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Caples v. Thiel

United States District Court, E.D. Wisconsin

March 11, 2019

SHANNON KELLY CAPLES, Plaintiff,
v.
ROBERT JOHN THIEL, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. NO. 8) AND GRANTING PLAINTIFF LEAVE TO AMEND COMPLAINT

          PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         I. Procedural Background

         The plaintiff is representing herself. She filed her complaint on December 27, 2017, and paid the $400 filing fee. Dkt. No. 1. On the civil cover sheet that she filed with the complaint, the plaintiff marked the box that said that this court has jurisdiction because her case involves a federal question; she marked the box next to “Employment” as the nature of her suit, and she typed “Title VI, Retalliation [sic], ADA Employment Act, Equal Pay” in the box asking for a brief description of the cause of action. Dkt. No. 1-1. The complaint names Robert John Thiel, Dale Jacoby, Kevin Kalkofen and Ryan Will as defendants. Dkt. No. 1 at 1.

         A little over a month later, on February 6, 2018, the court received waiver of service forms for all defendants, agreeing that they would answer or otherwise respond to the complaint within sixty days of January 2, 2018. Dkt. No. 6. On March 5, 2018, the defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Dkt. No. 8. The plaintiff filed her response on March 12, 2018, dkt. no. 13, and the defendants filed their reply brief on March 27, 2018, dkt. no. 15. April 2, 2018, the court received a letter from the plaintiff, responding to defendants' reply brief. Dkt. No. 16.

         The court realizes that it has been eleven months since the parties fully briefed the motion to dismiss. It regrets this extensive delay, and can blame it only on the court's case load and crowded docket. The court agrees with the defendants that the plaintiff's complaint does not state a claim upon which this court can grant relief, but it will give the plaintiff an opportunity to amend.

         II. Allegations in the Complaint

         The plaintiff worked for Badger Tag and Label Corporation in their Random Lake, Wisconsin office from September 2009 until May 2017. Dkt. No. 1 at 3. She says that Badger Tag “is a manufacturer of custom tags and adhesive labels.” Id. In May of 2011, she accepted a promotion to “an accounting/HR position, ” but she says that “[b]ecause [she] was female and going through a divorce, [she] did not receive the same wage, benefits, pension, vacation, or full-time status as Eric Jagow the male predecessor.” Id. at 3-4. The plaintiff alleges that she inquired via e-mail to defendant Dale Jacoby “several times for 4 years with no response.” Id. at 4. (The plaintiff does not explain who Dale Jacoby is.) The plaintiff also asserts that in August 2014, she got passed over for the open position of general manager and that “there is not a female in a position of authority.” Id. She alleges that in a December 2016 review, she pointed out “the different job descriptions and lack of even making entry level pay for any of the position.” Id. at 5.

         The complaint states that in January 2017, the plaintiff reached out to defendant Robert Thiel via email “to report management issues with Dale Jacoby and Kevin Kalkofen[.]” Id. She says that she asked for “change in the approach and supervision techniques of Dale Jacoby” due to her 2004 diagnosis of “health issues;” she does not specify the nature of those health issues, except to say that they fall under the definition of disability in the Americans with Disabilities Act. Id. The plaintiff asserts that on January 19, 2017, she wrote a letter to her local Equal Employment Opportunity Commission outlining her complaints of sex discrimination, retaliation and disability discrimination. Id. at 3.

         The complaint alleges that about two months later, on March 31, 2017, the plaintiff's mother had passed away and she needed to go meet with the coroner. Id. at 4. She says that she told Robert Thiel “what had happened and that she had to leave, ” and that he then “followed her to the timeclock and wanted to engage in talks with her on why Ms. Caples filed the EEOC complaint.” Id. She claims that Thiel was upset, and felt that the plaintiff “was hiding things from him.” Id. She asserts that Thiel also wanted to discuss a “common keying error in an online bill pay, ” but that they were standing in front of coworkers as this was happening, and that she was in despair, crying and trying to leave. Id. The plaintiff says she told Thiel she would have to come back to discuss these issues further. Id.

         The complaint alleges that a little over three weeks after this incident, on April 25, 2017, defendant Jacoby was in her office “after she left for an appointment, ” “going through her computer, and her files.” Id. at 5. She says that Jacoby “confronted” the coworker who told her about this. Id. She alleges that Jacoby “often” was in her office without her knowledge, going through her computer and her files. Id. She thinks that he went through her confidential information to get notes that she was keeping “for the hostility and retaliation that was going on.” Id.

         The plaintiff asserts that that same day-April 25, 2017-Jacoby and Kalkofen presented her a “Last Chance Agreement;” she did not sign it, because she was “disputing the items in the agreement.” Id. She asserts that Badger Tag was not “following the performance policy in the handbook.” Id. She stated that the agreement was “retaliation” and that she needed to speak to Barbara Ystenes, “the investigator for [her] complaint.” Id. She says she stated that Ystenes was on vacation, and that the plaintiff would “reach out to her, and make a decision, ” because Ystenes was not coming back until April 28, 2017. Id.

         The plaintiff says that the next day-April 26, 2017-she emailed her disputes with the Last Chance Agreement to Ystenes (whom she identifies as “EEOC investigator”), Jacoby, Kalkofen and Thiel. Id. She indicated that she would speak with an investigator before she signed; she felt that signing would indicate that she agreed with things in the agreement that either were outdated or were the “outcome of a procedure change” by Jacoby and Thiel which “strayed away from common Accounts Payable payment practices to avoid human error.” Id. She identifies other things in the agreement she disputed; she believes that she was given this agreement because Badger Tag was trying to cut costs. Id. She alleges that the agreement “was a way to force the plaintiff . . . to end employment at Badger Tag and Label[.]” Id.

         The complaint alleges that on May 2, 2017, the plaintiff emailed defendant Ryan Will, asking for a correct copy of his cell phone bill. Id. at 6. She asserts that Will had “turned in the same cellphone bill for December 2016, and January 2017, in which Ryan Will was now on his cousin Mark's cellphone plan.” Id. She says that she needed the cell phone bill to investigate “the origin [of] the spoof email for a wire transaction contained in the Last Chance Agreement for the plaintiff.” Id. She asserts that at 3 p.m. that day, “upon the arrival of Dale Jacoby[, ] Kevin Kalkofen, Robert Thiel, and Ryan Will, ” she was asked into the conference room to sign the Last Chance Agreement. Id. She says that when she did not sign the agreement, she “was escorted out of Badger Tag and Label.” Id. The plaintiff alleges that she “was forced out” of Badger Tag and Label by Jacoby, Thiel and Kalkofen in retaliation for her filing an EEOC complaint. Id.

         Finally, the plaintiff asserts that on May 17, 2017, Jacoby, Kalkofen and Thiel had their lawyer submit a response to the EEOC “for the claim of retaliation filed by Barbara Ystenes in response to information that the plaintiff . . . submitted to her. Id. The plaintiff asserts that the response contained misinformation and false accounts of what occurred, and withheld important information, which “was done to issue a decision in the favor of Badger Tag and Label.” Id.

         For relief, the plaintiff asks for defendants Jacoby and Kalkofen to be demoted or terminated and for defendant Ryan Will to be demoted for abuse of authority. Id. at 7. She also seeks damages. Id.

         III. The ...


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