IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHAD R. HARRIS, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-2279-C-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. Senior 

United States District Judge Sam R. Cummings referred Harris’s lawsuit to the 

undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. Defendant Amazon.com, Inc. 

simultaneously answered and moved to dismiss Harris’s complaint under Federal 

Rule of Civil Procedure 12(b)(6). See Dkt. Nos. 6, 7. Harris responded and moved to 

amend his claims. See Dkt. Nos. 10-13. The parties then briefed Harris’s motion to 

amend. See Dkt. Nos. 15-17. And the undersigned now enters these findings of fact, 

conclusions of law, and recommendation that the Court should grant the motion to 

dismiss, terminate the motion to amend as unnecessary, and dismiss the complaint 

for the reasons and to the extent set out below. 

Legal Standards 

In deciding a motion to dismiss under Rule 12(b)(6) for failure to state a claim 

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upon which relief may be granted, 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). 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; see also Sewell, 974 F.3d at 582 (“Although this 

framework is one-sided, the issue ‘is not whether a plaintiff will ultimately prevail 

but whether he is entitled to offer evidence to support his claims.’ The other side will 

have its say later.” (quoting Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 

(5th Cir. 1996), vacated on other grounds, 113 F.3d 1412 (5th Cir. 1997))). 

“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. “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 

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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)))). 

While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not 

contain detailed factual allegations, a plaintiff must allege more than labels and 

conclusions, and, while a court must accept all of a plaintiff’s 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). A threadbare or formulaic 

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

statements, will not suffice. See id. Instead, “to survive a motion to dismiss” under 

Twombly and Iqbal, a plaintiff need only “plead facts sufficient to show” that the 

claims asserted have “substantive plausibility” by stating “simply, concisely, and 

directly events” that the plaintiff contends entitle him or her to relief. Johnson, 574 

U.S. at 12 (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); see also Inclusive Communities 

Project, 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; citing 

Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (“[T]he degree of 

specificity necessary to establish plausibility and fair notice, and therefore the need 

to include sufficient factual allegations, depends on context.”)). 

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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)). 

As to requests to amend a complaint, Federal Rule of Civil Procedure 15 “gives 

plaintiffs a temporary right to amend their complaints,” and, even after that right 

expires, Rule 15 “requires courts ‘freely give leave [to amend] when justice so 

requires.’” Carver v. Atwood, 18 F.4th 494, 498 (5th Cir. 2021) (citing FED. R. CIV. P. 

15(a)(1), then quoting FED. R. CIV. P. 15(a)(2)). But a plaintiff may amend his 

complaint only “once as a matter of course,” FED. R. CIV. P. 15(a)(1). And “[o]nce 

means once.” Logue v. Patient First Corp., 246 F. Supp. 3d 1124, 1127 (D. Md. 2017). 

Where a party may no longer amend as a matter of course nor has obtained the 

opposing party’s written consent, see FED. R. CIV. P. 15(a)(2), and no court-imposed 

deadline by which to amend has expired, see FED. R. CIV. P. 16(b)(4); Shepherd v. City 

of Shreveport, 920 F.3d 278, 287-88 (5th Cir. 2019), 

[l]eave to amend must be “freely given when justice so requires.” FED. R.

CIV. P. 15(a). “[U]nless there is a substantial reason, such as undue 

delay, bad faith, dilatory motive, or undue prejudice to the opposing 

party, the discretion of the district court is not broad enough to permit 

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denial.” Martin’s Herend Imports, Inc. v. Diamond & Gem Trading 

United States of Am. Co., 195 F.3d 765, 770 (5th Cir. 1999) (internal 

quotations omitted). Similarly, “[a] district court may deny a proposed 

amendment for futility – meaning the amended complaint would fail to 

state a claim upon which relief could be granted.” Villarreal v. Wells 

Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016) (citing Stripling v. 

Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000)). 

Petty v. Great West Cas. Co., 738 F. App’x 414, 414-15 (5th Cir. 2019) (per curiam) 

(citation modified); see also Stem v. Gomez, 813 F.3d 205, 215-16 (5th Cir. 2016) 

(“When an amended complaint would still ‘fail to survive a Rule 12(b)(6) motion,’ it is 

not an abuse of discretion to deny the motion’” for leave to amend. (quoting Marucci 

Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014))); 

Wiggins v. La. State Univ. – Health Care Servs. Div., 710 F. App’x 625, 627 (5th Cir. 

2017) (per curiam) (“Ordinarily, ‘a pro se litigant should be offered an opportunity to 

amend his complaint before it is dismissed.’ Rule 15(a) provides that leave to amend 

shall be ‘freely’ given ‘when justice so requires.’ ‘[T]he language of this rule “evinces 

a bias in favor of granting leave to amend.”’ Granting leave to amend, however, is not 

required if the plaintiff has already pleaded her ‘best case.’ A plaintiff has pleaded 

her best case after she is ‘apprised of the insufficiency’ of her complaint. A plaintiff 

may indicate she has not pleaded her best case by stating material facts that she 

would include in an amended complaint to overcome the deficiencies identified by the 

court. Similarly, a district court need not grant a futile motion to amend.” (citations 

omitted)). 

Analysis

Starting with the claim of sex discrimination, “Title VII forbids an employer 

from taking an adverse employment action against an employee because of [their] 

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sex.” Wallace v. Performance Contractors, Inc., 57 F.4th 209, 217 (5th Cir. 2023) 

(citing 42 U.S.C. § 2000e-2(a); Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 

2014)). 

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.”). 

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

Title VII requires that Harris 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 

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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 Harris’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 sex discrimination, the elements of which are that Harris 

(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). 

Harris 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 

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

And Harris “must plausibly set out facts that [Amazon] ‘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 Harris has alleged enough 

facts, accepted as true, to allege an actionable claim of sex discrimination in violation 

of Title VII. See 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” this 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”).

Amazon argues that Harris’s sex-discrimination claim fails as to the third 

prima facie element: an adverse employment action. See Dkt. No. 6 at 3-5. The 

undersigned agrees. 

To allege “a sex-discrimination claim at all,” Harris must allege that Amazon 

took “adverse employment action against” him. Wallace, 57 F.4th at 218. This 

“judicially-coined term refer[s] to an employment decision that affects the terms and 

conditions of employment.” Thompson, 764 F.3d at 503. Such “actions under Title VII 

include ‘ultimate employment decisions’ such as ‘hiring, firing, demoting, promoting, 

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granting leave, and compensating.’” Wallace, 57 F.4th at 218 (quoting Thompson, 764 

F.3d at 503). 

In general, “[u]ndesirable work assignments are not adverse employment 

actions.” Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997). 

Even so, liberally construing the complaint, Harris may argue that Amazon’s 

reassigning him, from Packer to Tote Running, constitutes an ultimate employment 

decision. 

And “a transfer or reassignment can be the equivalent of a demotion, and thus 

constitute an adverse employment action.” Thompson, 764 F.3d at 503 (citing 

Alvarado v. Tex. Rangers, 492 F.3d 605, 612-15 (5th Cir. 2007)). 

But a transfer that just imposes “chang[ed] working hours or [ ] a higher 

workload does not qualify” as an adverse employment action. Outley v. Luke & 

Assocs., 840 F.3d 212, 217 (5th Cir. 2016) (citing Benningfield v. City of Hous., 157 

F.3d 369, 376-77 (5th Cir. 1998)); see Price v. Wheeler, 834 F. App’x 849, 856 (5th Cir. 

2020) (“[A] loss or addition of (or change in) job responsibilities [does not] constitute 

an adverse action unless the change is so drastic as to constitute a functional 

demotion.” (citing Thompson, 764 F.3d at 504)); Ellis v. Compass Grp. USA, Inc., 426 

F. App’x 292, 296 (5th Cir. 2011) (per curiam) (“Imposing a higher workload than that 

given to other employees is not an adverse employment action under title VII.” (citing 

Benningfield, 157 F.3d at 376-77)). 

So, because Harris has not alleged facts to support this required element, the 

Court should dismiss his claim of sex discrimination in violation of Title VII. 

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“Title VII also forbids retaliation as a form of sex-based discrimination.” 

Wallace, 57 F.4th at 224. And the prima facie elements of such a claim, which Harris 

must allege facts in support of, are “that: (1) [he] ‘participated in an activity protected 

by Title VII;’ (2) [his] ‘employer took an adverse employment action against’ [him]; 

and (3) ‘a causal connection exists between the protected activity and the adverse 

employment action.’” Id. (quoting Newbury v. City of Windcrest, 991 F.3d 672, 678 

(5th Cir. 2021)). 

In support of his retaliation claim, Harris alleges that he “was removed from 

‘Tote Running’ after the EEOC claim was filed” on July 27, 2022; that he “was 

returned to ‘Packing’ for a brief time”; that he “was then sent to a different area of 

the building, called ‘Stow.’” Dkt. No. 3, ¶¶ 12, 33-35; see also id., ¶ 13 (“On or around 

Aug 15, 2022, Mr. Harris and a few others were sent to train in another area of the 

building, called Stow. Mr. Harris and others were told by manager Mekel, that it 

would be very rare and not to worry. Then, a couple of days later manager Mekel 

stated, they were going to be sending Mr. Harris and some others to Stow more often, 

and if they didn’t like it talk to HR. Manager Mekel hand-picked which people were 

to be trained in Stow, and Mr. Harris now believes this was a direct move to distance 

him from his packing assignment job, and manager Mekel. Mr. Harris has been 

placed in Stow, a less desirable job assignment, every day for near a month. Mr. 

Harris believes this was in direct retaliation. Mr. Harris furthermore, misses the 

chance to receive the benefits that packing receives when there are low orders being 

processed. Mr. Harris no longer has the ability to receive voluntary time off that other 

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packers are offered, nearly every day, called VTO. Mr. Harris is also made to take a 

lunch at an alternate time. Instead of 11 and 3 pm. Mr. Harris now has to adapt and 

eat at 10 and 2 pm. The people who are normally in Stow, come in earlier and leave 

earlier, but Mr. Harris does not. Eating lunch at 10 AM is very difficult, since he just 

ate breakfast within 3 hours.”). 

Amazon also moves to dismiss this claim based on its adverse-employmentaction element. See Dkt. No. 6 at 5-7. 

For purposes of Title VII’s anti-retaliation provision, the Supreme Court 

has held that an adverse employment action is defined slightly more 

broadly than the term is defined in the employment discrimination 

context. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 

(2006). Specifically, 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.” Id. (cleaned up). 

Title VII’s anti-retaliation provisions do not protect employees 

from “petty slights, minor annoyances, and simple lack of good 

manners.” Id. However, retaliatory adverse employment actions also 

need not rise to the level of ultimate employment decisions. Id.; 

Donaldson v. CDB Inc., 335 F. App’x 494, 506 (5th Cir. 2009). [And], 

when determining whether an allegedly retaliatory action is materially 

adverse, courts “look to indicia such as whether the action affected ‘job 

title, grade, hours, salary, or benefits’ or caused ‘a diminution in prestige 

or change in standing among ... coworkers.’” Paul v. Elayn Hunt Corr. 

Ctr., 666 F. App’x 342, 346 (5th Cir. 2016) (quoting Stewart v. Miss. 

Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009)). 

Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826-27 (5th Cir. 2019) (citation 

modified). 

Even though this element “is defined slightly more broadly” 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 

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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, 666 F. 

App’x at 347-48 (“[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 VTO 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)). 

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Again, 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. 

Turning finally to the motion to amend, Harris’s motion was filed just two days 

after Amazon filed its motion to dismiss, so Harris was inside his window to amend 

his complaint as a matter of course. See FED. R. CIV. P. 15(a)(1)(B). The Court should 

therefore terminate the motion for leave to amend as unnecessary. 

Still, Harris’s amendment does not address the substance of his claims – nor 

cure the deficiencies set out above. Cf. Holmes v. Nat’l Football League, 939 F. Supp. 

517, 522 n.7 (N.D. Tex. 1996) (“Although Holmes’ amended complaint supersedes his 

original complaint, the court may nevertheless treat defendants’ motion as directed 

to the amended complaint because the defects in Holmes’ complaint reappear in the 

amended complaint. Moreover, Holmes neither contends that the court should 

require that defendants move for dismissal anew, nor that he will suffer prejudice 

from the use of this procedure.” (citation omitted)). 

Leave to Amend 

Even so, the time to file objections to this recommendation (further explained 

below) allows Harris an opportunity to explain how he would cure the deficiencies 

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

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

at this time and that the Court should instead grant Harris 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. 

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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. Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016). 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. McKinney v. Irving Indep. Sch. Dist., 

309 F.3d 308, 315 (5th Cir. 2002) (affirming denial of leave to amend where plaintiffs 

‘failed to amend their complaint as a matter of right, failed to furnish the district 

court with a proposed amended complaint, and failed to alert both the court and the 

defendants to the substance of their proposed amendment’).”). 

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

should dismiss this case with prejudice. 

Recommendation

The Court should grant the motion to dismiss the complaint [Dkt. No. 6], 

terminate the motion to amend [Dkt. No. 11] as unnecessary, and dismiss this action 

with prejudice unless, within the time to file objections, Plaintiff Chad R. Harris 

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 

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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: April 18, 2023 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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