Carol Wilkerson v. H&S, Inc.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 16, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-13569
Non-Argument Calendar
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D. C. Docket No. 09-00033-CV-BAE-6
CAROL WILKERSON,
Plaintiff-Appellant,
versus
H&S, INC.,
d.b.a. Shoney's Inc.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 16, 2010)
Before DUBINA, Chief Judge, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Carol Wilkerson appeals pro se the sua sponte dismissal of her

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complaint for failure to attach her right-to-sue letter to her complaint and
demonstrate that she exhausted administrative remedies. She filed her sexual
harassment case, brought under Title VII, 42 U.S.C. § 2000e-2(a), in forma
pauperis. The magistrate judge recommended that the district court exercise its
authority under 28 U.S.C. § 1915(e)(2)(B) to dismiss her complaint sua sponte
because she did not attach her right-to-sue letter from the Equal Employment
Opportunity Commission (“EEOC”), and, therefore, did not show that she
exhausted administrative remedies. Wilkerson filed a timely objection to the
magistrate judge’s Report and Recommendation, to which she attached a copy of
her right-to-sue letter. Wilkerson argued that her failure to attach the letter to the
complaint was excusable because she is a pro se litigant and did not know she was
required to attach her right-to-sue letter to her complaint. The district court denied
Wilkerson’s objections, adopted the magistrate judge’s Report and
Recommendation, and dismissed the case with prejudice.
Under § 1915(e)(2)(B), a court shall dismiss a case proceeding in forma
pauperis “at any time if the court determines that . . . the action . . . is frivolous or
malicious” or “fails to state a claim on which relief may be granted.” Dismissal of
an in forma pauperis action under § 1915(e)(2)(B)(i) as frivolous is reviewed for
abuse of discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d
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1309, 1315 (11th Cir. 2002). “A district court abuses its discretion if it applies an
incorrect legal standard, follows improper procedures in making the determination,
or makes findings of fact that are clearly erroneous.” Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001).
Review of a dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim,
by contrast, is reviewed de novo. Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir.), cert. denied, 129 S. Ct. 632 (2008). The district court’s factual findings are
reviewed for clear error. See, e.g., Mitchell v. Hillsborough County, Fla., 468 F.3d
1276, 1282 (11th Cir. 2006) (noting that standard in conducting de novo review of
entry of a judgment in a bench trial). Failure to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997). Pro se briefs and pleadings are to be construed liberally.
See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
In order to sue in court for violations of Title VII, a plaintiff must exhaust
administrative remedies, which means she must receive a right-to-sue letter from
the EEOC. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001); see
also 42 U.S.C. § 2000e-16(c). This court has held “that receipt of a right-to-sue
letter is not a jurisdictional prerequisite to suit, but rather, is a statutory
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precondition which is subject to equitable modification.” Forehand v. Fla. State
Hosp. at Chattahoochee, 89 F.3d 1562, 1569-70 (11th Cir. 1996); see also Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S. Ct. 1127, 1135, 71 L. Ed. 2d
234 (1982).
Upon review of the record and the appellant’s brief, we vacate and remand.
Wilkerson filed a copy of her right-to-sue letter in her objections to the
magistrate’s report, along with an explanation that, as a pro se litigant, she was not
aware that she had to file the letter with her complaint. In issuing its order
adopting the report and dismissing the complaint, the district court did not address
this argument. In doing so, it clearly erred by adopting a factual finding that no
right-to-sue letter had been filed, when in fact Wilkerson had filed it along with her
objections. Because the right-to-sue letter demonstrates she exhausted her
administrative remedies, and because the district court failed to address this
argument, the district court erred and abused its discretion in dismissing her
complaint. Accordingly, we vacate the order of dismissal and remand the case for
further proceedings.
VACATED AND REMANDED.
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