Dixon v. Allied Universal Security Services

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J ARIA D IXON, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL A CTION N O. 4:25-cv-05519
§
A LLIED U NIVERSAL SECURITY 	§
SERVICES, 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
Before the Court is Defendant’s1 Motion to Dismiss.2 ECF 20. 	Defendant
seeks dismissal under Rule 12(b)(6) for failure to state a claim. 	For the reasons
outlined 	below, 	the 	Court 	RECOMMENDS 	that 	Defendant’s 	Motion 	be
GRANTED.
I. 	Factual and Procedural Background.
This is an employment discrimination case in which Plaintiff makes the
following allegations. Plaintiff began working for Defendant as an armed security
officer in 2022. ECF 15 at 2. In April 2024, while she was posted at HEB, an HEB
representative asked for her home address; Plaintiff refused the request. 	Id. at 2-3.
1 Defendant claims the Amended Complaint incorrectly names it as Allied Universal Security
Services. Defendant represents its correct name is Universal Protection Service, LP d/b/a Allied
Universal Security Services. ECF 20 at 1 n.1.
2 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 4.
United States District Court
Southern District of Texas
ENTERED
July 28, 2026
Nathan Ochsner, Clerk
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In May 2024, her account manager, Andrea Brown,3 told Plaintiff she did not
deserve to be in an elite training program and manipulated Plaintiff’s schedule to
hinder her advancement. 	Id. Plaintiff alleges Brown showed favoritism to another
employee with whom Brown had a personal relationship. Id.
Plaintiff’s security license temporarily expired in July 2024, requiring her to
be out of work until it was renewed in August 2024. 	Id. 	Plaintiff claims Brown
originally said she could return to her previous post but later reassigned her
elsewhere, 	stating 	that 	HEB 	Human 	Resources 	alleged 	Plaintiff 	engaged 	in
inappropriate behavior. Id.
Plaintiff was assigned to her new post in September 2024. 	Id. at 3. Around
the same time, Plaintiff complained about the HEB incident to a male Area Director,
who dismissed her report. 	Id. 	Plaintiff requested full-time hours, and a different
male manager denied the request and criticized it as “too direct.” Id. 	Plaintiff was
later assigned a 40-hour workweek. Id. While at her new post, she took a combined
break due to heat exposure. 	Id. 	Plaintiff claims a different male Area Director
subsequently removed her from the work schedule and demoted her. Plaintiff filed
a 	charge 	with 	the 	Texas 	Workforce 	Commission 	(“TWC”) 	and 	the 	Equal
3 Plaintiff variously describes Brown as “presenting male” and female. ECF 15 at 2; ECF 20-1 at
2.
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Employment Opportunity Commission (“EEOC”), received a Right to Sue letter,
and sought relief in this Court.
In February 2026, Plaintiff filed her Amended Complaint alleging gender
discrimination and retaliation under Title VII and the Texas Labor Code. ECF 15.
Defendant filed a Motion to Dismiss. ECF 20. Plaintiff filed a Response (ECF 21),
to which Plaintiff replied. ECF 22.
II. 	Legal Standards.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “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 conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court “accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”
Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017) (citing
Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004)). However, the court does not apply the same presumption to conclusory
statements or legal conclusions. Iqbal, 556 U.S. at 678-79.
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Generally, the court may consider only the allegations in the complaint and
any attachments thereto in ruling on a Rule 12(b)(6) motion. If a motion to dismiss
refers to matters outside the pleading, it is more properly considered as a motion for
summary judgment. See FED. R. CIV. P. 12(d). However, the court may take judicial
notice of public documents and may also consider documents a defendant attaches
to its motion to dismiss under 12(b)(6) if the documents are referenced in the
plaintiff’s complaint and central to the plaintiff’s claims. See Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498-99 (5th Cir. 2000); King v. Life Sch., 809 F. Supp. 2d 572, 579
n.1 (N.D. Tex. 2011).
III. 	Analysis.
Plaintiff’s Amended Complaint brings claims for gender discrimination and
retaliation pursuant to Title VII (42 U.S.C. § 2000e et seq.) and the Texas Labor
Code (T EX. L AB. CODE § 21.001 et seq.). ECF 15 at 3-4. The Amended Complaint
and Plaintiff’s EEOC charge mention sexual harassment (id. at 1; ECF 20-1), but
she has only specifically pleaded causes of action for gender discrimination and
retaliation. ECF 15 at 3-4. Nonetheless, the Court liberally construes the Amended
Complaint as bringing a claim for sexual harassment.
“Courts apply the same standards when analyzing claims under Title VII and
Chapter 21 of the Texas Labor Code.” Mott v. Schneider Elec. Sys., USA, Inc., No.
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4:24-CV-3084, 2025 WL 1549461, at *2 (S.D. Tex. May 30, 2025) (citing Pineda
v. United Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004). See also Folorunso
v. CVS Pharmacy, Inc., No. CV H-08-2649, 2009 WL 10711872, at *4, *5 n.4 (S.D.
Tex. Oct. 16, 2009) (noting connection between the federal and state statutes and
explaining Title VII cases may be cited as precedent when analyzing Texas Labor
Code employment discrimination claims). 	Plaintiff’s state-law and federal-law
claims are based on the same alleged conduct. 	Therefore, the Court concurrently
analyzes the claims. See Harrison v. Corr. Corp. of Am., 476 F. App’x 40, 42 (5th
Cir. 2012) (affirming district court’s concurrent analysis of Title VII and Chapter 21
claims and applying the same approach).
A. Plaintiff has failed to state claims under Title VII and Chapter 21
of the Texas Labor Code.
1. Plaintiff has failed to state a claim for gender discrimination.
To establish a prima facie case for sex discrimination, Plaintiff must plead
facts demonstrating that: “(1) she is a member of a protected class; (2) she was
qualified for the position she sought; (3) she suffered an adverse employment action;
and (4) others similarly situated but outside the protected class were treated more
favorably.” 	Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 997–98 (5th
Cir. 2022). To satisfy the similarly situated prong, a plaintiff must “identify at least
one coworker outside of [her] protected class who was treated more favorably under
nearly identical circumstances.” Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426
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(5th Cir. 2017) (internal quotation marks omitted). When considering whether the
coworker, 	or 	comparator, 	is 	similarly 	situated, 	the 	Court 	considers 	job
responsibilities, experience, qualifications, history of infringements, and supervisor,
among other factors. Saketkoo, 31 F.4th at 998; Alkhawaldeh, 851 F.3d at 426.
Plaintiff alleges Defendant treated her differently due to her gender, including
demoting her and taking other adverse actions. ECF 15 at 3. In her Response, she
identifies Brown and other male employees who were treated more favorably as
similarly situated comparators. 	ECF 21 at 4. 	However, all the male colleagues
Plaintiff identifies are her superiors, so they are not similarly situated: Brown
(account 	manager), 	Thomas 	Lowry 	(Area 	Director), 	and 	Justin 	Odell 	(Area
Director). ECF 15 at 2-3; ECF 21 at 1-3. Therefore, Plaintiff has failed to identify
a similarly situated male comparator. 	The only potentially similarly situated
coworker mentioned in the pleadings is Christina Richards, a female. 	Even so,
Plaintiff claims Richards received differential treatment based on a personal
relationship with Brown, not on the basis of gender. ECF 15 at 2.
Plaintiff fails to allege facts constituting direct evidence of discriminatory
animus. 	See West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir.
2003) (explaining direct evidence is evidence that if believed, would prove
discriminatory animus without inference or presumption, e.g., a statement providing
a blatantly discriminatory basis for an employment action). 	Furthermore, none of
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the pleaded facts support an inference that the alleged adverse actions were the result
of sex discrimination. Plaintiff’s claims for sex discrimination under Title VII and
Chapter 21 of the Texas Labor Code should be dismissed.
2. Plaintiff has failed to state a claim for sexual harassment.
“There are two types of sexual harassment under Title VII: quid-pro-quo and
hostile-environment harassment.” 	Newbury v. City of Windcrest, Texas, 991 F.3d
672, 675 (5th Cir. 2021) (emphasis in original). 	A quid-pro-quo claim requires a
plaintiff to plead sexual harassment, a tangible employment action, and a nexus
showing the tangible employment action was the result of the plaintiff accepting or
rejecting the sexual harassment. Casiano v. AT&T Corp., 213 F.3d 278, 283–84 (5th
Cir. 2000). A hostile work environment claim requires a showing that “(1) [plaintiff]
is a member of a protected group; (2) she was the victim of uninvited sexual
harassment; (3) the harassment was based on sex; (4) the harassment affected a term,
condition, or privilege of [plaintiff’s] employment; and (5) her employer knew or
should have known of the harassment and failed to take prompt remedial action.”
Arredondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 435 (5th Cir. 2023) (cleaned
up).
Plaintiff does not specify a theory of sexual harassment, but her allegations
are insufficient to support either type of claim. In her Amended Complaint, Plaintiff
merely 	alleges 	that 	Plaintiff 	experienced 	“inappropriate 	conduct 	from 	a
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representative of HEB,” who requested her home address. 	ECF 15 at 2. 	In her
EEOC charge, Plaintiff alleges a female HEB employee was sexually harassing her.
ECF 20-1 at 2. 	These allegations are vague and conclusory. 	Even assuming a
tangible employment action, none of the alleged facts demonstrate the required
nexus. 	Alternatively, Plaintiff failed to show the harassment was based on sex or
that the harassment affected a term or condition of her employment. Therefore, even
under the most liberal construction of her pleading, Plaintiff has failed to state a
claim for sexual harassment under Title VII or Chapter 21 of the Texas Labor Code.
3. Plaintiff has failed to state a claim for retaliation.
To make out a prima facie case of retaliation, a plaintiff must demonstrate (1)
she engaged in protected activity; (2) the employer took an adverse employment
action against her; and (3) a causal connection exists between the protected activity
and the adverse employment action. Aryain v. Wal-Mart Stores LP, 534 F.3d 473,
484 (5th Cir. 2008). 	Protected activity includes opposing any practice Title VII
makes unlawful or making a charge, testifying, assisting, or participating in an
investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a). An
adverse employment action is any action that could dissuade a reasonable worker
from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006).
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Plaintiff alleges she engaged in protected activity by reporting discrimination,
including a written statement about Brown, a complaint to the Area Director about
the HEB incident, and an email to Human Resources about the break incident and
demotion. ECF 15 at 2-4.
Plaintiff fails to adequately plead that she engaged in protected activity
because the pleaded facts do not demonstrate her complaints were related to conduct
made unlawful under Title VII. See Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir.
2015) (explaining that vague complaints not referencing unlawful conduct under
Title VII do not constitute protected activity). 	The Amended Complaint neither
identifies the contents of Plaintiff’s alleged written statement about Brown nor to
whom she made the complaint. Similarly, Plaintiff fails to allege she complained to
the Area Director conduct that is unlawful under Title VII. ECF 15 at 3. 	See also
Tratree v. BP N. Am. Pipelines, Inc., 277 F. App’x 390, 395 (5th Cir. 2008)
(explaining 	that 	complaining 	about general unfair treatment is not protected
activity). Therefore, Plaintiff has failed to plead she engaged in protected activity,
a required element of her retaliation claims.
B. Leave to amend should be denied.
Although leave to amend should be freely given (F ED. R. CIV. P. 15(a)(2)), it
can be denied for an appropriate reason “such as undue delay, bad faith or dilatory
motive on 	the 	part 	of 	the movant, 	repeated 	failure to 	cure 	deficiencies 	by
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amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S.
178, 182 (1962).
Defendant seeks dismissal of Plaintiff’s claims and denial of leave to amend.
ECF 20 at 9-10. 	Defendant argues amendment is futile because Plaintiff’s Texas
Labor Code claims are time-barred and she has already had an opportunity to cure
pleading deficiencies and failed to do so. Id. at 9. In her Response, Plaintiff did not
request leave to amend.
At least some of Plaintiff’s Texas Labor Code claims are time-barred,4 so
leave to amend those claims is futile. See Newby v. Enron Corp., 542 F.3d 463, 469
(5th Cir. 2008) (noting that a court need not grant leave to amend when claims are
time-barred because amendment would be futile). 	Furthermore, leave to amend
4 Discrimination claims under the Texas Labor Code are subject to an administrative exhaustion
requirement: plaintiffs must first file an administrative complaint with the TWC prior to bringing
a complaint in court. TEX. LAB . C ODE § 21.201; Hinkley v. Envoy Air, Inc., 968 F.3d 544, 552 (5th
Cir. 2020) (explaining the TLC’s administrative exhaustion requirement). 	Administrative
complaints must be filed with the TWC within 180 days of the alleged discrimination, unless the
complaint alleges sexual harassment, which has a 300-day statute of limitations. TEX. LAB . C ODE
§ 21.202. The statutes of limitations apply to claims individually, so Texas Labor Code claims for
sex discrimination and retaliation have a 180-day limit even if pleaded alongside a claim for sexual
harassment with a 300-day limit. See Lopez v. AT&T Mobility Servs. LLC, 767 F. Supp. 3d 406,
422 (W.D. Tex. 2025), reconsideration denied, No. EP-24-CV-180-KC, 2025 WL 4954308 (W.D.
Tex. Apr. 7, 2025).
Plaintiff filed her charge on July 28, 2025. ECF 20-1 at 2. Therefore, Plaintiff’s Texas-
law claims for sex discrimination and retaliation were not timely exhausted because none of the
alleged conduct occurred within 180-days of filing the administrative charge. 	ECF 21 at 2-3.
Assuming Plaintiff pleaded a sexual harassment claim, it might not be time-barred depending on
when the action accrued but nevertheless is subject to dismissal as noted above.
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should be denied as to all claims because Plaintiff failed to cure the same deficiencies
previously identified in Defendant’s Motion for Judgment on the Pleadings. 	ECF
12 at 7-8. 	The prior motion which specifically identified Plaintiff’s failure to
identify similarly situated comparators and protected activity. Id. Plaintiff failed to
cure those deficiencies in her Amended Complaint. Plaintiff has had an opportunity
to plead her best case and therefore, further amendment is futile.
IV. 	Conclusion and Recommendation.
For the reasons stated above, the Court RECOMMENDS that Defendant’s
Motion (ECF 20) be GRANTED and Plaintiff’s claims be DISMISSED without
leave to amend.
The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on July 27, 2026, at Houston, Texas.
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