United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
plaintiff Marcia Joanne McNeil has filed a complaint alleging
that she was retaliated against after she filed a
discrimination complaint. Dkt. 1. I have reviewed her
complaint and her amended complaint, and each time, I
concluded that her allegations did not meet the pleading
requirements of Federal Rule of Civil Procedure 8. Dkt. 4. In
a May 1, 2018 order, I offered McNeil one final opportunity
to file an amended complaint explaining the connection
between the retaliation she believes she has suffered and her
discrimination complaint. Dkt. 7. McNeil has filed three
documents, Dkts. 8-10, which I will construe as her second
amended complaint. I must screen it 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,
just as I did with McNeil's initial complaint. After
reviewing McNeil's second amended complaint, I conclude
that the case must be dismissed because McNeil fails to state
a claim upon which relief may be granted.
the following facts from McNeil's submissions, Dkt. 1,
Dkt. 5, Dkt. 8, Dkt. 9, and Dkt. 10. McNeil filed an
employment discrimination claim with the Equal Employment
Opportunity Commission on April 22, 1996, accusing the
Salvation Army Lake Camp of discriminating against her
because she is deaf. Since then, she has experienced what she
characterizes as “harassment” by several
Salvation Army employees and other people who she believes
are associated with the Salvation Army.
in 1997, the year after she filed her EEOC complaint, she
attended the Salvation Army Women Home League Camp for a
weekend, and while standing in line for lunch, she saw some
people “glaring” at her and talking about her
EEOC complaint. Dkt. 8, at 2. She asked Robert Bonifield, the
former lieutenant colonel of the Salvation Army in Wisconsin
and Upper Michigan, and his wife, Ruth Bonifield, for help.
But in response, they expelled her from the Salvation Army
church and camp.
1999, McNeil attempted, and failed, to obtain a restraining
order against June Stowell, an employee of the Lake Camp.
Since then, McNeil has seen Stowell several times: while she
was biking on a trail, while she was at home, and while she
was leaving a store in West Allis. I infer that Stowell was
not interacting with McNeil during these sightings. For
example, when McNeil saw Stowell near the store in West
Allis, Stowell was “getting out of a car” and
“grabbed the door handle really hard.”
Id. at 1.
also documents many incidents of harassment, from 1996 to the
present day, that she attributes to many anonymous
“sick individuals” who she believes are
associated with the Salvation Army. See, e.g., Dkt.
9, at 1. The incidents of harassment include driving past her
house late at night, staring at her, following her, and
making prank calls to her phone.
explained in my March 6, 2018 order, to state a claim for
retaliation under the Americans with Disabilities Act (ADA),
McNeil must show that she was engaging in activity protected
by the ADA and that she suffered adverse action because of
it. See Dkt. 4, at 2. In general, “[a]n
adverse employment action must ‘materially alter the
terms and conditions of employment.' A materially adverse
employment action is more than a mere inconvenience . . .
.” Dass v. Chi. Bd. of Educ., 675 F.3d 1060,
1069 (7th Cir. 2012) (citation omitted) (quoting Stutler
v. Ill. Dep't of Corr., 263 F.3d 698, 703 (7th Cir.
does not state a claim because she does not allege a
materially adverse employment action. None of the alleged
acts of harassment concern McNeil's employment,
and most amount to an “inconvenience” at most. In
addition, there's no connection between McNeil's EEOC
complaint and the random bad acts of the “sick
individuals, ” nor is there any reason to suspect that
Stowell managed to run into McNeil several times
because of McNeil's EEOC complaint.
allegations against the Bonifields come closest to stating a
claim, but it appears that McNeil wasn't working for the
Salvation Army when the Bonifields expelled her, so their
action didn't alter the terms and conditions of her
employment. And even if McNeil stated a claim against the
Bonifields, she would run into a problem with the statute of
limitations, because the Bonifields expelled her in 1997.
Under the ADA, McNeil would have had to have filed her
retaliation claim with the EEOC within 300 days of the
alleged retaliatory act. See EEOC v. Orion Energy Sys.,
Inc., 145 F.Supp.3d 841, 845 (E.D. Wis. 2015)
(“[T]he applicable statute of limitations here required
that Schobert file her EEOC charge within 300 days
‘after the alleged unlawful employment practices
occurred.'” (quoting 42 U.S.C. §
2000e-5(e)(1)). There's no indication that she did so.
And even if she did, she would have had to file her lawsuit
within 90 days from the date the EEOC gave her notice of her
right to sue. See Houston v. Sidley & Austin,
No. 98-4064, 1999 WL 581043, at *2 (7th Cir. June 23, 1999).
Presumably, she would have received the notice years ago.
final note. McNeil briefly mentions a “sick man that
abused [her] as a four-year-old child during the Blind Family
Camp during the summer of 1968.” Dkt. 8, at 1. I do not
take McNeil to attempt to bring claims concerning this
incident of abuse, nor can I think of any federal claims on
which she could proceed.
I will dismiss this case for failure to state a claim. I will
deny McNeil's request for assistance recruiting ...