United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE JOSEPH'S REPORT
AND RECOMMENDATION (DKT. NO. 5) AND DISMISSING CASE WITHOUT
PREJUDICE FOR FAILURE TO STATE A CLAIM
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
November 26, 2018, the plaintiff filed a complaint here in
federal court. Dkt. No. 1. The complaint indicates that the
plaintiff is "a totally disabled person for the purposes
of filing this Complaint," and indicates that the
plaintiff's guardian, Thomas Spellman, filed the
complaint on her behalf. Id. at pp. 1, 3. The
plaintiff has sued two defendants-Disability Rights Wisconsin
and the National Disability Rights Network. Id. at
pp. 1-2. The complaint indicates that the plaintiff is suing
these two defendants for "a violation of federal law
under 28 U.S.C. ss 1331." Id. at p. 2.
complaint states that the plaintiff is a totally disabled
person living in Delavan, Wisconsin. It does not provide the
plaintiff's age. It does not say whether the plaintiff
has a job (and if she does, where she works, and what kind of
work she does). One of the attachments to the complaint is a
document titled "Gifts of the Sheltered Workshop."
Dkt. No. 1-2. This document appears to have been prepared by
the plaintiff's guardian and father, Thomas Spellman.
Id. at 5. It states that the plaintiff has
"been working at VIP Service, a Sheltered Workshop in
Elkhorn, Wisconsin, for fifteen years." Id. at
1. Along with the complaint, the plaintiff filed a request to
proceed in this case without prepaying the filing fee. Dkt.
No. 2. In that request, she says that she works for VIP
Services in Elkhorn, Wisconsin, that she receives Social
Security benefits and that she lives with her parents.
Id. at 2. The court agrees with Magistrate Judge
Joseph that the plaintiff lacks the means to pay the filing
fee in this case.
complaint alleges that the two defendants have discriminated
against the plaintiff "by conspiring to deny [the
plaintiff her] RIGHT to WORK for a 'special minimum
wage' as allowed by LAW by a number of actions."
Id. at 1. The complaint refers to an attachment for
an explanation of how the defendants discriminated.
Id. The complaint asserts that the discrimination
started when the Board of the National Disability Rights
Network published a document in 2011. Id. at 1-2.
The plaintiff asserts that this document has not been
withdrawn. Id. at 2. She also states that Disability
Rights Wisconsin "FALSELY, in their 'Principles for
Employment of People with Disabilities,' to include [the
plaintiff's] RIGHT to WORK for the "special minimum
wage" as allowed by LAW." Id. She refers
the court to another attachment. Id.
December 3, 2018, Judge Joseph issued a recommendation to
this court that it dismiss the plaintiff's complaint for
failure to state a claim. Dkt. No. 5. Judge Joseph noted that
the defendants are nonprofit organizations established to
provide legal support, advocacy, referral and education to
protect the rights of disabled people and their families.
Id. at 3. In January 2011, the board of defendant
National Disability Rights Network published a document
(attached to the complaint as dkt. no. 1-3) titled,
"Segregated and Exploited: A Call to Action! The Failure
of the Disability Service System to Provide Quality
Work." Id. Judge Joseph noted that the document
appeared to criticize something called "sheltered
workshops," asserting that they segregated and exploited
disabled people and paid them "sub-minimum wage."
Id. Disability Rights Wisconsin, Judge Joseph noted,
published a document titled "Principles for employment
of People with Disabilities" that said, among other
things, that disabled people should receive minimum wage or
higher, and the same wage as employees who don't have
disabilities. Id. at 3-4.
Joseph explained that in the "Gifts of the Sheltered
Workshop" document that the plaintiff's parents
attached to the complaint, they indicated that federal
law-the Fair Labor Standards Act-provided for persons with
disabilities to be paid a "special minimum wage."
Id. at 4, citing Dkt. No. 1-2 at 1-2 and 29 U.S.C.
§214(c). The plaintiff's parents explained that the
special minimum wage was reasonable for disabled workers,
because they weren't as productive as abled workers, and
that it allowed disabled people to have access to work they
might not otherwise have. The plaintiff's parents also
argued that the "sheltered workshop" employment
model was valuable-it provided disabled individuals a variety
of work experiences, allowed them to work at their own pace,
offered stability and predictability, and provided many other
Joseph concluded that the plaintiff and her father appear to
be very grateful for the existence of sheltered workshops
like VIP, Inc. It sounds like the plaintiff feels that if it
weren't for the special minimum wage, and if it
wasn't for sheltered workshops, she might not be able to
work at all, much less have spent the last fifteen years
working productively and happily at VIP, Inc. Judge Joseph
understood that the plaintiff and her parents are upset that
the defendants-groups that say they advocate for disabled
people and exist to help disabled people-have published
policy recommendations that criticize and even propose to do
away with sheltered workshops and the special minimum wage
that have been so valuable and helpful to the plaintiff.
Id. at 5. Even though Judge Joseph understood the
feelings of the plaintiff and her parents, however, she
explained that First Amendment to the Constitution guarantees
the defendants the right to express their opinions about
sheltered workshops and the special minimum wage.
Id. She explained if conscientious citizens like the
plaintiff and her parents do not want a particular policy to
become law, they should present their arguments to their
elected representatives, not to a court. Id. Because
Judge Joseph found that the plaintiff had alleged only that
the defendants expressed opinions with which she does not
agree-something that is not only legal, but protected by the
First Amendment-she recommended that this court dismiss the
plaintiff's case for failure to state a claim.
plaintiff has objected to Judge Joseph's recommendation.
Dkt. No. 7. The plaintiff says that she is defending her
right to work and to be paid the special minimum wage.
Id. at 1. She says that the defendants have
discriminated against her by conspiring to deny her her right
to work for the special minimum wage. Id. She says
that in advocating against sheltered workshops and calling
the special minimum wage sub-minimum, the defendants are
"actively taking actions against" her interest.
Id. at 2.
plaintiff asserts that in saying that she (as a disabled
person) is exploited, or that the sheltered work model (which
she very much supports) is broken, or that the special
minimum wage for disabled workers is "sub-minimum,"
or that sheltered work models "segregate" disabled
people from abled people, the defendants are lying about her.
Id. She says that lying about someone equals
discrimination, and that by lying about her and other
disabled people, the defendants are discriminating against
those disabled people-even though their stated purpose is to
protect the interests of disabled people. Id. at 2.
The plaintiff insists that it is discrimination for a
disability rights advocacy group to take a position different
from the position that she-a disabled person-holds.
Id. She asks whether the defendants can "pick
and choose who they will PROTECT and which RIGHTS of mine and
the others they will defend?" Id. She asks,
"What is the difference between an 'opinion'
protectable by the First Amendment of the U.S. Constitution
and a LIE?" Id.
plaintiff asserts that it is a lie for the defendants to say
that she is segregated, because she is not and she can't
be. Id. at 2-3. She says that the defendants lie
when they say she is exploited, because she is not.
Id. at 3. She says that the defendants lie when they
say that she is paid a "sub-minimum wage," a term
she says is fabricated. Id. To sum up her argument,
the plaintiff says.
The simple question is can NDRN and DRW LIE about me and the
others? YES or NO. If no then the final answer is easy, they
have lied about me and must stop lying about me. If YES then
who represents me and the others when the NRDN and DRW
represent the interest that are in direct conflict with my
and the other's interest?
Joseph is correct that, despite her frustration and her
passion, the plaintiff has not stated a legal claim for which
a federal court can grant relief. The plaintiff stated in her
complaint that she was suing "for a violation of federal
law under 28 U.S.C. ss 1331." Dkt. No. 1 at 2. Section
1331 gives federal courts the authority to exercise
jurisdiction over lawsuits that arise under the United States
Constitution, or federal laws, or United States treaties. For
this federal court to grant the plaintiff relief, she must
allege facts that show that the defendants did something that
violated a federal law or a provision of the Constitution.
is a federal law that prohibits discrimination
against disabled people. It is called the Americans with
Disabilities Act, or the "ADA." The ADA, located at
42 U.S.C. §12112, et seq., says that "[n]o
covered entity shall discriminate against a
qualified individual on the basis of a disability in regard
to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job ...