United States District Court, E.D. Texas, Tyler Division.

MICHAEL WILCOX, Plaintiff,

v.

W.K.S. RESTAURANT CORPORATION DBA WKS RESTAURANT GROUP, W.K.S. FROSTY CORPORATION, Defendants.

CIVIL ACTION NO. 6:25-CV-00299-JCB

|

Filed 03/03/2026

Attorneys & Firms

William S. Hommel Jr., Hommel Law Firm PC, Tyler, TX, for Plaintiff.

Amanda E. Brown, Fisher & Phillips LLP, Dallas, TX, for Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN D. LOVE UNITED STATES MAGISTRATE JUDGE

*1 Before the court is Defendant W.K.S. Frosty Corporation’s (WKS) second motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 24.) Plaintiff Michael Wilcox has filed a response in opposition (Doc. No. 25), to which WKS has filed a reply (Doc. No. 26). For the reasons set forth herein, the court RECOMMENDS that the motion (Doc. No. 24) be GRANTED-IN-PART and DENIED-IN-PART, as set forth herein.

BACKGROUND

Plaintiff originally filed this action on August 7, 2025, alleging violations of the Americans with Disabilities Act (ADA), as well as claims for violations of the Family and Medical Leave Act (FMLA), and a violation of the Texas Labor Code § 451.001 against WKS. (Doc. No. 1.) Thereafter, Plaintiff filed a first amended complaint (Doc. No. 6), which WKS moved to dismiss for failure to state a claim (Doc. No. 12). The court granted the motion to dismiss, but afforded Plaintiff leave to amend to address the deficiencies of the pleadings. (Doc. No. 21.) On January 27, 2026, Plaintiff filed a second amended complaint. (Doc. No. 23.) Thereafter, WKS filed the instant motion to dismiss. (Doc. No. 24.)

In his second amended complaint, Plaintiff alleges that he was employed by WKS as a facilities technician beginning on or around September 21, 2022. (Doc. No. 23, at ¶ 12.) Plaintiff alleges that his essential job functions included preventive maintenance, light mechanical repairs, troubleshooting equipment, coordinating vendor repairs, and driving between locations. Id. at ¶ 13. Plaintiff alleges that the position did not require constant lifting, prolonged stooping, or repeated floor-level work, and WKS routinely assigned heavy or floor-level tasks to teams or provided assistance when necessary. Id. at ¶ 14. Prior to the events at issue, Plaintiff states that he successfully performed all essential functions of his position and received no disciplinary action for inability to perform his duties. Id. ¶ 15.

Plaintiff states that on September 12, 2023, he suffered an injury to his lower back while installing heat lamps at a Wendy’s restaurant. Id. at ¶ 16. Plaintiff alleges that he told his supervisor, Johnnie Hoats, that he hurt his back installing heat lamps. Id. at ¶ 17. Plaintiff continues by stating that he sought chiropractic care and physical therapy for his injury which he discussed with Hoats. Id. at ¶¶ 18, 19. Plaintiff alleges that Hoats gave him jobs that aggravated his injury and assigned him to another heat lamp repair job on April 30, 2024. Id. at ¶ 21. Plaintiff alleges that when he complained of back pain related to another heat lamp job, Hoats asked if the job would be too much for Plaintiff, withdrew the work order, and suggested to Plaintiff that he take FMLA leave. Id. at ¶¶ 20, 21. Plaintiff alleges that he was demoted to PM technician. Id. at ¶ 21.

Plaintiff alleges that, on May 17, 2024, Hoats sent him an email requesting that he make a list of things that he couldn’t do due to his back issues but admits that he never responded to that email. Id. at ¶ 22. Instead, Plaintiff states that he emailed Hoats’s supervisor, Rich Kindred, at which time Kindred was informed of Plaintiff’s on-the-job back injury. Id. at ¶ 23. Plaintiff alleges that Kindred acknowledged that Plaintiff should not have been paying for medical treatment himself and that the company should cover the expenses. Id. Thereafter, WKS filed a workers’ compensation claim on Plaintiff’s behalf. Id. Plaintiff then began working with Sedgwick, the company that administers workers’ compensation claims for WKS, and Plaintiff received medical treatment that showed damage to his lower back. Id. at ¶ 24. Plaintiff states that Sedgwick eventually denied his workers’ compensation claim because he didn’t report the injury within 30 days and they believed the issue to be preexisting. Id. Plaintiff alleges that on July 25, 2024, Hoats required him to turn in his company van and all 3 company credit cards and that he learned from HR that there was a discrepancy in pay because he had been put on FMLA as of May 20, 2024. Id. at ¶ 25. Plaintiff alleges that this was inconsistent with continued employment. Id. at ¶ 36.

*2 Plaintiff alleges that during a conversation with HR, Plaintiff disclosed medical restrictions, including limitations on lifting, stooping, and driving more than 30 minutes. Id. at ¶ 26. Plaintiff alleges that HR informed him that the company could not accommodate these restrictions, although WKS did not request information from Plaintiff’s medical providers or conduct an individualized assessment of his ability to perform the job’s essential functions. Id. Plaintiff states that he requested a non-driving position but that he was never contacted about such a position or any other position. Id. at ¶ 27. Plaintiff alleges that he could have performed the essential functions of his position with reasonable accommodations, including assistance with heavy or floor-level tasks, temporary reassignment of prolonged driving, assignment to non-driving or limited-driving duties, or use of vendors or team-based repairs. Id. at ¶ 28. He alleges these accommodations were feasible, cost-neutral, and consistent with WKS’s practices. Id. at ¶ 29. He further alleges that he specifically requested assistance with physically demanding tasks and temporary placement in a non-driving or limited-driving role. Id. at ¶ 30. According to Plaintiff, WKS did not engage in a good-faith interactive process, identify alternative positions, or evaluate whether he could perform essential functions with accommodation. Id. at ¶ 31.

Based on these factual allegations, Plaintiff asserts claims for violations of the Americans with Disabilities Act (ADA), as well as claims for violations of the Family and Medical Leave Act (FMLA), and a violation of the Texas Labor Code § 451.001.

LEGAL STANDARD

Motions to dismiss under Rule 12(b)(6) for failure to state a claim “are viewed with disfavor and are rarely granted.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir. 2005); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The court utilizes a “two-pronged approach” in considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, the court identifies and excludes legal conclusions that “are not entitled to the assumption of truth.” Id. Second, the court considers the remaining “well-pleaded factual allegations.” Id. The court must accept as true all facts alleged in a plaintiff’s complaint, and the court views the facts in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). A plaintiff’s complaint survives a defendant’s Rule 12(b)(6) motion to dismiss if it includes facts sufficient “to raise a right to relief above the speculative level.” Id. (quotations and citations omitted).

In other words, the court must consider whether a plaintiff has pleaded “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). “ ‘[D]etailed factual allegations’ ” are not required. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nevertheless, a complaint must allege “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). This determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

DISCUSSION

In its renewed motion, WKS moves again to dismiss all of Plaintiff’s claims with prejudice for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 24.) Plaintiff responds by asserting that he has sufficiently pleaded his claims and suggests that court should consider an award of attorney’s fees incurred by having to respond to the motion. (Doc. No. 25.) The court addresses each claim in turn.

I. ADA Disability Discrimination Claim

WKS first moves to dismiss Plaintiff’s ADA disability discrimination claim. WKS argues that Plaintiff fails to allege a prima facie case for disability discrimination because he fails to allege that he was a qualified individual or that an adverse employment action occurred. (Doc. No. 24, at 4.) Specifically, WKS argues that Plaintiff admitted that “driving between locations” is an essential function of his role as a facilities technician, but that he simultaneously pleaded that his medical restrictions prevent him from driving for more than 30 minutes. Id. at 4–5. WKS further argues that Plaintiff’s request for help with lifting or task reassignment is not considered “reasonable” under the ADA, as employers are not required to eliminate essential functions or assign them to other employees. Id. WKS contends that Plaintiff fails to provide specific facts for any adverse action or how his employment ended. Id. at 5–6.

*3 Plaintiff argues that he has adequately pleaded that he is qualified for his position despite medical restrictions. (Doc. No. 25, at 3.) Plaintiff contends that “driving between locations” is not a constant or inflexible requirement and that prolonged driving could be temporarily reassigned according to existing company practices, and that he is not seeking the elimination of an essential function but rather a temporary reassignment or transfer to one of the vacant non-driving positions that existed at the time. Id. at 4. Plaintiff argues that the company already used team-based assignments for heavy tasks, so his request for assistance with lifting was consistent with established work patterns rather than a request for a new job. Id. Plaintiff further contends that the removal of his company cards and van on July 25, 2024 was a constructive discharge. Id.

The ADA prohibits covered employers from “discriminat[ing] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). “Discrimination” under the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” § 12112(b)(5)(A). A prima facie showing under the ADA, requires Plaintiff to show that (1) he is a “qualified individual” under the ADA; (2) Defendant excluded Plaintiff from participation in, or denied the benefits of, services, programs, or activities that Defendant is responsible for; and (3) the exclusion was by reason of Plaintiff’s disability. Block v. Tex. Bd. of Law Examiners, 952 F.3d 613, 618 (5th Cir. 2020) (citing Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004)). On a claim for discriminatory discharge, a plaintiff must demonstrate that they (1) have a disability (or were regarded as having one), (2) were qualified for the position they held, and (3) were subject to an adverse employment decision on account of their disability. Gross v. Carlisle Constr. Materials, L.L.C., No. 24-60382, 2025 WL 2427194, at *2 (5th Cir. Aug. 22, 2025).

As to the first prong, the ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual; … a record of such an impairment; or … being regarded as having such an impairment.” 42 U.S.C. § 12102(1)(A)-(C). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A) “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” Id. § 12102(4)(A). The statute notes that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Id. § 12102(4)(D). When courts interpret the term “substantially limits,” they are to interpret it “consistently with the findings and purposes of the ADA Amendments Act of 2008.” Id. § 12102(4)(B). “ ‘Substantially limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i) (2020). Furthermore,

[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.

Id. § 1630.2(j)(iii).

The court has already found that Plaintiff has alleged sufficient facts to establish that he has a disability under the first prong of the ADA analysis and WKS does not challenge this finding. Doc. No. 17, at 6 (citing Epley v. Lopez, No. 23-10374, 2025 WL 1156520, at *8 (5th Cir. Apr. 21, 2025) (“[e]ven a temporary injury can qualify as a disability where the injury substantially impacts the plaintiff’s major life activities.”)). Accordingly, the court does not modify its position on this finding.

*4 Instead, WKS challenges whether Plaintiff’s second amended complaint establishes that he was qualified for the job. Qualification requires that Plaintiff allege that he is able to “perform the essential functions of the job in spite of his disability” or “that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job.” See EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (citation omitted); 42 U.S.C. § 12111(8). “[T]he plaintiff bears the burden of proving that an available position exists that he was qualified for and could, with reasonable accommodations, perform.” Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 418 (5th Cir. 2017).

In his second amended complaint, Plaintiff alleges that his essential job functions as a facilities technician included preventive maintenance, light mechanical repairs, troubleshooting equipment, coordinating vendor repairs, and driving between locations. (Doc. No. 23, at ¶ 13.) Plaintiff alleges that the position did not require constant lifting, prolonged stooping, or repeated floor-level work, and WKS routinely assigned heavy or floor-level tasks to teams or provided assistance when necessary. Id. at ¶ 14. WKS points to an internal pleading conflict that Plaintiff’s medical restrictions required no more than 30 minutes of driving, but that Plaintiff concedes an essential function of the job was driving between locations. However, Plaintiff points out that he alleged that a reasonable accommodation would be temporary reassignment to a non-driving position that was available at the time. As an initial matter, the court cannot definitively conclude that Plaintiff’s allegations were internally inconsistent because the range of driving is not listed. For example, if repair jobs were local, then it is feasible that Plaintiff could have driven no more than 30 minutes to and from the job location. Although WKS suggests that the allegation that Plaintiff had a company van requires drawing this inference in its favor, the allegations as pleaded do not foreclose the possibility that Plaintiff was (or could have been) driving locally, and this is ultimately a question of fact that will require discovery. As pleaded, the facts are sufficient to allow the court to draw the inference that Plaintiff could have performed these essential functions of the job.

Moreover, Plaintiff alleges that non-driving positions were available and that he made a request for temporary reassignment of any prolonged driving, specifically alleging that he could perform essential functions of the job with reasonable accommodation including: (1) assistance for heavy or floor-level tasks (a practice already used by WKS); (2) temporary reassignment of prolonged driving; (3) assignment to non-driving or limited-driving duties; and (4) use of vendors or team-based repairs. (Doc. No. 23, at ¶ 6.) WKS focuses primarily on the fact that a reassignment to a non-driving position would eliminate an essential function of the job, but does not address that Plaintiff also alleges limited or reduced driving requests that would accommodate his alleged restriction of no more than 30 minutes. Accordingly, as pleaded, Plaintiff has alleged sufficient facts to suggest that he was qualified for the job.

WKS also argues that Plaintiff has failed to allege that he suffered an adverse employment action by reason of his disability. Here, Plaintiff alleges that: (1) he was told he was being demoted to PM tech (Doc. No. 23, at ¶ 21); (2) he was required to return his company van and credit cards (id. at ¶¶ 25, 36); (3) he was unilaterally placed on FMLA leave and it was backdated without his knowledge (id. at ¶¶ 25, 37); (4) he was not returned to work and was not offered an accommodated position (id. at ¶ 37); and (5) WKS “ultimately removed Plaintiff from active employment without reinstatement” (id. at ¶ 38). An adverse employment action means an ultimate employment decision, such as hiring, granting leave, discharging, promoting and compensating. Mowbray v. Am. Gen. Life Companies, 162 F. App’x 369, 374 (5th Cir. 2006); Brown v. Liberty Mut. Grp. Inc., No. 3:12-CV-1196-N, 2014 WL 11309761, at *3 (N.D. Tex. Jan. 21, 2014), aff’d sub nom. Brown v. Liberty Mut. Grp., Inc., 616 F. App’x 654 (5th Cir. 2015). Here, Plaintiff plainly alleges the circumstances of a termination, which qualify as an adverse employment action. Plaintiff’s allegations now suggest that his termination was the result of a request for accommodation for his disability that was unmet by WKS. These allegations are sufficient to state a claim for discriminatory discharge.

II. ADA Failure to Accommodate Claim

*5 With respect to Plaintiff’s failure to accommodate claim, WKS argues that Plaintiff cannot establish his claim because his self-imposed restrictions (no driving over 30 minutes) render him unable to perform the essential functions of his facilities technician job. (Doc. No. 24, at 7.) Further, WKS argues that it actually extended multiple accommodations, including reassigning painful tasks and providing paid FMLA leave. Id. Plaintiff argues that while his overall workload increased after his injury, WKS did selectively withdraw one specific work order after he requested help, and that these facts are consistent with retaliatory conduct, which can involve both increasing burdens and selective task withdrawal to pressure an employee to resign. (Doc. No. 25, at 5–6.)

A failure to accommodate claim requires allegations that “(1) the plaintiff is a qualified individual with a disability,” “(2) the disability and its consequential limitations were known by the covered employer,” and “(3) the employer failed to make reasonable accommodations for such known limitations.” Amedee v. Shell Chem., L.P., 953 F.3d 831, 837 (5th Cir. 2020). Similar to discrimination, in the failure to accommodate context, “[a] plaintiff can establish that he is qualified by showing that either (1) he could perform the essential functions of the job in spite of his disability, or (2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job.” Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021). Here, for the reasons discussed above, Plaintiff has alleged sufficient facts to suggest that he was a qualified individual with a disability. Further, there is no dispute that this was known to WKS as he alleges that he communicated his injury to both Hoats and Kindred and his medical restrictions to HR. Additionally, as discussed above, Plaintiff has alleged that WKS failed to make reasonable accommodations by reassignment or workplace assistance. At the pleading stage, the court accepts Plaintiff’s well-pleaded facts as true and any dispute as to whether accommodations were actually offered is not a matter for adjudication on the pleadings. As it stands, Plaintiff has sufficiently alleged a claim for failure to accommodate.

III. FMLA Retaliation Claim

WKS argues that Plaintiff’s FMLA retaliation claim is insufficiently pleaded because involuntary placement by an employer cannot support a retaliation claim and Plaintiff fails to provide dates for how long his FMLA leave was or when he was terminated. (Doc. No. 24, at 8.) Specifically, WKS argues that because Plaintiff failed to provide the date he was “ultimately removed,” he cannot establish the timing necessary to support a retaliation claim. Id. Plaintiff argues that the temporal proximity of his termination immediately after his FMLA designation is sufficient to plead FMLA retaliation. (Doc. No. 25, at 8.)

To state a claim for retaliation under the FMLA, a plaintiff must allege that: (1) he was protected under the FMLA; (2) he suffered an adverse employment action; and (3) the adverse employment action was taken because he sought protection under the FMLA. Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013). Here, while Plaintiff alleges that he was on FMLA leave, his allegations of FMLA retaliation remain tenuous. Plaintiff fails, for example, to allege that any suspected termination or other adverse action was taken because he sought protection under the FMLA. As discussed, Plaintiff did not invoke his rights under the FMLA but was involuntarily placed on FMLA leave. The Fifth Circuit has held, “it is not contrary to the FMLA for an employee to be placed on ‘involuntary FMLA leave.’ ” Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 417 (5th Cir. 2006). On the facts alleged, the court cannot find that Plaintiff has plausibly stated a claim for FMLA retaliation.

IV. Worker’s Compensation Retaliation Claim

*6 Last, WKS moves to dismiss Plaintiff’s worker’s compensation claim because it argues that Plaintiff has failed to allege that he suffered an adverse employment action because of his worker’s compensation claim. (Doc. No. 24, at 9.) WKS further argues that even if he had pleaded an adverse employment action, he does not plead facts sufficient to establish that his termination was because he filed a worker’s compensation claim. Id. Plaintiff argues that he engaged in protected activity under Texas Labor Code § 451 and has plainly stated a claim for retaliation. (Doc. No. 25, at 9.)

Section 451.001 of the Texas Labor Code provides:

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers’ compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or

(4) testified or is about to testify in a proceeding under Subtitle A.

An employee who brings a cause of action for a violation of § 451.001 must demonstrate a causal link between the discharge or other discriminatory action and the filing of the claim for workers’ compensation benefits. Swearington v. Owens Corning Fiberglass Corp., 968 F.2d 559, 562 (5th Cir. 1992); Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). The workers’ compensation claim need not be the sole cause of termination or other discriminatory employment action; the claim need only have been a determining factor in the action. Id. Plaintiff alleges that WKS would not have terminated his employment when it did, had Plaintiff not engaged in an activity protected under § 451.001 of the Texas Labor Code. (Doc. No. 23, at ¶ 48.) Factually, Plaintiff alleges that he had a conversation with WKS supervisor Richard Kindred on or about May 17, 2024 that led to WKS filing a workers’ compensation claim on his behalf. Id. at ¶¶ 22, 23. Plaintiff further alleges that he was effectively terminated no later than July 25, 2024, when he was asked to turn in his company van and credit cards. Id. at ¶ 25. Temporal proximity alone, when close, may be enough to establish the causal link for a Texas workers’ compensation claim. See Roddie Morgan v. Goodman Manufacturing Co., LP., No. 4:19-CV-00850, 2021 WL 1169390, at *4 (S.D. Tex. Mar. 10, 2021) (citing Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)). Plaintiff’s alleged time period of two month falls into an ambiguous category as far as determining whether timing alone may suffice in this case. However, on the pleadings, the court is inclined to find the allegations sufficient. However, absent additional circumstantial evidence of causation, see Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 468 (Tex.App.–El Paso 2012, no pet.), this claim would be subject to disposition on summary judgment.

CONCLUSION

For the reasons stated herein, the court RECOMMENDS that WKS’s motion to dismiss (Doc. No. 24) be GRANTED as to Plaintiff’s FMLA retaliation claim and DENIED as to his ADA claims and worker’s compensation claim. Given this recommendation, at this time, the court finds no basis to award attorney’s fees.

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may serve and file written objections to the findings and recommendations contained in the Report. A party’s failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

*7 So ORDERED and SIGNED this 3rd day of March, 2026.