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 brings an employment discrimination
claim under the Americans with Disabilities Act (ADA) against
his former employer, defendant Sub-Zero Freezer Co. Calvin
contends that Sub-Zero discriminated against him by
terminating his employment based on his disability.
moves for dismissal for failure to state a claim, and in the
alternative, for summary judgment. Dkt. 9. I will dismiss
Calvin's complaint as untimely, construing Sub-Zero's
motion as a motion for summary judgment because both sides
refer to matters outside of Calvin's complaint.
case arose from events that occurred 15 years ago. Calvin
worked at Sub-Zero from 1993 to 2002. Sometime before the
summer of 2002, Calvin sustained a work-related injury.
Calvin was allegedly “walked out a back door of
Sub-Zero” on July 29, 2002, because of his disability.
Dkt. 1, at 3. Sub-Zero states that it simply placed Calvin on
a medical leave of absence due to Calvin's injury. On
February 1, 2004, Sub-Zero sent Calvin a letter that formally
terminated his employment because, according to Sub-Zero,
Calvin had failed to find another position at Sub-Zero for 18
months since July 2002. Calvin contends that the placement on
a medical leave was a ruse by Sub-Zero and maintains that
July 29, 2002, is the date when Sub-Zero actually terminated
filed his charge with the Wisconsin Department of Workforce
Development Equal Rights Division on November 26, 2004.
Calvin was originally represented by an attorney, but for an
unidentified reason, the attorney stopped representing Calvin
sometime before 2010. Dkt. 20-2, at 7. Calvin then filed
another charge with the Equal Rights Division, appearing pro
se, on November 8, 2010. Dkt. 21-3. On November 6, 2015, the
administrative law judge concluded that she had no reason to
believe that Sub-Zero discriminated against Calvin based on
his race, color, or disability. Dkt. 20-2, at
December 11, 2015, Calvin attempted to appeal the ALJ
decision to the circuit court for Dane County. Dkt. 20-3. On
April 21, 2016, Calvin appealed the ALJ decision to the Labor
and Industry Review Commission. Dkt. 20-5. On July 18, 2016,
the Commission dismissed the case. Dkt. 20-6. On August 5,
2016, Calvin filed his complaint in this case. Calvin does
not indicate that he ever received a right to sue letter from
the Equal Employment Opportunity Commission.
dismiss Calvin's complaint as untimely. Sub-Zero's
motion is styled as a motion to dismiss “and/or”
a motion for summary judgment. Sub-Zero did not strictly
follow the court's requirements for motions for summary
judgment because it did not submit proposed findings of fact,
but it did support its motion with evidentiary submissions.
Calvin had a full opportunity to respond and submitted his
own evidence. I will consider the parties' evidentiary
submissions and treat Sub-Zero's motion as one for
summary judgment. A court may grant summary judgment when no
genuine issue of a material fact exists and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
a Title VII plaintiff must file a charge of discrimination
with the federal EEOC within 180 days of the alleged
violation before filing suit in federal court. 42 U.S.C.
§§ 12117(a), 2000e-5(e). But in a “deferral
state” such as Wisconsin, 29 C.F.R. § 1601.80, the
plaintiff has 300 days from the alleged violation to file the
charge. Johnson v. J.B. Hunt Transp., Inc., 280 F.3d
1125, 1129 (7th Cir. 2002); Sharp v. United Airlines,
Inc., 236 F.3d 368, 372 (7th Cir. 2001). And the
Wisconsin Equal Rights Division has a worksharing agreement
with the EEOC “under which both agencies treat a
complaint filed with one agency as cross-filed with the
other.” Alvey v. Rayovac Corp., 922 F.Supp.
1315, 1326 (W.D. Wis. 1996). Thus, “in Wisconsin, a
charge of discrimination actionable under federal law is
timely if it is filed with the state Equal Rights Division
within 300 days of the alleged discriminatory act.”
Id. (citations omitted). If the plaintiff fails to
file a charge within the 300-day window, the Title VII claim
is time-barred. Roney v. Illinois Dept. of Transp.,
474 F.3d 455, 459-60 (7th Cir. 2007). But the real question
here is when the 300-day limit starts to run. “[T]he
discrete act that starts the Title VII limitations clock is
the discriminatory decision itself, not the
consequences of the act that may materialize down
the road.” Barrett v. Illinois Dept. of Corr.,
803 F.3d 893, 898 (7th Cir. 2015) (emphasis in the original)
(internal citation and alterations omitted).
Calvin alleges that he was “walked out a back door of
Sub-Zero” on July 29, 2002, because of his disability.
Dkt. 1, at 3. Because this was so long ago, I required Calvin
to explain how his claim was timely. Dkt. 4. When Calvin
responded, he stated that he received from Sub-Zero a letter
announcing his termination sometime in February 2004. Dkt.
5-6. I allowed Calvin to proceed and explained that if the
date of discrimination was in February 2004, as opposed to
July 2002, then Calvin's charge filed in November 2004
could be timely. Dkt. 6, at 2. That, too, is a long time ago,
but Calvin's charge remained unresolved for years.
Calvin maintains that the actual date of termination was on
July 26, 2002, not February 2004. I must read Calvin's
pro se submissions liberally, but this does not mean that I
should “invent allegations that are not suggested in
any manner” by Calvin. See Cole v. Litscher,
No. 04-cv-116-bbc, 2005 WL 627791, at *9 (W.D. Wis. Mar. 15,
2005). And Calvin is crystal clear that he recognized that
Sub-Zero terminated his employment on July 26, 2002, and that
he was not really placed on leave of absence at the time.
See Dkt. 25, at 1 (“I Arlin Calvin knew in
July of 2002 that I was terminated.”), 2 (“On
July 26th, 2002, I was walked out of the back door . . . Fred
Neuman stated my employment with Sub-Zero was done . . .
.”), 4 (“If I was on Leave of Absence why was I
walked out the back door on July 26th, 2002? . . . I was not
even allowed back in the building nor on the
property.”). This is how the investigator at the Equal
Rights Division assigned to Calvin's case saw it:
“all of the allegations in [Calvin's 2004 charge]
involved acts that occurred more than 300 days” before
Calvin filed the charge. Dkt. 20-2, at 4. Calvin's
acknowledgement that he was actually terminated on July 26,
2002, is fatal to his claim.
Calvin is without legal counsel, I have considered other ways
in which his claim might be timely. One is the
“continuing violation” doctrine, which allows a
plaintiff to assert a claim against “a single, ongoing
unlawful employment practice if at least one related act
occurs during the limitations period.”
Barrett, 803 F.3d at 898 (citation omitted). But
that doctrine applies only to hostile work environment
claims, id., and Calvin is not pursuing one here.
is the “cumulative violation” principle, which
applies in a situation where it was “not immediately
apparent that the law [was] being violated.” Bass
v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th
Cir. 2014). The plaintiff in that situation can “delay
suing until a series of wrongful acts blossoms into an injury
on which suit can be brought.” Id. (quoting
Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520
F.3d 797, 801 (7th Cir. 2008)). But if the discrete act
results in a “continuing harm, ” then the 300-day
clock starts from the date of the discrete act; “it
does not restart with each new day the harm is
experienced.” Id. 839-40 (citing Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-15
(2002). Here, Calvin states that he “knew” that
he was terminated on July 26, 2002, ...