ORDER GRANTING MOTIONS TO DISMISS – PAGE 1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS 

 FORT WORTH DIVISION 

ERIC L. ELLIS § 

 § 

VS. § ACTION NO. 4:22-CV-864-Y 

 § 

CARGILL MEAT SOLUTIONS, et al. § 

ORDER GRANTING MOTIONS TO DISMISS 

 Before the Court is the motion of Cargill Meat Solutions 

(“Cargill”) for partial dismissal for failure to state a claim 

(doc. 54) and the motion of Ultimate Kronos Group (“UKG”) to 

dismiss for lack of jurisdiction and failure to state a claim (doc. 

56). For the reasons below, the Court will grant both defendants’ 

motions. 

BACKGROUND 

 Plaintiff is an African-American homosexual man formerly 

employed in Cargill’s production facility as a Food Safety Quality 

Representative. (Doc. 52, at 6–9.) UKG is a third-party contractor 

that provides workforce management services to businesses, 

including timekeeping and payroll software applications. (Doc. 56, 

at 9.) Cargill uses UKG’s payroll software services, the provision 

of which requires maintenance and storage of individual employees’ 

personal data—including employees like Plaintiff. (Id., at 9–10.) 

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 Plaintiff’s allegations fall into two main categories: (1) 

various claims against Cargill for discrimination under Title VII 

and for unpaid overtime under the Fair Labor Standards Act 

(“FLSA”), and (2) claims against UKG for breach of contract and 

injuries resulting from a data breach. (See Doc. 52.) 

 As against Cargill, Plaintiff claims he was the victim of 

discrimination, retaliation, and the creation of a hostile work 

environment based on his race and sexual orientation. (Doc. 1, at 

3–8, 18–20.) Specifically, Plaintiff claims that he was subjected 

to a sexually hostile work atmosphere and to sexually explicit and 

demeaning remarks toward homosexuals. (Id.) He further claims that 

Cargill’s homosexual employees were generally subjected to 

unnecessary scrutiny, discipline, and false accusations of 

wrongdoing. (Id.) Finally, he alleges that Cargill failed to 

compensate him for “all hours worked” in violation of the FLSA. 

(Id., at 9-17.) 

 As against UKG, Plaintiff claims he was injured by a criminal 

data breach which compromised employee data maintained by UKG for 

Cargill. (Doc. 56, at 10.) 

 Defendants filed the instant motions to dismiss. 

LEGAL STANDARD 

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal 

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of a suit when the court lacks subject-matter jurisdiction. FED.

R. CIV. P. 12(b)(1). Because Article III standing is necessary for 

the court’s exercise of subject-matter jurisdiction, it is 

properly addressed under Rule 12(b)(1). Lee v. Verizon Commc’ns, 

Inc., 837 F.3d 523, 533 (5th Cir. 2016). The party seeking federal 

jurisdiction has the burden of establishing standing. Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 561 (1992). 

Rule 12(b)(6) authorizes dismissal of a complaint if it fails 

to provide fair notice of a claim and plausible factual allegations 

to support it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007); FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is analyzed together 

with Rule 8(a), which calls for a “short and plain statement of 

the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). 

Under either rule, a reviewing court must accept all wellpleaded facts as true and view them in the light most favorable to 

the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 

673, 675 (5th. Cir. 2007). But the court need not accept conclusory 

statements as true. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). 

After disregarding any conclusory statements, a complaint must 

plead “enough facts to state a claim to relief that is plausible 

on its face.” Twombly, 550 U.S., at 570. And a claim has facial 

plausibility when a plaintiff pleads enough factual content that 

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allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged. Iqbal, 556 U.S., 

at 663. 

ANALYSIS 

I. Cargill’s Partial Motion to Dismiss 

Cargill seeks dismissal of every claim except Plaintiff’s 

claim for unpaid overtime under the FLSA set out in Count IV of 

his complaint. (Doc. 54, at 7.) The Court will therefore address 

each remaining count in turn and as labelled in Plaintiff’s amended 

complaint. 

A. Count I. 

Count I contains Plaintiff’s claim for “respondeat superior,” 

based on Plaintiff’s allegation that “Defendant’s officers, 

agents, servants, employees, or representatives did such [alleged 

discriminatory acts] with [Defendant’s] full authorization.” (Doc. 

52, at 18.) Plaintiff further contends—without any factual 

allegations in support—that each violative act “was done in the 

normal and routine course and scope of employment” of Defendant 

and its agents. (Id.) 

To hold an employer liable for the actions of its employees, 

a claimant must first assert that an employee committed a tort 

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giving rise to liability. See e.g. Prim v. Stein, 6 F.4th 584, 592 

(5th Cir. 2021). Here–aside from the role that individual employees 

allegedly played in Plaintiff’s discrimination claim against 

Cargill—Plaintiff asserts no claim in tort against any individual 

employee for which Cargill could be held liable. This renders Count 

I conclusory, and the Court therefore disregards it. 

B. Counts II, III, VIII, IX, and X. 

Counts II, III, VIII, IX, and X together comprise the thrust 

of Plaintiff’s discrimination, hostile-work-environment, and 

retaliation claims under Title VII. 

1. Discrimination 

To allege a claim for discrimination under Title VII, a 

plaintiff must show: (1) that he is a member of a protected class; 

(2) he was qualified for the position he sought; (3) he suffered 

an adverse employment action at the hands of his employer; and (4) 

others outside the protected class were treated more favorably. 

See Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 

2006). At the motion-to-dismiss stage, a plaintiff need not submit 

evidence to prove a case of discrimination, but he must plead 

sufficient facts on all the elements of a disparate-treatment claim 

to make his case for discrimination plausible. Olivarez v. TCase 4:22-cv-00864-Y Document 104 Filed 10/31/23 Page 5 of 14 PageID 1520
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Mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021). 

At the outset, Plaintiff claims that he was disparately 

treated for his sexual orientation and race, but fails to levy a 

single race-based factual allegation in support beyond an 

unsubstantiated contention that he was “harassed with racial 

slurs.” (See Doc. 52, at 6–8, 19.) While repeated harassment could 

rise to an actionable claim, Plaintiff offers no allegation as to 

who levied the slurs, what slurs were used, when, or through what 

means—the needed facts which could allow the Court’s inference as 

to Cargill’s liability. Therefore, the Court considers Plaintiff’s 

Title VII claims based on racial discrimination conclusory and 

disregards them. 

Insofar as Plaintiff claims discrimination based on sexual 

orientation, he alleges generally that he was subject to “sexually 

explicit remarks, demeaning hateful homosexual remarks, [and] 

frequent heterosexual sex scenes (from movies and tv shows) that 

appeared in multiple breakrooms [and] violent vandalism, resulting 

in his constructive discharge.” (Doc. 52, at 6–7.) He further 

claims that homosexual employees were consistently falsely accused 

of wrongdoing while similarly situated heterosexual employees, 

“actually guilty of wrongdoing,” were not disciplined. (Id.) But 

Plaintiff’s numbered counts asserting his claims for 

discrimination contain no more than recitations of these 

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allegations and of the elements of each claim. (Id., at 6–7, 18–

19.) In sum, Plaintiff provides no further detail about these 

alleged discriminatory occurrences, the “other heterosexual 

employees” allegedly treated better than him, or any facts 

regarding the alleged “violent vandalism” he experienced. 

Without more, these allegations are conclusory, 

unsubstantiated, and rife with buzz words to give the appearance 

of discrimination. But vague and unsubstantiated claims do not 

have facial plausibility when a plaintiff fails to plead enough 

factual content to allow the court to infer that the defendant is 

indeed liable. Iqbal, 556 U.S. at 663. Thus, Plaintiff’s 

allegations of discrimination under Title VII (Counts II and VIII) 

are conclusory, and the Court disregards them. 

2. Retaliation 

 Count IX includes Plaintiff’s claim for retaliation, in which 

he alleges that Defendant’s management “materially disciplined” 

him after he complained to management about his supervisors. (Doc. 

52, at 31.) Other than supplying a photo of a document which 

purports to show that Plaintiff was “coached” regarding workplace 

misbehavior (Id. at 32), he provides no factual allegations to 

support that he was retaliated against for his alleged complaint—

let alone any information to indicate he filed a formal complaint 

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at all. 

 As such, Plaintiff’s retaliation claims are conclusory 

because of a lack of factual content allowing this Court to infer 

Cargill’s liability. Iqbal, 556 U.S. at 663. Therefore, his 

retaliation claim (Count IX) is disregarded. 

 3. Hostile Work Environment 

Count III contains Plaintiff’s claim for hostile work 

environment, in which he alleges that “Defendant violated Title 

VII of the Civil Rights Act of 1964 by creating a hostile work 

environment by repetitive use of racial slurs and also by 

retaliating against him because of his race and sexual 

orientation.” (Doc. 52, at 19.) 

 For the same reasons as his claims for discrimination and 

retaliation, Plaintiff’s claim for hostile work environment (Count 

III) is conclusory and must be dismissed. Iqbal, 556 U.S. at 663. 

 4. Conspiracy to Violate Plaintiff’s Civil Rights 

 Count X alleges that Cargill conspired to violate Plaintiff’s 

civil rights in violation of 42 U.S.C. § 1985(3). (Doc. 52, at 

19). To establish a claim for conspiracy, a plaintiff must plead: 

(1) that there was a conspiracy involving two or more individuals; 

(2) that its purpose was to deprive Plaintiff of equal protection 

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of the laws; (3) an act was taken in furtherance of the conspiracy; 

and (4) that act caused Plaintiff’s injury or deprivation of the 

rights of a citizen of the United States. Hilliard v. Ferguson, 30 

F.3d 649, 652–53 (5th Cir. 1994). 

 Plaintiff’s claim for conspiracy fails for the same reasons 

as his other Title VII claims. Plaintiff presents no factual 

support to identify Cargill’s alleged co-conspirator (see doc. 52, 

at 19), and the Court therefore cannot infer liability for 

conspiracy when only one party is alleged to have taken part in 

it. 

C. Counts IV and XIV1

Counts IV and XIV contain claims for intentional infliction 

of emotional distress. (Doc. 52, at 19, 35.) Plaintiff contends 

that Defendant “intentionally or recklessly harassed the plaintiff 

[with] racial slurs [and that] Defendant’s conduct was extreme and 

outrageous and proximately caused Plaintiff severe emotional 

distress.” (Id.) 

Without more, these allegations amount to a recitation of the 

elements of Plaintiff’s claim, with vague contentions of racial 

and sexual animus accompanied by insufficient factual content to 

1 Plaintiff’s complaint mistakenly asserts a second “Count IX” as a claim 

for intentional infliction of emotional distress. Thus, the Court will address 

this claim as “Count XIV” to correct the complaint’s numeration. 

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allow this Court to infer Defendant’s liability for them. Iqbal, 

556 U.S. at 663. Thus, they are conclusory and will be dismissed. 

D. Counts VI and VII. 

Counts VI and VII, respectively, constitute Plaintiff’s claim 

for breach of contract and an ancillary claim for breach of the 

“implied covenant of good faith and fair dealing.” (Doc. 52, at 

26–30.) Plaintiff relies on excerpts of Cargill’s code of conduct 

and data-privacy policies to allege that Cargill breached a 

contract with Plaintiff when Cargill allegedly discriminated and 

retaliated against Plaintiff and when UKG suffered its data breach. 

(Id.) 

Under Texas law, in an at-will employment relationship an 

employee handbook or ancillary policy manual does not by itself 

constitute a binding contract regarding its contents without clear 

language indicating the contrary. See Green v. Medco Health 

Solutions of Texas, LLC, 947 F.Supp.2d 712, 730–31 (N.D. Tex. May 

27, 2013) (Boyle, J.) (citing Gamble v. Gregg Cnty., 932 S.W.2d 

253, 255 (Tex.App.-Texarkana 1996, no writ)). 

Thus, as pled, Plaintiff fails to state a claim for breach of 

contract because he has not adduced any language from Cargill’s 

code of conduct or data-privacy policy clearly indicating that 

their terms form a binding contract with Cargill employees. 

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Likewise, Plaintiff’s claim for breach of the implied 

covenant of good faith and fair dealing is foreclosed because the 

employer/employee relationship is not recognized as one conferring 

the duty to deal fairly and in good faith under Texas law. Cty. of 

Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex. 2000). 

E. Counts XI, XII and XIII. 

Counts XI, XII, and XIII contain Plaintiff’s various claims 

under Texas state law. Counts XI and XII are Plaintiff’s 

allegations of violations of the Texas state labor code. (Doc. 52, 

at 33–34.) Plaintiff alleges that Defendant “violated Texas Labor 

Code §21.510(1),” and “violated Texas Labor Code §21.056 in that 

Cargill abetted, incited and coerced its employees to engage in 

discriminatory practices against Ellis.” (Id., at 33, 34.) 

Plaintiff offers no further factual contentions to support 

these allegations other than those already recited, and merely 

repeats a litany of damages for which he offers no factual content 

in support. (Id.) Thus, Plaintiff’s contentions that Defendants 

violated the Texas Labor Code are conclusory and must be 

disregarded. 

 Count XIII contains Plaintiff’s allegation of negligent 

hiring and retention. Specifically, Plaintiff alleges that 

“Defendant . . . knew or reasonably should have known that at the 

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time they hired Supervisor Yanet Hernandez [] she would retaliate 

against the Plaintiff if she was paired with the harasser 

Supervisor Mike Calixto.” (Doc. 52, at 34.) For the first time in 

his complaint, Plaintiff offers the names of individuals alleged 

to be liable for the harassment he contends occurred. But because 

Plaintiff does not present sufficient facts to show he was subject 

to discrimination by his supervisors, he therefore cannot 

substantiate an allegation that Cargill “should have known” of 

such a discriminatory tendency. Thus, his claim for negligent 

hiring and retention is conclusory and the Court will dismiss it. 

II. UKG’s Motion to Dismiss 

UKG filed its motion to dismiss for lack of jurisdiction and 

failure to state a claim (doc. 56), contending that Plaintiff lacks 

standing to sue. 

To establish Article III standing, a plaintiff must allege an 

injury in fact that is concrete, particularized, actual, or 

imminent. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). 

Although imminence is an elastic standard, it ensures that an 

alleged injury is not too speculative for the purposes of Article 

III. Id. Only injuries that are “certainly impending” are 

sufficiently imminent to constitute an injury in fact. Id. 

In the data privacy context, the mere exposure to a risk of 

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future harm alone is insufficient to constitute a concrete injury, 

unless that exposure is itself the injury. TransUnion, LLC v. 

Ramirez, 141 S.Ct. 2190, 2210–11 (2021). And while the circuit 

courts are split on the question whether an increased risk of 

identity theft after a data breach is sufficient to confer 

standing, the cases in which they do confer standing at least 

include allegations of actual misuse of the plaintiff’s data by a 

nefarious third party. See Tsao v. Captiva MVP Rest. Partners, 

LLC, 986 F.3d 1332, 1340 (11th Cir. 2021).

Here, Plaintiff’s alleged injuries include the failure to be 

paid on time due to disruptions in the payroll system, fear and 

anxiety as to whether payroll disruptions would continue, the loss 

in value of his personal information, and increased risks of 

identity theft, fraud, and other potential damages. (Doc. 52, at 

42–44.) But plaintiff adduces no evidence to show what data was 

stolen, that his data in fact landed in the hands of a third party, 

nor that his data was actually misused. Plaintiff indeed makes 

vague references to “unauthorized charges” and “lowered credit 

scores resulting from credit inquiries,” but offers no detail to 

expound upon those allegations. (Id.) He likewise avers no further 

factual detail as to how the value of his information was 

diminished—or that his data was ever actually stolen, just that it 

was potentially exposed. Because exposure to a future possibility 

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of injury alone is not an imminent injury, Plaintiff does not plead 

that he suffered an injury in fact. 

Therefore, the Court will dismiss all claims against UKG 

without prejudice for Plaintiff’s lack of standing. 

CONCLUSION 

Because Plaintiff fails to state a claim against Cargill in 

Counts I-IV and VI-XIV of his amended complaint, the Court GRANTS 

Defendant’s motion (doc. 54) and DISMISSES without prejudice those 

claims as against Cargill. As against UKG, The Court GRANTS UKG’s 

motion (doc. 56) and, because Plaintiff lacks standing, DISMISSES 

without prejudice all claims against UKG. Thus, only Count V of 

Plaintiff’s amended complaint against Cargill—which contains his 

claim for overtime pay violations under the FLSA—remain.

 Accordingly, Plaintiff’s subsequent motions for summary 

judgment (doc. 76), judicial notice, (doc. 96), and judgment on 

the pleadings (doc. 97) are DENIED. 

 SIGNED October 31, 2023. 

 ____________________________ 

 TERRY R. MEANS 

 UNITED STATES DISTRICT JUDGE 

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