Labor & Employment Law Daily Wrap Up, PROCEDURE—N.D. Tex.: Pet hotel employee, allegedly denied suitable lactation room, fails to advance claims, (Apr 4, 2025)

By Todd Harrison, J.D.

Pre-suit notification is required before bringing a claim under the PUMP Act and the employee, proceeding pro se, failed to provide the additional context necessary to advance her claims.

Dismissing an employee’s discrimination and harassment complaint based on the lack of a suitable lactation location, a federal district court in Texas found that the employee, proceeding pro se, had failed to allege a plausible cause of action against her employer. However, the court did grant the employee leave to amend her complaint. Other than alleging an unsuitable lactation location, the employee proffered no facts from which the court could infer that she had requested an accommodation based on the effects of her pregnancy or that she suffered an adverse action based on the effects of her pregnancy. Further, the PUMP Act requires pre-suit notification, a step the employee failed to take in this instance (Johnson v. Wag Hotels, Inc., No. 3:24-cv-3268-BN (N.D. Tex. April 2, 2025)).

This pro se lawsuit was filed against Wag Hotels, Inc., in Texas state court alleging discrimination and harassment based on the lack of a suitable lactation location for an employee “to express milk, ‘a place other than the bathroom that is shielded from view and free from intrusion from coworkers and the public.’”

Proffered lactation rooms. According to the employee, on or around May 30, 2024, she was made aware that the only two locations she could use as a lactation room were “the attic or the room where [a] hotel guest [would] relieve themselves.” Hotel guests in this context are cats or dogs, as Wag Hotels provide pet boarding, day care, and other services.

On May 30, the complaint continues, “defendants walked in on plaintiff expressing milk”; and, so, Wag “failed to maintain a hazard free environment despite [its] claiming ‘general custodial services are provided by the company.’”

Removal. Wag Acquisition Group, LLC, incorrectly identified as Wag Hotels, Inc., removed the employee’s lawsuit alleging both federal question and subject-matter jurisdiction. Wag then moved to dismiss under FRCP 12(b)(6).

Jurisdiction. First, the court addressed the issue of subject matter jurisdiction. Wag satisfactorily alleged its citizenship and the requisite amount in controversy. As to the employee’s citizenship, Wag merely alleged that she “is an individual who resides in Dallas, Texas,” and, so, “[f]or jurisdictional purposes, she is a citizen of the State of Texas.” The court noted that an allegation of residency alone is insufficient for removal under 28 U.S.C. § 1332. However, Wag did allege a basis for subject matter jurisdiction under 28 U.S.C. § 1331.

Through its notice of removal, Wag explained that, while the employee did not cite to any federal law in her complaint, the factual basis for her claim of discrimination directly implicated at least one federal statute, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which the employee quoted from in her complaint. As such, the court found that Wag had shown that “the facts alleged in the complaint” reflect jurisdiction based on a federal question.

Implicated laws. Liberally construing the employee’s allegations in whole, she asserted claims of discrimination and/or failure to accommodate based on her status as a nursing mother, observed the court. Thus, her complaint potentially implicated several federal laws in addition to the PUMP Act, including Title VII, the ADA, and the Pregnant Workers Fairness Act (PWFA).

Elements lacking. Applying the aforementioned laws to the employee’s claims, the court noted that, other than alleging an unsuitable lactation location, the employee proffered no facts from which the court could infer that she had requested an accommodation from Wag based on the effects of pregnancy or that an adverse action was taken against her because of the effects of pregnancy—both ultimate elements of a disparate treatment or a failure-to-accommodate claim under either Title VII or the ADA.

Further, continued the court, the fact that the employee’s claims were centered on the suitability of the lactation location itself was alone not enough to allege a plausible claim under either Title VII or the ADA.

As to the PWFA, the court agreed with Wag that the pleading shortcomings that afflict any claims the employee may now make under the ADA equally afflict any claims the employee may now advance under the PWFA.

PUMP Act. Finally, the court addressed the employee’s allegations as claimed violations of the PUMP Act. If the alleged facts support the PUMP Act’s applicability, pre-suit notification is a condition precedent to asserting such a claim, explained the court.

Here, the court found that, thus far, the employee alleged no facts from which the court could determine that she had provided pre-suit notification or that the notification requirement did not apply in this instance. Accordingly, Wag’s motion to dismiss was granted without prejudice. The employee was given leave to amend her complaint to allege a plausible cause of action no later than April 23, 2025.

The case is No. 3:24-cv-3268-BN.

Judge: Horan, D.

Attorneys: Terra Johnson, pro se. Laura Hallmon (Cantey Hanger) for Wag Acquisition Group, LLC.

Companies: Wag Acquisition Group, LLC

Cases: Procedure Discrimination DisabilityDiscrimination PregnancyDiscrimination TexasNews