United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAG O TRATE JUDGE.
the Court is Defendant's Rule 12(b)(6) Motion to Dismiss
for Failure to State a Claim (ECF No. 6). For the reasons
stated, the motion should be GRANTED.
Legal Aid of Northwest Texas (“LANWT”) employed
Plaintiff Petrina Thompson (“Thompson”), a
licensed attorney, on a part-time basis for a period of
approximately four months. Pl.'s Am. Compl. 1, ¶ 1
(ECF No. 10). Thompson's primary responsibility was
answering incoming calls to a legal advice hotline.
Id. 2, ¶ 8. By this lawsuit, Thompson alleges
that during her employment she experienced harassment,
discrimination, and retaliation by her coworkers and
supervisors. Id. 2-15, ¶¶ 8-78. In April
2017, LANWT placed Thompson on paid administrative leave
while it investigated her allegations that a coworker
assaulted her by running into her “involuntarily and
moving her several steps.” Id. 7, ¶ 36.
LANWT ultimately terminated Thompson's employment on June
23, 2017. Id. 1, ¶ 1.
filed charges with both the Texas Workforce Commission, Civil
Rights Division (the “TWCCRD”), and the Equal
Employment Opportunity Commission (the “EEOC”).
Pl.'s Compl. 2, ¶ 5 (ECF No. 3); Pl.'s Am.
Compl. 2, ¶ 5 (realleging same). The TWCCRD issued a
notice of right to sue on January 17, 2018, and the EEOC
issued a similar notice of right to sue on February 28, 2018.
Pl.'s Compl. 2, ¶ 5; Pl.'s Am. Compl. 2, ¶
5 (realleging same). Thompson alleges that she received the
EEOC notice on March 25, 2018. Id. She then filed
her original complaint on June 18, 2018, bringing claims
under (1) the Texas Labor Code, §§ 21.051-21.061;
(2) Title VII, 42 U.S.C. §§ 2000e-1 through
2000e-17; (3) the Americans with Disabilities Act (the
“ADA”), 42 U.S.C. §§ 12101-12213; (4)
the Family and Medical Leave Act (the “FMLA”), 29
U.S.C. §§ 2601-2654; and (5) 41 U.S.C. § 1983.
Pl.'s Compl. 17-22.
filed its motion to dismiss arguing that Thompson failed to
file suit within the requisite time after receiving her
notices of right to sue. Def.'s Mot. 1. Thompson filed an
amended complaint and a response to the motion to dismiss,
and LANWT filed a reply. Pl.'s Am. Compl. 1; Def.'s
Reply 1 (ECF No. 12). The motion is fully briefed and ripe
survive LANWT's Rule 12(b)(6) motion to dismiss,
Thompson's complaint “must contain sufficient
factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Thompson's factual allegations must
“‘raise her right to relief above the speculative
level, '” but they do not need to be detailed.
Lee v. Verizon Commc'ns, Inc., 837 F.3d 523, 533
(5th Cir. 2016) (citing Rosenblatt v. United Way of
Greater Hous., 607 F.3d 413, 417 (5th Cir. 2010)).
Thompson's claims have facial plausibility if she
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556).
Court must “accept all well-pleaded facts as true and
construe the complaint in the light most favorable to
[Thompson].” In re Great Lakes Dredge & Dock
Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (citing
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.
2008). However, the Court does not accept as true
“conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Ferrer v.
Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)
(quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696
(5th Cir. 2005)).
reply, LANWT protests that Thompson filed her amended
complaint without leave of court; however, a party may amend
its pleading once as a matter of course within 21 days after
service of a Rule 12(b) motion if the pleading is one to
which a responsive pleading is required. Fed.R.Civ.P.
15(a)(1)(b). The docket reflects that Thompson's amended
complaint was filed within 21 days of service of LANWT's
motion to dismiss, so leave of court was not required.
See Pl.'s Am. Compl. (ECF No. 10).
amended complaint supersedes her “original complaint
and renders it of no legal effect” because the amended
complaint fails to adopt or incorporate by reference her
original complaint. King v. Dogan, 31 F.3d 344, 346
(5th Cir. 1994) (citing Boelens v. Redman Homes,
Inc., 759 F.2d 504, 508 (5th Cir. 1985)). Thompson
failed to replead the FMLA and § 1983 claims asserted in
her original complaint. Pl.'s Compl. 20-22, ¶¶
109-19; Pl.'s Am. Compl. 15-18. “[I]f a party
voluntarily omits a certain claim from an amended complaint
that the party raised in the original complaint, the party is
bound by the amended complaint and cannot proceed on the
omitted claims because they are no longer a part of the
operative complaint.” Haddock v. Nationwide Fin.
Servs. Inc., 514 F.Supp.2d 267, 273 (D. Conn. Sept. 25,
2007); see also Young v. City of Mount Rainier, 238
F.3d 567, 573 (4th Cir. 2001) (“The general rule, as
stated above, is that an amended pleading supersedes the
original pleading, rendering the original pleading of no
effect. Thus, if an amended complaint omits claims raised in
the original complaint, the plaintiff has waived those
omitted claims.”). In her response, Thompson concedes
that her FMLA and § 1983 claims have been
“rendered moot.” Pl.'s Resp. 4, 14 (ECF No.
extent Thompson repleaded her claims under the Texas Labor
Code, Title VII, and the ADA, her amended complaint failed to
cure certain defects with respect to those claims.
Accordingly, the Court treats LANWT's motion as directed
to the amended complaint. See Holmes v. Nat'l
Football League, 939 F.Supp. 517, 523 n.7 (N.D. Tex.
Aug. 27, 1996) (recognizing that court may treat motion to