Gunter v. XTO Energy et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KYLE GUNTER,
Plaintiffs,
v.
XTO ENERGY, et al.,
Defendants.
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CIVIL ACTION NO. H-25-6356
MEMORANDUM AND OPINION
This case arises out of Kyle Gunter’s alleged termination from ExxonMobil. On April 21,
2026, the court granted the motion to dismiss filed by the five defendants, (Docket Entry No. 9),
on the grounds of improper service and failure to state a claim. (Docket Entry No. 14). The court
ordered Gunter to serve each defendant with a copy of the summons and amended complaint no
later than May 22, 2026. (Id. at 14). The court also noted that Gunter had asserted facts and claims
in his briefing that were not included in the original complaint and ordered Gunter to include the
facts and claims that Gunter wanted this court to consider in the amended complaint. (Id.).
On April 28, 2026, Gunter filed his amended complaint. (Docket Entry No. 17). The only
defendant he served with the amended complaint was Exxon. (Docket Entry No. 21). Exxon has
again moved to dismiss on the ground that Gunter’s amended complaint fails to state a claim upon
which relief can be granted. (Docket Entry No. 23). Based on the pleadings, the record, and the
applicable law, the court grants the motion to dismiss. Because further amendment would be futile,
the dismissal is with prejudice. The reason for this ruling is below.
I. 	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
United States District Court
Southern District of Texas
ENTERED
June 05, 2026
Nathan Ochsner, Clerk
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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
‘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).
II. 	Analysis
The court’s earlier ruling, (Docket Entry No. 14), explained the relevant background and
the relevant legal standards. 	Rather than repeat that analysis, the court addresses the factual
allegations Gunter included in his amended complaint, focusing on whether he has addressed the
pleading deficiencies the court identified.
A. The Title VII Claims
The court previously dismissed Gunter’s Title VII claims because he based them on alleged
disability discrimination, and Title VII does not extend to disability discrimination. (Docket Entry
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No. 14 at 7–8). 	The court allowed Gunter leave to amend these claims to allege facts showing
discrimination or retaliation that violates Title VII. (Id. at 8). His amended complaint still does
not allege any facts showing discrimination or retaliation under Title VII. 	Gunter’s Title VII
claims are dismissed, with prejudice, because further amendment would be futile.
B. The Americans with Disabilities Act Claims
The court previously dismissed Gunter’s claims against Exxon under the ADA because
there were no facts plausibly alleging that Exxon discriminated or retaliated against Gunter
because of his disability or because he engaged in activity protected by the ADA for which he was
retaliated against. (Id. at 10). Gunter’s disability is not identified and the amended complaint does
not add facts plausibly alleging that Exxon discriminated or retaliated against him in violation of
the ADA. 	The only new relevant facts alleged are that Gunter “confided privately” about his
disability diagnosis to a mentor. (See Docket Entry No. 17 at 7). These new factual allegations
still fail to state claims for ADA discrimination and retaliation. 	Gunter’s ADA claims are
dismissed, with prejudice, because further amendment would be futile.
C. The Uniformed Services Employment and Reemployment Rights Act (USERRA)
Claims
The court’s prior ruling explained that Gunter had asserted no facts that plausibly linked
the actions he complains of to his status as a veteran. (Docket Entry No. 14 at 12). The only new
relevant allegations in the amended complaint are that non-veterans received “preferential
treatment.” 	(Docket Entry No. 14 at 6). 	These additional allegations do not identify what the
“preferential treatment” was or any employee who obtained such treatment. 	These conclusory
statements are insufficient to allow Gunter’s USERRA claims to proceed. 	Gunter’s USERRA
claims are dismissed, with prejudice, because further amendment would be futile. The court has
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already rejected Gunter’s attempt to connect one remark about an old photo to alleged
discrimination and retaliation based on his status as a veteran. (Docket Entry No 14 at 12).
D. FLSA
The court previously dismissed Gunter’s FLSA claim because unpaid vacation pay cannot
form the basis of an FLSA claim. 	(Docket Entry No. 14 at 13). 	Although Gunter still lists the
FLSA as a basis for relief, (see Docket Entry No. 17 at 1, 5), the amended complaint largely
removes any reference to unpaid vacation pay and provides no new allegations that could form the
basis of an FLSA claim. 	To the extent that Gunter is still trying to assert an FLSA claim, that
claim is dismissed, with prejudice, because further leave to amend would be futile.
E. OSHA General Duty Clause
Although Gunter lists the “OSHA General Duty Clause” as a basis for recovery, (Docket
Entry No. 17 at 5), there is no private cause of action under OSHA. See Perez v. Ormiston, 364
F. App’x 93, 94 (5th Cir. 2010) (“[W]e have held that OSHA does not give rise to a private cause
of action.”). 	To the extent that Gunter is trying to assert a claim under OSHA, that claim is
dismissed, with prejudice, because amendment would be futile.
F. 	The Contract Claims
In its earlier ruling, the court noted that Gunter had asserted facts and claims in his briefs
that were not included in his complaint, specifically pointing to his references to alleged unlawful
enforcement of a noncompete. (Docket Entry No. 14 at 14). The court instructed Gunter to include
any facts and claims he wanted the court to consider in his amended complaint. (Id.).
Gunter’s amended complaint asserts that Exxon tried to unlawfully enforce a noncompete
and a “baseless intellectual property agreement.” (Docket Entry No. 17 at 10). But there is no
plausible allegation that he was denied employment because of a specific unlawful action by
Exxon or that Exxon has violated any particular contract or contract provision. 	Gunter merely
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alleges that he tried to obtain employment after Exxon terminated his employment and that he was
not hired. And there is no allegation as to the alleged intellectual property agreement, how it was
enforced, and how Exxon plausibly breached that agreement. Even construed liberally, the court
cannot discern plausible claims from these allegations.1 The court already warned Gunter that the
facts he wanted this court to consider had to be included in his amended complaint. 	Gunter’s
contract-based claims based on the non-compete and intellectual property agreement are
dismissed, with prejudice, because further amendment would be futile.
III. 	Conclusion
The court has already granted Gunter leave to amend once and explained in detail the
deficiencies in his complaint. The amended complaint does not fix those deficiencies. The court
grants Exxon’s motion to dismiss. (Docket Entry No. 23). This case is dismissed, with prejudice,
because further amendment would be futile. The court will separately enter final judgment.
SIGNED on June 5, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
1 Gunter also did not respond to Exxon’s arguments about his contract-based claims (or his FLSA or OSHA
claims) in his response to the motion to dismiss. (See generally Docket Entry No. 24). Failure to defend
claims in response to a motion to dismiss constitutes abandonment of those claims and is an alternative
ground for dismissal. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006).
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