United States Court of Appeals

for the Fifth Circuit

No. 20-20463

Elijah Anthony Olivarez, 

Plaintiff—Appellant,

versus

T-Mobile USA, Incorporated; Broadspire Services, 

Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Southern District of Texas

No. 4:19-CV-4452

Before Smith, Stewart, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

We withdraw the court’s prior opinion of May 12, 2021 and substitute 

the following opinion.

Title VII of the Civil Rights Act of 1964 prohibits employers from 

“discriminat[ing]” against any individual with respect to employment 

“because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under

Bostock v. Clayton County, 140 S. Ct. 1731 (2020), discrimination on the basis 

of sexual orientation or gender identity is a form of sex discrimination under 

Title VII. Accordingly, a plaintiff who alleges transgender discrimination is 

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2021

Lyle W. Cayce

Clerk

Case: 20-20463 Document: 00515863607 Page: 1 Date Filed: 05/14/2021
No. 20-20463

2

entitled to the same benefits—but also subject to the same burdens—as any

other plaintiff who claims sex discrimination under Title VII.

Elijah Olivarez alleges transgender discrimination under Title VII. 

But Olivarez does not allege facts sufficient to support an inference of 

transgender discrimination—that is, that T-Mobile would have behaved 

differently toward an employee with a different gender identity. So we are 

left with this: An employer discharged a sales employee who happens to be 

transgender—but who took six months of leave, and then sought further 

leave for the indefinite future. That is not discrimination—that is ordinary 

business practice. And Olivarez’s remaining issues on appeal are likewise 

meritless. We accordingly affirm.

I.

Olivarez was employed as a retail store associate for T-Mobile from 

approximately December 21, 2015 to April 27, 2018.

During the first half of 2016, a supervisor allegedly made demeaning 

and inappropriate comments about Olivarez’s transgender status. Second 

Amended Complaint, ¶¶ 7–8. Olivarez filed a complaint with human 

resources. Id. at ¶8. In response, T-Mobile allegedly retaliated by reducing 

Olivarez’s hours to part-time from September to November 2016. Id. at ¶ 9.

In September 2017, Olivarez stopped coming to work in order to 

undergo egg preservation and a hysterectomy. Id. at ¶ 10. The next month, 

Olivarez requested leave to be applied retroactively from September to 

December 2017. Id. Broadspire Services administers T-Mobile’s leave 

programs. Id. It granted Olivarez unpaid leave from September 23 to 

December 17, and paid medical leave from December 17 to December 31. Id.

at ¶¶ 11, 13. In addition, the company granted Olivarez’s request for an 

extension of leave through February 18, 2018. Id. at ¶ 14. But it denied a 

further extension of leave in March 2018. Id. at ¶ 15–16.

Case: 20-20463 Document: 00515863607 Page: 2 Date Filed: 05/14/2021
No. 20-20463

3

T-Mobile fired Olivarez on April 27, 2018. The Equal Employment 

Opportunity Commission issued a right-to-sue letter to Olivarez on August 

15, 2019.

On November 12, 2019, Olivarez filed suit against T-Mobile and 

Broadspire. The first complaint asserted (1) interference, discrimination, 

and retaliation under the Family and Medical Leave Act, 29 U.S.C. § 2601 et 

seq., (2) discrimination and retaliation under Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e et seq., and (3) discrimination under the 

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.

The district court granted Olivarez’s motion to amend the complaint 

on November 22, 2019, and Olivarez filed a First Amended Complaint the 

same day. The amended complaint asserted the same claims and allegations.

On February 13, 2020, the district court entered a scheduling order 

pursuant to Federal Rule of Civil Procedure 16. That order set a deadline of 

March 13 to amend pleadings “with leave of court.” Both T-Mobile and 

Broadspire moved to dismiss for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6). Olivarez opposed both motions and asserted the 

right to further amend the complaint under Federal Rule of Civil Procedure 

15(a).

On March 27, 2020, the district court denied T-Mobile’s and 

Broadspire’s motions without prejudice and allowed Olivarez to further 

amend the complaint by April 17. The district court expressly stated that 

Olivarez’s pleadings were deficient and granted leave to amend the 

complaint “so that it is responsive to the issues raised by the Moving 

Defendants’ motions to dismiss.”

Olivarez filed a Second Amended Complaint on April 16, 2020. As 

relevant to this appeal, that complaint presented the same facts and claims. 

On April 30, T-Mobile and Broadspire moved to dismiss under Rule 12(b)(6). 

Case: 20-20463 Document: 00515863607 Page: 3 Date Filed: 05/14/2021
No. 20-20463

4

Olivarez opposed these motions, but did not request leave to further amend 

the complaint.

The district court granted both motions to dismiss. The court 

dismissed the Title VII discrimination claim on the ground that the Second 

Amended Complaint failed to allege that Olivarez was treated less favorably 

than similarly situated employees outside Olivarez’s protected class. The 

court dismissed the ADA discrimination claim because the Second Amended 

Complaint did not allege sufficient facts to show Olivarez was disabled.

Olivarez filed a motion for reconsideration of the final judgment 

pursuant to Federal Rule of Civil Procedure 59(e) and a motion to further 

amend the complaint under Rule 15(a). The district court denied both 

motions. The district court’s order did not discuss the reasons for denying 

reconsideration, but it stated that it denied the motion to amend pursuant to 

Rule 16(b). Olivarez timely appealed, but raises only the Title VII and ADA 

claims.

We “review the grant of a motion to dismiss under Rule 12(b)(6) de 

novo, accepting all well-pleaded facts as true and viewing those facts in the 

light most favorable to the plaintiff[].” Meador v. Apple, Inc., 911 F.3d 260, 

264 (5th Cir. 2018) (quotation omitted). Rule 12(b)(6) governs dismissal for 

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. 

P. 12(b)(6). Under Rule 8(a)(2), a pleading must contain “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. P. 8(a)(2). Although “the pleading standard Rule 8 announces 

does not require ‘detailed factual allegations,’ . . . it demands more than . . . 

‘labels and conclusions.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). And “[a] 

complaint survives a motion to dismiss only if it pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Meador, 911 F.3d at 264 (quotation omitted).

Case: 20-20463 Document: 00515863607 Page: 4 Date Filed: 05/14/2021
No. 20-20463

5

II.

At the Rule 12(b)(6) stage, our analysis of the Title VII claim is 

governed by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)—and not the 

evidentiary standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973). Under Swierkiewicz, we have explained, “there are two ultimate 

elements a plaintiff must plead to support a disparate treatment claim under 

Title VII: (1) an adverse employment action, (2) taken against a plaintiff 

because of her protected status.” Cicalese v. Univ. of Texas Med. Branch, 924 

F.3d 762, 767 (5th Cir. 2019) (quotations omitted) (citing Raj v. La. State 

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

But “[a]lthough [a plaintiff does] not have to submit evidence to 

establish a prima facie case of discrimination [under McDonnell Douglas] at 

this stage, he [must] plead sufficient facts on all of the ultimate elements of a 

disparate treatment claim to make his case plausible.” Chhim v. Univ. of 

Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016). And when a plaintiff’s 

Title VII disparate treatment discrimination claim depends on circumstantial 

evidence, as Olivarez’s does, the plaintiff “will ‘ultimately have to show’that 

he can satisfy the McDonnell Douglas framework.” Cicalese, 924 F.3d at 767 

(quoting Chhim, 836 F.3d at 470). “In such cases, we have said that it can be 

‘helpful to reference’ that framework when the court is determining whether 

a plaintiff has plausibly alleged the ultimate elements of the disparate 

treatment claim.” Id. (quoting Chhim, 836 F.3d at 470).

Under McDonnell Douglas, a plaintiff must establish a prima facie case 

of discrimination. 411 U.S. at 802. Specifically, a plaintiff must allege facts 

sufficient to support a finding “that he was treated less favorably than others 

outside of his protected class.” Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 

427 (5th Cir. 2017).

Accordingly, when a complaint purports to allege a case of 

circumstantial evidence of discrimination, it may be helpful to refer to 

McDonnell Douglas to understand whether a plaintiff has sufficiently pleaded 

Case: 20-20463 Document: 00515863607 Page: 5 Date Filed: 05/14/2021
No. 20-20463

6

an adverse employment action taken “because of” his protected status as 

required under Swierkiewicz. Cicalese, 924 F.3d at 767 (quotation omitted).

Applying these principles here, there is no dispute that Olivarez 

suffered an adverse employment action. However, Olivarez has failed to 

plead any facts indicating less favorable treatment than others “similarly 

situated” outside of the asserted protected class. See id. In fact, the Second 

Amended Complaint does not contain any facts about any comparators at all. 

The complaint simply indicates that Olivarez took six months of leave from 

September 2017 to February 2018—including an extension granted by TMobile and Broadspire—and that when Olivarez requested additional leave 

in March 2018, T-Mobile denied the request and terminated Olivarez’s

employment in April 2018.

Notably, there is no allegation that any non-transgender employee 

with a similar job and supervisor and who engaged in the same conduct as 

Olivarez received more favorable treatment. And comparator allegations 

aside, the complaint presents no other facts sufficient to “nudge[] [the] 

claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 

547. In sum, the complaint does not plead any facts that would permit a 

reasonable inference that T-Mobile terminated Olivarez because of gender 

identity.

Olivarez’s ADA discrimination claim fails for similar reasons. Aclaim

of discrimination under the ADA requires a plaintiff to allege a disability, that 

he was qualified for his position, and that he suffered an adverse employment 

action because of his disability. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 

245 (5th Cir. 2013). Olivarez failed to sufficiently allege an adverse 

employment action because of disability. See id. At most, Olivarez made a 

conclusory allegation that T-Mobile and Broadspire “discriminated against 

[Olivarez] based on [a] disability.” But the Rule 8 pleading standard 

demands more than conclusory statements. Iqbal, 556 U.S. at 678. “A 

complaint survives a motion to dismiss only if it pleads factual content that 

Case: 20-20463 Document: 00515863607 Page: 6 Date Filed: 05/14/2021
No. 20-20463

7

allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Meador, 911 F.3d at 264 (quotation omitted).

Finally, as for retaliation under Title VII, the claim is untimely. Title 

VII requires a plaintiff to file an administrative charge no later than 300 days 

“after the alleged unlawful employment practice occurred.” 42 U.S.C. 

§ 2000e-5(e)(1). Olivarez alleges retaliation for complaining about a 

supervisor’s demeaning and inappropriate comments in 2016, but did not file 

an administrative charge until 2018. As a result, the retaliation claim is 

untimely—a contention Olivarez does not dispute on appeal. See Brinkmann 

v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 746 (5th Cir. 1987)

(explaining that, when an appellant fails to identify any error in the district 

court’s analysis, it is the same as if the appellant had not appealed).

III.

According to Olivarez, the district court should have reconsidered its 

decision to dismiss the gender discrimination claims under Federal Rule of 

Civil Procedure 59(e). Rule 59(e) allows a party to seek to alter or amend a 

judgment “when there has been an intervening change in the controlling 

law.” Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567–68 (5th Cir.

2003). “Reconsideration of a judgment after its entry is an extraordinary 

remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 

473, 479 (5th Cir. 2004). As a result, “[w]e review the denial of a Rule 59(e) 

motion only for abuse of discretion.” Simon v. United States, 891 F.2d 1154, 

1159 (5th Cir. 1990).

Olivarez contends that, after the district court granted the motions to 

dismiss, Bostock changed the law and created a lower standard for those 

alleging discrimination based on gender identity. T-Mobile and Broadspire 

argue that Bostock did no such thing.

We agree with T-Mobile and Broadspire. Bostock defined sex 

discrimination to encompass sexual orientation and gender identity 

Case: 20-20463 Document: 00515863607 Page: 7 Date Filed: 05/14/2021
No. 20-20463

8

discrimination. But it did not alter the meaning of discrimination itself. At 

the pleading stage, a Title VII plaintiff must plead sufficient facts to make it 

plausible that he was discriminated against “because of” his protected status.

Cicalese, 924 F.3d at 767 (quotation omitted). At the summary judgment 

stage, when the claim relies on circumstantial evidence, a Title VII plaintiff 

must identify a more favorably treated comparator in order to establish 

discrimination. Bostock does not alter either of those standards.

To the contrary, Bostock expressly reaffirms these principles. It states 

that “[a]n employer who fires an individual for being homosexual or 

transgender fires that person for traits or actions it would not have questioned 

in members of a different sex.” 140 S. Ct. at 1737. Moreover, Bostock

employs various hypothetical comparators to support its analysis. See, e.g.,

id. at 1741 (“Consider . . . an employer with two employees, both of whom 

are attracted to men. The two individuals are, to the employer’s mind, 

materially identical in all respects, except that one is a man and the other a 

woman. If the employer fires the male employee for no reason other than the 

fact he is attracted to men, the employer discriminates against him for traits 

or actions it tolerates in his female colleague.”).

Accordingly, there is no intervening change of law that warrants

reconsideration under Rule 59(e).1

IV.

Finally, Olivarez argues that the district court abused its discretion in 

denying leave to amend the complaint, because the good cause standard 

under Federal Rule of Civil Procedure 16(b) does not apply here.

1 Olivarez also argues that the district court erred in refusing to reconsider the 

dismissal of the ADA claim. However, in the motion for reconsideration, Olivarez only 

argued for reconsideration of the Title VII discrimination claim. “This court will not

consider arguments first raised on appeal.” Estate of Duncan v. Comm’r of Internal Revenue, 

890 F.3d 192, 202 (5th Cir. 2018). Olivarez has therefore forfeited this argument.

Case: 20-20463 Document: 00515863607 Page: 8 Date Filed: 05/14/2021
No. 20-20463

9

“We review for abuse of discretion the district court’s denial of leave 

to amend.” S&W Enters., L.L.C. v. SouthTrust Bank of Alabama, NA, 315 

F.3d 533, 535 (5th Cir. 2003). “A district court possesses broad discretion in 

its decision whether to permit amended complaints.” Crostley v. Lamar 

Cnty., 717 F.3d 410, 420 (5th Cir. 2013).

We have “ma[d]e clear that Rule 16(b) governs amendment of 

pleadings after a scheduling order deadline has expired.” S&W Enters., 315 

F.3d at 536. A scheduling order “may be modified only for good cause and 

with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The good cause 

standard requires a showing by the movant that “the deadlines cannot 

reasonably be met despite the diligence of the party needing the extension.” 

S&W Enters., 315 F.3d at 535 (quotation omitted). It is “[o]nly upon the 

movant’s demonstration of good cause to modify the scheduling order [that] 

the more liberal standard of Rule 15(a) appl[ies] to the district court’s 

decision to grant or deny leave.” Id. at 536.

The district court’s scheduling order set a deadline of March 13, 2020 

for amendments with leave of court. Olivarez requested leave to amend the 

First Amended Complaint on February 12, 2020. After denying the 

defendants’ initial motions to dismiss, the court allowed Olivarez to file a 

Second Amended Complaint on April 16, 2020. The court then granted the 

defendants’ second motions to dismiss on April 30, 2020.

Olivarez filed a motion to submit a Third Amended Complaint on July 

7, 2020—well after the court’s March 13 deadline. Accordingly, the district 

court was correct to apply the good cause standard of Rule 16(b). Id. And 

Olivarez failed to meet that standard. There is no explanation for the fivemonth delay before pleading the facts and allegations in the Third Amended 

Complaint. Nor is there any suggestion that any of those facts were 

unavailable when filing the previous three complaints. Nor did Olivarez 

request an opportunity to replead in response to the second motion to 

dismiss. In sum, there is no good cause here to justify further amendment to 

Case: 20-20463 Document: 00515863607 Page: 9 Date Filed: 05/14/2021
No. 20-20463

10

the complaint. The district court accordingly did not abuse its discretion in 

denying further leave to amend.2

* * *

“Title VII protects every American, regardless of sexual orientation 

or transgender status. It simply requires proof of sex discrimination.” 

Wittmer v. Phillips 66 Co., 915 F.3d 328, 340 (5th Cir. 2019) (Ho, J., 

concurring). That was true before Bostock, and it remains true after Bostock.

Under Bostock, transgender discrimination is a form of sex discrimination

under Title VII. But a plaintiff claiming transgender discrimination under 

Bostock must plead and prove just that—discrimination. We affirm.

2 Separate and apart from Rule 16(b), there is also the matter of Rule 15(a). Under 

Rule 15(a), a district court may deny leave to amend when there has been “undue delay” 

or “repeated failure to cure deficiencies by amendments previously allowed.” Rosenzweig 

v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (quotations omitted). The district court 

here noted Olivarez “previously filed two amended complaints.” Olivarez failed to cure 

the defects in those complaints despite notice from both the district court and the 

defendants. See Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 567 (5th Cir. 

2002) (explaining that, where the plaintiffs had “already filed an original complaint and 

two amended complaints, each alleging [similar] claims,” they had been “given ample 

opportunity to plead their statutory claims,” and therefore it was not an abuse of discretion 

to deny leave to amend further). Denial was therefore proper under Rule 15(a) as well as 

Rule 16(b).

Case: 20-20463 Document: 00515863607 Page: 10 Date Filed: 05/14/2021