United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Barnes, a pro se plaintiff, filed a complaint and a
petition for leave to proceed in forma pauperis. [DE
1, 2.] Because she is trying to file this case free of
charge, I must review the complaint and dismiss it if the
action is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. 28 U.S.C.
§1915(e)(2)(B). Section 1915(e)(2)(B) applies to
prisoner and non-prisoner complaints alike, regardless of fee
status. Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.
document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus , 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Here, Barnes' complaint suffers from
a fatal flaw, which is that it exceeds the scope of her
charges filed with the EEOC. A right-to-sue notice from the
EEOC is a prerequisite to bringing suit, and the right-to-sue
notice that forms the basis for a plaintiff's complaint
must relate to the facts alleged before the EEOC. Conner
v. Ill. Dep't of Natural Res., 413 F.3d 675, 680
(7th Cir. 2005). In this action, the relevant right-to-sue
notice addresses Barnes' claim that she was fired in
retaliation for earlier charges of discrimination filed
against her employer and is not identified as a continuing
action. [DE 3 at 32.] Her operative charge, therefore, is
based on the Defendant's retaliation. The
complaint before me, however, appears to be bringing an
action based on the earlier underlying discrimination that
resulted in Barnes filing two earlier charges of
discrimination, which the operative charge alleges were the
impetus for her retaliatory firing. While the background
provided in the complaint is useful, Barnes may now only
bring an action based on her most recent charge of
discrimination filed with the EEOC for which she received a
right-to-sue notice. As it stands now, her complaint does not
state a claim for retaliation for filing the two earlier
charges of discrimination. Rather, it states claims of
discrimination that were raised in earlier charges of
discrimination and, therefore is beyond the scope of the
right-to-sue notice and mandates dismissal. Furthermore, an
action based on her two earlier charges of discrimination
would be time barred.
because Barnes' is pro se and might have a
viable claim based on her most recent EEOC right-to-sue
notice, I will give her a single opportunity to file an
amended complaint to clarify her claim. In addition, because
I am granting her leave to amend, I will raise an additional
issue that she will need to address if she chooses to amend
her complaint. On its face, Barnes' complaint appears to
be time barred, but a closer glance reveals that it may not
be. Title VII and ADA claims are subject to dismissal on the
grounds that a complaint has not been filed within the 90-day
limit that begins to run when the plaintiff or her attorney
receives notice from the EEOC of the right to sue.
See 42 U.S.C. § 2000e-5(f) (1); 42 U.S.C.
§ 12117(a) (adopting the charge-filing requirements and
enforcement mechanism of Title VII in ADA cases). The receipt
of a right-to-sue notice by a claimant or her attorney starts
the 90-day period within which a plaintiff has to file a
cause of action under Title VII or the ADA. Threadgill v.
Moore, U.S.A. Inc., 269 F.3d 848, 849-50 (7th Cir.
2001). Courts strictly enforce this 90-day limit. See,
e.g., Davis v. Browner, 113 F.Supp.2d 1223, 1226 (N.D.
Ill. 2000) (“The time limit is not flexible, even for
pro se litigants, and a one-day delay is fatal.”).
the “[e]xpiration of a statute of limitations is an
affirmative defense, but when the existence of a valid
affirmative defense is so plain from the face of the
complaint that the suit can be regarded as frivolous, the
district judge need not wait for an answer before dismissing
the suit.” Curry v. Advocate Bethany Hosp.,
204 Fed. App'x 553, 557 (7th Cir. 2006) (internal
quotations omitted). It is true that Barnes stated in her
Complaint that she received the EEOC notice on
October 17, 2017. But this is plainly contradicted by the
notice itself, which states that it was mailed on
October 19, 2017. Clearly Barnes could not have received the
notice before it was sent and it is far from uncommon for pro
se litigants to confuse the date of the receipt of
the EEOC notice with the date of mailing. That said,
the issue remains of what day Barnes received the notice.
Given that she filed this action on January 19, 2018, any
receipt date before October 21, 2017 would make this
action time barred. As such, Barnes should address this issue
in her amended complaint or run the risk of this action being
dismissed as time barred.
GRANTS Ceylon Barnes until May 1,
2018, to file an amended complaint; and
CAUTIONS Ceylon Barnes that if she does not
amend her complaint by that deadline, this case may be
dismissed without further notice.