support an inference of pretext”)

As noted above, Esaadi’s tenure with Amazon was only two months, and his

own evidence establishes that that he received multiple “write-ups” based on his

slowness and the quality of his work—the first less than two weeks after his start date

on October 16, 2023. (See D. App. 11.) Esaadi also admitted that his age prevented

him from working at the same pace as his peers: “I am older than them and I cannot

work at the same level as them.” (D. App. 12.) Thus, even drawing all reasonable

inferences in Esaadi’s favor—as the Court is bound to do at this stage—the record

tends to support Amazon’s asserted reason for Esaadi’s termination rather than

Esaadi’s claims of pretext. Jones, 2021 WL 3465000, at *4. Accordingly, Esaadi has

failed to plausibly allege that he suffered an adverse employment action “because of

[his] protected status.” Cicalese, 924 F.3d at 767.

Based on the foregoing, Esaadi’s retaliation claim fails on all three elements.

Therefore, his retaliation claims under Title VII and the ADEA should be dismissed

pursuant to Rule 12(b)(6) for failure to state a claim. See Richards v. JRK Property

Holdings, 405 F. App’x 829, 830 (5th Cir. 2010) (affirming dismissal of Title VII

discrimination and retaliation claims that were not plausible on their face); Phillips,

2011 WL 2680725, at *8 (dismissing retaliation claim when plaintiff failed to allege

facts giving rise to plausible claim of causal connection between protected activity

and adverse employment action).

Because Esaadi fails to plausibly allege a disparate treatment claim based on

age or a retaliation claim based on any protected activity, these claims should be

dismissed.

F. Esaadi should be allowed to replead some of his claims.

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 undersigned believes it would be appropriate to allow Esaadi one

opportunity to amend his claims for age discrimination and retaliation under the

ADEA. Based on objective facts in the record, however, Esaadi should not be

permitted to replead his Title VII claims for disparate treatment based on race,

national origin, and religion, his Title VII hostile work environment claim, or his

Title VII retaliation claim. With respect to these claims, Esaadi has failed to allege

sufficient facts to state a claim for relief, 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)). In this case the deficiencies in Esaadi’s Complaint as to these

claims 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. Under

these circumstances, allowing Esaadi another opportunity to amend these claims

would be futile. See Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253, 258 (5th

Cir. 1997).

To successfully move forward with his case, Esaadi’s amended complaint

must include well-pleaded facts to plausibly state a claim for age discrimination and

retaliation under the ADEA. Such facts must be specific, clear, and precise.

Furthermore, Esaadi is instructed that the Court will consider his amended

complaint to be his best pleaded case. See Reliance Ins. Co. v, 110 F.3d at 258

(“[J]udges have the power to control their dockets by refusing to give ineffective

litigants a second chance to develop their case.”) (citing Turnage v. Gen. Elec. Co., 953

F.2d 206, 208-09 (5th Cir. 1992).

IV. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that Amazon’s

motion to dismiss (Dkt. No. 13) be GRANTED in part and DENIED in part as

follows:

Amazon’s motion to dismiss for insufficient service of process pursuant to

Rule 12(b)(5) should be DENIED, and Esaadi should be ordered to properly serve

Amazon within 21 days of the District Judge’s acceptance of these findings,

conclusions, and recommendation or another date established by the District Judge.

If Esaadi fails to serve Amazon within the time allowed, his lawsuit should be

dismissed without prejudice.

Amazon’s motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6) should be GRANTED. Esaadi’s Title VII claims for disparate treatment

based on race, national origin, and religion, hostile work environment, and

retaliation should be dismissed with prejudice. As to his age discrimination and

retaliation claims under the ADEA, however, Esaadi should be allowed to file an

amended complaint only as to these claims within 30 days of the District Judge’s

resolution of these findings, conclusions, and recommendations.

SO RECOMMENDED on August 14, 2026.

bw

BRIAN McKAY

UNITED STATES MAGISTRATE JUDGE

-39-

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).