Sellers v. Houston Area Women's Center

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MCKINSEY SELLERS,
Plaintiff,
v.
HOUSTON AREA WOMEN’S CENTER,
Defendant.
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CIVIL ACTION NO. H-25-4445
MEMORANDUM AND OPINION
McKinsey Sellers worked at the Houston Area Women’s Center, which serves women,
children, and families escaping domestic violence, sexual assault, and sex trafficking. Sellers, a
60-year-old Black man, was a maintenance worker at the Center from February 2022 to November
2024, when he was fired. Sellers’s first amended complaint asserts ten different causes of action
against the Center based on his termination. 	The Center has moved to dismiss and to strike
Sellers’s response to the motion to dismiss. (Docket Entry Nos. 3, 6). After Sellers missed the
court’s deadline to file an amended pleading, (Docket Entry No. 19), the Center moved to reurge
the motion to dismiss, (Docket Entry No. 20). Sellers then filed a motion for leave to file a second
amended complaint, (Docket Entry No. 21), which the Center opposed, (Docket Entry No. 23).
Based on the motions, the pleadings, and the applicable law, the court grants the motion to dismiss,
denies the motion to strike, denies as moot the motion to reurge the motion to dismiss, and denies
the motion for leave to file a second amended complaint. This case is dismissed, with prejudice,
because further leave to amend would be futile. The reasons for these rulings are set out below.
United States District Court
Southern District of Texas
ENTERED
May 15, 2026
Nathan Ochsner, Clerk
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I. 	Background
Sellers began working at the Center in February 2022. 	(Docket Entry No. 1-3 at 36). 1
During his roughly two-and-one-half years of employment at the Center, Sellers received a “merit-
based” increase in his salary. (Id.). Sellers asserts that he was “frequently instructed to perform
tasks outside of his maintenance job description,” including transporting clients and employees to
off-site events. (Id.). Sellers states that he also repeatedly told the Center about various security
issues on the property, such as malfunctioning locks, and that the Center “failed to address these
hazards.” (Id. at 37). He notes that he was one of only two male maintenance staff working in a
predominantly female facility serving survivors of abuse and asserts that the Center “failed to
implement basic safeguards,” such as requiring escorts for male staff in sensitive areas until after
his termination. (Id.).
On October 31, 2024, Sellers was “abruptly placed on administrative leave” without a
formal explanation. (Id. at 38). He found out that a resident had accused him of sexual assault.
(Id.). He states that this claim was physically and factually impossible and that the Center should
have reviewed surveillance footage and keycard access systems that would have exonerated him,
“yet no review or transparency regarding this evidence was provided.” (Id.). Sellers voluntarily
provided a DNA sample to the Houston Police Department. (Id.). On November 26, 2024, the
Center terminated Sellers, despite no charges being filed. (Id.). The only other male maintenance
worker had also been placed on leave but was promptly reinstated. (Id.).
Sellers also alleges that in connection with the administrative appeal of his eligibility for
unemployment benefits, the Center’s representatives “made knowingly false statements” to the
1 The facts are taken from the first amended complaint, which is the operative complaint. Because both the
original complaint and the amended complaint are included in a single combined exhibit attached to the
notice of removal, the court uses page numbers rather than paragraph numbers when referencing the facts.
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Texas Workforce Commission, suggesting that he had violated company policies by performing
non-maintenance tasks, even though management had directed him to do so. (Id.). He also alleges
that the Center falsely reported to the Texas Workforce Commission that charges were pending
against him. (Id.).
Sellers then sued the Center based on his termination.2 	The first amended complaint
alleged: (1) wrongful termination under Texas law; (2) hostile work environment in violation of
Texas Labor Code § 21.051; (3) retaliation in violation of Texas Labor Code § 21.055; (4)
negligence (erroneously titled as “constructive eviction”); (5) negligent supervision and retention
under Texas common law; (6) age discrimination in violation of the Texas Commission on Human
Right Act (THCRA) and Age Discrimination in Employment Act (ADEA); (7) race and national
origin discrimination in violation of Texas Labor Code § 21.051; (8) failure to prevent harassment
and discrimination under Texas law; (9) and intentional infliction of emotional distress. 	(Id.).
(Docket Entry No. 1-3 at 40–58). The Center moved to dismiss. (Docket Entry No. 3). Although
it was not explicitly listed as one of the nine causes of action, the Center construed the amended
complaint as also bringing a defamation claim.3 (Id. at 18). Sellers responded to the motion to
dismiss. (Docket Entry No. 5). The Center moved to strike Sellers’s response for failure to comply
with this court’s procedures, including a 25-page limit and the need to include a table of contents.
(Docket Entry No. 6). Sellers did not respond to the motion to strike.
2 He also sued Does 1–25; no Does were ever identified or served.
3 The first amended complaint also mentioned Texas Penal Code § 37.10, (Docket Entry No. 1-3 at 39, 40),
and the Center moved to dismiss a claim based on this statute as well, (Docket Entry No. 3 at 20). Sellers
clarified in his response to the motion to dismiss that he was not asserting a separate claim based on a
violation of Texas Penal Code § 37.10 because it does not have a private right of action. (Docket Entry No.
5 at 34). This potential claim is not addressed further because Sellers has abandoned it.
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On January 30, 2026, the court held an initial conference and entered a scheduling order.
(Docket Entry Nos. 18, 19). Sellers’s counsel indicated at the initial conference that he planned to
amend. (Docket Entry No. 18). The scheduling order set a February 20, 2026, deadline for further
amendment. 	(Docket Entry No. 19). 	Sellers did not file by that date. 	On March 3, 2026, the
Center moved to reurge its motion to dismiss. (Docket Entry No. 20). On March 23, 2026, Sellers
filed a motion for leave to file a second amended complaint, explaining that he had missed the
deadline because his lead counsel was preparing to take another bar examination and that, in the
counsel’s absence, the counsel’s paralegal had failed to properly docket the proposed second
amended complaint. (Docket Entry No. 21; see also Docket Entry Nos. 21-1, 21-2).
The proposed second amended complaint does not materially alter the factual allegations.
(See generally Docket Entry No. 21-3). Instead, the proposed second amended complaint adds a
claim for “sex discrimination/discriminatory discharge” under Title VII and Chapter 21 and for
“defamation/defamation per se”; keeps the ADEA and Chapter 21 claim for age discrimination
(which is also listed as a “discriminatory discharge” claim); and adds that claim for retaliation is
also brought under Title VII. (Id.). The proposed second amended complaint drops the remaining
claims. The Center opposes the motion for leave. (Docket Entry No. 23).
II. 	The Legal Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” 	FED. R. CIV. P. 12(b)(6). 	Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[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)). Rule 8 “does not require
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‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” 	Id. at 678 (quoting Twombly, 550 U.S. at 555). 	“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).
“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be
enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,
924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic
deficiency should be exposed at the point of minimum expenditure of time and money by the
parties and the court.” 	Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quotation marks
omitted, alterations adopted) (quoting Twombly, 550 U.S. at 558).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set
forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial
notice may be taken under Federal Rule of Evidence 201.” 	Inclusive Cmtys. Project, Inc. v.
Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
III. 	Analysis
A. The Motion for Leave to File a Second Amended Complaint
Once a court has entered a scheduling order and the deadline for amending pleadings has
passed, the decision to permit post-deadline amendments is governed by Rule 16(b) of the Federal
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Rules of Civil Procedure.4 S&W Enters., LLC v. S. Tr. Bank of Ala., 315 F.3d 533, 536 (5th Cir.
2003) (“We take the opportunity to make clear that Rule 16(b) governs amendment of pleadings
after a scheduling order deadline has expired.’”). Under Rule 16(b), a scheduling order should not
be modified unless there is a showing of good cause. F ED. R. CIV. P. 16(b)(4) (“A schedule may
be modified only for good cause and with the judge’s consent.”).
The Fifth Circuit has set forth four factors to determine whether a movant has established
good cause to modify a scheduling order to allow an untimely amendment of pleadings: “(1) the
explanation for the failure to timely move for leave to amend; (2) the importance of the
amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.” S&W Enters., L.L.C., 315 F.3d at 536 (cleaned up) (quoting
Reliance Ins. Co. v. La. Land Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)). “The ‘good cause’
standard focuses on the diligence of the party seeking a modification of the scheduling order.”
Forge v. City of Ball, No. 3:03-CV-0256, 2004 WL 1243151, at *2 (N.D. Tex. June 4, 2004).
“Mere inadvertence on the part of the movant and the absence of prejudice to the non-movant are
insufficient to establish ‘good cause.’” Id. “The movant must show that ‘despite his diligence, he
could not have reasonably met the scheduling deadline.’” Id. (quoting Am. Tourmaline Fields v.
Int’l Paper Co., No. 3:96-CV-3363, 1998 WL 874825, at *1 (N.D. Tex. Dec. 7, 1998)).
The court denies the motion for leave to file a second amended complaint. As to the first
factor, Sellers’s reason for missing the deadline to amend is that his lead counsel was out of the
4 Although Sellers’s motion seemingly assumes that Rule 16 does not apply (see Docket Entry No. 21 at 3–
4 (first explaining the Rule 6 and Rule 15 standard and then stating “[t]o the extent the missed amendment
deadline is treated as a scheduling order deadline . . .”)), the deadline for leave to amend pleadings is plainly
a scheduling order deadline. In any event, inadvertence does not usually constitute excusable neglect under
Rule 6. See, e.g., Vertigo Artography, LTD v. Champagne Cowgirl, LLC, No. 3:24-cv-120-BN, 2024 WL
4668550, at *3 (N.D. Tex. Nov. 4, 2024). For largely the same reasons as detailed above with regard to
Rule 16 and Rule 15, Sellers has not met the Rule 6 standard, either, and the court would not exercise its
discretion to extend the deadline. See McCarty v. Thaler, 376 F. App’x 442, 443 (5th Cir. 2010).
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office during the month of February taking a bar exam, and that his paralegal did not realize that
the second amended complaint had not been docketed. 	(Docket Entry No. 21 at 4–5). 	This
explanation is insufficient on multiple grounds. It asserts inadvertence, which is “tantamount to
no explanation at all.” 	S&W Enters., LLC, 315 F.3d at 536. 	In addition, Sellers offers no
explanation for failing to include the new claims in either his original complaint or his first
amended complaint, or for the nearly year-long delay in seeking to add these new claims; the added
claims for “sex discrimination/discriminatory discharge” and “defamation/defamation per se” (to
the extent that defamation may be considered a new claim) are based on the same facts that Sellers
has known from the start. See id. (noting that the plaintiff’s explanation was insufficient in part
because it had known the same facts from the beginning and failed to explain why it waited so
long to add a claim that could have been asserted from the start); see also Thomas v. Group 1
Automotive, Inc., Civ. Action No. H-23-1416, 2024 WL 1962890, at *2 (S.D. Tex. May 3, 2024)
(“Thomas offers no explanation for failing to include an ERISA claim in his original pleading, or
for the year-long delay in seeking to amend to do so. It is clear Thomas knew of the claim even
before he filed his lawsuit.”). The Fifth Circuit law is clear that an attorney’s “inattention to the
particulars of” a case can be, on its own, a sufficient reason to deny a motion for leave to amend.
Banks v. Spence, 114 F.4th 369, 372–73 (5th Cir. 2024) (en banc); see also Malhotra v. State Farm
Lloyds, SA-23-CV-780-JKP (HJB), 2024 WL 4101931, at *2 (W.D. Tex. July 29, 2024).
In any event, a holistic consideration of the remaining factors weighs heavily against
finding good cause. Even assuming arguendo that the proposed amendment is important, the third
and fourth factors weigh against Sellers. 	See Grant v. Rathburn, 3:15-CV-4025-D, 2016 WL
1750572, at *4 (N.D. Tex. May 3, 2016). As to the third factor, the Center will be prejudiced by
having to consider “whether a different strategy and approach would be needed,” since it has
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litigated the case on the assumption, at a minimum, that Sellers would not be bringing his “sex
discrimination/discriminatory discharge” claim. Thomas, 2024 WL 1962890, at *3. Adding new
claims at this point—after nearly a year of litigation and one amendment already—“would trigger
additional motions, responses, and delays.” See Mobius Risk Grp., LLC v. Global Clean Energy
Holdings, Inc., No. H-10-1708, 2012 WL 527939, at *6 (S.D. Tex. Feb. 16, 2012). That prejudice
“is neither minimal nor easily curable, even with a short continuance.” 	Thomas, 2024 WL
1962890, at *3. Sellers’s argument that the allegations forming the basis of his new claims “have
been known from the outset,” (Docket Entry No. 21 at 7), does not establish good cause: “[t]o the
contrary, this argument demonstrates that [Sellers] could have asserted” these claims claim when
he asserted his other claims. Mobius Risk Grp., LLC, 2012 WL 527939, at *6. There is no good
cause to allow Sellers to amend his complaint past the deadline to do so.
Even under Rule 15, the court would not grant leave to amend. 	Thomas, 2024 WL
1962890, at *3. The “delay and prejudice here are undue,” considering that Sellers waited nearly
a year to add new claims, “which is dilatory and unexplained.” Id. And the facts alleged in the
proposed second amended complaint are not materially different from the facts alleged in the first
amended complaint and would not alter the court’s analysis of the pleading deficiencies. The court
considers the facts alleged in the proposed second amended complaint to the extent that they
demonstrate Sellers’s continued failure to plausibly plead his claims. See Pichardo v. Centene Co.
of Tex., No. 7:19-cv-00085, 2020 WL 1308047, at *3 (S.D. Tex. Mar. 16, 2020) (“Nevertheless,
in analyzing the motion to dismiss, the Court also considers Plaintiff’s proposed second amended
complaint in order to determine whether the second amended complaint states a claim for relief
and whether amendment would be futile.”).
The motion for leave to amend, (Docket Entry No. 21), is denied.
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B. Motion to Strike
The Center moves to strike Sellers’s response brief based on the lack of compliance with
the court’s local rules. (Docket Entry No. 6). The Center points out that Sellers’s brief was 13
pages over the court’s 25-page limit and lacked both a table of contents and a table of authorities,
as also required by the court’s rules. 	(Id. at 1–2). 	The Center provides no rule or standard by
which the court should analyze its motion. Although the court admonishes Sellers for failing to
comply with the local rules, the court sees no need to strike the response brief under these
circumstances. 	Considering Sellers’s response brief does not change the court’s analysis of the
motion to dismiss. The motion to strike is denied.
C. Motion to Dismiss
Sellers’ first amended complaint contains a plethora of different claims against the Center.
For the reasons explained below, the court dismisses all the claims because they fail to state a
claim. Because further amendment would be futile, these claims are dismissed with prejudice.
1. 	Age Discrimination under the ADEA and Chapter 21
“To establish a prima facie case of [age] discrimination under [the ADEA and Section 21],
the plaintiff must establish that ‘she (1) was a member of the protected class [forty years of age or
older], (2) was qualified for the position at issue, (3) suffered a final, adverse employment action,
and (4) was either (a) replaced by someone [outside the protected class] or (b) otherwise treated
less favorably than others who were similarly situated but outside the protected class.’”
Norsworthy v. Houston Indep. Sch. Dist., 70 F.4th 332, 337 (5th Cir. 2023). “To establish that a
younger employee is ‘similarly situated,’ a plaintiff must show ‘nearly identical’ circumstances.
Gonzales v. Wells Fargo Bank, Nat’l Ass’n, 733 F. App’x 795, 797 (5th Cir. 2018). 	“[T]he
employees being compared must have the same job or responsibilities, share the same supervisor
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or have their employment status determined by the same person, and have comparable violation
histories.” Allen v. U.S. Postal Serv., 63 F.4th 292, 301–02 (5th Cir. 2023).
At the motion to dismiss stage, the court “does not conduct an in-depth analysis of whether
the plaintiff’s alleged comparators are actually ‘similarly situated’; rather, the plaintiff ‘need only
plausibly allege facts going to the ultimate elements of the claim.’” Legacy Equity Advisors, LLC
v. AT&T, Inc., No. 3:23-CV-0979-D, 2023 WL 6049753, at *6 (N.D. Tex. Sep. 15, 2023). “But a
complaint that ‘generally alleges that other similarly situated individuals were treated differently,’
‘without more, is merely a legal conclusion that [the court is] not required to credit.’” 	Id.
(alteration in original) (quoting Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018)). To frame
the inquiry as to whether a plaintiff has plausibly pleaded an employment discrimination claim, a
court “may find it helpful to reference” the McDonnell Douglas burden-shifting framework.
Norsworthy, 70 F.4th at 336.
Sellers has argued that a younger male coworker, Daniel, is a proper comparator. But the
only information in the first amended complaint is that Daniel was (1) younger, (2) also a
maintenance worker of some sort, and (3) allowed to return to work after being placed on leave,
although there is no actual allegation in the first amended complaint that Daniel was ever directly
accused of assault the way that Sellers was directly accused of assault.5 (Docket Entry No. 1-3 at
38, 51). 	Sellers asserts that Daniel’s reinstatement was “direct evidence of discriminatory bias
based on age.” 	(Id. at 39). 	First, Sellers’s allegations concern circumstantial evidence of
discrimination, not direct evidence, because the court must draw the inference that Sellers was
5 The first amended complaint states that Sellers’ accuser had made the “implausible claim that Mr. Sellers
had scaled a 12-foot wall, entered the women’s quarters, assaulted multiple individuals, and exited
undetected.” (Docket Entry No. 1-3 at 38). There is no allegation in the first amended complaint that
Daniel was ever accused of similar conduct, only that he was also placed on leave.
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terminated because of his age.6 See Acker v. Deboer, Inc., 429 F. Supp. 2d 828, 837 (N.D. Tex.
2006). Second, Sellers has not “plead[ed] circumstantial facts supporting the inference that [he]
was ‘similarly situated’ to” Daniel. See Burchfield v. S. La. Med. Assocs., Civ. Action No. 23-
1501, 2023 WL 5952183, at *6 (E.D. La. Sep. 13, 2023). While “[i]t is true that when a plaintiff
plausibly alleges similarly situated comparators, the Court must not scrutinize whether the
comparators are ‘really “similarly situated”’ on a motion to dismiss,” “the lack of any factual basis
for this element” means that Sellers’ claim does not survive a motion to dismiss. 	Id. (quoting
Cicalese, 924 F.3d at 768). Among other issues, there are no allegations that Daniel even had the
same work responsibilities, or shared the same supervisor, or any other indication that their jobs
and circumstances (including violation histories) were sufficiently similar; the court does not
assume that all maintenance workers are the same. The bare facts as pleaded are insufficient for
this claim to proceed past the motion to dismiss because they do not plausibly demonstrate that
Sellers was terminated because of his age.
The proposed second amended complaint shows that granting leave to amend would be
futile. The first amended complaint does not refer to exhaustion or Sellers’s EEOC Charge. See
Gunter v. XTO Energy, No. H-25-6356, 2026 WL 1138367, at *4 n.5 (S.D. Tex. Apr. 21, 2026).
But the proposed second amended complaint does mention exhaustion and the EEOC charge.7
(Docket Entry No. 21-3). Because Sellers has now put the issue of exhaustion before the court, it
may analyze the futility of amendment based on exhaustion. See Marucci Sports, L.L.C. v. Nat’l
Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (“An amendment is futile if it would
6 Later in the first amended complaint, Sellers asserts that he has “not alleged direct ageist comments,” and
that his claims should be viewed under McDonnell Douglas. (Docket Entry No. 1-3 at 52).
7 The same exhaustion requirements apply to ADEA, Title VII, and Chapter 21 claims. See Jones v. Driver
Pipeline, No. 3:25-cv-0121, 2025 WL 1908301, at *3 (N.D. Tex. July 10, 2021); Ray-Sampson v. Uplift
Educ., No. 3:24-cv-2967-E-BN, 2026 WL 827473, at *6 (N.D. Tex. Feb. 2, 2026), report and
recommendation adopted, 2026 WL 825517 (N.D. Tex. Mar. 25, 2026).
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fail to survive a Rule 12(b)(6) motion.”); Lubeno v. Office Depot, L.L.C., No. 22-50767, 2023 WL
4249268, at *3 (5th Cir. June 29, 2023) (a court may dismiss for failure to exhaust if such failure
is evident on the face of the complaint); Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594
F.3d 383, 387 (5th Cir. 2010) (at the motion to dismiss stage, courts can consider documents
attached to the motion that are central to the claim and referenced in the complaint).8
To determine whether a claim has been exhausted, courts “engage in fact-intensive analysis
of the statement given by the plaintiff in the administrative charge, and look slightly beyond its
four corners, to its substance rather than its label.” Pachecho v. Mineta, 448 F.3d 783, 789 (5th
Cir. 2006). Exhaustion is determined “not solely by the scope of the administrative charge itself,
but by the scope of the EEOC investigation which ‘can reasonably be expected to grow out of the
charge of discrimination.’” Id. (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th
Cir. 1970)). This rule “protects unlettered lay persons making complaints without legal training
or the assistance of counsel.” Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993).
Sellers’s EEOC Charge asserted that he was discriminated against based on his sex and
retaliation. 	(Docket Enry No. 3-1). 	He made no references to his age outside of providing his
birth year as required in the personal information section. 	(Id.). 	Sellers’s Charge alleged that
management ignored his concerns about security issues, put him on leave, and then terminated
him. 	(Id. at 3). 	Nothing in the Charge would have reasonably led to an investigation into
discrimination based on age. 	Even reading the EEOC Charge “somewhat broadly,” the court
cannot 	conclude 	that 	Sellers’s 	allegations 	could 	“reasonably 	be 	expected” 	to 	trigger 	an
investigation into age discrimination. See Pacheco, 448 F.3d at 792; accord Ford v. Pangea Int’l
Trading Co., Civ. Action No. H-25-916, 2025 WL 2977978, at *3 (S.D. Tex. Oct. 21, 2025).
8 Sellers’ EEOC Charge was attached to the Center’s motion to dismiss. (Docket Entry No. 3-1).
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Simply including a birthday that makes a plaintiff’s age over 40 years old in an EEOC Charge is
insufficient to exhaust a claim for age discrimination.
The age discrimination claims are dismissed, with prejudice, because further amendment
would be futile. 	These claims are now time-barred because Sellers did not file a charge of
discrimination within the required time period.9
2. 	Race and National Origin Discrimination
The same flaws that apply to Sellers’s claim for age discrimination apply to his claims for
race and national origin discrimination. 	To state a prima facie case for national origin or race
discrimination under Chapter 21, Sellers must plead facts that could show four elements: that he
is (1) a “member of a protected class”; that he “was qualified for the position at issue”; (3) that he
“was the subject of an adverse employment action by the employer”; and (4) that he “was treated
less favorably because of his membership in that protected class than were other similarly situated
employees who were not members of the protected class, under nearly identical circumstances.”
Banda v. Owens Corning Corp., No. 3:17-CV-1787-B, 2018 WL 6726542, at *7 (N.D. Tex. Dec.
21, 2018). The same “similarly situated” requirements detailed above for age discrimination also
apply to race and national origin discrimination. See, e.g., id.
Sellers has alleged that he is Black and Daniel is not.10 (Docket Entry No. 1-3 at 53). But,
as detailed above, there is little else in the complaint to show that Daniel is sufficiently similarly
9 The events giving rise to Sellers’s allegations occurred in late 2024. “In Texas, ‘a Title VII plaintiff must
file a charge of discrimination within 300 days of the alleged discriminatory act.’” See Ford, 2025 WL
2977978, at *4 (quoting Doe v. Univ. of Tex. M.D. Anderson Cancer Ctr., 653 F. Supp. 3d 359, 371 (S.D.
Tex. 2023)). There is an even shorter period for exhausting administrative remedies under Chapter 21: 180
days rather than 300. Id. (citing TEX. LAB. CODE § 21.202(a)). It is now May 2026, well past the time
period for filing a charge for the allegations described in the complaint.
10 The proposed second amended complaint does not allege Daniel’s race. (See generally Docket Entry No.
21-3). The first amended complaint alleges that Daniel is “non-Black.” (Docket Entry No. 1-3 at 53).
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situated for the purpose of pleading race and national origin discrimination claims. 	The first
amended complaint does not plausibly demonstrate that Sellers was terminated because of his race
and national origin. And the failure to exhaust shows that leave to amend would be futile. Sellers
mentions neither race nor national origin in his EEOC Charge and there is nothing in the Charge
that would have put the Center on notice that the EEOC’s investigation could include race and
national origin discrimination. These claims are now time-barred.
These claims are dismissed, with prejudice, because amendment would be futile.
3. 	Hostile Work Environment
“[A] hostile work environment claim requires (1) membership in a protected group; (2)
harassment; (3) based on a factor rendered impermissible by Title VII; (4) the harassment affected
a term, condition, or privilege of employment; and (5) the employer knew or should have known
of the harassment yet failed to address it promptly.” Hernandez v. Yellow Transp., Inc., 670 F.3d
644, 654 (5th Cir. 2012). 11 “A hostile work environment claim must be supported by harassment
‘sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an
abusive work environment.’” Mueblas-Curtis v. Am. Airlines, Inc., No. 3:25-CV-1201-D, 2025
WL 3022852, at *5 (N.D. Tex. Oct. 29, 2025) (quoting Walton-Lentz v. Innophos, Inc., 476 F.
App’x 566, 570 (5th Cir. 2012) (per curiam)).
Among other issues, Sellers has not pleaded that he was subject to such pervasive
harassment that a term or condition of his employment was affected. That Sellers was a man in a
female-oriented space; that he complained about broken locks; and that he was later investigated
for sexual assault are not allegations that establish a claim for hostile work environment. To the
11 Courts analyze Chapter 21 hostile work environment claims under the Title VII framework. See Tapley
v. Simpliefile, LC, No. 3:19-cv-00227-E, 2020 WL 208817, at *4 (N.D. Tex. Jan. 14, 2020).
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extent that any action Sellers complains of could even be considered harassment or discrimination
under Chapter 21, these “limited discrete acts” do not show a hostile work environment. Id. The
hostile work environment claim is dismissed, with prejudice, because further amendment would
be futile; this claim is unexhausted and time-barred. Nothing in the EEOC Charge would have put
the Center on notice that the EEOC Charge could grow to include hostile work environment claims.
4. 	Retaliation
“A retaliation claim is related to, but distinct from, a discrimination claim, and one may be
viable even when the other is not. Unlike a discrimination claim, a retaliation claim focuses on
the employer’s response to an employee’s protected activity, such as making a discrimination
complaint.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763–64 (Tex. 2018). “A
protected activity includes (1) opposition to any practice rendered unlawful by Chapter 21 and (2)
participation in an investigation, proceeding, or hearing under Chapter 21 or making a charge,
testifying, or assisting in such activity.” Bates v. Caliber Holdings LLC, No. 3:25-cv-1831, 2025
WL 3454211, at *6 (N.D. Tex. Oct. 29, 2025), report and recommendation adopted, 2025 WL
3452649 (N.D. Tex. Dec. 1, 2025). Chapter 21 protects the following four activities: (1) opposing
a discriminatory practice, (2) making or filing a charge, (3) filing a complaint, or (4) testifying,
assisting, or participating an investigation, proceeding, or hearing. TEX. LABOR CODE § 21.055;
see also Campos v. Steves & Sons, Inc., 10 F.4th 515, 525 (5th Cir. 2021). 	It protects only an
employee who is retaliated against “under this chapter.” TEX. LABOR C ODE § 21.055.
Sellers alleges that he was retaliated against after he raised security concerns about broken
door locking mechanisms, bypassed security systems, and compromised access to sensitive areas.
(Docket Entry No. 1-3 at 45). Even assuming that Sellers was terminated because he complained
about security issues, that is not conduct protected by Chapter 21. Courts have rejected Chapter
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21 retaliation claims based on complaints that did not involve discrimination, because “Chapter 21
applies to conduct ‘under [that] chapter’—that is, employment discrimination based on ‘race,
color, disability, religion, sex, national origin, or age.’” Garrett v. Judson Indep. Sch. Dist., No.
SA-06-CA-0174 OG(NN), 2007 WL 1490643, at *5 (W.D. Tex. May 20, 2007), report and
recommendation adopted sub nom. Garrett v. Ruffin, 2007 WL 9702934 (W.D. Tex. Sept. 12,
2007), aff’d sub nom. Garrett v. Judson Indep. Sch. Dist., 299 F. App’x 337 (5th Cir. 2008). That
Sellers was a man working in a facility serving women, children, and families does not transform
his complaints about security systems into conduct protected by Chapter 21. 	See id.; see also
Bates, 2025 WL 3454211, at *5–6 (collecting cases and concluding that there was no Chapter 21
retaliation claim because none of the allegations in the plaintiff’s internal complaints could be
construed as constituting an opposition to an unlawful employment practice).
The retaliation claim is dismissed, with prejudice, because amendment would be futile.
5. 	Wrongful Termination
Although Sellers brings a claim for “wrongful termination under Texas law,” (Docket
Entry No. 1-3 at 40), that is not a viable independent cause of action under the common law.
“Texas state law does not recognize a separate common law cause of action for wrongful
termination.” Stoker v. Trinity Indus. Plant 19, No. 216CV00578JRGRSP, 2017 WL 988140, at
*3 (E.D. Tex. Feb. 10, 2017) (citing Winters v. Houston Chronicle Publishing Co., 795 S.W.2d
723, 723–25 (Tex. 1990)), report and recommendation adopted, 2017 WL 978734 (E.D. Tex. Mar.
14, 2017)). Rather, because Texas follows the at-will employment rule, under which employment
for an indefinite term may be terminated with or without cause, “[a]n action for wrongful
termination is only available to a[n] employee who falls within one of a few common law
exceptions to the employment at-will doctrine.” Griffth v. Kroger, No. 9:05-CV-76-TH, 2008 WL
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11347989 (E.D. Tex. Mar. 7, 2008). Sellers has pointed to no applicable exception and the court
sees none.12 Sellers does not have a cause of action for “wrongful termination” under the common
law. To the extent that Sellers is attempting to assert “wrongful termination” based on employment
discrimination prohibited by Texas statute, that is duplicative of his Chapter 21 discrimination
claims.13 	This claim is dismissed, with prejudice, because amendment would be futile.
6. 	Intentional Infliction of Emotional Distress
“To prevail on a claim for intentional infliction of emotional distress, Texas law requires
the plaintiff to prove the following: (1) that the defendant acted intentionally or recklessly, (2) that
the defendant’s conduct was extreme and outrageous, (3) that the actions of the defendant caused
the plaintiff emotional distress, and (4) that the emotional distress suffered was severe.” Johnson
v. Merrell Dow Pharms., Inc., 965 F.2d 31, 33 (5th Cir. 1992) (per curiam). “[T]he intentional
infliction of emotional distress was, first and foremost, a ‘gap-filler’ tort, judicially created for the
limited purpose of allowing recovery in those rare instances in which a defendant intentionally
inflicts severe emotional distress in a manner so unusual that the victim has no other recognized
theory of redress.” Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). “[I]f
the gravamen of a plaintiff’s complaint is the type of wrong that the statutory remedy was meant
to cover, a plaintiff cannot main an intentional infliction [of emotional distress] claim regardless
12 One such exception allows an at-will employee to sue for retaliatory discharge for refusing to commit an
illegal act. See Griffith, 2008 WL 11347989, at *4.
13 The cases that Sellers cites to in the first amended complaint may use the term “wrongful termination,”
but they are actually about discrimination claims under Chapter 21; “wrongful termination” is not a separate
cause of action. See, e.g., Hudgens v. Univ. of Tex. Md Anderson Cancer Ctr., 615 S.W.3d 634, 642 (Tex.
App.—Houston [14th Dist.] 2020, no pet.) (using “wrongful termination” to describe an age discrimination
claim”); Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901, 924 (Tex. App.—Fort Worth 2018, pet.
denied) (Pittman, J., dissenting) (same).
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of whether he or she succeeds on, or even makes, a statutory claim.” Powells v. 1600 West Loop
South, LLC, Civ. Action No. H-23-3790, 2024 WL 1769350, at *4 (S.D. Tex. Apr. 23, 2024).
Sellers’s claim for intentional infliction of emotional distress is based on the Center’s
“baseless and humiliating accusations of sexual assault.” 	(Docket Entry No. 1-3 at 57). 	Even
setting aside the statutory duplication issue, Sellers has not met the extraordinarily high standards
for a claim for intentional infliction of emotional distress. Such claims require conduct to be “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of human
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817–18 (Tex. 2005) (quoting reference omitted).
The first amended complaint alleges that the Center received an accusation that Sellers committed
an assault, failed to properly investigate that accusation, and then fired him. The Center did not
make the accusation, but allegedly “rushed to judgment.” (Docket Entry No. 1-3 at 57). That is
not the kind of “outrageous” conduct that can form the basis of a claim for intentional infliction of
emotional distress. A “rush to judgment” is not utterly intolerable in a civilized community.
This claim is dismissed, with prejudice, because amendment would be futile.
7. 	The Negligence Claims
Sellers also raises a variety of negligence-based claims (some of which are confusingly—
and seemingly accidentally—described under the header “constructive eviction”). These claims
include negligence, negligent hiring, negligent supervision, and negligent retention. These claims
are generally duplicative of Sellers’ statutory claims and may be dismissed on that basis alone.
See Light v. Pepperidge Farm, No. 4:23-cv-01177-P, 2024 WL 1703714, at *2 (N.D. Tex. Apr. 19,
2024). Regardless, Sellers has not plausibly pleaded any of his negligence-based claims.
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The premise for all the negligence-based claims is that the Center breached a duty to Sellers
by failing to protect him from the third party who accused him of sexual assault. But that inverts
the basis for negligent supervision, negligent hiring, and negligent retention claims. All three types
of claims involved an employer’s duty to protect a third party from an employee. 	See, e.g.,
Samilton v. F2F Transp., LLC, No. 3:24-CV-2757-K, 2026 WL 1146291, at *4 (N.D. Tex. Apr. 28,
2026) (explaining that negligent hiring, supervision, and retention claims “require the plaintiff to
prove (1) the employer was negligent in hiring, supervising, or retaining the employee and (2) that
the employee committed an independent, actionable tort against the plaintiff”). 	Sellers has
provided no basis for the court to swap parties and base such negligence claims in the employer’s
failure to protect an employee from a third-party tortfeasor. To the extent that the basis of Sellers’s
allegation is also that other Center employees should have investigated the sexual assault claims
more thoroughly before terminating him, Sellers has not plausibly alleged that any Center
employee committed an independent, actionable tort against him. 	There is also no plausible
allegation that the Center breached any legal duty to Sellers in these circumstances by failing to
improve its security systems. See McDorman ex rel. Connelly v. Texas-Cola Leasing Co. LP, LLP,
288 F. Supp. 2d 796, 804 (N.D. Tex. 2003) (listing the elements of an ordinary negligence claim).
The negligence claims are all dismissed, with prejudice, because amendment would be
futile.
8. 	Failure to Prevent Harassment and Discrimination
Sellers also alleges a claim for “failure to prevent harassment and discrimination under
Texas law.” 	(Docket Entry No. 1-3 at 54). 	None of the cases he cites, however, establish that
there is a statutory or common law cause of action for “failure to prevent harassment.” (Id. at 54–
55 (citing Hoffman-La Roche, 144 S.W.3d at 442 (reviewing the overlap between a statutory claim
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for sexual harassment and a common law claim for intentional infliction of emotional distress);
Nardini v. Cont’l Airlines, Inc., 60 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist. 2001, pet.
denied) (examining a Chapter 21 hostile work environment claim and a ratification claim); Lucan
v. HSS Sys., LLC, 439 S.W.3d 606, 613 (Tex. App.—Eastland 2014, no pet.) (reviewing a Chapter
21 retaliation claim); Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) (analyzing a
sexual harassment claim under Chapter 21 and common-law negligent supervision and retention
claims)). Sellers has not pleaded facts that could support a claim for “failure to prevent harassment
and discrimination.” This claim is dismissed, with prejudice, because amendment would be futile.
9. 	Defamation
Although Sellers does not list defamation as a separate cause of action in his first amended
complaint, he does include a section on defamation, and the Center’s motion to dismiss construes
the amended complaint as bringing a defamation claim. (Docket Entry No. 3 at 18). The basis for
the defamation claim in the first amended complaint is that representatives of the Center made
knowingly false statements to the Texas Workforce Commission. (Docket Entry No. 1-3 at 39).
In his proposed second amended complaint, Sellers alters the basis for his defamation claim
somewhat, asserting that he meant to bring a defamation claim based on the Center’s publication
of false statement of facts (“through its agents and employees”) about his alleged sexual
misconduct, immoral behavior, and violation of company policies. (Docket Entry No. 21-3 at 15).
The elements of defamation are that: (1) the defendant published a statement; (2) that was
defamatory concerning the plaintiff; (3) while acting with malice, if the plaintiff was a public
figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statements.
See WFAA-TV Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). “A statement is ‘published’
if it is communicated to a third person who is capable of understanding its defamatory meaning
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and in such a way that the person did understand its defamatory meaning.” Petersen v. Meta, Inc.,
No. 2:24-CV-00038, 2024 WL 4719714, at *10 (S.D. Tex. Sept. 4, 2024), report and
recommendation adopted, 2024 WL 4608185 (S.D. Tex. Oct. 29, 2024), appeal dism’d, No. 25-
40223, 2025 WL 2978784 (5th Cir. July 23, 2025). “To be viable, a claim must also specifically
state the time and place of the publication and identify of the speaker.” Id. (citing Phillips N. Am.
LLC v. Image Tech. Consulting LLC, No. 3:22-CV-0147-B, 2024 WL 3184770, at *8 (N.D. Tex.
June 26, 2024); see also Jackson v. Dallas Indep. Sch. Dist., No. 398-CV-1079, 1998 WL 386158,
at *5 (N.D. Tex. July 2, 1998).
To the extent that Sellers’s defamation claim is based on the Center’s statements to the
Texas Workforce Commission, his allegations cannot support a defamation claim. 	Statements
made in judicial proceedings are privileged under Texas law. “Even potentially perjured testimony
is absolutely privileged and cannot form the basis of a subsequent action for libel.” Dick v. J.B.
Hunt Transp., Inc., 772 F. Supp. 2d 806, 823 (N.D. Tex. 2011). This privilege applies equally to
quasi-judicial proceedings before a Texas administrative body that has the “authority to redress
grievances to which it takes cognizance.” Attaya v. Shoukfeh, 962 S.W.2d 237, 239 (Tex. App.—
Amarillo 1998, writ denied). 	Because this privilege extends to statements made to the Texas
Workforce Commission, the allegedly false statements made to the Texas Workforce Commission
cannot support a defamation claim. TEX. LAB. C ODE § 301.074; see Hardwick v. Houston Lighting
& Power Co., 881 S.W.2d 195, 198 (Tex. App.—Corpus Christi 1994, writ dism’d w.o.j.).
The proposed second amended complaint still fails to state a claim for defamation.
Although Sellers does not entirely abandon his defamation claim based on the statements to the
Texas Workforce Commission, he more clearly asserts that he is also bringing claims because the
Center “published” false statements. (Docket Entry No. 21-3 at 15). But he does not identify any
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particular speaker or any particular false statement. His generic statements that “false” statements
of fact “were” published by unspecified persons is insufficient to plead a claim for defamation
against the Center. See Peterson, 2024 WL 4719714, at *10. In addition, to the extent that Sellers’
defamation claim is really a claim that Center employees were merely gossiping and speculating,
that is not the kind of action for which the Center could be liable for defamation. See Westfall v.
GTE North Inc., 956 F. Supp. 707, 714 (N.D. Tex. 1996).
The defamation claim is dismissed, with prejudice, because further amendment would be
futile. Sellers has had multiple opportunities to plausibly plead a defamation claim and has failed
to do so.
IV. 	Conclusion
The court grants the motion to dismiss. (Docket Entry No. 3). The court denies the motion
to strike. (Docket Entry No. 6). The court denies the motion to reurge the motion to dismiss as
moot. 	(Docket Entry No. 20). 	The court denies the motion for leave to file a second amended
complaint. 	(Docket Entry No. 21). 	This case is dismissed, with prejudice, because the facts
alleged in the first amended complaint and the proposed second amended complaint show that
further amendment would be futile. Final judgment is separately entered.
SIGNED on May 15, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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