IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

PIERRO JACKSON, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-2113-E-BN 

 § 

CLAY COOLEY LLC, § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Pierro Jackson filed a pro se complaint against his former employer, 

Defendant Clay Cooley LLC (Cooley). See Dkt. No. 3. Cooley moved to dismiss the 

complaint. See Dkt. No. 7. Jackson responded. See Dkt. No. 10. And Cooley replied. 

See Dkt. No. 11. 

This lawsuit is now referred to the undersigned United States magistrate judge 

for pretrial management under 28 U.S.C. § 636(b). See Dkt. Nos. 5, 13. 

And the undersigned enters these findings of fact, conclusions of law, and 

recommendation that, for the reasons and to the extent set out below, the Court 

should grant the motion and dismiss the complaint for Jackson’s failure to allege a 

claim on which relief may be granted. 

Legal Standards 

In deciding a motion to dismiss for failure to state a claim upon which relief 

may be granted under Rule 12(b)(6), the Court “accepts all well-pleaded facts as true, 

viewing them in the light most favorable to the plaintiff.” In re Katrina Canal 

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Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). 

Such a motion is therefore “not meant to resolve disputed facts or test the 

merits of a lawsuit” and “instead must show that, even in the plaintiff’s best-case 

scenario, the complaint does not state a plausible case for relief.” Sewell v. Monroe 

City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020). 

Even so, 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), and must 

plead those facts with enough specificity “to raise a right to relief above the 

speculative level,” id. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. And “[a] claim for relief is 

implausible on its face when ‘the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. 

FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also 

Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 

2019) (“Where the well-pleaded facts of a complaint do not permit a court to infer 

more than the mere possibility of misconduct, the complaint has alleged – but it has 

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” (quoting Iqbal, 556 U.S. at 678 

(quoting, in turn, FED. R. CIV. P. 8(a)(2)))). 

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Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed factual 

allegations, but it does require that a plaintiff allege more than labels and 

conclusions. And, while a court must accept a plaintiff’s factual allegations as true, it 

is “not bound to accept as true a legal conclusion couched as a factual allegation.” 

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Consequently, a 

threadbare or formulaic recitation of the elements of a cause of action, supported by 

mere conclusory statements, will not suffice. See id.; Armstrong v. Ashley, 60 F.4th 

262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume true a number of categories 

of statements, including legal conclusions; mere labels; threadbare recitals of the 

elements of a cause of action; conclusory statements; and naked assertions devoid of 

further factual enhancement.’” (quoting Harmon v. City of Arlington, Tex., 16 F.4th 

1159, 1162-63 (5th Cir. 2021))). 

So, “to survive a motion to dismiss” under Twombly and Iqbal, plaintiffs must 

“plead facts sufficient to show” that the claims asserted have “substantive 

plausibility” by stating “simply, concisely, and directly events” that they contend 

entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per 

curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); see also Inclusive Communities, 

920 F.2d at 899 (“‘Determining whether a complaint states a plausible claim for relief’ 

is ‘a context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense.’” (quoting Iqbal, 556 U.S. at 679; citation omitted)). 

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“Pro se complaints receive a ‘liberal construction.’ Even so, ‘mere conclusory 

allegations on a critical issue are insufficient.’” Brown v. Tarrant Cnty., Tex., 985 F.3d 

489, 494 (5th Cir. 2021) (quoting Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018), 

then United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam)). And 

“liberal construction does not require that the Court ... create causes of action where 

there are none.” Smith v. CVS Caremark Corp., No. 3:12-cv-2465-B, 2013 WL 

2291886, at *8 (N.D. Tex. May 23, 2013). “To demand otherwise would require the 

‘courts to explore exhaustively all potential claims of a pro se plaintiff” and would 

“‘transform the district court from its legitimate advisory role to the improper role of 

an advocate seeking out the strongest arguments and most successful strategies for 

a party.’” Jones v. Mangrum, No. 3:16-cv-3137, 2017 WL 712755, at *1 (M.D. Tenn. 

Feb. 23, 2017) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 

1985)). 

Aside from “matters of which judicial notice may be taken under Federal Rule 

of Evidence 201,” Inclusive Communities Project, 920 F.2d at 900 (citations omitted), 

a court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion, see 

Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); see also Basic Capital Mgmt., 

Inc. v. Dynex Capital, Inc., 976 F.3d 585, 589 (5th Cir. 2020) (Federal Rule of Evidence 

201(d) “expressly provides that a court ‘may take judicial notice at any stage of the 

proceeding,’ and our precedents confirm judicially noticed facts may be considered in 

ruling on a 12(b)(6) motion.” (citations omitted)). 

Pleadings in the Rule 12(b)(6) context include attachments to the complaint. 

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In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); see also Gill 

as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir. 2019) (“The Civil Rules 

provide that an attachment to a complaint generally becomes ‘part of the pleading for 

all purposes,’ including for ruling on a motion to dismiss.” (quoting FED. R. CIV. P. 

10(c); citations omitted)). And, “[w]hen ‘an allegation is contradicted by the contents 

of an exhibit attached to the pleading, then indeed the exhibit and not the allegation 

controls.’” Rogers v. City of Yoakrum, 660 F. App’x 279, 285 n.6 (5th Cir. 2016) (per 

curiam) (quoting United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 

370, 377 (5th Cir. 2004) (citing, in turn, Simmons v. Peavy-Welsh Lumber Co., 113 

F.2d 812, 813 (5th Cir. 1940))). 

Documents “attache[d] to a motion to dismiss are considered to be part of the 

pleadings, if they are referred to in the plaintiff’s complaint and are central to her 

claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) 

(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 

1993)). And, while the United States Court of Appeals for the Fifth Circuit “has not 

articulated a test for determining when a document is central to a plaintiff’s claims, 

the case law suggests that documents are central when they are necessary to 

establish an element of one of the plaintiff’s claims. Thus, when a plaintiff’s claim is 

based on the terms of a contract, the documents constituting the contract are central 

to the plaintiff’s claim.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. 

Tex. 2011). But, “if a document referenced in the plaintiff’s complaint is merely 

evidence of an element of the plaintiff’s claim, then the court may not incorporate it 

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into the complaint.” Id.

And a plaintiff may not amend his allegations through a response to a motion 

to dismiss. “[A] claim for relief” must be made through a pleading, FED. R. CIV. P. 8(a), 

and a response to a motion is not among the “pleadings [that] are allowed” under the 

Federal Rules of Civil Procedure, FED. R. CIV. P. 7(a); see, e.g., Klaizner v. 

Countrywide Fin., No. 2:14-CV-1543 JCM (PAL), 2015 WL 627927, at *10 (D. Nev. 

Feb. 12, 2015) (“All claims for relief must be contained in a pleading. A response to a 

motion is not a pleading and it is improper for the court to consider causes of action 

not contained in the pleadings.” (citations omitted)). 

Analysis 

Jackson, a car salesman, alleges that Cooley wrongfully fired him, withholding 

his November and December bonus checks, and he asserts claims under the 

Fourteenth Amendment and for discrimination. See generally Dkt. No. 3; see id. at 26 

(Cooley “denied me my bonus and took customers from me and gave to other sale[s 

persons].”). 

Jackson’s complaint is difficult to follow. But, in moving to dismiss his claims, 

Cooley liberally construes Jackson as alleging that Cooley violated the Fourteenth 

Amendment and Title VII of the Civil Rights Act of 1964 “for allegedly subjecting him 

to harassment by way of denying him wages and cruel and unusual treatment on the 

basis of his race, age, criminal history and ‘[in]ability to move and understand as well 

as others.’” Dkt. No. 7 at 1. 

The undersigned agrees with this construction with one exception. Jackson 

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need not provide a legal theory for the claims he alleges. See Johnson, 574 U.S. at 12 

(“Having informed [a defendant] of the factual basis for their complaint, [a plaintiff 

is] required to do no more to stave off threshold dismissal for want of an adequate 

statement of their claim,” so a plaintiff need not “set out a legal theory for the 

plaintiff’s claim for relief.” (cleaned up)). 

So, insofar as Jackson may have cited Title VII, the Court should not dismiss 

a claim to the extent that the facts alleged do not support liability under Title VII but 

better fit another statute, such as the Age Discrimination in Employment Act or the 

Americans with Disabilities Act. 

Starting with Jackson’s contentions that Cooley violated his constitutional 

rights, “[a] plaintiff makes out a [42 U.S.C.] § 1983 claim if he ‘shows a violation of 

the Constitution or of federal law, and then shows that the violation was committed 

by someone acting under color of state law.’” Rich v. Palko, 920 F.3d 288, 293-94 (5th 

Cir. 2019) (cleaned up; quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)). 

“The traditional definition of acting under color of state law requires that the 

defendant in a § 1983 action have exercised power ‘possessed by virtue of state law 

and made possible only because the wrongdoer is clothed with the authority of state 

law.’” Gomez v. Galman, 18 F.4th 769, 775 (5th Cir. 2021) (per curiam) (quoting West 

v. Atkins, 487 U.S. 42, 49 (1988) (quoting, in turn, United States v. Classic, 313 U.S. 

299, 326 (1941))). 

But Jackson makes no allegations that Cooley acted under color of state law. 

So his Fourteenth Amendment claim fails. 

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Next, insofar as Jackson alleges claims for wrongful employment practices, 

Cooley argues that the claims are untimely based on the length of time between 

Jackson’s termination and his filing an EEOC charge (more than 500 days), asserting 

that the Court may take judicial notice of the charge as a matter of public record. See

Dkt. No. 7 at 8-9; see also King v. Life School, 809 F. Supp. 2d 572, 579 n.1 (N.D. Tex. 

2011). It appears that Cooley intended to attach the charge to its motion to dismiss. 

See Dkt. No. 7 at 8. But it did not. And the actual charge is not attached to the 

complaint nor, it appears, otherwise included in the record. So the undersigned will 

address whether Jackson has alleged plausible employment-based claims. 

To plausibly allege (and ultimately prove) a claim of discrimination under Title 

VII, for example, requires that Jackson either rely on direct evidence of 

discrimination or, in the alternative, proceed under a burden-shifting analysis. 

“‘[D]irect evidence is rare’” and has been defined by the Fifth Circuit “as 

‘evidence which, if believed, proves the fact without inference or presumption.’” Clark 

v. Champion Nat’l Sec., Inc., 952 F.3d 570, 579 (5th Cir. 2020) (footnotes omitted). 

For example, “‘[a] statement or document which shows “on its face that an improper 

criterion served as a basis – not necessarily the sole basis, but a basis – for the adverse 

employment action [is] direct evidence of discrimination.”’” Clark, 952 F.3d at 579 

(footnote omitted). 

Because Jackson’s allegations do not implicate direct evidence of 

discrimination, he must proceed under the applicable burden-shifting analysis and 

first articulate a prima facie case as to racial discrimination, the elements of which 

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are that Jackson 

(1) is a member of a protected group; (2) was qualified for the position at 

issue; (3) was discharged or suffered some adverse employment action 

by the employer; and (4) was replaced by someone outside his protected 

group or was treated less favorably than other similarly situated 

employees outside the protected group. 

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citation omitted). 

Jackson need not establish a prima facie case at the pleading stage. See

Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019); Raj v. La. 

State Univ., 714 F.3d 322, 331 (5th Cir. 2013). 

But he must “plead sufficient facts on all of the ultimate elements of his claim 

to make his case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th 

Cir. 2016) (citations omitted); see also Meadows v. City of Crowley, 731 F. App’x 317, 

318 (5th Cir. 2018) (per curiam) (Raj “does not exempt a plaintiff from alleging facts 

sufficient to establish the elements of her claims.” (citations omitted)); Body by Cook, 

Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 387 n.1 (5th Cir. 2017) (“Although 

not a pleading standard, this court has looked to the ‘evidentiary framework’ set forth 

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether a 

plaintiff pleads discriminatory intent.” (cleaned up)). 

And Jackson “must plausibly set out facts that [Cooley] ‘took the adverse 

employment action against [him] because of [a] protected status.’” Sanchez v. Chevron 

N. Am. Exploration & Prod. Co., No. 20-30783, 2021 WL 5513509, at *5 (5th Cir. Nov. 

24, 2021) (per curiam) (quoting Raj, 714 F.3d at 331; emphasis by Raj). 

In sum, at this stage, the Court must ask whether Jackson has alleged enough 

facts, accepted as true, to allege an actionable claim of discrimination. See 

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). And, if he “has not pled 

such facts,” it is “proper[ to] dismiss” such a claim. Meadows, 731 F. App’x at 318; see 

also Cicalese, 924 F.3d at 766-67 (noting that the district court’s “task is to identify 

the ultimate elements of [the applicable employment-related] claim and then 

determine whether the” plaintiff has pled those elements but that a “district court 

err[s if it] require[es a plaintiff] to plead something beyond those elements to survive 

a motion to dismiss”).

Jackson at least alleges a protected status based on race. He also alleges that 

he was discharged. But, even if the Court can infer from Jackson’s allegations that 

he was qualified for his position, as he was employed in the position from which he 

was terminated, see, e.g., Berquist v. Wash. Mut. Bank, 500 F.3d 344, 350-51 (5th Cir. 

2007), he provides no facts to support the fourth essential element: that he was at 

least treated less favorably than other similarly situated employees outside the 

protected group by identifying a comparator, someone “under nearly identical 

circumstances,” Lee v. Kan. City So. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting 

Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991)). 

“[C]ritically, the plaintiff’s conduct that drew the adverse employment decision 

must have been ‘nearly identical’ to that of the proffered comparator who allegedly 

drew dissimilar employment decisions. If the ‘difference between the plaintiff’s 

conduct and that of those alleged to be similarly situated accounts for the difference 

in treatment received from the employer,’ the employees are not similarly situated 

for the purposes of an employment discrimination analysis.” Id. (footnotes omitted). 

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And, should the complaint be construed as also alleging a hostile workplace, 

none of Jackson’s allegations alone or in combination are sufficiently severe or 

pervasive to have altered the conditions of his employment. 

“Hostile work environment is a specific discrimination claim under Title VII.” 

Hudson v. Lincare, Inc., 58 F.4th 222, 229 (5th Cir. 2023) (citing Harris v. Forklift 

Sys., Inc., 510 U.S. 17, 18-19 (1993)). “When a ‘workplace is permeated with 

“discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or 

pervasive to alter the conditions of the victim’s employment and create an abusive 

working environment,” Title VII is violated.’” Id. (quoting Harris, 510 U.S. at 21 

(quoting, in turn, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986))). 

A required prima facie element of a claim of hostile work environment is that 

“the harassment complained of affected a term, condition, or privilege of 

employment.” Johnson, 7 F.4th at 399-400 (citing Ramsey v. Henderson, 286 F.3d 264, 

268 (5th Cir. 2002)). “To affect a term, condition, or privilege of employment, the 

harassing conduct ‘must be sufficiently severe or pervasive to alter the conditions of 

the victim’s employment and create an abusive working environment.’” E.E.O.C. v. 

Boh Bros. Constr. Co., 731 F.3d 444, 453 (5th Cir. 2013) (en banc) (cleaned up; quoting 

Aryain v. Wal-Mart Stores of Tex., L.P., 534 F.3d 473, 479 (5th Cir. 2008)). 

Courts in this circuit apply “an objective ‘reasonable person’ standard to 

evaluate severity and pervasiveness.” Id. (citing Oncale v. Sundowner Offshore 

Servs., Inc., 523 U.S. 75, 82 (1998)). 

This inquiry “requires that the court consider ‘all the circumstances,’ including 

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‘the frequency of the discriminatory conduct; its severity; whether it is physically 

threatening or humiliating, or a mere offensive utterance; and whether it 

unreasonably interferes with an employee’s work performance.’” Johnson, 7 F.4th at 

400 (quoting Harris, 510 U.S. at 23). But “no single factor is required.” Harris, 510 

U.S. at 23. 

The Court should therefore grant Cooley’s motion and dismiss the complaint. 

Leave to Amend 

The time to file objections to this recommendation (further explained below) 

allows Jackson an opportunity to explain how he would cure the deficiencies 

identified above (that is provide enough facts to plausibly allege all elements of each 

claim) and thus show the Court that this case should not be dismissed with prejudice 

at this time and that the Court should instead grant him leave to amend his claims. 

See Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (per curiam) 

(“A court should freely give leave to amend when justice so requires, FED. R. CIV. P. 

15(a)(2), but a movant must give the court at least some notice of what his or her 

amendments would be and how those amendments would cure the initial complaint’s 

defects. If the plaintiff does not provide a copy of the amended complaint nor explain 

how the defects could be cured, a district court may deny leave.” (citations omitted)). 

But, if Jackson fails to show that leave to amend should be granted, the Court 

should dismiss this case with prejudice. 

Recommendation

The Court should grant Defendant Clay Cooley LLC’s motion to dismiss [Dkt. 

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No. 7] and dismiss this lawsuit with prejudice unless, within the time to file objections 

to these findings, conclusions, and recommendation, Plaintiff Piero Jackson 

satisfactorily shows that he can amend his complaint to allege a plausible claim. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: May 23, 2023 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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