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McFarland-Laswson v. US Department of Housing and Urban Development

United States District Court, E.D. Wisconsin

December 19, 2016



          HON. PAMELA PEPPER United States District Judge.

         I. Factual Background

         Plaintiff 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.

         The 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.

         The 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.

         The ALJ 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).

         Before 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.

         The 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.

         On the 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.

         II. Discussion

         A. Gender Discrimination and Veteran's Status Claims

         The 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 6.[1] 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.

         Title 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.

         The 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 ...

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