Opinion
No. 02-2314-KHV
August 26, 2002
MEMORANDUM AND ORDER
Currently pending before the Court is Plaintiff's Application for Leave to File Action without Payment of Fees, Costs or Security (doc. 2) and Plaintiff's Application for Appointment of Counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) (doc. 3).
Section 1915(a) of Title 28 in the United States Code sets forth the circumstances under which an individual is allowed to bring proceedings in forma pauperis. That statute provides that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit . . . that the person is unable to pay such fees or give security therefor." The Court must also, however, make a preliminary determination that an action is neither frivolous nor malicious before granting leave to proceed in forma pauperis.
United States v. Crawford, 92-40005-01-DES, 1996 WL 748365, at *1 (D.Kan. Dec. 13, 1996) (citing Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 757 (7th Cir. 1988)).
Relevant to the pending request for appointment of counsel, the Tenth Circuit Court of Appeals has identified "the merits of plaintiff's case" as one of four factors to consider in evaluating applications for appointment of counsel. If a plaintiff's discrimination complaint appears legally sufficient on its face, "a court ordinarily should review the [Equal Employment Opportunity Commission ("EEOC")] investigative file" to help it determine whether the case has merit.
Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1420-22 (10th Cir. 1992).
Id. at 1422.
Given these directives, the Court ordered the EEOC investigative file in the above-referenced matter. Upon receipt and review of the EEOC file, as well as the Complaint in this matter, it appears to the Court that
• Plaintiff filed a Charge of Discrimination with the EEOC on August 13, 2000 alleging discrimination on the basis of race occurring on or about June 8, 2000;
• On or about September 27, 2000, the EEOC issued to Plaintiff her Notice of Right to Sue letter; and
• On July 3, 2002, Plaintiff filed this lawsuit alleging discrimination on the basis of race pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and on the basis of disability pursuant to the Americans with Disabilities Act, codified at 42 U.S.C. § 12111 et seq.
Based on these facts, it appears Plaintiff's Title VII claim is untimely and that Plaintiff failed to properly exhaust her administrative remedies with respect to her ADA claim.
As a preliminary matter, under Title VII, a plaintiff must file suit within 90 days after she receives notice of his right to sue. Here, it appears Plaintiff did not file her lawsuit until approximately 21 months after receiving her right to sue letter. It thus appears that her Title VII claim is untimely.
Moreover, to bring an ADA claim, an employee must file a discrimination charge with the state agency and/or the EEOC within 300 days after the alleged discriminatory act occurred to exhaust her administrative remedies. Failure to exhaust administrative remedies by filing a charge with the EEOC within 300 days of the alleged unlawful occurrences deprives the court of jurisdiction to consider them. Thus, it appears the Court has no jurisdiction to consider Plaintiff's ADA claim.
42 U.S.C. § 2000e-5(e); Amro v. Boeing Co., 951 F. Supp. 1533, 1553 (D.Kan. 1997).
Robbins v. Jefferson County School District R-1, 186 F.3d 1253, 1257 (10th Cir. 1999).
Based on the facts presented, the Court is unable to make a determination that the case is not frivolous. Accordingly, it is hereby ordered that Plaintiff's Application for Leave to File Action without Payment of Fees, Costs or Security (doc. 2) and Plaintiff's Application for Appointment of Counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) (doc. 3) are denied.
It is further ordered that Plaintiff shall show cause in writing to the Honorable Kathryn H. Vratil, United States District Judge, on or before, why this case should not be dismissed in its entirety for failing to state a claim upon which relief can be granted.
IT IS SO ORDERED.