UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40250
Summary Calendar
WILLIAM P. MAHER,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(C-95-CV-406)
August 8, 1997
Before POLITZ, Chief Judge, WIENER and EMILIO M. GARZA, Circuit Judges.
POLITZ, Chief Judge:*
William P. Maher, a pro se litigant, appeals an adverse summary judgment
in his employment discrimination complaint against the Texas Department of
Transportation. For the reasons assigned we vacate and remand.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
The district court concluded that Maher failed to file a complaint within 90
days of receiving an EEOC right to sue letter, as required by Title VII of the Civil
Rights Act of 19641 and the Age Discrimination in Employment Act.2 Maher
received a right to sue letter on March 30, 1995. On June 14, 1995 he filed an
application to proceed in forma pauperis, simultaneously submitting to the clerk of
the district court his complaint alleging discrimination on the basis of sex, age, and
national origin. The pleading was stamped that date as “Received.” On August 11,
1995 the request for IFP was granted and the complaint was stamped “filed.”
The district court apparently considered Maher’s complaint as filed on
August 11. We have observed that “[c]lerical delay in the formal filing of [an] in
forma pauperis complaint should not affect the operative event, that is, the receipt
of the complaint by the court.”3 In cases with similar facts, we have concluded that
equity cannot permit a plaintiff to be prejudiced by the administrative delay
inherent in the nature of such suits.4
In the instant case, the district court denied defendant’s Rule 12(b)(6) motion
1
42 U.S.C. § 2000e-5(f)(1).
2
29 U.S.C. § 626(e).
3
Martin v. Demma, 831 F.2d 69, 71 (5th Cir. 1987) (per curiam).
4
Ynclan v. Department of the Air Force, 943 F.2d 1388 (5th Cir. 1991); Hernandez
v. Aldridge, 902 F.2d 386 (5th Cir. 1990); Martin.
2
to dismiss during a status conference on May 31, 1996. The court’s notes from the
conference reflect that Maher’s “complaint was timely filed” and that Maher was
ordered “to re-file a complaint more clearly stating his allegations” within 10 days.
Based on the record before us we cannot determine why the district court later
concluded that the complaint was not timely despite its submission on the day the
IFP application was filed, well within the requisite 90 days from receipt of the right
to sue letter.
We therefore VACATE the order of the district court and REMAND for a
reexamination to determine whether Maher’s complaint was submitted to the clerk
for filing within the statutory time period. Maher’s motion to supplement the
record on appeal is DENIED as moot.
3