Opinion
CV-01-1752-ST
December 6, 2001
ORDER GRANTING IN FORMA PAUPERIS and FINDING AND RECOMMENDATION TO DISMISS
Plaintiff Christie Davis ("Davis"), appearing pro se, has filed an application to proceed in forma pauperis (docket #1). An examination of the application reveals that Davis is unable to afford the costs of this action. Accordingly, IT IS ORDERED that the provisional in forma pauperis status given Davis is confirmed. This action may go forward without the payment of fees or costs, including the costs associated with service.
However, because this case should be dismissed for lack of subject matter jurisdiction, IT IS FURTHER ORDERED that defendant shall not be served with summons and complaint until this court acquires jurisdiction and authorizes service on defendant.
DISCUSSION
Davis alleges that while working as an electrician for defendant, Team Electric Co., she suffered health damage to her lungs, hands, wrists, and arms due to working in hazardous locations for prolonged periods. Although she complained and asked to be transferred to a less hazardous position, defendant refused, apparently resulting in Davis' termination on September 7, 2001. She seeks to recover exemplary and punitive damages (which are one and the same) in the sum of $150,000, emotional pain and suffering in the sum of $350,000, and retraining.
Federal courts are courts of limited jurisdiction and a case is presumed to fall outside a federal courts jurisdiction unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A district court is empowered to hear only those cases which are within the judicial power conferred by the United States Constitution and those which fall within the area of jurisdiction granted by Congress. Richardson v. United States, 943 F.2d 1107, 1112-13 (9th Cir. 1991), cert denied, 503 U.S. 936 (1992). Under Rule 12(h) of the Federal Rule of Civil Procedure, this court is required to dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
According to the Civil Cover Sheet, Davis claims jurisdiction in this court because the U.S. Government is the plaintiff. However, the allegations of the Complaint reveal that Davis, not the U.S. Government, is the plaintiff. Therefore, this court does not have jurisdiction under 28 U.S.C. § 1345.
Another basis for jurisdiction in this court is diversity of citizenship between the parties under 28 U.S.C. § 1332. That statute requires that the parties be citizens of different states and that the amount in controversy exceed the sum of $75,000.00, exclusive of interest and costs. However, Davis has checked boxes on the Civil Cover Sheet indicating that she is an Oregon citizen and defendant is incorporated or has its principal place of business in Oregon, which is confirmed by the allegations of the Complaint. Because the parties are not citizens of different states, this court has no diversity jurisdiction over Davis' claim.
Another common basis for jurisdiction arises under 28 U.S.C. § 1331 which grants federal district courts original jurisdiction over "all civil actions arising under the Constitution, laws or treaties of the United States." A complaint to recover damages for personal injuries does not present any such federal question, but at best states a common law claim for negligence arising under state law. Given that Davis was injured on the job, she may have a claim against defendant under Oregon's Workers Compensation Law, which also is a claim arising under state law. Therefore, this court has no federal question jurisdiction over Davis' claim as pled in the Complaint. If Davis has a viable claim against defendant under state law, then she must file that claim in Oregon state court, rather than in federal court.
Although it is far from clear from the few allegations in the Complaint, Davis may be suffering from permanent injuries and, therefore, may have a potential claim under the Americans with Disability Act, 42 U.S.C. § 12101 et seq. ("ADA"). The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is an "individual with a disability who, with or without reasonable accommodations can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). An individual is qualified if she satisfies the requisite skill, experience, education, and other job-related requirements and can perform the "essential functions" of the job, "with or without reasonable accommodation." 42 U.S.C. § 12111(8). A plaintiff bears the burden of proving that she can perform the essential functions of her job with or without reasonable accommodation. Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir. 1996).
If Davis is "qualified individual with a disability," then she may have a claim under the ADA if the defendant discriminated against her on the basis of her disability, failed to reasonably accommodate her disability, and/or then retaliated against her for her complaints. However, to pursue that claim, Davis must first file a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 12117(a) (incorporating the enforcement procedures as set forth at 42 U.S.C. § 2000e-5); Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). According to 42 U.S.C. § 2000e-5(e), "a complainant must file a charge with the EEOC within 180 days of the last act of alleged discrimination, unless the complainant initially institutes proceedings with a state or local agency, in which case the EEOC charge must be filed within 300 days." Santa Maria, 202 F.3d at 1176. A failure to file within the prescribed period is treated as a violation of the statute of limitations and is normally a bar to recovery. See id. A timely filing with the EEOC is important in part because it provides a defendant employer the opportunity to rectify mistakes it may have made. If defendant terminated Davis' employment on September 7, 2001, then Davis still may timely file an ADA claim with the EEOC or Oregon's Bureau of Labor and Industries.
Despite the potential in the future for a possible ADA claim, at this point, this court can conceive of no amendment to cure the jurisdictional defect and therefore recommends that the Complaint be dismissed with prejudice.
RECOMMENDATION
Based on the foregoing, the Complaint should be DISMISSED with prejudice for lack of jurisdiction.
SCHEDULING ORDER
Objections to the above Finding and Recommendation, if any, are due on or before December 28, 2001. If plaintiff files no objections, then this Finding and Recommendation will be referred to a district court judge and go under advisement on that date.
This Finding and Recommendation is not is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.