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Calvin v. Sub-Zero Freezer Co.

United States District Court, W.D. Wisconsin

August 17, 2016

ARLIN T. CALVIN, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se 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.

         The 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.


         Plaintiff 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.

         After 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.

         In July 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.” Id.

         Plaintiff filed suit in this court on August 5, 2016.


         The ADA 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.

         To 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.

         To 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 terminating him.

         Although 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.

         Before 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 ...

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