Moore v. General Motors LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DOMINIQUE MOORE, 	§
Plaintiff, 	§
§
V. 	§ 	CIVIL ACTION NO. 4:25-CV-616-P
§
GENERAL MOTORS LLC, ET AL. 	§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION REGARDING
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
Pending before the Court is Defendant General Motors LLC (“GM” or “Defendant”)’s
Rule 12(b) Motion to Dismiss Plaintiff’s Amended Complaint (“Motion to Dismiss”) [doc. 33],
filed September 10, 2025. Having carefully considered the motion, response, reply, and sur-reply,
the Court RECOMMENDS that Defendant’s motion be PARTIALLY GRANTED and
PARTIALLY DENIED.
I. 	BACKGROUND
Plaintiff Dominque Moore “was employed [as a production worker] by GM [from June 3,
2024,] until his termination on March 7, 2025.” 	(Plaintiff’s Amended Complaint (“Pl.’s Am.
Compl.”) at 2.) 	On April 28, 2025, Plaintiff filed a Charge of Discrimination with the Texas
Workforce 	Commission 	Civil 	Rights 	Division 	and 	the 	Equal 	Employment 	Opportunity
Commission (“EEOC”). (Defendant’s Reply in Support of Motion to Dismiss (“Def.’s Reply”) at
Exhibit (“Ex.”) 1.) Plaintiff, on April 29, 2025, received his right to sue letter from the EEOC.
(Plaintiff’s Response in Opposition to Defendant’s Rule 12(b) Moton to Dismiss Plaintiff’s
Amended Complaint (“Pl.’s Resp.”) at 2 and Ex. A.)
On June 6, 2025, Plaintiff, proceeding pro se, filed a Complaint in this Court [doc. 3].
Thereafter, on August 27, 2025, Plaintiff filed an Amended Complaint [doc. 30] in which he
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alleged claims against GM for the following: (1) sex discrimination, sexual harassment, and
retaliation in violation of Title VII of the Civil Rights Act of 1964; (2) “Protected Concerted
Activity” in violation of the National Labor Relations Act (“NLRA”); (3) failure to provide
reasonable accommodation in violation of the Americans with Disabilities Act (“ADA”); (4)
disability, sex discrimination, retaliation, and harassment1 in violation of Chapter 21 of the Texas
Labor Code; and (5) wrongful termination in violation of Texas common law.2 	(Plaintiff’s
Amended Complaint (“Pl.’s Am. Compl.”) at 5.)
In its Motion to Dismiss, GM argues that (1) Plaintiff’s claims under Title VII, the ADA,
and Chapter 21 of the Texas Labor Code should be dismissed because Plaintiff failed to exhaust
his administrative remedies; (2) Plaintiff failed to state claims under Title VII, the ADA, or Chapter
21 of the Texas Labor Code as Plaintiff has failed to plead a prima-facie case of sex discrimination,
sex-based harassment, disability discrimination, failure to accommodate, or retaliation; (3) the
Court lacks jurisdiction over Plaintiff’s NLRA claims and, alternatively, Plaintiff has failed to state
a claim under the NLRA; (4) Plaintiff’s wrongful termination claim under Texas common law: (a)
is preempted by Title VII and Chapter 21 of the Texas Labor Code or, alternatively, by the NLRA
under San Diego Bldg. Trades v. Garmon, 359 U.S. 236 (1959) or (b) must be dismissed under
Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985), because Plaintiff is not an at-
will employee. 	(GM’s Brief in Support of Rule 12(b) Motion to Dismiss Plaintiff’s Amended
Complaint (“Def.’s Br.”) at 3-14.)
1 While it is not entirely clear that Plaintiff has asserted a claim for harassment in violation of Chapter 21 of
the Texas Labor Code, the Court will analyze Plaintiff’s case as if he had asserted such claim.
2 Plaintiff also asserted a claim against Defendant The United Auto Workers (“UAW”) for breach of the duty
of fair representation in violation of the NLRA. (Pl.’s Am. Compl. at 5.) UAW filed an answer on July 13, 2025, and
an Amended Answer on September 8, 2025, and did not join in with GM on the pending motion to dismiss.
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Plaintiff, in his response, attached a copy of the April 29, 2025, right-to-sue letter that he
received from the EEOC. (Pl.’s Resp. at Ex. A.) Plaintiff further claims, inter alia, that he “has
alleged specific facts supporting all claims, properly exhausted administrative remedies, and
produced documents corroborating the allegations.” (Pl.’s Resp. at 2.) 	In its reply, GM argues
that, while it now appears that Plaintiff did exhaust his remedies with the EEOC, Plaintiff’s sex-
based harassment and disability-related claims must be dismissed because Plaintiff’s Charge of
Discrimination does not assert these claims. 	(Defendant’s Reply in Support of Its Rule 12(b)
Motion to Dismiss Plaintiff’s Amended Complaint (“Def.’s Reply”) at 1-2.) In support, Defendant
states:
Plaintiff’s EEOC Charge asserts only that he was subjected to retaliation
and sex discrimination in violation of Title VII, and includes only the following
statements in support: “I made a social media post stating people should not come
to work as a joke and I was terminated[;]” “I was terminated on March 7, 2025[;]”
and “I believe that I was discriminated because of my sex, Male, in violation of
[Title VII]. I believe that I was retaliated in violation of [Title VII].”). See Ex. 1.
Plaintiff’s 	EEOC 	Charge 	makes 	no 	mention 	of 	harassment 	(sex-based 	or
otherwise), having a disability, requesting any accommodation, GM’s alleged
failure to accommodate any disability, or being terminated in connection with a
disability or accommodation request. Plaintiff’s EEOC Charge makes no allegation
that his supervisor made “repeated remarks about Plaintiff’s perceived sexuality
and failed to respect Plaintiff’s name and identity” as Plaintiff’s Complaint alleges.
Compare Ex. 1 to ECF No. 30, ¶ 12.
(Def.’s Reply at 2 (alterations in original) (mistakes in original).)
II. 	LEGAL STANDARD
Rule 12(b)(6) authorizes the dismissal of a complaint that fails “to state a claim upon which
relief can be granted.” 	This rule must be interpreted in conjunction with Rule 8(a), which sets
forth the requirements for pleading a claim for relief in federal court. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 545 (2007). Rule 8(a) calls for “a short and plain statement of the claim
showing that the pleader is entitled to relief.” 	Fed. R. Civ. P. 8(a)(2); see also Swierkiewicz v.
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Sorema N.A., 534 U.S. 506, 513 (2002) (holding that Rule 8(a)’s simplified pleading standard
applies to most civil actions). 	The Court must accept as true all well-pleaded, non-conclusory
allegations in the complaint and liberally construe the complaint in favor of the plaintiff. Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
“Generally, a court ruling on a motion to dismiss may rely on only the complaint and its
proper attachments.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). “A
court is permitted, however, to rely on documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.” Id. (internal quotation marks and citations
omitted). “The court may also consider documents attached to either a motion to dismiss or an
opposition to that motion when the documents are referred to in the pleadings and are central to a
plaintiff’s claims.” Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635
(5th Cir. 2014); see also Texas Health and Hum. Servs. Comm’n v. United States, 193 F. Supp. 3d
733, 738 (N.D. Tex. 2016).
III. 	ANALYSIS
A. 	Exhaustion of Remedies as to Plaintiff’s Sexual Harassment Claims Under
Title VII and the Texas Labor Code and Disability-Related Claims under the
ADA and the Texas Labor Code
As noted above, Plaintiff asserts, inter alia, sexual harassment claims for violations of Title
VII and Chapter 21 of the Texas Labor Code as well as disability-related claims for violations of
the ADA and Chapter 21 of the Texas Labor Code. (Def.’s Br. at 1-3.) “Title VII [and the Texas
Labor Code] provide[ ] for private cause[s] of action arising out of employment discrimination
and give[ ] federal courts subject matter jurisdiction to resolve such disputes.”3 Ernst v. Methodist
3 “A motion to dismiss for lack of exhaustion is properly asserted under Rule 12(b)(6), not 12(b)(1).”
Williams v. French, No. 4:23-CV-2593, 2024 WL 3745975, at *2 (S.D. Tex. June 17, 2024). 	“Administrative
exhaustion of remedies is a precondition to filing suit in federal court, but it does not deprive the Court of subject
matter jurisdiction.” Id. (citing Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 550-51 (2019)).
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Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021) (internal quotation marks and citations omitted); see
Carrier v. Trico Prods. Corp., No. 1:17-cv-248, 2018 WL 4103251, at *2 (S.D. Tex. June 26,
2018) (“The Texas Commission on Human Rights Act (‘TCHRA’), as codified in the Texas Labor
Code . . ., provides a private right of action to persons ‘claiming to be aggrieved by an unlawful
employment practice[.]’”) (quoting Tex. Lab. Code § 21.201) (alterations in original). 	“Before
filing a Title VII or TCHRA4 claim in federal court, a plaintiff must first exhaust their
administrative remedies” by filing a charge of discrimination with the EEOC and/or the TCHRA.
Lopez v. AT&T Mobility Servs LLC, 767 F. Supp. 3d 406, 421-22 (W.D. Tex. 2025) (footnote
added). “To meet the exhaustion requirement, ‘a claim generally must arise out of the plaintiff’s
EEOC charge.’” Weber v. McDonough, No. 23-1200, 2024 WL 5246610, at *4 (E.D. La. Dec. 30,
2024) (quoting Ernst, 1 F.4th at 337).
“The ADA incorporates the exhaustion requirements applicable to claims brought under
Title VII . . . .” Robles v. Tex. Tech. Univ. Health Scis. Ctr., 131 F. Supp. 3d 616, 632 (W.D. Tex.
2015). “Accordingly, [just as with Title VII claims], ADA claims are properly raised in a judicial
complaint when they are within ‘the scope of the EEOC investigation which can reasonably be
expected to grow out of the [administrative] charge of discrimination.’” Id. (quoting Pacheco v.
Mineta, 448 F.3d 783, 789 (5th Cir. 2006) (alterations in original). “Failure to comply with the
ADA’s exhaustion requirements is grounds for dismissal.” Robles, 131 F. Supp. 3d at 632.
“When determining if a litigant exhausted her administrative remedies before the EEOC,
‘the crucial element of a charge of discrimination is the factual statement contained therein[.]’”
Jones v City of Dallas, Tex., No. 24-10803, 2025 WL 2491127, at *6 (5th Cir. Aug. 29, 2025)
4 “The popular name for Chapter 21 of the Texas Labor Code . . . is the . . . TCHRA.” Quintana v. Fujifilm
N. Am. Corp., 96 F. Supp. 3d 601, 606 n.1 (N.D. Tex. 2015).
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(quoting Melgar v. T.B. Butler Publ’g Co., Inc., 931 F.3d 375, 379 (5th Cir. 2019) (alterations in
original)). “The Fifth Circuit has emphasized that this requirement ‘relates to a key purpose of an
employment-discrimination charge,’ which is to inform the employer of the existence and general
substance of the discrimination allegations.” Weber, 2024 WL 5246610, at *4 (quoting Ernst, 1
F.4th at 337). “The court focuses on the facts alleged in the charge, construing the EEOC charge
in its broadest reasonable sense and asking whether the claim can reasonably be expected to grow
out of the charge of discrimination.” Jones, 2025 WL 2491127, at *7 (internal quotations marks
and citations omitted). “The Fifth Circuit . . . instructs that the scope of an EEO complaint should
be ‘construed liberally’ and the Court should ‘look slightly beyond its four corners.’” Weber, 2024
WL 5246610, at *4 (quoting Pacheco, 448 F.3d at 788-89).
In this case, Plaintiff, in his Charge of Discrimination, stated that he was discriminated
against on the basis of “Retaliation, Sex.” (Def.’s Reply at Ex. 1, p. 1.) Plaintiff further indicated
that the earliest time the discrimination took place was on June 3, 2024, and that the latest time
was March 7, 2025, which is the length of time he was employed with GM. 	(Id.) 	In addition,
under a section titled “Personal Harm,” Plaintiff stated that he “made a social media post stating
people should not come to work as a joke and . . was terminated [on March 7, 2025]. (Id.) In his
“Discrimination Statement,” Plaintiff further declared:
I believe that I was discriminated against because of my sex, Male, in
violation of Title VII of the Civil Rights Act of 1964, as amended. I believe that I
was retaliated in violation of Section 704(a) of Title VII of the Civil Rights Act of
1964, as amended.
(Id.)
In this case, it is clear, based on the foregoing, that Plaintiff failed to exhaust his disability-
related claims under the ADA and the Texas Labor Code and his sexual harassment claims under
Title VII and the Texas Labor Code. To begin with, Plaintiff fails to mention the terms “hostile
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work environment” or harassment in his EEOC charge. 	See Payne, 2025 WL 549360, at *10.
While such failure is not dispositive on its own, Plaintiff also fails to mention any facts relating to
any disabilities or acts of sexual harassment or any facts that could reasonably be expected to raise
or include such claims. See Jones, 2025 WL 2491127, at *7.5 Consequently, the Court FINDS
and CONCLUDES that Plaintiff’s sexual harassment claims under Title VII and the Texas Labor
Code and his disability-related claims under the ADA and the Texas Labor Code should be
DISMISSED WITHOUT PREJUDICE for failure to exhaust his administrative remedies. Thus,
the Court RECOMMENDS that Defendant’s Motion to Dismiss on these claims should be
GRANTED.
B. 	Failure to State a Claim under Title VII and the Texas Labor Code for Sex
Discrimination or Retaliation
In its motion, Defendant also argues that Plaintiff has failed to allege sufficient facts to
state claims for sex discrimination and retaliation under Title VII and Chapter 21 of the Texas
Labor Code. (Def.’s Br. at 4-6, 9-10.) Title VII and Chapter 21 of the Texas Labor Code prohibit
an employer from discriminating against any individual because of, inter alia, such individual’s
sex or retaliating against an employee who has engaged in an activity protected by the Act. See
42 U.S.C. §§ 2000e-2(a), 2000e-3(a); Tex. Labor Code §§ 21.051, 21.055; see also Miles v. Port
Arthur ISD, 772 F. Supp. 3d 770, 787 (E.D. Tex. 2025) (“The antiretaliation provision of Title VII
prohibits an employee from discriminating against an employee . . . because that individual
opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or
participated in a Title VII proceeding or investigation.”) (internal quotation marks and citations
5 “[D]iscrimination and harassment are distinct claims.” Payne v. Hammond City, No. 24-1857, 2025 WL
549360, at *10 (E.D. La. Feb. 19, 2025) (internal quotation marks and citations omitted). “For 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 actions of discrimination.” Id. (internal quotation marks and citations omitted).
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omitted); Siegel v. BWAY Corp., No. H-24-0411, 2024 WL 1639916, at *6 (S.D. Tex. Apr. 12,
2024).
1. 	Sex Discrimination Claim Under Title VII and the Texas Labor Code
“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well
as, 	in 	some 	cases, 	practices 	that 	are 	not 	intended 	to 	discriminate 	but 	in 	fact 	have 	a
disproportionately adverse effect on minorities (known as ‘disparate impact’).” 	Ricci v.
DeStefano, 557 U.S. 557, 577 (2009). 	“Courts evaluate sex-discrimination claims under Texas
state law and Title VII similarly.” Barinaga v. Exxonmobil Corp., No. 4:22-CV-03462, 2025 WL
2799815, at *16 (S.D. Tex. Sept. 30, 2025) (internal quotation marks and citations omitted); see
Bramlett v. Tarrant Cnty., Tex., No. 4:23-CV-203-P, 2023 WL 11667632, at *3 n.3 (N.D. Tex.
Nov. 27, 2023) (“Courts analyze Title VII and parallel claims under the Texas Labor Code
identically.”) To maintain a claim for disparate treatment discrimination, a plaintiff must either
offer direct evidence of discrimination or utilize the indirect method of proof set forth in
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). 	See Taylor v. Principal
Fin. Grp., Inc., 93 F.3d 155, 162 (5th Cir. 1996), cert. denied, 519 U.S. 1029 (1996); Rosario v.
Tex. Veterans Comm’n, 607 F. Supp. 3d 711, 717 (W.D. Tex. 2022). 	“Direct evidence of
discrimination is evidence which, if believed, would prove the existence of a fact (i.e., unlawful
discrimination) without any inferences or presumptions.” Bodenheimer v. PPG Indus., Inc., 5 F.3d
955, 958 (5th Cir. 1993).
Under the indirect method of proof set forth in McDonnell Douglas, a plaintiff must first
establish a prima-facie case of discrimination with allegations that the plaintiff: (1) is a member
of a protected class; (2) was qualified for his position; (3) suffered an adverse employment action;
and (4) was replaced by someone who is not a member of the protected class to which Plaintiff
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belongs or was treated less favorably than those outside the protected class. See Haire v. Bd. of
Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013); Kamme
O. v. Tex. A&M Univ., No. H-17-3877, 2020 WL 974942, at *4 (S.D. Tex. Jan. 14, 2020).
At the pleading stage, in determining whether a plaintiff has alleged a plausible
discrimination claim under Title VII or the Texas Labor Code, the Court must analyze whether the
plaintiff has alleged “sufficient facts on all of the ultimate elements of a disparate treatment claim
to make his claim plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016);
see Jenkins v. City of Dallas, Tex., 717 F. Supp. 3d 528 (N.D. Tex. 2024). This means that, at the
very least, the plaintiff must allege, for purposes of a Title VII or Texas Labor Code disparate
treatment claim, that he has suffered an adverse employment action “because of” his or her
membership in a protected class. Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766-67
(5th Cir. 2019); see Keplar v. Google, LLC, No. 3:22-CV-2281-B, 2023 WL 7360891, at *3 (N.D.
Tex. Nov. 7, 2023) (“While a court cannot require plaintiffs prove their prima facie case at the
motion to dismiss state, courts can reference the prima facie case to help determine whether a
plaintiff has plausibly alleged the ultimate elements of the disparate treatment claim when a
plaintiff’s claim relies on circumstantial evidence.”) (internal quotation marks and citations
omitted).
In 	this 	case, 	Plaintiff’s 	allegations 	indicate 	indirect 	evidence 	of 	discrimination;
consequently, proving his claim of sex discrimination will ultimately depend on the McDonnell
Douglas burden-shifting framework. See Louis v. East Baton Rouge Par. Sch. Bd., 303 F. Supp.
2d 799, 801-02 (M.D. La. Dec. 19, 2003). At the motion to dismiss stage, the Court must, as set
forth above, determine whether Plaintiff has plausibly alleged the “ultimate” elements of his
disparate treatment claim—which are that Plaintiff suffered an adverse employment action
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because of his membership in a protected class. See Chhim, 836 F. 3d at 470; Cicalese, 924 F.3d
at 766-67. The Court will reference the elements of a prima-facie case of sex discrimination under
the McDonnell Douglas standard to help it determine whether plaintiff has plausibly alleged these
ultimate elements. See Keplar, 2023 WL 7360891, at *3.
As to element one of the McDonnell Douglas framework, Plaintiff, in his Amended
Complaint, alleges that “Corey, a group leader employed by GM” “made repeated remarks about
Plaintiff’s perceived sexuality and failed to respect Plaintiff’s name and identity.”6 	(Pl.’s Am.
Compl. at 2.) While Plaintiff only identifies his gender by referring to himself as a “he” and never
identifies his sexual orientation in his Amended Complaint,7 the Court, liberally construing
Plaintiff’s Amended Complaint in favor of Plaintiff, finds and concludes that Plaintiff has alleged
he is a member of a protected class.8
As to element two, Plaintiff alleges in his Amended Complaint that he “began working for
GM on June 3, 2024, as a production worker.” (Pl.’s Am. Compl. at 2.) Consequently, the Court
construes this statement as an allegation that Plaintiff was qualified for his position. See Rosario,
607 F. Supp. 3d at 719 (stating that Plaintiff “was qualified for the position he held for many
years”); Hardmon v. U.L. Coleman, No. 17-1118, 2020 WL 1536452, at *4 (W.D. La. Mar. 31,
2020) (construing Plaintiff’s claim that she worked for Defendant in a maintenance-related
capacity as an allegation that Plaintiff was qualified for his position). 	As to the third element,
Plaintiff alleges two adverse employment decisions: (1) that he was transferred to a different
6 Plaintiff claims that Corey “exercised supervisory authority over Plaintiff and made or influenced decisions
regarding his job assignments and working conditions.” (Pl.’s Am. Compl. at 2.)
7 Gender is a protected class. Rosario, 607 F. Supp. 3d at 719. Moreover, “discrimination on the basis of
sexual orientation or gender identity is a form of sex discrimination under Title VII.” Olivarez v. T-mobile USA, Inc.,
997 F.3d 595, 598 (5th Cir. 2021).
8 In addition, the Court notes that Plaintiff, in his Charge of Discrimination, clearly identified himself as a
male. (Def.’s Reply at Ex. 1.)
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department, the “General Assembly” department, which was “a more physically demanding
department”9 and (2) that he was terminated on March 7, 2025.10 (Pl.’s Am. Compl. at 2-4.)
Thus, the final element to consider in the Court’s evaluation is whether Plaintiff has alleged
that he was treated less favorably than those outside the protected class or replaced by someone
that is not in Plaintiff’s protected class. 	As to the transfer of Plaintiff to a more physically
demanding department, Plaintiff alleges that he was told by a co-worker that “supervisor Corey
was uncomfortable with Plaintiff because of Plaintiff’s sexuality and, as a result, directed that
Plaintiff be sent to the GA ([“]General Assembly[“]) department instead of assigning Alisha
there.” (Pl.’s Am. Compl. at 4.) As Plaintiff has alleged that he was treated less favorably than a
female employee, the Court FINDS and CONCLUDES that Plaintiff has sufficiently pled a sex
discrimination claim against Defendant based on the adverse employment decision of being
transferred to a more physically demanding department.
As to his termination, Plaintiff, as set forth above, alleges that he was terminated on March
7, 2025, after “post[ing] jokingly [on March 2, 2025,] in a GM employee Facebook group: ‘Ok
it’s Sunday, 9-hour shift, 3rd shift don’t come in . . . I want an easy night too I was off the last two
nights lol.’” (Pl.’s Am. Compl. at 3 (mistakes in original).) Plaintiff claims that “several other
GM employees had posted in the same Facebook group between January 8 and January 10, 2025”
were not disciplined or terminated.” (Pl.’s Am. Compl. at 4.) Plaintiff, however, fails to allege
9 Plaintiff claims that he was temporarily transferred to the General Assembly department several times but
that such reassignment became permanent on February 23, 2025. (Pl.’s Am. Compl. at 2-4.)
10 Transferring a male employee to a more physically demanding assignment that was only given to men is
considered an “adverse employment action” under Title VII. See Harris v Amazon.com Inc., No. 3:22-cv-2279-K-
BN, 2024 WL 4958265, at *6 (N.D. Tex. Nov. 14, 2024), rep. and rec. adopted, 2024 WL 4690009 (N.D. Tex. Dec.
3, 2024). In addition “[t]ermination is considered an ‘adverse employment action’ under Title VII.” Lewis v. Bd. of
Supervisors of La. State Univ. and Agric. and Mech. College, No. 21-198-SM-RLB, 2023 WL 8370096, at *6 n.78
(M.D. La. Dec. 1, 2023).
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the gender or sexual orientation of the other employees that were allegedly treated more favorably
than Plaintiff nor that he was terminated because of his gender or sexual identity. 	While not
dispositive at the motion to dismiss stage,11 Plaintiff has failed to allege the ultimate elements that
he has suffered an adverse employment action “because of” his membership in a protected class.
Consequently, the Court FINDS and CONCLUDES that Plaintiff has not sufficiently pled a sex
discrimination claim against Defendant based on his termination. 	Based on the foregoing, the
Court RECOMMENDS that Defendant’s Motion to Dismiss Plaintiff’s sex discrimination claim
based on: (1) Plaintiff’s transfer to the GA Department be DENIED and (2) Plaintiff’s termination
be GRANTED.
2. 	Retaliation Claim Under Title VII and the Texas Labor Code
To state a claim for retaliation under Title VII or the Texas Labor Code, a Plaintiff must
allege facts that demonstrate that: (1) he participated in an activity protected by Title VII;12 (2) his
employer took an adverse employment action against him; and (3) a causal connection exits
between the protected activity and the adverse employment action. See Oliver, 2023 WL 2700709,
at *8; Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 469 (5th Cir. 2021) (stating that retaliation
claims pursuant to Title VII and the Texas Labor Code are analyzed pursuant to the McDonnell
Douglas burden-shifting framework). As with a discrimination claim, “[t]hough a plaintiff need
not submit evidence to establish a prima facie case of retaliation at the pleading stage, he . . . still
must plausibly allege facts going to the ultimate elements of the claim to survive a motion to
11 See Cicalese, 924 F.3d at 766-67.
12 “An employee has engaged in activity protected by Title VII if she has either (1) opposed any practice
made an unlawful employment practice by Title VII or (2) made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under Title VII.” Dixon v. Moore Wallace, Inc., 236 F. App’x 936,
937 (5th Cir. 2007) (internal quotation marks and citations omitted); see 42 U.S.C. § 2000e-3(a); Oliver v. Military
Dep’t, No. 22-356-SDD-RLB, 2023 WL 2700709, at *8 (M.D. La. Mar. 29, 2023). “[P]rotected activity under Title
VII must relate to discriminatory practices based on race, color, religion, sex, or national origin.” Allen v. Envirogreen
Landscape Profs., Inc., 721 F. App’x 322, 327 (5th Cir. 2017).
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dismiss.” 	Smith v. Kendall, No. 23-50713, 2024 WL 4442040, at *6 (5th Cir. Oct. 8, 2024)
(quoting Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021). The Court will again
use the McDonnell Douglas framework, not to “inappropriately heighten[ ] the pleading standard
by subjecting a plaintiff’s allegations to a rigorous factual or evidentiary analysis under” such
“framework in response to a motion to dismiss,” but to ensure that the ultimate elements are pled.
Id. at *4.
Based on the McDonnell Douglas framework, the first issue is whether Plaintiff has alleged
facts demonstrating that he participated in an activity protected by Title VII. A liberal review of
Plaintiff’s Amended Complaint indicates that Plaintiff alleges, inter alia, that he filed complaints
against Corey, one of Plaintiff’s supervisors, and that his complaints were related to Corey’s
remarks about Plaintiff’s “perceived sexuality and fail[ure] to respect Plaintiff’s name and
identity.” (Pl.’s Am. Compl. at 2.) Such complaints, especially at this stage of the proceedings,
would be protected activity under Title VII as “an informal complaint may constitute protected
activity for purposes of retaliation claims.” Amanduron v. Am. Airlines, 416 F. App’x 421, 424
(5th Cir. 2011).
As to the second element, the Court has already found that being transferred to a more
physically demanding department, as well as being terminated, constitute adverse employment
decisions. (See Pl.’s Am. Compl. at 2-4.) As to the third element regarding causation, Defendant,
in its motion, argues, inter alia, that Plaintiff’s allegations are “insufficient to show that Plaintiff
engaged in a protected activity” as Plaintiff “makes no allegation that he reported discrimination
or harassment to GM.” (Def.’s Br. at 10 (emphasis in original).) The Court agrees with Defendant
that Plaintiff’s Amended Complaint is, at best, vague on whether the decision makers that made
the adverse employment decision had knowledge of Plaintiff’s sex or gender-identity complaints
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about Corey. 	However, “this circuit has been neither so explicit nor consistent in enforcing a
separate-free-standing knowledge requirement at the pleadings stage.” Smith, 2024 WL 4442040,
at *7. 	Further, “some prior decisions suggest that sufficient temporal proximity satisfies, or
dispenses with, any need to demonstrate employer knowledge of the protected activity.” Id. at 8.
At this stage in the proceedings, “[t]his circuit has often, but not universally, found temporal
proximity on the scale of weeks to a few months [is] sufficient to establish a causal link.” Id. at 7.
In this case, Plaintiff alleges that he first began making complaints against Corey for
retaliation in October 2024 and November 2024 and that he made additional complaints to the
union and his union representative beginning sometime in October 2024 and continuing through
early December.13 	(Pl.’s Am. Compl. at 2-3). 	Plaintiff further claims that he was temporarily
reassigned to the GA department on October 31, 2024 and November 19, 2024, and permanently
reassigned on February 23, 2025. 	(Pl.’s Am. Compl. at 2-3.) 	As set forth above, Plaintiff was
terminated on March 7, 2025. (Id. at 3.) Based on this timeline, the Court finds a causal connection
between Plaintiff’s protected activity and the adverse employment actions has been pled. In other
words, there are enough factual allegations at this stage to “nudge [Plaintiff’s retaliation] claim
across the line from conceivable to plausible.” Cicalese, 924 F.3d at 768 (5th Cir. 2019) (citing
Twombly, 	550 	U.S. 	at 	547); 	see Smith, 	2024 	WL 	4442040, 	at 	*7-8 	(collecting 	cases).
Consequently, the Court FINDS and CONCLUDES that Plaintiff has stated a claim for retaliation
under Title VII and the Texas Labor Code. 	Consequently, the Court RECOMMENDS that
13 The Court notes that Plaintiff also alleges that he complained in December 2024 to Justin, another
supervisor, that his assignment on December 12, 2024, to a “position that required monitoring and feeding three (3)
production cells simultaneously” “felt targeted and retaliatory.” (Pl.’s Am. Compl. at 3.) However, these complaints
were related to an alleged medical issue and to his potential disability-related claims, which the Court is, supra,
recommending be dismissed.
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Defendant’s motions on Plaintiff’s retaliation claims under Title VII and the Texas Labor Code be
DENIED.
C. 	Protected Concerted Activity Claim in Violation of the NLRA
In his Amended Complaint, Plaintiff also alleges a claim of “Protected Concerted Activity”
under the NLRA against GM. 	(Pl.’s Am. Compl. at 5.) 	Specifically, Plaintiff alleges that his
“March 2, 2025, Facebook post was protected under NLRA Section 7, and GM terminated Plaintiff
for that protected activity in violation of Section 8(a)(1).” 	(Id.) 	In its Motion to Dismiss, GM
argues, inter alia, that Plaintiff’s claim against it for protected concerted activity under the NLRA
should be “dismissed under Rule 12(b)(1) because the National Labor Relations Board, not a
federal court, has jurisdiction to hear his claims in the first instance.” (Def.’s Br. at 11.)
Sections 7 and 8 of the NLRA “concern employees’ protected ‘concerted activities’, 29
U.S.C. § 157, and regulate the ability of employers or labor organizations to engage in ‘unfair
labor practices,’ id. § 158.” 	Metfab, Inc. v. Sheet Metal Workers’ Int’l Assoc., No. H-05-2506,
2005 WL 8165765, at *1 (S.D. Tex. Dec. 6, 2005). “A unionized employee’s right to engage in
‘concerted activity’ is protected by the [NLRA].” O’Neal v. Cargill, Inc., 178 F. Supp. 3d 408,
418 (E.D. La. 2016) (citing 29 U.S.C. §§ 157, 158(a)(1)). “Preemption under th[e]se sections is
known as ‘Garmon preemption,’ named for the Supreme Court case holding that ‘[w]hen an
activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must
defer to the exclusive competence of the National Labor Relations Board [(“NLRB”)].” Metfab,
Inc., 2005 WL 8165765, at *1 (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236
(1959)). “If Garmon preemption applies . . . the case must [first] be adjudicated before the NLRB.”
Metfab, Inc., 2005 WL 8165765, at *2. 	“Applied to claims in federal court, and arising under
federal law, Garmon has nothing to do with either preemption or subject-matter jurisdiction.”
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Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir. 2004). “It is a rule of primary jurisdiction, allocating
to an administrative agency the first crack at certain matters.” Id.
In this case Plaintiff alleges that he was wrongfully discharged for engaging in protected
concerted activity. Thus, the Court FINDS and CONCLUDES that Plaintiff must, pursuant to
the NLRA, first file a complaint with the NLRB for the resolution of his claim. See Metfab, Inc.,
2005 WL 8165765, at *2. 	As a result, the Court RECOMMENDS that Defendant’s motion to
dismiss Plaintiff’s claim for protected concerted activity in violation of the NLRA be GRANTED.
D. 	Wrongful Termination in Violation of Texas Common Law
Plaintiff, in his Amended Complaint, also alleges a claim against GM for wrongful
termination under Texas Common Law. (Pl.’s Am. Compl. at 5.) In support, Plaintiff states:
47. 	Plaintiff 	re-alleges 	and 	incorporates 	by 	reference 	all 	preceding
paragraphs. Plaintiff was terminated on March 7, 2025, in violation of Texas public
policy, including prohibitions against retaliation for protected complaints, disability
discrimination, 	and 	activity 	protected 	by 	law. 	This 	constitutes 	wrongful
termination under Texas common law. 	Plaintiff seeks damages, including lost
wages, emotional distress, and punitive damages.
(Pl.’s Am. Compl. at 5.)
Defendant, in its Motion to Dismiss, argues that, inter alia, this claim should be dismissed
because it is preempted by Title VII and Chapter 21 of the Texas Labor Code. (Def.’s Br. at 12-
13.)14 “Statutory claims preempt common law claims when the common law claims are based on
the same conduct as the statutory claims.” 	Bhakta v. Caraday Healthcare, LLC, No. 6:21-CV-
00753-ADA-JCM, 2021 WL 8362164, at *2 (W.D. Tex. Dec. 21, 2021); see Walker v.
Performance Food Grp., Inc., No. 1:25-CV-469-ADA-SH, 2025 WL 2740404, at *2 (W.D. Tex.
14 Defendant also argues that, if Plaintiff’s claim for wrongful termination is not preempted, then Plaintiff’s
wrongful termination claim does not qualify as a common-law exception to the employment at-will doctrine known
as a Sabine Pilot claim because Plaintiff was not an at-will employee. (Def.’s Br. at 14.) The Court will not address
this argument because Plaintiff, in his response, states that he is not making a “stand-alone Sabine Pilot claim.” (Pl.’s
Resp. at 2.)
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Aug. 29, 2025) (“But the Texas Supreme Court has held that Chapter 21 provides the exclusive
remedy against an employer when the gravamen of a plaintiff’s case is Chapter 21-covered
discrimination.”) (internal quotation marks and citations omitted). In this case, the same factual
conduct underlies Plaintiff’s statutory claims under Title VII and the Texas Labor Code that
underlies Plaintiff’s Texas common law claim for wrongful termination. Accordingly, the Court
FINDS and CONCLUDES that Title VII and the Texas Labor Code preempt Plaintiff’s common
law claim for wrongful termination. See Walker, 2025 WL 2740404, at *2 (“Chapter 21 abrogates
a plaintiff-employee’s common law claims against an employer to the extent that the claims are
based on the same course of conduct as discrimination or retaliation claims against that
employer.”) (internal quotation marks and citations omitted) (emphasis in original). As a result,
the Court RECOMMENDS that Defendant’s motion to dismiss Plaintiff’s claim for wrongful
termination in violation of Texas Common Law be GRANTED
E. 	Pro Se Parties and Right to Amend
On a motion to dismiss for failure to state a claim, a “plaintiff’s failure to meet the specific
pleading requirements should not automatically or inflexib[ly] result in dismissal of the complaint
with prejudice to re-filing.” Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (citation
omitted). Further, a pro se litigant should generally be offered an opportunity to amend his or her
complaint before it is dismissed. See Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009)
(per curiam) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)). “Granting
leave to amend is not required, however, if the plaintiff has already pleaded his ‘best case.’”
Brewster, 587 F.3d at 768 (quoting Bazrowx, 136 F.3d at 1054). 	The Court can deny leave to
amend where such an amendment would be futile. See Clements v. Bank, No. 6:20-CV-00821,
2021 WL 4483829, at *3 (W.D. La. Sept. 29, 2021) (“Since [Plaintiff] has previously been granted
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leave to amend his complaint to cure these defects, the Court concludes that any further attempt to
an amendment would be futile.”)
In the present case, Plaintiff has already been given the opportunity to file an Amended
Complaint after Defendant filed its initial Motion to Dismiss [see docs. 22 & 23] that, in essence,
raised the same issues raised in Defendant’s Amended Motion to Dismiss currently pending before
the Court. Accordingly, the Court finds and concludes that the granting of any additional leave
for Plaintiff to amend her claims would be futile.15
III. 	CONCLUSION
For the reasons set forth above, the Court RECOMMENDS that Defendant’s Rule 12(b)
Motion to Dismiss Plaintiff’s Amended Complaint [doc. 33] be PARTIALLY GRANTED as to
Plaintiff’s claims against GM for: (1) sexual harassment in violation of Title VII and the Texas
Labor Code; (2) disability-related issues in violation of the ADA and the Texas Labor Code; (3)
sex discrimination based on termination in violation of Title VII and the Texas Labor Code; (4)
concerted protected activity in violation of the NLRA; and (5) wrongful termination under Texas
Common Law. 	The Court further RECOMMENDS that Defendant’s Rule 12(B) Motion to
Dismiss Plaintiff’s Amended Complaint [doc. 33] be PARTIALLY DENIED as to Plaintiff’s
claims against GM for: (1) sex discrimination based on being transferred to a more physically
demanding department in violation of Title VII and the Texas Labor Code and (2) retaliation in
violation of Title VII and the Texas Labor Code.
15 The Court notes that Plaintiff, in his sur-reply, “requests leave to amend any portion deemed insufficient,
so that this matter proceeds on the merits rather than on technical grounds.” 	(Pl.’s Sur-Reply in Opposition to
Defendant General Motors LLC’s Motion to Dismiss at 2.) Plaintiff, however, does not raise any arguments in his
response or sur-reply that indicate he has not already pled his best case in his Amended Complaint. Thus, the Court
will not allow Plaintiff to file another amended complaint.
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NOTICE OF RIGHT TO OBJECT TO PROPOSED
FINDINGS, CONCLUSIONS AND RECOMMENDATION
AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific
written objections in the United States District Court to the United States Magistrate Judge’s
proposed findings, conclusions and recommendation within fourteen (14) days after the party has
been served with a copy of this document. The United States District Judge need only make a de
novo determination of those portions of the United States Magistrate Judge’s proposed findings,
conclusions and recommendation to which specific objection is timely made. 	See 28 U.S.C. §
636(b)(1). 	Failure to file, by the date stated above, a specific written objection to a proposed
factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest
injustice, from attacking on appeal any such proposed factual findings and legal conclusions
accepted by the United States District Judge. See Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. §
636(b)(1) (extending time to file objections from ten to fourteen days).
ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until December
30, 2025, to serve and file written objections to the United States Magistrate Judge’s proposed
findings, conclusions and recommendation. It is further ORDERED that if objections are filed
and the opposing party chooses to file a response, the response shall be filed within seven (7) days
of the filing date of the objections.
SIGNED December 16, 2025.
____________________________________
JEFFREY L. CURETON
UNITED STATES MAGISTRATE JUDGE
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