Hickman v. Powell Industries, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LEE ARTHUR HICKMAN,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-2696
POWELL INDUSTRIES, INC.,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Defendant Powell Industries, Inc.’s (“Powell
Industries”) Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 28)
and Plaintiff Lee Arthur Hickman’s (“Plaintiff”) Motion to Compel Discovery
(ECF No. 29). 	The Court has considered the motions, all relevant filings, and
the applicable law. For the reasons below, the Court RECOMMENDS Powell
Industries’ Motion to Dismiss (ECF No. 28) be GRANTED, Plaintiff’s action
be 	DISMISSED 	WITH 	PREJUDICE, 	and 	Plaintiff’s 	Motion 	to 	Compel
Discovery (ECF No. 29) be DENIED.
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 4).
United States District Court
Southern District of Texas
ENTERED
April 20, 2026
Nathan Ochsner, Clerk
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I. 	Background
On June 10, 2025, Plaintiff filed this civil action pro se, pursuant to 42
U.S.C. §§ 1981 and 1981a(b)(1),2 claiming Powell Industries subjected him to
“disparate 	treatment” 	by 	“creating 	a 	hostile 	work 	environment 	through
harassment due to racial discrimination.” 	(ECF No. 1 at 1–3). 	On August 1,
2025, Powell Industries filed a motion to dismiss, arguing that Plaintiff’s
section 1981 claims should be dismissed for failure to state a claim under
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) because the alleged conduct
did not amount to a hostile work environment nor did his claims plausibly
allege discriminatory intent. (ECF No. 12).3 Plaintiff filed a response opposing
dismissal. 	(ECF 	No. 	13). 	On 	December 	8, 	2025, 	the 	Court 	issued 	a
Memorandum and Recommendation recommending the District Judge grant
the motion to dismiss and dismiss the action without prejudice for failure to
state a claim, specifically finding that Plaintiff failed to allege facts supporting
intentional discrimination, race-based harassment, or but-for causation. (ECF
2 Plaintiff cited “42 U.S.C. § 1981(b)(1);” however, because section 1981 does not
contain subsection (b)(1), and Plaintiff seeks punitive damages (see ECF No. 1 at 5; ECF No.
13 at 3–4), the Court assumes Plaintiff intended to reference section 1981a(b)(1) (determining
punitive damages for cases of intentional discrimination in employment).
3 Powell Industries also asserted that any Title VII claims should be dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) because Plaintiff failed to exhaust
administrative remedies by failing to file a charge with the Equal Employment Opportunity
Commission (“EEOC”). (ECF No. 12). In response, Plaintiff clarified his lawsuit was brought
under 42 U.S.C. §§ 1981, 1981a(b)(1), not Title VII. (ECF No. 13 at 2).
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No. 25). 	The Court further recommended the District Judge grant Plaintiff
leave to amend, with his amended complaint due by December 30, 2025. (Id.).
On December 15, 2025, Plaintiff filed a document styled as an amended
complaint. 	(ECF No. 26). 	On December 23, 2025, Powell Industries filed the
instant renewed Motion to Dismiss. (ECF No. 28).
On January 22, 2026, the District Judge entered an Order construing
Plaintiff’s 	filing 	as 	objections, 	overruled 	them, 	and 	adopted 	the 	prior
Memorandum and Recommendation. 	(ECF No. 30). 	The District Judge
reserved determination as to whether dismissal should be with prejudice and
referred the matter to the Undersigned in light of Powell Industries’s renewed
Motion to Dismiss. (Id.).
Powell Industries now moves to dismiss Plaintiff’s Amended Complaint,
arguing that Plaintiff failed to cure the deficiencies previously identified and
that dismissal with prejudice is warranted. 	(Id.). 	Plaintiff has also filed a
Motion to Compel Discovery. (ECF No. 29). Powell Industries filed a response
to the motion to compel (ECF No. 31), and Plaintiff filed a reply (ECF No. 32).
II. 	Legal Standard
A. Motion to Dismiss
Rule 12(b)(6) allows a defendant to move to dismiss a complaint based
on “failure to state a claim upon which relief can be granted.” 	FED. R. C IV . P.
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12(b)(6). 	To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” 	Id. 	A
plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do. Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
Factual 	allegations 	must 	be 	enough 	to 	raise 	a 	right 	to 	relief 	above 	the
speculative level. Id.
In reviewing a Rule 12(b)(6) motion, a court must accept “all well-pleaded
facts as true and view[] those facts in the light most favorable to the plaintiff.”
True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) (quoting Stokes v. Gann, 498
F.3d 483, 484 (5th Cir. 2007)). 	However, a court is not bound to accept legal
conclusions couched as factual allegations. 	Papasan v. Allain, 478 U.S. 265,
286 (1986). “Pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers but are nonetheless insufficient if they contain
only labels and conclusions, or a formulaic recitation of the elements of a cause
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of action.” 	Ganheart v. Brown, 740 F. App’x 386, 389 (5th Cir. 2018) (citation
modified).
B. 42 U.S.C. § 1981
42 U.S.C. § 1981 states that “[a]ll persons within the jurisdiction of the
United States shall have the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This right includes “the
making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” 	Id. § 1981(b); see Domino’s Pizza, Inc. v. McDonald, 546 U.S.
470, 479–80 (2006) (holding that a plaintiff cannot state a claim under § 1981
unless he has (or would have) rights under the existing (or proposed) contract
that he wishes “to make and enforce”).
Section 1981 applies in the employment context and is “a means of
punishing employers who discriminate on the basis of race.” 	Carroll v. Gen.
Accident Ins. Co. of Am., 891 F.2d 1174, 1176 (5th Cir. 1990). Courts recognize
section 	1981 	claims 	alleging 	racial 	discrimination 	and 	retaliation 	in 	the
employment contract context. Ricks v. Friends of WWOZ, Inc., No. 18-cv-9767,
2019 WL 3858950, at *5 (E.D. La. Aug. 15, 2019). To establish a § 1981 claim,
plaintiffs must allege that “(1) they are members of a racial minority; (2)
[d]efendants 	intended 	to 	discriminate 	on 	the 	basis 	of 	race; 	and 	(3) 	the
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discrimination concerned one or more of the activities enumerated in the
statute”—e.g., 	making 	or 	enforcing 	a 	contract, 	including 	an 	employment
contract. 	Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386
(5th Cir. 2017); Ricks, 2019 WL 3858950, at *5.
To state a prima facie case for racial harassment that created a hostile
work environment, the plaintiff must establish the employee belongs to a
protected group; the employee was subjected to unwelcome harassment; the
harassment complained of was based on race; the harassment complained of
affected a term, condition or privilege of employment; and the employer knew
or should have known of the harassment in question and failed to take prompt
remedial action. Miller v. Wachovia Bank, N.A., 541 F. Supp. 2d 858, 868 (N.D.
Tex. 2008). 	For these § 1981 claims, “a plaintiff must initially plead and
ultimately prove that, but for race, [he] would not have suffered the loss of a
legally protected right.” Badaiki v. Schlumberger Holdings Corp., No. 4:20-cv-
2216, 	2021 	WL 	6010580, 	at 	*5 	(S.D. 	Tex. 	Aug. 	23, 	2021), 	report 	and
recommendation adopted, No. 4:20-cv-02216, 2021 WL 5542144 (S.D. Tex. Nov.
26, 2021), and report and recommendation adopted, No. 4:20-cv-02216, 2021
WL 5769276 (S.D. Tex. Dec. 6, 2021).
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III. 	Discussion
A. Plaintiff’s Amended Complaint Fails to Cure the Pleading
Deficiencies
Plaintiff’s 	amended 	pleading 	does 	not 	significantly 	differ 	from 	his
original complaint. 	Plaintiff repeats the same allegations that supervisors
monitored him, falsely “accused him of violating company policies,” and treated
“foreign nationals” more favorably, without adding any factual content linking
the alleged conduct to racial animus. (ECF No. 26 at 2).
As previously explained, conclusory assertions of unfair treatment or
preferential treatment are insufficient to state a claim under § 1981. To state
a discrimination claim under section 1981, a plaintiff must allege facts in
support of “an intent to discriminate on the basis of race.” 	Green v. State Bar
of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994). 	Plaintiff, however, fails to allege
any facts suggesting that the alleged conduct was based on race. 	He does not
allege racial comments, discriminatory statements, or facts showing that
similarly situated employees outside his protected class were treated more
favorably under comparable circumstances.
Similarly, Plaintiff also does not allege facts sufficient to support a
hostile work environment claim. 	To state a hostile work environment claim
under § 1981, a plaintiff must allege facts to support that “the harassment
complained of was based on race.” 	Miller, 541 F. Supp. 2d at 868. 	The
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allegations of Plaintiff’s supervisors “follow[ing] him around,” “accus[ing] him
of violating company policies, namely fraternizing with other employees,” and
“ignor[ing] when foreign nationals from [the supervisors’] own countries were
actually violating that . . . policy” does not rise to the level of severe or pervasive
harassment, and Plaintiff again fails to connect such conduct to his race. (ECF
No. 26 at 2). 	Plaintiff’s reliance on generalized assertions that “foreign
nationals” were treated differently remains insufficient. 	Such allegations do
not establish racial discrimination or demonstrate that race motivated the
alleged conduct. Put differently, Plaintiff fails to allege his supervisors’ actions
toward him “carried any racial connotation or motivation.” Badaiki, 2021 WL
6010580, at *5; see also Simmons v. Triton Elevator, LLC, No. 3:19-cv-1206,
2020 WL 7770245, at *3 (N.D. Tex. Dec. 30, 2020) (“[Plaintiff] has the burden
of pleading facts that, taken as true, permit the Court to infer ‘that race was a
but-for cause of [his] injury’ in order to sustain his § 1981 discrimination
claim.”).
In short, Plaintiff’s amended complaint offers no new factual allegations
that would allow the Court to draw a reasonable inference of intentional race
discrimination 	or 	a 	hostile 	work 	environment 	based 	on 	his 	race. 	The
deficiencies identified in the Court’s prior Memorandum and Recommendation
remain uncured.
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B. Plaintiff is Not Entitled to Discovery Absent a Plausible
Claim
Plaintiff argues that dismissal is premature because he has not been
afforded the opportunity to conduct discovery. 	(ECF No. 26 at 3–5). 	This
argument lacks merit. See Jackson v. City of Hearne, Texas, 959 F.3d 194, 202
(5th Cir. 2020) (“To get to discovery, [Plaintiff] must allege sufficient facts in
his complaint to state a plausible claim for relief. 	‘Because [Plaintiff’s]
complaint is deficient under Rule 8, he is not entitled to discovery, cabined or
otherwise.’” (citing Ashcroft, 556 U.S. at 678–79, 686)); Mohamed for A.M. v.
Irving Indep. Sch. Dist., 300 F. Supp. 3d 857, 880 (N.D. Tex. 2018), aff’d sub
nom. Mohamed as Next Friend for A.M. v. Irving Indep. Sch. Dist., 758 F. App’x
352 (5th Cir. 2019) (unpublished) (granting motion to dismiss plaintiff’s section
1983 equal-protection claim after concluding he failed to cure the pleading
deficiencies previously pointed out by the court, where the court noted that
“[b]efore proceeding to discovery, a plaintiff must plead enough facts to state
a plausible claim for relief”). Because Plaintiff has failed to meet the pleading
standard, his request for discovery cannot salvage his claims. 	Accordingly,
Plaintiff’s Motion to Compel Discovery (ECF No. 29) should be denied.4
4 Additionally, as Powell Industries notes, Plaintiff did not properly serve discovery
requests prior to filing his motion. (ECF No. 31 at 1). This provides an independent basis
for denial.
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C. Leave to Amend Would be Futile
The remaining question is whether dismissal should be with prejudice.
The Court concludes that it should.
Plaintiff was advised of the deficiencies in his original complaint and was
afforded an opportunity to amend. (See ECF No. 25). However, Plaintiff failed
to add any factual allegations addressing the identified defects. 	Instead, he
repeats the same conclusory assertions and focuses on arguments regarding
discovery. 	Dismissal with prejudice is appropriate where a plaintiff has been
given an opportunity to amend and fails to cure the deficiencies. See Galynsky
v. Thomas, No. 24-cv-202, 2024 WL 6884340, at *4 (S.D. Tex. Nov. 19, 2024),
aff’d, No. 24-20559, 2025 WL 2945814 (5th Cir. Oct. 17, 2025) (“The dismissal
is with prejudice because [Plaintiff] has been given the opportunity to amend
his allegations, and he failed to cure the many deficiencies in his complaint.”)
Plaintiff’s failure to provide additional factual support demonstrates that
“[f]urther amendment would be futile.” 	Id. at *4–5 (dismissing action with
prejudice 	for 	failure 	to 	state 	a 	claim 	where 	the 	court 	gave 	plaintiff 	an
opportunity to provide additional facts concerning alleged incidents of religious
discrimination, but his response contained no facts other than those contained
in his initial complaint).
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IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Powell Industries’s
Motion 	to 	Dismiss 	Plaintiff’s 	Amended 	Complaint 	(ECF 	No. 	28) 	be
GRANTED, Plaintiff’s action be DISMISSED WITH PREJUDICE, and
Plaintiff’s Motion to Compel Discovery (ECF No. 29) be DENIED.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on April 20, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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