United States District Court, W.D. Wisconsin
ARLIN T. CALVIN, Plaintiff,
SUB-ZERO FREEZER CO., Defendant.
OPINION & ORDER
D. PETERSON District Judge.
plaintiff Arlin Calvin has filed a proposed complaint against
his former employer, defendant Sub-Zero Freezer Co. Plaintiff
alleges that Sub-Zero discriminated against him because of a
disability. The court granted plaintiff leave to proceed
without prepaying his filing fee. Dkt. 3.
next step in this case is for me to screen plaintiff’s
complaint and dismiss any portion that is legally frivolous,
malicious, fails to state a claim upon which relief can be
granted, or asks for money damages from a defendant who by
law cannot be sued for money damages. 28 U.S.C. § 1915.
In screening any pro se litigant’s complaint, I must
read the allegations of the complaint generously. Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). After
reviewing the complaint with this principle in mind, I
conclude that plaintiff’s allegations could state
claims against Sub-Zero for violations of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq. But from the face of plaintiff’s complaint,
it appears that any ADA claims that he could allege would be
untimely. I will therefore direct plaintiff to show cause why
I should not dismiss this case.
used to work for Sub-Zero (he does not indicate when he
started). In August 2001, plaintiff injured himself while on
the job. According to plaintiff, Sub-Zero did not provide him
with the proper equipment to use while working on a
production line, and he injured his right hand as a result.
Plaintiff suffered permanent nerve damage.
plaintiff’s injury, Sub-Zero’s human resources
director “specifically discriminated against [him] by
not allowing [him] to work awarded jobs.” Dkt. 1, at 2.
2002, plaintiff “was walked out a back door of
Sub-Zero, ” and he was fired. Id. at 3. To
this day, plaintiff has not received a reason for why
Sub-Zero fired him. But he believes that his termination was
the result of “disability discrimination.”
filed suit in this court on August 5, 2016.
prohibits employers from discriminating against employees on
the basis of disability. 42 U.S.C. § 12112(a). There are
different types of ADA claims that a plaintiff can allege.
Here, I construe plaintiff’s complaint as alleging
claims against Sub-Zero for failing to accommodate
plaintiff’s disability and for terminating plaintiff
because of his disability.
state a claim for failure to accommodate, plaintiff must
allege that: (1) he was a qualified individual with a
disability; (2) Sub-Zero was aware of his disability; and (3)
SubZero failed to reasonably accommodate his disability.
Hooper v. Proctor Health Care Inc., 804 F.3d 846,
852 (7th Cir. 2015). For the first of these elements,
“[t]he term ‘qualified individual’ means an
individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C.
§ 12111(8). Plaintiff does not specifically allege that
he was qualified to perform his job after his injury. But I
must construe plaintiff’s complaint liberally at this
stage of the case, and so I infer from his allegations that
he believes that he could have performed his job, at least
with reasonable accommodations. Plaintiff has therefore
alleged the first element of a claim for failure to
accommodate. Plaintiff has also alleged the second and third
elements: he indicates that he spoke with Sub-Zero’s
human resources director, who did not allow him to work
awarded jobs, and that Sub-Zero eventually fired him.
state a claim for disability discrimination, plaintiff must
“allege facts showing that (1) he is
‘disabled’; (2) he is qualified to perform the
essential function of the job either with or without
reasonable accommodation; and (3) he suffered an adverse
employment action because of his disability.” Gogos
v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th Cir.
2013) (internal quotation marks omitted). For the first
element, I can infer that the hand injury that plaintiff has
alleged is “a physical or mental impairment that
substantially limits one or more [of plaintiff’s] major
life activities, ” which is how the ADA defines a
“disability.” 42 U.S.C. § 12102(1). As for
the second element, I again take plaintiff’s complaint
to allege that he was qualified to perform the essential
functions of his job, either with or without a reasonable
accommodation. And although plaintiff’s allegations are
sparse, he has adequately addressed the third element by
alleging that Sub-Zero did not provide any justification for
plaintiff’s allegations state claims under the ADA, I
will not grant him leave to proceed at this point. Instead, I
will direct plaintiff to file a short response to this order
explaining why I should not dismiss his case as untimely.
filing suit in federal court to pursue claims under the ADA,
a plaintiff must file a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) within 180
days of the alleged violation (or within 300 days, if he
files a charge with a state agency). 42 U.S.C. §
12117(a) (adopting the exhaustion requirements in 42 U.S.C.
§ 2000e-5); Stewart v. County of Brown, 86 F.3d
107, 110 (7th Cir. 1996). If the EEOC does not resolve the
matter, then a plaintiff must file suit within 90 days after
receiving a Notice of Right to Sue from the agency. 42 U.S.C.
§ 12117(a); Houston v. Sidley & Austin, 185
F.3d 837, 838 (7th Cir. 1999). Courts ...