Moore v. Innova Solutions Inc

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANGELICA V. MOORE, 	§
§
Plaintiff, 	§
§
v. 	§ 	CIVIL ACTION NO. 3:24-CV-2181-B
§
INNOVA SOLUTIONS, INC., 	§
§
Defendant. 	§
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Innova Solutions, Inc. (“Innova”)’s Motion to Dismiss
Plaintiff’s First Amended Complaint under Rule 12(b)(6) (Doc. 15). For the reasons set forth below,
the Court GRANTS in part Innova’s Motion.
I.
BACKGROUND
This case involves an employment dispute. Moore, a Hispanic female, began working at
Diversant in June 2020 as a Director of Strategic Accounts. Doc. 14, Am. Compl., ¶ 4.01. Moore’s
compensation included her base salary and bonuses, which could total as much as 50% of her base
salary, plus “kickers for exceeding her goals.” Id. ¶ 4.05. At Diversant, Moore’s boss determined a
yearly budget and based her bonuses on that budget. Id. ¶ 4.06. Because the bonus amount was
calculated based on the yearly budget, Moore always knew how much she would receive ahead of
time. Id. Knowing that amount “was critical” to Moore because it made up a substantial portion of
her total compensation. Id. Moore always received a quarterly bonus a month after each quarter
ended. Id.
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But in 2022, Diversant was acquired by Innova. Id. ¶ 4.02. Innova is owned by an Indian
family. Id. ¶ 4.07. Moore alleges 95 percent of the new leaders Innova hired since it acquired
Diversant were Indian men. Id. Additionally, after the acquisition, Innova assigned Moore’s Indian
male peers to new supervisors and “given clear expectations of their roles and responsibilities.” Id. ¶
4.05.
Innova also assigned Moore to a new supervisor—an Indian male. Id. ¶ 4.02. Moore alleges
that her new “boss showed clear signs of lack of respect for [her] and [her] leadership, due to his
discrimination against females and non-Indians.” Id. ¶ 4.07. While he gave “similarly situated Indian
male subordinates” assistance and advice, he did not do the same for Moore. Id.
According to Moore, Innova “discriminated against [her] by not . . . giv[ing] [her] a clear
expectation about her role, responsibilities and . . . compensation.” Id. ¶ 4.04. In contrast, Moore
alleges her “Indian male similarly situated peers were given such information.” Id. ¶ 4.06. In June
2023, Moore complained to Human Resources (“HR”) about not receiving her quarter one numbers
and bonus information. Id. ¶ 4.08. Moore “also let HR know that her new boss told her that as a
non-Indian female she provided no value.” Id. In that same month, Moore received “her budget and
results for quarter one, as well as 75% of her bonus potential” but did not receive an answer on
where the numbers came from or on her quarter two numbers. Id.
The very next week, Moore was “laid off due to budget cuts.” Id. ¶ 4.09 (internal quotation
marks omitted). Moore alleges her termination was a “pretext for discrimination based on Plaintiff’s
race, non-Indian, and sex, female.” Id.
In her Amended Complaint, Moore brings discrimination claims under 42 U.S.C. § 1981
(count one), id. ¶¶ 5.01-5.05, under section 21.001 of the Texas Labor Code (the “TCHRA”) (count
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two), id. ¶¶ 6.01-6.08, and in the alternative to count one, under Title VII, 42 U.S.C. §§ 2000e et
seq. (count three), id. ¶¶ 7.01-7.06. Moore also brings claims for retaliation, harassment, and hostile
work environment under TCHRA (counts four, five, and six). Id. ¶¶ 8.01-8.05.
In response to the Amended Complaint, Innova filed its Motion to Dismiss Plaintiff’s
Amended Complaint (the “Second Motion to Dismiss”). See generally Doc. 15, Second Mot. Dismiss.
Pursuant to the Local Rules, Moore had 21 days to file a response. N.D. Tex. Civ. R. 7.1(e). That
date passed, and Moore failed to file a response. Subsequently, the Court ordered Moore to explain
why she failed to file a response to the Second Motion to Dismiss. See Doc. 16, Order, 1. In response,
Moore stated she “advised [her] counsel that she had fully responded to counsel to the best of her
ability with respect to the Defendant’s First Motion to Dismiss . . . and had nothing further to add
in response to Defendant’s Second Motion to Dismiss[.]” Doc. 17, Show Cause Resp., ¶ 1.01.
Moore’s response further stated that “[s]ince Defendant’s Second Motion to Dismiss simply recites
the allegations in the First Motion, and Plaintiff’s counsel was unable to obtain additional
information from Plaintiff, Plaintiff’s counsel elected to stand on Plaintiff’s Response” to the First
Motion to Dismiss. Id. ¶ 1.02. She therefore “re-alleged” it as a response to the Second Motion to
Dismiss. Id. ¶ 1.03. Consequently, the Court construed Moore’s Response to the First Motion to
Dismiss as her Response to the Second Motion to Dismiss. See Doc. 18, Electronic Order. Innova
then filed a reply. See generally Doc. 19, Reply. The Court considers Innova’s Second Motion to
Dismiss below.
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II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes
motions to dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be
granted.” F ED . R. CIV. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “[t]he court
accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and
citation omitted).
To survive a motion to dismiss, a 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). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “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. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this
standard, “the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id.
at 679 (citing F ED . R. CIV . P. 8(a)(2)) (citation modified).
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III.
ANALYSIS
The Court GRANTS in part Innova’s Motion to Dismiss and DISMISSES Moore’s claims
for retaliation and sexual harassment based on a hostile work environment theory (counts four, five,
and six). In contrast, Moore has plausibly alleged a claim for sex and race discrimination.
A. 	Moore Sufficiently Alleges Her Discrimination Claims.
The Court finds that Moore has sufficiently alleged discrimination based on her protected
characteristics to survive a 12(b)(6) attack.
Courts use the same framework to analyze claims for discrimination under § 1981, Title VII,
and the TCHRA. See Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir.
2017) (noting § 1981 and Title VII claims are analyzed under the same framework); Reed v. Neopost
USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (noting a Chapter 21 claim under the Texas Labor
Code is “effectively identical to Title VII” (citation omitted)). Under all three statutes, a plaintiff can
establish a discrimination claim by showing disparate treatment based on her protected class. See
Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019).
To survive a Rule 12(b)(6) motion to dismiss, “a plaintiff need not make out a prima facie
case of discrimination.” Id. (quoting Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)).
Instead, a plaintiff must “plead sufficient facts on all of the ultimate elements of a disparate
treatment claim to make [her] case plausible.” Chhim v. Univ. of Tex. at Aus., 836 F.3d 467, 470 (5th
Cir. 2016) (citations omitted). The ultimate elements of a disparate treatment claim are “(1) an
adverse employment action, (2) taken against a plaintiff because of her protected status.” Cicalese,
924 F.3d at 767 (internal quotation marks, citations, and emphasis omitted). To plead the first
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element, a plaintiff need only plausibly allege “discrimination in hiring, firing, compensation, or in
the ‘terms, conditions, or privileges’ of his or her employment.” Hamilton v. Dall. Cnty., 79 F.4th
494, 502-03 (5th Cir. 2023) (en banc) (quoting 42 U.S.C. § 2000e-2(a)(1)) (other citation omitted).
The Fifth Circuit has held that Title VII’s catchall category, “terms, conditions, or privileges of
employment” is broad. See id. at 503. But the first element requires more than just an adverse action.
The plaintiff must also allege “something more than a de minimis harm borne of that action.” Harrison
v. Brookhaven Sch. Dist., 82 F.4th 427, 431 (5th Cir. 2023) (per curiam). To plead the second element,
the plaintiff must allege facts that suggest the employer’s actions were based on the plaintiff’s
protected status—here, race or gender—or that the employer “treated similarly situated employees of
other races [or another gender] . . . more favorably.” Raj, 714 F.3d at 331.
In Hamilton, for the first time, the Fifth Circuit directly addressed discrimination in the
“terms, conditions, or privileges of employment.” Yates v. Spring Indep. Sch. Dist., 115 F.4th 414, 420
(5th Cir. 2024) (noting that prior to Hamilton, Fifth Circuit precedent required a plaintiff to show
discrimination regarding an ultimate employment decision). There, female correctional officers
brought claims against the County for sex discrimination after the County changed their shift
schedule from seniority-based to sex-based and prevented the female officers from taking both
weekend days off. Hamilton, 79 F.4th at 497. The Fifth Circuit denied the motion to dismiss and
found that the time-shifts employees are assigned to work are quintessential “terms or conditions”
of employment because they “go to the very heart of the work-for-pay arrangement.” Id. at 503.
Therefore, an allegation that the County gave “men [the] full weekends off while denying the same
to women . . . states a plausible claim of discrimination under Title VII.” Id. at 497.
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Here, Moore plausibly states a disparate treatment claim. Like the time-shifts in Hamilton,
compensation information and access to guidance from leadership “are essential terms or conditions
of employment” because they “go to the very heart of the work-for-pay arrangement.” See id. at 503.
Therefore, by distributing guidance and information to only Moore’s Indian male peers and not
Moore, Innova has plausibly denied Moore material components of her employment based on her
gender and race. See id. (“[A] benefit that is part and parcel of the employment relationship may not
be doled out in a discriminatory fashion.” (quoting Hishon v. King & Spalding, 467 U.S. 69, 75
(1984)). Furthermore, as Moore stated that timely knowing her bonus information as “critical to
her” and a significant reason why she chose the job, discrimination that denies her access to that
information is more than a “de minimis” harm.
Innova argues Moore cannot overcome the motion to dismiss standard because she failed to
name a comparator. Doc. 15, Second Mot. Dismiss, 9. But Moore does not need to allege a
comparator at this stage. See Jenkins v. City of Dal., 717 F. Supp. 3d 528, 536-37 (N.D. Tex. 2024)
(Boyle, J.). Instead, the question is “whether the factual allegations are enough to ‘nudge’ her
discrimination claim ‘across the line from conceivable to plausible.’” Id. at 537 (citing Cicalese, 924
F.3d at 768). Therefore, while naming a comparator can help “nudge” a claim “across the line,” it is
not the only way to do so. Here, the Court concludes that Moore’s allegations that her Indian male
peers received guidance and information that she did not receive are sufficient to make her racial
discrimination claim plausible
Because Moore has plausibly alleged claims for sex and race discrimination, the Court denies
Innova’s motion to dismiss those claims.
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B. 	The Court Dismisses Moore’s Retaliation Claim.
The Court dismisses Moore’s retaliation claim. To state a claim for retaliation under the
Texas Labor Code, a plaintiff must allege that “(1) she engaged in an activity protected by the [Texas
Labor Code], (2) an adverse employment action occurred, and (3) there exists a causal link between
the protected activity and the adverse action.” S.A. Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex.
2015) (citations omitted). “In . . . retaliation cases under the [TCHRA], Texas jurisprudence parallels
federal cases construing and applying equivalent federal statutes, like Title VII.” Alamo Heights Indep.
Sch. Dist. v. Clark, 544 S.W.3d 755, 781 (Tex. 2018).
In its Second Motion to Dismiss, Innova asks the Court to disregard Moore’s allegation that
she told HR that “her new boss told her that as a non-Indian female she provided no value,” because
it is a “self-serving” addition that attempts to manipulate the facts to avoid dismissal. See Doc. 15,
Second Mot. Dismiss, 13-14 (quoting Doc. 14, Am. Compl., ¶ 4.08 with added emphasis). Innova
asserts Moore did not include the “non-Indian female” language in her charge of discrimination
filed with the EEOC, her Original Complaint, or her Response to the First Motion to Dismiss (now
construed as her Response to the Second Motion to Dismiss). Id. In the prior documents, Moore
alleged she “let HR know that her new boss told her that she provided no value.” See Doc. 1, Comp.,
¶ 4.08.
In support, Innova cites to a Southern District of New York case where the court dismissed
a breach of contract claim, in part, because the plaintiff had “transparent[ly]” amended his job
description in the amended complaint from attorney to “specialist” in an attempt “to avoid [the
defendant’s] dispositive defense” that hinged on the plaintiff’s employment as an attorney. Colliton
v. Cravath, Swaine & Moore LLP, No. 08 CIV 0400 (NRB), 2008 WL 4386764, at *6 (S.D.N.Y. Sept.
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24, 2008), aff’d, 356 F. App’x 535 (2d Cir. 2009). The court held: “Where a ‘plaintiff blatantly
changes his statement of the facts in order to respond to the defendant[’s] motion to dismiss . . .
[and] directly contradicts the facts set forth in his original complaint,’ a court is authorized ‘to accept
the facts described in the original complaint as true.’” Id. (quoting Wallace v. N.Y.C. Dep’t of
Corr., No. 95 Civ. 4404, 1996 WL 586797, at *2 (E.D.N.Y. Oct. 9, 1996)).
In this Circuit, a party who fails to respond to an argument generally waives and abandons
the issue. See Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (concluding that the
plaintiff’s failure to defend a claim in response to a motion to dismiss constituted abandonment of
the claim) (citation omitted); McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1010 (5th Cir. 2023)
(“This circuit’s well-settled precedent instructs that a party abandons a claim by failing to defend it
in response to motions to dismiss and other dispositive pleadings.”); Kellam v. Metrocare Servs., No.
12-352, 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013) (Solis, J.) (“Generally, the failure to
respond to arguments constitutes abandonment or waiver of the issue.” (citations omitted)), aff’d,
560 F. App’x 360 (5th Cir. 2014); Johnson v. Dall. Cnty. Hosp. Dist., No. 3:23-CV-01574-E, 2024 WL
4394772, at *17 (N.D. Tex. Oct. 3, 2024) (Brown, J.) (same) (collecting cases).
Moore requested that the Court construe her Response to Innova’s First Motion to Dismiss
as her Response to Innova’s Second Motion to Dismiss because “Defendant’s Second Motion to
Dismiss simply recites the allegations in the First Motion.” Doc. 17, Show Cause Resp., ¶ 1.02. But
the Second Motion to Dismiss directly challenged the principal fact underlying Moore’s amended
retaliation claim. Because Moore decided to stand on her original response, she did not defend
against Innova’s new challenge and effectively conceded to Innova’s argument. Therefore, because
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Moore waived her opportunity to argue that the Court should not disregard her new allegation, the
Court dismisses the retaliation claim for failure to allege a protected activity.1
C. 	The Court Dismisses Moore’s Claim for Sexual Harassment Based on a Hostile Work Environment.
The Court dismisses Moore’s claims for sexual harassment and hostile work environment
under the TCHRA. Moore alleges “harassment and hostile environment” claims as her “fifth and
sixth counts.” Doc. 14, Am. Compl., ¶ 8. However, Innova construed Moore’s harassment-type
claims as one—namely, “a claim for sexual harassment based on a hostile work environment theory.”
See Doc. 15, Second Mot. Dismiss, 15-16. Moore describes her claim identically in her Response to
the Motion to Dismiss, which also stands as her Response to the Second Motion to Dismiss. See
Doc. 11, Resp., 6-7. Therefore, the Court construes Moore’s harassment and hostile work
environment claims as one claim for sexual harassment based on a hostile work environment theory.
To state a claim for sexual harassment based on a hostile work environment, a plaintiff must
allege “(1) she was subjected to unwelcome sexual harassment, (2) she was harassed because of her
sex, (3) the harassment was so severe or pervasive as to alter the conditions of employment and create
a hostile work environment, and (4) some basis for holding the employer liable.” Alamo Heights Indep.
Sch. Dist., 544 S.W.3d at 771. Sexual harassment includes “an unwelcome sexual advance, a request
for a sexual favor, or . . . [certain] other verbal or physical conduct of a sexual nature.” Tex. Lab.
Code § 21.141(2). “The core concept” of such a claim “is that sexual harassment has created an
environment that, through the impact it would have on the victim, can be said to discriminatorily
1 In its prior Opinion, the Court dismissed Moore’s retaliation claim because a comment from her boss that
she provided “no value” was a performance critique rather than a remark suggesting disrespect or disparate
treatment based on a protected characteristic. See Doc. 13, Mem. Op. & Order, 7-8. Therefore, Moore did
not plausibly allege her complaint to HR constituted a protected activity because it did not “alert the
employer to the employee’s reasonable belief that unlawful discrimination [was] at issue.” Alamo Heights
Indep. Sch. Dist., 544 S.W.3d at 786.
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alter a ‘term, condition, or privilege’ of employment.” Twigland Fashions, Ltd. v. Miller, 335 S.W.3d
206, 218 (Tex. App.–Austin 2010, no pet.) (emphasis and citation omitted).
The Court previously dismissed Moore’s fifth and sixth claims for sexual harassment and
hostile work environment because she failed to allege that she suffered unwelcome sexual
harassment. Doc. 13, Mem. Op. & Order, 9. In her Amended Complaint, Moore does not add any
allegations that she was subjected to unwelcome sexual harassment. As a result, Moore’s claim for
sexual harassment based on a hostile work environment is dismissed.
D. 	The Court Dismisses Moore’s Retaliation Claim and Sexual Harassment Based on a Hostile Work
Environment Claim with Prejudice.
“[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 that will avoid dismissal.” Great Plains
Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). District courts give
plaintiffs leave to amend their complaints “when justice so requires.” F ED . R. C IV. P. 15(a)(2). This
liberal standard, however, is “tempered by the necessary power of a district court to manage a case.”
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation omitted).
The Court dismisses with prejudice Moore’s claims for retaliation (count four) and sexual
harassment based on a hostile work environment (counts five and six). Moore has already been given
two opportunities to adequately plead these claims. In her order to show cause response, Moore
concedes she has “nothing further to add.” Doc. 17, Show Cause Resp., ¶ 1.01. Thus, it seems
Moore has pleaded her best case with respect to those claims. See Coleman v. Bank of N.Y. Mellon, 969
F. Supp. 2d 736, 755 (N.D. Tex. 2013) (Lynn, J.) (“Dismissal with prejudice is also appropriate if a
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court finds that the plaintiff has alleged his or her best case.” (citing Jones v. Greninger, 188 F.3d 322,
327 (5th Cir.1999))).
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part Innova’s Second Motion to Dismiss
(Doc. 15). The Court DISMISSES Moore’s claims for retaliation (count four) and sexual harassment
based on a hostile work environment (counts five and six) WITH PREJUDICE. Moore’s
discrimination claims (counts one, two, and three) will proceed.
SO ORDERED.
SIGNED: March 12, 2026.
_________________________________
JANE J. BOYLE
SENIOR UNITED STATES DISTRICT JUDGE
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