United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Santos Tase-Soto, filed a pro se complaint alleging
that Defendants, his former work supervisors or co-workers,
discriminated against him based on his age while working at
the local Palermo's Pizza factory (“Palermo's)
in Milwaukee. (Docket #1). Before the Court is
Plaintiff's petition to proceed in forma
pauperis. (Docket #2).
order to allow a plaintiff to proceed without paying the
filing fee, the court must first decide whether the plaintiff
has the ability to pay the filing fee and, if not, whether
the lawsuit is frivolous. 28 U.S.C. §§ 1915(a),
(e)(2)(B)(I). On the first question, Plaintiff avers in his
motion that he is unmarried, unemployed, and has no
dependents. (Docket #2 at 1). In the last year, he claims to
have received around $11, 500 in income through Social
Security disability benefits and renting a room in his
apartment. Id. at 2. He asserts that his monthly
expenses, including rent, total $1, 085. Id. His
assets include a 2000 Chevrolet Astro, which he values at $1,
470, and $25 in a bank account. Id. at 3-4. On these
averments, the Court finds that Plaintiff has demonstrated
that he cannot pay the $350 filing fee and $50 administrative
notwithstanding any filing fee, the Court must dismiss a
complaint or portion thereof if it has raised claims that are
legally “frivolous or malicious, ” that fail to
state a claim upon which relief may be granted, or that seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B). A claim is legally
frivolous when it lacks an arguable basis either in law or in
fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
(7th Cir. 1997). The Court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless
legal theory or where the factual contentions are clearly
baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, a plaintiff is required to provide a “short and
plain statement of the claim showing that [he] is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary
for the plaintiff to plead specific facts and his 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 “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
noted above, Plaintiff's complaint concerns alleged
workplace discrimination he suffered on account of his age.
He worked at the Palermo's factory from at least 2012
until his firing on November 18, 2015. (Docket #1 at 3).
During 2012-2013, Plaintiff's supervisor, Defendant
José Botello (“Botello”), made negative
remarks about Plaintiff's ability to work in light of his
age. Id. Plaintiff claims that this humiliated him
and caused him a great deal of stress. Id.
end of 2013, Botello informed Plaintiff that he would be
given a raise, apparently in line with a raise being given to
all workers at the factory. Id. However, Plaintiff
noticed that his pay actually decreased. Id. He
complained to Botello, who justified the decrease by
commenting on Plaintiff's poor work performance and the
fact that Plaintiff had transferred to the factory's
second shift. Id. Plaintiff claims he was the only
worker denied a raise at this time. Id. He further
contends that he should not have been denied the raise given
his years of experience in similar jobs. Id.
then turned to Laura Johnson (“Johnson”), vice
president of human resources at Palermo's, and plant
manager Donald Betters (“Betters”), who was
Botello's direct supervisor. Id. He told these
two individuals about his humiliation at Botello's hands.
Id. They met with Botello, but Plaintiff does not
describe the contents of the meeting. Id. Afterward,
Botello intercepted Plaintiff at work and threatened to shut
down the entire factory by organizing a strike. Id.
reports that after his meeting with Johnson and Betters,
Botello was dismissed from work for three days. Id.
Plaintiff admits that he does not know if the dismissal was a
result of his complaints about Botello or some other reason.
Id. When Botello returned, he poked fun at
Plaintiff, noting that if he should be fired, he had another
lucrative job waiting for him, while Plaintiff would have to
remain at Palermo's. Id.
complaint next jumps to November 18, 2015, the day he was
fired from Palermo's. Id. This portion of the
complaint borders on the unintelligible, but the Court
gathers that Plaintiff believes that two of his co-workers or
supervisors, Defendants Roosevelt Holt (“Holt”)
and Martin Mezei (“Mezei”), conspired with
Botello to get Plaintiff fired. See Id. What
precisely these two men did is not explained in any cogent
fashion. See Id. at 3-4. It appears that the
proffered reason for Plaintiff's firing was
insubordination, although it is clear Plaintiff believes that
the real reason for his discharge was retaliation for his
earlier complaints about Botello's age discrimination.
Id. at 4.
or two after his firing, Botello called Plaintiff and
suggested that he contact Palermo's and seek
reinstatement by threatening to sue the company. Id.
Finally, in May or June of 2017, Plaintiff saw Botello in a
park, and Botello greeted him and said that Plaintiff's
firing was unfair. Id. Botello also reported that he
had since been promoted back to the position he had held
before being sanctioned by Johnson and Betters. Id.
relief, Plaintiff asks for Defendants to pay his medical
expenses and an additional $1, 000, 000 as compensation for
the physical and mental suffering he has endured.
Id. at 6.
he does not actually identify the basis for his claims,
Plaintiff's claims against Defendants appear to arise
under the Age Discrimination and Employment Act
(“ADEA”), which makes it illegal for an employer
“to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's
age.” 29 U.S.C. § 623(a)(1). To prove
discrimination in violation of the ADEA, Plaintiff must
establish that Defendants subjected him to an adverse
employment action because of his age. Van Antwerp v. City
of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). Age
must have played a role in the employer's decision-making
process and had a determinative influence on the outcome.
Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573
(7th Cir. 2003). To prove that he was retaliated against
under the ADEA, Plaintiff must show that he engaged in
statutorily protected activity, that he suffered a materially
adverse action, and that the retaliation was a but-for cause
of, not merely a contributing factor to, the adverse action.
Horwitz v. Bd. of Educ., 260 F.3d 602, 612 (7th Cir.
the Court notes that the pay reduction and Plaintiff's
ultimate termination both appear to qualify as adverse
employment actions. Herrnreiter v. Chicago Hous.
Auth., 315 F.3d 742, 744-45 (7th Cir. 2002); Lapka
v. Chertoff, 517 F.3d 974, 985-86 (7th Cir. 2008).
Additionally, liberally construing Plaintiff's
allegations, as the Court must, Erickson v. Pardus,
551 U.S. 89, 94 (2007), the Court concludes that
Defendants' actions were sufficiently motivated by his
age and protected activity (i.e., his complaint to
Johnson and Betters about Botello's age discrimination)
to pass muster at the screening stage, see Van