Johnson v. The Webster U.S. LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
John Johnson,
Plaintiff,
v.
The Webster U.S., LLC,
Defendant.
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Civil Action H-25-3589
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 5. Pending before
the court is Defendant The Webster U.S. LLC’s (The Webster)
partial Motion to Dismiss. ECF No. 21. The court recommends that
The Webster’s partial Motion to Dismiss, ECF No. 21, be
GRANTED.
1. Background
Plaintiff John Johnson started working for The Webster on
November 27, 2022, as a Sales Supervisor. ECF No. 20 at 2–3. On
July 29, 2023, The Webster terminated Johnson based on allegedly
pretextual accusations that he stole from The Webster. Id. In his
Second Amended Complaint (SAC), Johnson alleges claims under
Title VII of the Civil Rights Act of 1964 for sex-based
discrimination, hostile work environment, and retaliation. Id.
at 3–5.
Johnson alleges that he “timely exhausted all administrative
remedies” in his Equal Employment Opportunity Commission
(EEOC) Charge of Discrimination. ECF No. 20 at 2. The Webster
attaches Johnson’s EEOC charge to its motion. ECF No. 21-1.
When considering a motion to dismiss, the court must limit itself
to: (1) the facts in the complaint; (2) documents attached to the
United States District Court
Southern District of Texas
ENTERED
July 13, 2026
Nathan Ochsner, Clerk
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complaint; and (3) matters of which the court may take judicial
notice. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735
(5th Cir. 2019). “The court may also consider documents attached
to either a motion to dismiss or an opposition to that motion when
the documents are referred to in the pleadings and are central to
a plaintiff’s claims.” Brand Coupon Network, L.L.C. v. Catalina
Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). Here, Johnson
refers to his EEOC charge in his complaint, and his EEOC charge
is central to his claims. ECF No. 20 at 2; cf. Carter v. Target Corp.,
541 F. App’x 413, 415 (5th Cir. 2013) (holding that consideration
of the EEOC charge is appropriate at the 12(b)(6) stage where the
plaintiff references the charge in their complaint). The parties
agree that the EEOC charge attached to The Webster’s motion is
the only EEOC charge that Johnson submitted. See ECF No. 58.
Thus, the court may properly consider the EEOC charge in its
analysis.
Johnson’s SAC alleges six incidents of “public humiliation”
by the store manager between March and July of 2023. ECF No. 20
at 3–4. In the EEOC charge, however, Johnson’s factual
allegations, in the entirety, state:
On 11/27/2022, I began employment with The
Webster as a Sales Supervisor overseeing 6 Sales
Associates (“stylists”). At the time of my hire, I was the
3rd male Sales Supervisor. The first guy was fired
because he couldn’t make sales. The second guy
needed to take time off and was told, “don’t worry
about coming back.” That left me as the only male
employee with all female supervision and staff. The
Store Manager was Brittney Sumpter. Ruchi Khan
was the Assistant Manager, and Back of House
manager was Gabby.
I was initially instructed to cultivate
relationships and build a book of clients. When I asked
about instructions for consigning (i.e., sending clothes
to clients), I was told not to worry about that, just build
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clients. Then management began taking my clients
and giving them to the female stylists. One specific
Stylist was permitted by management to yell at me
and tell my clients to take clothes off because she
brought the clothes in. . . .
I spoke to Brittney Sumpter and Ruchi Khan
about the unfair treatment I was receiving compared
to the females. Less than one month later, on July 29,
2023, I was falsely accused of theft and my
employment was terminated without investigation or
even asking me anything about the false allegations.
Fair and Equal Treatment of all Employees regarding
Bullying, Harassment, and Investigating Theft with a
policy that is so lenient and lines so blurred that
what’s viewed as theft on some employees can be
viewed as going above and beyond to serve and cater
to clients.
I believe I was discriminated against based on
my sex (male) and terminated in retaliation for
reporting my concerns regarding the difference in
treatment, all in violation of Title VII of the Civil
Rights Act of 1964, as amended. After my termination,
I was replaced by a female Sales Supervisor.
ECF No. 21-1 at 2–3.
The EEOC charge does not allege that management was
hostile towards him or that his colleague yelled at him because of
his protected characteristic. Id. Notably, counter to Johnson’s
SAC, there is no mention in the EEOC charge of “public
humiliation” by the Store Manager on the basis of his sex. ECF
No. 21-1. The only hostility mentioned in the EEOC charge is that
a stylist yelled at him. There is no mention that the yelling had
anything to do with Johnson’s gender.
The Webster moves to dismiss Johnson’s sex-based hostile
work environment claim because it was not administratively
exhausted and because Johnson failed to allege facts sufficient to
state a claim. ECF No. 21. Johnson did not file a response to the
Motion to Dismiss.
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2. Legal Standard and Analysis
Rule 12(b)(6) authorizes the court to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). Generally, the court is constrained to the “four
corners of the complaint” to determine whether the plaintiff has
stated a claim. Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir.
2011); see also Loofbourrow v. Comm’r, 208 F. Supp. 2d 698, 708
(S.D. Tex. 2002) (“[T]he court may not look beyond the four corners
of the plaintiff’s pleadings.”).
Under Rule 12(b)(6), the court determines whether the
plaintiff’s complaint contains “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). “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.” Calogero v. Shows, Cali & Walsh, L.L.P.,
970 F.3d 576, 580 (5th Cir. 2020) (quoting 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.” Iqbal, 556 U.S.
at 678. Ultimately, the “[f]actual allegations [in the complaint]
must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (internal citation omitted).
The court liberally construes pro se pleadings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Courts accept “all well-pleaded
facts as true” and “view[] them in the light most favorable to the
plaintiff.” Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th
Cir. 2018) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)). “A plaintiff need only plausibly allege facts going to the
ultimate elements of the claim to survive a motion to dismiss.”
Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 768 (5th Cir.
2019). “Factual allegations must be enough to raise a right to relief
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above the speculative level . . . on the assumption that all
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555. “[A] well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those
facts is improbable[.]” Id. at 556.
Only statements of fact are to be taken as true. “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Conclusory allegations are “disentitled . . . to the presumption of
truth.” Id. at 681. Thus, the court, in reviewing the plaintiff’s
complaint, may neither “accept conclusory allegations” nor “strain
to find inferences favorable to the plaintiffs.” Southland Sec. Corp.
v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004).
Aggrieved employees filing suit under Title VII must first
exhaust their administrative remedies. Bunker v. Dow Chem. Co.,
111 F.4th 683, 686 (5th Cir. 2024); Davis v. Fort Bend Cnty., 893
F.3d 300 (5th Cir. 2018), aff’d, 587 U.S. 541 (2019). The purpose of
exhaustion is to provide employers notice of the existence and
general substance of the discrimination allegations. Manning v.
Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003). Among other
things, the charge must include a clear and concise statement of
the facts constituting the alleged unlawful employment practices.
Weathers v. Houston Methodist Hosp., 116 F.4th 324, 329 (5th Cir.
2024).
To determine whether a plaintiff has exhausted a claim,
courts liberally construe the scope of an EEOC charge. Melgar v.
T.B. Butler Publ’g. Co., 931 F.3d 375, 379 (5th Cir. 2019). Courts
should consider “the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination.” Id. (citing Pacheco v. Mineta, 448 F.3d 783 (5th
Cir. 2006)). In determining whether an allegation in a complaint
falls within the scope of an EEOC charge for exhaustion purposes,
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courts must engage in a “fact-intensive analysis of the statement
given by the plaintiff in the administrative charge, and look
slightly beyond its four corners, to its substance rather than its
label.” Pacheco, 448 F.3d at 789. Failure to properly exhaust a
claim will result in dismissal. See id. at 792.
“Harassment generally takes the form of ‘discriminatory
intimidation, ridicule, and insult’ that rises to the level of ‘hostile
or abusive.’” Ayorinde v. Team Indus. Services Inc., 121 F.4th 500,
509 (5th Cir. 2024) (quoting Clark v. City of Alexandria, 116 F.4th
472, 479 (5th Cir. 2024)). “The harassing behavior must be
sufficiently severe or pervasive such that it alters the conditions of
the victim’s employment and creates an abusive environment, and
the environment must be objectively and subjectively hostile to the
victim” based on his protected characteristic. Id. (internal
quotations omitted).
Courts have distinguished between sexual harassment and
sex or sexual orientation discrimination. See Lopez v. AT&T
Mobility Servs. LLC, 767 F. Supp. 3d 406, (W.D. Tex. 2025),
reconsideration denied, 2025 WL 4954308 (W.D. Tex. Apr. 7, 2025).
“The former involves ‘unwelcome sexual advances or other verbal
or physical conduct of a sexual nature,’ whereas the latter refers to
‘discriminating against someone because of their protected
characteristic.’” Id. (citing Friel v. Mnuchin, 474 F. Supp. 3d 673,
692 (E.D. Pa. 2020)).
Here, the only relevant factual allegation in Johnson’s
EEOC charge states that “[o]ne specific Stylist was permitted by
management to yell at me and tell me and my clients to take
clothes off because she brought the clothes in.” ECF No. 21-1 at 2.
Johnson states in the charge that he believes he was discriminated
against and subject to a retaliatory termination. Id. at 3. Based on
Johnson’s charge, the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination
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does not include harassment or an otherwise hostile work
environment. Johnson’s statement does not sufficiently describe
an abusive atmosphere sufficient to provide notice of a hostile work
environment claim. Johnson failed to exhaust his hostile work
environment claim. Because the exhaustion issue is dispositive,
the court does not review the claim for sufficiency of pleadings. The
court recommends that The Webster’s Motion to Dismiss Johnson’s
hostile work environment claim be GRANTED for lack of
exhaustion.
3. Conclusion
The court recommends that The Webster’s partial Motion to
Dismiss, ECF No. 21, be GRANTED.
The parties have fourteen days from service of this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on July 13, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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