United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10882

____________

Deborah Ann Thomas, 

Plaintiff—Appellant, 

versus

Dallas Independent School District, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:22-CV-2685

______________________________

Before Higginbotham, Stewart, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:*

Plaintiff Deborah Thomas, proceeding pro se, filed this suit against 

her former employer, the Dallas Independent School District (“DISD”), alleging race-, gender-, and age-based discrimination claims under Title VII 

and the Age Discrimination in Employment Act of 1967 (“ADEA”). DISD 

filed a motion to dismiss, which was granted by the district court. Thomas 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2024

Lyle W. Cayce

Clerk

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appeals the dismissal of her claims. We AFFIRM in part and VACATE and 

REMAND in part.

I.

In 2022, Thomas filed a pro se complaint against DISD for failure to 

promote, hostile working environment, wrongful termination, and failure to 

hire based on her age, race, and gender. In her complaint, Thomas alleged 

that she had filed a charge of age discrimination with the Equal Employment 

Opportunity Commission (“EEOC”) against DISD for its violations of the 

ADEA. 

Thomas alleged that she was fifty-five years old at the time of her 

EEOC complaint. She had been an educator for twenty-five years and had 

been employed by DISD since 2007, most recently as a Campus Instructional 

Coach at Oliver Wendell Holmes Middle School (“Holmes”) from 2015 to 

2018. Thomas alleged that in March of 2018, she was informed that she 

would be terminated if she did not resign by a set date and that Instructional 

Coach positions were being eliminated at Holmes. She alleged that from 2010 

to 2018 she had continuously applied for Assistant Principal positions, and 

that in the spring of 2018, she applied for eighty Assistant Principal positions 

posted by DISD. She interviewed for “close to 20 Assistant Principal positions, 3 Campus Instructional Coaching positions, an Instructional Lead position . . . and an Early Childhood Specialist position.” She was not chosen 

for any of these positions, despite her twelve years of experience as an Instructional Coach and Department Chair. She alleged that, in her time as an 

Instructional Coach, she had helped the teachers she coached “double or 

even triple” scores on statewide math testing and that she had obtained a 

master’s degree in Public School Administration in May 2001. 

Thomas alleged that seven of the positions for which she interviewed 

were filled with candidates under 40. She alleged that “[m]any of these were 

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classroom teachers during the 2018 spring semester,” and that “[a]lmost all 

those candidates had . . . graduated from college a couple to 3 years before 

their promotion[.]” As for one thirty-year-old candidate who was hired, 

Thomas alleged, only thirty percent of her students had passed state testing. 

Thomas learned that, with regard to other Assistant Principal openings for 

which she applied, candidates “that were 36 years old or younger” were 

hired. Additionally, she alleged that the principal of Holmes stated at a meeting that no positions were being eliminated and that the school would be hiring new teachers. However, she and another fifty-five-year-old staff member 

subsequently were discharged—though that staff member later found another position with DISD—while a younger campus instructional coach was 

retained in a different position. Thomas alleged that these actions are evidence of disparate treatment based on her age, and sought compensatory and 

punitive damages, back pay for benefits, and injunctive relief including “removal from any Non-renewal list” and placement into an Assistant Principal 

position. She also alleged discrimination based on race and sex, alleging specifically that Hispanic and male candidates had been hired over her. While in 

her complaint she sought relief under Title VII, she did not allege that she 

had filed a charge related to race or sex discrimination. 

DISD filed a motion to dismiss, arguing that Thomas failed to exhaust 

administrative remedies for her claims before the spring of 2018, and that all 

her claims should be dismissed because she did not plead that she had received a right-to-sue letter from the EEOC before she filed her lawsuit. To 

support its argument regarding failure to exhaust, DISD attached a copy of 

Thomas’s charge of discrimination from September 2018, in which she 

checked off only the box for age discrimination and stated she believed she 

was discriminated against because of her age. As to the merits, DISD argued 

that Thomas did not state a claim because she “fail[ed] to plead how her previous experience supports her qualification for the roles for which she was 

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applying,” and because her allegation that seven of the twenty positions she 

applied for were filled by candidates under forty implied that “thirteen of the 

positions she applied for were filed by candidates over the age of forty.” 

Thomas opposed the motion. In her opposition, she stated that the EEOC 

had sent the right-to-sue letter on August 30, 2022, but that she had not 

opened it until September 1 or 2, 2022, after she was called by an EEOC investigator, who informed her the letter had been issued. She also alleged that 

the email she received from the EEOC “stated that the 90 days began at the 

time of the plaintiff’s opening of the email.” She also attached to her response a copy of her résumé, showing each of her Instructional Coaching positions, and a copy of the job description for Assistant Principal. 

A magistrate judge issued findings, conclusions, and recommendations in support of dismissal. The magistrate judge rejected DISD’s argument that all of Thomas’s claims were time-barred. Under the Rule 12(b)(6) 

standard, the magistrate judge held, the court could not look beyond the 

pleadings except to take judicial notice per under FED. R. EVID. 201, and

Thomas could not amend her complaint through her opposition to the motion to dismiss. As to DISD’s failure to exhaust argument, the magistrate 

judge found it appropriate to take judicial notice of the September 2018 

charge document that DISD included with its motion to dismiss, because 

“[f]ailure to exhaust is an affirmative defense that should be pleaded.” Davis 

v. Fort Bend Cnty., 893 F.3d 300, 307 (5th Cir. 2018).

Given Thomas’s reference in the charge only to age-related claims 

that accrued between March 27, 2018 and June 12, 2018, the magistrate judge 

concluded that Thomas had failed to administratively exhaust her claims except those under the ADEA for failure to hire and failure to promote. As to 

the claims that were not exhausted, the magistrate judge concluded that 

Thomas had failed to state a claim under the ADEA because she had not 

plausibly alleged that she was qualified for the positions to which she applied 

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or that she was similarly situated to the younger individuals who were hired 

or promoted instead of her. 

In a one-paragraph order, the district court accepted the findings, conclusions, and recommendations of the magistrate judge. In the same order, 

the district court noted that Thomas had filed a proposed amended complaint, which the district court construed as objections to the magistrate 

judge’s recommendation. Thomas’s proposed amended complaint added the 

date of her right-to-sue letter and contained claims Thomas attempted to add

under 42 U.S.C. § 1981. The district court rejected any proposed amended 

complaint, concluding that the amended allegations would be futile based on 

the reasons articulated by the magistrate judge, and that her § 1981 allegations “lack[ed] facts sufficient to establish the required element that race was 

a but-for cause of her alleged injury.” As a result, the district court ruled that 

there was no need to grant Thomas leave to amend. 

II. 

“Dismissals for failure to state a claim are reviewed de novo.” 

Cody v. Allstate Fire & Cas. Ins. Co., 19 F.4th 712, 714 (5th Cir. 2021). At this 

stage in proceedings, the panel must “accept all well-pleaded facts as true, 

drawing all reasonable inferences in the nonmoving party’s favor.” Mayfield v. Currie, 976 F.3d 482, 485 (5th Cir. 2020) (citation omitted). Dismissal 

is appropriate if a plaintiff fails to plead “enough facts to state a claim to relief 

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant 

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

III.

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On appeal, Thomas argues that the district court erred in dismissing 

her ADEA failure to hire or promote claims.1 Proceeding pro se, she re-states 

the facts of her complaint, detailing her receipt of an “Excess Letter” in 2018 

that informed her that she was being terminated as an “excess employee” 

due to changing enrollment needs in the district, and her subsequent attempts to attend job fairs and be hired as an Assistant Principal or Instructional Coach at several different DISD schools. Despite receiving “about 20 

interviews” in the spring of 2018, she was not hired for any of the positions 

for which she applied, and she asserts that information provided by DISD to 

the EEOC investigator on Thomas’s case showed that all of the positions 

were filled by younger applicants.

2

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1 As a preliminary matter, Thomas seems to concede in her appellate brief that only 

her ADEA claim for failure to hire or promote is administratively exhausted. In any case, 

the district court did not err in its holding that Thomas had not exhausted her 

administrative remedies with regards to her race and gender discrimination, retaliation, 

hostile work environment, or wrongful termination claims. In her complaint, she alleges 

only one charge filed with the EEOC: the September 2018 charge. DISD filed a copy of that 

charge with its motion to dismiss, and the court took judicial notice of it. In the charge, 

which she filed on September 17, 2018, Thomas checked only the “age” box as the basis 

for discrimination and stated that between March 27, 2018 and June 12, 2018, she applied 

and interviewed for multiple Assistant Principal and Instructional Coach positions at DISD 

schools. She stated that she believed she was “discriminated against because of my age, 

(55)” in violation of the ADEA. 

2 She cites as one example the hiring of a thirty-year-old applicant for an Assistant 

Principal position at Pease Elementary School, whom Thomas herself had coached during 

her first year of teaching. According to Thomas, only 30% of that applicant’s students had 

passed state math testing, and she had only three years of teaching experience. By contrast, 

Thomas argues, she had been an Instructional Coach for more than twelve years, and she 

was “overwhelmingly more qualified” for an Assistant Principal position given her record 

of success helping teachers raise state testing scores. The thirty-year-old applicant “had no 

such experience compared to [Thomas], nor did the other hiree[s] that were not under the 

protected class.” She argues that this data “dispels” DISD’s contention that she “was not 

qualified to lead teachers, students, and the school community to success as an Assistant 

Principal, Instructional Coach, etc.” 

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The EEOC filed an amicus brief in support of Thomas. The EEOC 

contends that the district court erred because it applied a heightened pleading 

standard in dismissing Thomas’s ADEA failure to hire and failure to promote 

claims, applying a “summary judgment-like scrutiny” that was appropriate 

only after discovery. The EEOC argues that this contravenes the holding of 

Cicalese v. University of Texas Medical Branch, which requires an ADEA plaintiff only to plead the “ultimate elements” of her claims at the motion to dismiss stage. 924 F.3d 762, 767 (5th Cir. 2019). 

IV.

As in Cicalese, the core issue in this case is confusion between “the 

plausibility pleading standard of Twombly/Iqbal” and “the evidentiary standard of McDonnell Douglas.” Cicalese, 924 F.3d at 766.

The latter relates to the ultimate proof that a plaintiff must furnish to 

show disparate treatment under the ADEA: a plaintiff must prove discriminatory motive, which she may do with either direct or circumstantial evidence. Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328, as 

amended on denial of reh’g (5th Cir. 1994). “Direct evidence of discrimination 

is evidence which, if believed, would prove the existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions.” Bodenheimer v. PPG Indus. Inc., 5 F.3d 955, 958 (5th Cir. 1993).

If a plaintiff lacks direct evidence of discrimination, the McDonnell 

Douglas framework3 requires that she establish a prima facie case of discrimination by showing that she (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was 

treated less favorably than those outside the protected class. Rutherford v. 

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3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Harris County, 197 F.3d 173, 184 (5th Cir. 1999). Once the plaintiff establishes 

the prima facie case, the burden shifts to the employer to “articulate a legitimate, nondiscriminatory reason for the employment action.” Id. Finally, 

“the plaintiff counters by offering evidence that the legitimate, non-discriminatory reasons are really a pretext for discrimination.” Id. at 180.

But it is the first standard that is relevant here, as Thomas’s claims 

were dismissed at the 12(b)(6)stage. “[A] plaintiff need not make out a prima 

facie case of discrimination [under McDonnell Douglas] in order to survive a 

Rule 12(b)(6) motion to dismiss for failure to state a claim.” Raj v. La. State 

Univ., 714 F.3d 322, 331 (5th Cir. 2013). Instead, at the motion to dismiss 

stage a plaintiff must plead two “ultimate elements” in order “to support a 

disparate treatment claim . . . : (1) an ‘adverse employment action,’ (2) taken 

against a plaintiff ‘because of her protected status.’” Cicalese, 924 F.3d at 767 

(emphasis in original) (citation omitted). In fact, “[a] court . . . inappropriately heightens the pleading standard by subjecting a plaintiff’s allegations to 

a rigorous factual or evidentiary analysis under the McDonnell Douglas framework in response to a motion to dismiss.” Id.

DISD argues that the district court “merely referenced” the prima 

facie factors and “did not engage in a rigorous analysis of Thomas’s allegations.” First, DISD argues, “Thomas does not affirmatively allege 

that . . . younger candidates were not qualified for the positions to which they 

were hired[,]” and without more specific allegations about qualifications for 

the positions to which Thomas applied, the district court could neither draw 

inferences about the relative qualifications of the younger candidates nor conclude that Thomas’s age was the “but-for” reason DISD did not hire or promote her. Similarly, DISD contends, Thomas does not allege that the 

younger candidates hired for the open job positions were “similarly situated” 

to her, and in fact her complaint suggests they were not: of the seven comparator candidates she referenced in her complaint, all were teachers, while 

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she had been an Instructional Coach, and none of them were “in the process 

of being terminated like she was.” 

But DISD’s contention that the district court “merely referenced” 

the prima facie factors of McDonnell Douglas is belied by the findings, conclusions, and recommendations, which it accepted. The district court accepted 

the magistrate judge’s conclusion that Thomas “ha[d] not” alleged facts sufficient to state a claim: 

[E]ven if [Thomas] has alleged facts to support that she is 

within the protected class and was neither hired nor promoted 

in Spring 2018, her complaint lacks allegations that raise an inference either that she was qualified or that she was treated less 

favorably than a similarly situated younger applicant/employee. 

As to the second McDonnell Douglas factor, the district court concluded that 

“Thomas ‘has failed to plead that [she] was qualified for the position[s] at 

issue’ based on her alleged success as an instructional coach, department 

chair, or independent contractor.” And, with regard to the fourth factor, the 

court concluded, “while she identifies the ages of some of those who received 

positions that she applied for, all under 40 . . . Thomas has not alleged that 

these younger individuals were similarly situated to her.” Rather than 

“merely referenc[ing]” the McDonnell Douglas framework, the district court 

conducted its full analysis of the success of Thomas’s claims in accordance 

with that test, and dismissed her complaint because it found she did not 

properly allege the second and fourth McDonnell Douglas factors. 

In Cicalese, this court vacated a district court’s dismissal of the plaintiff’s claims of national origin discrimination because “[t]he court’s analysis 

of the complaint’s allegations—scrutinizing whether Appellants’ fellow employees were really ‘similarly situated’ and whether [colleagues’] derogatory 

statements about Italians amounted to ‘stray remarks’—was more suited to 

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the summary judgment phase.” 924 F.3d at 768. The district court made the 

same error here. The parties do not dispute that, at fifty-five years old, 

Thomas was protected by the ADEA when DISD failed to hire her. 29 U.S.C. 

§§ 623(a)(1), 631(a). Following Cicalese, all that was required at the motion 

to dismiss stage was that Thomas plead facts that support an inference that 

she was not hired “‘because of her protected status.’” Cicalese, 924 F.3d at

767 (emphasis in original) (citation omitted).

She did so: she alleged that she had been an educator for twenty-five

years, that she had a master’s degree, and that she had been employed by 

DISD since 2007. She alleged that, in that time, she had a consistent record 

of success as an Instructional Coach, a position that she had served in for 

twelve years. She alleged that she had interviews for twenty positions, including Instructional Coach positions, and that she was not chosen for any of 

these jobs. Thomas alleged that seven of the positions for which she interviewed were filled with candidates under forty, and that “[a]lmost all those 

candidates had . . . graduated from college a couple to 3 years before their 

promotion[.]” She alleged that she had coached some of the candidates who 

were hired as Assistant Principals, and that one thirty-year-old candidate was 

hired as an Assistant Principal despite having only a thirty-percent state testing pass rate as a teacher. Finally, she alleged that this occurred after she and 

another fifty-five-year-old Instructional Coach lost their positions, while a 

younger Instructional Coach was placed into a different position that was 

never advertised. 

These facts alleged in the complaint are far more than “[t]hreadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements.” Iqbal, 556 U.S. at 678. They raise at least an inference that 

Thomas, who alleges that she had significantly more experience at DISD and 

as an educator than many of the candidates who were hired—several of 

whom had not even entered college when she began as an Instructional Coach 

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for DISD—was not hired due to her age. Whether she can make out a prima 

facie case and whether DISD had non-discriminatory reasons for hiring 

other, younger candidates are questions for summary judgment rather than a 

motion to dismiss.

V.

Finally, DISD argues that, applying de novo review, this court should 

dismiss Thomas’s claims as unexhausted because she did not allege the date 

of her right-to-sue letter or as untimely “due to her failure to file this lawsuit 

within ninety days of receipt of her Right to Sue letter based on the 

admissions contained in her Response to the Motion to Dismiss.” DISD 

contends that, because the right-to-sue letter was emailed to Thomas on 

August 30, 2022, she should have filed this suit no later than November 28, 

2022 rather than on December 1, 2022, the day she did file. 

DISD is correct that “[a]lthough filing of an EEOC charge is not a 

jurisdictional prerequisite, it ‘is a precondition to filing suit in district 

court.’” Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002)

(citation omitted). Though “[f]ailure to exhaust is an affirmative defense that 

should be pleaded,” Davis, 893 F.3d at 307, “[c]ourts within this Circuit 

have repeatedly dismissed cases in which the plaintiff did not file a complaint 

until after the ninety-day limitation period had expired,” Taylor, 296 F.3d at 

379.

As is discussed above, the district court rejected DISD’s time-bar 

argument because Thomas’s allegations—that the EEOC emailed the rightto-sue notice to her on August 30, 2022 but that she opened the email on 

September 1 or 2, 2022, and that she was informed by the EEOC that the 90 

days began when she opened the email—appear in her response to DISD’s 

motion to dismiss, and therefore were not part of the pleadings. Importantly, 

Thomas included an allegation that the EEOC investigator told her that “90 

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days would start when I opened the email containing the Right To Sue 

Letter,” as well as a copy of the right-to-sue letter dated August 30, 2022, in 

the proposed amended complaint that the district court denied as futile.4

This circuit has recognized that “equitable tolling can excuse an 

untimely filing in the following circumstances: ‘(1) the pendency of a suit 

between the same parties in the wrong forum; (2) plaintiff's unawareness of 

the facts giving rise to the claim because of the defendant’s intentional 

concealment of them; and (3) the EEOC’s misleading the plaintiff about the 

nature of her rights.’” Melgar v. T.B. Butler Publ’g Co., 931 F.3d 375, 380 (5th 

Cir. 2019) (citation omitted); see also Manning v. Chevron Chem. Co. LLC, 332 

F.3d 874, 881 (5th Cir. 2003) (“We apply equitable tolling when an employee 

seeks information from the EEOC, and the organization gives the individual 

incorrect information that leads the individual to file an untimely charge.”).

We express no opinion on the merits of Thomas’s allegations that she 

was misinformed by the EEOC regarding when the 90-day period for her to 

file a lawsuit began. However, we do note that, in the proposed amended 

complaint that she filed with the district court, she alleged facts that indicate

a colorable argument for equitable tolling—just as DISD has made a colorable 

argument that the claims are untimely. The district court concluded that the 

amended complaint was futile on grounds that we have now rejected, and on 

remand the district court may consider the factual allegations that support 

equitable tolling as well as DISD’s failure to exhaust affirmative defense. 

VI.

_____________________

4 In her appellate briefing, Thomas repeats that she did not open the email until 

September 2, 2022, and that “Investigator Billie Cashew said that the 90 days did not start 

until the email was opened” and instructed Thomas to write down the date that she opened 

the email. 

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We AFFIRM the district court’s dismissal of Appellant’s Title VII 

race and gender discrimination, retaliation, hostile work environment, and 

wrongful termination claims. We VACATE and REMAND with regard to 

her ADEA failure to hire or promote claim. 

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