Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dockery v. Army & Air Force Exchange Service

United States District Court, E.D. North Carolina, Western Division

April 15, 2019

Robert E. Dockery, Plaintiff,
v.
Army & Air Force Exchange Service, Defendant.

          ORDER & MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge.

         Plaintiff Robert Dockery asks the court to allow him to proceed without paying the required filing fee and other costs associated with litigation (colloquially known as proceeding “in forma pauperis” or “IFP”). The court may grant his request if he submits an affidavit describing his assets and the court finds that he cannot pay the filing fee. 28 U.S.C. § 1915. In assessing a request to proceed IFP, the court should consider whether the plaintiff can pay the costs associated with litigation “and still be able to provide himself and his dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted). As part of its evaluation of Dockery's request, the court must also consider the viability of his claims. If the court determines that the Complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted, it must be dismissed. 28 U.S.C. § 1915(e).

         Although Dockery qualifies for IFP status, the district court should dismiss his complaint because his claims are barred by the statute of limitations.

         I. Background

         In January 2007, Dockery began working for Burger King, a restaurant operated by the Defendant Army & Air Force Exchange Service (“AAFES”) at the Grafenwoehr Main Exchange in Vilseck, Germany[1]. He lives with Multiple Sclerosis and has a 30% loss of function in his leg.

         Dockery began having issues with a co-worker in January 2013 who allegedly drew pictures of him as a monkey and poked him several times. Dockery claims that managers were aware of these incidents but did nothing about them. Eventually the situation escalated, and Dockery punched his coworker. Dockery lost his job in June 2013 as a result of this incident, but the coworker only received a letter of reprimand. Dockery asserts that his employer fired him because he is disabled, and that management failed to take reasonable steps to stop the coworker from poking or otherwise harassing him.

         In October 2015, over two years after his termination, Dockery filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Dockery states in his pleadings that the EEOC found no discrimination in his case. He says he received the right to sue letter from the EEOC in “December 2016 or February 2015.” D.E.1 at 9. He filed this action in February 2019.

         II. Application to Proceed in District Court without Prepaying Fees or Costs

         Dockery requests permission to proceed without paying the fees and costs typically associated with filing a civil action. The court has reviewed Dockery's Application and has determined that his monthly income does not greatly exceed his monthly expenditures. The court finds that Dockery lacks enough resources to pay the costs associated with litigation. The court thus grants the Application (D.E. 1) and will allow Dockery to proceed without full prepayment of fees and costs. The court will now turn to its assessment of Dockery's claims.

         III. Screening Under 28 U.S.C. § 1915

         As part of its evaluation of Dockery's request, the court must also consider the viability of his claims. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B). The court may also dismiss a claim if it is barred by the statute of limitations. Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983).

         With this framework in mind, the court will review each of Dockery's claims. Dockery alleges that he was harassed and ultimately fired because of his disability, and generally asserts his claims under the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”).

         A. The Statute of Limitations under the Civil Rights Act of 1964

         Dockery claims that his employer discriminated against him in violation of Title VII of the Civil Rights Act of 1964. The Act requires that to sue in federal court a plaintiff must first file a charge of discrimination with the EEOC either 180 or 300 days after an “alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Dockery filed his charge of discrimination in October 2015, over two years after his June 2013 termination. Compl. at 3, 4, D.E 1-1 Thus, Dockery's Title VII claim is time barred. N ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.