     Case: 15-10520      Document: 00513303275         Page: 1    Date Filed: 12/10/2015




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

                                                                               FILED
                                    No. 15-10520                       December 10, 2015
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
JASON SIMMONS,

              Plaintiff - Appellant

v.

METHODIST HOSPITALS OF DALLAS,

              Defendant - Appellee




                   Appeal from the United States District Court
                       For the Northern District of Texas
                             USDC No. 3:14-CV-2958


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       After Methodist Hospital terminated him, Jason Simmons brought an
employment discrimination lawsuit.            The district court granted summary
judgment, and Simmons did not appeal. Two years later, Simmons brought a
second lawsuit against Methodist, the instant case in which he is pro se,
asserting a Title VII retaliation claim as well as several state law claims all



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10520
arising from the same set of events underlying the first suit. The district judge
dismissed all of his claims at the pleading stage on limitations grounds.
Simmons contends in his appeal that the district court should have applied
equitable tolling.
                                              I.
       Simmons was an internal medicine resident at Methodist for three years
until he was fired in July 2010. 1 Represented by counsel, he sued Methodist
for racial discrimination under Title VII and section 1981, but the district court
granted summary judgment in favor of Methodist. Simmons failed to appeal.
       Over two years later, in August 2014, Simmons again filed suit alleging
that Methodist engaged in retaliation against him. The following month he
added several state law causes of action, including negligence, defamation,
fraud, breach of contract, and intentional interference with prospective
contract, although he failed to include the retaliation claim in his amended
complaint. The district court granted summary judgment on all of Simmons’s
claims, including the retaliation claim, 2 on the ground that they were barred
by their respective statutes of limitations.
       Although Simmons purports to raise twelve separate issues on appeal,
they can be summarized as follows: (1) whether the district court erred in
finding that Simmons’s claims were barred by the applicable statutes of




       1  There is some dispute about when Methodist terminated Simmons’s employment.
Because we take the facts in the light most favorable to Simmons, we assume that his cause
of action accrued in July 2010 when he contends Methodist made the decision to terminate
his employment “final.”
        2 The district court denied leave to amend to incorporate the retaliation claim in the

First Amended Complaint, reasoning that such an amendment would be futile because the
claim was time barred. Despite this denial, the district court later held that the retaliation
claim had already been properly raised by Simmons as a pro se plaintiff and addressed the
claim on the merits.
                                              2
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                                       No. 15-10520
limitations, 3 and (2) whether the district court abused its discretion in finding
that equitable tolling was inappropriate. In response to the appeal, Methodist
filed a motion seeking sanctions against Simmons for filing a frivolous appeal.
                                                  II.
                                                  A.
       The district court correctly found that the claims were untimely. It is
not even close for the Title VII retaliation claim, which must be filed within 90
days of receiving notice from the EEOC of his right to sue. 42 U.S.C. § 2000e–
5(f)(1). Simmons filed this suit in August 2014, almost four years after he
received his right to sue letter in October 2010.
       The state law claims are also time barred. Although each has a different
statute of limitations period, the longest is four years. See Tex. Civ. Prac. &
Rem. Code. § 16.002(a) (defamation); § 16.003(a) (negligence and intentional
interference with prospective contract); § 16.004(a)(4) (fraud); § 16.051 (breach
of contract). Simmons’s claims are based on events that occurred at the latest
in July 2010, and this suit was filed just over four years later in August 2014.
Even if the state claims relate back to the original complaint in this case, they
are time barred.
                                                  B.
       We next address whether the district court abused its discretion in
denying equitable tolling. See Teemac v. Henderson, 298 F.3d 452, 457 (5th
Cir. 2002) (stating that tolling decisions are reviewed for abuse of discretion).
Although there is no exhaustive list of circumstances that justify equitable
tolling, the doctrine in Title VII actions typically applies when: (1) a suit was
pending between the same parties in the wrong forum; (2) the plaintiff was


       3 It is not clear from Appellant’s brief if he is contesting whether the statutes of
limitations had passed, or just the district court’s refusal to apply equitable tolling. In an
abundance of caution and given Simmons’s pro se status, we address both issues.
                                              3
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                                         No. 15-10520
unaware of the facts giving rise to the claim because of the defendant’s
intentional concealment; or (3) the EEOC misled the plaintiff about the nature
of his rights. Alvarado v. Mine Serv., Ltd., No. 14-50668, 2015 WL 4578428,
at *3 (5th Cir. July 30, 2015); Hood v. Sears Roebuck & Co., 168 F.3d 231, 232
(5th Cir. 1999). The district court correctly found that none of these situations
apply to Simmons. Nor do we see any other “extraordinary circumstances” that
might warrant tolling when the plaintiff has diligently pursued his rights. See
United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008). Simmons contends
that his attorney committed numerous mistakes, such as failing to include the
retaliation claim in his original suit and failing to provide Simmons with a
complete case file. 4 But we have repeatedly recognized that “[m]ere attorney
error or neglect is not an extraordinary circumstance such that equitable
tolling is justified.” Id. at 366; see also Harris v. Boyd Tunica, Inc., 628 F.3d
237, 240 (5th Cir. 2010). We thus AFFIRM the district court’s determination
that Simmons’s claims were time barred and that equitable tolling was not
warranted.
                                                     III.
       That leaves Methodist’s motion for sanctions. Methodist first requests
sanctions under Federal Rule of Appellate Procedure 38, which authorizes an
appellate court to impose sanctions against an appellant who prosecutes a
“frivolous appeal.” It also moves for sanctions pursuant to 28 U.S.C. § 1927,




       4 He also makes numerous conclusory allegations, such as that his attorney conspired
with defense counsel and engaged in fraud. Because these allegations are unsupported with
any factual specificity, the district court did not abuse its discretion in failing to toll based on
these allegations.
                                                 4
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                                       No. 15-10520
which prohibits those “admitted to conduct cases in any court” from
“unreasonably and vexatiously” multiplying the proceedings in any case. 5
       Although we demand a higher degree of responsibility from members of
the bar, pro se litigants are not free to clutter the court’s dockets with baseless
suits. Stelly v. Comm’r of Internal Revenue, 761 F.2d 1113, 1116 (5th Cir.
1985).     We have therefore held that sanctions on pro se litigants are
appropriate if a court previously warned that their claims are frivolous and
they are aware of “ample legal authority holding squarely against them.” Id.
       Simmons, however, received no prior warning from the district court,
which denied Methodist’s motion for Rule 11 sanctions. His arguments on
appeal, which focused on the tolling issue, are not so baseless as to warrant the
imposition of sanctions without any prior warning from a court. See Moody v.
Baker, 857 F.2d 256, 258 (5th Cir. 1988) (“The imposition of a sanction without
a prior warning is generally to be avoided.”) (per curiam). We therefore DENY
Methodist’s motion for sanctions. But because we AFFIRM the district court’s
judgment, costs are taxed against Simmons consistent with the Federal Rule
of Appellate Procedure 39(a)(2).




       5  We note that this court has not yet addressed whether a pro se litigant can be subject
to sanctions under section 1927 and need not do so today. Even if section 1927 does apply to
pro se litigants, we would not impose sanctions under the facts of this case.

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