     Case: 19-20134      Document: 00515199680         Page: 1    Date Filed: 11/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 19-20134
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      November 14, 2019
                                                                           Lyle W. Cayce
DOVIE LAVETTE WILLIAMS,                                                         Clerk


              Plaintiff - Appellant

v.

TH HEALTHCARE LIMITED, Park Plaza Hospital (Parent Organization:
Amisub of Texas, Incorporated),

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CV-4116


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       On October 29, 2018, Dovie Williams filed this pro se lawsuit against her
former employer, TH Healthcare Limited, Park Plaza Hospital (“TH
Healthcare”), pursuant to Title VII and the Americans with Disabilities Act.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                            No. 19-20134
On January 17, 2019, TH Healthcare moved to dismiss Williams’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6), contending they were
untimely. Eleven days later, before Williams had an opportunity to respond to
TH Healthcare’s motion to dismiss, the district court dismissed Williams’s
claims, finding they were time-barred because Williams had not filed suit
within ninety days of receiving a right-to-sue letter. 1                           Williams timely
appealed. We reverse.

        For purposes of this appeal, we accept Williams’s allegations as true.
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). Once a claimant receives a
right-to-sue letter, he has ninety days to file a civil action. 42 U.S.C. § 2000e-
5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA). In assessing the timeliness of a
Title VII or ADA claim, the court excludes the “day of the event that triggers
the period,” counts “every day, including intermediate Saturdays, Sundays,
and legal holidays,” and includes “the last day of the period, but if the last day
is a Saturday . . . the period continues to run until the end of the next day that
is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1). Williams
received a right-to-sue letter for her Title VII and ADA claims on July 29, 2018.
The ninety-day deadline for filing suit fell on Saturday, October 27, 2018.
Williams thus had until the following Monday, October 29, 2018, to file suit.
Williams filed suit that day. Her lawsuit was therefore timely and the district
court erred in dismissing it. 2


        1  TH Healthcare did not seek dismissal on jurisdictional grounds. Nevertheless, the district
court concluded that it “d[id] not have jurisdiction over Dovie Williams’s claims because she did not
sue within ninety days of receiving the [right-to-sue] letter.” The ninety-day filing requirement,
however, “is not a jurisdictional prerequisite, but more akin to a statute of limitations.” Harris v. Boyd
Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010). The court therefore treats the district court’s order as
a dismissal of Williams’s claims pursuant to Rule 12(b)(6) for failing to comply with the ninety-day
filing requirement. See id.

        2TH Healthcare alternatively moved to dismiss Williams’s claims based on an arbitration
provision in Williams’s employment agreement. On appeal, TH Healthcare contends that, even if
                                                    2
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                                           No. 19-20134
        Accordingly, the district court’s judgment is REVERSED, and the case is
remanded for further proceedings.




Williams’s claims are timely, the court should affirm on this alternative ground. But the district court
did not consider whether Williams’s claims are subject to arbitration; nor did it give Williams the
opportunity to respond to TH Healthcare’s motion to dismiss. The court therefore declines to consider
the issue on appeal.

                                                   3
