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White v. City of New Berlin

United States District Court, E.D. Wisconsin

August 17, 2016

ELLEN WHITE, Plaintiff,
v.
CITY OF NEW BERLIN, KARI MORGAN and DAVID AMENT, Defendants.

          ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 10) AND GRANTING MOTION TO ISSUE SUMMONS (DKT. NO. 11)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         I. Factual Background

         On January 11, 2016, plaintiff Ellen White filed a pro se complaint, Dkt. No. 1, along with a motion for leave to proceed without paying the filing fee, Dkt. No. 2. On March 17, 2016, the court issued an order screening the complaint, granting the motion to proceed in forma pauperis and requiring the plaintiff to file an amended complaint. Dkt. No. 6. Among other things, this order required the plaintiff to specifically describe the allegations she wanted to bring against each individual party, and required her to file, if she had it, her notice of right to sue from the EEOC. Id. On May 27, 2016, the plaintiff filed an amended complaint, Dkt. No. 10, along with an EEOC Dismissal and Notice of Rights form, Dkt. No. 10-1. She then filed, on July 19, 2016, a motion to issue summons. Dkt. No. 11.

         The Dismissal and Notice of Rights form the plaintiff submitted is dated December 9, 2015. Dkt. No. 10-1. The plaintiff filed her complaint on January 11, 2016, well within the ninety-day time limit specified in the Notice of Suit Rights. Accordingly, the court finds that the plaintiff has met the pre-requisite for filing suit under the ADA, the ADEA and Title VII.

         The amended complaint lists four causes of action. The first cause of action alleges that defendants Morgan and Ament violated the plaintiff’s right to due process under the Fourteenth Amendment of the Constitution when they fired her. Dkt. No. 10 at 8. The second cause of action alleges that defendants Morgan and Ament fired the plaintiff in violation of the Americans with Disabilities Act (because she suffers from fibromyalgia), the Age Discrimination in Employment Act (because she is over forty years old), and Title VII of the Civil Rights Act (because she is African-American). Id. The third cause of action alleges that defendants Morgan and Ament fired her in violation of Wisconsin’s Fair Employment Act-Wis. Stat. §§111.321, 111.322(3), 111.33(2)(a), and 111.34(1)(b). Id. The fourth cause of action alleges that defendants Morgan and Ament fired her in violation of “§11-1B, 1C, 11-11B, 11-12, 11-13A, 11-14, 11-23 of the New Berlin Municipal Code.” Id. at 9.

         II. Discussion

         To state a claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead specific facts, and her statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47(1957)). Furthermore, “[a] document filed pro se is ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Courts must hold pro se complaints, “however inartfully pleaded, … to less stringent standards than formal pleadings drafted by lawyers…” Id. As a result, the United States Court of Appeals for the Seventh Circuit has set an “undemanding” standard for employment discrimination complaints at the screening stage. See Samovsky v. Nordstrom, Inc., 619 F. App’x 547, 548 (7th Cir. 2015); Tate v. SCR Medical Transp., 809 F.3d 343 (7th Cir. 2015).

         For example in Samovsky, the Seventh Circuit, in an unpublished order, vacated a district court’s decision to dismiss a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Samovsky v. Nordstrom, Inc., 619 F. App’x at 548. The Seventh Circuit found that the dismissal was premature because the plaintiff checked the appropriate boxes on the form complaint and attached a charge of discrimination filed with the EEOC that included an affidavit about the plaintiff’s claims. Id. Even though the affidavit was “rambling and confusing, ” the court found that the plaintiff had stated a claim by including at the bottom of her submission, “that despite being qualified, she was not hired because she was discriminated against on account of her national origin, sex, age, and religion.” Id. The Seventh Circuit then noted that “[i]ndeed, I was turned down for a job because of my race is all a complaint has to say.” Id. (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)).

         The Seventh Circuit reiterated this finding in a decision issued later that year, Tate v. SCR Medical Transp., 809 F.3d at 345. In Tate, the Seventh Circuit reversed and remanded a district court’s dismissal of a complaint for failure to state a claim, finding that:

The only seriously deficient allegation concerns the disability, which is not named or otherwise identified in the complaint … surely a plaintiff alleging discrimination on the basis of an actual disability under 42 U.S.C. § 12102(1)(A) must allege a specific disability .…
The other violations that the plaintiff complains of- sexual harassment, discrimination on the basis of his sex, and retaliation for engaging in protected activity- are adequately alleged, given our ruling in Luevano v. Wal-Mart Stores, Inc., supra, 722 F.3d at 1028, quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084-85 (7th Cir.2008), that “to prevent dismissal under Rule 12(b)(6), a complaint alleging sex discrimination need only aver that the employer [had] instituted a (specified) adverse employment action against the plaintiff on the basis of her [or his] sex.” The pro se complaint in this case satisfies that undemanding standard.

Id. at 345-46 (citations omitted). Essentially, in order for a pro se litigant in an employment discrimination suit who has received an EEOC notice of right to sue need only describe the adverse employment action and identify a statute-protected basis of discrimination. Id.

         The court finds that the plaintiff has met the Seventh Circuit’s standard regarding her second and third causes of action-the plaintiff’s claims under the ADEA, ADA and Title VII, and the Wisconsin state law equivalents (Fair Employment Act).[1] The amended complaint states that defendant Morgan, under the direction of defendant Ament, removed her from her position because of her race, age, and disability (fibromyalgia), and because she opposed the city’s policy of excluding African Americans from the fire department. Dkt. No. 10 at 3. The court finds that that is all she needs to state in order to proceed past the screening stage on her second and third causes of action.

         The plaintiff may not proceed on those causes of action, however, as to all defendants. An employment discrimination complaint is properly brought against “the head of the department, agency or unit, as appropriate.” 42 U.S.C. §2000e-16(c); Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988) (“Under Title VII and the Rehabilitation Act the proper defendant is ‘the head of the department, agency, or unit, as appropriate.’ 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(1) (adopts Title VII procedures)”). Defendant Ament is the ...


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