United States District Court, E.D. Wisconsin
ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 10) AND
GRANTING MOTION TO ISSUE SUMMONS (DKT. NO. 11)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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.
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
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.
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).
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)).
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.
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). 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.
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