DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 1 of 10 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

WILLIE LEE HAVMMERI, § 

 § 

 Plaintiff, § 

 § 

v. § Civil Action No. 3:22-cv-00594-E-BT 

 § 

METHODIST HEALTH SYSTEMS, § 

DALLAS, § 

 § 

 Defendant. § 

DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT 

Defendant Methodist Hospitals of Dallas d/b/a Methodist Health System (“Methodist”), 

incorrectly named as “Methodist Health Systems, Dallas,” files its Response to Plaintiff’s 

Motion for Summary Judgement and Brief in Support and states: 

OVERVIEW AND PROCEDURAL HISTORY 

1. Pro se Plaintiff Willie Lee HavMmeri (“Plaintiff”) filed suit against Methodist on 

March 14, 2022 (doc. 3). Methodist timely filed a Motion for Definite Statement (doc. 21), 

which the Court granted on October 7, 2022, ordering Plaintiff to file an amended complaint in 

compliance with the Court’s instructions by October 31, 2022 (doc. 23). 

2. On October 27, 2022, Plaintiff filed an instrument titled “More Definite 

Statement” (doc. 24), which he later confirmed was his attempt to file an amended complaint. 

Methodist filed its Motion to Dismiss and Brief in Support (“Motion to Dismiss”) on November 

10, 2022 (doc. 33), in which it asserted that the facts and allegations in the “More Definite 

Statement” failure to state a claim upon which relief may be granted. The Motion to Dismiss is 

fully briefed and ripe for determination. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 2 of 10 

3. Plaintiff filed his Motion for Summary Judgment (“Motion”) (doc. 35) on 

November 14, 2022. The nature of relief sought by Plaintiff in the Motion is less than clear. In it, 

Plaintiff makes clear that he is “not seeking Judgement on the Case of Discrimination & 

Retaliation,” and that the Motion “only is dealing with” a letter Methodist sent to Plaintiff 

informing him of its decision to separate him from employment for cause. On November 22, 

2022, Plaintiff filed his “Motion of Summary Judgment Support Document” (doc. 42), which 

appears to be an attempt to reiterate the arguments already made in the Motion. 

SUMMARY OF THE ARGUMENT 

4. The Court should deny the Motion as both procedurally deficient and 

substantively meritless. With respect to procedure, the Motion is premature, insofar as it was 

filed while the Motion to Dismiss remains pending, and therefore before Methodist has been 

required to answer the now-restyled Amended Complaint (doc. 46). Summary judgment is never 

appropriate before entry of a scheduling order, something that will not occur unless and until the 

Court denies the Motion to Dismiss, which it should not do. 

5. Substantively, the Court should deny the Motion because Plaintiff has not 

satisfied his burden, as the party seeking judgment on his own claims for affirmative relief, to 

prove each element of his cause or causes of action as a matter of law. Plaintiff has not identified 

the causes of action at issue, much less articulated the essential elements or introduced evidence 

(as opposed to argument) proving each element as a matter of law. Most of Plaintiff’s proffered 

“evidence” is inadmissible, but Plaintiff’s Exhibit 6, in which he admits that Methodist’s reasons 

for terminating his employment were justified, should be considered and should leave no doubt 

in the Court’s mind that the Motion must be denied. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 3 of 10 

ARGUMENT AND AUTHORITY 

The Court should deny the Motion for each and all of the following reasons: 

A. The Motion is premature. 

6. Plaintiff accurately cites Federal Rule of Civil Procedure 56, which provides that 

“unless a different time is set by local rule or the court orders otherwise, a party may file a 

motion for summary judgment at any time until 30 days after the close of all discovery.” Fed. R. 

Civ. P. 56(b). However, in most instances, motions for summary judgment filed by plaintiffs at 

the very outset of litigation are premature and subject to denial for that reason alone. For 

example, in a case involving a pro se plaintiff and voluminous filings, former Chief Judge Solis 

denied a plaintiff’s motion for partial summary judgment “as premature given (1) pending 

motions to stay discovery, motions to dismiss, and motions to strike and (2) a lack of a planning 

conference under Fed. R. Civ. P. 26(f) or a scheduling order in this case.” Griffin v. Am. Zurich 

Ins., No. 14-CV-2470-P, 2015 WL 12748322, at *2 (N.D. Tex. Mar. 20, 2015).1 See, e.g., 

Sweeney v. Texas State Univ., No. A-14-CV-910 LY, 2015 WL 2345086, at *4 (W.D. Tex. May 

14, 2015) (pro se plaintiff’s motion for summary judgment was “plainly premature” in light of a 

pending motion to dismiss and because the court has not yet entered a discovery plan or a 

scheduling order); Kelley v. Gustafson, No. 5:13-CV-27, 2014 WL 316587, at *1 (E.D. Tex. Jan. 

28, 2014) (denying as premature pro se plaintiff’s motion for partial summary judgment because 

the court had not set the case for a scheduling conference in light of a pending motion to 

dismiss). 

 

1

 When the pro se plaintiff thereafter filed another motion for partial summary judgment, the Court summarily 

denied it and warned the plaintiff that until the court had “set a schedule for filing any motion for summary 

judgment . . . it will summarily deny any filed motion,” and that “filing another premature motion for summary 

judgment or otherwise abusing the litigation process may subject [plaintiff] to sanctions up to and including 

monetary sanctions payable to the Court, filing restrictions, or other appropriate sanctions as warranted by the 

circumstances.” Id.

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 4 of 10 

7. The present case warrants application of this doctrine. Plaintiff filed a complaint 

full of vagaries but impermissibly light on facts and legal theories of recovery. Methodist filed its 

motion for a more definite statement. The Court permitted Plaintiff to replead and gave him 

instructions for how to do so. Upon receiving Plaintiff’s attempted re-pleading (i.e., the “More 

Definite Statement”), Methodist filed its Motion to Dismiss, in which it contends that the Court 

can and should dismiss this case based solely on the face of Plaintiff’s pleadings. On the same 

day he filed his first of multiple responses to the Motion to Dismiss, Plaintiff filed the present 

Motion. It would make no sense for the Court to grant or even consider the Motion before 

resolving the Motion to Dismiss, or before affording Methodist the opportunity to conduct 

discovery, which Plaintiff has invited but which is by rule premature in the absence of a 

scheduling order. The Court should deny the Motion as premature. 

B. The Court should deny the Motion because Plaintiff has utterly failed to carry his 

burden of proof.

8. Inasmuch as Plaintiff will have the burden of proof at trial on whatever statutory 

or common-law claims he is attempting to assert, to be entitled to summary judgment, Plaintiff 

“must establish beyond peradventure all of the essential elements of the claim or defense.” Bank 

One, Tex. N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (Tex. 1995) (quoting 

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). That is, with respect to each 

element, Plaintiff “must show by affidavit or other evidentiary materials that there is no genuine 

dispute as to any fact material to resolution of the motion.” Fontenot, 780 F.2d at 1194. The 

“beyond peradventure standard” imposes a “heavy burden” on the movant. Continental Cas. Co. 

v. St. Paul Fire & Marine Ins. Co., No. 3:04-CV-1866-D, 2007 WL 2403656 at *10 (N.D. Tex. 

Aug. 23, 2007). See, e.g., Guzman v. Allstate Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021) 

(reaffirming “beyond peradventure” standard). 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 5 of 10 

9. As best as Methodist is able to discern (as explained in more detail in Methodist’s 

Reply in Support of its Motion to Dismiss (doc. 45), filed on November 28, 2022), Plaintiff may 

be attempting to assert a cause of action under the whistleblower protections set forth in Section 

161.134 of the Texas Health & Safety Code. The elements of a retaliatory discharge claim under 

this Section are: “(1) the plaintiff was an employee of a hospital, mental health facility, or 

treatment facility; (2) the plaintiff reported a violation of law; (3) the plaintiff reported the 

violation to a supervisor, an administrator, a state regulatory agency, or a law enforcement 

agency; (4) the report was made in good faith; and (5) the plaintiff was suspended, terminated, 

disciplined or otherwise discriminated against by the covered entity.” Janaki v. C.H. Wilkinson 

Physician Network, 624 S.W.3d 623, 628-629 (Tex. App.—Corpus Christi 2021, no pet.). 

Plaintiff has not attempted to produce evidence in support of each of these elements or to explain 

how his “evidence” could allow the Court to conclude that he has proven all five elements as a 

matter of law. The Court should deny the Motion with respect to Plaintiff’s claims, if any, being 

asserted under the Health & Safety Code. 

10. Plaintiff has also made reference in the “More Definite Statement” to the Fair 

Labor Standards Act (the “FLSA”). As the Court is aware, the FLSA provides several types of 

private rights of action, and if it is unclear whether Plaintiff intends to seek relief under the 

FLSA, it is certainly unclear in what way Plaintiff contends Methodist allegedly violated the 

FLSA. If and to the extent Plaintiff intends to seek relief under the FLSA’s anti-retaliation 

provision, simply to make out a prima facie case, Plaintiff must prove “(1) participation in a 

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

between the activity and the adverse action.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 

 

2

 “Protected activities” under the FLSA may include “informal, internal complaints” as well as agency filings, but 

they must involve complaints about unpaid wages, overtime pay, or other matters regulated by the FLSA. Hagan, 

529 F.3d at 626. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 6 of 10 

624 (5th Cir. 2008). In the Motion, Plaintiff has not alleged that he engaged in “protected 

activity” under the FLSA, or that any causal link existed between that protected activity and 

Methodist’s decision to separate him from employment, much less introduced admissible 

evidence proving “beyond peradventure” that he engaged in protected activity and that a causal 

nexus exists. The Court should deny the Motion with respect to any FLSA claims Plaintiff is 

attempting to assert. 

11. Plaintiff also seems to be asserting a cause of action for sex discrimination or 

under Title VII and the analogous provisions of the Texas Labor Code. The elements are well 

established.3 Simply put, Plaintiff must prove that Methodist discharged or otherwise 

intentionally discriminated against him because of his sex. See, e.g., Bostock v. Clayton County, 

Ga., --- U.S. ---, 140 S.Ct. 1731, 1739-1740 (2020). The discrimination must take the form of an 

“ultimate employment decision[ ] such as hiring, granting leave, discharging, promoting, or 

compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). Plaintiff has not 

established these facts “beyond peradventure,” and indeed has not established these facts at all. 

Even if the Court were to consider the unauthenticated and inadmissible attachments to the 

Motion as evidence, they do not prove sex discrimination. If anything, Plaintiff’s evidence, 

which includes Methodist’s letter explaining the neutral and non-discriminatory reason for its 

personnel action, serves to create a fact question rather than settle one. 

12. The same is true for Plaintiff’s final (apparent) cause of action, for retaliatory 

termination under Title VII or the Texas Labor Code. To be entitled to summary judgment, 

Plaintiff must introduce evidence establishing “beyond peradventure” that he engaged in 

 

3

 The same standard applies under Title VII and the Texas Labor Code. Shackelford v. Deloitte & Touches, LLP, 

190 F.3d 398, 404 n. 2 (5th Cir. 1999) (holding that law governing claims under the TCHRA, Texas Labor Code § 

21.009, et seq., and Title VII is identical). The familiar McDonnell Douglas burden-shifting standard has no 

application here. It is applied when a defendant seeks summary judgment, and requires plaintiff to make out a prima 

facie case of discrimination and at least create a fact question regarding pretext before being allowed to proceed to 

trial. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 7 of 10 

protected activity when he “opposed any practice made an unlawful employment practice by this 

subchapter, or because he has made a charge, testified, assisted, or participated in any manner in 

any investigation, proceeding, or hearing under this subchapter,” and that Methodist took an 

adverse employment action against him because of that protected activity. 42 U.S.C. § 2000e3(a). Once again, Plaintiff has failed to sustain this burden. He has not proven that he engaged in 

statutorily protected activity, and he has not proven that Methodist took adverse action against 

him because of any such protected activity. By directing the Court’s attention to Methodist’s 

termination letter, in which it explained that it terminated Plaintiff’s employment for stealing 

time, Plaintiff has done enough on his own to warrant denial of the Motion on any retaliation 

claim Plaintiff intends to pursue. The Court should deny the Motion in this and every other 

respect. 

C. Plaintiff’s Exhibit 6 Proves that Fact Questions Exist. 

13. Plaintiff’s Exhibit 6 is a copy of the Disciplinary Action Form Methodist issued to 

Plaintiff on April 10, 2020. [Doc. 35-6 at p. 5.] In it, Methodist explained to Plaintiff that it had 

made the decision to separate him from employment based on its determination that he had been 

“stealing time from Methodist by not clocking out when leaving campus going to his home and 

the Folsom Gym to work out.” Id. Upon receiving the document, Plaintiff wrote “while I don’t 

agree that I ever left the campus while at work, I understand that based on the narrative of using 

the *Hospital Gym* I am found to be wrong[.]” Id. That is, in the only admissible exhibit 

Plaintiff attached to the Motion, he admitted that Methodist’s decision to separate him from 

employment based on using the gym while on the clock was justifiable. Those words alone, 

written by Plaintiff at the time of his termination and presented to the Court by him, preclude 

summary judgment on any of Plaintiff’s causes of action and theories of liability. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

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54047516.v1-OGLETREE 

D. Plaintiff’s Remaining Evidence is Inadmissible. 

14. Methodist objects to the remainder of Plaintiff’s proffered evidence. Exhibit 1 is 

an amalgamation of several documents, including notations seemingly made by Plaintiff, and not 

something that could ever be put into evidence at trial. [Doc. 35-1 at p. 1.] “Once it is time for a 

court to make a ruling on summary judgment, its grant or denial turns on whether there is a 

genuine dispute of material fact based on the evidence before the court – not evidence that might 

be developed later. It is true that the evidence offered for summary judgment purposes need not 

yet be in a form admissible at trial, but the party offering the evidence needs to be able to 

demonstrate that it can be put into an admissible form by the time of trial.” In re Deepwater 

Horizon, 48 F.4th 378, 384-385 (5th Cir. 2022). Plaintiff has not. 

15. Exhibit 2 appears to be a screenshot of a photograph posted on Plaintiff’s 

Facebook page along with images that Plaintiff seems to believe prove the date and time he took 

the photograph. Plaintiff has not offered any testimony purporting to authenticate Exhibit 2. 

Standing on its own without a sponsoring witness, Exhibit 2 is not competent summary judgment 

evidence. The same is true for Exhibit 3, which Plaintiff claims in the summary judgment 

narrative are texts between himself and one of his coworkers, which appear to be dated August 

14, 2018.

4

 Without a sponsoring affidavit or other testimony proving that it is what it appears to 

be, Exhibit 3 is likewise inadmissible. 

16. Plaintiff claims that his Exhibit 5 is part of the TWC’s file regarding his claim for 

unemployment benefits. Methodist objects to the lack of completeness as well as the lack of 

authenticity. Methodist does not dispute that Exhibit 4 is an excerpt from one of its policies, but 

objects to Plaintiff’s attempt to introduce only a portion of it. Finally, Methodist objects to the 

statements made in the body of the Motion (e.g., Plaintiff’s claim that he “showed the actual 

 

4

 As such, they are proof of nothing germane even if they are authentic. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 9 of 10 

picture” during his termination meeting) that are unsupported by evidence, whether in the form 

of sworn testimony or otherwise. Plaintiff’s factual arguments do not entitle him to summary 

judgment. 

E. Methodist’s Failure to Answer is of no Moment. 

17. Plaintiff places great but mistaken emphasis on the fact that Methodist has not 

filed an answer denying that it acted with unlawful animus when it separated him from 

employment. As the Court is aware but Plaintiff perhaps is not, Methodist is not required to file 

a responsive pleading unless and until the Court denies its pending Motion to Dismiss under 

Rule 12(b)(6) for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 

12(b) (defenses must be asserted in a responsive pleading if one is required, but the defense of 

failure to state a claim (among others) may be asserted by motion, so long as that motion is filed 

before responsive pleadings are due). Serving a motion to dismiss under Rule 12 tolls a 

defendant’s deadline to file a responsive pleading until 14 days after the Court denies said 

motion. Id. Plaintiff may rest assured that Methodist denies all of his claims and causes of action. 

Should the Court find that Plaintiff has done enough to state a viable claim, Methodist will 

answer in due course. 

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DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Page 10 of 10 

CONCLUSION AND REQUEST FOR RELIEF 

For the foregoing reasons, Methodist respectfully requests that the Court deny the 

Motion; grant its pending Motion to Dismiss; enter a take-nothing judgment for Methodist and 

against Plaintiff on each of Plaintiff’s claims, causes of action, and requests for relief, dismissing 

the same with prejudice; award Methodist its costs of court; and grant all other relief, general or 

special, at law or in equity, to which Methodist may be justly entitled. 

Respectfully submitted,

By: /s/ John M. Barcus 

 John M. Barcus 

 Texas State Bar No. 24036185 

 john.barcus@ogletree.com 

 Shaina E. Hicks 

 Admitted to the NDTX 

 shaina.hicks@ogletree.com 

OGLETREE, DEAKINS, NASH, SMOAK &

STEWART, P.C. 

Preston Commons West 

8117 Preston Road, Suite 500 

Dallas, Texas 75225 

214.987.3800 (Phone) 

214.987.3927 (Fax) 

ATTORNEYS FOR DEFENDANT 

CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing instrument was filed using the Court’s ECF 

system on December 5, 2022, which will give notice to all parties registered to receive electronic 

service, including pro se Plaintiff Willie Lee HavMmeri. 

 /s/ John M. Barcus 

John M. Barcus 

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