United States District Court, E.D. Wisconsin
FABIOLA ROMERO, LORENA GARCIA SOLORIO, ROSA MORAN FIGUEROA, and MARITZA HERNANDEZ, Plaintiffs,
JBS PACKERLAND INC., Defendant.
DECISION AND ORDER
William C. Griesbach, United States District Court Chief
plaintiffs, Fabiola Romero, Lorena Garcia Solorio, Rosa Moran
Figueroa, and Maritza Hernandez, filed this action against
defendant JBS Packerland Inc. after they were terminated from
their employment. The plaintiffs allege that their
termination was motivated by race and sex, and assert claims
for intentional discrimination, harassment, and retaliation
under 42 U.S.C. § 2000 et seq. as well as
intentional discrimination under 42 U.S.C. § 1981. The
case is presently before the court on JBS's motion to
dismiss. JBS contends that the plaintiffs have failed to
state a claim for which relief may be granted under Federal
Rule of Civil Procedure 12(b)(1) and (6) and moves to dismiss
all four claims. For the reasons stated herein, the motion to
dismiss will be granted in part and denied in part.
operates a meat packing facility in Green Bay, Wisconsin.
Compl. ¶ 10, ECF No. 1. The plaintiffs were employed as
meat trimmers and scheduled to work in the Fabrication
Department at Table 4 Flat Meat from 6:00 a.m. to 3:00 p.m.
five days a week. Id. ¶¶ 11-13. All four
plaintiffs are of Hispanic ethnicity. Id. ¶ 15.
25, 2014, the plaintiffs and two other employees began their
shift working at Table 4. Id. ¶ 14. At
approximately 10:30 a.m., Ricardo Laredo, the plaintiffs'
supervisor, removed one employee from the table to perform a
different task. Shortly thereafter, Hernandez told Laredo
that they needed six employees at their table to safely
perform their work at the required speed. Romero, Garcia
Solorio, and Figueroa agreed with Hernandez's complaint.
Laredo instructed the plaintiffs as well as the remaining
employee at Table 4 to leave their workstation and continue
the conversation in a nearby fabrication office. Id.
Although the complaint does not explicitly indicate that
Laredo terminated their employment during this meeting, the
plaintiffs allege that they informed “Laredo that they
intended to speak with higher-ranking managers about their
concerns and to reverse Mr. Laredo's decision to
terminate them.” Id. ¶ 15.
the meeting, the plaintiffs went to the Human Resources
Office, and Laredo assigned other employees to perform the
plaintiffs' work. Id. Kathleen Mahn, JBS's
Human Resources Manager, stated that the plaintiffs were
suspended pending a final decision from the company as to
whether they should be terminated for refusing to work.
Id. ¶ 16. The plaintiffs were asked to turn in
their badges before leaving the premises that day. The
following week, the plaintiffs were advised that Laredo's
decision to fire them would stand. Id.
plaintiffs assert JBS terminated them because of their gender
and race. They assert that their job performance met the
legitimate expectations of JBS but were treated differently
than similarly situated men employed by JBS who complained
about poor staffing. Id. ¶¶ 16-17.
Specifically, the plaintiffs contend that a group of 21 chuck
boners working at Table 2 who walked off the job to protest
inadequate staffing levels in the spring of 2014 were not
terminated or otherwise disciplined for shutting the
production line down for 30 to 45 minutes. Id.
¶ 16. On other occasions, men who walked off their lines
for 20 to 30 minutes to protest inadequate staffing were not
terminated or otherwise disciplined. Id.
plaintiffs also allege that Laredo created a hostile work
environment by frequently making sexually lewd comments to
them. For instance, Laredo would stare at the plaintiffs'
chests and buttocks and whistle at them. On one occasion, he
told Garcia Solorio and Hernandez to take off their coats so
he could see them better. The plaintiffs contend that
Laredo's advances toward them were demeaning, highly
offensive, and unwelcome. Id.
considering a motion to dismiss, the court construes the
allegations in the complaint in the light most favorable to
the plaintiff, accepts all well-pleaded facts as true, and
draws all inferences in favor of the non-moving party.
Estate of Davis v. Wells Fargo Bank, 633 F.3d 529,
533 (7th Cir. 2011). To state a cognizable claim under the
federal notice pleading system, the plaintiff is required to
provide a “short and plain statement of the claim
showing that [she] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). It is not necessary for the plaintiff to plead
specific facts and her statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, a complaint
that offers “labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on
its face.” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
(citation omitted). “[T]he plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
14, 2017, JBS filed a motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and (6). The plaintiffs did
not respond to the motion, and on July 11, 2017, JBS filed a
motion asking the court to grant its motion to dismiss
pursuant to Civil L.R. 7(d). See Civil L.R. 7(d)
(“Failure to file a memorandum in opposition to a
motion is sufficient cause for the Court to grant the motion.
The Court may also impose sanctions under General L.R.
83(f).”). Less than three hours later, the plaintiffs
moved for an extension of time to file their response brief,
explaining that their failure to respond was caused by a
calendaring error. ECF No. 16 at 1. Rather than grant
JBS's motion to dismiss outright, the court finds that
reprimand is a sufficient sanction under these circumstances.
it is important to comply with the deadlines created by the
rules or required by the court, it is “entirely
contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the
basis of . . . mere technicalities.” Forman v.
Davis, 371 U.S. 178, 181 (1962). The plaintiffs took
quick action to remedy their failure by filing their response
just three days after JBS filed its motion for relief under
Civil L.R. 7(d). It appears the plaintiffs' calendaring
oversight could have been cured by a simple telephone call as
opposed to motion practice. Given that the parties have
substantively addressed the merits of the motion, and that
JBS has not shown that it was prejudiced by the
plaintiffs' short delay in responding, the court will
deny JBS's motion for relief under Civil L.R. 7(d) and
address the merits of the motion to dismiss. The plaintiffs
are warned, however, that failure to timely comply with
future deadlines will result in more severe sanctions.