Johnson v. Wag Acquisition Group LLC

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TERRA JOHNSON, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:24-cv-3268-BN
§
WAG HOTELS, INC., 	§
§
Defendant. 	§
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Terra Johnson filed this lawsuit in a Dallas County, Texas state
court against Defendant Wag Acquisition Group, LLC (identified by Johnson as Wag
Hotels, Inc.) (“Wag”) alleging discrimination and harassment based on the lack of a
suitable lactation location for her “to express milk, ‘a place other than the bathroom
that is shielded from view and free from intrusion from coworkers and the public.’”
Dkt. No. 1-3 at 7-12.
After the parties consented in writing, see Dkt. No. 12 at 3, the lawsuit was
ordered transferred to the undersigned United States magistrate judge for all further
purposes under 28 U.S.C. § 636(c), see Dkt. No. 13.
The Court then entered a memorandum opinion and order that first found that,
through its notice of removal, Wag demonstrated that there was subject matter
jurisdiction at the time of removal based on the existence of a federal question in the
state court petition. See Johnson v. Wag Hotels, Inc., No. 3:24-cv-3268-BN, 2025 WL
992573, at *1-*3 (N.D. Tex. Apr. 2, 2025) (“Johnson I”).
Subject 	matter 	jurisdiction 	properly 	pleaded, 	the 	Court 	then 	liberally
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construed Johnson’s factual allegations as asserting against her employer claims of
discrimination and/or failure to accommodate based on her status as a nursing
mother – and, so, her pro se complaint
potentially 	implicate[d] 	several 	federal 	laws 	in 	addition 	to 	the
[Providing 	Urgent 	Maternal 	Protections 	for 	Nursing 	Mothers 	Act
(“PUMP Act”)], including Title VII of the Civil Right Act of 1964, the
Americans with Disabilities Act (the “ADA”), and the Pregnant Workers
Fairness Act (the “PWFA”).
Id. at *4.
And, applying the framework of Federal Rule of Civil Procedure 12(b)(6) to
these claims, the Court granted Wag’s motion to dismiss but allowed Johnson the
opportunity to file an amended complaint. See id. at *4-*8.
Johnson timely did so. See Dkt. Nos. 16 & 17. Wag then moved to dismiss the
amended complaint under Rule 12(b)(6). See Dkt. Nos. 18 & 19. The parties briefed
Wag’s motion, and Johnson moved to submit numerous exhibits (contained on a flash
drive). See Dkt. Nos. 20 & 22-27.
Johnson then notified the Court of an alleged corrective action taken by Wag
after she filed this lawsuit. See Dkt. No. 28. Considering Johnson’s pro se status, the
Court construed this notification as a motion under Federal Rule of Civil Procedure
15(d), under which a “court may permit a party to file a supplemental pleading setting
forth transactions or occurrences or events which have happened since the date of the
pleading sought to be supplemented.” Burns v. Exxon Corp., 158 F.3d 336, 343 (5th
Cir.1998) (citing FED . R. CIV. P. 15(d)); see Dkt. No. 29. The parties then briefed the
construed Rule 15(d) motion. See Dkt. Nos. 30-33.
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For the following reasons, Johnson has failed to allege plausible claims through
either her amended complaint or proposed supplement – or, impermissibly, through
her response to the motion to dismiss and the exhibits to that response – and, so, the
Court denies Johnson’s motions requesting that the Court consider those exhibits and
that she be allowed to supplement her claims, grants Wag’s motion to dismiss the
amended complaint, and dismisses this lawsuit with prejudice.
Discussion
The Court previously set out – and need not now repeat – the applicable Rule
12(b)(6) standards that apply equally to determining whether granting Johnson’s
construed Rule 15(d) motion would be futile. See Johnson I, 2025 WL 992573, at *3-
*4; see also Tomasella v. Div. of Child Support, No. 3:20-cv-476-S-BH, 2021 WL
3710659, at *2 (N.D. Tex. Aug. 20, 2021) (“Judicial decisions to grant or deny Rule
15(d) motions to supplement pleadings are generally based on the same factors of
fairness courts weigh when considering motions to amend pleadings under Rule
15(a),” which includes “the futility of amendment.” (cleaned up)); Martinez v. Nueces
Cnty., Tex., 71 F.4th 385, 391 (5th Cir. 2023) (“If the complaint, as amended, would
be subject to dismissal, then amendment is futile and the district court was within
its discretion to deny leave to amend.” And, so, a court must “ask whether, in [the]
proposed amended complaint, [a plaintiff] has pleaded factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” (cleaned up)).
Through the amended complaint, Johnson specifically alleges claims (1) under
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the PUMP Act and for (2) discrimination and a (3) hostile work environment under
Title VII as amended by the PDA. See generally Dkt. No. 16.
Starting with the PUMP Act, Johnson has not cured the basis for the Court’s
prior dismissal of this claim: “[I]f the facts alleged support its applicability, pre-suit
notification is a condition precedent to bringing a claim under the PUMP Act….
Johnson has – so far – alleged no facts from the which the Court can make a finding
that (1) she provided the notification required by [29 U.S.C. §] 218d(g)(1) or (2) that,
pursuant to [29 U.S.C. §] 218d(g)(2), that notification requirement does not apply in
this case.” Johnson I, 2025 WL 992573, at *7.
Nor can Johnson state a plausible claim under the PUMP Act to the extent
that she also alleges, without further support, that she “was informed by [Wag] that
she would need to pump outside of her paid, legally mandated breaks, in violation of
her rights under the PUMP Act,” Dkt. No. 16 at 3, where the Act provides that “an
employer shall not be required to compensate an employee receiving reasonable break
time under subsection (a)(1) for any time spent during the workday for such purpose
unless otherwise required by Federal or State law or municipal ordinance,” 29 U.S.C.
§ 218d(b)(1).
As to the remaining claims in the amended complaint, Wag first moves to
dismiss them as time barred because, while they were included in Johnson’s EEOC
charge, she failed to include them in the original complaint and instead first
presented them through an amended complaint filed more than 90 days after Johnson
received her right-to-sue letter.
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Under Title VII, “a plaintiff has ninety days to bring suit in federal court after
receipt of a statutory notice of right to sue from the EEOC.” January v. Tex. Dep’t of
Crim. Justice, 760 F. App’x 296, 299 (5th Cir. 2019) (per curiam).
This requirement “is not a jurisdictional prerequisite” but “is akin to a statute
of limitations.” Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985).
Still, 	“[t]he 	90-day 	limitations 	period 	is 	‘strictly 	construed,’ 	and 	courts
routinely dismiss claims that are filed after the limitations period expires, even if
they are filed only one day late.” Boyd v. AT&T Mobility Servs., LLC, No. 3:23-cv-
2882-D, 2024 WL 3952586, at *2 (N.D. Tex. Aug. 27, 2024) (quoting Taylor v. Books
A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) then citing id. at 380).
It’s true that the Court liberally construed the facts alleged in the original
complaint as possibly supporting claims not limited to the PUMP Act. See Johnson I,
2025 WL 992573, at *3-*6.
But those facts were limited to Johnson’s lactation-related allegations. See Dkt.
No. 1-3 at 7-11.
And, so, to the extent that she raises a claim for first time in an amendment
filed more than 90 days after receiving a right-to-sue letter based on facts that do
appear in the EEOC charge but cannot be said to appear in the original complaint,
such a claim may be time barred unless it can be said that, under Federal Rule of
Civil Procedure 15(c)(1), the claim relates back to the original complaint (filed within
90 days after receipt of the right-to-sue letter).
[Rule 15(c)(1)] is intended to give the defendant “fair notice that the
litigation is arising out of a specific factual situation.” A claim in an
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amended pleading will not relate back to a previous pleading unless the
previous pleading fairly gave the defendant notice of the later-asserted
claim. When an amendment is based on different facts, transactions,
and occurrences, a claim in an amended pleading will not relate back.
Hunt v. Riverside Transp., Civ. A. No. 11-2020-DJW, 2012 WL 1893515, at *4-*5 (D.
Kan. May 23, 2012) (footnotes omitted; finding “that the relation back doctrine [was]
not applicable” where “Defendant could not have reasonably anticipated that it
should prepare for a case involving plaintiff’s post-complaint claims when Plaintiff
did not timely seek to amend his complaint to add these claims after receiving his
second right to sue notice”).
Limitations is an affirmative defense that “must appear clearly on the face of
the pleadings” to support a dismissal under Rule 12(b)(6). Taylor v. Lear Corp., No.
3:16-cv-3341-D, 2017 WL 6209031, at *2 (N.D. Tex. Dec. 8, 2017) (cleaned up);
Clemmer v. Irving Indep. Sch. Dist., No. 3:13-cv-4997-D, 2015 WL 1757358, at *2
(N.D. Tex. Apr. 17, 2015).
But both complaints that Johnson has filed in this case present claims and
allege facts in a less than clear manner – which may be understandable given her pro
se status, but which also weighs against the Court’s dismissing claims under Rule
12(b)(6) as time barred for a failure to relate back under Rule 15(c)(1).
So the Court declines to dismiss these claims based on limitations but will
consider Wag’s reasons to dismiss them because they are not plausibly pleaded and,
doing so, finds that they should be dismissed with prejudice for the following reasons.
First, the Court previously set out in detail how to properly allege a claim of
employment 	discrimination, 	see 	Johnson 	I, 	2025 	WL 	992573, 	at 	*4-*6, 	and
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emphasized that,
at this stage, “a plaintiff must plead two ‘ultimate elements’ in order ‘to
support a disparate treatment claim … : (1) an ‘adverse employment
action,’ (2) taken against a plaintiff ‘because of [a] protected status.’”
Thomas v. Dall. Indep. Sch. Dist., No. 23-10882, 2024 WL 2874367, at
*4 (5th Cir. June 7, 2024) (quoting Cicalese v. Univ. of Tex. Med. Branch,
924 F.3d 762, 767 (5th Cir. 2019); emphasis in Cicalese).
That is,
[a] complaint need not allege each prong of the prima facie
test for disparate treatment … ; to support a disparate
treatment … , though, it must plausibly set out facts that
the defendant took the adverse employment action against
a plaintiff because of [a] protected status. [Accordingly, a]
plaintiff must allege facts, direct or circumstantial, that
would suggest [the employer’s] actions were based on [the
plaintiff’s protected status] or that [the employer] treated
similarly 	situated 	employees 	[not 	of 	the 	plaintiff’s
protected status] more favorably.
Sanchez v. Chevron N. Am. Exploration & Prod. Co., No. 20-30783, 2021
WL 5513509, at *5 (5th Cir. Nov. 24, 2021) (per curiam) (cleaned up;
emphasis in original).
And, to the extent that the complaint implicates a disparate
treatment claim based on the denial of an accommodation, the ultimate
elements of such a claim under Title VII in this context are that Johnson
“belongs to the protected class, that she sought accommodation, that the
employer 	did 	not 	accommodate 	her, 	and 	that 	the 	employer 	did
accommodate others ‘similar in their ability or inability to work.’” Luke
v. CPlace Forest Park SNF, L.L.C., 747 F. App’x 978, 979 (5th Cir. 2019)
(per curiam) (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206,
229 (2015) (citing 42 U.S.C. § 2000e(k))).
Id. at *4-*5; see also id. at *6 (concluding that claims “centered on the suitability of
the lactation location itself is alone not enough to allege a plausible claim under either
Title VII or the ADA” (collecting cases)).
But Johnson chose not to consider this roadmap in amending her claims and
still 	fails 	to 	plausibly 	plead 	a 	disparate 	treatment 	claim 	and 	a 	hostile 	work
environment claim – itself just “a type of disparate treatment claim … that relies on
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proving an employer’s discriminatory motive,” Jasso v. Midland-Odessa Transit
Mgmt., Inc., MO:22-CV-00250-DC-RCG, 2023 WL 6474435, at *2 n.2 (W.D. Tex. Sept.
19, 2023) (citations omitted), rec. adopted, 2023 WL 6466237 (W.D. Tex. Oct. 4, 2023).
As to the later, “[t]o survive a motion to dismiss, a plaintiff pleading a claim
for hostile work environment must plead two ‘ultimate elements’: 1) an adverse
employment action, 2) taken against a plaintiff because of her protected status.” Id.
at *2 (citing Cicalese, 924 F.3d at 767)); see, e.g., Stinson v. McGinnis, No. 3:23-cv-
810-M-BN, 2024 WL 4152703, at *13 (N.D. Tex. Aug. 16, 2024) (“[A]s to the alleged
hostility targeting Stinson, she fails to allege facts from which the Court could infer
that the hostile acts were because of Stinson’s race or color.”), rec. accepted, 2024 WL
4151175 (N.D. Tex. Sept. 11, 2024).
And Johnson’s amended allegations as to her workplace fall short of those that
could raise a reasonable inference that it was one “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of her employment.” Johnson v. Halstead, 916 F.3d 410, 417 (5th Cir. 2019)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); accord Hudson v.
Lincare, Inc., 58 F.4th 222, 229 (5th Cir. 2023).
As Wag persuasively explains in its reply, as to the amended complaint,
Johnson still does not allege she suffered an adverse employment action
based on any protected characteristic, nor that she requested, or was
denied, reasonable accommodation. She instead rehashes her belief that
coworkers resented her because she was married to another Wag
employee and thought she received favorable treatment as a result, and
focuses on alleged denial of “promised training,” delayed or unexpectedly
rescheduled performance reviews, schedule changes, and being labeled
“hostile” due to how she interacted with those to whom she reported.
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Even if any of these actions could constitute an adverse employment
action, Johnson does nothing to tie them to any protected condition,
instead she vaguely alleges that these things happened in response to
her “asserting protected rights,” while at the same time admitting the
alleged “hostility” (1) came from non-employees over whom Wag has no
control (the patrons at the bar next door), (2) was focused on her “marital
status” (i.e., her being married to another Wag employee); or (3)
otherwise had nothing to do with any protected characteristic.
Dkt. No. 27 at 4-5 (cleaned up).
Next, the Court will not consider any new claims that Johnson may allege
through her response to the motion to dismiss [Dkt. No. 22].
That is because “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)).
Nor will the Court consider the exhibits that Johnson references in that
response, which she seeks leave to submit, see Dkt. Nos. 22-25 – presumably to make
them part of the pleadings, since the plausibility of the pleadings is the only issue
before the Court.
Pleadings in the Rule 12(b)(6) context include attachments to the complaint.
See, e.g., In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
But documents not attached to a pleading (such as a complaint) but instead
offered through motions practice – most commonly when they are “attache[d] to a
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motion to dismiss” – are only “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)).
The exhibits that Johnson offers are not mentioned in her amended complaint.
Nor do they meet the centrality requirement where the Court may reasonably infer
from Johnson’s response that the exhibits are offered as evidence to support her
assertions – but she has not shown that they are “necessary to establish an element
of one of [her] claims.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D.
Tex. 2011); cf. Collins, 224 F.3d at 499 (“In so attaching, the defendant merely assists
the plaintiff in establishing the basis of the suit, and the court in making the
elementary determination of whether a claim has been stated.”).
And, although a court generally will not consider new claims raised through a
response to a motion to dismiss, the Court will make an exception here to briefly
describe why the new claims raised on response are not plausibly pleaded as further
support for the Court’s decision not to grant further leave to amend.
First, Johnson cannot state a claim based on an assertion that Wag was under
a legal obligation “to inform employees of their rights under the EEOC, OSHA, or
other employment laws.” Dkt. No. 22 at 10; see, e.g., Bernard v. EDS Noland
Episcopal Day Sch., 62 F. Supp. 3d 535, 543-44 (W.D. La. 2014) (“Federal law requires
every employer to post notices describing the provisions of the ADA. 42 U.S.C. §
12115. These notices are to be posted in ‘conspicuous places.’ 42 U.S.C. § 2000e-10(a).
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There is, however, no private cause of action to enforce the posting requirements.”
(collecting cases)).
Nor may Johnson allege a plausible claim based on allegations that Wag failed
to follow policies in its employee handbook. See Dkt. No. 22 at 10-13. “As a general
rule employee handbooks and policy manuals constitute general guidelines in the
employer/employee relationship and do not create implied contracts between the
employer and employee.” Brown v. Sabre, Inc., 173 S.W.3d 581, 585-86 (Tex. App. –
Fort Worth 2005, no pet.) (collecting cases); Young-Trezant v. Lone Star Coll. Sys.,
No. 23-20551, 2024 WL 2794483, at *2 (5th Cir. May 31, 2024) (per curiam)
(“Employer policies do not qualify as contracts, and their ‘breaches’ do not create
causes of action under Texas law.” (citing Brown, 173 S.W.3d at 585)).
Finally, the Court denies the motion to supplement under Rule 15(d) because
the claim that Johnson intends to add to this case – for retaliation – also is not
plausibly pleaded, and, so, it would be futile to add it to this lawsuit.
In sum, Johnson alleges that, after she filed her EEOC charge, Wag retaliated
against her by issuing a “Corrective Action” or written warning after it learned that
Johnson recorded a conversation she had with another Wag employee located in
California without that employee’s knowledge or consent (and, so, in violation of
California’s Invasion of Privacy Act, CAL. PENAL CODE § 632(a)).
“[F]or a retaliation claim, a plaintiff only needs to plausibly ‘allege facts going
to the ultimate elements of the claim to survive a motion to dismiss.’” Smith v.
Kendall, No. 23-50713, 2024 WL 4442040, at *4 (5th Cir. Oct. 8, 2024) (per curiam)
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(quoting Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021)).
Those “ultimate elements” are “that 1) [the plaintiff] engaged in protected
activity, 2) she suffered an adverse employment action, and 3) a causal link exists
between the protected activity and the adverse employment action.” Wright, 990 F.3d
at 433 (cleaned up).
“[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.’” Welsh v.
Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826-27 (5th Cir. 2019) (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006)), abrogated on other grounds
by Hamilton v. Dall. Cnty., 79 F.4th 494 (5th Cir. 2023) (en banc).
And, following Hamilton – in which the United States Court of Appeals for the
Fifth Circuit “made clear that,” for discrimination claims, “Title VII requires a
broader reading than [its] ‘ultimate employment decision’ line of cases permitted and
thus ‘end[ed] that interpretive incongruity’ by removing that requirement,” Harrison
v. Brookhaven Sch. Dist., 82 F.4th 427, 428 (5th Cir. 2023) (per curiam) – “[c]ompared
to the discrimination context, an ‘adverse employment action’ for retaliation claims
under Title VII appears to have a higher bar,” Liao v. Univ. of Tex. at San Antonio,
SA-22-CV-01359-XR, 2024 WL 4564278, at *9 (W.D. Tex. Oct. 23, 2024).
The United States Supreme Court has explained why this is so:
If an action causes less serious harm, … 	it will not deter Title VII
enforcement; and if it will not deter Title VII enforcement, it falls outside
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the purposes of the ban on retaliation…. [But t]he anti-discrimination
provision 	… 	simply 	seeks 	a 	workplace 	where 	individuals 	are 	not
discriminated against because of traits like race and sex. The provision
thus flatly prevents injury to individuals based on status, without
distinguishing between significant and less significant harms.
Muldrow v. City of St. Louis, Mo., 601 U.S. 346, 357-58 (2024) (cleaned up).
And, because Johnson has not alleged that Wag’s issuing the written warning
counts as a materially adverse employment action, she has not plausibly pleaded a
retaliation claim. See Spencer v. Shell Exploration & Prod. Co., No. 24-20173, 2025
WL 855314, at *3 (5th Cir. Mar. 19, 2025) (per curiam) (“As to the PIP” – or
performance improvement plan – “we have indicated that ‘written warnings and
unfavorable 	performance 	reviews 	are 	not 	adverse 	employment 	actions 	where
colorable grounds exist for disciplinary action.’ Spencer fails to allege – in a non-
conclusory manner – that Shell’s grounds for the PIP were pretextual or unjustified.
The district court correctly dismissed this claim.” (quoting Jackson v. Honeywell Int’l,
Inc., 601 F. App’x 280, 286 (5th Cir. 2015))); Norwood v. Dall. Cnty. Hosp. Dist., No.
3:23-cv-1490-S, 2025 WL 607873, at *10 (N.D. Tex. Feb. 25, 2025) (“The Court …
concludes that the formal write-up was not an adverse employment action for
purposes of a prima facie case of retaliation” in part because “‘there were colorable
grounds for the warning and a reasonable employee would have understood a
warning under these circumstances was not necessarily indicative of a retaliatory
mind-set.’” (quoting DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F App’x
437, 442 (5th Cir. 2007) (per curiam))).
Considering all of the above, because, in response to the Court’s apprising her
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of the deficiencies in her initial pleading and of the legal standards applicable to her
claims, Johnson still has not alleged a plausible cause of action, the Court concludes
that she has now alleged her “best case” and further leave to amend need not be
granted. See, e.g., Allen v. Navy Fed. Credit Union, No. 3:24-cv-949-L-BN, 2025 WL
484818, at *13 (N.D. Tex. Feb. 13, 2025) (“Granting leave to amend … is not necessary
when the plaintiff has pleaded his or her ‘best case’ after being apprised of pleading
deficiencies. Likewise, a district court need not grant a motion to amend if doing so
would be an exercise in futility.” (citations omitted)).
Conclusion
The Court DENIES Plaintiff Terra Johnson’s motion for leave to submit
exhibits [Dkt. No. 23] and construed motion for leave to supplement under Federal
Rule of Civil Procedure 15(d) [Dkt. No. 28]; GRANTS Defendant Wag Acquisition
Group, LLC’s motion to dismiss Johnson’s amended complaint under Federal Rule of
Civil 	Procedure 	12(b)(6) 	[Dkt. 	No. 	18]; 	and 	DISMISSES 	WITH 	PREJUDICE
Johnson’s claims.
The 	Court 	will 	enter 	a 	separate 	final 	judgment 	consistent 	with 	this
memorandum opinion and order.
SO ORDERED.
DATED: March 5, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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