1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIE LEE HAVMMERI, § 

Plaintiff, § 

§ 

v. § Case No. 3:22-cv-00594-E-BT

§ 

METHODIST HEALTH SYSTEM OF § 

DALLAS, § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Willie Lee HavMmeri filed this pro se employment discrimination 

and retaliation suit against his former employer Defendant Methodist Health 

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

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

the Court recommends granting Methodist’s motion to dismiss.

Background

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

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

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

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

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

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

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

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

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Am. Compl. 1. According to HavMmeri, this employee was his supervisor’s close 

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

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

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

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

disrespected.” Am. Compl. 2. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Am. Compl., Ex. 1. 

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HavMmeri also described in his email other incidents of alleged 

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

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

complete a task for her. Am. Compl., Ex. 1. He further stated yet another coworker 

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

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

break—every day.” Am. Compl., Ex. 1. And, he complained the supervisor herself

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

Am. Compl., Ex. 1. HavMmeri concluded the email by listing several rhetorical 

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

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

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

100 pounds lighter than me, wagging my finger and shouting 

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

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

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

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

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

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

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

deemed ‘toxic’?

2 Am. Compl., Ex. 1.

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

to adverse rulings on miscellaneous motions and expressing frustration over the 

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

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

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

and HavMmeri playing the role of the hospital administrator who apparently 

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

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

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

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

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

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

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

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

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

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

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

because of the “grievance.” EEOC Charge 2.

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

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

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

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

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

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

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

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

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

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

an update on your condition.” Ltr. 3. 

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with the parties involved, investigate [his] claims of 3 workers working in a 2-

person work space, and wrap up her investigation.” Am. Compl. 6. HavMmeri sent 

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

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

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

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

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

confrontation.” Am. Compl. 8.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

work. Am. Compl., Ex. 1.

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

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

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

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

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

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

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

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

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

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

Compl., Ex. 6.

On October 8, HavMmeri filed a Charge of Discrimination4 with the EEOC

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

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

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

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

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

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

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

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

was “Willie Lee Harris.” See Mot. Dismiss, Ex. 1. According to HavMmeri he legally 

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

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

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

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

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

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

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

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

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

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

constitutes gender discrimination because: 

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

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

termination, I worked at 3 different Methodist Hospitals 

simultaneously to get my allotted full-time hours. 

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

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

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

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

additional hours. 

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

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

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

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

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

Act, 42 U.S.C. § 2000e-2(a)(1) & § 2000e-3(a). See Am. Compl. 4–5; Mot. Dismiss 

4. 

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

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

Response5 (ECR No. 34), and Methodist filed a Reply (ECF No. 45). Thus, the 

Motion is ripe for consideration.

Rule 41(b)

Methodist initially argues HavMmeri’s case should be dismissed pursuant 

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

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

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

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

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

verified (or signed) amended complaint by October 31, 2022.”) (ECF No. 23). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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However, as Methodist recognizes, the Court must liberally construe 

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

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

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

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

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

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

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

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

complaint. Hand v. Berlusconi, 2022 WL 16556811, at *1 (S.D. Tex. Oct. 31, 2022)

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

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

F.2d 41, 42 n.1 (5th Cir. 1983); then citing Andrews v. United States, 373 U.S. 334, 

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

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

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

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

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

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

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

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

41(b). 

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Rule 12(b)(6) 

Legal Standard

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

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

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

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

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

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

therefore, a plaintiff’s complaint must contain sufficient factual matter to state a 

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

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

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

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

U.S. at 555). 

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

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

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

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

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

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

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

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

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

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

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

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

550 U.S. at 557).

Analysis

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

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

Methodist’s arguments in turn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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support dismissal under Rule 12(b)(6) where it is evident from the plaintiff’s 

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

tolling or the like.”).

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

mental health facility, or treatment facility” from “suspend[ing] or terminat[ing] 

the employment of or discipline or otherwise discriminat[ing] against an employee 

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

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

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

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

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

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

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

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

161.134(h). 

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

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

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

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

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

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

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

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

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

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

did not file his lawsuit within the applicable limitations period. 

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

administrative remedies. 

Similarly, Methodist argues that HavMmeri failed to timely exhaust his 

administrative remedies under the TCHRA. To exhaust their administrative 

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

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

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

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

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

In Texas, which provides a state administrative mechanism to address 

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

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

alleged. See 42 U.S.C. § 2000e-5(e)(1); Griffin v. City of Dallas, 26 F.3d 610, 612–

13 (5th Cir. 1994). And a complaint under the TCHRA “must be filed not later than 

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

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

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

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

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

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

§ 21.202(a)‘s 180-day] time period does not expand a plaintiff’s time for bringing 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Equitable tolling applies to a plaintiff’s deadline for filing an administrative

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

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

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

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

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

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

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

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

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

administrative requirements.

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

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

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

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

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

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

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

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

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

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

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

are unavailing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EEOC via fax. 

The Court should therefore grant Methodist’s motion and dismiss 

HavMmeri’s claim under the TCHRA. 

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

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

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

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

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

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

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

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

Instead, HavMmeri argued the Court should reconsider his motions for 

miscellaneous relief. 

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

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

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

Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006)); see also Scales 

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

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

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

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

Tex. Jan. 29, 2021); Peña v. PHH Mortg. Corp., 2022 WL 398399, at *2 (N.D. Tex. 

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

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

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

under the FLSA.

The FLSA prohibits an employer from “discharg[ing] or in any other manner 

discriminat[ing] against any employee because such employee has filed any 

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

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

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

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

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

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

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

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

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

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

abstract grumblings or vague expressions of discontent are actionable as 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discrimination under Title VII. 

Methodist also argues that HavMmeri fails to state a claim for 

discrimination under Title VII, which prohibits employers from “fail[ing] or 

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

. . discriminat[ing] 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)(1). At the motion to 

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

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

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

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

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

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

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

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

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

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

360 (5th Cir. 2004)).

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

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

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

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

consistently held that an adverse employment action is an ultimate employment 

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

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

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

employment decisions are ultimate employment decisions such as hiring, granting 

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

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

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

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

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

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

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

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

terminated—which constitutes an adverse employment action. However, 

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

separate him from employment was discriminatory rather than retaliatory in 

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

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

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

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

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

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

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

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

777 F.2d 243, 246–47 (5th Cir. 1985). (dismissing plaintiff’s gender discrimination 

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

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

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

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

were based on [plaintiff]’s race or national origin or that [defendant] treated 

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

Furthermore, the other conduct of which HavMmeri complains does not 

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

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

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

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

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

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

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

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

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

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

at three different Methodist Hospitals “simultaneously” to get his “allotted fulltime hours.” Am. Compl. 2. Importantly, however, HavMmeri does not allege that 

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

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

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

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

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

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

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

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

VII.”). 

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

discrimination under Title VII.

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

Title VII.

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

antiretaliation provision prohibits an employer from discriminating against any 

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

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

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

subchapter.” 42 U.S.C. § 2000e-3(a).

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

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

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

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

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

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

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

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

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

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

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

2017) (per curiam) (quoting Raj, 714 F.3d at 331) (citing Chhim, 836 F.3d at 470–

71).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

people working in the cubicle.

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

Opportunity to Amend

HavMmeri’s claims should be dismissed with prejudice without an 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

reviewed all 200 pages filed by HavMmeri. 

HavMmeri has pleaded his best case and any further amendments to 

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

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

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

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

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

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

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

Conclusion

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

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

prejudice. 

Signed: June 16, 2023.

_______________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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

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

recommendation must file specific written objections within 14 days after being 

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

an objection must identify the specific finding or recommendation to which 

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

magistrate judge’s report and recommendation where the disputed determination 

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

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

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

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

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

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

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