United States District Court, E.D. Wisconsin
JAMES A. MOLLET, Plaintiff,
CITY OF GREENFIELD (FIRE DEPARTMENT), Defendant.
DECISION AND ORDER
ADELMAN United States District Judge
Mollet has filed a complaint alleging that the City of
Greenfield retaliated against him for opposing discrimination
in the workplace, in violation of Title VII of the Civil
Rights Act of 1964, and also discriminated against him
because of his age, in violation of the Age Discrimination in
Employment Act ("ADEA"). Before me now is the
defendant's motion to dismiss the complaint for failure
to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).
plaintiffs complaint alleges the following. Between March 6,
1995 and March 23, 2013, the plaintiff was employed as a
firefighter/paramedic with the City of Greenfield Fire
Department. At the time of the events giving rise to this
suit, the plaintiff's title was Battalion Chief.
February 9, 2012, the plaintiff told his superiors, Chief
John Cohn and Assistant Chief George Weber, that there had
been an incident at the fire station during which a Latino
firefighter, Cesar Hernandez, was harassed based on his
ethnicity. The incident was that someone had put up posters
around the fire station depicting a picture of the Mexican
flag with the words "Border Control" written on it.
When the plaintiff brought this incident to Cohn's and
Weber's attention, Weber told the plaintiff to
investigate the matter, which he did. After conducting the
investigation, the plaintiff reported to Cohn and Weber that
another Battalion Chief, Shawn Hammernik, was aware of the
incident and had a picture on his telephone of one of the
plaintiff alleges that, after he submitted his report on the
incident, Cohn and Weber began to treat him negatively. Among
other things, they "criticiz[ed] [his] communication
skills, especially as those skills relate to texting."
Compl. ¶ 17. They also removed him from certain roles in
the department, including training and mentoring roles. They
also repeatedly told him that his job was in jeopardy.
Eventually, the plaintiff complained about Cohn's and
Weber's actions to the City's Human Resources
Director. He also complained to Human Resources about the
incident involving the Mexican flag and the harassment of
Hernandez. Id. ¶ 21. Cohn eventually learned
that the plaintiff had complained to Human Resources.
Id. ¶ 33. At some point after learning about
his meeting with Human Resources, Cohn told the plaintiff
that he must either "change or 'get off the
bus.'" Id. ¶ 34. Cohn also told the
plaintiff that he did not trust him anymore, and that he was
going to either demote or discharge him. At this point, the
plaintiff began to look for new employment.
February 19, 2013, the plaintiff informed Weber that he had a
job offer from another fire department that was conditioned
on his passing physical and psychological examinations. The
plaintiff told Weber that if he passed these exams, he would
resign from the Greenfield Fire Department. He did not,
however, tender his resignation at that time. A few days
later, Cohn wrote the plaintiff a letter purporting to
"accept" his resignation and informing him that his
last day of employment would be February 24, 2013. After the
plaintiff informed Cohn that he had not actually tendered his
resignation, Cohn stated that, nonetheless, the plaintiffs
last day of employment with the department would be February
24th. However, Cohn eventually rescinded the discharge and
placed the plaintiff on paid leave pending the outcome of the
conditional offer of employment. Thereafter, Cohn and Weber
contacted the plaintiff several times and told him that if he
decided to continue his employment with the department he
would be demoted or discharged.
March 2013, the plaintiff had obtained a position with
another fire department and resigned from the Greenfield Fire
Department. He alleges that his new position paid a lower
salary and came with fewer benefits.
plaintiffs complaint alleges that Cohn's and Weber's
actions, which eventually resulted in his constructive
discharge, constitute retaliation for the plaintiffs opposing
discrimination in the workplace, in violation of Title VII.
Compl. ¶45. The complaint also alleges that Cohn's
and Weber's actions constitute age discrimination, in
violation of the ADEA. However, in response to the
defendant's motion to dismiss, the plaintiff withdrew his
claim of age discrimination. Thus, the only question is
whether the complaint states a claim for retaliation under
plead a retaliation claim under Title VII, a plaintiff must
allege that he engaged in statutorily protected activity and
was subjected to an adverse employment action as a result of
that activity. Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1029 (7th Cir. 2013). The plaintiff must also
"provide some specific description of [the protected]
conduct beyond the mere fact that it is protected."
EEOC v. Concentra Health Servs., Inc., 496 F.3d 773,
781 (7th Cir. 2007).
present case, the plaintiff has sufficiently pleaded a claim
for retaliation. First, the complaint describes the protected
activity. Specifically, the complaint alleges that the
plaintiff "reported" to his superiors, Cohn and
Weber, that a Latino firefighter was subjected to harassment
on the basis of his ethnicity when posters depicting a
Mexican flag with the words "Border Control"
written on it were hung in the fire station. The plaintiff
also reported that another Battalion Chief had photos of the
poster on his phone. The defendant seems to contend that the
complaint does not allege that the plaintiff's report
qualified as a "complaint" about discrimination in
the workplace or "opposing discrimination in the
workplace." It is true that the complaint does not use
these exact phrases but instead alleges only that the
plaintiff "reported" the harassment to his
supervisors. However, why would the plaintiffs report not
qualify as a complaint or as opposition to discrimination in
the workplace? The only reason to report the incident would
be to prevent it from occurring again. Thus, a reasonable
inference to draw from the complaint is that the plaintiffs
report was a complaint about the flag incident and the other
Battalion Chiefs invovlement.
complaint also sufficiently alleges that the plaintiff was
subjected to an adverse employment action because of his
complaint about the flag incident. Specifically, the
complaint alleges that soon after he made his report about
the incident and the other Battalion Chiefs involvement, his
supervisors began to treat him negatively by, for example,
criticizing his communication skills and removing him from
training and mentoring roles. The complaint alleges that this
negative conduct escalated to the point where Cohn threatened
to demote or discharge the plaintiff if he did not leave the
department. The complaint also alleges that because of these
threats, the plaintiff resigned from the department to take a
job elsewhere and thus was constructively discharged.
defendant points out that the plaintiff has not specifically
alleged that Cohn and Weber's negative treatment of him
was caused by his report about the flag incident and the
other Battalion Chiefs involvement. However, a causal
relationship is clearly implied by the complaint, in that the
complaint alleges that this negative treatment began
immediately after the plaintiff made his report. Moreover,
the plaintiff specifically alleges that he is suing the
defendant for retaliation. What else could the alleged
retaliation be for than the plaintiffs complaint about the
flag incident and the other Battalion Chiefs involvement? In
short, the defendants have all of the information they need
to begin to investigate the plaintiffs claim and prepare a
defense. They know what the alleged protected activity is
(the plaintiffs report about the flag incident and the
Battalion Chiefs involvement) the identities of the alleged
retaliators (Cohn and Weber) and what the adverse employment
action consisted of (Cohn ...