United States District Court, S.D. Texas, Corpus Christi Division.

GABRIEL ALVARADO, Plaintiff,

v.

CITGO PETROLEUM CORPORATION, Defendant.

CIVIL ACTION NO. 2:25-CV-00029

|

Filed 07/03/2025

ORDER

DAVID S. MORALES UNITED STATES DISTRICT JUDGE

*1 Before the Court is Defendant CITGO’s Motion to Dismiss. (D.E. 22). After review, the Court GRANTS Defendant’s motion. (D.E. 22).¹

I. Background

A. Factual

Plaintiff’s live complaint alleges the following facts, which the Court will accept as true in deciding the instant motion. Wilson v. Stroman, 33 F.4th 202, 212 (5th Cir. 2022) (first citing McLin v. Ard, 866 F.3d 682, 690 (5th Cir. 2017);and then citing Shaw v. Villaneuva, 918 F.3d 414, 418 (5th Cir. 2019)).

Plaintiff began working for CITGO in 2007 as a Multi-Job Technician. (D.E. 1, p. 4). On July 19, 2009, he suffered severe injuries in a chemical explosion at CITGO’s Corpus Christi Refinery. Id. at 5. He returned to work for CITGO in January of 2011 as Safety Coordinator and Assistant Fire Chief. Id. at 6–7. Upon his return, CITGO completed documentation certifying that his injuries allowed him to perform only ten percent of his prior employment duties. Id. at 10. This certification was necessary for Plaintiff to receive Social Security Disability benefits of approximately $2,100 per month. Id.

In 2018, CITGO appointed David Cave as Fire Chief for the refinery. Id. at 7. Cave had previously been the Fire Chief and was demoted shortly after the 2009 incident that injured Plaintiff. Id. Plaintiff asserts that his testimony regarding Cave’s responsibility for the 2009 incident resulted in Cave’s demotion. Id. at 6. Upon Cave’s reappointment, Plaintiff alleges Cave began “a pattern of discrimination, retaliation and harassment against Plaintiff.” Id. at 7. This included changes to Plaintiffs responsibilities, work schedule, and the elimination of conveniences previously extended to Plaintiff for ongoing medical therapy. Id. at 6–9.

In December 2020, Plaintiff sued CITGO alleging discrimination and harassment. Alvarado v. CITGO Petroleum Corp., No. 2:20-cv-305 (S.D. Tex. Dec. 14, 2020) (Ramos, J.) (D.E. 1). The lawsuit also included claims related to CITGO’s refusal to complete forms necessary for Plaintiff to receive Social Security Disability benefits.² Id. at 9–10. Plaintiff asserted this refusal resulted in a required “cash reimbursement from Plaintiff” to the Social Security Administration of approximately sixty thousand dollars. Id. Plaintiff and CITGO settled the lawsuit in October 2021. (D.E. 22-1).³ The Settlement Agreement included: (1) Plaintiff’s resignation as an employee of CITGO, (2) dismissal of the lawsuit, (3) a settlement payment, (4) a consulting agreement retaining the Plaintiff’s consulting agency, and (5) Plaintiff’s release of claims. Id. This release included “any known or unknown claims through October 8, 2021.” (D.E. 17, p. 8);see also (D.E. 22-1, p. 2). The agreement also stated that Plaintiff would not “seek reinstatement” or any further employment with CITGO, and that any presence by Plaintiff on CITGO’s property would be limited to that necessary for consulting services. (D.E. 22-1, p. 5).

*2 The consulting services agreement between CITGO and Plaintiff had an initial three-year term that ended on October 31, 2024. Id. at 10. The agreement guaranteed Plaintiff payment for a minimum of fifteen hours of services each month, regardless of the work performed. Id. at 10–11. The agreement established an “independent contractor relationship” between CITGO and Plaintiff and expressly defined Plaintiff as an independent contractor providing safety training services. Id. at 11. The agreement included an automatic renewal provision for subsequent one-year periods that could be terminated by either party with 30 days’ written notice. Id. at 10.

In his instant complaint, Plaintiff largely reiterates the facts and claims alleged in his 2020 complaint, which was dismissed with prejudice. See generally (D.E. 1);Alvarado v. CITGO Petroleum Corp., No. 2:20-cv-305 (S.D. Tex. Dec. 14, 2020) (Ramos, J.) (2020 Complaint). The only new facts Plaintiff asserts are that CITGO did not “continue to use [Plaintiff] as a consultant” as contractually allowed at the end of the three-year consultancy agreement. (D.E. 1, p. 11). And, after the October 2021 settlement, Defendant failed to “fill out the [Social Security Disability] form even though it was repeatedly requested” by Plaintiff.⁴ Id. at 10.

B. Procedural

Plaintiff alleges in his complaint that CITGO’s non-renewal of the consultancy agreement and failure to fill out the Social Security form “demonstrate[ ] continued discrimination” and “constitute unlawful intentional retaliation” in violation of the ADA, the Texas Labor Code, and the Texas Workers’ Compensation Act. Id. at 11–12. Plaintiff also alleges that CITGO violated Section 504 of the 1973 Rehabilitation Act by failing to accommodate his disabilities through conduct “solely on the basis of [the Plaintiff’s] disability.” Id. at 13.

CITGO filed a 12(b)(6) motion to dismiss, which presents a similar timeline of Plaintiff’s initial employment in 2007 through his resignation resulting from the settlement agreement in Plaintiff’s 2020 lawsuit. (D.E. 22, p. 7–9). CITGO argues Plaintiff’s claims fail for three reasons. First, the settlement agreement released all of Plaintiff’s claims stemming from events and conduct prior to October 8, 2021. Id. at 11. Second, CITGO argues that because Plaintiff was not an employee after this settlement agreement, Plaintiff may not bring claims under the ADA, the Texas Workers’ Compensation Act, or the Texas Labor Code. Id. Third, regarding both the prior claims and Plaintiffs Section 504 failure to accommodate claim, CITGO asserts that “Plaintiff failed to allege specific facts that would give rise to any of his claims.” Id.

In response, Plaintiff repeats his assertion that CITGO’s failure to complete the “same forms [CITGO] filled out and submitted to Social Security through Plaintiff’s employment with [CITGO]” caused Plaintiff to lose his benefits. (D.E. 17, p. 9). Plaintiff adds that CITGO “did not provide [consulting] assignments as allowed under the agreement.” Id. Plaintiff also asserts that CITGO’s “non-renewal of [Plaintiff’s] consulting agreement” amounted to retaliation for Plaintiffs prior lawsuit and represents “continued discrimination and retaliation” based on Plaintiff’s disabilities. Id. at 14.

Plaintiff also adds to his initially pled claims, asserting he is “entitled to relief and damages under the [Rehabilitation] Act based on discrimination based on his disabilities, and opposition to discrimination based on his disabilities and not simply a claim based on failure to accommodate by Defendant.” Id. at 11 (emphasis added). Plaintiff concludes his response by requesting the Court deny the motion to dismiss his “Rehab Act disability related claims and retaliation claims” or, in the alternative, grant leave to amend his pleadings. Id. at 15. Aside from conceding CITIGO’s assertion that Plaintiff’s ADA and Texas Labor Code claims “apply only to employees,” Plaintiff does not address any of CITIGO’s arguments for dismissal of his non-Rehabilitation Act claims. Id. at 14;see generally (D.E. 17).

II. Legal Standard

A. 12(b)(6)

*3 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (quoting Iqbal, 556 U.S. at 678). While a sufficient complaint does not require detailed factual allegations, the facts pled must raise the plaintiff’s “right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S. at 555). A court must draw all reasonable inferences in favor of the plaintiff. Allen v. Vertafore, Inc., 28 F.4th 613, 617 (5th Cir. 2022). However, a plaintiff must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action” to survive a motion to dismiss. Twombly, 550 U.S. at 555. While a plaintiff alleging discrimination need not establish a prima facie case of discrimination at the motion to dismiss stage, the “pleading standard demands more than conclusory statements.” Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600–601 (5th Cir. 2021) (citing Iqbal, 556 U.S. at 678).

III. Analysis

A. ADA, Texas Labor Code, and the Texas Workers’ Compensation Act Claims

The Court must dismiss Plaintiff’s claims under the ADA, the Texas Labor Code, and the Texas Workers’ Compensation Act for two reasons.

First, Plaintiff asserts his claims relate only to “Defendant’s conduct after the settlement agreement,” a period during which Plaintiff was not an employee of CITGO. (D.E. 17, p. 14). That dooms his ADA, Texas Labor Code, and Texas Workers’ Compensation Act claims. Title I of the ADA “protects only ‘employees’ ” and not independent contractors. Silguero v. CSL Plasma Inc., 907 F.3d 323, 331 (5th Cir. 2018) (citations omitted). Similarly, Chapter 21 of the Texas Labor Code “makes it unlawful for employers to discharge employees ‘because of…disability.’ ” Dallas County Hosp. Sys. v. Kowalski, 704 S.W.3d 550, 552 (Tex. 2024) (quoting TEX. LAB. CODE ANN. § 21.051 (West 2005));Thompson v. City of Austin, 979 S.W.2d 676, 681 (Tex. App. 1998) (distinguishing between employees and independent contractors). Finally, “[r]ecovery of workers’ compensation benefits [under the Texas Workers’ Compensation Act] is the exclusive remedy of an employee… against the employer.” Waste Mgmt. of Texas, Inc. v. Stevenson, 622 S.W.3d 273, 277 (Tex. 2021) (quoting TEX. LAB. CODE ANN. § 408.001 (West 2005)). In other words, independent contractors cannot recover workers’ compensation benefits. See id. at 277-78 (analyzing whether plaintiff was an employee or independent contractor for purposes of determining coverage).

Plaintiff acknowledged that he resigned his employment with CITGO as part of the October 2021 settlement agreement and was not an employee of CITGO during the period relevant to this lawsuit. (D.E. 17, p. 8);see also (D.E. 22-1, p. 5). Thus, Plaintiff’s claims under the ADA, the Texas Labor Code, and the Texas Workers’ Compensation Act fail to state a claim as those provisions are inapplicable to Plaintiff, an independent contractor.

Second, Plaintiff failed to defend these claims in response to CITGO’s motion to dismiss and has therefore abandoned them. “[A] party abandons a claim by failing to defend it in response to motions to dismiss and other dispositive pleadings.” McClelland v. Katy Independent School Dist., 63 F.4th 996, 1010 (5th Cir. 2023) (collecting cases). In Plaintiff’s response in opposition to the motion to dismiss, he provides no answer to CITGO’s arguments for dismissal. (D.E. 17, 9– 10). In fact, Plaintiff’s response directly concedes that his “ADA and Texas Labor Code claims apply only to employees.” Id. at 14.⁵ This provides yet another cause for dismissal of Plaintiff’s ADA, Texas Labor Code, and Texas Workers’ Compensation Act claims.

*4 Plaintiff has both abandoned and failed to sufficiently plead his claims under the ADA, Texas Labor Code, and Texas Workers’ Compensation Act. Accordingly, the Court DISMISSES those claims.

B. Section 504 Claims

Thus, the only remaining live claim from Plaintiffs complaint is for failure to accommodate his disability under Section 504 of the Rehabilitation Act. Once again, Plaintiff does not respond to CITGO’s arguments for dismissal of this claim. See generally (D.E. 17). By not responding, Plaintiff has abandoned this claim. McClelland, 63 F.4th at 1010. Even setting this abandonment aside, Plaintiff has not alleged facts sufficient to state a failure to accommodate claim. A failure to accommodate claim requires the plaintiff to show either that he requested an accommodation in “direct and specific terms,” or that the plaintiffs need for a reasonable accommodation was “open, obvious and apparent” to the defendant. Smith v. Harris Cnty., Tex., 956 F.3d 311, 317–18 (5th Cir. 2020) (citing Windham v. Harris Cnty., Tex., 875 F.3d 229, 237 (5th Cir. 2017)). Here, Plaintiff has not alleged that he requested or needed any accommodations to perform post-settlement consultancy services for CITGO. See generally (D.E. 1). Plaintiff’s extensive and duplicative accounts of CITGO’s alleged pre-settlement failures to accommodate were previously released in the settlement agreement. (D.E. 22-1, p. 2–3). Plaintiff has alleged no facts during the times relevant to this lawsuit that demonstrate a request, a need, or a failure to accommodate. See generally (D.E. 1). In fact, Plaintiff has provided no facts in his complaint that indicate CITGO’s “continued refusal to provide the requested Social Security document…and the non-renewal of his consulting agreement” have any connection to his disability. (D.E. 17, p. 14). The Court therefore DISMISSES Plaintiff’s Section 504 claim as abandoned and for failure to state a claim.

In his response to CITGO’s motion to dismiss, Plaintiff endeavors to add a discrimination claim under Section 504: “[Plaintiff] is entitled to relief and damages under the Act based on discrimination based on his disabilities, and opposition to discrimination based on his disabilities and not simply a claim based on failure to accommodate by Defendant.” (D.E. 17, p. 11) (emphasis added). The Court does not and will not countenance Plaintiff’s on-the-fly amendment of his complaint in response to CITGO’s motion. It “is wholly inappropriate to use a response to a motion to dismiss to essentially raise a new claim for the first time.” Diamond Beach Owners Ass’n v. Stuart Dean Co., No. 3:18-CV-00173, 2018 WL 7291722, at *4 (S.D. Tex. Dec. 21, 2018) (Edison, Mag. J.), adopted by, No. 3:18-CV-00173, 2019 WL 245462 (S.D. Tex. Jan. 17, 2019) (Hanks, J.) (citation omitted). To allow such leave to amend unfairly prejudices a defendant who has expended substantial time and resources responding to a plaintiff’s complaint. Accordingly, the Court’s consideration of a motion to dismiss is limited to the live complaint, attachments to the complaint, and any attachments to the motion that are both central to the claim and referenced by the live complaint. Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). Plaintiff’s complaint does not include a claim for discrimination under section 504. Accordingly, the Court will not consider that claim.

C. Leave to Amend

*5 Although “the court should freely give leave [to amend] when justice so requires,” a “bare request in an opposition to a motion to dismiss” lacking in particulars is not sufficient to warrant leave to amend. FED. R. CIV. P. 15(a)(2);U.S. ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003) (quoting Confederate Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (internal citation omitted). And, an amended complaint that would “fail to state a claim upon which relief could be granted” is futile and therefore within this Court’s discretion to deny. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872 (5th Cir. 2000).

Based on the allegations included in Plaintiff’s response, the Court denies leave to amend because such amendment would be futile. Courts assess futility under the same standard of legal sufficiency as applies under Rule 12(b)(6). Id. (citations omitted). A claim for discrimination under the Rehabilitation Act requires, among other elements, that a plaintiff show he was discriminated against solely because of his disability. Houston v. Texas Dep’t of Agric., 17 F.4th 576, 586 (5th Cir. 2021). Here, Plaintiff has alleged no facts tending to demonstrate post-settlement discrimination, much less facts showing discrimination solely because of his disability. The consultancy agreement allowed for either party to decline to renew the agreement after the initial three-year term. (D.E. 22-1, p. 10). Plaintiff makes no assertion that CITGO did not comply with the renewal clause of the settlement agreement or otherwise deviated from its terms. CITGO’s failure to renew the consultancy agreement—an action the agreement explicitly contemplated—does not by itself demonstrate that CITGO discriminated against Plaintiff solely because of his disability.

Regarding the Social Security form, Plaintiff has similarly stated no facts that might somehow suggest a connection between CITGO’s failure to complete the form and Plaintiff’s disability. CITGO stopped submitting this Work Activity Questionnaire prior to the 2021 settlement agreement. (D.E. 1, p. 10). The settlement agreement includes no mention of CITGO’s responsibility to complete this form prospectively, and Plaintiff released all pre-settlement claims regarding this form. (D.E. 22-1, p. 2). Thus, Plaintiff has not plead facts to show that CITGO had any obligation to fill out the forms, much less that it failed to fulfill that obligation because of Plaintiff’s disability. What’s more, for at least some period of time after Plaintiff was disabled, CITGO did in fact fill out Social Security disability forms that entitled Plaintiff to receive benefits. See (D.E. 1, p. 10). Viewed together, in the light most favorable to the Plaintiff, these facts simply do not give rise to an inference that CITGO refused to fill out the form due to Plaintiff’s disability.

The Court has carefully reviewed Plaintiff’s declaration and does not doubt the challenges Plaintiff has experienced due to the 2009 incident. See generally (D.E. 17–1). However, after the elimination of all pre-settlement factual allegations, all that remains are “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” that assert nothing more than conclusory allegations devoid of any factual support. Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff has not “demonstrate[d] to the court how [he] would replead [his discrimination claim] more specifically if given the opportunity…and did not suggest in [his] responsive pleading any additional facts not initially pled that could, if necessary, cure the pleading defects raised by [CITGO].” Goldstein v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir. 2003). The Court DENIES Plaintiff leave to amend his complaint.

IV. Conclusion

*6 Plaintiff has abandoned the claims brought in his complaint. The Court DENIES Plaintiff leave to amend his complaint to bring a new claim for discrimination. Accordingly, the Court GRANTS the Defendant’s motion, (D.E. 22), and DISMISSES Plaintiff’s claims. The Court will enter final judgment separately.

SO ORDERED.

Corpus Christi, Texas