United States District Court, W.D. Arkansas, Fort Smith Division
FREIDA L. MITCHELL PLAINTIFF
LORETTA CHAMBERLAIN DEFENDANT
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
has filed an application to proceed in forma
pauperis under 28 U.S.C. § 1915. (ECF No. 2).
Pursuant to 28 U.S.C. § 1915(e)(2) the Court has the
obligation to screen any Complaint in which an individual has
sought leave to proceed IFP. 28 U.S.C. § 1915(e)(2).
August 17, 2018, Plaintiff filed a pro se Employment
Discrimination Complaint requesting relief following a final
decision from the U.S. Equal Employment Opportunity
Commission (EEOC) dated July 20, 2017. (ECF No. 1). Plaintiff
alleges the discriminatory conduct of failure to hire,
failure to accommodate her disability, unequal terms and
conditions of employment, retaliation, and harassment.
(Id. at 4). She alleges this conduct was based on
her race, color, age, and disability or perceived disability.
attached a copy of her Request for Hearing and EEOC Final
Agency Decision to her Complaint. (ECF No. 1-1). Based on the
factual background contained in the Final Agency Decision,
Plaintiff applied for the position of Postal Support Employee
(PSE) Mail Processor at the Denver, Colorado, P&DC on
August 12, 2014. (ECF No. 1-1 at 8, 9). Her application was
then put on hold by Defendant Chamberlain for medical reasons
on November 20, 2014. (Id. at 8). Plaintiff was
interviewed by Defendant Chamberlain on November 24, 2014.
(Id.). On March 10, 2015, the vacancy announcement
under which Plaintiff had applied was cancelled.
(Id. at 10). Defendant Chamberlain closed Plaintiffs
ongoing medical assessment on March 16, 2015, because
Plaintiff failed to provide requested medical information.
(Id). The EEOC Final Agency Decision, dated July 20,
2017, found that the evidence did not support a finding that
Plaintiff was subjected to discrimination. (Id. at
14). The decision informed Plaintiff of her right to file an
EEOC appeal or a civil action in an appropriate United States
District Court, as well as providing the timelines for doing
so. (Id. at 14-15). Plaintiff does not allege in her
Complaint to this Court that she filed an EEOC appeal. She
further indicates the EEOC has not issued a Notice of Right
to Sue letter. (ECF No. 1 at 5).
to 29 C.F.R. § 1614.407, a complainant who has filed an
[I]s authorized under title VU, the ADEA, and the
Rehabilitation Act to file a civil action in an appropriate
United States District Court: (a) Within 90 days of receipt
of the final action on an individual or class complaint if no
appeal has been filed; (b) After 180 days from the date of
filing an individual or class complaint if an appeal has not
been filed and a final action has not been taken; (c) Within
90 days of receipt of the Commission's final decision on
an appeal; or (d) After 180 days from the date of filing an
appeal with the Commission if there has been no final
decision by the Commission.
claim appears to be barred by the limitations period set out
in 29 C.F.R. § 1614.407. Following the final EEOC
decision on July 20, 2017, the Plaintiff was authorized to
file a civil suit in an appropriate United States District
Court within 90 days of receipt of the decision. The Final
Agency Decision was mailed to the Plaintiff on July 20, 2017
(USPS Tracking No. 9114 9014 9645 1360 2724 80). (ECF No. 1-1
at 15). The record does not indicate the date on which the
Plaintiff received the decision, however, the Plaintiff
submitted a copy of it as an exhibit to her Complaint. (ECF
No. 1-1). Therefore, although the exact date on which the
limitations period began to run is not known, the Plaintiff
clearly received the Final Agency Decision.
Complaint was filed August 17, 2018, nearly 13 months after
the Final Agency Decision on July 20, 2017, and well beyond
the 90-day limitations period.
Plaintiff s claim is not time-barred, her claim cannot
proceed in this Court for lack of venue. Nothing in Plaintiff
s Complaint demonstrates any connection to the Western
District of Arkansas. Plaintiff alleges that she is are
sident of Colorado. (ECF No. 1 at 1). Plaintiff alleges that
the Defendant is also resident of Colorado. (Id. at
2). The acts complained of all occurred in State of Colorado.
(Id. at 7-10). Thus, the United States District
Court for the District of Colorado is the proper venue for
this matter pursuant to 28 U.S.C. § 1391.
U.S.C. § 1406(a) provides as follows:
The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss,
or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought.
interest of justice would not be served by transferring this
time-barred case to the United States District Court for the
District of Colorado, therefore, pursuant to 28 U.S.C. §
1406(a), this case should be dismissed for improper venue.
IT IS ORDERED that Plaintiffs Motion to Proceed IFP (ECF No.
2) is DENIED, and ...