Petition for Writ of Certiorari — Willie Lee HavMmeri, Petitioner v. Methodist Health Systems, Dallas

Supreme Court briefJul 24, 2024

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Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

Writ of Certiorari, United States Supreme Court

Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

IN THE SUPREME COURT OF THE UNITED

STATES

Willie Lee HavMmeri

vs.

Methodist Health Systems (MHS)

Petition for a Writ of Certiorari

APPENDIX

♦Ruling by USCA 5th Circuit*

PANDEMIC PROSE

Covid-19 and the Federally mandated lockdowns effect on equitable tolling and the inaccessibility of the clerk’s office for filing claims

Case: 23-10880

Document: 49-1

Page: 1

Date Filed: 05/17/2024

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®ntteb i^tatess Court of SUppealss

for tfje Jftftf) Circuit

United States Court of Appeals

Fifth Circuit

No. 23-10880

Summary Calendar

FILED

April 25, 2024

Lyle W. Cayce

Clerk

Willie Lee HavMmeri,

Plaintiff—Appellant,

versus

Methodist Health Systems, Dallas,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:22-CV-594

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Willie Lee HavMmeri filed a pro se complaint arising from the

termination of his employment. He now appeals the district court’s dismissal

of his complaint with prejudice pursuant to Federal Rule of Civil Procedure

12(b)(6). HavMmeri argues that the district court erred in dismissing his

claim under the Texas Commission on Human Rights Act (TCHRA) based

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10880

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Page: 2 Date Filed: 05/17/2024

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No. 23-10880

on his failure to timely exhaust his administrative remedies within 180 days

after he was terminated. Liberally construed, his brief contends that

equitable tolling of the deadline was warranted or, alternatively, that his delay

in filing his administrative complaint should be excused under Federal Rule

of Civil Procedure 6(a)(3).

We review de novo a dismissal for failure to state a claim pursuant to

Rule 12(b)(6). Morin v. Caire, 77 F.3d 116,120 (5th Cir. 1996). However, we

review a decision whether to apply equitable tolling for an abuse of discretion

where, as here, the decision “was a fact-specific, discretionary matter.”

Granger v. Aaron % Inc., 636 F.3d 708, 712 (5th Cir. 2011).

Equitable tolling should be “ applied sparingly, ” and it is the plaintiff’s

“burden to provide justification for equitable tolling. ” Id. (internal quotation

marks and citation omitted). HavMmeri acknowledges that he did not fax his

administrative complaint until the day after the filing deadline and that he

waited until the deadline to obtain the fax number for the relevant

administrative agency. Although he mentions that, during the filing period,

government buildings were closed to the public because of the COVID-19

pandemic, he does not explain how this prevented him from requesting the

fax number earlier or timely submitting his administrative complaint. Under

these circumstances, he has failed to show the court abused its discretion in

finding that equitable tolling was not justified. See id. We also reject

HavMmeri’s contention that the late filing of his administrative complaint

should be excused under Rule 6(a)(3), as that rule does not apply to filings

with administrative agencies. See Fed. R. Civ. P. 6(a)(3).

HavMmeri has abandoned all other issues on appeal by failing to brief

them. See Yohey v. Collins, 985 F.2d 222,224-25 (5th Cir. 1993). The district

court’s judgment is AFFIRMED.

Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

Writ of Certiorari, United States Supreme Court

Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

IN THE SUPREME COURT OF THE UNITED

STATES

Willie Lee HavMmeri

vs.

Methodist Health Systems (MHS)

Petition for a Writ of Certiorari

APPENDIX

PANDEMIC PROSE

Covid-19 and the Federally mandated lockdowns effect on equitable tolling and the inaccessibility of the clerk’s office for filing claims

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIE LEE HAVMMERI,

Plaintiff,

METHODIST HEALTH SYSTEM OF

DALLAS,

Defendant.

Case No. 3:22-cv-00594-E-BT

ORDER ACCEPTING FINDINGS. CONCLUSIONS. AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The Court has under consideration Findings, Conclusions, and Recommendation of United

States Magistrate Judge Rebecca Rutherford dated June 16, 2023. (ECF No. 73). The Court has

made a de novo review of those portions of the proposed Findings, Conclusions, and

Recommendation to which objections were made. The objections are overruled. Plaintiffs claims

against Defendant are dismissed with prejudice.

SO ORDERED: July 24, 2023.

Ada Brown

UNITED STATES DISTRICT JUDGE

ORDER

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIE LEE HAVMMERI

Plaintiff,

METHODIST HEALTH SYSTEM OF

DALLAS,

Defendant.

Case No. 3:22-cv-00594-E-BT

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Willie Lee HavMmeri filed this pro se employment discrimination

and retaliation suit against his former employer Defendant Methodist Health

System of Dallas1 (Methodist) on March 14, 2022. Compl. (ECF No. 3). Before the

Court is Methodist’s Motion to Dismiss (ECF No. 33). For the reasons stated below,

the Court recommends granting Methodist’s motion to dismiss.

Background

HavMmeri worked for Methodist as a Non-Invasive Technician in the

Cardiology Department. See More Definite Statement (hereinafter “Am. Compl.”)

(ECF No. 24). He allegedly experienced a “toxic” work environment and had poor

relationships with his coworkers and supervisors—all of whom were female. Am.

Compl. 2. The situation became unbearable after an incident on March 10, 2020,

when HavMmeri arrived at his workstation to find a coworker seated in his cubicle.

1 Methodist states that HavMmeri incorrectly names “Methodist Health Systems”

as the defendant in his complaint. Mot. Dismiss 1 (ECF No. 33).

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Am. Compl. l. According to HavMmeri, this employee was his supervisor’s close

personal friend who was hired “to serve in an unofficial manner” as his supervisor’s

“personal assistant.” Am. Compl. 2. HavMmeri requested to use the workstation to

clock in for his shift but the coworker “refused.” Am. Compl. 1-2. “After repeated

pleas . . . [HavMmeri] was cursed out by the [coworker], belittled and

disrespected.” Am. Compl. 2.

On March 17, HavMmeri emailed his supervisor with the subject line:

“formal complaint regarding work environment.” Am. Compl., Ex. 1. In his

complaint, HavMmeri detailed the March 10 incident and accused his coworker—

the supervisor’s “personal assistant”—of mistreating him by telling HavMmeri

“[he] must have woke up on the wrong side of the bed that morning and that [he]

was acting like a ‘female’ during the conversation.” Am. Compl., Ex. 1. She also

“mocked [HavMmeri’s] delivery . . . speaking in a nasally effeminate way when

recalling [the] conversation.” Am. Compl., Ex. 1. HavMmeri admitted, however,

that he found the coworker’s imitation “comical, as well as disingenuous,” and he

relayed that he and the coworker ultimately “agree[d] to drop the issue.” Am.

Compl., Ex. 1. HavMmeri then explained “my issue is not actually with the

employee,” rather that the coworker is a “utility/miscellaneous tech” who

“operate[s] freely in our department with no clearly defined role,” works as a third

person in a two-person job, and when roles are not clearly defined “tempers flare.”

Am. Compl., Ex. 1.

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HavMmeri also described in his email other incidents of alleged

mistreatment, including one that occurred “a few years ago” involving a different

coworker cursing at him and “wagging her finger in [his] face” because he did not

complete a task for her. Am. Compl., Ex. l. He further stated yet another coworker

used racial slurs on an unspecified date: “[She] once called me a ‘Lazy Nigga’ for

no longer wanting to do a stack of EKGs she could not get to before her lunch

break—every day.” Am. Compl., Ex. l. And, he complained the supervisor herself

threatened to fire HavMmeri for “bragging to the staff about going home early.”

Am. Compl., Ex. l. HavMmeri concluded the email by listing several rhetorical

questions conveying that, as a Black man, he does not have the same privilege as

“many of the women in the department” who can “fl[y] off the handle:”

Ask yourself what would happen if I stood up to a female coworker

too pounds lighter than me, wagging my finger and shouting

profanities? Ask yourself what would happen if instead of me getting

called a ‘lazy nigga’ I called the coworker in question and ‘old cripple’?

Ask yourself what would be the narrative if I matched profanity laced,

emotional dialogue with a female coworker? Imagine if I didn’t

apologize to my boss for HER threatening to fire me? In any of those

scenarios would I still have a job??? Would not security be escorting

me out of the building? If I engaged in such behavior would it not be

deemed ‘toxic’?

2 Am. Compl., Ex. l.

2 HavMmeri similarly posed rhetorical questions to the Court in a letter objecting

to adverse rulings on miscellaneous motions and expressing frustration over the

perceived delay in adjudicating his claims. Ltr. (ECF No. 64). For example,

HavMmeri invited the Court to “imagine herself... Stripped of title and status[;]

Ignorant to Medical Procedures^] Entering the Hospital with a fractured femur[;]”

and HavMmeri playing the role of the hospital administrator who apparently

delighted in denying the Court’s requests for a doctor and pleas to schedule

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After sending the email, HavMmeri requested to speak with his Human

Resources (HR) representative and his supervisor’s boss. Am. Compl. 2. Instead,

the supervisor allegedly “tried to get [HavMmeri] to drop his complaint, wanting

it to be handled without involving HR nor [the supervisor’s] immediate

supervisor.” Mot. Dismiss, Ex. l (hereinafter “EEOC Charge”) (ECF No. 33-1). On

March 24, “fearing that [his] grievance had not been submitted to HR at all,”

HavMmeri went to HR directly. EEOC Charge 2. There HavMmeri spoke with his

HR representative, at which time he learned that there was no grievance on file.

EEOC Charge 2. HavMmeri then informed his HR representative about the March

10th incident with his coworker and that he was afraid he would lose his job

because of the “grievance.” EEOC Charge 2.

On March 29, allegedly without HavMmeri’s knowledge, Methodist started

investigating HavMmeri for “manipulation of financial documents” (timecards)

and “stealing time”—that is, for leaving his duty station during his shift. Am.

Compl. 6 & Ex. 1. On April 7, HavMmeri met with the Lead Investigator and

HavMmeri’s HR Representative; his request to meet with his supervisor’s boss was

“denied.” Am. Compl. 6. At this meeting, he “explained the workplace violence [he]

experienced on March 10, 2020 and informed [the Lead Investigator] that it was a

long and storied history of similar circumstances in [his] immediate environment.”

Am. Compl. 6. The Lead Investigator informed HavMmeri that she would “meet

surgery: “[i]f your leg falls off, please hop over to the nurses station and give them

an update on your condition.” Ltr. 3.

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with the parties involved, investigate [his] claims of 3 workers working in a 2person work space, and wrap up her investigation.” Am. Compl. 6. HavMmeri sent

a follow-up email, subject line “Workplace/Gender Discrimination,” “with further

details into [HavMmeri’s] grievance because, while [the Lead Investigator] was

extremely polite during our sit down, she was quite dismissive and wanted to focus

solely on the March 7th [sic] 2020 instance of workplace violence and ignore the

[supervisor’s] involvement in the circumstances that created the unfortunate

confrontation.” Am. Compl. 8.

On April 10, HavMmeri returned to HR under the impression that the

meeting pertained to the investigation into his grievance. Am. Compl. 8. Instead,

HavMmeri learned that he “was the subject of a covert investigation” for “stealing

time.” Am. Compl. 8. Although HavMmeri gave allegedly “irrefutable evidence”

that he was not “stealing time”—he was fired that same day. 3 Am. Compl. 8.

After April 10, HavMmeri filed for unemployment, which was initially

denied because of HavMmeri’s reported misconduct (i.e., leaving his duty station

during his shift). Am. Compl., Ex. 6. HavMmeri, however, successfully appealed to

3 HavMmeri’s “proof’ is a picture of himself at his home that he posted on his social

media account when he was supposed to be at work. HavMmeri explains the

picture was taken earlier—when he scheduled to be off work—and merely posted

while he was on duty. Am. Compl., Ex. 1. HavMmeri also admits he “frequented”

the “onsite in-hospital gym” during his work hours. Am. Compl., Ex. 1. But, he

explains, that habit did not constitute “stealing time” because he went during

“designated break time” or at the beginning or end of his shift; he always took his

pager and cell phone with him; he never missed a procedure; and “everyone knew”

about his trips to the gym and no one had ever warned not to go to the gym during

work. Am. Compl., Ex. 1.

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the Texas Workforce Commission Appeal Tribunal. Am. Compl., Ex. 6. The

Tribunal held that “[g]iven the remoteness of the policy violations, the timing of

the investigation, and the lack of evidence and testimony regarding more recent

policy violations prompting [HavMmeri’s] discharge, [Methodist] has not

established by a preponderance of evidence that the claimant was discharged for

the reasons that amount to misconduct connected with the work.” Am. Compl., Ex.

6. And “[t]he investigation into whether the claimant frequented areas outside of

his designated work area only arose after he sent an email expressing his concerns

about his supervisor and coworkers thus it is more probable than not that

[HavMmeri] was discharged for reasons not specified by the employer.” Am.

Compl., Ex. 6.

On October 8, HavMmeri filed a Charge of Discrimination with the EEOC

and the Texas Workforce Commission (TWC). See EEOC Charge (“I expressly state

that I want this filed with both the EEOC and the State or Local Agency.”). Therein,

he accused Methodist of discrimination based on race, sex, and retaliation. EEOC

Charge (“I believe I was treated unfairly. I was discriminated against and subjected

to a hostile work environment because I am an African American male, and I was

terminated in a clear-cut case of retaliation.... I have been discriminated against

because of race, sex (being male) and subjected to retaliatory, harassing,

4 The Court notes that the name used on the EEOC Charge and Fax Cover Sheet

was “Willie Lee Harris.” See Mot. Dismiss, Ex. l. According to HavMmeri he legally

changed his name from “Wille Lee Harris” to “Willie Lee HavMmeri” while he was

employed at Methodist. Mot. Misc. Relief, Ex. 2 (ECF No. 63-2).

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intimidating, hostile work environment contrary to the requirements of Title VII

of the Civil Rights Act of 1964 as amended.”)- The EEOC issued a Right to Sue

Letter in December 2021. Resp. 6 (ECF No. 34). HavMmeri then filed this lawsuit

and, later, a document labelled “More Definite Statement” (ECF No. 24). which

HavMmeri intends to be his Amended Complaint. See Am. Compl. Re-filed with

Changed Heading (ECF No. 46). In the Amended Complaint, HavMmeri alleges

that his supervisor’s decision to hire her friend as her personal assistant, which

resulted in three individuals having to work at the 2-person workstation,

constitutes gender discrimination because:

I, being the only male in my department, was not allowed to receive []

additional hours with no defined role and, at the time of my

termination, I worked at 3 different Methodist Hospitals

simultaneously to get my allotted full-time hours.

Female employees were allowed to pick up extra hours as a “personal

assistant” to the Director or even help the Department Secretary file

paperwork after their shifts ended to get additional hours. I, being the

only male in my immediate department, was not privy to such

additional hours.

Am. Compl. 2. HavMmeri, therefore, asserts that Methodist discriminated against

him on the basis of his sex or gender and retaliated against him in violation of state

and federal law, including § 161.134 of the Texas Health & Safety Code, the Texas

Commission on Human Rights Act (TCHRA), Tex. Lab. Code Ann. § 21.001, et seq.,

the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), and Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e-2(a)(i) & § 2000e-3(a). See Am. Compl. 4-5; Mot. Dismiss

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On November 10, Methodist filed a Motion to Dismiss (ECF No. 33)

pursuant to Federal Rule of Civil Procedure 41(b) and 12(b)(6). HavMmeri filed a

Responses (ECR No. 34), and Methodist filed a Reply (ECF No. 45). Thus, the

Motion is ripe for consideration.

Rule 41(b)

Methodist initially argues HavMmeri’s case should be dismissed pursuant

to Rule 41(b). Rule 41(b) states: “If the plaintiff fails to prosecute or to comply with

these rules or a court order, a defendant may move to dismiss the action or any

claim against it.” Fed. R. Civ. P. 41(b). Methodist argues that HavMmeri failed to

file an amended complaint by October 31,2022, as required by the Court’s October

7 Order. Mot. Dismiss 3; see Order 2 (“The Court ORDERS HavMmeri to file a

verified (or signed) amended complaint by October 31, 2022.”) (ECF No. 2,2).

s Without leave of Court, HavMmeri filed multiple responses to Methodist Motion.

See ECF Nos. 34, 44, 47, 48, 53, 57, 59. The Court liberally construes these filing

Sur-Replies which do not comport with the Northern District of Texas’s Local

Rules. See N.D. Tex. Civ. R. 7.1 (limiting briefing in motion practice to the motion,

response, and reply); N.D. Tex. Civ. R. 56.7 (“Except for the motions, responses,

replies, briefs, and appendixes required by these rules, a party may not, without

the permission of the presiding judge, file supplemental pleadings, briefs,

authorities, or evidence”); see also Off. Brands, Inc. v. Roc Nation Sports, LLC,

2017 WL 345616, at *3 (N.D. Tex. Jan. 23, 2017) (Boyle, J.) (applying Local Rule

56.7 to motion to dismiss); Barrack v. UNUM Am. Life Ins., 409 F. Supp. 2d 782,

785 (N.D. Tex. 2006) (same). Although not required to do so, the Court reviewed

all of HavMmeri’s unauthorized Sur-Replies and finds that the arguments

contained therein are largely repetitive of arguments he made in his original

response or in other motions for miscellaneous relief otherwise disposed of by the

Court. In any event, the additional filings do not change any recommendation in

this report, and thus, the Court declines to address them in detail.

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However, as Methodist recognizes, the Court must liberally construe

HavMmeri’s complaint with all possible deference due a pro se litigant. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings are “to be liberally

construed,” and “a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.”); Cf. Fed. R.

Civ. P. 8(e) (“Pleadings must be construed so as to do justice”). Here, in response

to the Court’s October 7 Order, HavMmeri filed a pleading titled “More Definite

Statement” fECF No. 24). Although the pleading is not titled “Amended

Complaint” it contains the necessary components to be liberally construed as a

complaint. Hand v. Berlusconi, 2022 WL16556811, at *1 (S.D. Tex. Oct. 31, 2022)

(“[T]he label or title a [plaintiff] gives to pro se pleadings is not controlling; rather,

courts look at the content of the pleading (first citing United States v. Santora, 711

F.2d 41,42 n.i (5th Cir. 1983); then citing Andrews v. United States, 373 U.S. 334,

338 (1963)); see also Erickson, 551 U.S. at 93 (“Federal Rule of Civil Procedure

8(a)(2) requires only ‘a short and plain statement of the claim showing that the

pleader is entitled to relief.’”). And HavMmeri signed the document—as required

by the Court’s order. Further, as evidenced by the subsequent filing—HavMmeri

intended the “More Definite Statement” to serve as his amended complaint. See

Amended Complaint Re-filed with Changed Heading (“Same Document as Doc.

24, only with new and improved Heading”) (ECF No. 46). Therefore, the Court

should reject Methodist’s argument that the case be dismissed pursuant to Rule

41(b).

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Rule 12(b)(6)

Legal Standard

When deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim,

the court “accepts all well-pleaded facts as true, viewing them in the light most

favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205

(5th Cir. 2007) (internal quotation marks omitted). However, when deciding a

Rule 12(b)(6) motion, a court may not look beyond the pleadings. Spivey v.

Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To survive a Rule 12(b)(6) motion,

therefore, a plaintiffs complaint must contain sufficient factual matter to state a

claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “To be plausible, the complaint’s ‘[fjactual allegations must be

enough to raise a right to relief above the speculative level.’” In re Great Lakes

Dredge &Dock Co. LLC, 624 F.3d 201,210 (5th Cir. 2010) (quoting Twombly, 550

U.S. at 555).

This pleading standard does not require “detailed factual allegations,” but it

does demand more than an unadorned accusation devoid of factual support.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw a reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions

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can provide the framework of a complaint, they must be supported by factual

allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has stopped short of

showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly,

550 U.S. at 557).

Analysis

Methodist moves to dismiss all of HavMmeri’s claims under the Texas

Health & Safety Code, the TCHRA, the FLSA, and Title VII. The Court addresses

Methodist’s arguments in turn.

1. HavMmeri’s claim under the Texas Health & Safety Code is untimely.

In his Amended Complaint, HavMmeri appears to invoke Section 161.134 of

the Texas Health & Safety Code. Methodist argues any claim HavMmeri could

bring under that statute is untimely. Although Methodist’s failure-to-timely-file

argument is an affirmative defense, a defendant may move for dismissal under

Rule 12(b)(6) if the facts giving rise to this defense “appear[ ] on the face of the

complaint.” Hall v. Hodgkins, 305 F. App’x 224, 227-28 (5th Cir. 2008) (per

curiam) (“If, based on the facts pleaded and judicially noticed, a successful

affirmative defense appears, then dismissal under Rule 12(b)(6) is proper.”); see

also Petrobras Am., Inc. v. Samsung Heavy Indus. Co., 9 F.4th 247, 253-54 (5th

Cir. 2021) (holding that a court may grant a motion to dismiss based on limitations

when it is evident from the pleadings that the action is time-barred); Jones v.

Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (“A statute of limitations may

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support dismissal under Rule 12(b)(6) where it is evident from the plaintiffs

pleadings that the action is barred and the pleadings fail to raise some basis for

tolling or the like.”).

Section 161.134 of the Texas Health & Safety Code prohibits “[a] hospital,

mental health facility, or treatment facility” from “suspending] or terminating]

the employment of or discipline or otherwise discriminating] against an employee

for reporting to the employee’s supervisor, an administrator of the facility, a state

regulatory agency, or a law enforcement agency a violation of law.” Tex. Health &

Safety Code § 161.134(a). A plaintiff bringing claims under this statute has the

burden of proof, though a rebuttable presumption of causation exists if the adverse

employment action occurred “before the 60th day after the date on which the

plaintiff made a report in good faith.” Id. § 161.134(f). But a plaintiff must bring his

claims “before the 180th day after the date the alleged violation occurred or was

discovered by the employee through the use of reasonable diligence.” Id. §

161.134(h).

As Methodist points out, HavMmeri did not file his lawsuit until March 14,

2022—more than 700 days after Methodist fired him on April 10, 2020. Mot.

Dismiss 5. HavMmeri argues that Methodist is ignoring that he filed his EEOC

charge on October 8, 2020. Resp. 4. But the filing of a charge with the EEOC does

not toll the limitations period for filing a claim under the Texas Health & Safety

Code. See generally Vasquez-Duran v. Driscoll Children’s Hosp., 2020 WL

7329815 (S.D. Tex. Nov. 12,2020), ajfd, 2021 WL 3775350 (5th Cir. Aug. 25,2021)

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(applying the date of filing the complaint with the district court instead of the date

the charge was filed with the EEOC). Therefore, the Court should dismiss

HavMmeri’s claim under the Texas Health & Safety Code as untimely because he

did not file his lawsuit within the applicable limitations period.

2. HavMmeri’s claim under the TCHRA is barred for failure to timely exhaust

administrative remedies.

Similarly, Methodist argues that HavMmeri failed to timely exhaust his

administrative remedies under the TCHRA. To exhaust their administrative

remedies under the TCHRA, plaintiffs are required to file a charge of

discrimination with the TWC or the EEOC no later than 180 days after the alleged

unlawful act occurred. Tex. Lab. Code § 21.202(a). The Fifth Circuit has recently

clarified that this deadline, “although mandatory, is not jurisdictional.” Hinkley v.

Envoy Air, Inc., 968 F.3d 544, 553 (5th Cir. 2020).

In Texas, which provides a state administrative mechanism to address

claims of employment discrimination, a Title VII plaintiff must file a charge of

discrimination with the EEOC within 300 days after learning of the conduct

alleged. See 42 U.S.C. § 200oe-5(e)(i); Griffin v. City ofDallas, 26 F.3d 610, 61213 (5th Cir. 1994). And a complaint under the TCHRA “must be filed not later than

the 180th day after the date the alleged unlawful employment practice occurred.”

Tex. Lab. Code § 21.202(a). Under the Worksharing Agreement between the EEOC

and the TWC, a complaint filed with the EEOC, and forwarded by the EEOC to the

TWC, satisfies the requirements of the TCHRA. See Vielma v. Eureka Co., 218 F.3d

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458, 461 (5th Cir. 2000); Price v. Phila. Am. Life Ins., 934 S.W.2d 771, 773-74

(Tex. App. 1996, no writ). But “filing a charge with the EEOC out of [Tex. Lab. Code

§ 2i.202(a)‘s 180-day] time period does not expand a plaintiffs time for bringing

a [TCHRA] claim in federal court.” Wright v. Transp. Commc’n Union/IAM, 2020

WL 7061874, at *4 (S.D. Tex. Nov. 5,2020), rec. adopted, 2020 WL 7060213 (S.D.

Tex. Dec. 1, 2020); Clark v. Champion Nafl Sec., Inc., 952 F.3d 570,586 n.65 (5th

Cir. 2020) (explaining that plaintiffs TCHRA claims are barred if his charge is filed

with the EEOC more than 180 days after the unlawful conduct occurred).

Here, HavMmeri claims he was fired on April 10,2020—after he complained

about his coworkers’ behavior and Methodist’s staffing practices in an email to his

supervisor and subsequently in a meeting with his HR representative. See Am.

Compl. 6; EEOC Charge. 3. Thus, he was required to file a charge with the TWC or

the EEOC no later than October 7, 2020. But HavMmeri did not submit his charge

to the EEOC until October 8, 2020. Mot. Dismiss, Ex. 1, pg. 1 (Fax Cover Sheet).

Therefore, unless equitable tolling applies—his claim is barred. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982) (“[Fjiling a timely charge of

discrimination with the EEOC is... a requirement that, like a statute of limitations,

is subject to waiver, estoppel, and equitable tolling.”).

Equitable tolling applies to a plaintiffs deadline for filing an administrative

charge of discrimination only in extraordinary circumstances, such as “where the

parties have a pending case in the wrong forum, where plaintiff is unaware of the

facts as a result of defendant’s purposeful concealment, and where EEOC misleads

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plaintiff about the claim.” Deleon v. Gen. Insulation, Inc., 575 F. App’x 292, 293

(5th Cir. 2014) (citing Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011)).

HavMmeri’s case does not involve any of the circumstances that justify equitable

tolling. The parties did not have a pending suit in another forum, Methodist did

not conceal facts, and neither the EEOC nor the TWC misled HavMmeri. Thus,

HavMmeri’s claim under the TCHRA is barred for failure to timely exhaust

administrative requirements.

HavMmeri argues that Federal Rule of Civil Procedure 6 should excuse his

one day-delay because “all government buildings were closed to the public

including the EEOC Dallas Branch Office” due to the Covid-19 Pandemic. Resp. 5;

see Fed. R. Civ. Pro 6(a)(3) (“Unless the court orders otherwise, if the clerk’s office

is inaccessible on the last day for filing under Rule 6(a)(1). then the time for filing

is extended to the first accessible day that is not a Saturday, Sunday, or legal

holiday.”). HavMmeri claims that because the EEOC office was closed, “[he] had

to send in the original filing by mail on September 28th 2020 ... but [w]hen the

item was still not yet received nor processed by the allotted date of October 7th

2020, [he] called the EEOC national number and was given a fax number, where

[he] was told to submit the item again via fax.” Resp. 4. HavMmeri’s arguments

are unavailing.

First, the Fifth Circuit has held that “[a] discrimination charge is filed for the

purposes of Title VII on the date that EEOC receives the charge, not on the date

that the charge is mailed.” Deleon, 575 F. App’x at 293 (holding the delay in mailing

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caused by a hurricane and attorney neglect did not excuse the late filing) (citing

Taylor v. Gen. Tel Co., 759 F.2d 437,442 (5th Cir. 1985) (“[T]his Court concludes

that [Plaintiff] had not filed her charge with the EEOC when she deposited it in the

mail on December 9,1981. It was not filed until it was received by the EEOC on the

181st day after the alleged act of discrimination; therefore, her filing was not

timely.”); Kirkland v. Big Lots Store, Inc., 547 F. App’x. 570, 573 (5th Cir. 2013)

(“A claim is time barred if it is not filed within these limits. Mailing is not filing for

the purposes of Title VII. A claim is considered filed when it is received by the

EEOC or the state agency responsible for the administration of complaints of

employment discrimination”) (citations omitted). Therefore, even though the

EEOC charge was mailed before the 180-day deadline—the EEOC did not receive

the complaint until the 181st day. Second, Rule 6 applies to the Clerk of the Court

not all government agencies. And, even if Rule 6 is applicable—HavMmeri knew

October 7 was his deadline to file, yet he waited until that day to check the status

of the charge he mailed and then waited until the following day to send it to the

EEOC via fax.

The Court should therefore grant Methodist’s motion and dismiss

HavMmeri’s claim under the TCHRA.

3. HavMmeri fails to state a cognizable claim for relief under the FLSA.

Methodist next asserts that HavMmeri’s Amended Complaint fails to plead

facts supporting his cause of action for retaliation in violation of the FLSA. Mot.

Dismiss 5. Specifically, Methodist contends that the facts do not establish that he

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engaged in a protected activity under the FLSA or that he was terminated as a

result of engaging in that activity. Mot. Dismiss 5. Although HavMmeri filed

numerous responses to Methodist’s motion, none of his filings responded to

Methodist’s arguments regarding his failure to state a claim under the FLSA.

Instead, HavMmeri argued the Court should reconsider his motions for

miscellaneous relief.

In the Fifth Circuit, “[w]hen a plaintiff fails to defend a claim in response to

a motion to dismiss..., the claim is deemed abandoned.” See Arias v. Wells Fargo

Bank, NA., 2019 WL 2770160, at *2 (N.D. Tex. July 2, 2019) (Lindsay, J.) (citing

Black v. N. Panola Sch. Dist., 461 F.3d 584,588 n.i (5th Cir. 2006)); see also Scales

v. Slater, 181 F.3d 703, 708 n.5 (5th Cir. 1999) (reasoning that the plaintiff

abandoned her claim by failing to contest defendant’s arguments for dismissal of

that claim); Spraggins v. Caliber Home Loans, Inc., 2020 WL 8366645, at *3

(N.D. Tex. Dec. 31, 2020) (Rutherford, J.), rec. adopted, 2021 WL 311869 (N.D.

Tex. Jan. 29,2021); Pena v. PHHMortg. Corp., 2022 WL 398399, at *2 (N.D. Tex.

Jan. 24, 2022) (Rutherford, J.), rec. adopted, 2022 WL 394759 (N.D. Tex. Feb. 9,

2022). But even if HavMmeri did not abandon his FLSA claim, he failed to allege

any facts in his Amended Complaint to show that he engaged in a protected activity

under the FLSA.

The FLSA prohibits an employer from “discharging] or in any other manner

discriminating] against any employee because such employee has filed any

complaint or instituted or caused to be instituted any proceeding under or related

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to this chapter[.]” 29 U.S.C. § 215(a)(3) (emphasis added). To state a claim under

this anti-retaliation provision, a plaintiff must demonstrate: “(1) participation in

protected activity under the FLSA; (2) an adverse employment action; and (3) a

causal link between the activity and the adverse action.” See Hagan v. EchoStar

Satellite, LLC, 529 F.3d 617, 624 (5th Cir. 2008) (emphasis added). The Fifth

Circuit has adopted the majority rule which allows “an informal, internal

complaint to constitute protected activity under Section 215(a)(3).” Hagan, 529

F.3d at 625. However, when adopting the “informal complaint” rule, the Fifth

Circuit acknowledged that there were necessary limitations and that “not all

abstract grumblings or vague expressions of discontent are actionable as

complaints.” Id. at 626. “The employee’s alleged complaint must concern a

violation of law and be framed in terms of the possible illegality of the action which

the employer has taken.” Benge v. Highgate Holdings, 2010 WL 2680113, at *2

(N.D. Tex. July 2, 2010) (Boyle, J.) (citations omitted). Further, in making the

complaint, the employee must be stepping outside of his job duties in representing

the employer. Hagan, 529 F.3d at 625.

Here, HavMmeri failed to allege any facts in his Amended Complaint to

show that he engaged in a protected activity under the FLSA. None of HavMmeri’s

pre-termination complaints concern any alleged violation of the wage and hour

provisions of the FLSA. Rather, HavMmeri complained that there were three

people working in a two-person job, which occasionally resulted in “tempers

flaring.” He also complained of unprofessional behavior by his coworkers,

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including teasing and the occasional use of racial slurs against him, as well as

favoritism by his supervisor. Upon reading the email HavMmeri wrote to his

supervisor—which was attached to his amended complaint—it is clear HavMmeri

did not frame his complaint in terms of participation in protected activity under

the FLSA. Therefore, the Court should dismiss HavMmeri’s claim under the FLSA.

4. HavMmeri fails to state a cognizable claim for relief for Gender or Race

Discrimination under Title VII.

Methodist also argues that HavMmeri fails to state a claim for

discrimination under Title VII, which prohibits employers from “failfing] or

refus[ing] to hire [any individual,]... discharging] any individual, or otherwise .

.. discriminating] against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(i). At the motion to

dismiss stage, “a plaintiff need not submit evidence to establish the prima facie

case for discrimination,” but he “must plead sufficient facts on all of the ultimate

elements of the claim to make [his] case plausible.” Davis v. Tex. Health & Hum.

Servs. Comm’n, 761 F. App’x 451, 454 (5th Cir. 2019) (per curiam) (citing Chhim

v. Univ. of Tex., 836 F.3d 467, 470 (5th Cir. 2016) (per curiam)). To state a claim

for discrimination under Title VII, a plaintiff must plead that he “(1) is a member

of a protected class; (2) was qualified for the position he held; (3) was subject to an

adverse employment action; and (4) was treated less favorably than others

similarly situated outside of his protected class.” Alkhawaldeh v. Dow Chem. Co.,

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851 F.3d 422, 426 (5th Cir. 2017) (citing Bryan v. McKinsey & Co., 375 F.3d 358,

360 (5th Cir. 2004)).

In the context of a discrimination claim, courts construe the phrase “adverse

employment decision” strictly. As the Fifth Circuit recently explained, “[a]n

adverse employment action is a judicially-coined term referring to an employment

decision that affects the terms and conditions of employment. We have

consistently held that an adverse employment action is an ultimate employment

decision, such as hiring, granting leave, discharging, promoting, or compensating.”

Price v. Wheeler, 834 F. App’x 849, 855 (5th Cir. 2020) (cleaned up); see also

Thompson v. Microsoft Corp., 2 F.4th 460, 470 (5th Cir. 2021) (“Adverse

employment decisions are ultimate employment decisions such as hiring, granting

leave, discharging, promoting ... compensating, or demoting.” (cleaned up)). An

employment decision that “does not affect job duties, compensation, or benefits”

is not an adverse employment decision for purposes of stating a discrimination

claim. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). “[A] mere

inconvenience or an alteration of job responsibilities will not suffice.” Thompson

v. City of Waco, 764 F.3d 500,503 (5th Cir. 2014) (cleaned up).

Here, Methodist does not dispute that HavMmeri alleges he is a member of

a protected class, that he was qualified for his position, and that he was

terminated—which constitutes an adverse employment action. However,

Methodist argues that HavMmeri “does not allege ... that Methodist’s decision to

separate him from employment was discriminatory rather than retaliatory in

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nature. That is, [HavMmeri] does not say ‘I was fired because I am a man.’ He says,

at best, ‘I was fired because I complained.’” Mot. Dismiss 9.

Not only does HavMmeri fail to offer any facts that support his claim that he

was fired because he is a man or because he is Black, but he also unequivocally

argues he was fired because he complained. Regardless of what this complaint was

about, the reason proffered by HavMmeri for his termination is that he

complained—not that he is a man nor that he is Black. Accordingly, HavMmeri’s

Title VII discrimination claim should be dismissed. See Hornsby v. Conoco, Inc.,

777 F.2d 243,246-47 (5th Cir. 1985). (dismissing plaintiffs gender discrimination

claims “because she failed to offer any evidence other than her subjective belief..

. that she was terminated because of her sex.”; Raj v. La. State Uni., 714 F.3d 322,

331 (5th Cir. 2013) (affirming Rule 12(b)(6) dismissal where plaintiff “did not

allege any facts, direct or circumstantial, that would suggest [defendant’s actions

were based on [plaintiffs race or national origin or that [defendant] treated

similarly situated employees of other races or national origin more favorably”).

Furthermore, the other conduct of which HavMmeri complains does not

constitute an ultimate employment action for purposes of a discrimination claim.

That his co-workers were rude to him and attacked his masculinity or called him

names—on the morning of March 10 or on some other unspecified date—is simply

not actionable. Title VII is not “a general civility code for the American workplace.”

E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444,460 (5th Cir. 2013) (quoting

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).

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HavMmeri also states that he was not allowed to “receive additional hours

with no defined role” but female employees were allowed to pick up extra hours as

a “personal assistant” to the Director or even help the Department Secretary file

paperwork after their shifts ended to get additional hours. He allegedly had to work

at three different Methodist Hospitals “simultaneously” to get his “allotted full

time hours.” Am. Compl. 2. Importantly, however, HavMmeri does not allege that

his work assignment—or the denial of work in “undefined role”—affected his

compensation. He does not allege that he was denied full-time work or that he was

paid less than female employees. Rather, he alleges that he had to perform more

difficult or less-desirable duties than his female coworkers. But “[u]ndesirable

work assignments are not adverse employment actions.” See Southard v. Texas Bd.

of Crim. Just., 114 F.3d 539, 555 (5th Cir. 1997); see also Ellis v. Compass Grp.

USA, Inc., 426 F. App’x 292,296 (5th Cir. 2011) (“Imposing a higher workload than

that given to other employees is not an adverse employment action under Title

VII.”).

The Court should dismiss HavMmeri’s claim for race and gender

discrimination under Title VII.

5. HavMmeri fails to state a cognizable claim for relief for Retaliation under

Title VII.

Finally, with respect to HavMmeri’s retaliation claim, Title VII’s

antiretaliation provision prohibits an employer from discriminating against any

employee “because he has opposed any practice made an unlawful employment

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practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. § 200oe-3(a).

“To state a claim for retaliation in violation of Title VII, a plaintiff must allege

that (1) he participated in an activity protected by Title VII; (2) his employer took

an adverse employment action against him; and (3) a causal connection exists

between the protected activity and the adverse employment action.” Leal v.

McHugh, 731 F.3d 405, 416-17 (5th Cir. 2013) (internal quotation marks and

citation omitted). Though “a plaintiff need not make out a prima facie case of

[retaliation] in order to survive a Rule 12(b)(6) motion to dismiss for failure to state

a claim,” the prima-facie standard “has some relevance at the motion-to-dismiss

stage,” because in order to sufficiently state a Title Vll-retaliation claim, “a plaintiff

must ‘plead sufficient facts on all of the ultimate elements’ to make [his] cause

plausible.” Jenkins v. La. Workforce Comm’n, 713 F. App’x 242, 244, 245 (5th Cir.

2017) (per curiam) (quoting Raj, 714 F.3d at 331) (citing Chhim, 836 F.3d at 4707i).

Here, Methodist argues that HavMmeri did not engage in a protected

activity under Title VII. Mot. Dismiss 7. “An employee has engaged in activity

protected by Title VII if [he] has either (1) ‘opposed any practice made an unlawful

employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing’ under Title

VII” Long v. Eastfield Coll, 88 F.3d 300, 304 (5th Cir. 1996) (emphasis added).

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HavMmeri alleges his protected activity was filing a grievance or “formal

complaint” with his supervisor on March 17, 2020. See Am. Compl. 5 (“[B]y

sending my Director an email on March 17th 2020 detailing a long history of

harassment, discrimination, threats and workplace violence, I believe I presented

a strong case for Wrongful Termination due to retaliation and discrimination.”).

However, HavMmeri mischaracterizes the March 17th email. Although he was

complaining to his supervisor—this email is devoid of any mention of sex or race

discrimination, and instead focuses on the presence of a third person in a twoperson cubicle and his supervisor’s personal relationship with and preference for

the third worker in the workspace. The subsequent conversations HavMmeri had

with HR also focuses on the number of people in the workspace and general

incivility. See Jackson v. Dali Cty. Juvenile Prob. Dep’t, 2007 WL 2187250, at *10

(N.D. Tex. July 30, 2007) (finding that memos that alluded to harassment that did

not contain details regarding any factor to which Title VII is applicable were not

protected activities). HavMmeri mentions for the first time in his EEOC Charge

that he was fired because he is a man. Every time before this charge was filed—

HavMmeri states that he was fired because he complained about the number of

people working in the cubicle.

Therefore, the Court should dismiss his retaliation claim as well.

Opportunity to Amend

HavMmeri’s claims should be dismissed with prejudice without an

opportunity to replead because any amendment would be futile. The Court

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recognizes that the Fifth Circuit encourages trial courts to give pro se plaintiffs,

like HavMmeri, several opportunities to state a claim upon which relief can be

granted. See Scott v. Byrnes, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008)

(Fitzwater, C.J.); Sims v. Tester, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001)

(Fitzwater, J.). However, a court should deny leave to submit futile amendments

that are “insufficient to state a claim,” see Stripling v. Jordan Prod. Co., LLC, 234

F.3d 863, 873 (5th Cir. 2000); Great Plains Trust Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (“[D]istrict courts often afford

plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a

case, unless it is clear that the defects are incurable.”); see also Arkansas v.

Wilmington Tr. NA., 2020 WL 1249570, at *5 (N.D. Tex. Mar. 16,2020) (Lindsay,

J.) (citing Reliance Ins. v. La. Land & Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997)

(noting "judges have the power to control their dockets by refusing to give

ineffective litigants a second chance to develop their case” (citing Turnage v. Gen.

Elec. Co., 953 F.2d 206, 208-09 (5th Cir. 1992))).

HavMmeri was given an opportunity to amend his complaint after the Court

and Methodist pointed out the deficiencies. HavMmeri’s response to the

Magistrate Judge’s questionnaire was considered as a part of his pleadings.

HavMmeri took it upon himself to file numerous motions, letters, and proposed

orders outlining his allegations. And he filed several responses to Methodist’s

Motion to Dismiss. Although the Court was not required to consider everything

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PagelD 318

filed by HavMmeri for the disposition of this Motion, the Court meticulously

reviewed all 200 pages filed by HavMmeri.

HavMmeri has pleaded his best case and any further amendments to

HavMmeri’s claims would be futile. HavMmeri’s state law claims are barred. And

HavMmeri would be unable to state a cognizable claim for relief under FLSA or

Title VII because he cannot change the events that led to his termination.

HavMmeri did not submit a complaint under FLSA, he cannot allege that he was

fired because of his race or gender, nor can he claim that his complaint to his

supervisor about the number of people in his workspace and the March 10 incident

was a protected activity. Therefore, any amendment would be futile.

Conclusion

The Court should GRANT Methodist’s Motion to Dismiss. Further, because

any amendment would be futile, HavMmeri’s claims should be dismissed with

prejudice.

Signed: June 16,2023.

ORD

REBECCA R1

UNITED STATES MAGISTRATE JUDGE

Case 3:22-cv-00594-E-BT

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PagelD319

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,

an objection must identify the specific finding or recommendation to which

objection is made, state the basis for the objection, and specify the place in the

magistrate judge’s report and recommendation where the disputed determination

is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written

objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district

court, except upon grounds of plain error. See Douglass v. United Servs. Auto.

Ass’n, 79 F.3d 1415,1417 (5th Cir. 1996).

Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

Writ of Certiorari, United States Supreme Court

Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

IN THE SUPREME COURT OF THE UNITED

STATES

Willie Lee HavMmeri

vs.

Methodist Health Systems (MHS)

Petition for a Writ of Certiorari

APPENDIX

PANDEMIC PROSE

Covid-19and the Federally mandated lockdowns effect on equitable tolling and the inaccessibility of the clerk’s office for filing claims

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4. On March 17.2020 i made a formal repealRetool'd MtoJ

after this

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HR nor her immediate supervisor.

since 1 had already send a formal grievance o

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7. Finally, on April 10, 2020, 1 was again asked to attend a meeting with HR regarding the conclusion of my

grievances”. When 1 arrived at the meeting, I quickly realized that this was not a meeting to discuss my grievances,

but instead was a meeting to terminate my employment. 1 was met only by M$. Marks, who informed me that my

complaint was deemed inconclusive because Ms. Johnson had denied making the comments I had reported. It

became clear that Ms. Maries had spent the past several days, not actually investigating my complaint but instead,

looking for a pretext to fire me. Ms. Mark said that she, during her “investigation”, had come upon information

resulting in my immediate termination.

8. First, She said that I had left the hospital while on duty and as evidence she showed me a social media post allegedly

made fay me during one of my shifts. The post showed a picture of me at my house, which purportedly proved that

I had left the hospital during one of my shifts. However, I easily refuted this by showing Ms. Marks the same, photo

on my phone, with the timestamp data showing that the photo was taken while 1 was off duty, I simply posted it

online while 1 was at the hospital.

Next, Ms. Marks raised the issue that I had been going to the onsite in-hospital gym during my work hours. Again,

I disputed this, stating that although I frequented the gym, I only did so during designated break time or at the start

and end of my shift. I also confirmed that 1 always carried my pager and Cardiology Department assigned phone

and that lhad never missed a procedure (even though 1 was never relieved of my work responsibilities even during

his lunch breaks). I also pointed out that it was common knowledge and that everyone had known that I frequented

the “Vm including my direct supervisors, and that it had never even been mentioned to me as a problem. I received

no warnings, no writes nor any verbal coaching on the matter. Nevertheless, Ms, Marks continued to terminate me

from my position. She handed me previously typed up paperwork, terminating me for the reasons of leaving the

campus during my shift and going to the gym during my shift, although these claims were not true.

10. After Ms. Marks handed me my termination paperwork. I asked her: “If 1 never complained about gender

discrimination, would I still have my job?” M$. Marks answered back yes.

11. I believe 1 was treated unfairly. 1 was discriminated against and subjected to a hostile work environment because 1

am an African American male; and I was terminated in a dear-cut case of retaliation.

12. I have not attempted to list every act of detail in this charge.

13. I expressly state that I want this filed with both the EEOC and the State or Local Agency.

14.1 have been discriminated against because of race, sex (being male) and subjected to retaliatory; harassing,

intimidating, hostile work environment contrary to the requirements of Tide VH of the Civil Rights Act of 1964 as

amended

NOTARY - When neofSihrytar State Bnd

wilt advise the agencies It I change my address or phone number and I Win cooperate

telly with them in the processing of my charge In accordance With their prdcedtiresI declare under penalty of perjury th;

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the best of my knowledge. Information and belief.

SIGNATURE OF COMPUINAW

SUBSCRIBED ANO SWORN TO BEFORE ME THIS DATE

{month, day. year)

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Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

Writ of Certiorari, United States Supreme Court

Willie Lee HavMmeri (Petitioner) vs Methodist Health Systems (Respondent)

IN THE SUPREME COURT OF THE UNITED

STATES

Willie Lee HavMmeri

vs.

Methodist Health Systems (MHS)

Petition for a Writ of Certiorari

APPENDIX

PANDEMIC PROSE

Covid-19 and the Federally mandated lockdowns effect on equitable tolling and the inaccessibility of the clerk’s office for filing claims

U.S. Equal Employment Opportunity Commission

EEOC Form 161 (11/2020)

Dismissal and Notice of Rights

To:

From:

Willie L. Harris

716 Saddlebrook Drive

Desoto, TX 75115

□

EEOC Charge No.

San Antonio Field Office

5410 Fredericksburg Rd

Suite 200

San Antonio, TX 78229

On behalf of person(s) aggrieved whose identity is

CONFIDENTIAL (29 CFR 81601.7(a))

EEOC Representative

Telephone No.

Maribel Rosales,

450-2020-06863

(210) 640-7556

Investigator

THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:

□

The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC.

Your allegations did not involve a disability as defined by the Americans With Disabilities Act.

The Respondent employs less than the required number of employees or is not otherwise covered by the statutes.

Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged

discrimination to file your charge

The EEOC issues the following determination: The EEOC will not proceed further with its investigation, and makes no

determination about whether further investigation would establish violations of the statute. This does not mean the claims

have no merit. This determination does not certify that the respondent is in compliance with the statutes. The EEOC

makes no finding as to the merits of any other issues that might be construed as having been raised by this charge.

The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.

Other (briefly state)

- NOTICE OF SUIT RIGHTS (See the additional information attached to this form.)

Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age

Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you.

You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your

lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be

lost. (The time limit for filing suit based on a claim under state law may be different.)

Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the

alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years f3 years)

before you file suit may not be collectible.

f OrMjehalf of the Commission

Enclosures(s)

cc:

For

Steve Tedder

VP/Assistant General Counsel

METHODIST HOSPITAL OF DALLAS

1441 North Beckley Ave

Dallas, TX 75203

Norma Guzman,

Acting Field Director

12/15/2021

(Date Issued)

Enclosure with EEOC

Form 161 (11/2020)

Information Related to Filing Suit

Under the Laws Enforced by the EEOC

(This information relates to filing suit in Federal or State court under Federal law.

If you also plan to sue claiming violations of State law, please be aware that time limits and other

provisions of State law may be shorter or more limited than those described below.)

Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA),

the Genetic Information Nondiscrimination Act (GINA), or the Age

Discrimination in Employment Act (ADEA):

Private Suit Rights

In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within

90 days of the date you receive this Notice. Therefore, you should keep a record of this date. Once this 90day period is over, your right to sue based on the charge referred to in this Notice will be lost. If you intend to

consult an attorney, you should do so promptly. Give your attorney a copy of this Notice, and its envelope or

record of receipt, and tell him or her the date you received it. Furthermore, in order to avoid any question that you

did not act in a timely manner, it is prudent that your suit be filed within 90 days of the date this Notice was

issued to you (as indicated where the Notice is signed) or the date of the postmark or record of receipt, if later.

Your lawsuit may be filed in U.S. District Court or a State court of competent jurisdiction. (Usually, the appropriate

State court is the general civil trial court.) Whether you file in Federal or State court is a matter for you to decide

after talking to your attorney. Filing this Notice is not enough. You must file a "complaint" that contains a short

statement of the facts of your case which shows that you are entitled to relief. Your suit may include any matter

alleged in the charge or, to the extent permitted by court decisions, matters like or related to the matters alleged in

the charge. Generally, suits are brought in the State where the alleged unlawful practice occurred, but in some

cases can be brought where relevant employment records are kept, where the employment would have been, or

where the respondent has its main office. If you have simple questions, you usually can get answers from the

office of the clerk of the court where you are bringing suit, but do not expect that office to write your complaint or

make legal strategy decisions for you.

Private Suit Rights

Equal Pay Act (EPA):

EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA underpayment: back

pay due for violations that occurred more than 2 years (3 years) before you file suit may not be collectible. For

example, if you were underpaid under the EPA for work performed from 7/1/08 to 12/1/08, you should file suit

before 7/1/10 - not 12/1/10 - in order to recover unpaid wages due for July 2008. This time limit for filing an EPA

suit is separate from the 90-day filing period under Title VII, the ADA, GINA or the ADEA referred to above.

Therefore, if you also plan to sue under Title VII, the ADA, GINA or the ADEA, in addition to suing on the EPA

claim, suit must be filed within 90 days of this Notice and within the 2- or 3-year EPA back pay recovery period.

Attorney Representation

Title VII, the ADA or GINA:

If you cannot afford or have been unable to obtain a lawyer to represent you, the U.S. District Court having jurisdiction

in your case may, in limited circumstances, assist you in obtaining a lawyer. Requests for such assistance must be

made to the U.S. District Court in the form and manner it requires (you should be prepared to explain in detail your

efforts to retain an attorney). Requests should be made well before the end of the 90-day period mentioned above,

because such requests do not relieve you of the requirement to bring suit within 90 days.

Attorney Referral and EEOC Assistance

All Statutes:

You may contact the EEOC representative shown on your Notice if you need help in finding a lawyer or if you have any

questions about your legal rights, including advice on which U.S. District Court can hear your case. If you need to

inspect or obtain a copy of information in EEOC's file on the charge, please request it promptly in writing and provide

your charge number (as shown on your Notice). While EEOC destroys charge files after a certain time, all charge files

are kept for at least 6 months after our last action on the case. Therefore, if you file suit and want to review the charge

file, please make your review request within 6 months of this Notice. (Before filing suit, any request should be

made within the next 90 days.)

If you file suit, please send a copy of your court complaint to this office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.