United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 2) AND DENYING DEFENDANT'S
MOTION TO DISMISS RETALIATION CLAIM (DKT. NO. 8)
PAMELA PEPPER United States District Judge.
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
COURT WILL GRANT THE PLAINTIFF'S MOTION TO PROCEED 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.
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
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. Because the defendant did not seek to
dismiss them, the court will allow the remaining four claims
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
THE COURT WILL DENY THE DEFENDANT'S MOTION TO DISMISS THE
PLAINTIFF'S RETALIATION CLAIM
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.
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)).
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)).
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
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.”
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