IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION 

JASON WALTERS 

Plaintiff 

 

vs. CIVIL ACTION 3:22-cv-01840-C

 JURY REQUESTED

EXEL, INC. D/B/A 

DHL SUPPLY CHAIN

Defendant

PLAINTIFF’S BRIEF IN REPLY IN OPPOSITION TO DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT

Respectfully submitted

_/S/________________

 Bob Whitehurst

State Bar No. 21358100

Bob Whitehurst

5380 Old Bullard Road

 Suite 600, #363

Tyler, Texas 75703

(903)593-5588

(214)853-9382

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was

served upon the attorney's of record in accordance with the applicable Rules of Civil Procedure

on this 25th day of March, 2024

Bob Whitehurst

Bob Whitehurst

Annie Lau

Texas Bar No. 24057723

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550

Dallas, Texas 75201

Telephone: (214) 220-9100

Facsimile: (214) 220-9122

alau@fisherphillips.com

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 1 of 35 PageID 1223
TABLE OF CONTENTS

1. Documents not supplemented........................................................................1

2. Names of person.............................................................................................3

3. Texts/emails from Eartis Shaw........................................................................3

4. Racist Comment.............................................................................................4

5. Does not dispute.............................................................................................4

6. Must Consider.................................................................................................6

7. Discretion........................................................................................................7

8. Judicial Notice...............................................................................................8

9. Damaages.......................................................................................................8

10. Statement.......................................................................................................9

11. Age discrimination.......................................................................................10

12. Cobra Notice................................................................................................11

13. Conclusion..................................................................................................11

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 2 of 35 PageID 1224
TABLE OF AUTHORITIES

Cases

Aikens v. Cent. Oregon Truck Co., Inc., No. 4:20-CV-00567, 2021 WL 4312712, at *4 (E.D.

Tex. Sept. 22, 2021).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)..............................................9

Burgos v. Sw. Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994.................................9, 10

Colonial Leasing of New England, Inc. v. Logistics Control Int'l, 770 F.2d 479 (5th Cir.

1985)....................................................................................................................................8

Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 421 (5th Cir. 2007) ................................11

DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005) ..........................................10

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc........9

.

Everett Fin., Inc. v. Primary Residential Mortg., Inc., 

No. 3:14-cv-1028-D, 2017 WL 784766, at *2 (N.D. Tex. Feb. 28, 2017). ......... .............2

Fuller v. CIG Fin., LLC, No. 3:22-cv-1289-D, 2023 WL 8482889,

 at *2-*3 (N.D. Tex. Dec. 7, 2023) ....................................................................................2

Hager v. DBG Partners, Inc. 903 F. 3d 460, 468 (5th

 Cir. 2018). ..................................11

Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 

579 F.3d 546, 552 (5th Cir. 2009) ....................................................................................10

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)..........................................10

Lopez v. Fun Eats & Drinks, LLC, No. 3:18-cv-1091-X, 2021

 WL 3502361, (N.D. Tex. July 16, 2021)............................................................ .............3

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988))..........................................8

Olivarez v. Geo Group, Inc., 844 F.3d 200, 203 (5th Cir. 2016)........................................2 

Pye v. Oil States Energy Servs., LLC, 233 F. Supp. 3d 541, 564 (W.D. Tex. 2017) .. .....9

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).....................6

.

United States v. Bertram, 259 F. Supp. 3d 638, 640 (E.D. Ky. 2017).................................4

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 3 of 35 PageID 1225
Statutes

Federal Rule of Civil Procedure 26(e)(1) .................................................................1

FED. R. CIV. P. 26(e)(1.............................................................................................1, 2

Federal Rule of Civil Procedure] 37(b)(2)(A)(i)-(vi)." ...............................................2

FED. R. CIV. P. 37(c)(1); ............................................................................................2

Fed. R. Evid. 901(a)......................................................................................................4

Fed. R. Evid. 201(d)).....................................................................................................8

29 U.S.C. § 255(a)..........................................................................................................8

29 C.F.R. §§ 541.103-541.117......................................................................................6

29 C.F.R. § 541.700......................................................................................................7

 29 C.F.R. § 541.201(b). ..............................................................................................7

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 4 of 35 PageID 1226
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION 

JASON WALTERS 

Plaintiff 

 

vs. CIVIL ACTION 3:22-cv-01840-C

 JURY REQUESTED

EXEL, INC. D/B/A 

DHL SUPPLY CHAIN

Defendant

PLAINTIFF’S BRIEF IN REPLY IN OPPOSITION TO DEFENDANT’S S MOTION FOR

SUMMARY JUDGMENT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

COMES NOW, Plaintiff Jason Walters (“Walters” or “Plaintiff”), and files this his Reply to

Defendants’ Reply in Support of its Motion for Summary Judgment and for same would show the

Court as follows:

I.

DOCUMENTS NOT SUPPLEMENTED

Attached hereto are (App 00001-App 00016) are the responses to interrogatories by the

Defendant. These interrogatories were not amended and/or supplemented. Federal Rule of

Civil Procedure 26(e)(1) provides that "[a] party ... who has responded to an interrogatory, [or]

request for production ... must supplement or correct its ... response: (A) in a timely manner if the

party learns that in some material respect the ... response is incomplete or incorrect, and if the

additional or corrective information has not otherwise been made known to the other parties

during the discovery process or in writing; or (B) as ordered by the court." FED. R. CIV. P.

26(e)(1) Under Rule 26(e)(1), "[s]upplementation or correction must be done `in a timely

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 1

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 5 of 35 PageID 1227
manner' upon learning that the [response or answer] is incomplete or incorrect." Fuller v. CIG

Fin., LLC, No. 3:22-cv-1289-D, 2023 WL 8482889, at *2-*3 (N.D. Tex. Dec. 7, 2023) (cleaned

up). "Generally, supplementation `should be made at appropriate intervals during the discovery

period, and with special promptness as the trial date approaches.' Rule 26 advisory committee's

note (1993)." Courts "have cautioned that problems can arise when they allow supplementation

too close to the date of trial." Everett Fin., Inc. v. Primary Residential Mortg., Inc., No.

3:14-cv-1028-D, 2017 WL 784766, at *2 (N.D. Tex. Feb. 28, 2017). Under Rule 26(e)(1), "the

rules governing discovery impose a duty to supplement disclosures and responses that continues

beyond the discovery closing date," the responding or answering party must do so "in a timely

manner after receiving" the information or materials requiring supplementation or correction.

Aikens v. Cent. Oregon Truck Co., Inc., No. 4:20-CV-00567, 2021 WL 4312712, at *4 (E.D.

Tex. Sept. 22, 2021).

Federal Rule of Civil Procedure 37(c)(1), in turn, provides that, "[i]f a party fails to

provide information ... as required by ... [Rule 26(e)(1)], the party is not allowed to use that

information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless," and that, "[i]n addition to or instead of this sanction, the

court, on motion and after giving an opportunity to be heard: (A) may order payment of the

reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of

the party's failure; and (C) may impose other appropriate sanctions, including any of the orders

listed in [Federal Rule of Civil Procedure] 37(b)(2)(A)(i)-(vi)." FED. R. CIV. P. 37(c)(1); accord

Olivarez v. Geo Group, Inc., 844 F.3d 200, 203 (5th Cir. 2016)

The disclosing (or late disclosing) party bears the burden of proving the failure to timely

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 2

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 6 of 35 PageID 1228
disclose was substantially justified or harmless." Lopez v. Fun Eats & Drinks, LLC, No.

3:18-cv-1091-X, 2021 WL 3502361, (N.D. Tex. July 16, 2021), rep. & rec. adopted, 2021 WL

3493496 (N.D. Tex. Aug. 9, 2021). Based on the above Plaintiff would request that all of the

summary judgment evidence of the Defendant be stricken and/or denied.

II.

NAME OF PERSON

Interrogatory NO. 3, states “State the name of the person and/or person that replaced

Plaintiff after Plaintiff’s termination with Defendant.” Plaintiff alleges that John H. Oloh did

and that is supported by APP 000135, and further set out in Plaintiff’s response. Mr. Oloh being

a much younger person. Defendant’s failure to supplement at this late date precludes Defendant

from now claiming otherwise. 

III.

TEXTS/EMAILS FROM EARTIS SHAW

Defendant objects to Plaintiff’s APP000011 to APP000025; however, a closer look at

said documents reveal that APP000011, APP000013, APP000023, and APP000025 were all

made by Eartis Shaw. The purpose being to show that Eartis Shaw was in charge. That is also

supported by the deposition testimony of Adam Elliott, (APP000050, l. 21-24), that Eartis Shaw

sets the schedule. This is also supported by the declaration of Plaintiff in No. 6, 8, 9, 12, 19, 26,

27, 28, 30, (APP 000111, AP000112, AP000114). (l. 11, 13, 14,15) (l. 4, 21,) (l. 20, 21, 22, 23)

(l. 2, 3, 5)

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 3

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 7 of 35 PageID 1229
IV.

RACIST COMMENT

Defendant objects to APP 119 regarding the fact that Tammy Williams stated that Ms.

Hooper was one of the biggest racist, she ever worked with. This is supported by the declaration

of Jason Walters, No. 47 (APP000115, L. L. 6-8). United States v. Bertram, 259 F. Supp. 3d

638, 640 (E.D. Ky. 2017)." [T]he key consideration . . . is not simply whether the witness on

the stand was a sender or recipient of the email, but whether the testifying witness can speak to

the email's unique characteristics, contents, and appearance." Id. at 641. To satisfy the

requirement of authenticating . . . an item of evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it is. Fed. R. Evid.

901(a). This is supported by the declaration of Mr. Walters. (APP000115, L. 6-8) (No. 47).

V.

DOES NOT DISPUTE

Defendant does not dispute a great deal of the evidence presented by the Plaintiff. This

evidence in of itself raises a issue of fact for the trier of fact. Defendant repeatedly states that

Plaintiff put his hands on Ms. Hooper and threatened her. The best evidence is in fact (1) the

video (Def. Bate 00118) that Defendant relies on showing not only Plaintiff lightly touching

Ms. Hooper but the actual video with the bright colors the other employees were wearing. The

video does show Mr. Walters working in the same area as the other workers, a guy with a bright

orange/yellow shirt on, a guy with a bright green shirt on, and Mr. Walters explaining that Ms.

Hooper was not wearing the proper safety attire. (No. 24, L. 11-17) (APP000122). In addition

the video show forklifts close by these individuals, and the environment was very loud. (No. 16,

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 4

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 8 of 35 PageID 1230
L. 15-16) (APP000112) (2) the deposition testimony of John Dobbins that Plaintiff’s job was to

monitor for attendance (APP000044, l. 16-19) (3) that John Dobbins had a discussion with Ms.

Hooper that she could be late (APP000045, l. 17-21) (4) that John Dobbins could not remember

telling Plaintiff despite the fact that he was her supervisor (APP00046, l. 10-25). This failure to

inform raises a fact question in of itself for the trier of fact, as to whether if Plaintiff was in fact

a exempt employee or not (5) that both he and Eartis Shaw made the agreement with Ms. Hooper

(APP000047, l. 1-4), again if Plaintiff was indeed exempt why was he not informed (6) that

Adam Elliott testified that Eartis Shaw set the schedule (APP000050, l. 21-24) (7) that Adam

Elliott testified that the operations supervisors all work in the warehouse and possibly where the

trucks are (000051, l. 2-17). (8) that Eartis Shaw testified that Plaintiff’s job was to correct

employees for not having the correct safety gear on (APP000054, l. 10-18) (9) that Ms. Hooper

testified that Plaintiff did what the general manager and everybody else told him to do

(APP000057, l. 1-9 ) (10) that Ms. Hooper testified that if she was wearing the wrong uniform it

would be the job of Plaintiff to correct her (APP000058, l. 7-13) (11) that Ms. Hooper testified

that the job of Plaintiff was to make sure everybody was safe (APP000059, L. 2-7) (12) that Ms.

Williams testified that employees were to wear high visibility colors, and Plaintiff’s job was to

tell employees if they were not wearing the correct colors, and if he didn’t he would not being

doing his job. (APP000062, l. 2-23) (13) that Mickey Moza had a hard time remembering what

happened (APP000076-APP000077, l.24-25, l. 1-14 (14) That Mickey Moza may have not been

trained, he doesn’t recall (APP000079, l. 8-19) (15) That Mickey Moza did not remember much

of anything (APP000081-82, l. 7-25, l. 1-11) (16) That Mickey Moza does remember Plaintiff

needing the COBRA information (APP000085, l. 7-19). (17) That Mickey Moza doesn’t recall

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 5

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 9 of 35 PageID 1231
what was communicated or when he was notified of his termination (APP000088, l. 3-13) (18)

That Plaintiff had no idea why he was being terminated in that he was never allowed to see the

corrective action form, until after the lawsuit was filed (APP000091, l. 14) (19) that the Texas

Workforce Commission stated that “our investigation found your employer fired you for a

reason that was no misconduct connected with th work. (APP000092, l. 4-5) (20) That

Defendant received a letter dated July 18, 2022 requesting certain records from the file of

Plaintiff on July 22, 2022 at 11:36 a.m. (APP000093-APP000098, l. 3). (21) That certain records

were requested but had been discarded despite earlier requests for said records. (APP000099-

APP000110, l. 7-10).

VI.

MUST CONSIDER

The Court must consider all of the evidence but "refrain from making any credibility

determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,

343 (5th Cir. 2007). The evidence presented reflects that Plaintiff had little or no discretion. 

An exempt employee must have primarily managerial or supervisory duties. 29 C.F.R. §§

541.103-541.117. Plaintiff would simply do what he was told on a daily basis, from what time

to be at work, to making sure employees had on the correct uniform, to making sure they drank

plenty of water, to fill out forms at the end of each and every shift. (App 000001-000036,

App000026, l. 45, App000028, L. 45, App000031, L. 45, App000034, L. 45, App000035, L. 45)/

It is not disputed that the primary duties of Plaintiff did not consist of office tasks and/or

non-manual work. (App 000120, No. 5, L. 10, App 000121, No. 13, L. 5-12)). Under the

Department of Labor regulations, "primary duty" means the principal, main, major, or most

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 6

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 10 of 35 PageID 1232
important duty that the employee performs. 29 C.F.R. § 541.700. Work directly related to

management or general business operations includes work in functional areas such as finance,

accounting, budgeting, purchasing, procurement, internet and database administration, and

similar activities. 29 C.F.R. § 541.201(b). 

There is no evidence that Plaintiff did any of the above. Plaintiff’s main duties were

moving tires.

VII

DISCRETION

An exempt employee must be able to exercise discretion and independent judgment

regarding "matters of significance[,]" which "refers to the level of importance or consequence of

the work performed." § 541.202(a).

 § 541.202(b) provides the following:

The phrase “discretion and independent judgment” must be applied in the light of all the

facts involved in the particular employment situation in which the question arises. Factors

to consider when determining whether an employee exercises discretion and independent

judgment with respect to matters of significance include, but are not limited to: whether

the employee has authority to formulate, affect, interpret, or implement management

policies or operating practices; whether the employee carries out major assignments in

conducting the operations of the business; whether the employee performs work that

affects business operations to a substantial degree, even if the employee's assignments are

related to operation of a particular segment of the business; whether the employee has

authority to commit the employer in matters that have significant financial impact;

whether the employee has authority to waive or deviate from established policies and

procedures without prior approval; whether the employee has authority to negotiate and

bind the company on significant matters; whether the employee provides consultation or

expert advice to management; whether the employee is involved in planning long- or

short-term business objectives; whether the employee investigates and resolves matters of

significance on behalf of management; and whether the employee represents the company

in handling complaints, arbitrating disputes or resolving grievances.

As set forth above Plaintiff had no discretion and/or independent judgment.

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 7

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 11 of 35 PageID 1233
VIII.

JUDICIAL NOTICE

Plaintiff has requested this honorable court to take judicial notice regarding the finding of

the Texas Workforce Commission “our investigation found your employer fired you for a reason

that was no misconduct connected with th work”. (APP000092, L. 4,5)) Judicial notice may

be taken at any stage of the proceeding." Colonial Leasing of New England, Inc. v. Logistics

Control Int'l, 770 F.2d 479 (5th Cir. 1985) (quoting Fed. R. Evid. 201(d)). We "must take

judicial notice if a party requests it and the court is supplied with the necessary information."

Fed. R. Evid. 201(c)(2). Wigmore, in his treatise on evidence (Third Edition) § 2566, states

that judicial notice means "acceptance of a matter as proved without requiring the party to offer

evidence of it."

IX.

DAMAGES

APP000115, L. 10, No. 48 by Jason Walters states worked about 20 hours a week that he

was not paid for. Plaintiff was paid at a rate of $29.08 per hour. A plaintiff must file FLSA

claims within two years after the cause of action accrues. 29 U.S.C. § 255(a). A three-year

statute of limitations applies under the FLSA when the conduct of the employer is willful. . "An

employer willfully violates the FLSA if it `either knew or showed reckless disregard for the

matter of whether its conduct was prohibited by the statute.'" Ikossi-Anastasiou v. Bd. of

Supervisors of La. State Univ., 579 F.3d 546, 552 (5th Cir. 2009) (quoting McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 133 (1988)). APP 00017, attached hereto shows Plaintiff

being paid $29.08 per hour. 

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 8

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 12 of 35 PageID 1234
Time and half for $29.08 is $43.62. 20 x 43.72 = $872.40 per week.

52 Week x. $872.40= $45,364.08

104 weeks x. $872.40- $90,729.60

156 weeks x. $872.40 = $136,094.40

To show reckless disregard of the FLSA, an employee must show that the employer had

some reason to know that its conduct violated the FLSA beyond mere ignorance of the law." Pye

v. Oil States Energy Servs., LLC, 233 F. Supp. 3d 541, 564 (W.D. Tex. 2017) Based on

APP000135, previously produced, defendant had 20 employees that were employed in same

position as Plaintiff. That would mean these other employees worked on the floor with the

tires and forklifts the same as Plaintiff. That would also mean that Eartis Shaw set their

scheduled, and their duties consisted of in part, drink plenty of water, (APP000026, L. 24). These 

other employees were requested in APP 00003, No. 1, but were never supplemented. In

addition No. 14, requested “State all conversations that Defendant had with current and/or former

employees regarding wages that were not paid correctly. Defendant’s response says nothing

about other employees. The acts of the defendant certainly show reckless disregard.

X.

STATEMENT

On page 3 of 11, last paragraph, defendant states in part “Plaintiff does not deny............”

Plaintiff has stated in declaration what he actually did at the location where he was employed,

basically on day to day basis. Also are attached are documents that reflect what he did on a day

basis. Disputes concerning material facts are "genuine" if, based on the evidence, "a reasonable

jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 9

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 13 of 35 PageID 1235
F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). A fact is "material" if it might affect the outcome of the suit under the

governing law. Anderson, 477 U.S. at 248; Burgos v. Sw. Bell Telephone Co., 20 F.3d 633, 635

(5th Cir. 1994) The declaration of Mr. Walters says it is within personal knowledge, and true

and correct. The Fifth Circuit has explained that the declarant does not need to lay extensive

foundation or make any particular statement to establish personal knowledge. DIRECTV, Inc. v.

Budden, 420 F.3d 521, 530 (5th Cir. 2005) .

XI

AGE DISCRIMINATION

In regards to the age discrimination defendant state in part “Plaintiff relies on a

spreadsheet, which Plaintiff did not create, and that is in no way authenticated through deposition

or otherwise.” A closer look at APP000135 reveals that it was produced by the defendant not

the Plaintiff in that it bears a bate stamped number of EXEL 00246. Plaintiff states that

document bated stamped EXEL-00246 APP000135 shows that John Ifegwu Oloh replaced me

on March 16, 2022, which is also reflected in bated stamped EXEL-00246, APP000135 

(App000114, No. 32, L. 7-8). Plaintiff states (No. 33, l. 9-10)). John lfegwu Oloh has an

adjusted service date of March 16, 2022, being the same day as my termination. . (App000114,) 

Plaintiff states that the date of birth of John Ifegwu is October 10, 1998. (App000114, No. 34L.

11). Plaintiff states his date of birth is December 22, 1972. . (App000114, N0. 35, L. 12). 

All of the above are admitted without objection.

It is possible for a party to demonstrate the existence of a genuine issue of material fact

through reliance on a single declaration. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 10

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 14 of 35 PageID 1236
Cir.1994).

To establish a prima facie case of age discrimination, a plaintiff must show that "(1) he

was discharged; (2) he was qualified for the position; (3) he was within the protected class at the

time of discharge; and (4) he was either i) replaced by someone outside of the protected class, ii)

replaced by someone younger, or iii) otherwise discharged because of his age." Id. Plaintiff has

shown all of the above.

Pursuant to APP000135, Plaintiff was age 50 when he was terminated. Lost wages for

plaintiff for five (5) years is $226,820.40.

XII.

COBRA NOTICE

Plaintiff objects to the declaration of Andrew Etter in that it does not state the actual

Cobra notice was mailed to Mr. Walters. This court has typically required evidence that a letter

was actually mailed to meet the good faith standard. (finding good faith when the defendant

mailed a COBRA notice via certified mail, "a special type of first class mail whose primary

purpose is to provide evidence of an individual's receipt of delivery"); cf. Custer v. Murphy Oil

USA, Inc., 503 F.3d 415, 421 (5th Cir. 2007) (genuine dispute of material fact remained on issue

of mailing, despite testimony that the defendant business typically used first-class mailing

procedures). Hager v. DBG Partners, Inc. 903 F. 3d 460, 468 (5th Cir. 2018). Mr. Etter does not

say the letter was actually mailed, nor does he say that he placed the COBRA letter in the

“outgoing mail.” Nor does Mr. Gillis state that.

XIII.

CONCLUSION

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 11

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 15 of 35 PageID 1237
The facts to be decided by the trier of fact to whether was or was not an exempt

employee under the Fair Labor Standards Act, whether Plaintiff was terminated because of his

age, and whether the required COBRA requirements were completed by the Defendant.

WHEREFORE PREMISES CONSIDERED, Plaintiff Jason Walters prays that, the Court

deny Defendants’ Motion for Summary Judgment in its entirety, and that Plaintiff have such

other and further relief to which he may show himself justly entitled, whether at law or in equity

Respectfully submitted

_/S/________________

 Bob Whitehurst

State Bar No. 21358100

Bob Whitehurst

5380 Old Bullard Road

 Suite 600, #363

Tyler, Texas 75703

(903)593-5588

(214)853-9382

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was

served upon the attorney's of record in accordance with the applicable Rules of Civil Procedure

on this 25th day of March, 2024

Bob Whitehurst

Bob Whitehurst

Annie Lau

Texas Bar No. 24057723

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550

Dallas, Texas 75201

Telephone: (214) 220-9100

Facsimile: (214) 220-9122

alau@fisherphillips.com

PLAINTIFF’S BRIEF IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT, PAGE 12

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 16 of 35 PageID 1238
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION 

JASON WALTERS 

Plaintiff 

 

vs. CIVIL ACTION 3:22-cv-01840-C

 JURY REQUESTED

EXEL, INC. D/B/A 

DHL SUPPLY CHAIN

Defendant

APPENDIX IN SUPPORT OF PLAINTIFF’S REPLY IN OPPOSITION TO

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTON FOR SUMMARY JUDGMENT

APP

Answers to Interrogatories by the Defendant dated December 23, 2022 00001-00016

Earnings Statement of Jason Walters dated 02/25/2022 00017

 Respectfully submitted

_/S/________________

 Bob Whitehurst

State Bar No. 21358100

Bob Whitehurst

5380 Old Bullard Road, Suite 600, #363

Tyler, Texas 75703

(903)593-5588

whitehurstlawfirm@yahoo.com

Attorney for Plaintiff

APPENDIX IN SUPPORT OF PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S REPLY, PAGE 1

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CERTIFICATE OF SERVICE

 I hereby certify that a true copy of the above and foregoing instrument has been

served on all counsel of record in accordance with the Rule of Civil Procedure on this 25th day

of March, 2024.

___/S/________________________

__

Bob Whitehurst

Annie Lau

Texas Bar No. 24057723

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550

Dallas, Texas 75201

Telephone: (214) 220-9100

Facsimile: (214) 220-9122

alau@fisherphillips.com

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FP 45717914.2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JASON WALTERS,

Plaintiff,

v.

EXEL, INC. d/b/a DHL SUPPLY CHAIN,

Defendant.

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 3:22-cv-01840-C

DEFENDANT’S OBJECTIONS AND ANSWERS

TO DEFENDANT’S FIRST INTERROGATORIES

TO: Plaintiff, Jason Walters, by and through his counsel of record, Bob Whitehurst, 52380

Old Bullard Road, Suite 600, #363, Tyler, Texas 75703.

Pursuant to FED.R.CIV. P. 33, Defendant Exel Inc. d/b/a DHL Supply Chain (“Defendant”) 

provides the following Objections and Answers to the First Interrogatories (“Interrogatories”) 

propounded by Plaintiff Jason Walters (“Plaintiff”):

OBJECTIONS TO INSTRUCTIONS AND DEFINITIONS

1. Defendant objects to the instructions and/or definitions contained in Plaintiff’s First

Interrogatories to the extent they seek to impose greater or other obligations upon Defendants than 

those set forth in the Texas Rules of Civil Procedure and the Local Rules of this Court.

2. Defendant objects to Plaintiff’s definition of the term “identify” with respect to a

person to the extent it requests an individual’s personal address and telephone number on the 

grounds that such request violates the privacy rights of persons who are not named parties in this 

Litigation, and to the extent that the use of such information would violate Rule 4.02 of the Texas 

Disciplinary Rules of Professional Conduct. Defendant further objects to such definition on the 

grounds its request for “an identification sufficient to notice a deposition of such person and to 

serve such person with process to require his or her attendance at a place or examination... 

APP 00001

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including], without limitation, his or her... race...” seeks information which has no tendency to 

make any material fact more or less probable than it would be without the evidence and is, 

therefore, irrelevant pursuant to Fed. R. Evid. 401.

3. Defendant objects to Plaintiff’s definition of the term “identify” with respect to an

organization, corporation, or business entity on the grounds its request to provide “a description of 

its business or organizational purpose” is vague and ambiguous.

4. Defendant objects to Plaintiff’s definition of the phrase “relate to” as vague,

ambiguous, and overly broad.

5. Defendant objects to Plaintiff’s definition of the phrase “Causes of Action in

Question” as vague and ambiguous.

6. Defendant objects to Plaintiff’s incorporated definition of the phrase “personnel

file” as vague, ambiguous, overly broad, and to the extent it seeks information which has no 

tendency to make any material fact more or less probable than it would be without the evidence 

and is, therefore, irrelevant pursuant to Fed. R. Evid. 401.

7. Defendant does not warrant or guarantee that its understanding or use of terms in

these responses accords with Plaintiff’s understanding or use of the same terms in Plaintiff’s First 

Interrogatories.

8. Defendant responds to each Interrogatory as it understands and interprets the

Interrogatory. If Plaintiff asserts an interpretation of any specific Interrogatory that differs from 

that of Defendant, Defendant reserves its right to supplement its objections and/or responses as 

may be needed or appropriate.

APP 00002

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ANSWERS AND OBJECTIONS TO FIRST INTERROGATORIES

INTERROGATORY NO. 1: State the names, last known address and phone number of the

employees that were employed in same position as Plaintiff from January 1, 2020 to present.

ANSWER NO. 1: Defendant objects to this Interrogatory on the grounds it is overly 

broad, infringes upon the privacy rights of third-party individuals, and seeks information 

which has no tendency to make any material fact more or less probable than it would be 

without the evidence and is, therefore, irrelevant pursuant to Fed. R. Evid. 401. 

Specifically, Plaintiff’s Amended Complaint confirms in no uncertain terms that he “is not 

making any claims on a representative basis, only for himself.” Plaintiff is also not 

claiming that he was subjected to disparate treatment or discriminated against in any way. 

As such, the identities of Plaintiff’s coworkers are irrelevant to the claims and defenses at 

issue, e.g., whether Defendant properly paid Plaintiff under the FLSA for all time worked 

and whether Defendant timely provided or caused to be provided to Plaintiff the notices 

required under COBRA following his separation from employment.

INTERROGATORY NO. 2: State the names and addresses of all employees of Defendant

that were terminated and/or disciplined for the same reason and/or reason as plaintiff.

ANSWER NO. 2: Defendant objects to this Interrogatory on the grounds its reference to 

“disciplined for the same reason and/or reason as plaintiff” is vague and ambiguous. 

Defendant further objects to this Interrogatory on the grounds it is overly broad, infringes 

upon the privacy rights of third-party individuals, and seeks information which has no 

tendency to make any material fact more or less probable than it would be without the 

evidence and is, therefore, irrelevant pursuant to Fed. R. Evid. 401. Specifically, Plaintiff’s 

Amended Complaint confirms in no uncertain terms that he “is not making any claims on 

a representative basis, only for himself.” Plaintiff is also not claiming that he was subjected 

APP 00003

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to disparate treatment or discriminated against in any way, nor has he asserted any claim 

for unlawful retaliation or wrongful termination. As such, the identities of Plaintiff’s 

coworkers are irrelevant to the claims and defenses at issue, e.g., whether Defendant 

properly paid Plaintiff under the FLSA for all time worked and whether Defendant timely 

provided or caused to be provided to Plaintiff the notices required under COBRA following 

his separation from employment.

INTERROGATORY NO. 3: State the name of the person and/or persons that replaced

Plaintiff after Plaintiff’s termination with Defendant.

ANSWER NO. 3: Defendant objects to this Interrogatory on the grounds it is overly 

broad and seeks information which has no tendency to make any material fact more or less 

probable than it would be without the evidence and is, therefore, irrelevant pursuant to Fed. 

R. Evid. 401. Specifically, Plaintiff’s Amended Complaint does not assert that Plaintiff

was subjected to disparate treatment or discriminated against in any way, nor does it assert 

any claim for unlawful retaliation or wrongful termination. As such, the name of Plaintiff’s 

replacement (to the extent there is one) is irrelevant to the claims and defenses at issue, 

e.g., whether Defendant properly paid Plaintiff under the FLSA for all time worked and

whether Defendant timely provided or caused to be provided to Plaintiff the notices 

required under COBRA following his separation from employment.

INTERROGATORY NO. 4: Describe all incidents wherein Plaintiff received warnings, 

reprimands and discipline, written or oral, due to his work performance or conduct and including

any written evaluations, warnings and reprimands relating to his performance at any time from his

initial employment until the present.

ANSWER NO. 4: Defendant objects to this Interrogatory on the grounds it is overly 

broad and seeks information which has no tendency to make any material fact more or less 

APP 00004

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probable than it would be without the evidence and is, therefore, irrelevant pursuant to Fed. 

R. Evid. 401. Specifically, Plaintiff’s Amended Complaint does not assert that Plaintiff 

was subjected to disparate treatment or discriminated against in any way, nor does it assert 

any claim for unlawful retaliation or wrongful termination. As such, Plaintiff’s disciplinary 

history is irrelevant to the claims and defenses at issue, e.g., whether Defendant properly 

paid Plaintiff under the FLSA for all time worked and whether Defendant timely provided 

or caused to be provided to Plaintiff the notices required under COBRA following his 

separation from employment.

INTERROGATORY NO. 5: State the reason(s) Plaintiff was terminated from his

employment with the defendant.

ANSWER NO. 5: Defendant objects to this Interrogatory on the grounds it is overly 

broad and seeks information which has no tendency to make any material fact more or less 

probable than it would be without the evidence and is, therefore, irrelevant pursuant to Fed. 

R. Evid. 401. Specifically, Plaintiff’s Amended Complaint does not assert that Plaintiff 

was subjected to disparate treatment or discriminated against in any way, nor does it assert 

any claim for unlawful retaliation or wrongful termination. As such, the circumstances 

surrounding Plaintiff’s separation from employment with Defendant is irrelevant to the 

claims and defenses at issue, e.g., whether Defendant properly paid Plaintiff under the 

FLSA for all time worked and whether Defendant timely provided or caused to be provided 

to Plaintiff the notices required under COBRA following his separation from employment.

INTERROGATORY NO. 6: State the names of the supervisors of Plaintiff.

ANSWER NO. 6: Defendant objects to this Interrogatory on the grounds it is overly 

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broad, not limited in relevant temporal scope, and seeks information which has no tendency 

to make any material fact more or less probable than it would be without the evidence and 

is, therefore, irrelevant pursuant to Fed. R. Evid. 401. Specifically, Plaintiff’s Amended 

Complaint does not assert that Plaintiff was subjected to disparate treatment or 

discriminated against in any way, nor does it assert any claim for unlawful retaliation or 

wrongful termination. As such, the names of every individual who ever supervised Plaintiff 

during the entire term of his employment with Defendant are irrelevant to the claims and 

defenses at issue, e.g., whether Defendant properly paid Plaintiff under the FLSA for all 

time worked and whether Defendant timely provided or caused to be provided to Plaintiff 

the notices required under COBRA following his separation from employment.

INTERROGATORY NO. 7: State the job duties of Plaintiff during his employment with

the defendant.

ANSWER NO. 7: In accordance with Fed. R. Civ. P. 34(d), Defendant directs Plaintiff 

to the Role Profile for the Operations Supervisor role being produced concurrently herewith.

INTERROGATORY NO. 8: State the names of the employees hired by Plaintiff during his

employment with the defendant.

ANSWER NO. 8: Defendant objects to this Interrogatory on the grounds its reference to 

“hired by Plaintiff” is vague and ambiguous. Defendant further objects to this Interrogatory 

on the grounds it is overly broad and seeks information which has no tendency to make any 

material fact more or less probable than it would be without the evidence and is, therefore, 

irrelevant pursuant to Fed. R. Evid. 401. Specifically, Plaintiff’s Amended Complaint 

confirms in no uncertain terms that he “is not making any claims on a representative basis, 

APP 00006

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FP 45717914.2

only for himself.” Plaintiff is also not claiming that he was subjected to disparate treatment 

or discriminated against in any way. As such, the names of the individuals for whom 

Plaintiff served as a decision-maker in their hiring by Defendant are irrelevant to the claims 

and defenses at issue, e.g., whether Defendant properly paid Plaintiff under the FLSA for 

all time worked and whether Defendant timely provided or caused to be provided to 

Plaintiff the notices required under COBRA following his separation from employment.

To the extent this Interrogatory requests Defendant state the number of individuals 

for whom Plaintiff participated in Defendant’s selection, interview, or hiring decision 

between August 19, 2019 (i.e., three years prior to the institution of this suit) and March 

16, 2022 (i.e., Plaintiff’s last day of employment with Defendant), Defendant states the 

precise number of individuals is unknown but that Plaintiff did participate in Defendant’s 

decision-making process with respect to the selection, interview, and hiring of Defendant’s 

employees during such time.

INTERROGATORY NO. 9: State the names of the employees that Plaintiff terminated

during his employment with the defendant.

ANSWER NO. 9: Defendant objects to this Interrogatory on the grounds its reference to 

“hired by Plaintiff” is vague and ambiguous. Defendant further objects to this Interrogatory 

on the grounds it is overly broad and seeks information which has no tendency to make any 

material fact more or less probable than it would be without the evidence and is, therefore, 

irrelevant pursuant to Fed. R. Evid. 401. Specifically, Plaintiff’s Amended Complaint 

confirms in no uncertain terms that he “is not making any claims on a representative basis, 

only for himself.” Plaintiff is also not claiming that he was subjected to disparate treatment 

or discriminated against in any way. As such, the names of the individuals for whom 

APP 00007

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Plaintiff served as a decision-maker in their hiring by Defendant are irrelevant to the claims 

and defenses at issue, e.g., whether Defendant properly paid Plaintiff under the FLSA for 

all time worked and whether Defendant timely provided or caused to be provided to 

Plaintiff the notices required under COBRA following his separation from employment.

To the extent this Interrogatory requests Defendant state the number of individuals 

for whom Plaintiff participated in Defendant’s decision to terminate such person’s 

employment between August 19, 2019 (i.e., three years prior to the institution of this suit) 

and March 16, 2022 (i.e., Plaintiff’s last day of employment with Defendant), Defendant 

states the precise number of individuals is unknown but that Plaintiff did participate in 

Defendant’s decision-making process with respect to the termination of Defendant’s 

employees during such time.

INTERROGATORY NO. 10: Describe in detail the job duties of Plaintiff.

ANSWER NO. 10: Defendant objects to this Interrogatory as duplicative of 

Interrogatory No. 7 and directs Plaintiff to Defendant’s response thereto.

INTERROGATORY NO. 11: State the names and last known addresses and phone

numbers of the employees that Plaintiff supervised during his employment with defendant.

ANSWER NO. 11: Defendant objects to this Interrogatory on the grounds it is overly 

broad, not limited in relevant temporal scope, infringes upon the privacy rights of third-party 

individuals, and seeks information which has no tendency to make any material fact more 

or less probable than it would be without the evidence and is, therefore, irrelevant pursuant 

to Fed. R. Evid. 401. Specifically, the identities of Plaintiff’s subordinates are irrelevant 

to the claims and defenses at issue, e.g., whether Defendant properly paid Plaintiff under 

APP 00008

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the FLSA for all time worked and whether Defendant timely provided or caused to be 

provided to Plaintiff the notices required under COBRA following his separation from 

employment.

To the extent this Interrogatory seeks information regarding the number of 

employees supervised by Plaintiff between August 19, 2019 (i.e., three years prior to the 

institution of this suit) and March 16, 2022 (i.e., Plaintiff’s last day of employment with 

Defendant), Defendant states Plaintiff supervised approximately 20 to 30 FLOs, 1 Tasker, 

2 Lead, and 4 to 7 Laborers per shift.

INTERROGATORY NO. 12: Please identify all persons who have knowledge of any

relevant facts, documents, or tangible things relating in any way to the claims, defenses, or 

allegations in this lawsuit. You are asked to disclose any such person, even if the person does not 

have personal knowledge.

ANSWER NO. 12: Defendant objects to this Interrogatory on the grounds its request 

Defendant identify “persons who have knowledge of any relevant facts, documents, or 

tangible things relating in any way to ... this lawsuit... even if the person does not have 

personal knowledge” is vague, ambiguous, overly broad, and seeks information which has 

no tendency to make any material fact more or less probable than it would be without the 

evidence and is, therefore, irrelevant pursuant to Fed. R. Evid. 401. 

In accordance with the requirements of Fed. R. Civ. P. 26(a)(1)(A)(i)—which 

makes discoverable “the name and, if known, the address and telephone number of each 

individual likely to have discoverable information—along with the subjects of that 

information—that the disclosing party may use to support its claims or defenses, unless the 

use would be solely for impeachment,” Defendant states as follows:

a. Plaintiff Jason Walters

APP 00009

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Plaintiff is presumed to have knowledge regarding his claims in this suit.

b. John Dobbins

c/o Fisher & Phillips

Mr. Dobbins is a Senior Director for Defendant and, while Plaintiff was

employed by Defendant, served as General Manager supervising Plaintiff.

Mr. Dobbins may have information regarding the job duties attendant to

Plaintiff’s Operations Supervisor role and hours worked during the period

he supervised Plaintiff.

c. Adam Elliott

c/o Fisher & Phillips

Mr. Elliott is a General Manager for Defendant and supervised Plaintiff

while he was employed by Defendant, and may have information regarding

the job duties attendant to Plaintiff’s Operations Supervisor role and hours

worked during the period he supervised Plaintiff.

d. Andrew Miranda

c/o Fisher & Phillips

Mr. Miranda is an Operations Supervisor for Defendant and worked

alongside Plaintiff while he was employed by Defendant, and may have

information regarding the job duties attendant to Plaintiff’s Operations

Supervisor role and hours worked during the relevant period (i.e., from 2019

through his date of separation).

e. Sheila Frazier

c/o Fisher & Phillips

Ms. Shaw is an Operations Supervisor for Defendant and worked alongside

Plaintiff while he was employed by Defendant, and may have information

regarding the job duties attendant to Plaintiff’s Operations Supervisor role

and hours worked during the relevant period (i.e., from 2019 through his

date of separation).

f. Eartis Shaw

c/o Fisher & Phillips

Mr. Shaw is an Operations Manager for Defendant and was Plaintiff’s most

recent supervisor while employed by Defendant and may have information

regarding Plaintiff’s job duties and hours worked during the relevant period

(i.e., from 2019 through his date of separation).

g. Corporate Representative(s) of Defendant

c/o Fisher & Phillips

APP 00010

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Defendant’s to-be-identified corporate representative(s) may have 

information regarding Defendant’s relevant policies and procedures 

regarding classification of employees as exempt or non-exempt, overtime, 

recording hours worked, pay statements, and reporting concerns regarding 

pay.

h. Corporate Representative(s) of Businesssolver, Inc.

1025 Ashworth Rd.

West Des Moines, IA 50265

The to-be-identified corporate representative(s) of Businesssolver, Inc. may

have information regarding the COBRA notice provided to Plaintiff in

connection with his separation from employment with Defendant.

INTERROGATORY NO. 13: For every person you have identified in answer to the

preceding interrogatory, state the basis for, and substance of, the relevant knowledge you believe

the person has or may have.

ANSWER NO. 13: Defendant objects to this Interrogatory on the grounds its instruction 

to “state the basis for... the relevant knowledge you believe the person has or may have” 

is vague and ambiguous. Defendant further incorporates Defendant’s response to 

Interrogatory No. 12 as though fully set forth herein.

INTERROGATORY NO. 14: State all conversations that Defendant had with current

and/or former employees regarding wages that were not paid correctly.

ANSWER NO. 14: Defendant objects to this Interrogatory to the extent it seeks 

information protected by the attorney-client and/or attorney work product privileges. 

Defendant further objects to this Interrogatory on the grounds it is overly broad, not limited 

in relevant temporal scope, infringes upon the privacy rights of third-party individuals, and 

seeks information which has no tendency to make any material fact more or less probable 

than it would be without the evidence and is, therefore, irrelevant pursuant to Fed. R. Evid. 

401. Specifically, Plaintiff’s Amended Complaint confirms in no uncertain terms that he

APP 00011

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“is not making any claims on a representative basis, only for himself.” As such, any 

conversations Defendant had with Plaintiff’s coworkers regarding any claim or concern by 

such individual that he or she had not been paid correctly are irrelevant to the claims and 

defenses at issue, e.g., whether Defendant properly paid Plaintiff under the FLSA for all 

time worked and whether Defendant timely provided or caused to be provided to Plaintiff 

the notices required under COBRA following his separation from employment. Defendant 

further objects to this Interrogatory on the grounds that it is unduly burdensome in that 

responding thereto would require Defendant to interview every one of its employees and 

review every communication in its possession, custody, or control to determine whether or 

not two or more of Defendant’s employees had ever communicated with one another 

regarding wages and identify and produce each such communication that could be 

construed as “regarding wages that were not paid correctly.” 

To the extent this Interrogatory seeks a description of each conversation Brandy 

Boylan or Mickey Moza, former Human Resources Representatives responsible for the 

Goodyear-Forney site, or Plaintiff’s then-supervisor(s), had with Plaintiff between August 

19, 2019 (i.e., three years prior to the institution of this suit) and March 16, 2022 (i.e., 

Plaintiff’s last day of employment with Defendant) wherein Plaintiff reported any concern 

that he had not been properly paid all wages earned, Defendant states no such 

communications have been identified.

INTERROGATORY NO. 15: Describe all benefits, at the facilities where Plaintiff was

employed by Defendant, that were paid to employees from January 1, 2020 to present.

ANSWER NO. 15: Defendant objects to this Interrogatory on the grounds its instruction 

to “[d]escribe all benefits” and its reference to “benefits, at the facilities where Plaintiff was

APP 00012

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employed byDefendant, that were paid to employees” are vague and ambiguous. Defendant 

further objects to this Interrogatory on the grounds it is overly broad, not limited in relevant 

temporal scope, and seeks information which has no tendency to make any material fact 

more or less probable than it would be without the evidence and is, therefore, irrelevant 

pursuant to Fed. R. Evid. 401. Specifically, the employment benefits Defendant made 

available to, but that were not elected by, Plaintiff as of the date of his separation from 

employment are irrelevant to the claims and defenses at issue, e.g., whether Defendant 

properly paid Plaintiff under the FLSA for all time worked and whether Defendant timely 

provided or caused to be provided to Plaintiff the notices required under COBRA following 

his separation from employment.

To the extent this Interrogatory requests Defendant identify the employment 

benefits provided by Defendant and elected by Plaintiff as of his separation date from 

employment with Defendant, Defendant identifies: Medical, Dental, and Vision Insurance; 

Dependent Life Insurance; and Group Term Life Insurance.

INTERROGATORY NO. 16: State the hours that Plaintiff was required to work at his

employment with Defendant from January 1, 2020 to the date of his termination by the defendant.

ANSWER NO. 16: Defendant states that, between January 1, 2020 and January 2021,

Plaintiff was generally assigned to work 12-hours shifts, four days per week. During

calendar year 2020, Plaintiff was asked to cover up to two additional 12-hour shifts per 

month. For any week in which Plaintiff worked an extra shift during this period, he was 

provided a 12-hour “comp day”—meaning he could take an entire shift off with full pay.

Therefore, in any week in which Plaintiff used a “comp day” he would only have worked 

36 hours, rather than his normally scheduled 48 hours, but would have received his full 

APP 00013

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FP 45717914.2

salary. There were also occasions in 2020 wherein Plaintiff used two or three comp days

in the same week.

From January 2021 through the date of his separation, Plaintiff was generally 

assigned to work 12-hours shifts, three days per week. During this period, Plaintiff was 

asked to cover up to one additional 12-hour shift per month. 

INTERROGATORY NO. 17: State the name of the General Manager at the facility

where Plaintiff was employed during Plaintiff’s employment with the Defendant.

ANSWER NO. 17: Defendant objects to this Interrogatory on the grounds it is overly 

broad, not limited in relevant temporal scope, and seeks information which has no tendency 

to make any material fact more or less probable than it would be without the evidence and 

is, therefore, irrelevant pursuant to Fed. R. Evid. 401. Specifically, Plaintiff’s Amended 

Complaint does not assert that Plaintiff was subjected to disparate treatment or 

discriminated against in any way, nor does it assert any claim for unlawful retaliation or 

wrongful termination. As such, the names of every individual who ever served as a General 

Manager at the Goodyear-Forney site during the entire term of Plaintiff’s employment with 

Defendant are irrelevant to the claims and defenses at issue, e.g., whether Defendant 

properly paid Plaintiff under the FLSA for all time worked and whether Defendant timely 

provided or caused to be provided to Plaintiff the notices required under COBRA following 

his separation from employment.

INTERROGATORY NO. 18: State the name of the Operation Manager at the facility

where Plaintiff was employed during Plaintiff’s employment with the Defendant.

ANSWER NO. 18: Defendant objects to this Interrogatory on the grounds it is overly 

APP 00014

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broad, not limited in relevant temporal scope, and seeks information which has no tendency 

to make any material fact more or less probable than it would be without the evidence and 

is, therefore, irrelevant pursuant to Fed. R. Evid. 401. Specifically, Plaintiff’s Amended 

Complaint does not assert that Plaintiff was subjected to disparate treatment or 

discriminated against in any way, nor does it assert any claim for unlawful retaliation or

wrongful termination. As such, the names of every individual who ever served as an 

Operations Manager for Defendant during the entire term of Plaintiff’s employment with 

Defendant are irrelevant to the claims and defenses at issue, e.g., whether Defendant 

properly paid Plaintiff under the FLSA for all time worked and whether Defendant timely 

provided or caused to be provided to Plaintiff the notices required under COBRA following 

his separation from employment.

Respectfully Submitted,

/s/ Theanna Bezney

Arthur V. Lambert

Texas Bar No. 11841250

Theanna Bezney

Texas Bar No. 24089243

FISHER & PHILLIPS LLP

500 N. Akard Street, Suite 3550

Dallas, TX 75201

Telephone: (214) 220-9100

Facsimile: (214) 220-9122

alambert@fisherphillips.com 

tbezney@fisherphillips.com 

COUNSEL FOR DEFENDANT EXEL 

INC. d/b/a DHL SUPPLY CHAIN

APP 00015

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FP 45717914.2

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of December, 2022, a true and correct copy of the 

foregoing was served by email upon all counsel of record, as follows:

Bob Whitehurst

5380 Old Bullard Road, Suite 600., #363

Tyler, Texas 75703

/s/ Theanna Bezney

Theanna Bezney

APP 00016

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 34 of 35 PageID 1256
NON-NEGOTIABLE

Deposited to the account of account number transit ABA amount

2000 A DP, LLC

Earnings Statement

CO. FILE DIV DEPT. VCHR NO

Period Beginning: 02/14/2022

109314 3517 003060 0000082581 1

Period Ending: 02/27/2022

7LU

Pay Date: 02/25/2022

EXEL, INC.

JASON R WALTERS

18026700

DBA DHL SUPPLY CHAIN

142 COUNTY ROAD 2437

360 WESTAR BVLD.

MINEOLA TX 75773

$1 656 31

WESTERVILLE, OH 43082

9 307 68

Other Benefits and

this period total to date

Taxable Marital Status: Married

Exemptions/Allowances:

HRID 015448

Group Term Life 0 53 2 12

Federal: 0,$25 Additional Tax

Totl Hrs Worked 80 00

TX: No State Income Tax

YOUR COMPANY PHONE NUMBER IS 866-504-6943

rate units this period year to date

VERIFY YOUR ADDRESS ON YOUR EARNINGS STATEMENT

Regular 29 08 80 00 2 326 92 9 307 68

CONTACT YOUR HR MANAGER ASAP IF A CHANGE IS

NEEDED

0 00 0 00

Gross Pay $2 326 92

For customer service assistance, contact askPAYROLL via

Email at askPAYROLL@dhl.com or telephone 1-866-504-6943

Statutory

-191 12 764 48

For easy access to your pay information, logon to MyADP at

Federal Income Tax

-135 12 540 50

https://My.ADP.com

0 00 0 00

Social Security Tax

-31 60 126 41

Kronos PTO YTD Taken Balance

Medicare Tax

-1 89 7 56

___________________________________________________

General Purpose

0 00 0 00

Dependent Life

-17 10* 68 40

Personal

0 00 0 00

Pretax Dental

-113 22* 452 88

Sick

00000082581

Pretax Medical

-17 68* 70 72

Vacation

02/25/2022

Pretax Vision

401K Sav Pretax -162 88* 651 52

$1 656 31

Vantage ID

xxxx

Net Pay

-1 656 31

Advice number:

xxxx

Checking

$0 00

Pay date:

xxx7285

Net Check

HRID 015448

Excluded from federal taxable wages

Your federal taxable wages this period are

$2 016 04

DHL SUPPLY CHAIN

360 WESTAR BLVD

WESTERVILLE OH 43082

JASON R WALTERS

EXEL_000107 APP 00017

Case 3:22-cv-01840-K Document 66-1 Filed 04/15/24 Page 35 of 35 PageID 1257