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Wilburn v. Watry Industries LLC

United States District Court, E.D. Wisconsin

September 19, 2016



          HON. PAMELA PEPPER United States District Judge.

         On May 10, 2016, the plaintiff, who is represented by counsel, filed a complaint against defendant Watry Industries, LLC. Dkt. No. 1. Along with the complaint, the plaintiff filed a motion for leave to proceed in forma pauperis. Dkt. No. 2. The defendant waived service, then filed a motion to dismiss one count of the plaintiff's complaint-a claim for retaliation in violation of Title VII of the Civil Rights Act of 1964. For the reasons explained below, the court will grant the plaintiff's motion for leave to proceed in forma pauperisand will deny the defendant's motion to dismiss.


         In order to allow a plaintiff to proceed without paying the filing fee, the court must first decide whether the plaintiff has the ability to pay the filing fee, and if not, must determine whether the lawsuit is frivolous. 28 U.S.C. §§1915(a) and (e)(2)(B)(i). In the plaintiff's motion, he indicated that he is married, but that neither he nor his wife is employed. Id. at 1. He has a minor son whom he supports. Id. Over the last twelve months, he has received $600 from his girlfriend. Id. at 2. The plaintiff does not own a vehicle, nor does he own a home. Id. at 3. He does not have any cash or checking, savings or other similar accounts. Id. The plaintiff has learned that he may have approximately $2, 000 in an old retirement account, but he has not been able to verify that. Id. at 4.

         The plaintiff advises the court that he has been estranged from his wife for approximately twenty years. Id. at 4. While he is out of work, he is living with his son and the mother of his son, who provides support to them. Id. As for expenses, the plaintiff lists rent payments of $355 per month. Id. at 2. He has monthly expenses of $235 for phone and utilities. Id. He should be paying child support of approximately $230 per month, but he is in arrears. Id. Thus, the plaintiff has an income of $600 per month, and expenses of $585 per month. The court concludes from this information that the plaintiff has demonstrated that he cannot pay the $350 filing fee and $50 administrative fee.

         Ordinarily, the court would proceed to examine whether the complaint is frivolous, malicious, or fails to state a claim for which relief can be granted. See 28 U.S.C. §1915. The court need not conduct that analysis in this case, however, because the defendant has appeared through counsel, and its motion to dismiss challenged only the plaintiff's retaliation complaint.[1] Because the defendant did not seek to dismiss them, the court will allow the remaining four claims to proceed.

         For the reasons explained below, the court will deny the defendant's motion to dismiss the plaintiff's retaliation claim. Accordingly, the court will grant the plaintiff's motion to proceed without paying the filing fee, and will allow him to proceed on all five counts of the complaint.


         The defendant has moved to dismiss the plaintiff's retaliation claim on the sole ground that the plaintiff did not administratively exhaust this claim in the proceedings before the EEOC. The defendant argues that the plaintiff failed to check the box for “retaliation” in his EEOC charge and did not allege that he had been retaliated against for having engaged in a statutorily protected activity. According to the defendant, the court's determination of whether the plaintiff's retaliation claim can proceed should be based solely on the information contained in his EEOC charge, and not on additional information that the plaintiff and his attorney subsequently provided to the EEOC, because the defendant did not receive notice of such information.

         The Seventh Circuit “has adopted a liberal standard for reviewing the scope of an EEOC charge, ” Farrell v. Butler Univ., 421 F.3d 609, 616 (7th Cir. 2005), and has cautioned that “[w]hat boxes . . . are checked on the EEOC form do not necessarily control the scope of a subsequent civil complaint.” Kristufek v. Hussman Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993). Accordingly, a complaint brought under Title VII may contain not only the allegations in the administrative charge, but also claims that are “like or reasonably related to the allegations of the charge and growing out of such allegations.” Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 864 (7th Cir. 2010) (quoting McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 481 (7th Cir. 1996)).

         “Normally, retaliation and discrimination charges are not [sufficiently] like or reasonably related to one another” to permit an EEOC charge of one type of to support a subsequent civil suit for another. Id. at 864-65 (see also Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726-27 (7th Cir. 2003) (concluding that sexual harassment and sex discrimination claims were not reasonably related to the retaliation claim alleged in EEOC charge). A retaliation claim alleged in a complaint, however, can be reasonably related to allegations in a charge of discrimination when it is “so related and intertwined in time, people, and substance that to ignore the relationship for strict and technical application of the rule would subvert the liberal remedial purposes of the Act.” Sitar, 344 F.3d at 727 (quoting Kristufek, 985 F.2d at 368). This approach takes into account the fact that many Title VII plaintiffs file an EEOC charge without legal assistance, Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992), but does not allow a plaintiff to “circumvent the EEOC's investigatory and conciliatory role and deprive the charged party of notice of the charge.” Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988) (quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)).

         In this case, the plaintiff's EEOC charge states the he began working for the defendant in July 2014. Dkt. No. 8-1 at 2. He claims to have been injured in February 2015, after which he “was reassigned to work alone in a room that was like a box and smelled horrible. Sherry (LNU) in HR told me that I couldn't use a certain bathroom or the break room. I was not allowed to talk to other workers or have them talk to me.” Id. At some point, the plaintiff reported that treatment to HR, and “Sherry laughed and said it was an inside joke.” Id. Later, the plaintiff overheard an assistant manager named Russ call him “a n-r” when talking to Quinn. Id. The plaintiff stated that “[i]n April or May 2015, [he] found a hand-written note written by Russ stating, ‘Want [sic] you leave n-r' and a picture of a swastika.” Id. The plaintiff “showed the note to Sherry and she laughed saying it was an inside joke.” Id. The plaintiff asserted that he had been discriminated against on the basis of his race, age and disability. Id.

         In his subsequent civil complaint, the plaintiff alleged that the defendant discriminated against him based on his race, age and disability. The plaintiff alleged that he was employed by the defendant from October 2014 until June 29, 2015. Dkt. No. 1 at ¶¶4, 9. He alleged that he could perform all of the functions, duties and responsibilities of his job at all relevant times. Id. at ¶11. In February 2015, the plaintiff suffered a work-related back injury and was instructed by his physician to take the day off before returning to work, and to follow work restrictions when he returned to his job. Id. at ¶12. The plaintiff returned to his job to deliver his work restrictions, and he was told by an HR representative “to go home for the day.” Id. at ¶14. A plant manager, Russ Detiege, allegedly called the plaintiff later that night, displeased with the plaintiff for having left work. Id. at ¶15. Detiege told the plaintiff he was “not going to get paid for sitting at home.” Id.

         The plaintiff returned to work the following day and was met with a box containing screws and bolts. Id. at ¶16. He was instructed to sort the parts into bags, and did so for four hours before leaving to go home. Id. The next day, the plaintiff arrived at work and overheard Detiege tell another employee, Quinn Guzman, to “keep tearing the bags open and let that Ol' Nigger keep counting them over and over until he gets tired of it.” Id. at ...

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