IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHAD R. HARRIS, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-2279-K-BN 

 § 

AMAZON.COM INC., § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Chad R. Harris filed this pro se lawsuit alleging Title VII claims of sex 

discrimination and retaliation, paying the filing fee to do so. See Dkt. No. 3. 

Defendant Amazon.com, Inc. moved to dismiss the complaint under Federal 

Rule of Civil Procedure 12(b)(6), Harris moved to amend the complaint, and the Court 

granted the motion to dismiss, terminated the motion to amend as unnecessary, and 

dismissed Harris’s lawsuit with prejudice on May 8, 2023. See Harris v. Amazon.com 

Inc., No. 3:22-cv-2279-C-BN, 2023 WL 3311099 (N.D. Tex. Apr. 18, 2023), rec. 

adopted, 2023 WL 3313590 (N.D. Tex. May 8, 2023) (“Harris I”). 

Harris noticed an appeal of the judgment on May 25, 2023. See Dkt. No. 27. 

On August 18, 2023, the en banc United States Court of Appeals for the Fifth 

Circuit entered its decision in Hamilton v. Dallas County, 79 F.4th 494 (5th Cir. 

2023), in which it “made clear that Title VII requires a broader reading than [its] 

‘ultimate employment decision’ line of cases permitted and thus ‘end[ed] that 

interpretive incongruity’ by removing that requirement,” Harrison v. Brookhaven 

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Sch. Dist., 82 F.4th 427, 428 (5th Cir. 2023) (per curiam). 

The Fifth Circuit then vacated the judgment in Harris I and remanded “to 

allow the district court, in the first instance, to address Amazon’s motion to dismiss 

in light of Hamilton and Harrison.” Harris v. Amazon.com Inc., No. 23-10556, 2024 

WL 688255 (5th Cir. Feb. 20, 2024) (per curiam) (“Harris II”). 

After remand, this lawsuit was reassigned to United States District Judge Ed 

Kinkeade, and Judge Kinkeade re-referred it to the undersigned United States 

magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing 

order of reference. 

Because Amazon did not have the benefit of Hamilton and Harrison when it 

moved to dismiss Harris’s claims, the Court allowed Amazon to supplement its prior 

motion to dismiss. See Dkt. No. 36. Amazon did so. See Dkt. No. 37. Harris then filed 

a response, and Amazon replied. See Dkt. Nos. 38-40. 

The undersigned now enters these findings of fact, conclusions of law, and 

recommendation that the Court should grant the motion to dismiss in part. 

Applicable Background 

As set out by the Fifth Circuit, 

[i]n his complaint, Harris alleged the following: On November 28, 2021, 

he was hired to work in Amazon’s Coppell, Texas, facility as a “packer.” 

The job description for this position stated that the duties included, inter 

alia, packaging, labeling, and inspecting orders to be delivered. 

However, within weeks of starting, Amazon assigned Harris other 

duties, which became “more labor intensive.” Harris ultimately was 

“moved into ‘Tote Running,’ which is considered by most if not every 

packer, as the hardest physical job in the packing area,” and “[t]his 

assignment was only given to men.” 

According to Harris, “most of the time during peak season,” two 

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tote runners were assigned to approximately seventy to seventy-five 

packers. A packer would stack twelve totes, and then the tote runner 

would move each stack of twelve totes to the end of the line. Tote runners 

would move the stacks by loading them on to a cart, which could hold 

eight stacks. Once loaded, the cart weighed roughly 500 pounds. Tote 

runners would then push the cart about one-eighth of a mile, remove 

and put the totes in a standing area, and then push the empty cart 

(which weighed about 120 pounds) back to the beginning of the line to 

repeat. Tote runners would do this for ten hours a day. Harris contends 

that “measured by sports watches, the daily distance traveled per day 

was consistently between twelve and twenty miles.” Harris “reported his 

concerns that only men pushed totes.” The response from his managers 

was that tote running was “too hard for women.” 

When Harris on occasion asked to be relieved of tote running due 

to physical exhaustion, management would initially agree, but then 

never follow through. On April 13, 2022, Harris told his manager that 

“his knees experienced pain/agony” and that he did not want to push the 

cart on the longer route. Harris was told to go home or ask for 

accommodations, but Harris “did not wish to report any prior pains in 

[his] knees.” 

On July 27, 2022, Harris filed a complaint with the Equal 

Employment Opportunity Commission (“EEOC”). Harris alleged that 

Amazon was discriminating against him on the basis of his sex because 

female packers were not required to be tote runners like male packers. 

On August 15, 2022, Harris was sent to train in another area of the 

building called “stow.” Harris alleged that stow was a less desirable job 

assignment and that he was sent there in direct retaliation for filing his 

EEOC complaint. The position is less desirable because Harris no longer 

has the ability to receive “voluntary time off” and his meal breaks are 

now at 10:00 A.M. and 2:00 P.M., instead of 11:00 A.M. and 3:00 P.M. 

He also alleges that he has physical pain and suffering in his knee area 

and in both legs. He has pain in his knees while walking up stairwells 

and cramps in the same area at night while asleep. Prior to his tote 

runner job, he did not have these pains, and the pain has persisted even 

after being removed from tote running. 

Harris alleges as his first cause of action, discrimination in 

violation of Section 2000e-2 of the Civil Rights Act. He asserts that he 

has been denied the same terms and conditions of employment available 

to women by placing him in a substantially more physically demanding 

position. Harris alleges that he has suffered mental anguish, emotional 

distress, depression, humiliation, loss of self-esteem, and emotional pain 

and suffering, as well as physical pain and suffering. For his second 

cause of action, Harris alleges that Amazon unlawfully retaliated 

against him for filing an EEOC complaint when they transferred him to 

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stow. 

In response, Amazon filed an answer as well as a Rule 12(b)(6) 

motion to dismiss for failure to state a claim. Amazon argued that 

Harris’s first cause of action – his discrimination claim – should be 

dismissed because he failed to allege that he suffered an “adverse 

employment action,” which is a required element of a discrimination 

claim. Amazon similarly argued that Harris’s second cause of action – 

his retaliation claim – should also be dismissed for lack of a “materially 

adverse” employment action. The magistrate judge noted that under 

this Court’s jurisprudence, “adverse employment action” meant an 

“ultimate employment decision” such as “hiring, firing, demoting, 

promoting, granting leave, and compensating.” The magistrate judge 

therefore recommended that Harris’s complaint be dismissed. 

Overruling Harris’s objections, the district court adopted the magistrate 

judge's recommendation and dismissed Harris’s complaint. Harris filed 

a timely notice of appeal. 

Harris II, 2024 WL 688255, at *1-*2. 

Legal Standards 

Considering a motion 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 Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). 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). Cf. Bryant v. Ditech 

Fin., L.L.C., No. 23-10416, 2024 WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as 

plaintiffs cannot state a claim using speculation, defendants cannot defeat plausible 

inferences using speculation.”). 

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“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.” Iqbal, 556 

U.S. at 678. So, “[w]here a complaint pleads facts that are merely consistent with a 

defendant’s liability, it stops short of the line between possibility and plausibility of 

entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g., 

Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random 

puffs of smoke but nothing resembling real signs of fire, the plausibility standard is 

not satisfied.”). 

And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed 

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

conclusions. So, 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))). 

And, so, “to survive a motion to dismiss” under Twombly and Iqbal, plaintiffs 

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

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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)); cf. Brown v. Tarrant Cnty., Tex., 

985 F.3d 489, 494 (5th Cir. 2021) (While “[p]ro se complaints receive a ‘liberal 

construction,’” “mere conclusory allegations on a critical issue are insufficient.” 

(cleaned up)). 

Applying these general standards to this context, “an employment 

discrimination case, the complaint need not contain specific facts establishing a 

prima facie case of discrimination under the framework set forth ... in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973).” Norsworthy v. Hous. Indep. Sch. Dist., 

70 F.4th 332, 336 (5th Cir. 2023) (cleaned up). 

“But a plaintiff is still required to plead sufficient facts on all of the ultimate 

elements of [each] claim.” Id. (cleaned up; emphasis in original). 

And, at this 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 [a] protected status.’” Thomas v. Dall. Indep. Sch. Dist., 

No. 23-10882, 2024 WL 2874367, at *4 (5th Cir. June 7, 2024) (quoting Cicalese v. 

Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019); emphasis in Cicalese). 

That is, 

[a] complaint need not allege each prong of the prima facie test for 

disparate treatment ... ; to support a disparate treatment claim under 

Title VII, though, it must plausibly set out facts that the defendant took 

the adverse employment action against a plaintiff because of [a] 

protected status. [Accordingly, a] plaintiff must allege facts, direct or 

circumstantial, that would suggest [the employer’s] actions were based 

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on [the plaintiff’s protected status] or that [the employer] treated 

similarly situated employees of other races or national origin more 

favorably. 

Sanchez v. Chevron N. Am. Exploration & Prod. Co., No. 20-30783, 2021 WL 5513509, 

at *5 (5th Cir. Nov. 24, 2021) (per curiam) (cleaned up; emphasis in origial). 

“Similarly, for a retaliation claim, a plaintiff only needs to plausibly ‘allege 

facts going to the ultimate elements of the claim to survive a motion to dismiss.’” 

Smith v. Kendall, No. 23-50713, 2024 WL 4442040, at *4 (5th Cir. Oct. 8, 2024) (per 

curiam) (quoting Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021)). 

Those “ultimate elements” are “that 1) [the plaintiff] engaged in protected 

activity, 2) she suffered an adverse employment action, and 3) a causal link exists 

between the protected activity and the adverse employment action.” Wright, 990 F.3d 

at 433 (cleaned up). 

And, “[i]n either context, ‘[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.’” Smith, 2024 WL 4442040, at *4 (quoting Cicalese, 924 F.3d at 767). 

Analysis

As to Harris’s claims of sex discrimination and retaliation, “Title VII forbids 

an employer from taking an adverse employment action against an employee because 

of [their] sex.” Wallace v. Performance Contractors, Inc., 57 F.4th 209, 217 (5th Cir. 

2023) (citations omitted). “Title VII also forbids retaliation as a form of sex-based 

discrimination.” Id. at 224. 

An adverse employment action is an essential element for both claims. See, 

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e.g., id. at 218, 224. And such an action “need only be a term, condition, or privilege 

of employment.” Hishon v. King & Spalding, 467 U.S. 69, 77 (1984). 

And, although “Hamilton recognized that Title VII ‘does not permit liability for 

de minimis workplace trifles,’” the Court of Appeals “declined to address ‘the precise 

level of minimum workplace harm’ necessary to sustain a discrimination claim.’” 

Yates v. Spring Indep. Sch. Dist., 115 F.4th 414, 420 (5th Cir. 2024) (quoting 

Hamilton, 79 F.4th at 506). 

But, “as precedent informs us, the phrase ‘terms, conditions, or privileges’ 

should be broadly construed.” Harrison, 82 F.4th at 430 (citing Hamilton, 79 F.4th at 

502-04). 

“For example, the phrase is not limited to ‘economically adverse employment 

actions.’” Id. (quoting Hamilton, 79 F.4th at 504; citing Faragher v. City of Boca 

Raton, 524 U.S. 775, 786 (1998) (“We have repeatedly made clear that although the 

statute mentions specific employment decisions with immediate consequences, the 

scope of the prohibition is not limited to ‘economic’ or ‘tangible’ discrimination, and 

that it covers more than ‘terms’ and ‘conditions’ in the narrow contractual sense.” 

(cleaned up))); see also Smith v. McDonough, No. SA-22-CV-01383-JKP, 2023 WL 

5918322, at *5 (W.D. Tex. Sept. 8, 2023) (applying Hamilton to find that “Smith’s 

allegations of discrimination based on criticism and scrutiny of his work and having 

his telecommuting agreement revoked could potentially support a finding that he was 

denied the terms, conditions, and privileges of employment”); Johnson-Lee v. Tex. 

A&M Univ. – Corpus Christi, ___ F. Supp. 3d ____, No. 2:23-CV-00229, 2024 WL 

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3196764, at *4 (S.D. Tex. Apr. 11, 2024) (“The Fifth Circuit has held that working 

undesirable shifts is a harm that is ‘far more than “de minimis.”’ Similarly, it seems 

that having to perform undesirable work assignments that are outside an employee’s 

job duties should be enough as well.” (quoting Hamilton, 79 F.4th at 505)). 

And, after Hamilton’s reembrace of Title VII’s plain text, the United States 

Supreme Court, examining the same text, “disapprove[d]” of the rejection by lower 

courts of adverse employment claims based on transfers “on the ground that the 

transfer did not cause [the plaintiff] a ‘significant’ employment disadvantage”: 

“Although an employee must show some harm from a forced transfer to prevail in a 

Title VII suit, she need not show that the injury satisfies a significance test. Title 

VII’s text nowhere establishes that high bar.” Muldrow v. City of St. Louis, Mo., 601 

U.S. 346, 350 (2024); see, e.g., Zuniga v. City of Dall., Tex., No. 3:23-cv-2308-D, 2024 

WL 2734956, at *3 n.3 (N.D. Tex. May 28, 2024) (“[T]o make out a Title VII 

discrimination claim based on transfer to a new role, a plaintiff ‘must show some

harm’ – not ‘significant’ harm – ‘respecting an identifiable term or condition of 

employment.’” (emphasis in original; quoting Muldrow, 601 U.S. at 974)); see also 

Liao v. Univ. of Tex. at San Antonio, SA-22-CV-01359-XR, 2024 WL 4564278, at *9 

(W.D. Tex. Oct. 23, 2024) (confronting what counts as a discriminatory adverse action 

after Hamilton and Muldrow and concluding that, while “[t]he Fifth Circuit has not 

definitively addressed the precise level of minimum workplace harm necessary to 

establish an adverse action, besides stating that something more than de minimis 

harm is required,” “[b]eing placed in a disadvantageous situation likely suffices” 

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(cleaned up)). 

But, unchanged by either Muldrow or Hamilton, “a plaintiff seeking to 

establish a retaliatory adverse employment action ‘must show that a reasonable 

employee would have found the challenged action materially adverse, which in this 

context means it well might have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.’” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 

818, 826-27 (5th Cir. 2019) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 

U.S. 53, 67-68 (2006)), abrogated on other grounds by Hamilton, 79 F.4th 494. 

And, so, now, “[c]ompared to the discrimination context, an ‘adverse 

employment action’ for retaliation claims under Title VII appears to have a higher 

bar.” Liao, 2024 WL 4564278, at *9. 

And the Supreme Court, in Muldrow, explained why this is so: 

If an action causes less serious harm, ... it will not deter Title VII 

enforcement; and if it will not deter Title VII enforcement, it falls outside 

the purposes of the ban on retaliation.... [But t]he anti-discrimination 

provision ... simply seeks a workplace where individuals are not 

discriminated against because of traits like race and sex. The provision 

thus flatly prevents injury to individuals based on status, without 

distinguishing between significant and less significant harms. 

601 U.S. at 357-58 (cleaned up). 

Applying these standards to Harris’s two sex-based claims, he has alleged the 

two ultimate elements that allow a discrimination claim to proceed, but he has not 

met the higher bar as to the retaliation claim, which the Court should now dismiss 

with prejudice. 

Taking up the retaliation claim first, the legal landscape has shifted 

significantly since the Court dismissed Harris’s lawsuit – but not as to retaliation 

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claims, as explained above. And, so, the ground under the dismissal of that claim 

remains solid. 

As the Court previously explained, 

in the context of a retaliation claim, the adverse employment actions 

that Harris alleges are not materially adverse. That is, in this context, 

“close scrutiny, denying days off, failing to alter a schedule, or assigning 

a heavy workload are not considered adverse actions.” EEOC v. Bass Pro 

Outdoor World, LLC, No. 4:11-CV-3425, 2013 WL 1124063, at *6 & n.11 

(S.D. Tex. Mar. 18, 2013) (collecting cases); see Paul v. Elayn Hunt Corr. 

Ctr., 666 F. App’x 342, 347-48 (5th Cir. 2016) (“[A] reassignment that 

requires additional tasks is not materially adverse if it is not 

accompanied by any other change in the employee’s status. And a merely 

‘[u]ndesirable work assignment’ does not result in material adversity to 

the assigned employee. Rather, as we have repeatedly held, a ‘purely 

lateral transfer’ is not an adverse employment action.” (citations 

omitted)).

Regarding the [voluntary time off] claim, Harris’s allegations 

reflect that this “benefit” was tied to the workload of his old assignment, 

and his allegations should not be construed as Amazon’s denying him 

leave. Similarly, just because Harris had to adjust his lunch schedule to 

a time that he alleges is less desirable, this change, while maybe 

“materially inconvenient,” is not materially adverse. Benford v. 

Milwaukee Elec. Tool Corp., No. 4:19-CV-179-DMB-JMV, 2021 WL 

735642, at *6 (N.D. Miss. Feb. 25, 2021) (“[F]or ‘a change in work 

schedule to be sufficiently adverse for purposes of plausibly alleging a 

retaliation claim, there must be some extenuating circumstance, of 

which the plaintiff alleges her employer was aware, that transforms 

such a change from merely inconvenient to materially adverse.’ Because 

Benford has made no allegation of extenuating circumstances which 

would suggest that the change in lunch hour would have any adverse 

impact on her, it follows that this change may not be considered 

materially adverse. Her retaliation claim premised on this action must 

fail.” (citation omitted)). 

Harris I, 2023 WL 3311099, at *7 (citation modified). 

And, so, because Harris has not alleged facts to support a required element, 

the Court should also dismiss his claim of retaliation in violation of Title VII. 

But Harris has met the now-lower bar to allege a discriminatory adverse 

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action. That is, considering the cases that have addressed this ultimate element after 

Hamilton, the undersigned cannot agree with Amazon that all that Harris has 

alleged are de minimis workplace trifles. Instead, he has alleged that Amazon 

disadvantaged him because of his sex: 

Harris alleges that in November 2021 he was hired as a Packer 

at an Amazon facility in Coppell, Texas, see Dkt. No. 3, ¶ 2, and that, 

throughout his employment, Amazon discriminated against him “by 

denying him the same terms and conditions” of employment “available 

to women,” thus “subjecting him to disparate working conditions, 

denying him terms and conditions of employment equal to that of his 

coworkers who do not belong to the same protected categories,” and 

“placing him in substantially more physically demanding position[s,]” 

id., ¶ 39. 

As these allegations reflect, Harris alleges sex discrimination on 

the basis that, although he was hired as a Packer, he was given other 

assignments requiring more strenuous labor, and that, while some 

women were also given more physically demanding assignments, Harris 

was ultimately moved to Tote Running, “the hardest physical job in the 

packing area,” “only given to men.” Id., ¶ 3; see also id., ¶ 10 (“Many of 

Mr. Harris’ colleagues, both men and women observed a consistent 

practice of scheduling men only for certain harder labor assignments.”). 

Harris I, 2023 WL 3311099, at *4. 

This is now enough to advance an employment discrimination claim beyond 

the pleadings. Cf. Garrett v. Kohls Distrib. eFulfillment Ctr., No. 3:23-cv-2525-B-BN, 

2024 WL 3237184, at *6 (N.D. Tex. June 7, 2024) (“[W]here (particularly pro se) 

plaintiffs provide enough facts to support each element, the case should generally 

move to the next stage, keeping in mind that ‘[a] motion to dismiss for failure to state 

a claim is not meant to resolve disputed facts or test the merits of a lawsuit” but 

“instead must show that, even in the plaintiff’s best-case scenario, the complaint does 

not state a plausible case for relief.’” (quoting Sewell v. Monroe City Sch. Bd., 974 

F.3d 577, 581 (5th Cir. 2020))), rec. accepted, 2024 WL 3240656 (N.D. Tex. June 28, 

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2024). 

Recommendation

The Court should grant in part and deny in part the motion to dismiss the 

complaint [Dkt. No. 6], as supplemented on remand, see Dkt. Nos. 36-40, to the extent 

that the Court should dismiss with prejudice Plaintiff Chad R. Harris’s Title VII 

retaliation 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: November 14, 2024 

 _________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE 

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