United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 22) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
December 22, 2017, defendant WFA Staffing filed a motion for
summary judgment on the ground that the plaintiff's race
did not influence its staffing determination because the
plaintiff was not qualified for the position- he lacked a
valid driver's license. Dkt. No. 23. Because the
plaintiff filed this case without the assistance of counsel,
the defendant complied with Rule 56(a) by (1) providing the
plaintiff with a short and plain statement that any factual
assertion would be accepted as true unless the plaintiff
submited his own affidavit or admissible evidence and (2) a
copy of Rule 56. Dkt. No. 22. The plaintiff did not respond
to the summary judgment motion by the deadline set by the
rule (approximately January 21, 2018). On February 27, 2018,
this court ordered the plaintiff to respond to the motion by
the end of the day on March 16, 2018. Dkt. No. 27. The court
warned the plaintiff that if he did not file a response by
the end of that day, the court would either (1)
accept the defendant's proposed findings as true and use
them to make a decision or (2) dismiss plaintiff's case
for lack of diligence under Civil L.R. 41(c). Again, the
plaintiff did not respond. Because the evidence before the
court does not show that there is any genuine dispute as to
an issue of material fact, and because the law does not
support the plaintiff's claims, the court will grant the
defendant's summary judgment motion and dismiss the case.
Dismissal for Lack of Diligence
Local Rule 41(c) allows this court to dismiss a case-with or
without prejudice-whenever it appears that a plaintiff is not
diligently pursuing it. Civil L.R. 41(c) (E.D. Wis.). The
plaintiff filed his complaint on November 16, 2016-sixteen
months ago. Dkt. No. 1. He appeared at the Rule 16 scheduling
conference on April 25, 2017, dkt. no. 21, and the court has
not heard from him since. Despite the fact that the defendant
filed its summary judgment motion almost three months ago,
and despite the fact that the court gave the plaintiff extra
time to do so, the plaintiff has not responded to the motion.
The plaintiff has not provided the court with a change of
address form, and the mail the court has sent him has not
been returned as undeliverable. The court has a basis for
concluding that the plaintiff has decided not to pursue its
case. Under Civil L.R. 41(c), that is reason alone for the
court to dismiss the case
Defendant's Motion for Summary Judgment
court also finds that the defendant is entitled to summary
judgment, because the undisputed facts demonstrate that the
defendant did not discriminate against the plaintiff on the
basis of race.
Standard of Review
may grant summary judgment where the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). A genuine dispute as to any material fact exists if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing
that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court construes all facts and reasonable
inferences in the light most favorable to the nonmoving
party. Roh v. Starbucks Corp., 881 F.3d 969, 973
(7th Cir. 2018).
defendant submitted proposed findings of fact; the court
deems that the plaintiff has admitted these facts, because he
did not respond to the defendant's summary judgment
motion. Civ. L.R. 56(b)(4) (E.D.Wis.). In addition to the
defendant's facts, the court also will consider the
allegations in the complaint, dkt. no. 1, because the
plaintiff signed it under penalty of perjury. See Ford v.
Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996) (holding
that a verified complaint “converted the complaint . .
. into an affidavit”).
WFA Staffing, an independent, locally-owned staffing agency,
places individuals with businesses in the Milwaukee area.
Dkt. No. 26 at ¶ 2. The defendant's mission is to
meet its customers' staffing needs by matching the right
worker to the right position. Id. at ¶¶4,
5. The defendant does not have any input into determining or
setting the qualifications for the positions to which it
assigns workers. Id. at ¶6. Rather, the
defendant's customers determine the requisite
qualifications for their own positions. Id. at
defendant's customers inform the defendant of the open
positions for which they would like the defendant to assign
workers, as well as the required qualifications for those
positions. Id. at ¶8. The defendant then
reviews applications and identifies the best-qualified
candidates for each position, based on the job requirements
provided by the defendant's customers. Id. at
¶9. The defendant assesses individual applicants'
skills and qualifications to match them to positions for
which they meet the job qualifications. Id. at
¶10. The defendant cannot assign an individual to a
position for which he or she does not possess the requisite
skills or qualifications, as determined by the customer.
Id. at ¶11.
defendant employs recruiting professionals to match qualified
candidates to positions. Id. at ¶12. The
defendant pays its recruiters on a commission basis, based
upon the number of workers the recruiters place with the
defendant's customers. Id. at ¶13.
the relevant period, Kelly Fishnick worked as a senior
recruiter for the defendant. Id. at ¶14. The
defendant never employed the plaintiff. Dkt. No. 25-1 at
36-37, 66. On July 22, 2016, the plaintiff, who is African
American, spoke with Fishnick over the telephone.
Id. at 30. Fishnick told the plaintiff to come to
the office to complete a job application. Id. The
plaintiff met with Fishnick, and submitted his handwritten