United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.