Johnson v. Frost Bank

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Ashley M. Johnson,
Plaintiff,
v.
Frost Bank,
Defendant.
§
§
§
§
§
§
§
Civil Action H-25-4480
ORDER ON PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT
AND MEMORANDUM AND RECOMMENDATION
ON DEFENDANT’S MOTION TO DISMISS
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 6. Pending
before the court are (1) Plaintiff’s Request for Clerk’s Entry
of Default, ECF No. 20; (2) Defendant’s Motion for Leave to
Supplement Response in Opposition to Plaintiff’s Request for
Entry of Default, ECF No. 26; and (3) Defendant’s 12(b)(6) Motion
to Dismiss Plaintiff’s Complaint, ECF No. 23. Plaintiff’s Request
for Clerk’s Entry of Default, ECF No. 20, is DENIED, and
Defendant’s Motion for Leave to Supplement Response, ECF
No. 26, is DENIED. The court recommends that Defendant’s
Motion to Dismiss, ECF No. 23, be GRANTED in PART.
1. Background
Plaintiff Ashley Johnson brings this case under Title VII, the
Americans with Disabilities Act of 1990 (ADA), and the Family
Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. (FMLA).
ECF No. 1 at 3.
Johnson began working for Defendant Frost Bank on May 8,
2023. ECF No. 1 at 7. Johnson asserts that her employer subjected
her to retaliatory treatment and a series of adverse actions after
United States District Court
Southern District of Texas
ENTERED
May 19, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 1 of 12

2
she reported “incidents of racial slurs, profiling of customers, and
exclusionary behavior by leadership.” Id. at 4, 8. She alleges
discrimination based on race, sex, and disability. Id. at 4. As
adverse actions, she alleges retaliation, failure to promote,
unequal terms and conditions of employment, and “interference
with protected FMLA rights” to take medical leave. Id. at 3–4. She
states that the alleged discriminatory acts began on May 18, 2024,
and continued until April or May of 2025. Id. at 4.
Johnson’s Complaint states that she received her Notice of
Right to Sue from the Equal Employment Opportunity
Commission (EEOC) on May 23, 2025. ECF No. 1 at 5. She
attached a copy of the Notice of Right to Sue letter to her
Complaint. ECF No. 1-1 at 2. The letter also shows that it was
issued on the same date that Johnson received it—May 23, 2025.
Id. The letter states in bold letters that any lawsuit must be filed
within ninety days of receipt of the notice. Id.
Ninety-one days later, on August 22, 2025, Johnson filed her
Complaint and an application to proceed in forma pauperis in
federal court. See Johnson v. Frost Bank, 4:25-mc-01571,
ECF No. 1 (S.D. Tex. Aug. 22, 2025).
There are two pending motions before the court—Johnson’s
Request for Clerk’s Entry of Default, ECF No. 20, and Defendant’s
Motion to Dismiss, ECF No. 23. The court addresses each motion
in turn, providing additional background facts as needed.
2. Johnson’s Request for Clerk’s Entry of Default
On March 9, 2026, Johnson filed a Request for Entry of
Default against Defendant pursuant to Federal Rule of Civil
Procedure 55(a). ECF No. 20. Johnson asserts that Defendant
failed to timely respond to the lawsuit. Id. She argues that
Defendant was properly served on February 13, 2026, making its
response deadline March 6, 2026. Id. (citing Process Receipt and
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 2 of 12

3
Return, ECF No. 19; Fed. R. Civ. P. 12(a)(1)(A)(i)). She states that
as of the time of filing, Defendant had not responded to the action
and no attorney had entered an appearance on its behalf. Id.
The Process Receipt and Return shows that the United
States Marshals Service served Defendant’s registered agent,
Corporation Service Company (CSC), with a copy of Johnson’s
summons and Complaint via certified mail. ECF No. 19.
The Process Receipt and Return states that service was executed
on February 13, 2026, at 11:14 a.m. Id. A United States Postal
Service tracking number, 9589 0710 5270 2722 9851 29, was
handwritten on the bottom of document. Id. A search of that
tracking number on the Postal Service’s website confirms that
the parcel was “Delivered to Agent, Left with Individual” on
“February 13, 2026, 11:14 am.” U.S. POSTAL SERV., USPS
Tracking, https://tools.usps.com/go/TrackAction (last visited
May 13, 2026).
The day after Johnson filed her Request for Entry of Default,
Defendant filed its response in opposition. ECF No. 24. Defendant
argues that it was not served until February 17, 2026. Id. at 2.
Attached to its motion is an email from CSC to Defendant dated
February 18, 2026. ECF No. 24-1 at 2. The email states that
Johnson’s Complaint was served on CSC on February 17, 2026. Id.
Moreover, Defendant argues that the Process Receipt and Return
does not comply with Texas service of process requirements.
Id. at 3. While Defendant does not assert that service was
defective on that basis, it argues that the Process Receipt and
Return cannot support an entry of default. Id.
Federal Rule of Civil Procedure 55(a) provides that “[w]hen
a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party’s default.”
However, “[a] defendant cannot default if he had no duty to answer
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 3 of 12

4
the suit—and he need not answer until ‘service has been
perfected.’” Espinoza v. Humphries, 44 F.4th 275, 276 (5th Cir.
2022).
A plaintiff is permitted to complete service of process by
following the service-of-process laws of the state in which the
federal district court is located. Fed. R. Civ. P. 4(e). Texas law
allows service by certified mail with return receipt requested. Tex.
R. Civ. P. 106(a)(2). When a defendant is served by certified mail,
the return of service “must also contain the return receipt with the
addressee’s signature.” Tex. R. Civ. P. 107(c).
There is no return receipt (PS Form 3811—the “Green
Card”) attached to the Process Receipt and Return. And it does not
contain the signature of anyone from CSC. Because the Process
Receipt and Return does not conform with the requirements of
Texas law, it cannot conclusively establish the date of service.
Defendant’s evidence shows that its registered agent was
served on February 17, 2026. That means that its response was
not due until March 10, 2026, which is the day after Johnson filed
her motion for entry of default. Because Defendant did not have a
duty to answer Johnson’s lawsuit as of the date of filing her
motion, the Clerk could not have entered default against it.
Moreover, under Rule 55(c), the court may set aside an entry
of default for good cause. Fed. R. Civ. P. 55(c). Additionally, under
Rule 6(b), courts may extend the time to answer for good cause and
excusable neglect. It is clear that Defendant believed that its
response to Johnson’s Complaint was not due until March 10,
2026. On March 10, 2026, Defendant filed a response to the instant
motion and a motion to dismiss Johnson’s Complaint under
Rule 12. Defendant has now appeared in the case and is defending
itself. Were default to be entered, the court would find good cause
to set it aside under Rules 55(c) and 6(b).
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 4 of 12

5
For these reasons, Johnson’s Request for Entry of Clerk’s
Default, ECF No. 20, is DENIED. The Clerk of Court is
ORDERED to refrain from entering default against Defendant.
Defendant’s Motion for Leave to Supplement Response in
Opposition to Plaintiff’s Request for Entry of Default, ECF No. 26,
is DENIED.
3. Defendant’s Motion to Dismiss
Defendant filed a Motion to Dismiss Johnson’s Complaint
under Rule 12(b)(6). ECF No. 23. Defendant argues that Johnson’s
claims under Title VII and the ADA are time barred. Id. at 2.
Defendant also asserts that Johnson failed to plausibly allege her
claims under Title VII, ADA, and FMLA. Id.
In response to Defendant’s Motion, Johnson admits that she
failed to file her lawsuit within the ninety-day period that followed
receipt of the Notice of Right to Sue letter. ECF No. 28 at 2–3. She
asks the court to apply equitable tolling to excuse her late filing.
Id. As to the sufficiency of her Complaint, Johnson asserts that she
plausibly alleged her claims. Id. at 4–5. Should the court disagree,
Johnson seeks leave to amend her Complaint. Id. at 6.
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). 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
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 5 of 12

6
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).
A. Johnson’s Claims Under Title VII and the ADA
A statute of limitations may support dismissal under
Rule 12(b)(6) where it is clear from the plaintiff’s pleadings that
the action is time barred, and the pleadings fail to raise a basis for
equitable tolling. Kirkland v. Big Lots Store, Inc., 547 F. App’x 570,
572 (5th Cir. 2013) (citing Jones v. Alcoa Inc., 339 F.3d 359, 366
(5th Cir. 2003)).
Aggrieved employees who seek to file a lawsuit under
Title VII or the ADA must file suit within ninety days of receipt of
a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); Dao v. Auchan
Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (“[T]he ADA
incorporates by reference the procedures applicable to actions
under Title VII, 42 U.S.C. § 2000e, et seq.”). The ninety-day period
is strictly construed. Washington v. City of Gulfport, 351 F. App’x
916, 918 (5th Cir. 2009). “Indeed, the Fifth Circuit has affirmed
dismissals of cases in which a plaintiff missed the ninety-day
period by just one or two days.” Davis v. ComputerShare Loan
Servs., No. 23-1542, 2023 WL 9005670, at *2 (S.D. Tex. Nov. 8,
2023) (collecting cases), R. & R. adopted, 2023 WL 9007275 (Dec.
27, 2023).
If a plaintiff files suit more than ninety days after receiving
notice of their right to sue, the court will typically dismiss the
action as time barred. Gulfport, 351 F. App’x at 918. However,
in some circumstances, the court may apply equitable tolling to
excuse a plaintiff’s late filing. Granger v. Aaron’s, Inc., 636 F.3d
708, 712 (5th Cir. 2011). Courts have applied equitable tolling
when (1) a plaintiff timely files suit in the wrong forum,
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 6 of 12

7
(2) a plaintiff is unaware of the facts giving rise to the suit because
the defendant intentionally concealed them, or (3) the EEOC
misleads a plaintiff about her rights. Id. (noting that the list is not
exhaustive). Equitable tolling should be applied sparingly. Id.
Johnson filed this lawsuit on the ninety-first day after
receipt of the Notice of Right to Sue letter. Thus, Johnson’s claims
under Title VII and the ADA are time barred unless equitable
tolling applies.
Johnson has not identified facts that would warrant tolling.
She asserts only that “extraordinary circumstances outside [her]
control prevented her from” timely filing her lawsuit. ECF No. 3
at 1. She states that Defendant’s retaliation forced her to exhaust
all of her paid time off, which left her unable to “leav[e] work to
pursue this filing” by the filing deadline. Id. at 2. She states that
Defendant’s actions “made it impossible . . . to secure leave and file
her Complaint within the presumed 90-day period.” Id. She was,
however, able to file one day after the ninety-day period expired.
The explanation that Johnson provides is not sufficient to
support equitable tolling of the ninety-day period. Johnson does
not suggest that she mistakenly filed this lawsuit in the wrong
forum. She does not suggest that Defendant intentionally
concealed facts giving rise to this lawsuit. And she does not suggest
that the EEOC misled her about her rights.
Because Johnson’s Title VII and ADA claims are time-barred
and she has not provided facts to support equitable tolling, the
court recommends that the claims be DISMISSED with
PREJUDICE.
Johnson admitted the facts from which the court concluded
that her claims under Title VII and the ADA are time-barred.
Therefore, it would be futile to grant Johnson leave to amend her
complaint to address those claims. Any request for leave to amend
the complaint to address the Title VII and ADA claims is denied.
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 7 of 12

8
B. Johnson’s FMLA Claims
Defendant asserts that Johnson’s Complaint does not
plausibly allege claims for FMLA retaliation or FMLA
interference. ECF No. 23 at 2.
i. FMLA Retaliation
To establish a prima facie case of FMLA retaliation, a
plaintiff must plead sufficient facts showing that (1) they were
protected under the FMLA; (2) they suffered an adverse
employment action; and (3) they were treated less favorably than
(a) an employee who had not requested FMLA leave, or (b) the
adverse action was taken because they sought protection under the
FMLA. Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 791 (5th Cir.
2017) (citing Mauder v. Metro. Transit Auth. of Harris Cnty., 446
F.3d 574, 583 (5th Cir. 2006)). The third element requires the
plaintiff to show “a causal link between the FMLA-protected
activity and the adverse action.” Id. (citing Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005)) (internal
quotations removed).
Defendant asserts that Plaintiff failed to connect an alleged
adverse action to the exercise of her FMLA benefits. ECF No. 23
at 19. Johnson’s Complaint states that on the day that Johnson
returned from FMLA leave, she learned that “she would not accrue
vacation for the year due to her [FMLA] leave[.]” ECF No. 1 ¶ 14.
By temporal proximity, Johnson plausibly tied the denial of paid
time off to her exercise of FMLA. However, it is not clear to the
court that the denial of paid time off is an adverse action. Neither
party meaningfully addressed the issue. And because the court will
allow Johnson to amend her complaint, it will refrain from opining
on the issue at this time.
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 8 of 12

9
ii. FMLA Interference
To establish a prima facie case of FMLA interference, a
plaintiff must plead (1) plaintiff was an FMLA-eligible employee,
(2) plaintiff’s employer was subject to FMLA requirements,
(3) plaintiff was entitled to FMLA leave, (4) plaintiff gave proper
notice of their intention to take FMLA leave, and (5) plaintiff’s
employer interfered with, restrained, or denied plaintiff’s exercise
of the benefits to which they were entitled under the FMLA. Hester
v. Bell-Textron, Inc., 11 F.4th 301, 306 (5th Cir. 2021) (citing
Cadwell v. KHOU–TV, 850 F.3d 237, 245 (5th Cir. 2017).
Employer interference with the exercise of FMLA rights
includes refusing to authorize FMLA leave; discouraging use of
FMLA leave; manipulating an employee to avoid FMLA
responsibilities; and failing to comply with notice requirements.
20 C.F.R. §§ 825.220(b), 825.300(c); see also Butron v. Centerpoint
Energy, No. 10-0369, 2011 WL 2162238, at *7 (S.D. Tex. May 31,
2011) (quoting 29 C.F.R. § 825.220). Any of these actions, among
others, “constitute[s] interfering with, restraining, or denying the
exercise of [FMLA] rights.” 29 C.F.R. § 825.220(b).
The plaintiff must also show that they were prejudiced by
the alleged denial of benefits. Acker, 853 F.3d at 788. Prejudice is
shown when “by reason” of the alleged denial of FMLA benefits,
the plaintiff suffers some monetary loss, including loss of
compensation, care costs, or employment status. See 29 U.S.C.
§ 2617(a)(1)(i)(I)-(II); Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 89 (2002); Downey v. Strain, 510 F.3d 534, 539 (5th Cir.
2007). Prejudice is not shown when, for example, an employer
contacts an employee who is on leave a limited number of times to
discuss work-related matters. Bryant v. Tex. Dep’t of Aging &
Disability Servs., 781 F.3d 764, 770 (5th Cir. 2015).
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 9 of 12

10
Defendant asserts that Johnson’s claim for FMLA
interference fails because she did not allege that Defendant denied
her benefits under the FMLA. ECF No. 23 at 17–18.
Johnson’s Complaint alleges that she exercised her rights
under the FMLA. ECF No. 1 ¶ 10. It states that Johnson’s request
for FMLA leave was approved. Id. It states that her FMLA leave
began on December 16, 2024, and that she returned to work on
January 6, 2025. Id. ¶¶ 14–15.
Johnson alleges that she suffered “unnecessary mental and
emotional distress” and stress during her FMLA leave. ECF No. 1
¶¶ 13–14. She states that the “unnecessary mental and emotional
distress during her leave” was caused by Defendant’s allegedly
strategic decision to wait until the end of the workday, on the day
before the start of Johnson’s leave, to place a reprimand into her
file. Id. ¶ 13. Johnson alleges that the reprimand was originally
issued two days prior. Id. ¶ 12. Johnson does not explain the basis
for her belief that Defendant “strategically waited” to place the
reprimand in her file. She also fails to allege that the decision was
intended to interfere with the exercise of her FMLA benefits, or
that it actually interfered with the exercise of her FMLA benefits.
Johnson also asserts that she suffered stress during her
FMLA leave, which was caused by her “discovery of payroll
discrepancies and missing hours.” ECF No. 1 ¶ 14. She asserts
that the stress was compounded by inability to get a prompt
response from Defendant, as Johnson made the discovery on
Christmas Eve. Id. From Johnson’s Complaint, it appears that her
discovery of payroll discrepancies and missing hours just
happened to occur during her leave. Such a happenstance
discovery is not a sufficient basis for a claim of FMLA interference.
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 10 of 12

11
Johnson has not sufficiently alleged that Defendant’s actions
discouraged her use of FMLA leave or otherwise denied her of her
ability to take leave. Accordingly, she has not sufficiently stated a
claim for FMLA interference.
C. Leave to Amend
Defendant asks the court to dismiss Johnson’s deficient
claims with prejudice for failure to state a claim. ECF No. 23 at 18.
However, “[d]ismissing an action after giving the plaintiff only one
opportunity to state [their] case is ordinarily unjustified.” Davoodi
v. Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014)
(quoting Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)).
If the plaintiff seeks leave to amend, they “must give the court at
least some notice of what . . . [their] amendments would be and
how those amendments would cure the initial complaint’s defects.”
Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021)
(citation omitted).
The court determined that Johnson has not sufficiently
alleged a claim for FMLA retaliation or FMLA interference. While
Johnson has not stated how she proposes to amend her complaint
to remedy the deficiencies, the court exercises its discretion to
allow a single amendment. Johnson shall amend her complaint by
June 2, 2026. Future requests for leave to amend to address
deficiencies already identified in Defendant’s Motion to
Dismiss will be denied. Once Johnson files her amended
complaint, Defendant shall answer or move under Rule 12 within
the time allowed by the Federal Rules.
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 11 of 12

12
4. Conclusion
Johnson’s Request for Entry of Default, ECF No. 20, and
Defendant’s Motion for Leave to Supplement Response, ECF
No. 26, are DENIED.
Because Plaintiff’s claims under Title VII and the ADA are
time barred, the court recommends that Defendant’s Motion to
Dismiss, ECF No. 23, be GRANTED in PART. The court
recommends that Johnson’s claims under Title VII and the ADA
be DISMISSED with prejudice.
Johnson shall file an amended complaint by June 1, 2026,
that addresses the deficiencies in her remaining FMLA retaliation
and interference claims.
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 May 19, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
Case 4:25-cv-04480 Document 30 Filed 05/19/26 in TXSD Page 12 of 12