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Carter v. Wal-Mart Stores, Inc.

United States District Court, W.D. Wisconsin

August 23, 2017

ROBERT E. CARTER, Plaintiff,
v.
WAL-MART STORES, INC., WAL-MART STORES EAST, LP, JOHN MURPHY, MATTHEW MIKESELL, and SHANNA KANAPS, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se plaintiff Robert E. Carter brings claims against defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, John Murphy, Matthew Mikesell, and Shanna Kanaps for violations of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Carter alleges that defendants retaliated against him after he filed a discrimination complaint with the Wisconsin Department of Workforce Development Equal Rights Division. Defendants suspended and ultimately terminated Carter.

         The court granted Carter leave to proceed in forma pauperis. Dkt. 4. The next step is for the court to screen the complaint and dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C. § 1915. When screening a pro se litigant's complaint, the court construes the allegations liberally and in the plaintiff's favor. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).

         Carter has moved for leave to file an amended complaint. Dkt. 5. I will grant the motion and consider the amended complaint for screening purposes. But because Carter has not stated any claims upon which relief can be granted, I will dismiss his amended complaint.

         ALLEGATIONS OF FACT

         I draw the following facts from Carter's amended complaint. Dkt. 5-2.

         Carter is a convicted felon (securities fraud, wire fraud, intent to commit access device fraud). In December 2016 and January 2017, he applied for and secured a job at a Walmart distribution center; he disclosed his convictions during the application process. After Carter had been at Walmart for a few weeks, he met with Murphy, the human resources manager, and Kanaps, the operations manager. Murphy began the meeting by saying, “You are not in any trouble or anything and you are not being fired or losing your job.” Id. ¶ 54. Murphy continued, “We just wanted to talk to you because several of the associates have been talking about you.” Id. Murphy and Kanaps had learned that Carter had been telling his coworkers that he planned to run for political office. Murphy asked Carter whether he had “talked about finances in any way with any of the associates.” Id. ¶ 56. Carter said that he hadn't. Then Murphy handed Carter a Forbes magazine article and asked Carter whether it was about him. The article discussed Carter's 2010 trial and convictions. Carter asked what was going on, and Murphy said, “I am asking about it because an associate gave it to me. . . . You are not losing your job. . . . We just wanted to talk to you.” Id. ¶ 60. Carter explained that he had disclosed the convictions during the application process; Murphy reemphasized that they wanted to employ Carter and that they “believe in second chances.” Id. ¶ 61. The meeting ended there.

         About a month later, on March 7, 2017, Murphy summoned Carter to his office again. Mikesell, the asset protection manager, was there, too. Murphy explained that they had a few questions for Carter about his convictions and stated, “You are not being fired or anything[.]” Id. ¶ 64. Murphy had received a letter from the Walmart Global Security Department that indicated that Carter (1) had applied for a position with the Asset Protection Division, and (2) had not disclosed all of his convictions during the background check. Neither statement was true, and Carter told Murphy as much. Murphy explained, “Well, if you just answer the questions that they have asked on this form and explain what you have told us, then this should all be fine.” Id. ¶ 75.

         After the meeting, Carter called a “legal advisor.” Id. ¶ 76. The advisor (presumably a lawyer) told Carter to file a discrimination complaint with the Wisconsin Department of Workforce Development Equal Rights Division for violations of the Wisconsin Fair Employment Act. Carter did so the following day. Then he went to work and gave Murphy a copy of the background check report that verified that he had disclosed his convictions during the application process. Murphy acknowledged as much: “You are exactly right, its [sic] right here in black and white.” Id. ¶ 82. Carter then told Murphy that he had filed a discrimination complaint because Walmart had discriminated against him because of his convictions. Murphy, visibly frustrated, concluded the meeting, and Carter returned to work.

         The following day, March 9, Murphy called Carter and told him that he was suspended with pay. Carter didn't understand why, especially because Murphy had assured him that his job wasn't in jeopardy. Murphy told Carter, “Well you are the one who started this with filing the complaint, making this legal.” Id. ¶ 87. So later that day, Carter filed a charge with the EEOC for retaliation.

         The next day, Carter received three emails from Walmart requesting that Carter authorize a background check because he had purportedly received a conditional offer of employment. But Carter had not applied for any other positions with Walmart. Carter believes that Walmart generated false applications to create a reason to fire him. Carter called Murphy, and Murphy told him that he needed to consent to the background check. When Carter asked why, Murphy said that they needed his consent to begin “[t]he investigation regarding the failure to disclose the 2006 convictions.” Id. ¶ 100. In Carter's view, “Murphy had no reasonable explanation for what was happening, ” so Carter refused to consent to the background check. Id. ¶ 105.

         Several days later, on March 15, Murphy called Carter and told him that he had been terminated. When asked why, Murphy responded, “Well it's because you would not consent to the background check.” Id. ¶ 108. So Carter filed a retaliation complaint with the Wisconsin Department of Workforce Development Equal Rights Division.

         Carter received an exit interview form in the mail following his termination. It stated that he had been involuntarily terminated for gross misconduct. That was the first that Carter had heard of any misconduct on his part.

         On April 12, 2017, the EEOC issued Carter a Right to Sue letter. It had “determined that the protected status based on a conviction record created under Wisconsin law was not a protected class enforceable under a ...


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