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
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).