United States District Court, E.D. Wisconsin
ORDER REQUIRING THE PLAINTIFF TO PROVIDE THE COURT
WITH ADDITIONAL DOCUMENTS BY JANUARY 27, 2017
PAMELA PEPPER United States District Judge.
Jamesetta McFarland-Lawson worked at the U.S. 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.
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 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 non-pecuniary, 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.
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.
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 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).
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.
complaint says that “[t]his complaint starts where EEOC
443-2013-00139 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.
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.
Gender Discrimination and Veteran's Status
plaintiff alleges in the June 8, 2016 complaint that HUD
employees discriminated against her because of her
“sex, race, veteran status and 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
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.
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.
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