Opinion
Civil Action No. SA-05-CA-1137-XR.
January 30, 2006
ORDER
On this date, the Court considered the Memorandum and Recommendation of the United States Magistrate Judge Pamela A. Mathy and Plaintiff's objections thereto. The Magistrate Judge recommends that the case be dismissed without prejudice because Plaintiff has failed to exhaust his administrative remedies. After careful consideration of the record and Plaintiff's objections, the Court ACCEPTS the Magistrate Judge's recommendation that Plaintiff's employment discrimination claims be DISMISSED without prejudice.
I. Factual and Procedural Background
On November 22, 2005, Plaintiff DeGerald Roy Wilson filed motions to proceed in forma pauperis and for appointment of counsel in connection with a lawsuit he proposes to file against the Texas Higher Education Coordinating Board (THECB). Plaintiff alleges THECB violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. (Title VII), and the Americans With Disabilities Act, 42 U.S.C. §§ 12102 et seq. (ADA), by refusing to hire him on six different occasions between March, 2005 and November, 2005. Plaintiff, an African-American male allegedly suffering from Schizophrenia and spinal problems, claims THECB discriminated against him based on his race, sex, and disabilities. Plaintiff claims he only applied for positions he was qualified for, including Collection Specialist (two positions), Loan Representative I, Accountant I, Account Representative Trainee, and an unidentified position. Although Wilson never received an interview for any of the applied for positions, he alleges THECB learned of his disabilities, sex, and race through background checks and his name.
II. Standard of Review
Plaintiff has objected to the Magistrate Judge's Report and Recommendation. When a party objects to a Magistrate Judge's Report and Recommendation, the district court conducts a de novo review. See 28 U.S.C. § 636(b)(1). Such a review means that the Court will examine the entire record and will make an independent assessment of the law.
A district court is required to dismiss a pro se litigant's in forma pauperis civil rights suit if it determines that the complaint fails to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint should not be dismissed for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Bauer v. Texas, 341 F.3d 352, 356 (5th Cir. 2003). In making this determination, the Court must accept Plaintiff's allegations as true, and all reasonable inferences are to be drawn in favor of Plaintiff's claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Bauer, 341 F.3d at 356. The Court does not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). To state a claim under Title VII and the ADA, a plaintiff must exhaust all of his administrative remedies, including filing an EEOC charge and receiving an EEOC right-to-sue letter. Henson v. Bell Helicopter Textron, Inc., 128 Fed. Appx. 387, 390-91 (5th Cir. 2005).
III. Analysis
To proceed in forma pauperis, Plaintiff must establish his proposed complaint presents a non-frivolous claim:
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 or appeal —
(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.28 U.S.C. § 1915(e)(2). In reviewing a complaint under section 1915(e), a federal district court is not required to accept the truth of the plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court may dismiss an in forma pauperis proceeding as frivolous whenever it appears the claim has no arguable basis in law or fact. Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir. 1991). In evaluating the frivolity of the plaintiff's claims, the court may raise sua sponte affirmative defenses apparent from the record even when such defenses have not been presented in a pleading on file. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). Based on the record, the Court finds, as the Magistrate Judge did, the need to address whether Plaintiff exhausted his administrative remedies.
"[B]efore a plaintiff may file a civil action under Title VII or the ADA, he must exhaust administrative remedies, which include filing a charge of discrimination with the EEOC within 300 days after the alleged violations occurred and filing suit within 90 days after receiving a right-to-sue letter from the EEOC." Henson, 128 Fed. Appx. at 390-91 (citing 42 U.S.C. § 2000e-5(b), (e), (f); 42 U.S.C. § 12117); see also Johnson v. Bergland, 614 F.2d 415, 417 (5th Cir. 1980) (a complainant must pursue and exhaust his administrative remedies prior to filing a judicial complaint). Receipt of an EEOC right-to-sue letter is a prerequisite to filing suit under Title VII or the ADA. Levitt v. Univ. of Tex. at El Paso, 847 F.2d 221, 224 (5th Cir. 1988) (citing 42 U.S.C. § 2000-e5(f)(1)).
Plaintiff objects to the Magistrate Judge's conclusion that he failed to exhaust his administrative remedies. The Magistrate Judge found that Plaintiff's EEOC charge addressing THECB's refusal to interview and/or hire him for five positions between March 1 and August 31, 2005 did not relate to the EEOC right-to-sue letter attached to the proposed complaint. Specifically, the claims presented in Plaintiff's proposed complaint against THECB were included in EEOC Charge No. 360-2005-3293, whereas the attached right-to-sue letter related to EEOC Charge No. 360-2005-3295. The only explanation Plaintiff offers for this discrepancy is "the complaint's initial time interval corresponds to the five positions applied for during March to August 2005 only. The EEOC charge documents should also correspond to the aforementioned interval." Pl.'s Obj., at 2.
While Plaintiff is correct that EEOC Charge No. 360-2005-03293 relates to the March to August 2005 interval, he failed to submit a right-to-sue letter for this charge. The Magistrate Judge's November 23, 2005 Show Cause Order explained this discrepancy and afforded Plaintiff an opportunity to file the correct right-to-sue letter. See docket no. 3. Plaintiff's objections provide no further guidance outside of the above-quoted language. While it is certainly plausible that the EEOC could have made a clerical error in docketing Plaintiff's charge, it is equally plausible that Plaintiff filed numerous EEOC charges against THECB. Plaintiff is a serial filer of employment discrimination lawsuits against any entity for which he is denied employment. Plaintiff has been provided ample opportunity to explain the discrepancy in EEOC charge and right-to-sue numbers and has offered no explanation. Based on these facts, the Court will not leap to the conclusion that the EEOC made a clerical error in processing Plaintiff's charge and/or right-to-sue letter. Because Plaintiff has failed to produce a right-to-sue letter associated with the claims he presented in the EEOC Charge No. 360-2005-3293 and the proposed complaint, the Court finds Plaintiff has failed to exhaust his administrative remedies.
The Court takes judicial notice that in 2003, Plaintiff filed seven motions for leave to proceed in forma pauperis in this Court. Each motion accompanied a proposed discrimination lawsuit alleging seven separate defendants discriminated against him in violation of Title VII and, in one proposed case, in violation of the ADA. See DeGerald Wilson v. Texas Attorney General's Office, SA-03-CA-1015-RF; DeGerald Wilson v. Texas Workforce Commission, SA-03-CA-1016-RF; DeGerald Wilson v. Texas Lottery Commission, SA-03-CA-1017-RF; DeGerald Wilson v. Texas Department of Public Safety, SA-03-CA-1018-RF; DeGerald Wilson v. KB Homes, SA-03-CA-1019-RF; DeGerald Wilson v. Texas Guaranteed Student Loans, SA-03-CA-1020-RF; DeGerald Wilson v. City of San Antonio, SA-03-CA-1066-RF. Collectively, these cases represented approximately sixty-six non-selection employment decisions made by the respective defendants. United States District Judge Royal Ferguson dismissed each case as frivolous. Plaintiff's current proposed lawsuit presents nearly identical allegations and claims as each of the previously dismissed actions.
Even if Plaintiff had exhausted his administrative remedies, Plaintiff has failed to present a non-frivolous cause of action. A court may dismiss a claim as factually frivolous if the facts alleged are clearly baseless, fanciful, fantastic, delusional, or otherwise rise to the level of irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Plaintiff objected to the Magistrate Judge's recommendation that his claims were frivolous and not filed in good faith. Liberally construing Plaintiff's proposed complaint, response to the show cause order, and objections in his favor, it appears Plaintiff essentially complains that he was not offered a job with THECB after filing applications for six different positions for which he was allegedly qualified. Plaintiff alleges THECB "found out about my disabilities because they indicate on their forms that they do criminal and medical background checks" and surmises his gender and race were determined based on his name. Plaintiff was not interviewed for any of the six positions and apparently neither knows who was hired nor if those hired were less qualified. The Court having undertaken an independent review of the record agrees with the Magistrate Judge that Plaintiff's proposed complaint presents frivolous causes of action based on nothing more than conjecture. See Denton, 504 U.S. at 32 (Section 1915(d), the predecessor to section 1915(e)(2)(B), "accords judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.").
IV. Conclusion
The Magistrate Judge recommends Plaintiff's lawsuit be dismissed without prejudice for failure to exhaust administrative remedies and failure to state a claim under Title VII and the ADA. After careful consideration of the record and Plaintiff's objections, this Court ACCEPTS the Magistrate Judge's Recommendation that Plaintiff's motion for leave to proceed in forma pauperis be DENIED (docket no. 1) for failure to exhaust administrative remedies and allege a non-frivolous cause of action, and Plaintiff's motion for appointment of counsel be DENIED as moot (docket no. 2). Accordingly, Plaintiff's case is DISMISSED without prejudice.