United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court upon the application of Corrine
Mack for leave to commence this action without payment of the
required filing fee. (Docket No. 2). Upon consideration of
the financial information provided with the application, the
Court finds that the applicant is financially unable to pay
any portion of the filing fee. Therefore, plaintiff will be
granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915(a). Additionally, the Court will order
plaintiff to show cause why her claims brought pursuant to
the Americans with Disabilities Act (ADA) should not be
summarily dismissed for failing to exhaust her administrative
complaint alleges that she was sexually harassed by a fellow
coworker at Menasha Packaging Company. She asserts that
after she complained of the sexual harassment, she was fired.
Despite plaintiffs allegations in her "statement of
claim, " on the first page of the complaint, she has
checked the box stating that she is bringing her employment
discrimination claim pursuant to the ADA, 42 U.S.C.
§§ 12101, et seq.
ADA bars private employers from discriminating against a
qualified individual on the basis of disability."
Faidley v. United Parcel Serv. Of America, Inc., 889
F.3d 933, 940 (8thCir. 2018). Discrimination
includes an employer not making a reasonable accommodation to
the known physical or mental limitations of an otherwise
qualified individual with a disability. Kallail v.
Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930
(8th Cir. 2012). In order to establish a prima
facie case of discrimination under the ADA, "an employee
must show that she (1) is disabled within the meaning of the
ADA, (2) is a qualified individual under the ADA, and (3) has
suffered an adverse employment action because of her
disability." Hill v. Walker, 737 F.3d 1209,
1216 (8th Cir. 2013). See also Wood v. Crown
Redi-Mix, Inc., 339 F.3d 682, 684 (8thCir.
2003). To establish a disability, an ADA claimant must show a
physical or mental impairment substantially limiting a major
life activity, a record of such impairment, and that the
claimant is regarded as having such impairment. Duty v.
Norton-Alcoa Proppants, 293 F.3d 481, 490-91
(8th Cir. 2002).
plaintiffs allegations do not state a claim under the ADA.
Plaintiff alleges that she was sexually harassed at work,
that she complained about the harassment, and that she was
thereafter fired in retaliation for making the complaint.
(Docket 1 at 5). Nothing in plaintiffs statement of claim
makes any mention that she suffered from a qualified
disability under the ADA, or that her employer failed to
accommodate a qualified disability.
plaintiffs charge of discrimination filed with the Equal
Employment Opportunity Commission (EEOC) does not concern
allegations of disability discrimination or failure to
accommodate a disability under the ADA. Rather, plaintiffs
claims in her charge encompass sexual harassment and
retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2OOOe, et seq.If plaintiff
desires to bring an ADA claim, she must first exhaust her
remedies with the EEOC. See 42 U.S.C. §
12117(a) (incorporating by reference 42 U.S.C. §
2OOOe-5(e)(1) outlining charge requirements). See also
Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8*
Cir. 2003) ("There is a long settled rule of judicial
administration that no one is entitled to judicial relief for
a supposed or threatened injury until the prescribed
administrative remedy has been exhausted"); Randolph
v. Rogers, 253 F.3d 342, 347 n.8 (8th Cir.
2001) ("Title VII of the Civil Rights Act of 1964 and
Title I of the ADA both require exhaustion of administrative
should not use administrative procedures as a "trap for
unwary pro se civil-rights plaintiffs." Duncan v.
Delta Consol. Indus., Inc., 371 F.3d 1020, 1025
(8th Cir. 2004). Accordingly, when appropriate, a
plaintiffs civil rights and discrimination claims will be
charitably construed. Shannon v. Ford Motor Co., 72
F.3d 678, 685 (8th Cir. 1996). With this in mind,
the Court will give plaintiff the opportunity to show cause
why her claims under the ADA should not be dismissed for
failure to exhaust her administrative remedies.
plaintiff has filed a motion for appointment of counsel. At
this time, it appears plaintiff is able to reasonably assert
her own interests. Therefore, the Court will deny plaintiffs
motion. See Ward v. Smith, 721 F.3d 940, 942
(8th Cir. 2013) ("In civil cases, there is no
constitutional or statutory right to appointed
IT IS HEREBY ORDERED that plaintiffs motion
for leave to proceed in forma pauperis (Docket No. 2) is
IS FURTHER ORDERED that plaintiffs motion for
appointment of counsel (Docket No. 3) is DENIED at
IS FURTHER ORDERED that plaintiff shall show cause,
in writing and no later than twenty-one (21) days
from the date of this Order, why plaintiffs ADA
claims should not be dismissed from this action for
plaintiffs failure to adequately exhaust her administrative
remedies with respect to these claims.
IS FURTHER ORDERED that if plaintiff fails to
respond to this Memorandum and Order, her claims brought
pursuant to the ADA will be dismissed without prejudice.