United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, District Judge
Jeaninne Bruguier and Joni Theobald assert claims under Title
VII and state law, alleging that defendants wrongfully
terminated their employment and otherwise violated their
rights because of plaintiffs' political activities.
Lac du Flambeau Band of Lake Superior Chippewa Indians,
L.D.F. Business Development Corporation, and Henry St.
Germaine jointly move to dismiss these actions on several
threshold issues. Dkt. 13. The court will dismiss all Title
VII claims under Federal Rule of Civil Procedure 12(b)(6) for
plaintiffs' failure to state a claim. Tribal sovereign
immunity precludes their claims, and an Indian tribe is not
an employer under Title VII. The court will decline to
exercise supplemental jurisdiction over the state-law claims
and dismiss both cases.
decide a Rule 12(b)(6) motion, the court may consider
plaintiffs' complaints, documents referenced in the
complaints, documents critical to the complaints, and
information subject to judicial notice. Geinosky v. City
of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The
court draws the following facts from plaintiffs'
complaints, charges filed with the EEOC, right-to-sue
letters, and publicly available charters of tribal
Lac du Flambeau Band of Lake Superior Chippewa Indians (the
Tribe) is a federally recognized Indian tribe. In the 1930s,
the Tribe was reorganized and approved by the Secretary of
the Interior pursuant to Section 16 of the Indian
Reorganization Act of 1934 (the IRA), 25 U.S.C. § 5123
(originally 25 U.S.C. § 476). Defendant Henry St.
Germaine is a former president of the Tribe's council. In
2012, the tribal council established defendant L.D.F.
Business Development Corporation (L.D.F. Business
Development) pursuant to Article VI, Section 1(o) of the
Tribe's constitution. Under L.D.F. Business
Development's charter, the Tribe is the “sole
owner.” Dkt. 14-6, at 2.
are former employees of the Tribe. Plaintiff Bruguier was the
Tribal Administrator. Theobald was the Director of
Gikendaasowin [Knowledge] Education & Workforce
Development. The Tribe terminated plaintiffs' employment
2015, Theobald announced her candidacy for a seat on the
tribal council. Plaintiffs allege that St. Germaine,
then-president of the tribal council, arranged a phony
internal audit to create a negative perception of Theobald
and those associated with Theobald, including Bruguier. The
internal auditors obtained confidential documents that
pertained to plaintiffs and published those documents on a
Facebook page that had over 900 members.
the same time, St. Germaine and two other council members met
and identified the two highest-paid female managers, Bruguier
and Theobald, as candidates for termination. The Tribe later
accused plaintiffs of misconduct and terminated their
employment, without giving them an opportunity to defend
against the accusations. The Tribe terminated male employees
too, but the Tribe gave them an opportunity to speak before
the tribal council before their termination.
filed separate charges with the EEOC, each alleging sex
discrimination, race discrimination, and retaliation. They
filed their charges only against the Tribe and not against
the other defendants. Dkt. 14-1, at 3 and Dkt. 14-2, at 3.
The EEOC dismissed both charges for lack of jurisdiction on
June 3, 2016. Dkt. 14-3, at 1 and Dkt. 14-4, at 1. The same
notices that informed plaintiffs of the dismissal informed
them of their right to sue. Plaintiffs filed separate
complaints with this court on September 1, 2016, and the
court consolidated these two cases.
parties debate whether defendants' motion should be
treated as a motion to dismiss for lack of subject matter
jurisdiction or for failure to state a claim.
“Customarily, a federal court first resolves doubts
about its jurisdiction over the subject matter.”
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578
(1999). But as the Seventh Circuit has recently explained, a
federal district court “has leeway to choose among
threshold grounds for denying audience to a case on the
merits.” Meyers v. Oneida Tribe of Indians of
Wis., 836 F.3d 818, 821 (7th Cir. 2016). Here, the court
will construe defendants' motion as a motion to dismiss
for failure to state a claim because the issues discussed in
this opinion are not jurisdictional.
standards governing a Rule 12(b)(6) motion are well
established. A complaint must contain allegations that, when
accepted as true, state a claim for relief that is plausible
on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). If the allegations in a complaint
“however true, could not raise a claim of entitlement
to relief, ” the court should grant the motion.
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir.
2011) (quoting Twombly, 550 U.S. at 558).
Title VII claims against the Tribe
plaintiffs claim that the Tribe discriminated against them
based on sex, race, and national origin and that the Tribe
retaliated against them in violation of Title VII. But their
claims fail for two reasons. First, the Tribe's sovereign
immunity precludes their claims. Second, the Tribe is not an
“employer” under Title VII. Each of these two
reasons provides an independent basis for dismissal.
matter of federal law, Indian tribes have sovereign authority
traditionally enjoyed by sovereign powers. Michigan v.
Bay Mills Indian Cmty., 134 S.Ct. 2024, 2030 (2014).
Thus, Indian tribes are immune from suit in both state and
federal courts unless Congress abrogates the tribe's
sovereign immunity or the tribe waives its sovereign
immunity. Wells Fargo Bank, Nat'l Ass'n v. Lake
of the Torches Econ. Dev. Corp., 658 F.3d 684, 689 (7th
Cir. 2011) (citing Kiowa Tribe of Okla. v. Mfg. Techs.,
Inc., 523 U.S. 751, 754 (1998)). In the Seventh Circuit,
sovereign immunity is not a jurisdictional issue.
Meyers, 836 F.3d at 820. The parties here agree that
the Tribe is a federally recognized Indian tribe, and
plaintiffs do not contend that Congress abrogated the
Tribe's sovereign immunity. Thus, the remaining question
is whether the Tribe waived its sovereign immunity.
Indian tribe's waiver of sovereign immunity must be
“clear.” C & L Enter's, Inc. v.
Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S.
411, 418 (2001). It cannot be implied, Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58 (1978), and any ambiguity
must be resolved in favor of immunity, Meyers, 836
F.3d at 827 (citing F.A.A. v. Cooper, 132 S.Ct.
1441, 1448 (2012)); Nanomantube v. Kickapoo Tribe in
Kan., 631 F.3d 1150, 1153 (10th Cir. 2011). An Indian
tribe can waive its sovereign immunity by, among other means,
a tribal resolution or a contract. Stifel, Nicolaus &
Co., Inc. v. Lac du Flambeau Band of Lake Superior Chippewa
Indians, 807 F.3d 184, 202 (7th Cir. 2015).