Hickman v. Mid-West Electric Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MR. LEE ARTHUR HICKMAN,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-3705
MID-WEST ELECTRIC
COMPANY,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Defendant’s Mid-West Electric Company
(“Defendant”) 12(b)(6) Motion to Dismiss for Failure to State a Claim. 	(ECF
No. 30). 	Based on a review of the motion, arguments, and relevant law, the
Court RECOMMENDS Defendant’s 12(b)(6) Motion to Dismiss for Failure to
State a Claim be GRANTED.
I. 	Background
Pro se Plaintiff Mr. Arthur Lee Hickman (“Plaintiff”), an alleged union
member of the International Brotherhood of Electrical Workers, claims that on
March 11, 2025, he was subjected to “disparate treatment” by Defendant
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. 6).
United States District Court
Southern District of Texas
ENTERED
April 16, 2026
Nathan Ochsner, Clerk
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because he was denied employment. 	(ECF No. 272 at 1–2). 	Plaintiff alleges
that he applied for a job with Defendant based on the union’s referral and was
denied employment. 	(Id. at 2). 	Plaintiff claims that he, an African American
man, was denied employment while a “Caucasian American” electrician was
allowed to continue through the in-processing procedures with Defendant.
(Id.). 	Plaintiff simply asserts that “[a] reasonable person can only conclude
that the action was a product of racial discrimination.” (Id.).
On August 8, 2025, Plaintiff filed his original complaint, asserting a
claim pursuant to 42 U.S.C. § 1981. 	(ECF No. 1 at 1). 	Plaintiff also attached
an affidavit to his original complaint that referred to Title VII of the Civil
Rights Act of 1964. 	(ECF No. 1-1 at 2). 	Later, on December 8, 2025, Plaintiff
filed an Amended Complaint again asserting a § 1981 claim. (See ECF No. 27
at 2–3). 	Plaintiff’s Amended Complaint also briefly refers to his original
complaint.3 (Id. at 6). Construing Plaintiff’s pro se filings liberally, the Court
concludes that Plaintiff incorporates his original complaint by reference.4 	As
2 Plaintiff’s Amended Complaint is docketed as a response to an order to show cause. (See
ECF No. 27).
3 In Plaintiff’s Amended Complaint, Plaintiff makes one reference to his original
complaint: “The Plaintiff’s sworn testimony given to the Court on August 8, 2025, [See Docket
Entry # 1] . . . will give a jury no problem in giving an affirmative findings [sic] in this case.”
4 See Solis v. Barber, No. 3:20-cv-765, 2022 WL 19039625, at *3 (N.D. Tex. May 4,
2022), report and recommendation adopted as modified, No. 3:20-cv-765, 2023 WL 2531486
(N.D. Tex. Mar. 15, 2023) (concluding a pro se plaintiff incorporated the exhibits attached to
an original complaint by reference where the amended complaint refers to “the file included
with this Complaint”).
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such, the Court assumes Plaintiff also intended to assert a Title VII claim in
his Amended Complaint.
II. 	Legal Standard
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) provides for dismissal
of an action for “failure to state a claim upon which relief can be granted.” F ED.
R. C IV . P. 12(b)(6). 	When considering a motion to dismiss, a court should
construe the allegations in the complaint favorably to the pleader and accept
as true all well-pleaded facts. Harrison v. Medtronic, Inc., No. 22-10201, 2022
WL 17443711, at * 1 (5th Cir. Dec. 6, 2022). 	In the Fifth Circuit, motions to
dismiss under Rule 12(b)(6) are viewed with disfavor and rarely granted.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). To survive
dismissal, a complaint must plead “enough facts to state a claim to relief that
is plausible on its face.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“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).
However, a court is not bound to accept legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of a plaintiff, a plaintiff must
plead “specific facts, not mere conclusory allegations.” 	Tuchman v. DSC
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Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also Firefighters’ Ret.
Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018) (“Although a
complaint does not need detailed factual allegations, the allegations must be
enough to raise a right to relief above the speculative level . . . .”) (internal
quotations omitted)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” 	Firefighters’ Ret.
Sys., 894 F.3d at 669 (quoting Iqbal, 556 U.S. at 678). 	“The court is not
required to conjure up unpled allegations or construe elaborately arcane
scripts to save a complaint.” 	Santerre v. Agip Petroleum Co., 45 F. Supp. 2d
558, 568 (S.D. Tex. 1999) (internal quotations omitted).
To determine whether to grant a Rule 12(b)(6) motion, a court may only
look to allegations in a complaint to determine their sufficiency. 	Santerre, 45
F. Supp. 2d at 568; Atwater Partners of Tex. LLC v. AT & T, Inc., No. 2:10-cv-
175, 2011 WL 1004880, at *1 (E.D. Tex. Mar. 18, 2011). “A court may, however,
also consider matters outside the four corners of a complaint if they are
incorporated by reference, items subject to judicial notice, matters of public
record, orders, items appearing in the record of a case, and exhibits attached
to a complaint whose authenticity is unquestioned.” 	Joubert on Behalf of
Joubert v. City of Houston, No. 4:22-cv-3750, 2024 WL 1560015, at *2 (S.D.
Tex. Apr. 10, 2024).
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“A document filed pro se is to be liberally construed, and a pro se
complaint, 	however 	inartfully 	pleaded, 	must 	be 	held 	to 	less 	stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal citations and quotation marks omitted); see also
F ED. R. C IV . P. 8(e) (“Pleadings must be construed so as to do justice”).
III. 	Discussion
Defendant moves to dismiss Plaintiff’s Amended Complaint (ECF No. 27)
for failure to state a claim upon which relief can be granted. 	(ECF No. 30).
Plaintiff did not respond to Defendant’s motion. 	Pursuant to Local Rule 7.4,
failure to respond is taken as a representation of no opposition. S.D. Tex. Local
R. 7.4. The Court construes all pro se filings liberally. See Erickson, 551 U.S.
at 94. Regardless of Plaintiff’s failure to respond to the motion to dismiss, the
Court will consider the merits of Defendant’s motion before the Court. 	See
Gonzalez v. Mongo, No. 24-cv-5145, 2025 WL 2174763, at *2 (S.D. Tex. July 31,
2025); Chilton v. Texas S. Univ., No. 4:24-cv-1646, 2024 WL 4282092, at *1
(S.D. Tex. Sep. 24, 2024) (“[W]here a party does not respond to a motion to
dismiss, such failure does not permit the Court to enter a ‘default’ dismissal.”).
a. 42 U.S.C. § 1981
Plaintiff’s Amended Complaint asserts a claim for racial discrimination
under 42 U.S.C. § 1981. 	Section 1981 states that “[a]ll persons within the
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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. at § 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
§ 1981 claims alleging racial discrimination and retaliation in the employment
contract context. 	Tabitha Pearl Ricks Civ. Action 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 discrimination concerned one or more of the activities enumerated in the
statute”—here, making 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. 	Plaintiff “must initially plead and ultimately prove that, but
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for race, [he] would not have suffered the loss of a legally protected right.”
Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 589 U.S. 327,
341 (2020); see also Simmons v. Triton Elevator, LLC, No. 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.”) (quotations
and alterations omitted).
Here, Plaintiff successfully pleads the first element of a § 1981 claim that
he is a member of a racial minority by alleging that he is an “African-
American.” (ECF No. 27 at 2); Body by Cook, 869 F.3d at 386 (finding the first
element of a § 1981 claim satisfied by plaintiff’s pleading that they are African
American). 	Plaintiff also successfully pleads the third element of a section
1981 claim, that the discrimination concerned one or more of the activities
enumerated in the statute. 	Ricks, 2019 WL 3858950, at *5 (finding that an
employment contract is an activity enumerated in section 1981). 	Namely,
Plaintiff alleges that he was unable to create an employment contract. 	Id.;
(ECF No. 27).
However, Plaintiff fails to successfully plead the second element of a §
1981 claim. 	To state a discrimination claim under § 1981, a plaintiff must
allege facts in support of “an intent to discriminate on the basis of race.” 	Green
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v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994). Here, there are no such
facts in the Amended Complaint, the Original Complaint, or the attachments
to Plaintiff’s Original Complaint.5 (See ECF No. 27; see also ECF Nos. 1, 1-1).
Plaintiff alleges that he was denied an interview and given no explanation as
to why. 	(Id. at 2). 	He also alleges he witnessed that a white individual was
hired after Plaintiff was denied employment. 	(Id. at 6). 	Plaintiff asserts “[a]
reasonable person can only conclude that [denying Plaintiff employment] was
a product of racial discrimination.” 	(Id. at 2; see also ECF No. 1-1 at 2).
Ultimately, 	Plaintiff’s 	allegations 	are 	precisely 	the 	types 	of 	conclusory
allegations that are insufficient to support a section 1981 claim for racial
discrimination. 	See Marrone v. Tex. Mun. Power Agency, No. 4:19-cv-4400,
2021 WL 243899, at *2 (S.D. Tex. Jan. 25, 2021) (dismissing for failure to
amend pro se pleadings to include enough facts beyond conclusory allegations).
An allegation that a similarly situated non-minority applicant received
better treatment “could create the necessary inference and set the predicate
for establishing the section 1981 claim.” Pullins v. Hancock Whitney Bank, 512
F. Supp. 3d 647, 659 (M.D. La. 2021). However, to establish that inference, the
plaintiff must plead facts to show that the minority applicant and non-minority
5 In fact, Plaintiff theorizes in the affidavit attached to his Original Complaint that
another conclusion as to why he was not hired could be because other companies coerced
Defendants not to hire Plaintiff. (See ECF No. 1-1 at 2).
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applicant are similarly situated. 	Id. 	In the Fifth Circuit, “similarly situated”
means the comparators’ circumstances must be “nearly identical.” See Brown
v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F. Supp. 2d 581, 593 (S.D. Tex.
2012) (quoting Perez v. Tex. Dep’t of Crim. Justice, 395 F.3d 206, 212 (5th Cir.
2004)).
Here, Plaintiff fails to identify how he and the white individual were
similarly situated or whether there were any material differences between the
two—aside from race. 	(See ECF No. 27). 	As such, Plaintiff has not pled that
the two comparators are similarly situated in any respect or that Defendant
intended to discriminate on the basis of race. Accordingly, the Court finds that
Plaintiff’s allegations of racial discrimination are conclusory, and, therefore,
do not satisfy the burden of proving intent to discriminate. As such, the Court
recommends Plaintiff’s claim for racial discrimination under 42 U.S.C. § 1981
be dismissed with prejudice.
b. Title VII
To the extent Plaintiff also intended to allege a Title VII claim, he has
failed to allege that he timely exhausted his administrative remedies before
filing his action in federal court. See Taylor v. Books A Million, Inc., 296 F.3d
376, 378–79 (5th Cir. 2002) (explaining that, before an individual can pursue
a Title VII claim in federal court, they must timely exhaust their available
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administrative remedies). 	Because Plaintiff has failed to allege that he has
met the precondition for filing suit by exhausting his administrative remedies,
his Title VII claim should be dismissed without prejudice. See Cobb v. Kendall,
No. 3:22-cv-1867, 2023 WL 4534955, at *9 (N.D. Tex. June 28, 2023), report
and recommendation adopted, No. 3:22-cv-1867, 2023 WL 4533676 (N.D. Tex.
July 13, 2023).
IV. 	Leave to Amend
“[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 the plaintiffs advise the court that they are unwilling or
unable to amend in a manner which will avoid dismissal.” Great Plains Tr. Co.
v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
However, Plaintiff has already amended his complaint on one occasion. (ECF
No. 27). 	Further, because Plaintiff failed to file a response to Defendant’s
Motion to Dismiss, Plaintiff does “not state what facts they would provide to
address the deficiencies in their First Amended Complaint.” 	Garcia v. Harris
Cnty., No. 22-cv-198, 2022 WL 2230469, at *4 (S.D. Tex. June 2, 2022), report
and recommendation adopted, No. 22-cv-198, 2022 WL 2222972 (S.D. Tex.
June 21, 2022). 	Thus, Plaintiff appears “unwilling or unable to amend in a
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manner that will avoid dismissal.” 	Great Plains Tr. Co., 313 F.3d at 329. 	As
such, the Court recommends that Plaintiff not be given leave to amend.
V. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Defendant’s 12(b)(6)
Motion to Dismiss for Failure to State a Claim (ECF No. 30) be GRANTED.
The 	Court 	FURTHER 	RECOMMENDS 	Plaintiff’s 	claim 	for 	racial
discrimination under 42 U.S.C. § 1981 be DISMISSED WITH PREJUDICE
and his Title VII claim be DISMISSED WITHOUT PREJUDICE. 	The Court
FURTHER RECOMMENDS Plaintiff’s Motion to Compel Discovery (ECF
No. 31) be DENIED AS MOOT.
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 16, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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