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Brooks v. Complete Warehouse & Distribution LLC

United States District Court, E.D. Wisconsin

January 12, 2017

LARRY DONNELL BROOKS, Plaintiff,
v.
COMPLETE WAREHOUSE & DISTRIBUTION LLC, JOHN ARCURI, MIKE MILLER, RON MALVICK, REBECCA VUCKOVIC, JIM HANSON, and RONALD NEUMUTH, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME (DKT. NO. 24), AND GRANTING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (DKT. NO. 22)

          HON. PAMELA PEPPER United States District Judge.

         The defendants have filed a motion to dismiss the plaintiff's case under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 22. In the event that the court does not think it appropriate to dismiss the case, the defendants ask the court to grant them summary judgment under Federal Rule of Civil Procedure 56. Id. After reviewing the motion, the court construes it as a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). The court will grant that motion, because the plaintiff's third amended complaint-his fourth in the course of this litigation-fails to state a claim for which relief can be granted and violates Civil Local Rules 10 and 15 and the court's May 31, 2016 order. The court also finds that granting the plaintiff an additional opportunity to plead his claims would be futile. Because the court will grant the defendants' motion under Rule 12(c), the court will deny as moot the defendants' motion for summary judgment.

         I. BACKGROUND

         A. Original Complaint

         The plaintiff, representing himself, filed a complaint alleging that the defendants discriminated against him on the basis of race. Dkt. No. 1. The complaint named seven defendants: Complete Warehouse & Distribution, LLC; John Arcuri; Mike Miller; Ron Malvick; Rebecca Vuckovic; Jim Hanson; and Ronald Neumuth. Id.

         In the complaint, the plaintiff alleged that he'd started working at Complete Warehouse as a truck driver in November 2007. Id. at 3. He alleges that in January 2008, another employee addressed him using a racial slur, in front of defendant Malvick (a part-owner and supervisor). When the plaintiff protested, Malvick said the other employee was “only joking.” Id. The next day, the plaintiff complained to Malvick, telling him that the slur was offensive, that he wanted the behavior stopped, and that Malvick was racist for allowing it to occur. Malvick responded that he had “black grandchildren.” Id.

         Other events followed-another employee made racist remarks about President Obama in front of the plaintiff; the original employee continued to use the racial slur; other employees used racist language in front of and around the plaintiff. Id. The plaintiff alleges that the environment worsened over time. Id. at 3-4. In June of 2008, two employees got into an altercation in front of the plaintiff, and one of them pulled out a pistol. Id. at 4. When the plaintiff reported this incident to Malvick, Malvick stated that it probably wasn't a real gun. Id. Eventually, after further issues, the plaintiff alleges that Malvick ordered white employees to stop talking to the defendant, and began making truck assignments based on drivers' race. Id. The plaintiff also asserted that he received “harsh discipline” for an “uninvestigated incident, ” while white co-workers were not disciplined for “major infraction[s].” Id. at 4-5.

         The plaintiff also alleged that in February 2009, he met with defendant Neumuth (the safety director) to discuss an accident, and realized that he knew Neumuth from the plaintiff's prior job. Id. at 5. The plaintiff “got a three day suspension and a company handbook.” Id. He indicates that in contrast, white drivers were damaging their trucks, and receiving no discipline. Id. When the plaintiff came off suspension, he was not allowed to drive a truck, but was placed on part-time duty in the warehouse. Id. The plaintiff ended up complaining about this, and how he was treated differently than white employees and was subjected to continuing racist remarks, to defendant Miller, the company president. Id. By May 2009, the plaintiff claims, he was required to load his own freight before transporting it, while white employees had their freight loaded by warehouse workers. Id.

         On May 19, 2009, defendant Neumuth “rubber stamp[ed] the company policy [illegible] suspending [the plaintiff], this time citing improper per-trip.” Id. Again, white drivers were rolling their trucks due to failure to properly secure their loads, but not being disciplined. In June 2009, the plaintiff told Neumuth that he was going to court for a ticket he'd received while on duty. When the plaintiff arrived at court, defendant Hanson met him on the courthouse steps and said he was there to fight the ticket. Hanson “plead no contest and paid the ticket.” Id. On the way out of the courthouse, the plaintiff asked Hanson that he be “dispatch[ed]” from West Allis, and Hanson said “ok.” Id. On June 4, 2009, however, Hanson terminated the plaintiff for the unauthorized use of government equipment. Id. The plaintiff challenged his termination with defendant Miller; Miller reiterated that the plaintiff was fired. Id.

         The original complaint made no mention of defendant John Arcuri, and mentioned defendant Rebecca Vuckovic only to state that the plaintiff approached Malvick to “discuss” her on one occasion. Id. at 4. The complaint did not state any causes of action, or list any statutes under which the plaintiff was suing.

         B. First Amended Complaint

         Two and a half months later, the plaintiff filed an amended complaint. Dkt. No. 7. This document was one page long. It stated that the plaintiff was asking the court to include one count of negligent failure to prevent racial harassment in the workplace; one count of negligence in response to racial harassment; one count of intentional infliction of emotional distress; one count of hostile work environment based on racial discrimination in violation of 42 U.S.C. §1981; one count of disparate treatment based on racial discrimination in violation of 42 U.S.C. §1981; one count of hostile work environment in violation of Title VII; and one count of disparate treatment in violation of Title VII. Dkt. No. 7. (The plaintiff also asked the court to appoint a lawyer to represent him. Id.) This first amended complaint did not state any facts. Nor did it state against which defendants he was bringing which claims.

         C. Second Amended Complaint

         After the defendants filed their answer, the court held a scheduling conference, setting discovery deadlines, motions deadlines, and a trial date. Dkt. No. 15. About forty-five days later, the plaintiff filed a motion, asking the court to allow him to amend his complaint a second time. Dkt. No. 16. The motion stated that he wanted to amend the complaint “to include . . . Count One: retaliation; negligence failure to prevent retaliation from co-owner Ron Malvick and Rebecca Vuckovic. Count ...


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