Petition for Writ of Certiorari — Joe Holbert, Petitioner v. Thompson Industrial Service, L.L.C., et al.
Supreme Court briefMar 16, 2026
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USDC Case No. 2:24-CV-00068
No. 25-40018
United States Supreme Court
For The United States Court of Appeals Fifth Circuit
Joe Holbert
Plaintiff
v.
Thompson Industrial Services LLC, Et. Al.
Defendants
Appeal from the United States District Court for the Southern District of Texas
USCD No: 2:24-CV- 0068
Motion for a Sixty (60) Day Extension of Time and a Motion for Reconsideration
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Equal Employment Opportunity Commission
Holbert presents arguments for each legal issue of the case:
Before the United States Equal Employment Opportunity Commission (EEOC) process,
the Plaintiff believes the Agency failed to conduct a proper investigation. Further they denied him
access to the EEOC process, because it was a mixed cases involving both discrimination and
personal action which were not handled correctly. Holbert argues that a compensatory damages
investigation is warranted, because the Agency failed to comply with prior orders, including orders
awarding damages or requiring the provision of reasonable accommodation.
Holbert Argues the Right to Refile.
In Prichard v Long Island University, the court ruled that if a right-to-sue letter (RTS) is
found invalid—such as when it is issued before the 180-day waiting period
the proper remedy is
dismissal without prejudice, allowing the plaintiff to refile after the administrative period
concludes. Holbert argues that the court’s dismissal with prejudice denied him this standard
procedural reset. Citing Prichard, Holbert contends that the District Court failed to allow the
EEOC to fulfill its congressional mandate to thoroughly investigate the plaintiff’s claims before
judicial intervention.
Post-Loper Bright Standard
Holbert argues that the courts should not have deferred to a narrow interpretation of his
pleading, just as the Prichard case applied the Post-Loper Bright Standards to reject deference to
the EEOC’s early Right to Sue (RTS) regulations. Holbert also argues that the EEOC’s practice
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of issuing early RTS letters violates Title VII statutory requirements. Under 42 U.S.C., the EEOC
is required to investigate for 180 days. Holbert argues that his RTS notice was issued before this
period expired, as was challenged in Prichard. Holbert argues that the EEOC failed to perform its
mandatory investigation; therefore, the court’s Dismissal with Prejudice was legally incorrect.
Holbert requests that the case be remanded to the EEOC for the agency to complete the
investigation mandated by the United States Congress.
The Plaintiff asserts that the EEOC’s “check the box” approach deprived him of the
administrative record necessary to survive a Motion to Dismiss. Holbert argues that the District
Court dismissed his case because the Plaintiff provided insufficient evidence to state a claim.
Holbert argues that the primary purpose of the EEOC investigation is to gather this very evidence.
The EEOC sometimes issues a RTS Letter while administrative remedies are still pending. Such
practices should not be used as a procedural trap, particularly for self-represented litigants. Holbert
contends that the case was dismissed pursuant to 2025 policy directives, rather than being
adjudicated on the substantiative merits of his charge.
Procedural Barriers
Holbert argues that the court’s refusal to consider late filed EEOC documents in facilitating
discovery constitutes an abuse of the administrative process. Holbert argues that the changes with
the EEOC and the broader legal landscape in 2025 incorporate revisions that address procedural
barriers and pleading standards that otherwise may have led to the dismissal of Holbert s case.
Holbert argues that his claims, which alleged racial slurs and sexual harassment, were subject to
inconsistently applied plausibility standards that have since been rejected. Holbert argues Ames v.
Ohio Department of Youth Services mandates a lower barrier for entry for all Title VII plaintiffs
regardless of the proceedings stage or the court’s perception of the claim s strength.
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Due Process and Discovery Assistance
Holbert argues that due to the EEOC’s inadequate investigation, he was forced to request
discovery from the District Court, but his request was denied. Holbert argues that had the EEOC
properly fulfilled its role as an impartial investigator, this evidence would have been preserved and
documented in the administrative files.
Additionally, the District Court’s subsequent refusal to assist him constitutes a violation of
Holbert’s rights to a fair legal process. Based on the 2025 legal landscape, including Holbert v.
Thompson Industrial Services, the EEOC’s practice of issuing early RTS letters violates the
statutory requirements of Title VII. Holbert argues that the RTS letter is legally invalid. He argues
that the agency exceeded its authority, and he contends the notice was invalid, because he never
exhausted his administrative remedies, making the dismissal with prejudice improper. The case
should be remanded to the EEOC to perform the investigation mandated by Title VII for violation
of the mandatory 180-day investigation period. The EEOC failed its statutory duty under 42
U.S.C. § 5F1 by failing to perform a legal investigation.
If the court determines that the EEOC issued the RTS letter prematurely, meaning without
conducting a bona fide investigation, the court may vacate the letter, stay the lawsuit, and order
the EEOC to complete its investigation under 42 U.S.C. §§ 2000(e)-5(f)( 1), including any
necessary updates to the administrative file. Holbert argues again subpoenaing key witnesses or
video evidence which he previously highlighted as a miss in his appellate brief. The EEOC should
have gathered relevant facts to determine reasonable cause, including contacting the respondents,
Thompson Industrial and/or Clean Harbors.
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A Lack of de Novo review of Agency Action
The court erred by deferring to the EEOC’s administrative outcome instead of conducting
a de Novo review.
District Court
Holbert argues that during the initial hearing Judge Libby refused to allow one of Holbert’s
colleagues to assist him at the podium. Holbert argues that the individual assisting him during the
initial hearing was Ms. Carla Pruitt, who had all necessary documents to amend the Complaint, as
well as the relevant EEOC materials.
Holbert argues that Judge Libby committed an ethical violation by refusing to allow them
to explain the matter once again. He further contends that the federal government should conduct
a thorough investigation into alleged courthouse misconduct, abusive treatment toward litigants,
and improper judicial demeanor. Holbert believes that the court abused its discretion by dismissing
the case with prejudice. Moreover, he claims that dismissal with prejudice was an excessively
severe sanction and that a lesser sanction, such as dismissal without prejudice, would have been
appropriate, particularly where the litigant was not afforded a meaningful opportunity to amend
the complaint given his pro se status. Holbert also contends that the District Court s refusal to
assist with subpoenas constituted an abuse of discretion, particularly given his status as a pro se
litigant. Because of all of this, Holbert requests reconsideration, citing newly discovered evidence
due to the court’s misapplication of procedural rules which led to the final dismissal.
Also, Holbert argues that subpoenas for courthouse cameras and witnesses should have
been issued at the outset of the case. He contends that the failure of both the EEOC and the courts
to assist with subpoenas created an information asymmetry in which the employer had exclusive
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access to witnesses and records, making it impossible for Holbert to meet even a basic pleading
standard without court-ordered discovery. Holbert argues that the court improperly considered
evidence or facts outside the four comers of the complaint when deciding the motion to dismiss.
Generally, when a court considers materials outside the complaint, it must convert Rule (12)(b)(6)
into a summary judgment motion, which would have afforded Holbert a different procedural
standard and an opportunity for discovery.
Inapplicability of Heightened Pleading to Discovery Pursuant to Ames v Ohio
Department of Youth
Holbert believes if Title VII pleading standards cannot be heightened, then access to
discovery, likewise, should not be restricted by requiring a plaintiff to produce evidence that can
only be obtained through discovery. Holbert argues that the U.S. Supreme Court should remand
the case to the EEOC so the investigation can be completed thus ensuring that being a pro se
litigant is not a jurisdictional bar as was the outcome due to the District Court s dismissal with
prejudice for purportedly incomplete or insufficiently submitted documents all of which created
an abuse of discretion by the District Court. Holbert argues for equitable tolling, asserting that any
failure to produce certain documents earlier should be excused because he possessed them prior to
the filing, demonstrating a good-faith effort to comply with Title VII requirements.
Fifth Circuit Court of Appeals
The Plaintiff specifically references the Supreme Court’s June 5, 2025, decision in Ames v.
Ohio Department of Youth Services to challenge the heightened pleading standards applied by the
lower courts, emphasizing that uniform standards must be used for all plaintiffs. The Ames
decision resolved a circuit split by holding that courts cannot impose a heightened evidentiary
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burden on plaintiffs based on their group identity. Holbert argues that applying rigid standards to
a pro se complainant contradicts the unanimous Ames ruling, which confirmed Title VII
protections extend to all individuals.
McDonnel Douglas Flexibility
Holbert argues that the Fifth Circuit Court of Appeals failed to follow the Supreme Court’s
2025 instructions regarding the McDonnell Douglas which indicated the framework must remain
flexible and context-dependent rather than rigid or ritualistic. Holbert argues that denying his
discovery and dismissing his case under 28 U.S.C. §§ 1915 and 2 without allowing access to video
evidence or witness subpoenas was Ames v. Ohio Department of Youth Services v. Ohio. Holbert
argues that the Fifth Circuit’s November 24, 2025, decision in Holbert v. Thompson Industrial
Sendees (25-40018) directly contradicts the Supreme Court’s unanimous June 5, 2025, ruling in
Ames v. Ohio Department of Youth Services. Holbert argues that the Fifth Circuit ignored the
instruction provided by Ames which established that a prima facie initial burden of proof was not
erroneous. By affirming a dismissal with prejudice, the court did so while Holbert was still
producing key evidence, including his EEOC letter and other relevant documents. Holbert argues
that the courts imposed a more demanding burden of proof than the even-handed standaid by Ames,
creating procedural barriers through judge made doctrines.
As stated by Justice Jackson emphasized in the Ames case, Title VII should not permit
special requirements or judicially created hurdles beyond what the statute provides. In direct
application to pro se litigants, Holbert relies on the Ames decision that all employee groups are
entitled to consistent and fair treatment. Holbert argues that the District Court and the Court of
Appeals decisions to dismiss his case with prejudice were unfairly influenced by a major circuit
split regarding the effect of a RTS letter from the EEOC before the 180-day period has elapsed.
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Holbert further cites post-Lo/?er Bright arguments, such as those recognized in New York
to underscore the importance of procedural fairness in investigations. The Plaintiff argues that the
Fifth Circuit Court of Appeals erred by dismissing his case based on alleged deficiencies that a
full, mandatory 180-day EEOC investigation might have cured or clarified.
Violation of Statutory Duties
Holbert argues that the 2025 policy, which closed prolonged investigations and issued RTS
letters on April 23, 2025, without a full review, violated the agency’s statutory obligation under
Title VII to investigate all charges. Holbert argues that the policy change deprived him of the
administrative process which Congress intended, effectively pushing him into court without a
complete factual record. Holbert highlights that the circuit split as of August 2025 allows the
EEOC to continue their investigation even after a private lawsuit has been filed, yet Fifth Circuit
Court of Appeals does not. Holbert argues that the inconsistency creates unequal justice based
solely on geography.
Holbert’s argument is centered on the conflict between administrative mandates and
judicial screening under 28 U.S.C. § 1915(e)(2) which is concerned with conflicts between judicial
screenings and the EEOC statutory duties. Holbert argues that the Court of Appeals interpretation
of 28 U.S.C. § 1915(e)(2) which allows dismissal at any time for failure to state a claim, contradicts
the EEOC statutory mandate to investigate allegations. Holbert argues, citing Cecilia Prichard v.
Long Island University, that the EEOC is required to conduct a thorough investigation. The
decision directly conflicts with the U.S. Appeal Court’s decision. Holbert argues that the EEOC
issued a RTS letter too quickly without performing a full investigation as mandated by Title VII.
Further he notes that because federal agencies do not explicitly prioritize individual harassment
claims such as the plaintiff’s, the courts are less inclined to dismiss such cases prematurely under
Case No. 25-40018
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28 U.S.C. § 1915(e)(2). Holbert argues the Appeal Courts’ dismissal undermines current federal
enforcement priorities designed to protect individual workers from direct workplace hostility.
Holbert contends that repeated racial slurs and unwanted physical contact, including buttocks
slapping, contributed to a pervasive and discriminatory hostile work environment.
Holbert
contends that his claim falls squarely within the protected entitlement to seek legal remedies.
Holbert argues that applying a strict Rule (12)(b)(6) dismissal to a pro se plaintiff particularly
after a landmark ruling intended to simplify the pathway for plaintiffs—violates the spirit of the
Ames decision. Holbert argues that early RTS letters are invalid after Loper Bright which makes
the RTS letter he received from the EEOC, which was premature in nature, legally invalid under
Prichard v. Long Island University’. Following the Supreme Court’s 2024 decision in Loper Bright
Enterprises v. Raimondo, which overruled Chevron deference, courts now apply textualist
statutory interpretation rather than deferring to the EEOC’s administrative practices. Holbert
contends that the EEOC lacked statutory authority to issue the RTS letter prematurely as Title VII
authorizes RTS notices only after the charge is dismissed or after the 180-day investigation period
has elapsed.
Holbert argues that the lower courts committed reversible errors by dismissing his case
with prejudice. In contrast, Prichard v. Long Island University’, the case was dismissed without
prejudice and remanded to the EEOC for further proceedings. Holbert argues that the rapid shift
from Chevron deference to Loper Bright creates unfair hurdles for pro se litigants. He contends
that his failure to timely provide the RTS letter should not have resulted in dismissal, particularly
where the governing legal standards changed abruptly and without clear guidance for
unrepresented plaintiffs.
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Additionally, Holbert argues that David Wiggins’ breach of contract serves as critical
evidence that the company’s states reasons for his termination were a pretext for discrimination.
Under current legal standards confirmed by the Fifth Circuit and prevailing employment law,
Holbert identified multiple violations in his lawsuit through specific, articulated arguments.
Evidence of Pretext for Discrimination.
Holbert argues that David Wiggins violated the company’s internal employment contract—
including its handbook’s progressive discipline policy—to mask a discriminatory motive.
Deviation from Policy
Where a company maintains a progressive discipline policy and a decision is made to
bypass that policy and terminate an employee immediately thus constituting a procedural
irregularity that can be recognized as probative evidence of pretext. Holbert contends the actions
of David Wiggins falls under the aforementioned. Under prevailing employment law, such a
departure can support an inference that the employer stated reason for termination
which alleged
safety violations—was not the true motive. Holbert argues that Wiggins enforced the company s
disciplinary policy against him but not against other employees who committed similar infractions.
Because of this, Holbert argues independent claims under 42 U.S.C. § 1981, a federal law that
prohibits racial discrimination in the making and enforcement of contracts. Holbert argues that 42
U.S.C. § 1981 protects his right to enjoy all benefits, privileges, terms, and conditions of the
contractual relationship, including employment, and that the breach of contract interfered with
those protected rights. Holbert argues that David Wiggins is personally liable under 42 U.S.C. §
1981, because Wiggins intentionally used his authority to breach Holbert’s contractual rights based
on the plaintiff’s race. Holbert argues that David Wiggins breached the covenant of good faith and
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fair dealing inherent in his employment agreement. Holbert argues that Wiggins breached his duty
to act honestly by ignoring Holbert’s reports concerning racial discrimination.
Moreover, failure to preserve evidence can violate a contractual duty. Holbert alleges that
David Wiggins and Thomspon Industrial Services failed to preserve critical video evidence and
witness statements that would have exonerated him of the safety violations used as the reason for
his termination. The plaintiff framed this failure as a breach of the implied contractual duty to
conduct a fair and thorough investigation. Holbert now contends that by destroying or failing to
preserve the evidence, Wiggins and Thompson Industrial Services violated the procedural fairness
owed the plaintiff.
Fifth Circuit Court of Appeals
Holbert argues that the lower court’s refusal to allow him to amend his Complaint was a
manifest injustice.
Impeachment of a Key Witness
Holbert argues that David Wiggins was both a decision maker and a witness in his
termination for alleged harassment, and that Wiggin’s legal disputes with the company may reveal
a bias or conflict of interest. Holbert argues that Wiggins’ testimony or previous statements on
behalf of the company are unreliable, because the company is now actively litigating against David
Wiggins.
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Pattern of Corporate Misconduct
Holbert argues that this supports his claim against the company. Holbert contends that
Cheetham v. Clean Harbors ignores legal and professional standards, including those related to
Title VII protections. Holbert states that breach-of-contract lawsuits often involve the discovery
of confidential information, including internal emails, memos, and personnel files. Holbert argues
that facts reveal in Thompson Industrial Services v. Wiggins-—such as internal company culture
and specific directives given to managers—support his claims.
Managerial Creditability
Holbert argues that the company’s decision to sue its former operations manager suggests
instability and a lack of integrity within the management chain that oversaw his employment.
Holbert requests a subpoena duces tecum as part of his ongoing litigation. Holbert is asking the
court to issue a subpoena for the records of Thompson v. Wiggins, case number 3.2024-cv-02809.
United States Supreme Courts Final Appeal
Holbert requests a 60-day extension under U.S. Supreme Court Rule 13.5, citing good
cause, pro se status, and the complexity of the case. Holbert argues that as a pro se litigant, he
requires additional time to ensure a well prepared and orderly presentation of complex Title VII
issues.
District Court Issues Courts of Appeals Issues for the Court Review
Holbert asserts that the need for extensive legal research—particularly due to the landmark
ruling in Ames v. Ohio Department of Youth Services (June 2025) and emerging circuit splits in
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2025 regarding the EEOC RTS letters making it impossible to complete adequate research with
the 90-day window.
Holbert cites Interest of Justice
Holbert argues that an extension will allow him to carefully frame his petition in a manner
that is more helpful to the Court, particularly regarding the conflict between the Fifth Circuit
dismissal standards and Ames v. Ohio Department of Youth Services. This application is also
addressed by the Fifth Circuit Justice, Samuel Alito. Holbert argues he faced administrative delays
because of the EEOC, the District Court in Corpus Christi, and the Fifth Circuit Court of Appeals,
and personal hardship with family.
United States Supreme Courts Final Appeal a Motion for Reconsideration
As of 2026, Holbert argues that David Wiggins is being sued by Thompson Industrial,
which brings the credibility of the plaintiff’s primary supervisor and the integrity of the company’s
internal investigations into question. Holbert argues that the lawsuit against Wiggins serves as
new discovery evidence that directly impacts his discrimination case. Holbert argues that the
company’s own records now characterize its key witness as untrustworthy or as having violated
corporate policy.
Hostile Work Environment Evidence
Holbert argues lawsuits between a company and its manager often involve the disclosure
of internal emails and instant messages.
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Deuces Tecum Tangible Evidence Mandatory Production
Holbert argues that Thompson Industrial is legally obligated to search for and produce the
requested items, including emails, text messages, phone records, employment files, and digital
data.
Specifically, the plaintiff requests the following discovery from January 5, 2023, to August
16,2023:
1. Company phone logs which were used for discrimination.
2. Corporate records from Thompson Industrial/Clean Harbors including memos, emails,
or documents regarding the dispute involving Wiggins.
3. Access to Third Party Evidence from Steel Dynamics because some of the incidence
happened on their properties.
4. The Letter of Termination, Notice of Breach of Contract and employee files regarding
David Wiggins.
Holbert argues the lawsuit against Wiggins is relevant to the plaintiff s discrimination case,
because Wiggins is a biased witness with zero credibility due to Wiggins selective enforcement of
rules and racial bias.
Holbert requests a motion for relief from judgement under Federal Rule 60B which allows
a case to be reopened based on newly discovered evidence of misconduct by an opposing party.
The Plaintiff requests the court vacate the dismissal of his case to allow for the amendment of his
Complaint based on new facts which meet the plausibility standards he previously failed to reach.
Holbert argues for fraud or misrepresentation of Federal Rule 60(B)(3). Holbert argues that these
documents may contain evidence of the racial slurs and inappropriate conduct he alleged which
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the company previous claimed did not exist inconsistent statements. Any affidavits or testimony
Wiggins give in his breach of contract case that contradicts the statement he or the company made
during Holbert’s EEOC investigation can be used to prove the company provided shifting
explanations for its action.
Holbert requested Federal Rule 60(B) Relief. The lawsuit against David Wiggins could
not have be found earlier newly discovered evidence. Holbert argues for the motion of relief from
judgment under Federal Rule of Civil Procedure 60(B) in the District Court.
Holbert argues that identifying the specific legal basis for the termination—including
violations of non-compliance and non-solicitation provisions, misuse of proprietary information,
and failure to perform contractual duties—is essential. Holbert argues both defendants, David
Wiggins and Thompson Industrial, claim breached of contract. Holbert argues in Davis v. Alaska
(1974) the U.S. Supreme Court ruled that a defendant has the right to confront witness via cross
examination which is paramount even when it conflicts with other state interests. Holbert argues
that he should have the right to explore potential bias of a crucial witness such as David Wiggins,
especially when Wiggins’ own legal conflict with Thompson Industrial Confrontation Clause
protection. The Sixth Amendment protects a defendant’s ability to cross-examine witness to
expose possible bias.
Holbert Argues Impeachment Over Privacy.
Holbert argues witness bias, asserting that Wiggins as a former manager who is now being
sued by the company, may have had a notice to testify in a particular manner to protect his own
position or contractual interests at the time of the initial proceedings. At the time of the initial
investigation, Holbert argued that Wiggins statements were a crucial link in the company’s defense,
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making cross-examination vital to enduring a fair trial. Exposing motivation, Holbert argues that
the breach of contract lawsuit reveals a fundamental conflict that the jury or the courts should have
been allowed to consider when weighing Wiggins’ credibility.
Application
Holbert argues that the Supreme Court should grant review because the lower courts
dismissed the plaintiff’s case based on management narratives provided by a supervisor, Wiggins,
whom the company now officially labels as untrustworthy in a separate litigation.
Holbert argues against pleading standards under Ames v. Ohio Department of Youth
Services, which by a unanimous 2025 Supreme Court’s ruling finding the evidentiary burden
required at the early stages of a case were onerous. Holbert argues that the existence of a lawsuit
against his own manager for policy violations makes his claim of harassment more plausible,
meeting the standard to survive a motion to dismiss. Holbert argues that Thompson Industrial
Services’ failure to disclose internal conflicts with Wiggins during the discovery phase constituted
a misrepresentation, justifying the vacating of the prior dismissal. Holbert argues for a cover-up
of discrimination.
District Courts Common Scenario and Examples
District Court may dismiss a case if the Plaintiff fails to meet the burden of producing some
evidence, yet appellate courts normally reverse these rulings, thus allowing the Plaintiff to amend
complaints using Seventh Circuit cases. Holbert argues improper exclusion as evidence. Holbert
argues the district court and later the appeal courts’ rulings to be overly strict and fails to consider
or produce key evidence missing evidence rule. Holbert also argues procedural misstep thus
requesting an amended/new trial. Further, Holbert argues to appeal the primary remedy. Holbert
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argues Nocc Pro Tone insufficient evidence. Holbert argues improper exclusion of evidence
leading to reversal. Holbert argues Healy v. Milliman. Holbert argues failure to amendment.
Holbert argues improper procedure Authentication. Holbert argue key legal principles involved
burden of proof. Holbert argues Federal Rules of Procedure 37 and 103. Holbert argues waiver
of rights. Holbert argues remand for a new trial. Holbert argues insufficient evidence for verdict
consequences and remedies abuse of discretion. Holbert argues unauthenticated or unreliable
evidence.
Key Scenario of Evidence
Failure Holbert argues forms of an offer. Summary of Requirements Arguments for Abuse
of Discretion Federal Rule of Evidence Rule 403. Preponderance of the Evidence. Argument of
Reversible Error. Substantial rights without the evidence the judge or jury received a skewed
version of the facts. Timely offer of proof Holbert argues one last chance to correct the error citing
Rule 60(B) newly discovered evidence, and/or mistake for a Motion for Reconsideration relevant
to Failure to Present Evidence photographic or video is power for Holbert. Argues pre-suit
optimal.
Discovery and Summary Judgment
The courts have reinforced the need for sufficient discovery allowing plaintiffs to seek
evidence like video that might create genuine factual disputes which impact the summary judgment
decision. Holbert cites Civil Rights attorney, Gay Gilson, filed the original Complaint advising
Thompson Industrial Services investors of the lawsuit and the video evidence to hold for litigation.
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Holbert requests for the IFP to continue his complaint pursuant to 28 U.S.C. § 1915 for a
motion to leave to proceed in forma pauperis before February 26, 2026. Holbert requesting 60day extension to file a Petition of Certiorari.
Holbert requests the United States Courts to email a copy to Thompson Industrial Services’
attorney, Jeffery Shannon Mays.
Sincerely,
3662 Old West Point Road
Sturgis, MS 39769
(361) 995-1868
Holbertjoe08@gmail.com
Texas Workforce Commission
101 East 15th Street
Austin, TX 757878
United States Equal Employment Opportunity Commission
131 Street NE
Washington, DC 20507
Appeals of Federal Operations
P.O. Box 77960
Washington, DC 20013
February 16, 2026
Case No. 25-40018
U.S. District Courts and U.S. Court of Appeals
One Columbus Circle, NE
Washington, DC 20544
U.S. Supreme Court
First Street NE
Washington, DC 20543
19
February 16, 2026
To: Texas Workforce Commission
Plaintiff, Joe Holbert, would like the Texas Workforce Commission (TWC) to consider the
following regarding reopening his case.
Identification of New and Substantial Evidence.
Holbert states clearly the breach of contract constitutes new evidence that was not available
or fully understood during the initial investigation. The TWC’s prior determination was previously
based on incomplete facts regarding the critical context of the true nature of Holbert’s separation
from employment. Holbert argues that David Wiggins violated Holbert’s employment contract
pursuant to the Texas Unemployment Compensation Act. Because of this, Holbert believes he has
provided a good reason for reopening his case. Further, Holbert requests the subpoenaing of his
personnel files and the original hearing officer, and his work contract from Thompson Industrial
Services. These documents are essential for the employee handbook disciplinary policy. Holbert
argues OSHA workplace violence hazard.
Kindest Regards,
Hied on U//Z4/Z4 in IXSU
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piescrrt the information uruk’r seal to the Court lot the ilteirict s'hu.e
coniplnmoc is required Mr a dctviirtmatrun ol lire claim Ihe [•etx'tt t» »a>
poulticed the inl>)irnaiu.'n must preserve the iriliinnatioit until the clurnt 15
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I !>.• ci-nit for the district where compliance is required—and also, alter a
motion is transferred, the issinne court - nuiy lurid in contempt 11 pcis.m
who. having been served, lads without adequate cscvisc to obey the
subpoena or an or Jet related Io tt
I 01 assess to vJspncn.1 materials seeled R Civ P 15ta) Committee bote (2'11 j 1
25-40018.132
tn TXSD---- Page 2 of S
or
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□ 1 recumcd the subpoena unexecuted because.
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Dele:
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I’rink'd name and Mie
Server J <i;Zdrevs
Additional information regarding attempted service, etc..
2
1
Filed on 01/09/25 in TXSD
’
Case 2:24-cv-00068
Document 52-2 (Court only)
—Filed on 09/10/24jrvJ/.Sg w
EEOC Form
?-?/i-ry-nnn£g___ Document 41 1
Charge Presented To;
CHARGE OF DISCRIMINATION
2 of 8
PEPA
This form Is affected by the Privacy Act of 1974. See enclosed Privacy Acl
Statement and other information before completing this form
X] EEOC
Page
and EEOC
Texas Workforce Commission Civil Rights Division
State or local Agency, If any
Name (Indicate Mr., Ms., Mrs.)
Home Phone (Inci. Area code)
Date of Birth
(662) 231-4142
08/09/1968
Joe Halbert (also sometimes spelled Holbert)
Street Address
City. State and ZIP Code
~~
_ _____ Corpus Christi, Texas 78408 ---------------------- ------- —.
719 Lantana Street, Lot 49
Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee. or State or Local Government Agency That I Believe
Discriminated Against Me or Others (If more than two, list under PARTICULARS below.)
No. Employees, Members
Phone No. (Include Area Code)
500+
(281) 229-0203
No. Employees: Members
Phone No. (Include Area Code)
500+
(361)356-1339
Name
Thompson Industrial Services, LLC
City. Slate and ZIP Code
StreelAddress
1502W F Street
La Porte, TX 77571
______________
Name
Clean Harbors; Clean Harbors, Inc.; Clean Harbors Industrial
Services, Inc.; Corpus.Christi Industrial Services *
City, Slate and ZIP Code
Street Address
1704 Hunter Rd
Corpus Christi, TX 78409“ (main office identified below)
DATE(S) DISCRIMINATION TOOK PLACE
Latest
Earliest
DISCRIMINATION BASED ON (Check appropriate box(es).)
X
COLOR
RACE
X
X
RETALIATION
X
AGE
SEX
RELIGION
DISABILITY
X
NATIONAL ORIGIN
08/21/2023
01/05/2023
GENETIC INFORMATION
X
OTHER (Specify)
THE PARTICULARS ARE (If additional paper is needed, attach eKira sheatfs)):
CONTINUING ACTION
,
I was hired by Thompson Industrial Services, LLC (Thompson) to work as a technician in Sinton, Texas.
While I was employed, there was a transaction where Thompson was sold to Clean Harbors,
<Jean
Harbors has several names under which it does business which I identified above. Some records also show
that the business uses other names and I am attaching this list to my EEQC Charge and Incorporating it by
reference. I will refer to these entities as "Clean Harbors" - which is the name that was on my letter of
termination. Thompson was on my unemployment records. The Clean Harbors entities are all at the address
of 42 Longwater Dr., Norwell, MA 02061 (“main office), phone (781-792-5000). The local office for Clean
Harbors is located at the address above. The Thompson and Clean Harbors entities were my employers,
joint employers and/or acted as an integrated enterprise.
During my employment, I was subjected to unwanted and highly offensive verbal and physical harassment
because of my race, Black, national origin, African American, color, Black, gender/sex, male. I was the only
Black male working. Some examples of this continuing and highly offensive hostile work environment are
below.
On January 5, 2023, I started work and .Ernest Mungia (Hispanic), harassed me and slapped my behind in a
demeaning manner that made me very uncomfortable. He did this in front of George, Matthew, Efrain (each
Hispanic), Jordan (Hispanic/Whlte) and Chris (White).
I want this charge filed with both the EEOC and the State or focal Agency, If any. I
will advise the agencies if I change my address or phone number and I will
cooperate fully with them in the processing of my charge In accordance with their
procedures.
_ ______________________________________
I declare under penalty of perjury that the above Is true and correct.
NOTARY - When necessary for State and Local Agency Requirements
I swear or affirm that I have read the above charge and that it Is true to
the best of my knowledge, Information and belief.
SIGNATURE OF COMPLAINANT
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
{month, day, year}
DPIe
Charging Party Signature
Case 2:24-cv-00068
Case 2:24-cv-00068
Document 52-2 (Court only)
Document 41-1 (Cr&ftfdhly)
Filed on 01/09/25 in TXSD
Page
Filed on 09/10/24 in TXSD
Page
Charge of Discrimination
Cha rge Presented To:
This form Is affected by the Privacy Act o! 1974. See enclosed Privacy Ac!
Statement and other Information before completing this form
FEPA
X EEOC
Texas Workforce Commission Civil Rights Division
.
Agency(les) Charge No(s):
________ and EEOC
Slate or local Agency. It any_________________ :______________
THE PARTICULARS ARE (If additions! paper is needed, attach extra sheet(s)):
He did not do this to non-Black employees. I was shocked, embarrassed, and ashamed. I have neverJiad
another man touch me In that way. When he touched me, I turned to him and gave him a clear look that he
should not touch me like that. His touching of me was sexual and it was also motivated by my race and
national origin.
Management made it clear that Ernest "was the team leader” and we had to follow his directions.
From mv first day of employment, and continuing, on an approximate weekly basis, Ernest harassed me in a
sexua^and racial manner. He made sexual comments suggesting that he wanted to see my Perns because
Of
stereotype that Black men have large penises. I have never had anyone ask or inquire about such
thinas especially at work and this made me very uncomfortable. Others heard Ernest make these comments
IMhe workplace aM°no one said anything or told him to stop. This further scared me because he was
basically given permission to do what he wanted. Other comments and actions that Ernest did towardme
were saying things like I “have a nice ass," "you are fine," and he frequently leered at my body eyeing>t trm
top to bottom and focusing on my groin and behind. As Ernest did these things to me, I made clear th
actions were not welcome.
At the beginning I did not know that the Operational Manager, James Cabler (White), is Er‘21esVs.^ro^®™;
lawErnest frequently told James untrue things about me after I rejected his sexua and rac al conduc
toward me. 1 told James this was not true, but he just sided with his brother-in-law and I knew that would n
get anywhere reporting Ernest's unlawful conduct and I needed my job.
When I told Ernest that I did not like his talking about, in his words, "dicks," he told me that mine was not big
enough meaning that I was not a real Black man.
Ernest also frequently made jokes about my race/color/national origin such as: smile, I can't see you; why
are you so Black? and similar statements on a frequent basis.
On or about March-15, 2023, Michael Pena (Hispanic), my direct supervisor said, fuck you mgge , meet me
In the parking lot" when we were discussing how to do a job. Matthew and Efram were a so present wher this
happened Michael threatened to beat my ass in the parking lot after work. I made it clear that this was no
welcome, but I was scared that he may physically harm me. I kept working like I didn't hear him because I
was afraid the situation would escalate.
On or about June 7, 2023, I was in a truck with Ernest Mungia and Montana Wiggins (White). I was in h
backseat and I was smoking a cigarette. I asked Earnest if he could put a window down in order that I could
finish smoking. He told me "fuck you" and other words. I was taken to the office and admonished, but
Earnest was not.___________________ ________
I want this charge filed with both the EEOC and the Slate or local Agency, It any.
Will advise the agencies If I change my address or phone number and I will
cooperate fully with them In the processing of my charge in accordance with their
p ro ce du ros._______
_______
I declare under penalty of perjury that the above Is true and coned.
NOTARY — Whan necessary for State and Local Agency Requirements
l swear or affirm that I have read the above charge and that it is true to
the best of my knowledge, Information and belief.
SIGNATURE OF COMPLAINANT
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
(month. day. yead)
Dale
Case 2:24-cv-00068
Document 52-2 (Court only)
Filed on 01/09/25 in TXSD
A 1 1 IC'r2i flfr-411\A____
Filed on 09/10/2 4 in TXSP------ uuuuntui u mx-x
l um;
FFnr. Fnrm5rM7ML
-------- —V'l
Charge of Discrimination
4 of 8
Cha rge Presented To:
Page
Paas-----
Agency(ies) Charge No(s):
2J FEPA
X| EEOC
This (arm Is affected by the Privacy Act of 1974. See enclosed Privacy Act
Statement and other Information before completing this form
Texas Workforce Commission Civil Rights Division
and EEOC
State or local Agency, II any
THE PARTICULARS ARE flf additional paper Is needed. attach extra sheets)):
On or about June 2023, a crew came from LaPorte, Texas came to work with us to help with a shutdown. A
few young Black males and two black women. Ernest said those “Black nigger girls don't do nothing, they
are lazy ” “they just want to sit down." The next day, when their job was over, Ernest told them they could go
back to LaPorte. After they left, Ernest told me that those niggers didn't want to work. Ernest frequently
used the word nigger with me and he also used it with these other employees. I felt very uncomfortable and
this only showed his bias and discrimination toward Black people.
On August 16, 2023, while riding in a truck driven by Ernest. Garcia was aiso riding In the truck and he told
Mungia to watch out for a vehicle. Mungia responded, “fuck that car and that nigger" while he looked at me
in the rearview mirror. I was shocked, Again, Ernest used a racial slur to me.
—
trucks are video monitored by managemgpt/safety. B^sedjappiijnyJfflpwledge^Hh^
empioyersTUiaFco^^
a .video maintained by nny employers. At the end of the day I received a
messed
Michael PenaTsaylngrthefe was no work for tomorrow and that he would call
me if something came up.
After work on August 16, 2023,1 texted Kenny (Manager in LaPorte, Texas) to see if I could take a few days
off to see my mom and uncle who is very 111 with cancer since Pena told me that there was no work for me
the next day. I asked Kenny to look in my file and see how many days I could take to travel to Mississippi. He
never responded.
About 2 hours later, Louis Garcia texted me and asked if I was working tomorrow and I responded are you
working?" and he said yes. I told him they told me there wasn’t any work and no, I am not working. (Louis
and I carpooled to work usually). I was the only person that was told that there was no work.
Also on August 16, 2023, I contacted both Kenny and David Wiggins (Plant Manager - highest ranking
person on the job site) and reported that Ernest called me nigger earlier in the day.
The next day, August 17, 2023, I applied for unemployment because my employers did not give me work
even though it was available. No other employee was treated like I was. My employers told unemployment
that I was terminated for not being able to perform the work tasks. This is an untrue statement. I was always
able to perform my work tasks. Texas Workforce Commission found in my favor and awarded me
unemployment. My employers retaliated against me for reporting and opposing unlawful discrimination.
I was subjected to a hostile work environment and discrimination based upon my race, Black, national origin,
African American, skin color, Black, sex/gender, male, and I was retaliated against for reporting and
opposing unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and
Chapter 21 of the Texas Labor Code.
I want this charge filed with both the EEOC and the Stale or local Agbncy, If any.
will advise the agencies If I change my address or phone number and I will
cooparale fully with them th the processing of my charge In accordance with their
procedures.
_________________________________
I declare under penalty of perjury that the above Is true and correct.
11 - f -aos?>
Dale
Apt- UmI^aA|
Charging Party Signature
NOTARY - When necessary lor Slate and Local Agency Requirements
I swear or affirm that I have read the above charge and that II Is true to
the best of my knowledge, Information and belief.
SIGNATURE OP COMPLAINANT
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
(month, day, year)
Document 52-2 (Court only)
Case 2:24-cv-00068
EeocF<xrri5(^g
Charge of D
5 of 8
IH WlOLi'
-----------------
Agency(ies) Charge No(s):
FEPA
This form Is affected by the Privacy Acl ol 1974 see enclosed Privacy Act
Statement and other Information before completing this form
X
EEOC
________ Texas Workforce Commission Civil Rights Division
_____
Page
Filed on 01/09/25 in TXSD
----- Documont fll 1 (Cdt.itti(Wy ]------Hiioa on
Che rge Presented To:
iscrimination
Stale of local Agency, Hany
and EEOC
_________________ __
THE PARTICULARS ARE (If additional paper Is needed, attach extra 'sheel(s)):
My name Is Joe Halbert (also known as Holbert), my date of birth is 8/9/1968 and my address is 719 Lantana
St, Lot 49, Corpus Christi, Texas 78408. I declare under penalty of perjury that the foregoing is true and
correct.
Executed in Nueces County, State of Texas, on the 1st day of November.
1 want this charge filed with both the EEOC and the State or local Agency. It any. 1
will advise the agencies If 1 change my address or phone number and I will
cooperate fully with them In the processing of my charge in accordance with their
procedures.
___________
1 declare under penally of perjury that the above Is true and correct.
11- 1
1
I swear or affirm that 1 have read the above charge and that It is true to
the best of my knowledge, information and belief.
SIGNATURE OF COMPLAINANT
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
----- — (month, day, year)
(XqjP .
Date
NOTARY - VWren necessary for Slate end Local Agency Requirements
Charging Party Signature
Document 42-1 (Court only)
Filed on 09/11/24 in TXSD
Page
TEXAS WORKFORCE COMMISSION
PO BOX 2211
£ F=|=
§
MC ALLEN TX 78502-2211
§
DETERMINATION ON PAYMENTOF UNEMPLOYMENT BENEFITS
Date Mailed:September
14, 2023
§=
«o
_■
o ===
JOE L HOLBERT
TIT LANTANA ST TRLR Ml
CORPUS CHRISTI TX 7fiM06-22M?
Social Security Number: XXX-XX-9421
Employer: THOMPSON INDUSTRIAL.
Employer Account No: 10—832069—9
All dates are shown in
month-day-year order.
Decision
'
I
J:ci^onTP::aclnnp™ou°benefits, if you meet an other weekly requirements such as being
Reasonafor1Decision:aourVinvestigation found your employer fired you because you were unable to
perform your assigned work to their satisfaction. This is not considered misconduct connected
with the work.
„
. .
, .
Law Reference: Section 207.044 of the Texas Unemployment Compensation Act.
Understanding your Decision
a problem
If you receive a decision that says, "we cannot pav you benefits," it means. there is--' "we can
with your claim EVEN IF you have received other ^ec^sions^for^thejame^peri.od^that^ *y,
If even
one decision
for the same period says we cannot pay, you will not
pay you benefits." I.
--- ---- receive an unemployment payment for that period.
To resolve issues on decisions you. receive:
....
1. Follow instructions on the notice(s); call the Tele-Center at 800-939-6631 if you have
questions;
,
.
.
2. If the instructions tell you to "Report," call the Tele-Center at once;
3. If you disagree with a decision, file an appeal. Appeal each decision separately by the
-anneal deadline, if you fax your appeal, keep a confirmation sheet.
Your employer can appeal TWC's decision to pay benefits. TWC will notify you of any
hearing^ If you do not participate, you may lose your benefits and have to repay benefits you
received.
Determination of Potential Chargeback for the Employer
If You Disagree with this Decision
|
_
If you disagree with this decision, you may appeal. Submit your appeal by mail, fax, online, or in person at any
Texas Workforce Solutions office, on or before 09-28-23
TWC will use the postmark date, or the date we receive the fax or online form, to determine whether you submitted your
appeal on time. If you appeal by fax, you should keep your fax confirmation as proof you sent it. - Please include a copy
of this determination notice with your appeals correspondence.
If you receive multiple determination notices, you must appeal each determination separately.
Appeal Tribunal
Mail the appeal to:
Texas Workforce Commission
You may appeal by submitting
101 E. 15th Street
TWC’s online appeal form. Go to
Case No.:
25
Austin, TX 78778-0002
Claim ID.:1 08-13-23
www.texasworkfoTce. cirg/niappeal
Claim Date:
08-13-23________
Or fax to (512) 475-1135
Please See Reverse For How To File An Appeal.
BD300E 02/28/2018
HEARING IMPAIRED CLIENTS
CALL 711 for RELAY TEXAS
.
Case 2 24-CV-00068
Document 41-1 (Court only)
8 of 8
Filed on 09/10/24 in
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
San Antonio Field Office
5410 Fredericksburg Road, Suite 200
San Antonio, TX 78229
(210) 640-7530
Website: www.eeoc.Eov
DISMISSAL AND NOTICE OF RIGHTS
(This Notice replaces EEOC FORMS 161,161-A & 161-B)
Issued On: 12/29/2023
To: Joe Halbert
719 Lantana Street, Lot 49
Corpus Christi, TX 78408
Charge No: 451-2024-00505
EEOC Representative and email:
SEQUOIA WELCH
Investigator
sequoia.welch@eeoc.gov
DISMISSAL OF CHARGE
The EEOC has granted your request that the agency issue a Notice of Right to.Sue, where it is
unlikely that EEOC will be able to complete its investigation within 180 days from the date the
charge was filed.
The EEOC is terminating its processing of this charge.
NOTICE OF YOUR RIGHT TO SUE
This is official notice from the EEOC of the dismissal of your charge and of your right to sue. If
you choose to file a lawsuit against the respondent(s) on this charge under federal law in federal
or state court, your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice.
Receipt generally occurs on the date that you (or your representative) view this document You
should keep a record of the date you received this notice. Your right to sue based on this charge
will be lost if you do not file a lawsuit in court within 90 days. (The time limit for filing a lawsuit
based on a claim under state law may be different.)
If you file a lawsuit based on this charge, please sign in to the EEOC Public Portal and upload the
court complaint to charge 451-2024-00505.
On behalf of the Commission,
Norma J. Guzman
Field Director
Cc:
Stacey Sigal
Clean Harbors
42 Longwater Drive
Norwell, MA 02061
Please retain this notice for your records.
Case 2:24-cv-00068
Document 1
Filed on 03/13/24 in TXSD
Page 1 of 3
Appendix A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DIVISION
§
§
§
versus
CIVIL ACTION NO.--------------------------
§
EMPLOYMENT DISCRIMINATION COMPLAINT
This action is brought under Title VH of the Civil Rights Act of 1964 for employment
1
discrimination. Jurisdiction is conferred by Title 42 United States Code, Section § 2000e-5.
2.
YQP.fA—--------------—
The Plaintiff is: '
Address:
(Loews
County of Residence:
3.
(LC
~Vc\Ow^5QA Xnolu-b
The defendant is:
-------5g<VLC£ Li-C
Address:
ftlrx-tOn Tx
Check here if there are additional defendants. List them on a separate sheet of paper with
their complete addresses.
4.
The plaintiff has attached to this complaint a copy of the charges filed on - --------------- -
with the Equal Opportunity Commission.
5.
On the date of Y1 12.9 |s/&3he plaintiff received a Notice of Right to Sue letter
issued by the Equal Employment Opportunity Commission; a copy is attached.
1
25-40018.10
Case 2:24-cv-00068
6.
Document 1
Filed on 03/13/24 in TXSD
Page 2 of 3
Because of the plaintiff s:
(a)
nice
(b)
Ip^ color
(c)
Sex
(d)
Religion
(e)
national orgin,
the defendant has:
(a)
(b)
[p/Z terminated the plaintiff s employment
(c)
failed to promote the plaintiff
(d)
7.
failed to employ the plaintiff
Brother:
_
_
When and how the defendant has discriminated against the plaintiff.
r4O f)Vhe.f
MalAs
(a)
to stop discriminating against the plaintiff
(b)
to employ the plaintiff
(c)
to re-employ the plaintiff
(d)
to promote the plaintiff
2
25-40018.11
Case 2:24-cv-00068
Document 1
Filed on 03/13/24 in TXSD
Page 3 of 3
M'frYwrrls
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(f)
ET the Court grant other relief, including injunctions, damages, costs and
attorney’s fees.
HOP,
(Signature of Plaintiff)
Address:
Cfyn'.a. 9* n_r_<fOK
Telephone:
3
' 25-40018.12
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25-400 T8’.45
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOE HOLBERT,
Plaintiff,
VS.
THOMPSON INDUSTRIAL SERVICE
LLC, et al.,
Defendants.
§
§
§
§
§
§
§
§
August 27, 2024
Nathan Ochsner, Clerk
CIVIL ACTION NO. 2:24-CV-00068
§
MEMORANDUM AND RECOMMENDATION
Plaintiff Joe Holbert is appearing pro se and in forma pauperis in this employment
discrimination action. This case is subject to screening pursuant to the in forma pauperis
statute. 8 U.S.C. §§ 1915(e)(2).1
The undersigned recommends for purposes of screening that all of Plaintiff s claims
be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(n) because
Plaintiff fails to state a claim on which relief may be granted. Additionally, the undersigned
‘Mr. Holbert is a civilian who is not in custody. Nevertheless Section 1915(e)(2)(B) screening applies equally to
prisoner as well as non-prisoner in forma pauperis cases. See Newsome v. Equal Emp’t Opportunity Comm’n, 301
F 3d 227. 231-33 (5th Cir. 2002) (affirming dismissal of non-prisoner claims for frivolity and failure to state a claim
under § 1915(e)(2)(B)(i) and (ii)); Cieszkowska v. Gray Line New York, 295 F.3d 204, 205-206 (2nd Cir. 2002)
(affirming dismissal of in forma pauperis non-prisoner case for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)); See also Benson v. O'Brian, 179 F.3d 1014, (6th Cir. 1999) (complaints in actions not pursued in forma
pauperis are not subject to “screening” under § 1915(e)(2)); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)
(same).
1 / 14
recommends the Court GRANT Defendant Clean Harbors Environmental’s (“Clean
Harbors”) Rule 12(b)(6) Motion to Dismiss. (D.E. 21).
JURISDICTION
I.
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case
has been referred to the undersigned magistrate judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C. § 636.
IL
PROCEDURAL BACKGROUND
On March 13, 2024, Mr. Holbert filed his complaint pro se with an application to
proceed in forma pauperis (IFP).
(D.E. 1, 2:24-mc-00045). United States Magistrate
Judge Mitchel Neurock granted the IFP application on March 14, 2024. (D.E. 2, 2:24-mc-
00045). This case was then given the above captioned civil action number and was
assigned to United States District Judge Nelva Gonzalez Ramos. Judge Ramos referred
the case to the undersigned for case management and all pretrial purposes in accordance
with 28 U.S.C. § 636. (D.E. 3). On April 3, 2024, a status conference was held at which
the undersigned cautioned Plaintiff about deficiencies in his complaint. Plaintiff was
ordered to file an amended complaint on or before May 3, 2024, and was further ordered
to submit summonses to the Clerk of Court for service. (D.E. 6). The Court received
Plaintiffs Amended Complaint on April 26, 2024. (D.E. 7).
On May 28, 2024, Clean Harbors filed its motion to dismiss for improper service
and under Rules 12(B)(5) and 12(B)(6). Plaintiff was ordered to file a response to the
motion to dismiss on or before June 28, 2024. (D.E. 22). On June 10, 2024, Plaintiff filed
2/14
a response to the Clean Harbor’s motion to dismiss. (D.E. 27). Clean Harbors has filed a
reply. (D.E. 29).
On June 10, 2024, a status conference was held at which the undersigned
admonished Plaintiff that Defendant Thompson Industrial Service LLC (“Thompson
Industrial”) had not been served. The undersigned granted Plaintiff an extension and
ordered Plaintiff to complete another summons form with the proper address for service
for Thompson Industrial and to deliver it to the Clerk of Court for service on or before June
24, 2024. The undersigned further cautioned Plaintiff that unserved defendants were
subject to being dismissed for lack of service. (D.E. 28). Further, Plaintiff was also
cautioned that his complaint was still factually deficient and, therefore, he was ordered to
file a more definite statement on or before June 28, 2024. (D.E. 28). Additionally, to better
understand Plaintiffs claims, he was also ordered to file documentation that he timely filed
a charge of discrimination with the Equal Employment Commission. (D.E. 28, p. 2).
After requesting and being granted several extensions (D.E. 30, 31, 32, 33, 34, &
35), Plaintiff filed a second “Added Amendment” (D.E. 36) which the undersigned
construes as Plaintiffs more definite statement. Plaintiffs “Added Amendment” (D.E. 36)
does not comply with the undersigned’s order for a more definite statement. (D.E. 28).
Plaintiff was ordered to list each defendant, explain what each defendant did to violate
Plaintiffs rights and explain why this Court has jurisdiction. (D.E. 28). Instead, Plaintiff
filed photocopies of a legal resource which includes case summaries and general
propositions of law. Additionally, Plaintiff did not file his right to sue letter from the EEOC
3 / 14
or any other documents as ordered. Clean Harbors filed a response to Plaintiff’s “Added
Amendment” noting that Plaintiffs pleading is almost illegible, does not comply with the
Court’s order and is devoid of any facts. (D.E. 37).
III.
Plaintiffs Claims
Plaintiffs claims are difficult to summarize because his pleadings are unorganized
and are not set forth clearly. However, to ensure justice and access to the courts, courts
interpret pleadings ofpro se litigants liberally. See United States v. Robinson, 78 F.3d 172,
174 (5th Cir. 1996) (citing United States v. Santora, 711 F.2d 41,42 (5th Cir. 1983)). Pro
se actions will not be dismissed based on technical pleading defects and should be
construed to ensure such claims are given fair and meaningful consideration despite the
unrepresented litigant’s unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); See also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are
normally accorded more leniency in the construction of their pleadings).
The undersigned has attempted to articulate and analyze Plaintiff s claims in an
impartial manner consistent with providing appropriate leniency to pro se litigants while
at the same time requiring compliance with applicable pleading and screening standards.
To the extent Plaintiff is attempting to raise a claim not specifically addressed by the
undersigned in this Memorandum and Recommendation, Plaintiff has failed to state such
claim with sufficient factual detail or clarity to allow the claim to be identified, understood
or analyzed by the Court.
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Plaintiff is a black male. He brings this action under Title VII of the Civil Rights
Act of 1964 for employment discrimination in connection with his race, color and sex. He
alleges he was wrongfully terminated from his employment. In his original complaint, he
alleges jurisdiction is conferred by Title 42 United States Code, Section 2000e-5. (D.E. 1).
Plaintiff names Thompson Industrial Service LLC as the defendant in his original
complaint. However, in his “Added Amendment” he also names the business entities Clean
Harbors Environmental and Steel Dynamic Inc. as Defendants. (D.E. 7). Plaintiff does not
clearly allege which of these entities was his employer, what the relationship is between
these entities or which entity controlled his work. Plaintiff also names several individuals
as defendants. (D.E. 7).
Plaintiff alleges the discrimination began on January 5, 2023,2 when Plaintiff and
Ernest Mungia had a verbal altercation. The altercation involved Mr. Mungia slapping
Plaintiff on the butt. (D.E. 7, pp. 5-6). On March 15, 2023, Plaintiff and Mr. Mungia were
involved in another verbal altercation regarding a job assignment. This altercation
escalated when Mr. Mungia and Michael Pena, presumably employees of Thompson
Industrial, used racial slurs against Plaintiff, including the “N” word. (D.E. 7, p. 2 & p. 7).
Over the course of the next several weeks Plaintiff and Mr. Mungia continued to have
verbal altercations, although Plaintiff does not allege these altercations involved additional
racial slurs. On August 16, 2023, Mr. Mungia used the “N’ word in front of Plaintiff
referencing a person other than Plaintiff. (D.E. 7, p. 15). Plaintiff reported Mr. Mungia’s
2Plaintiff was a new employee and January 5, 2023, was his first day on the job.
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use of the racial slur to a supervisor on the same day. Plaintiff was later told not to report
to work the next day because there was no work. (D.E. 7, p. 16). The next day, on August
17, 2023, Plaintiff resigned from his employment with Thompson Industrial because of
racial slurs being used in the workplace. (D.E. 7,p. 16). Plaintiff further alleges Thompson
Industrial took no action against the offending employees which is not appropriate even if
Thompson Industrial considers this an isolated incident. (D.E. 7, p. 4).
IV.
ANALYSIS
A. Screening Under 28 U.S.C. §§ 1915(e)(2)(B)
When a party seeks to proceed in forma pauperis the Court shall evaluate the
complaint and dismiss it without service of process if the Court finds the complaint
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis
complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state
a claim upon which relief may be granted or seeks monetary relief from an immune
defendant). “In analyzing the complaint, [the Court] will accept all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188
F 3d 322, 324 (5th Cir. 1999). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Plaintiff must allege sufficient facts in support of its legal conclusions that
give rise to a reasonable inference that Defendants are liable. Id.', Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 556 (2007). The factual allegations must raise Plaintiffs claim
for relief above the level of mere speculation. Twombly, 550 U.S. at 555. As long as the
complaint, taken as a whole, gives rise to a plausible inference of actionable conduct,
Plaintiffs claim should not be dismissed. Id.
B. Wrongful Termination
Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers
“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). To establish a prima facie case of discrimination under Title VII,
the plaintiff must show: (1) he belongs to a protected class; (2) he was qualified for his
position; (3) he suffered an adverse employment action; and (4) he was replaced by
someone outside the protected class, or that other similarly situated persons were treated
more favorably. See Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
In the instant case, Plaintiff has alleged he is a member of a protected class based
on his race, color and sex. While Plaintiff has alleged nothing about his qualifications,
reading Plaintiffs complaint liberally, the undersigned construes Plaintiff s pleading to be
that he was qualified for his position. Whether Plaintiff suffered an adverse employment
action is more difficult because Plaintiff resigned. A resignation can only constitute an
adverse employment action where that resignation amounts to a constructive discharge.
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). “To prove a constructive
discharge, a plaintiff must establish that working conditions were so intolerable that a
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reasonable employee would feel compelled to resign.” Id.
(internal quotation marks
omitted) (quoting Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir. 1997)). “Discrimination
alone, without aggravating factors, is insufficient for a claim of constructive discharge.
Id. In evaluating whether a reasonable employee would feel compelled to resign, a court
must consider whether the plaintiff experienced any demotions; reductions in salary or job
responsibilities; job reassignments to menial or degrading work, or to a younger supervisor;
badgering, harassment, or humiliation calculated to encourage resignation; offers of early
retirement; or continued employment on terms less favorable than the employee s former
status. Id. (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)). Plaintiffs
allegations are disturbing. However, Plaintiff has not alleged sufficient facts to state a
plausible theory of constructive discharge. Plaintiff reported the racial slurs and then
resigned the next day. Plaintiff has not alleged he previously reported the abusive conduct
to management or that he gave management the opportunity to address the abusive
language of his co-workers. Plaintiff has not alleged sufficient facts to state a claim for
constructive discharge. Further, Plaintiff has not alleged he was replaced by someone
outside the protected class or that other similarly situated persons were treated more
favorably. The undersigned respectfully recommends Plaintiffs wrongful termination
claim be dismissed.
C. Hostile Work Environment
While Plaintiff has not used the words “hostile work environment” in his pleadings
and it is unclear whether he raised such a claim before the EEOC, his complaint could be
8/14
construed as an attempt to raise such a claim.
To establish a racially hostile work
environment claim under Title VII, the plaintiff must prove that: (1) he belongs to a
protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was
based on race; (4) the harassment affected a term, condition, or privilege of employment;
and (5) the employer knew or should have known of the harassment in question and failed
to take prompt remedial action. Williams-Boldware v. Denton Cty., 741 F.3d 635, 640 (5th
Cir. 2014). Plaintiff has not alleged any facts to suggest his employer knew or should have
known of the harassment in question. Therefore, to the extent Plaintiff is seeking to raise
a hostile work environment claim, such claim should be dismissed.
D. Sexual Harassment
In Plaintiffs Original Complaint, he checks a box that he was discriminated against
based on sex. (D.E. 1, p. 2). Under Title VII, employers may not discharge or discriminate
against an individual based on the individual’s sex. 42 U.S.C. § 2000e-2(a)(l). The inquiry
is “whether the defendant intentionally discriminated against the plaintiff.” U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). To establish a sexual
harassment claim based on hostile work environment, the employee must show: (1) that he
belongs to a protected class; (2) that he was subject to unwelcome sexual harassment, (3)
that the harassment was based on sex; (4) that the harassment affected a “term, condition,
or privilege” of employment; and (5) that the employer knew or should have known of the
harassment and failed to take prompt remedial action. Harvill v. Westward Comm., L.L. C.,
433 F.3d 428, 434 (5th Cir. 2005). A term, condition, or privilege of employment is
9/14
affected if the harassment is “sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment.” Aryain v. Wal-Mart Stores Tex.
LP, 534 F.3d 473, 479 (5th Cir. 2008).
Plaintiff fails to provide a factual basis in any of his pleadings that would support a
claim of discrimination based on sex. The only fact alleged by Plaintiff relevant to a claim
of sexual harassment is that Mr. Mungia slapped Plaintiff on the butt at the end of a verbal
altercation. (D.E. 7, p. 5). While this single incident of unwelcome conduct is clearly
inappropriate in the workplace, Plaintiff has not alleged any facts that this conduct was
based on sex. Additionally, Plaintiff has not alleged facts to indicate this single incident
affected a “term, condition, or privilege” of employment. A single incident of this nature
does not amount to a hostile work environment.
Finally, Plaintiff fails to allege his
employer knew, or should of known, of the harassment and failed to take corrective action.
Plaintiff has failed to allege a claim of discrimination based on sex, therefore, the
undersigned recommends this claim be dismissed.
E. Defendant Clean Harbors’ Motion to Dismiss
As set forth above, the undersigned recommends Plaintiff s entire case be dismissed
on screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii). However, the Court may also
wish to address Defendant Clean Harbors’ motion to dismiss (D.E. 21), Plaintiff s response
(D.E. 27), and Clean Harbor’s reply (D.E. 29). Clean Harbors, in its well-briefed motion
to dismiss, argues Plaintiffs claims should be dismissed for failure to state a claim under
10/14
Rule 12(b)(6) of the Federal Rules of Civil Procedure.3 A dismissal made pursuant to §
1915(e)(2)(B)(ii) for failure to state a claim is reviewed under the same standard employed
for a Rule 12(b)(6) motion to dismiss. See Newsome, 301 F.3d at 231; See DeMoss v. Crain,
636 F.3d 145, 152 (5th Cir. 2011). Clean Harbors’ motion to dismiss raises the same, and
additional, reasons for dismissal as articulated by the undersigned in the analysis above.
Plaintiffs response to the motion fails to address any of the grounds for dismissal raised
by Clean Harbors. Additionally, Plaintiff has been given an opportunity to amend his
complaint and was ordered to file a more definite statement. Plaintiff was also cautioned
that his complaint was deficient for factual insufficiency and was granted several
extensions to comply with the undersigned’s order. Finally, Defendant Clean Harbors
motion to dismiss was filed on May 28, 2024 (D.E.21) and Plaintiff had over two months
to consider the reasons for dismissal set forth in the motion before Plaintiff filed his Added
Amendment.” Plaintiff has pleaded his best case. While acknowledging the use of racial
slurs is unacceptable and should not be tolerated by any employer, the facts alleged by
Plaintiff do not amount to a plausible claim under Title VII. Therefore, the undersigned
recommends the Court grant Defendant Clean Harbors’ Motion to Dismiss for failure to
state a claim in accordance with Rule 12(b)(6).
F. Co-worker Defendants
In Plaintiff s “Added Amendment” he lists the following persons: Louis Garcia,
Michael Pena, James Cabler, Ernest Mungia, George Gomez, David Wiggians, Montana
3Clean Harbors also moves to dismiss pursuant to Rule 12(b)(5) for lack of service. (D.E. 21. p. 6). However, it
appears Clean Harbors has been served. (D.E. 25).
11 / 14
Wiggians, and Matthew (LNU). (D.E. 7). The undersigned ordered Plaintiff to file a More
Definite Statement in which he fists each defendant, explains what the defendant did to
violate Plaintiffs rights and explain why this Court has jurisdiction. (D.E. 28, p. 2).
Plaintiff has not identified clearly who these persons are or why is suing them. It is clear
to the undersigned that Mr. Mungia is a co-worker who Plaintiff alleges used racial slurs
against Plaintiff. It is probable that the other persons are also co-workers of Plaintiff or
supervisors who worked with Plaintiff. However, Plaintiff has not complied with the
Court’s Order to explain who they are or why Plaintiff is attempting to sue them.
Additionally, the undersigned cautioned Plaintiff that his claims against his co-workers
were flawed and are subject to dismissal.
Plaintiff has listed multiple individuals, along with several businesses, in his
Amended Complaint. It is unclear as to whether Plaintiff is suing the
individual Defendants in their individual and/or official capacities.
“According to the Fifth Circuit, only employers, not individuals acting m
their individual capacity who do not otherwise meet the definition of
employers, can be liable under Title VII.” White v. Royal American Mgmt.,
No. 4:23-cv-792-P, 2024 WL 2805926, at *3 (N.D. Tex. May 15, 2024)
(Dismissing individual defendants as there is no individual liability under
Title VII and Plaintiff cannot not sue both her employer and individual
defendants in their official capacities) (citations omitted).
(D.E. 28, p. 2). Plaintiff has not alleged any facts to raise a plausible claim that any of the
individual defendants are liable to him under Title VIE
Therefore, the undersigned
recommends Plaintiffs claims against Louis Garcia, Michael Pena, James Cabler, Ernest
Mungia, George Gomez, David Wiggians, Montana Wiggians and Matthew (LNU) be
dismissed.
12/14
V.
RECOMMENDTION
The undersigned recommends for purposes of screening that all of Plaintiff s claims
be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) because
Plaintiff fails to state a claim on which relief may be granted. Additionally, the undersigned
recommends the Court GRANT Defendant Clean Harbors’ Rule 12(b)(6) Motion to
Dismiss. (D.E. 21).
ORDERED on August 27, 2024.
7
Jason B? Libby
United States Magistrate Judge
13 / 14
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. §
636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General
Order No. 2002-13, United States District Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendations in a Magistrate Judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 7,9 F.3d 1415 (5th Cir. 1996) (enbanc).
14/14
Case: 25-40018
Document: 44-1
Page: 1
Date Filed: 11/24/2025
Wlniteb States Court of Appeals
for tlje Jfiftl) Circuit
------------- -------------------- - -----
United States Court of Appeals
Fifth Circuit
No. 25-40018
November 24, 2025
FILED
Lyle W. Cayce
Clerk
Joe Holbert,
Plaintiff—Appellant,
versus
Thompson Industrial Service, L.L.C.; Clean Harbors
Environmental; Steel Dynamics, Incorporated, Sinton
Division-, Louis Garcia; Michael Pena; James Cabler;
Ernest Mungia; George Gomez; David Wiggians;
Montana Wiggians; Matthew,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:24-CV-68
Before Jones, Duncan, and douglas, Circuit uudges.
Per Curiam:*
Appellant Joe Holbert, proceeding pro se, appeals the dismissal of his
employment discrimination and hostile work environment claims under Title
* This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 25-40018
Page: 2
Document: 44-1
Date Filed: 11/24/2025
No. 25-40018
VII.1 The district court dismissed Appellant’s claims for failure to state a
claim under 28 U.S.C. § 1915 and Rule 12(b)(6). We AFFIRM.
Appellee argues that Appellant did not present any issue on appeal
contesting the merits of the dismissal, and has therefore waived review. Our
court liberally construes briefs of pro se litigants, but pro se parties must still
brief the issues and reasonably comply with Federal Rule of Appellate Proce
dure 28. Hodge v. E. Baton Rouge Par. Sheriffs Off, 394 F. App'x 124 (5th
Cir. 2010). However, we have declined to dismiss an appeal on waiver alone
when the plaintiff’s brief contains some assertion of trial court error. AbdulAlim Amin v. Universal Life Ins. Co. ofMemphis, Tenn., 706 F.2d 638, 640 n.l
(5th Cir. 1983); see also Grantv. Cuellar, 59 F.3d 523,525 (5th Cir. 1995) (not
ing we have “considered a pro ^appellant's brief despite its technical non-
compliance with the Rules of Civil Procedure when it at least argued some er
ror on the part of the district court”).
Nevertheless, dismissal of the Appellant’s claims was still proper. We
review the dismissal of a claim under 28 U.S.C. § 1915(e)(2)(B) de novo, ap
plying the same standards used for a Rule 12(b)(6) dismissal. Legate v. Liv
ingston, 822 F.3d 207 (5th Cir. 2016). Complaints that contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face’” must survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662
(2009) (quoting BellAtl. Corp. v. Twombly 550 U.S. 544 (2007)). In order for
a claim to have facial plausibility, the plaintiff must plead factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the alleged misconduct. Id.
1 Appellant uses “Halbert” throughout the briefing and notes that “Holbert” is an
alternative spelling.
2
Case: 25-40018
Document: 44-1
Page: 3
Date Filed: 11/24/2025
No. 25-40018
Here, Appellant raises factual allegations for the first time on appeal
despite being offered multiple opportunities to support his claim through an
amended complaint and more definite statement or in response to the motion
to dismiss. Holbert’s “added amendment” filed before the district court
failed to allege key elements of each of his claims. Accordingly, dismissal for
failure to state a claim was proper.
Appellant also raises two discovery issues on appeal. Holbert argues
that the district court erred bv not assisting him in preserving and subpoena
ing video evidence. Holbert also argues that the district court erred by not
assisting him with the subpoenaing of certain witnesses. However, Holbert’s
argument that the district court erred by dismissing his claims without assist
ing him in discovery is unavailing because 28 U.S.C. § 1915(e)(2) permits a
district court to dismiss the case “at any time” if it fails to state a claim.
Accordingly, the judgment of the district court is AFFIRMED.
3
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
LYLE W. CAYCE
CLERK
December 15, 2025
Mr. Joe Holbert
3662 Sturgis West Point Road
Sturgis, MS 39769
No. 25-40018
Holbert v. Thompson Industrial Svc
USDC No. 2:24-CV-68
Dear Mr. Holbert,
We received your motion for a 30 day extension to file a
rehearing and a petition for certiorari. You case is closed.
The time for filing a petition for rehearing under Fed.- R. App. P.
40 has expired.
You have 90 days to file a petition for certiorari with the U. ■
Supreme Court from the date of this court's decision or the demal
of a petition for rehearing.
Sincerely,
LYLE W. CAYCE, CL
By:_____ _______________
RoesKawn Johnson, Deputy Clerk
cc:
Mr. Jeffrey Shannon Mayes
Legal Counsel:
•
Jeffery Shannon Mays, Lead Defense Attorney, from the prominent national labor and
employment law firm Ogletree, Deakins, Nash, Smoak, and Stewart, representing Clean
Harbors Environmental and Thompson Industrial.
Judicial Officers: The case was overseen and reviewed by a succession of federal magistrates,
district judges, and appellant panels.
•
•
•
•
Judge Nelva Gonzales Ramos, the United States District Judge for the Southern District
of Texas, who signed the initial dismissal,
Magistrate Judge Jason B. Libby, the federal United States Magistrate Judge, who
originally handles the early motion hearing and preliminary scheduling,
The Fifth Circuit Panel composed of three federal appellate judges who issued the final
November 2025 opinion noted by dockets as Judges: EHJ, SKD, and DMD.
Justice Samuel Alito, the Associate Justice of the U.S. Supreme Court responsible for the
Fifth Circuit territory who reviewed Holbert’s administration extension motion.
1
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.