Opinion
3:04-CV-1654-G.
October 1, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is an employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e et seq. Parties: Plaintiff resides in Plano, Texas. She has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Defendant is Albertson. No process has been issued in this case. However, on August 26, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed her answers on September 28, 2004.
Statement of Case: The complaint, supplemented by the answers to the magistrate judge's questionnaire, alleges that Defendant discriminated against Plaintiff when it terminated her employment on June 1, 2004, on the basis of her race, sex, age and religion.
(Answer to Question 2).
Findings and Conclusions: 28 U.S.C. § 1915(e) imposes a screening responsibility on the district court. It reads in pertinent part as follows:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
(Emphasis added).
As a condition precedent to filing a civil suit under 42 U.S.C. § 2000e-5(f)(1), a plaintiff must comply with the following administrative requirements:
(1) file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within one hundred eighty (180) days of the alleged unlawful employment practice or within three hundred (300) days if the aggrieved party has initially instituted proceedings with an appropriate state or local agency, and; (2) obtain a notice of right to sue letter from the EEOC.42 U.S.C. §§ 2000e-5(e)(1) (f)(1). Failure to comply with the above requirements deprives the court of subject matter jurisdiction. National Assn. of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994); Clerk v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994); Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990).
While Plaintiff filed a complaint with the EEOC on or about June 1, 2004, with respect to the acts of Albertson or any of its employees, it appears she has yet to receive a right to sue letter from the EEOC — a condition precedent to filing this suit. (See Answer to Questions 4 and 5 of the Magistrate Judge's Questionnaire). Thus, Petitioner has failed to exhaust her administrative remedies and the complaint should be dismissed for lack of subject matter jurisdiction. National Assn. of Gov't Employees, 40 F.3d at 711-12 (unless a claim of discrimination has first been timely filed with the EEOC, the court is barred from adjudicating it); Tolbert, 916 F.2d at 248 (employment discrimination claimant who chose to pursue administrative review of federal agency's denial of her claim was required to exhaust that remedy before filing civil action in federal court).
In answer to Question 5, which asked Plaintiff to state the date on which she received the right to sue letter and to attach a copy of the same, Plaintiff wrote "[s]ee Number 4." In answer to Question 4, Plaintiff stated that June 1, 2004, was the date on which she filed the EEOC complaint. The answers to the questionnaire do not contain a copy of the right to sue letter.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed for want of jurisdiction.
A copy of this recommendation shall be mailed to Plaintiff.