Dube v. UT Southwestern Medical Center

- 1 -
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SIMOSABO DUBE, 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:25-CV-1474-G-BW
§
UT SOUTHWESTERN MEDICAL 	§
CENTER, 	§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
On July 30, 2025, Defendant The University of Texas Southwestern Medical
Center (“UT Southwestern”) filed a Rule 12(b)(6) Motion to Dismiss (Dkt. No. 8
(“Motion”)). On September 2, 2025, Plaintiff Simosabo Dube (“Dube”) filed a
Response (Dkt. No. 11 (“Resp.”)). On September 16, 2025, UT Southwestern filed a
Reply (Dkt. No. 13 (“Reply”)). This case was referred to the undersigned United
States Magistrate Judge to issue findings and recommendations to the United States
District Judge pursuant to Special Order No. 3-251. (See Dkt. No. 1.)
Based on the relevant filings and applicable law, the undersigned recommends
that UT Southwestern’s motion to dismiss be GRANTED.
I. BACKGROUND
Dube, a Zimbabwean woman, began employment at UT Southwestern as a
clinical research coordinator in September 2023. (Dkt. No. 3 (“Compl.”) at ¶ 6;
Motion at 8.) In this role, Dube’s responsibilities included calling and recruiting
participants for research studies. (Motion at 8.) Dube alleges that on or around
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 1 of 22 PageID <pageID>

- 2 -
March 28, 2024, her project manager Meghan Leak suggested that Dube’s accent
was interfering with her ability to recruit patients, (Compl. at ECF 10), asserting that
patients were unwilling to participate in clinical studies because “people in Texas do
not want to talk to Africans on the phone,” (id. at ¶ 7). According to Dube, this
came after Leak had told another employee, a Kenyan program manager named
Geoffrey Obel, that UT Southwestern “did not need to hire any more Africans”
because their accents were “not good for the department.” (Id. at ECF 10.)
On or around April 1, 2024, Dube shared Leak’s comments with her program
manager, Malik Obideen, who dismissed her concerns and instead warned that, if
Dube’s recruitment numbers did not improve, she could face reduced pay or
termination. (Id. at ECF 10.) Later that same day, Leak assigned Dube additional
studies to coordinate, “significantly” increasing her workload. (Id. at ECF 10.) On
or about April 2, 2024, Dube reported her encounter with Leak to UT
Southwestern’s department of Human Resources (“HR”), where her concerns were
once again “dismissed without proper investigation or corrective action.” (Compl. at
ECF 11, ¶ 8).
Two weeks later, Leak placed Dube on a Performance Action Plan (“PAP”)
that Dube felt was “baseless” and lacking a “clear justification” due to her
“previously satisfactory performance.” (Id. at ECF 11, ¶ 9.) When Dube was later
denied a request for time off, the PAP was cited as explanation for why her request
was not granted. (Id. at ¶ 9.) In Dube’s telling, the discrimination and retaliation she
faced in the aftermath of reporting her concerns over Leak’s comments became so
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 2 of 22 PageID <pageID>

- 3 -
“severe,” and impacted her “mental health and well-being” to such a degree, that she
ultimately felt she had “no choice but to resign from [her] position in May 2024.”
(Id. at ¶¶ 10–11, ECF 11.)
On August 9, 2024, Dube cross-filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) and the Texas Workforce Commission
(“TWC”) alleging that UT Southwestern discriminated against her on the basis of
her national origin and retaliated against her when she attempted to report the
discrimination internally to the appropriate parties. (See id. at ECF 10–11.) On
March 14, 2025, Dube received her Notice of Right to Sue from the EEOC. (Compl.
at ECF 5–6.) On June 10, 2025, Dube sued UT Southwestern in federal court,
alleging employment discrimination on the basis of her national origin, retaliation,
and constructive discharge in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e–2000e-17 (“Title VII”) and the Texas Commission on Human
Rights Act, Tex. Lab. Code §§ 21.051–21.061 (“TCHRA”). (Compl. at ¶ 1.)
II. LEGAL STANDARDS
A party may move to dismiss a claim if the complaint “fail[s] to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule
12(b)(6) motion to dismiss, a complaint must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When considering a
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 3 of 22 PageID <pageID>

- 4 -
Rule 12(b)(6) motion to dismiss, a court must “accept all well-pleaded facts as true
and view those facts in the light most favorable to” the nonmoving party. Sterling v.
City of Jackson, 159 F.4th 361, 372 (5th Cir. 2025). But this does not mean that courts
are “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), nor does it require courts
to presume true mere “conclusory statements” or “threadbare recitals of the elements
of a cause of action,” 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)). Rather, it simply
means that courts should take the well-pleaded factual allegations in a complaint
and, assuming their veracity, “determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
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. (cleaned up). “Even so, mere conclusory allegations on a
critical issue are insufficient.” Brown v. Tarrant County, 985 F.3d 489, 494 (5th Cir.
2021) (cleaned up). 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
After raising in her initial complaint (and included attachments) the factual
allegations discussed above, Dube made additional factual allegations in her
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 4 of 22 PageID <pageID>

- 5 -
response. These new allegations include that she was instructed by a Dr. Hajjar to
“stop emailing about the mistreatment,” that multiple black coworkers had left UT
Southwestern after experiencing similar mistreatment, and that Leak had explicitly
stated that “Africans are perceived as scammers.” (Resp. at ¶¶ 1–2.) The
undersigned cannot consider these new allegations when determining whether the
motion to dismiss should be granted or denied.
Courts cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion.
See Spivey v. Robinson, 197 F.3d 772, 774 (5th Cir. 1999). In the Rule 12(b)(6)
context, pleadings include the complaint, attachments to the complaint, In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007), the motion to dismiss, and
any documents attached to the motion that “are referred to in the plaintiff’s
complaint and are central to her 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)). A response to a motion is not a pleading,
Fed. R. Civ. P. 7(a), and a plaintiff may not use such a response to amend existing
allegations or introduce new ones, id. 8(a). Because they were not introduced in the
pleadings, it would be improper for the undersigned to recognize these newly
asserted allegations when making a recommendation on the resolution of the present
motion.
A. 	Dube’s TCHRA Claims Are Not Time-Barred
Before an individual may pursue a Title VII claim in federal court, she must
timely exhaust administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376,
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 5 of 22 PageID <pageID>

- 6 -
378–79 (5th Cir. 2002). Plaintiffs must also exhaust administrative remedies prior to
filing a civil action under the TCHRA. Bunker v. Dow Chem. Co., 111 F.4th 683, 686
(5th Cir. 2024). The processes to exhaust remedies under federal and Texas law are
similar, but not identical, each system requiring the complainant to first file a
complaint with the appropriate agency—the EEOC under Title VII and the TWC
under the TCHRA. See Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000). UT
Southwestern does not challenge the timeliness of Dube’s claims under Title VII, but
it insists that Dube’s TCHRA claims are time-barred because she failed to both file
this suit and effectuate service on UT Southwestern within 60 days of receiving a
notice of her right to sue. (Motion at 11–12.) This argument fails, because it
conflates the two regulatory regimes into one restrictive hybrid.
Exhaustion under the TCHRA occurs when a plaintiff (1) “file[s] a complaint
with the TWC within 180 days of the alleged discriminatory act;” (2) gives the TWC
“180 days to dismiss or resolve the complaint;” and (3) files her lawsuit “within 60
days of receiving a right-to-sue letter from the TWC and no later than two years after
the complaint was filed.” Bunker, 111 F.4th at 686 (quoting Lopez v. Tex. State Univ.,
368 S.W.3d 695, 701 (Tex. App.—Austin 2012, no pet.)). Dube satisfied the first
requirement when she filed her complaint with the TWC on August 9, 2024, for an
alleged discriminatory act occurring on or around March 28 of the same year. (See
Compl. at ECF 10–11.)
By the time Dube brought this suit on June 10, 2025, (see id. at ECF 3), the
TWC had been allowed significantly more than the 180 days required under state
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 6 of 22 PageID <pageID>

- 7 -
law to dismiss or resolve her complaint. And there is no dispute that this lawsuit was
filed within two years of Dube’s complaint with the TWC. Yet UT Southwestern
maintains that Dube failed to timely file suit, pointing to the Notice of Right to Sue
letter she received from the EEOC on March 14, 2025. (Motion at 11.) UT
Southwestern’s contention is that Dube’s receipt of this letter triggered a sixty-day
window to file suit under the TCHRA that expired on May 13, 2025. (Id.) By
waiting until June to file this suit, Dube failed to timely exhaust her remedies under
the TCHRA. But this is incorrect, because an EEOC “right to sue” letter does not
constitute a TWC “right to file a civil action” letter “capable of triggering the
TCHRA’s sixty-day filing period.” Vielma, 218 F.3d at 464.
The EEOC and the TWC pursue similar missions through complicated,
“sometimes overlapping” actions, but the “limitations periods” they impose for
asserting discrimination claims are “independent,” their “remedial schemes” distinct.
Id. It follows that the agencies’ respective “right to sue” letters are not
“interchangeable.” Id. The Fifth Circuit has held that the TCHRA’s sixty-day
limitations period starts only after the receipt of a “right to file a civil action” letter
issued by the TWC, id. at 464–66, and there is no indication in the record that Dube
received such a letter. Because the TCHRA’s 60-day limitations period was never
triggered, and because there is no requirement that a complainant must “wait for this
[TWC] letter before filing suit,” id. at 463, Dube timely exhausted her remedies and
filed this suit in full compliance with the administrative requirements of the TCHRA.
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 7 of 22 PageID <pageID>

- 8 -
B. 	Dube Has Failed to State a Claim
A party who fails to pursue a claim beyond its initial pleading may waive or
abandon that claim. Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir.
2006). Thus, a plaintiff’s failure to defend a claim in her response to a motion to
dismiss constitutes abandonment of that claim. See Matter of Dall. Roadster, Ltd., 846
F.3d 112, 126 (5th Cir. 2017). Here, Dube failed to substantively respond to UT
Southwestern’s arguments in its motion to dismiss challenging Dube’s claims of
national origin discrimination, retaliation, and constructive discharge. (See Resp.)
Because Dube failed to even address UT Southwestern’s challenges, let alone defend
her own claims against them, Dube has abandoned her Title VII and TCHRA
claims. Nevertheless, given that Dube is pro se, the undersigned addresses her
claims and finds that none can survive the present motion to dismiss.
Title VII makes it unlawful for an employer to discharge or discriminate
against an employee on the basis of her race, color, religion, sex, or national origin.
See 42 U.S.C. § 2000e-2(a)(1). The TCHRA provides parallel protections under state
law, making it unlawful for an employer to discharge an employee because of her
“race, color, disability, religion, sex, national origin, or age.” Tex. Lab. Code
§ 21.051. Title VII and the TCHRA also provide substantively identical protections
from retaliation. Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th Cir.
2014). Courts assess allegations of employment discrimination under these statutes
by applying a common framework analysis. Goudeau v. Nat’l Oilwell Varco, L.P., 793
F.3d 470, 474 (5th Cir. 2015) (explaining that claims brought under the TCHRA are
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 8 of 22 PageID <pageID>

- 9 -
typically evaluated under the same framework used for Title VII discrimination
claims); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex.
2012) (“[The TCHRA] is effectively identical to Title VII . . . [and] we have
consistently held that those analogous federal statutes and the cases interpreting them
guide our reading of the TCHRA.” (citations omitted)). In the absence of direct
evidence—evidence “which, if believed, proves the fact [of discriminatory intent]
without inference or presumption,” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987,
992 (5th Cir. 2005)—discrimination claims can be proven via circumstantial evidence
under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
Under the three-part, burden-shifting McDonnell Douglas framework, “a
plaintiff must first set forth a prima facie case of discrimination.” Morris v. Town of
Independence, 827 F.3d 396, 400 (5th Cir. 2016) (citing Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 227 (5th Cir. 2015)). A plaintiff need not establish
a prima facie case of discrimination “in order to survive a Rule 12(b)(6) motion to
dismiss,” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019)
(quoting Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)), but a plaintiff must
“plead sufficient facts on all of the ultimate elements of [her] claim to make [her] case
plausible,” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016)
(emphasis added). And when a plaintiff’s discrimination claims depend on
circumstantial evidence, as Dube’s do, “the plaintiff will ultimately have to show that
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 9 of 22 PageID <pageID>

- 10 -
[she] can satisfy the McDonnell Douglas framework.” Olivarez v. T-Mobile USA, Inc.,
997 F.3d 595, 600 (5th Cir. 2021) (cleaned up). In such cases, “it can be helpful to
reference that framework” when determining “whether a plaintiff has plausibly
alleged the ultimate elements” of her claim. Id. (cleaned up).
So, at this stage, the relevant inquiry is whether Dube has pleaded enough
facts, accepted as true, to plausibly allege an actionable claim of employment
discrimination. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–13 (2002).
1. Dube has failed to state a claim for national origin discrimination.
To establish a prima facie case of national origin discrimination under Title
VII and the TCHRA, Dube must show that she “(1) is a member of a protected
group; (2) was qualified for the position at issue; (3) was discharged or suffered some
adverse employment action by the employer; and (4) was replaced by someone
outside [her] protected group or was treated less favorably than other similarly
situated employees outside the protected group.” Morris, 827 F.3d at 400 (citations
omitted); see also AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (requiring
substantially similar elements under the TCHRA). But to survive a motion to
dismiss, Dube needs only to plead “the ultimate elements” of her claim. Cicalese, 924
F.3d at 767 (quoting Chhim, 836 F.3d at 470). For a disparate treatment theory of
national origin discrimination, the two ultimate elements are (1) an adverse
employment action (2) taken against Dube because of her national origin. See id.
Dube alleges that she experienced national origin discrimination when her
manager Leak told her that patients were unwilling to participate in her clinical
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 10 of 22 PageID <pageID>

- 11 -
studies because “people in Texas do not want to talk to Africans on the phone.”
(Compl. at ¶ 7). Dube further alleges that, after reporting Leak’s discriminatory
comments to higher ups, she was threatened with reduced pay or termination if her
patient recruitment did not improve, Leak placed her on a PAP and assigned her
additional projects so that she would have a “significantly larger workload than [her]
non-Zimbabwean counterparts,” and she was denied a request for time off due to the
PAP. (Id. at ¶¶ 6–11, ECF 10–11.) This is not enough to plausibly allege that an
adverse employment action was taken.
To plead an adverse employment action, “a plaintiff need only allege facts
plausibly showing discrimination in hiring, firing, compensation, or in the terms,
conditions, or privileges” of her employment. Hamilton v. Dallas County, 79 F.4th
494, 502–03 (5th Cir. 2023) (en banc) (cleaned up). Dube has not alleged
termination or reduction in pay, leaving only the broad catchall category of
discrimination in “the terms, conditions, or privileges of employment.” This
language “is not limited to economic or tangible discrimination, and it covers more
than terms and conditions in the narrow contractual sense.” Id. at 503 (cleaned up).
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).
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 11 of 22 PageID <pageID>

- 12 -
Threats of termination or reduced pay do not constitute adverse employment
actions, because they do not in actuality impact an employee’s salary or title or
“objectively worsen the employee’s working conditions.” Hudson v. Lincare, Inc., 58
F.4th 222, 232 (5th Cir. 2023) (citing Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d
702, 709 (5th Cir. 2016)). Nor does Dube’s placement on a PAP rise to the level of
an adverse employment action, because she fails to allege how this PAP “affected her
title, hours, salary, benefits . . . reputation . . . or her working conditions” in any way
beyond “open[ing] up the possibility of further action”—further action which never
transpired—and resulting in the denial of a single request for time off. Id. And the
fact that Dube’s manager increased her workload by assigning her more studies to
coordinate, absent corresponding changes in position, pay, duties, or hours, also
does not qualify as an adverse employment action. See Stewart, 586 F.3d at 331
(holding reassignment to a new supervisor with a heavier workload was not a
materially adverse employment action). The conduct alleged is closer in kind to the
standard measures employers take to discipline unsatisfactory workers, or to the
“normal[ ] petty slights” and “minor annoyances” of the workplace, Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), than it is to the adverse actions
which materially alter the “terms, conditions, or privileges of employment.”
Even if Dube had plausibly alleged that she suffered an adverse employment
action, she has not pleaded sufficient facts to support a finding that any such action
was taken against her “because of her protected status.” Cicalese, 924 F.3d at 767
(citations omitted). Dube’s pleadings do not create the “reasonable inference” that
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 12 of 22 PageID <pageID>

- 13 -
UT Southwestern acted against her because of national origin. Olivarez, 997 F.3d at
600. Setting aside the question of whether comments regarding “Africans,” rather
than Zimbabweans, fall under national origin discrimination, Espinoza v. Farah Mfg.
Co., 414 U.S. 86, 88 (1973) (“The term ‘national origin’ on its face refers to the
country where a person was born, or, more broadly, the country from which his or
her ancestors came.”), the only fact in the pleadings regarding national origin
discrimination that directly involves Dube is her allegation that Leak told her that
“people in Texas do not want to talk to Africans on the phone,” (Compl. at ¶ 7). In
Cicalese, the Fifth Circuit explained that it was “a close call” whether allegations of
repeated, derogatory remarks about Italians, made over the course of two years, were
sufficient to raise the inference that adverse employment actions were motivated by
anti-Italian bias. 924 F.3d at 768. Here, the allegation of a single comment—one
that is offensive and sweeps broadly, but nonetheless regards “oral communication
skills” where “such skills are reasonably related to job performance,” Fragante v. City
and County of Honolulu, 888 F.2d 591, 597 (9th Cir. 1989)—is likely not enough to
“nudge” Dube’s claim “across the line from conceivable to plausible,” Twombly, 550
U.S. at 547.
Additionally, Dube has not alleged any facts regarding a comparator
suggesting UT Southwestern treated any similarly situated employees outside Dube’s
protected class differently. As discussed above, courts can reference the McDonnell
Douglas framework for showing a prima facie case of discrimination to help
determine whether a plaintiff pleaded the ultimate elements of her claim. See
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 13 of 22 PageID <pageID>

- 14 -
Cicalese, 924 F.3d at 767. Here, Dube would eventually be required to prove that UT
Southwestern treated her “less favorably than others outside of [her] protected class.”
See Olivarez, 997 F.3d at 600 (quoting Alkhawaldeh v. Dow. Chem. Co., 851 F.3d 422,
427 (5th Cir. 2017)). Beyond the non-specific and conclusory assertion in her
complaint to the EEOC that she was given “a significantly larger workload than [her]
non-Zimbabwean counterparts,” (Compl. at ECF 10), Dube has failed to identify
anyone outside of her protected class who is similarly situated to her at UT
Southwestern. Dube has not pleaded any facts suggesting that other non-
Zimbabwean employees in her department had been warned to improve their
recruitment numbers, let alone that any such individuals were not placed on a PAP,
given increased workloads, or threatened with termination or reduced pay.
While a plaintiff need not prove her prima facie case for disparate treatment at
the motion to dismiss stage, she does need to plead facts that make it plausible she
suffered the adverse employment action because of her national origin. Cicalese, 924
F.3d at 766–67. The facts offered by Dube fail to accomplish this. For these reasons,
the undersigned finds that Dube has failed to state a claim under a disparate
treatment theory.
Dube also claims that the national origin discrimination she faced “created a
hostile work environment.” (Compl. at ¶ 10.) “Hostile work environment is a
specific discrimination claim under Title VII.” Hudson, 58 F.4th at 229. “A hostile
work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 14 of 22 PageID <pageID>

- 15 -
conditions of the victim’s employment and create an abusive work environment.”
Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399 (5th Cir. 2021) (cleaned up). To show
a prima facie case of a hostile work environment claim, Dube must show that she
(1) “belongs to a protected group;” (2) “was subjected to unwelcome harassment;”
(3) the harassment was based on her protected status; (4) the harassment impacted 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.” Id. at 399–400 (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.
2002)). The “ultimate element” of a hostile work environment claim that Dube must
plead to survive a motion to dismiss is that her employer, UT Southwestern, “created
a working environment heavily charged with discrimination.” Pfang v. Lamar Inst. of
Tech., 685 F. Supp. 3d 425, 444 (E.D. Tex. 2023) (cleaned up); see Raj, 714 F.3d at
330–31.
Courts in this circuit apply “an objective ‘reasonable person’ standard to
evaluate severity and pervasiveness.” E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731
F.3d 444, 453 (5th Cir. 2013) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 82 (1998)). This inquiry requires courts to consider “all 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.” Johnson, 7 F.4th at
400 (cleaned up). “[N]o single factor is required.” Id.
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 15 of 22 PageID <pageID>

- 16 -
As discussed above, not one of Dube’s allegations, nor all of them in
combination, equals the severity or pervasiveness required to affect a term,
condition, or privilege of employment. At worst, Leak’s alleged comment to Dube
was merely an offensive utterance, and the fact that it is the only comment of the
kind that Dube experienced in her allegations marks it as precisely the type of
“isolated incident” that does “not amount to [a] discriminatory change[ ] in the
‘terms and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998). Dube has failed to plead any facts suggesting that threats of termination
or reduced pay, her placement on a PAP, or even her “significantly” increased
workload, unreasonably interfered with her work performance. Dube has not
pleaded sufficient facts to plausibly allege that UT Southwestern created a working
environment heavily charged with discrimination, let alone discrimination connected
to her national origin. For these reasons, the undersigned finds that Dube has failed
to state a claim for hostile work environment. Dube’s national origin discrimination
claim should be dismissed.
2. Dube has failed to state a claim for retaliation.
To establish a prima facie case of retaliation, a plaintiff must show that she
(1) engaged in an activity protected by either Title VII or the TCHRA; (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). An
adverse employment action in a retaliation claim must be materially adverse,
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 16 of 22 PageID <pageID>

- 17 -
meaning it must produce a harm or injury significant enough to “dissuade[ ] a
reasonable worker from making or supporting a charge of discrimination.”
Burlington, 548 U.S. at 68. Dube engaged in protected activity when she reported her
concerns over Leak’s alleged comments to her program manager and to HR.
Rodriguez v. Wal-Mart Stores, Inc., 540 F. App’x 322, 328 (5th Cir. 2013) (“An
employee that files an internal complaint of discrimination engages in a protected
activity.” (citations omitted)). To survive a motion to dismiss, Dube needs only to
“plausibly allege facts going to the ultimate elements” of her retaliation claim.
Cicalese, 924 F.3d at 762. Here, that would mean pleading facts that permit a
reasonable inference that UT Southwestern took a materially adverse employment
action against her because of her complaint to Obideen on April 1, 2024, or her
complaint to HR on April 2, 2024. See Wright v. Union Pac. R.R. Co., 990 F.3d 428,
433 (5th Cir. 2021). Dube has not done this.
As discussed above, Dube has failed to plead sufficient facts to plausibly allege
that she suffered a materially adverse employment action. Additionally, Dube has
failed to plead facts that suggest a causal link between the alleged adverse conduct
and her complaints. Dube does not allege that Leak had any knowledge of the
complaints she made, and the “mere temporal proximity” between the complaints
and Leak’s actions to increase Dube’s workload and place her on a PAP “alone is
insufficient to prove but for causation.” Strong v. Univ. Healthcare Sys., L.L.C., 482
F.3d 802, 808 (5th Cir. 2007). Obideen “threatened” Dube that she might be
terminated or receive a reduction in pay directly after hearing her complaint
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 17 of 22 PageID <pageID>

- 18 -
regarding Leak, but beyond the temporal proximity, Dube pleads no facts suggesting
this threat was because of her complaint, rather than Obideen’s stated concern over
her recruitment numbers. (Compl. at ECF 10.) Dube’s retaliation claim should be
dismissed.
3. Dube has failed to state a claim for constructive discharge.
A resignation is actionable under Title VII and the TCHRA only if the
resignation qualifies as a constructive discharge. To prove constructive discharge, a
“plaintiff must establish that working conditions were so intolerable that a reasonable
employee would feel compelled to resign.” Faruki v. Parsons, 123 F.3d 315, 319 (5th
Cir. 1997). “Discrimination alone, without aggravating factors, is insufficient for a
claim of constructive discharge.” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th
Cir. 2001) (citations omitted). In determining whether a reasonable employee would
feel compelled to resign, courts consider a wide range of factors and events. See
Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). But at a minimum,
“[c]onstructive discharge requires a greater degree of harassment than that required
by a hostile [work] environment claim.” Brown, 237 at 566 (citing Benningfield v. City
of Hous., 157 F.3d 369, 378 (5th Cir. 1998)).
The allegations Dube presents in support of her constructive discharge
argument do not differ from the allegations made in support of her claims for
national origin discrimination and retaliation. Dube felt that the discrimination and
retaliation became so “severe” that she had “no choice but to resign from [her]
position.” (Id. at ¶¶ 10–11, ECF 11.) But just as Dube’s allegations were insufficient
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 18 of 22 PageID <pageID>

- 19 -
to plausibly allege that she suffered any adverse employment actions, and just as her
allegations were insufficient to plausibly allege a hostile work environment, so too
were her allegations insufficient to plausibly allege that a reasonable employee in her
position would feel “compelled to resign.” Faruki, 123 F.3d at 319. Dube’s
constructive discharge claim should be dismissed.
C. 	Dube Should Be Granted Leave to Replead Her Claims
Although the undersigned concludes that Dube’s claims as currently pleaded
do not survive Rule 12(b)(6) scrutiny, she should be permitted to make another
attempt to plead her best case. See, e.g., In re Am. Airlines, Inc., Priv. Litig., 370 F.
Supp. 2d 552, 567–68 (N.D. Tex. 2005) (“[D]istrict courts often afford plaintiffs at
least one opportunity to cure pleading deficiencies before dismissing a case, unless it
is clear that the defects are incurable or . . . [plaintiffs] are unwilling or unable to
amend in a manner that will avoid dismissal.” (internal citations omitted)). And,
generally, “a pro se litigant should be offered an opportunity to amend [her]
complaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir.
2009) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)).
“[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
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 19 of 22 PageID <pageID>

- 20 -
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)). Moreover, when,
as here, the party seeking leave to amend is proceeding pro se, courts are more likely
to allow the party to amend the complaint rather than face dismissal. See Swanson v.
Aegis Commc'ns Grp., Inc., No. 3:09-CV-0041-D, 2010 WL 26459, at *1 (N.D. Tex.
Jan. 5, 2010); Scott v. Byrnes, No. 3:07-CV-1975-D, 2008 WL 398314, at *1–2 (N.D.
Tex. Feb. 13, 2008).
Here, the relevant factors weigh in favor of granting Dube an opportunity to
amend. Dube is proceeding pro se, she has not previously amended her complaint,
and there is no evidence indicating bad faith or undue delay on Dube’s behalf, nor
would undue prejudice to UT Southwestern result by allowing Dube to file an
amended complaint pleading her best case. Additionally, the factual allegations
Dube raised for the first time in her response—that she was instructed by a Dr.
Hajjar to “stop emailing about the mistreatment,” that multiple black coworkers had
left UT Southwestern after experiencing similar mistreatment, and that Leak had
explicitly stated that “Africans are perceived as scammers,” (Resp. at ¶¶ 1–2.)—
suggest that Dube has the ability to potentially adduce additional factual allegations
that could better support her claims. Although a pro se plaintiff's pleadings are held
to less stringent standards than pleadings drafted by lawyers, Estelle, 429 U.S. at 106,
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 20 of 22 PageID <pageID>

- 21 -
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)). Accordingly, Dube should be permitted to file an amended complaint.
To successfully move forward with her case, Dube’s amended complaint must
include well-pleaded facts to plausibly state a claim for relief under Title VII and the
TCHRA. Such facts must be specific, clear, and precise. Furthermore, Dube is
instructed that the Court will consider her amended complaint to be her best pleaded
case. See Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997)
(“[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 UT
Southwestern’s Motion to Dismiss (Dkt. No. 8), be GRANTED, that Dube be given
an opportunity to file an amended complaint within 21 days of the District Judge’s
acceptance of these findings, conclusions, and recommendation or another date
established by the District Judge, and that Dube’s claims be dismissed with prejudice
if she fails to file an amended complaint within the time allowed.
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 21 of 22 PageID <pageID>

- 22 -
SO RECOMMENDED on February 27, 2026.
__________________________
BRIAN McKAY
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).
Case 3:25-cv-01474-G-BW Document 14 Filed 02/27/26 Page 22 of 22 PageID <pageID>