McFarland-Laswson v. US Department of Housing and Urban Development et al
Filing
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ORDER signed by Judge Pamela Pepper on 12/19/2016 re 1 Complaint - Pro Se filed by Jamesetta McFarland-Lawson. The court ORDERS the plaintiff to file additional documents requested in this order by 1/27/2017. If the plaintiff does not file these documents by the end of the day on 1/27/2017 or ask for more time to do so, the court may dismiss her Complaint. (cc: all counsel; by US Mail to Plaintiff)(pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMESETTA MCFARLAND-LAWSON,
Case No. 16-cv-685-pp
Plaintiff,
v.
US DEP. OF HOUSING AND URBAN DEVELOPMENT et al.,
Defendants.
ORDER REQUIRING THE PLAINTIFF TO PROVIDE THE COURT WITH
ADDITIONAL DOCUMENTS BY JANUARY 27, 2017
I.
Factual Background
Plaintiff Jamesetta McFarland-Lawson worked at the US Department of
Housing and Urban Development (“HUD”). Dkt. No. 1 at 4. During her time at
HUD, she allegedly experienced a hostile work environment due to her sex,
race, veteran status and disability. Id. The plaintiff states that she filed three
complaints with the U.S. Equal Employment Opportunity Commission
(“EEOC”). Id. at 5. The plaintiff did not attach those EEOC charges to her
complaint, or explain what happened to them.
The plaintiff did attach to her complaint the administrative law judge’s
decision on EEOC charge no. 443-2013-00139X. Dkt. No. 1. According to the
decision, there were two issues before the administrative law judge in that
matter: whether HUD discriminated against the plaintiff based on her race
(African American), and whether it discriminated against her based on her
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disability. Id. at 3. The administrative law judge found that HUD had failed to
provide the plaintiff with an effective reasonable accommodation for her
disabilities, had not met its burden to demonstrate that the requested
accommodations would have posed an undue hardship, and had subjected the
plaintiff to hostile work environment harassment. Dkt. No. 1-1 at 62. In other
words, the ALJ found in the plaintiff’s favor, and against HUD, on both of the
plaintiff’s claims. The ALJ found that the plaintiff was entitled to nonpecuniary, compensatory damages totaling $50,000. Id. at 65. She ordered
HUD to make that payment within thirty days of the date her decision became
final. Id.
The accompanying Notice to the Parties required HUD to issue a final
order within forty days, notifying the plaintiff whether it intended to implement
her decision; the notice informed the plaintiff that once she received HUD’s
final order, she could appeal it within thirty days. Id. at 69. It also notified the
plaintiff that if HUD failed to issue a final order, she could file her own appeal
“at any time after the conclusion of the agency’s (40) day period for issuing a
final order.” Id. The notice told the plaintiff where to file her appeal.
The ALJ issued her decision on May 9, 2016. Id. at 67. That means that
HUD was required to issue its final order by Saturday, June 18, 2016 (more
likely, by the next week day—Monday, June 20, 2016). If the final order stated
that HUD planned to implement the ALJ’s ruling, HUD would have had thirty
days to pay the plaintiff $50,000 (by July 20, 2016 or so). If the final order
indicated that HUD did not plan to implement the ALJ’s ruling, HUD would
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have to file an appeal to the EEOC, and attach a copy of that appeal to the final
order. If HUD did not issue a final decision within forty days, the plaintiff
would have had thirty days to file her own appeal (by July 20, 2016 or so).
Before any of those deadlines passed, however, the plaintiff filed this
lawsuit. She filed the federal court complaint on June 8, 2016—ten to twelve
days before the deadline for HUD to issue its final order. Dkt. No. 1.
The complaint says that “[t]his complaint starts where EEOC 443-201300139 ended.” Id. at 6. The plaintiff says that she “received a final agency
decision from John B Benson, director of the Office of Departmental Equal
Employment Opportunity,” and that in the appeal section of that decision, “it
states that [the plaintiff] may file a civil action in the appropriate United States
District Court within 90 calendar days of receipt of the order.” Id. The plaintiff
did not attach a copy of this final agency decision to her complaint.
On the same day that she filed her lawsuit, the plaintiff filed a motion for
leave to proceed without prepaying the filing fee, dkt. no. 2, and a motion to
appoint counsel, dkt. no. 3. For the reasons explained below, the court is going
to defer ruling on the motion to proceed without prepaying the filing fee and the
motion to appoint counsel, and is going to require the plaintiff to amend her
complaint to provide the court with additional information.
II.
Discussion
A.
Gender Discrimination and Veteran’s Status Claims
The plaintiff alleges in the June 8, 2016 complaint that HUD employees
discriminated against her because of her “sex, race, veteran status and
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disability.” Dkt. No. 1 at 4. She identified her disabilities as attention deficit
hyperactivity disorder, posttraumatic stress disorder, dyslexia, and
fibromyalgia. Dkt. No. 1 at 6.1 Dkt. No. 1 at 4-5. The court construes these
claims as claims that HUD violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e et seq. (employment discrimination based on race and gender);
the Americans with Disabilities Act (discrimination based on disability); and
the Uniformed Services Employment and Reemployment Rights Act, or
“USERRA,” 38 U.S.C. 4301 et seq. (discrimination based on military service). It
is also possible that the plaintiff seeks to assert a civil rights claim under 42
U.S.C. §1983.
Title VII, the ADA, and the ADEA require that before a plaintiff can file a
federal lawsuit, she must file a charge with the Equal Employment
Opportunity Commission (EEOC) within 300 days of the alleged unlawful
employment practice. 42 U.S.C. §20005(e)(1); 42 U.S.C. §12117(a); 29 U.S.C.
§626(d)(1). The plaintiff must let that charge play out at the EEOC level before
filing suit in federal court. This is called “exhausting administrative remedies.”
Whether a plaintiff has “exhausted” her administrative remedies depends on
what the EEOC does with the plaintiff’s charge of discrimination.
Employment discrimination based on veteran status is addressed by 38
U.S.C. §§ 4301 to 4344, the Uniform Services Employment and Reemployment
Rights Act (USERRA). It follows that the same pleading standard for Title VII
claims at the screening stage applies to USERRA claims. Furthermore,
USERRA litigants are permitted to initiate suit without prepaying the filing fee
upon producing an affidavit establishing the moving party’s veteran status. See
Davis v. Advocate Health Center Patient Care Exp., 523 F.3d 681, 685 (7th Cir.
2008).
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The plaintiff states in her complaint that she filed three different charges
with the EEOC. Dkt. No. 1 at 5. She indicates that she filed the first one on in
January 2012, and that this is the one that resulted in the ALJ’s decision. Id.
She doesn’t indicate when she filed the other two charges, or what she alleged
in them, or what happened to them.
As explained in the factual background, the ALJ considered only two
claims: whether HUD discriminated against the defendant based on her race,
and whether it discriminated against her based on her disability. The ALJ did
not mention gender or veteran’s status. Because the plaintiff did not attach
the other two EEOC charges, or explain what they alleged, the court does not
know whether the plaintiff has raised her gender and veteran’s status claims
with the EEOC.
It is possible that the plaintiff did raise those two claims with the EEOC,
and that the EEOC reviewed the charges and decided to dismiss them. The
EEOC can do this before conducting an investigation (for example, if the
plaintiff doesn’t cooperate), or after it has investigated (if it can’t determine
that the employer violated the law). If the EEOC decides to dismiss a charge, it
will give the plaintiff a “Notice-of-Right-to-Sue” letter, which tells the plaintiff
that she may file a lawsuit in federal court within ninety days. Houston v.
Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999) (citations omitted).
If the plaintiff raised her gender and veteran’s status claims with the
EEOC and the EEOC dismissed them, she should have received Notice-ofRight-to-Sue letters from the EEOC, giving her a deadline by which to file her
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federal court case. If the plaintiff has those Notice-of-Right-to-Sue letters, the
court wants to give her an opportunity to provide them to the court. If she
hasn’t raised her gender and veteran’s status claims with the EEOC, and
hasn’t received a Notice-of-Right-to-Sue letter on those two claims, she has not
exhausted her remedies on those claims, and she can’t bring those claims in
this federal lawsuit.
B.
Race and Disability Claims
The ALJ did consider the plaintiff’s claims that HUD discriminated
against her based on her race and her disability, and as the factual
background indicates, the ALJ ruled in the plaintiff’s favor. The next step
would have been for HUD to issue its final decision, and the deadline for that
was approximately June 18-20, 2016. The complaint states that the plaintiff
received “a final agency decision from John B Benson, director of the Office of
Departmental Equal Employment Opportunity.” Dkt. No. 1 at 6. The Notice to
the Parties that accompanied the ALJ’s decision has a certificate of service
attached; that certificate lists “John P. Benison,” and identifies him as the
“ODEEO” at HUD. Dkt. No. 1-1 at 71.
While the plaintiff doesn’t directly say so, the court thinks that perhaps
HUD issued its final decision early—before the June 18-20, 2016 deadline—
and that the plaintiff received it before she filed her complaint on June 8.
Because the plaintiff did not attach the document to her complaint, however,
the court doesn’t know what the final order said. Did HUD agree to implement
the ALJ’s May 9, 2016 order? If so, why did the plaintiff file this lawsuit, rather
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than waiting for thirty days to see if she got the $50,000 the ALJ ordered HUD
to pay? She indicates in her June 8, 2016 request to proceed without
prepaying the filing fee that she’d won the EEOC case but hadn’t seen any
money. Dkt. No. 2 at 4. If, however, HUD issued its final order on June 1 (just
to pick a hypothetical date), and indicated that it planned to implement the
ALJ’s order, it would have had thirty days (until July 1) to pay the plaintiff.
Even if HUD had issued a final order on May 15, 2016, agreeing to implement
the ALJ’s order, HUD would have had until June 14 to pay the plaintiff. And
even if HUD had issued its final order and agreed to comply with the ALJ’s
decision, and then failed to pay the plaintiff her money within thirty days, the
next step would have been for the plaintiff to notify the EEOC director within
thirty days of the fact that she hadn’t gotten her money. 29 C.F.R. §1614.504.
On the other hand, perhaps the document the plaintiff received from Mr.
Benison was HUD’s final order, and it said that HUD was not going to comply
with the ALJ’s decision. If that is the case, HUD should have attached to the
final order a copy of the appeal it filed with the Director of Federal Operations
at the EEOC in Washington, D.C. The EEOC then would review that appeal.
As things stand right now, it appears to the court that the plaintiff filed
this lawsuit before the EEOC process was complete—at least with regard to
EEOC charge no. 443-2013-00139X. She indicates that the notice she received
from Mr. Benison stated, in the appeal section, that she could file a lawsuit in
federal court within ninety days of the date of the order. It would help the
court very much if the court could see that order from Mr. Benison, so that it
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could figure out whether the EEOC process was complete before the plaintiff
filed this lawsuit on June 8, 2016.
III.
Conclusion
The court is going to give the plaintiff an opportunity to provide the court
with the documents it needs to make a decision about whether the plaintiff’s
federal court case is premature. The court asks the plaintiff to file the following
documents, if she has them:
*
Her other two EEOC charges;
*
Any Notice-of-Right-to-Sue she may have received from the EEOC;
*
A copy of the final agency decision she received from Mr. Benison.
and
If the plaintiff provides the court with copies of those documents by the
deadline below, the court will review them and decide whether to allow her to
proceed on the federal lawsuit. If the court allows the plaintiff to proceed, it
will issue rulings on her motion to proceed without prepaying the filing fee and
her motion to appoint counsel.
It is possible that the plaintiff has received her money from HUD, and no
longer wishes to proceed with the federal lawsuit. If that is the case, the
plaintiff may—by the same deadline—notify the court that she wishes to
voluntarily dismiss her lawsuit.
The court ORDERS that, no later than the end of the day on January 27,
2017, the plaintiff file with the court:
*
Her other two EEOC charges;
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*
Any Notice-of-Right-to-Sue she may have received from the EEOC;
*
A copy of the final agency decision she received from Mr. Benison.
and
If the plaintiff does not file these documents by the end of the day on
January 27, 2017 (or ask for more time to do so), the court may dismiss her
complaint.
Dated in Milwaukee, Wisconsin this 19th day of December, 2016.
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