United States District Court, W.D. Wisconsin
JUNE E. ROUNDS-RHEAUME, Plaintiff,
UNIVERSITY OF WISCONSIN STATE LABORATORY OF HYGIENE, ATTORNEY JOHN C. DOWLING, ATTORNEY BRIAN D. VAUGHAN, PERSONNEL DIRECTOR SANDRA K. PRISBE, PERSONNEL DIRECTOR CYNDA DEMONTIGNY, and SUPERVISOR BARB WOEHRL, Defendants.
OPINION & ORDER
D. PETERSON District Judge
plaintiff June Rounds-Rheaume used to work at defendant
University of Wisconsin State Laboratory of Hygiene (the
Lab). She alleges that after she quit, the Lab and other
individual defendants prevented her from finding other
employment by refusing to give prospective employers an
accurate description of her position with the Lab. I granted
plaintiff leave to proceed against the Lab with a Title VII
retaliation claim. Dkt. 4. I also granted plaintiff leave to
proceed against the individual defendants with First
Amendment retaliation claims. Id.
has now moved to dismiss plaintiff's Title VII claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
10. The Lab contends that it is not a suable entity, and so
plaintiff has failed to state a claim against it upon which
relief can be granted. Id. I will grant the
Lab's motion to dismiss. But I will add the Board of
Regents of the University of Wisconsin System-the proper
defendant for plaintiff's Title VII claim-to this case.
the following facts from plaintiff's amended complaint,
accepting them as true for purposes of reviewing the
Lab's motion to dismiss. Bonte v. U.S. Bank,
N.A., 624 F.3d 461, 463 (7th Cir. 2010). I summarized
plaintiff's allegations in my screening order, Dkt. 4,
and so I will repeat only the pertinent allegations here.
worked for the Lab from 1978 to 2004. The individual
defendants are all current or former employees of the Lab.
2004, while plaintiff was still working for the Lab, she
filed a written grievance with her union. Plaintiff asked
"for a non-hostile, non-discriminatory work place."
Dkt. 1, at 3. In retaliation for filing the grievance,
two of the individual defendants issued plaintiff a
suspension without pay "based on falsified performance
statements of [plaintiff's] work duties, and
character." Id. Plaintiff quit her job later
2007, plaintiff filed a charge of retaliation with the
Wisconsin Department of Workforce Development-Equal Rights
Division (ERD) and with the federal Equal Employment
Opportunity Commission (EEOC). The charge related to the
retaliation that plaintiff had experienced in 2004. Plaintiff
dropped her charge because she "believed obstruction of
justice could be involved." Id. at 2. But the
Lab continued to retaliate against plaintiff by refusing to
provide an accurate description of plaintiff's position,
experience, or character to plaintiff's prospective
employers. Plaintiff eventually stopped interviewing for work
because she could not accurately describe the duties of her
position with the Lab to prospective employers without
getting into the conflict that led her to leave her job.
point, plaintiff filed another charge with the ERD and with
the EEOC. The case progressed far enough that an
administrative law judge recommended that the Lab correct
plaintiff's position description, which it did in October
2015. Plaintiff received a "reference letter" from
the Lab with an accurate description of her job duties, and
she now alleges that the Lab should have provided this
description when she filed her initial complaint.
Id. at 3.
moves to dismiss plaintiff's Title VII retaliation claim
against it pursuant to Rule 12(b)(6). In reviewing the
Lab's motion to dismiss for failure to state a claim, I
construe the complaint in the light most favorable to
plaintiff, accepting her well-pleaded facts as true and
drawing all reasonable inferences in plaintiff's favor.
Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501,
504 (7th Cir. 2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). "To survive a motion to dismiss,
the complaint must contain enough facts to state a claim for
relief that is plausible on its face." Id.
contends that it is not a suable entity. Pursuant to Rule
17(b), I must look to state law to determine whether the Lab
has the capacity to be sued. Under Wisconsin law, the Lab is
not an independent entity; it is a "special
program" that is "attached to the University of
Wisconsin-Madison." Wis.Stat. § 36.25(11)(a).
UW-Madison itself is not a suable entity. Alawiye v.
Univ. of Wis.-Madison, No. 06-cv-233, 2006 WL 1941999,
at *1 (W.D. Wis. July 11, 2006). This means that plaintiff
cannot sue the Lab directly. See also Edwards v. Wis.
Dep't of Corr., No. 04-cv-664, 2004 WL 2473259, at
*4 (W.D. Wis. Nov. 1, 2004) (concluding that the Wisconsin
State Laboratory of Hygiene is "not capable of being
sued"). Instead, the proper defendant for
plaintiff's Title VII claim is the Board of Regents of
the University of Wisconsin System, which governs the schools
and programs within the university. Wis.Stat. § 36.09.
to Rule 21, I will substitute the Board of Regents as a
defendant, in place of the Lab. Although the Board of Regents
is entitled to formal service of plaintiff's summons and
complaint, it may be efficient for all parties to avoid that
formality. The Attorney General's office-which is already
representing the other defendants-will presumably also
represent the Board of Regents. By July 27, 2016, counsel for
defendants should indicate whether they will accept service
for the Board of Regents. If counsel accepts service, then
the Board of Regents may have until August 10, 2016, to
answer or otherwise respond to plaintiff's complaint.
should be aware that her Title VII claim has other potential
problems. As I noted in my screening order, plaintiff's
Title VII claim might not be timely. Dkt. 4, at 6-7. Once the
Board of ...