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Scott v. Brodersen Enterprises of Wisconsin/Brodersen Management

United States District Court, E.D. Wisconsin

May 31, 2016



          LYNN ADELMAN District Judge

         Plaintiff Steven Scott, who is representing himself, is currently incarcerated at Green Bay Correctional Institution. He filed this lawsuit pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, and I granted him leave to proceed on his claim that the defendant, Brodersen Enterprises of Wisconsin, discriminated against him on account of his sex and race. The defendant has filed a motion for summary judgment, which I consider in this order.

         I. BACKGROUND

         The plaintiff is African American, Native American, and male. The defendant operates a number of Popeyes Louisiana Kitchen fast-food franchises. In April 2005, the plaintiff applied for employment at one of the defendant’s stores. Shortly thereafter, the defendant hired the plaintiff as a fry cook. The plaintiff worked for the defendant without incident until May 24, 2005.

         According to the allegations of the plaintiff’s verified amended complaint, which I accept as true for purposes of the defendant’s motion for summary judgment, see Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996), on May 24, 2005, the plaintiff’s shift manager, an African American female, approached him while he was operating the fryers and attempted “to provoke the plaintiff to engage in an argument.” Am. Compl. ¶ 2. When the plaintiff tried to ignore the shift manager, she “attempted to ‘poke’ the plaintiff several times in multiple parts of his body.” Id. ¶ 3. The plaintiff then stopped working and told the shift manager to quit touching him. At this point, the shift manager began yelling profanity and other disrespectful comments at the plaintiff. In response, the plaintiff said that he was leaving work. As the plaintiff was exiting the store, the shift manager grabbed him and said that he could not leave because he was responsible for closing the kitchen for the night. The store manager then “slammed and banged [the plaintiff’s] right hand against the bar handle of the store door.” Id. ¶ 6. The plaintiff left the store and sought medical attention. He was diagnosed with a sprained wrist.

         The next day, May 25, 2005, the plaintiff reported these events to his store supervisor, who was female. The supervisor told the plaintiff that she had been told that he had used obscene and abusive language in front of customers, and that he had been insubordinate and had refused to work. The supervisor also told the plaintiff that she was “unsure” about his allegation that the shift manager had assaulted him, and that “some form of an internal investigation must be conducted.” Id. ¶ 9. She told the plaintiff that he would be suspended without pay until further notice, pending completion of an internal investigation. Id. ¶ 9-10.

         Immediately after his suspension, the plaintiff applied for unemployment compensation. He also began looking for other jobs and found full-time employment almost immediately. Starting in June 2005, he worked full-time at the Wisconsin State Fair. When the State Fair ended, he found full-time employment operating a forklift at a warehouse.

         In August 2005, the plaintiff was arrested. He would eventually be convicted of a crime and sentenced to 40 years’ imprisonment. The plaintiff has been continuously incarcerated since his arrest in August 2005.

         In May 2012, while the plaintiff was incarcerated, he decided to request his personnel file from the defendant. He states that he did this because he was having problems with his wrist and wanted to know if the defendant ever performed an investigation. The plaintiff made the request under Wisconsin’s Open Personnel Records Law, which grants past and present employees the right to view and copy their personnel files at least two times each calendar year. See Wis. Stat. § 103.13. In response to the request, the defendant mailed the plaintiff his personnel file. The defendant’s cover letter reflects that it was mailed on May 16, 2012, but the plaintiff contends that he did not receive the file until much later, possibly as late as November 2012. The plaintiff attributes the delay to issues with the prison mail system.

         One of the documents that the plaintiff discovered in his personnel file was an “employee incident report.” See Aff. of Kim Curtis, Ex. A ECF No. 62-4 at 7. This document reflected that the plaintiff had been terminated from his employment with the defendant. The document contains a space to write in the “date of incident, ” in which May 24, 2005 was written. The document also contained the following narrative explanation of the incident: “Steven was asked to leave the store by Doris Brown manager on duty. Steven is a crew member for store 4925. Steven cursed Doris out throughout the store and in the presence of guest. He is terminated.” Id. The document was signed by the store manager.

         When the plaintiff saw this document, he concluded that the store supervisor must have lied to him when she told him on May 25, 2005 that he was suspended indefinitely without pay pending the completion of an investigation. Rather, he concluded, he had been terminated immediately, and no investigation had been conducted.

         On August 26, 2013, the plaintiff contacted the Equal Employment Opportunity Commission (“EEOC”) and alleged that the defendant had terminated him based on his race and sex. The EEOC determined that the plaintiff’s claim was untimely, as it had been filed more than 300 days after his termination. On November 15, 2013, the plaintiff commenced the present action, alleging that the defendant had terminated him on May 24, 2005 because of his race and sex. He also alleged various state-law tort claims arising out of the shift supervisor’s actions that resulted in his sprained wrist. In an earlier order, I dismissed the tort claims on the ground that they were barred by Wisconsin’s Worker’s Compensation Act. See ECF No. 40 at 4.

         The defendant now moves for summary judgment on two grounds. First, the defendant contends that the plaintiff’s suit is untimely. Second, the defendant contends that, even if this suit is not time-barred, the plaintiff does not have enough evidence of discrimination to warrant a trial. Because I conclude that this suit is untimely, I do not address the defendant’s second ground.

         II. ...

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