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Romero v. JBS Packerland Inc.

United States District Court, E.D. Wisconsin

August 1, 2017



          William C. Griesbach, United States District Court Chief Judge

         The 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.


         JBS 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.

         On June 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.

         After 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.

         The 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.

         The 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.


         In 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.


         On June 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.

         While 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.

         I. ...

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