Mack v. Elite Staffing

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket No. 3 ) is DENIED at t his time. IT IS FURTHER ORDERED that plaintiff shall show cause, in writing and no later than twenty-one (21) days from the date of this Order, why plaintiffs ADA claims should not be dismissed from this action for plaintiff's failure to adequ ately exhaust her administrative remedies with respect to these claims. IT IS FURTHER ORDERED that if plaintiff fails to respond to this Memorandum and Order, her claims brought pursuant to the ADA will be dismissed without prejudice. ( Show Cause Response due by 7/11/2018.). Signed by District Judge Ronnie L. White on 6/20/2018. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CORRINE MACK,
Plaintiff,
V.

ELITE STAFFING, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:18-cv-00697-RLW

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Corrine Mack for leave to
commence this action without payment of the required filing fee. (Docket No. 2). Upon
consideration of the financial information provided with the application, the Court finds that the
applicant is financially unable to pay any portion of the filing fee. Therefore, plaintiff will be
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 191 S(a). Additionally, the
Court will order plaintiff to show cause why her claims brought pursuant to the Americans with
Disabilities Act (ADA) should not be summarily dismissed for failing to exhaust her
administrative remedies. 1
Plaintiffs complaint alleges that she was sexually harassed by a fellow coworker at
Menasha Packaging Company. 2 She asserts that after she complained of the sexual harassment,
she was fired. Despite plaintiff's allegations in her "statement of claim," on the first page of the
complaint, she has checked the box stating that she is bringing her employment discrimination
claim pursuant to the ADA, 42 U.S.C. §§ 12101, et seq.

1

Under28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be granted.
2
Plaintiff appears to have been employed by a staffing company, Elite Staffing. She claims she was placed at
Menasha to work as a packer.

"The ADA bars private employers from discriminating against a qualified individual on
the basis of disability." Faidley v. United Parcel Serv. Of America, Inc., 889 F.3d 933, 940 (8th
Cir. 2018). Discrimination includes an employer not making a reasonable accommodation to the
known physical or mental limitations of an otherwise qualified individual with a disability.

Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012). In order to
establish a prima facie case of discrimination under the ADA, "an employee must show that she
(1) is disabled within the meaning of the ADA, (2) is a qualified individual under the ADA, and

(3) has suffered an adverse employment action because of her disability." Hill v. Walker, 737
F.3d 1209, 1216 (8th Cir. 2013). See also Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 684 (8th
Cir. 2003). To establish a disability, an ADA claimant must show a physical or mental
impairment substantially limiting a major life activity, a record of such impairment, and that the
claimant is regarded as having such impairment. Duty v. Norton-Alcoa Proppants, 293 F.3d 481,
490-91 (8th Cir. 2002).
Here, plaintiff's allegations do not state a claim under the ADA. Plaintiff alleges that she
was sexually harassed at work, that she complained about the harassment, and that she was
thereafter fired in retaliation for making the complaint. (Docket 1 at 5). Nothing in plaintiff's
statement of claim makes any mention that she suffered from a qualified disability under the
ADA, or that her employer failed to accommodate a qualified disability.
Furthermore, plaintiff's charge of discrimination filed with the Equal Employment
Opportunity Commission (EEOC) does not concern allegations of disability discrimination or
failure to accommodate a disability under the ADA. Rather, plaintiff's claims in her charge
encompass sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42

2

U.S.C. §§ 2000e, et seq.3 If plaintiff desires to bring an ADA claim, she must first exhaust her
remedies with the EEOC. See 42 U.S.C. § 12117(a) (incorporating by reference 42 U.S.C. §
2000e-5(e)(l) outlining charge requirements). See also Harris v. P.A.M Transp., Inc., 339 F.3d
635, 638 (8th Cir. 2003) ("There is a long settled rule of judicial administration that no one is
entitled to judicial relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted"); Randolph v. Rogers, 253 F.3d 342, 347 n.8 (8th Cir. 2001) ("Title
VII of the Civil Rights Act of 1964 and Title I of the ADA both require exhaustion of
administrative remedies").
Courts should not use administrative procedures as a "trap for unwary prose civil-rights
plaintiffs." Duncan v. Delta Consol. Indus., Inc., 371F.3d1020, 1025 (8th Cir. 2004).
Accordingly, when appropriate, a plaintiffs civil rights and discrimination claims will be
charitably construed. Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996). With this in
mind, the Court will give plaintiff the opportunity to show cause why her claims under the ADA
should not be dismissed for failure to exhaust her administrative remedies.
Additionally, plaintiff has filed a motion for appointment of counsel. At this time, it
appears plaintiff is able to reasonably assert her own interests. Therefore, the Court will deny
plaintiffs motion. See Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013) ("In civil cases, there is
no constitutional or statutory right to appointed counsel").
According! y,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.

3

The Court notes that plaintiffs Title VII claims are timely and appear to be fully exhausted. Plaintiffs right to sue
letter from the EEOC gave her ninety days from March 21, 2018 in which to file a lawsuit. Plaintiffs lawsuit was
filed on May 3, 2018. Therefore, plaintiffs Title VII claims survive§ 1915 review.

3

IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel
(Docket No. 3) is DENIED at this time.
IT IS FURTHER ORDERED that plaintiff shall show cause, in writing and no later
than twenty-one (21) days from the date of this Order, why plaintiffs ADA claims should not
be dismissed from this action for plaintiffs failure to adequately exhaust her administrative
remedies with respect to these claims.
IT IS FURTHER ORDERED that if plaintiff fails to respond to this Memorandum and
Order, her claims bro~t pursuant to the ADA will be dismissed without prejudice.
Dated thi~_ of June, 2018.
da~y

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

4