Reported / Citable
Background
Ashley Johnson worked for Frost Bank beginning May 8, 2023. She filed suit under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, alleging discrimination and retaliation based on race, sex, and disability. Johnson reported incidents of racial slurs, customer profiling, and exclusionary behavior by leadership and alleged that the bank subjected her to retaliation, failure to promote, unequal employment terms, and interference with FMLA rights beginning in May 2024 and continuing through early 2025.
Johnson received her Notice of Right to Sue from the Equal Employment Opportunity Commission on May 23, 2025. The notice stated that any lawsuit must be filed within ninety days. Johnson filed her complaint on August 22, 2025—ninety-one days later, one day past the deadline. Frost Bank did not respond by the initially calculated deadline because the record showed service was actually completed on February 17, 2026, not February 13, 2026, making Frost Bank’s response deadline March 10, 2026. Frost Bank filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Johnson’s Title VII and ADA claims were time-barred and that her FMLA claims failed to state actionable violations.
The Court’s Holding
The magistrate judge recommended granting Frost Bank’s motion to dismiss in part. The court found that Johnson’s Title VII and ADA claims are time-barred because she filed ninety-one days after receiving her right-to-sue notice, missing the strictly construed ninety-day deadline by one day. The court rejected Johnson’s request for equitable tolling, which applies only when a plaintiff (1) timely files in the wrong forum, (2) is unaware of the facts because a defendant intentionally concealed them, or (3) is misled by the EEOC. Johnson’s explanation that employment-related stress and exhaustion prevented timely filing did not satisfy any of these narrow exceptions. The Fifth Circuit has consistently dismissed cases for missing the deadline by only one or two days, and Johnson’s situation presented no extraordinary circumstances warranting tolling.
As to Johnson’s FMLA claims, the court found they were insufficient as pleaded but allowed amendment. On FMLA retaliation, Johnson plausibly connected a denial of paid vacation accrual to her return from FMLA leave through temporal proximity, but the court declined to determine whether denial of paid time off constitutes an adverse action. On FMLA interference, Johnson failed to allege that Frost Bank actually denied her FMLA benefits or interfered with her right to take leave. The placement of a reprimand the day before her leave and payroll discrepancies discovered during her leave—occurring on Christmas Eve when employer response was naturally delayed—do not constitute actionable interference. Johnson had not sufficiently alleged that Frost Bank’s actions discouraged her use of FMLA leave or otherwise denied her the ability to take it. The court granted Johnson leave to file an amended complaint by June 2, 2026, but warned that future amendment requests addressing the same deficiencies would be denied.
Key Takeaways
- The ninety-day filing deadline for Title VII and ADA claims is strictly construed; courts have dismissed claims for missing the deadline by as little as one day.
- Equitable tolling of the deadline is applied sparingly and requires narrow factual showings: wrong forum filing, intentional defendant concealment of facts, or EEOC misrepresentation—employment hardship and time constraints do not qualify.
- FMLA interference claims require more than temporal association between an employer action and leave-taking; plaintiffs must allege actual denial of FMLA benefits or conduct specifically intended to interfere with or discourage the exercise of leave rights.
- A single opportunity to amend is ordinarily granted in employment discrimination cases, but courts will deny future amendment requests addressing deficiencies already identified in a motion to dismiss.
Why It Matters
This decision reinforces the strict application of federal employment discrimination deadlines and has significant implications for plaintiff’s counseling. The Fifth Circuit’s practice of dismissing claims that miss the ninety-day deadline by even minimal periods—evidenced by this one-day-late filing—means practitioners must carefully diarize and monitor the deadline with precision. Missing it by a single day proves fatal absent a narrow showing of equitable tolling, making it critical to file well in advance of the deadline.
The court’s analysis of FMLA interference also clarifies that temporal proximity between an adverse action and FMLA leave-taking is insufficient to state a claim. The decision establishes that FMLA claims require specific allegations that the employer interfered with, restrained, or denied the employee’s exercise of leave rights—not merely that the employer committed misconduct that happened to occur near the time of leave. This heightened pleading requirement may result in dismissal or need for amendment in cases where timing alone supports the claim.