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Rosalind N. Banks v. Transportation Security Administration

United States District Court, D. South Carolina, Greenville Division

January 23, 2019

Rosalind N. Banks, Plaintiff,
v.
Transportation Security Administration, Denise Duville, Bob Baker, Steven Corey, Defendants.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge

         The plaintiff, proceeding pro se and in forma pauperis under 28 U.S.C. § 1915, files this action pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.

         The plaintiff filed this case against the defendants on December 17, 2018 (doc. 1). By Order dated December 26, 2018, the undersigned informed the plaintiff that her case was not in proper form for service (doc. 5). The plaintiff submitted additional forms for review on January 7, 2019.

         BACKGROUND

         The plaintiff's complaint involves her employment with the Transportation Security Administration (“TSA”) (doc. 1). The plaintiff alleges that she was terminated on December 6, 2018 (docs. 1-1 at 1; 1-5 at 4), and that her termination was a violation of her first amendment right to free speech (doc. 1-5 at 3). The plaintiff contends that she filed a charge with the Equal Employment Opportunity Commission (“EEOC”) on December 7, 2018 (doc. 1-5 at 5). The plaintiff also alleges that due to the government shutdown she has not yet received a right-to-sue letter (docs. 1-5 at 5; 1-8). The plaintiff seeks several types of relief, including monetary damages, and that the Court order the defendants to complete certain administrative actions (doc. 1-6 at 5).

         STANDARD OF REVIEW

         The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         Title VII creates a federal cause of action for employment discrimination. Davis v. N.C. Dep't of Corr., 48 F.3d 134, 136-37 (4th Cir. 1995). However, before filing a claim in federal court, a Title VII plaintiff must first exhaust administrative remedies. Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999). A federal court can assume jurisdiction over a Title VII claim only after a plaintiff has complied with the various administrative procedures set forth in 42 U.S.C. § 2000e-5(b). Davis, 48 F.3d at 137. These procedures “include an investigation of the complaint and a determination by the EEOC as to whether ‘reasonable cause' exists to believe that the charge of discrimination is true.” Id. A plaintiff's claim with the EEOC “defines the scope of her subsequent right to institute a civil suit.” Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (citing Evans v. Techs. Applications and Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996)). Only claims “reasonably related” to those in the EEOC charge may be advanced in a subsequent civil suit. Id. (citing Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir.1981)).

         DISCUSSION

         The plaintiff filed this action seeking damages as a result of her termination from the TSA (doc. 1). Title VII provides that “a federal discrimination claim brought by a private party cannot be heard by a federal district court until the EEOC has conducted an investigation and determined the validity of the claim.” Davis, 48 F.3d at 137-38. The EEOC then has the option to decide whether it will bring a claim in federal court or if it will issue a “right-to-sue” letter, which “is essential to initiation of a private Title VII suit in federal court.” Id. at 138. The Fourth Circuit has “long held that receipt of, or at least entitlement to, a right-to-sue letter is a jurisdictional prerequisite that must be alleged in a plaintiff's complaint.” Id. at 140 (citing United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979) (“[A] plaintiff in a civil action under Title VII must allege and prove filing of a timely charge of discrimination with the [EEOC] together with receipt of, and action on, a statutory notice of his right to sue.”)) In her complaint, and in a letter sent to the Court, the plaintiff alleges that while she has filed an administrative complaint with the EEOC, she has not yet received a right to sue letter (docs. 1-5 at 5; 1-8). In correspondence to the Court, the plaintiff requests an extension of time to obtain the right-to-sue letter or seeks to withdraw her action so she may re-file once she has received the right-to-sue letter (doc. 1-8). As such, the Court is without jurisdiction over the plaintiff's claims at this time and her complaint is subject to summary dismissal.

         RECOMMENDATION

         Accordingly, it is recommended that the District Court dismiss the complaint in the above-captioned case without prejudice and without issuance and service of process.

         The plaintiff's attention is directed to the important notice on the next page.

         IT IS ...


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