United States District Court, E.D. Wisconsin
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S
MOTION TO DISMISS (DKT. NO. 15) AND SETTING SCHEDULING
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
plaintiff, representing himself, filed a complaint against
Park Place Hospitality, LLC. Dkt. No. 1. According to the
plaintiff, the defendant discriminated against him and
“showed bias in job placement.” Id. at
2. The plaintiff attached to the complaint a Notice of Suit
Rights from the Equal Employment Opportunity Commission, dkt.
no.1-1, but did not state any facts to support his claim that
the defendant had discriminated against him. Dkt. No. 1. The
court allowed the plaintiff to amend the complaint to allege
“the specific facts that are relevant to the claims he
seeks to bring against the defendant and the type of
discrimination he believes he has suffered.” Dkt. No.
3. The plaintiff took that opportunity and filed an amended
complaint, dkt. no. 5; the court screened it, granted the
plaintiff's motion to proceed without prepaying the
filing fee and ordered the U.S. Marshal to serve a copy of
the amended complaint on the defendant, dkt. no. 6. The
defendant has filed a motion to dismiss the amended complaint
for lack of subject matter jurisdiction under 12(b)(1) and
for failure to provide a short and plain statement of his
claims in numbered paragraphs under Federal Rules of Civil
Procedure 8 and 10(b). Dkt. No. 15. Because the court has
subject matter jurisdiction over the plaintiff's federal
law claims, the court will deny the motion to dismiss without
Legal Standard Governing Motion to Dismiss
Rule of Civil Procedure 12(b)(1) allows a party to challenge
a federal court's lack of subject-matter jurisdiction.
When reviewing a Rule 12(b)(1) motion, the court accepts as
true all well-pleaded factual allegations and draws all
reasonable inferences in favor of the plaintiff. St.
John's United Church of Christ v. City of Chi., 502
F.3d 616, 625 (7th Cir. 2007) (quoting Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999)). The court
may look beyond jurisdictional allegations and view whatever
evidence has been submitted on the issue to determine whether
subject matter jurisdiction exists. Id.
motion to dismiss under Rule 12(b)(6) asserts that the
allegations in the complaint do not state a claim for which a
federal court may grant relief. Under Rule 8(a)(2), a
complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The “short and
plain statement” required by Rule 8(a)(2) must
“give the defendant fair notice of what the claim is
and the grounds upon which it rests.” Bell Atl. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
Under federal pleading standards, a plaintiff's
“factual allegations must be enough to raise a right to
relief above the speculative level.” Id., 550
U.S. at 555. Rule 10(b) requires a party to state its claims
in numbered paragraphs, each limited to a single set of
circumstances. Fed.R.Civ.P. 10(b).
plaintiff alleges that he worked at Hilton Garden Inn from
July 6, 2006 to October of 2013. Dkt. 5 at 3. He says that on
October 11, 2013, the general manager and his assistant
called the plaintiff into their office and told him that he
could no longer drive the hotel van because of a report
received from the insurance company. Id. The
plaintiff admits that he lost his license on April 13 for
operating while intoxicated, but he says that he did not lose
his driving privileges. Id. He says that he was able
to get an occupational license as a first-time offender and
that he paid two thousand dollars to get his license back.
Id. The plaintiff did not tell the defendant about
the conviction because he believed he could drive the hotel
van with an occupational license. Id.
plaintiff takes issue with the defendant's
characterization that he “walked off the job.”
Id. at 4. According to the plaintiff, another driver
(twenty-five years old and Caucasian) lost his license at the
same time but kept his job. Id. at 4. To explain why
he is “claiming discrimination or at the very least
favoritism in job placement” and why he feels that the
other driver was treated better, id. at 1, the
plaintiff references “original forms where
Administrative Judge John Gehlhard said there's no proof
that I was offered any job offers, ” and
“Findings of Fact, ” id. at 4. He asks
the court to check various pages of these forms and findings.
Id. The plaintiff is sixty-six years old and African
American. Id. at 5.
plaintiff attached twelve pages of documents to the amended
complaint; they appear to consist of paperwork he received
from the State of Wisconsin Division of Workforce
Development's Equal Rights Division (“ERD”)
and the State of Wisconsin Labor and Industry Review
Commission (“LIRC”). Id. at 6-12. The
documents do not appear to be complete-he filed only certain
pages of each document-and he did not file the excerpts in
chronological order. From what the court can tell, the
plaintiff filed a complaint with the ERD on July 2, 2014,
alleging race and age discrimination. Dkt. No. 5-1 at 6. The
ERD issued an initial determination of no probable cause on
October 20, 2014. Id. The plaintiff appealed the
initial determination and the administrative law judge
conducted a hearing on November 11, 2015. Id. at 6.
The administrative law judge found that the plaintiff fell
within the protected group because of his race and age, but
that the defendant discharged the plaintiff because of his
driving record and lack of insurability. Id. at 1.
The administrative law judge did not find support for the
defendant's position that they offered him alternative
jobs when he could no longer drive the van. Id.
plaintiff received a notice of right to sue from the EEOC on
November 7, 2016. Dkt. No. 1-1. This notice advised the
plaintiff that he had ninety days to file a suit under
federal law (Title VII or the Age Discrimination in
Employment Act) in federal or state court. Id. The
plaintiff filed this lawsuit on February 7, 2017. Dkt. No. 1.
defendant asserts that the complaint does not allege
“any facts that plausibly suggest [the defendant]
terminated his employment because of his race or age.”
Dkt. No. 16 at 1. It also argues that the plaintiff appears
to be trying to appeal the decisions of the ERD and the LIRC
to this court, and that this court does not have
subject-matter jurisdiction to review those decisions.
defendant's Rule 12(b)(1) motion to dismiss for lack of
subject-matter jurisdiction is based on the defendant's
view that the amended complaint contains nothing more than an
attack on the ERD and LIRC's findings. The court concedes
that that is one possible interpretation of the
plaintiff's claims. Wisconsin has a Fair Employment Act
that prohibits discrimination in the terms, conditions, or
privilege of employment because of age or race. Wis.Stat.
§§111.31-111.395. The act provides that the
Department of Industry, Labor and Human Relations shall
administer its provisions, and gives the department authority
to investigate complaints of discrimination, hold hearings,
and to order relief, including back pay. See
Wis.Stat. §§111.375 and 111.39. A complainant may
file a charge with the ERD within three hundred days from the
date the alleged discriminatory act took place. Wis.Stat.
§111.39. An investigator within the ERD makes an initial
determination of probable cause or no probable cause. Wis.
Admin. Code §§DWD 218.06 and 218.07. If
dissatisfied with the result, the complainant may request a
hearing. §DWD 218.08(2). The complainant then may appeal
the decision to the LIRC within thirty days.
§§DWD218.20(2) and 218.21. That decision may be
appealed to the Wisconsin Circuit Court, Wis.Stat.
§§111.395 and 227.52(7), and the Wisconsin Court of
Appeals, Wis.Stat. §227.85. The complainant also may
file a charge with the EEOC three hundred days after the date
of the alleged unlawful practice or within thirty days after
a final determination by the ERD. 42 U.S.C.
looks like the plaintiff availed himself of these processes,
or at least part of them. The defendant states, without a
single citation of authority, that this court does not have
the authority to review the decisions of the ERD or the LIRC.
The ERD and the LIRC have limited jurisdiction; they cannot
hear and decide claims under federal anti-discrimination
statutes. Staats v. Cty. of Sawyer, 220 F.3d 511,
516 (7th Cir. 2000). What the defendant should have argued,
but didn't, is preclusion-that the fact that the ERD and
the LIRC decided the plaintiff's claims precludes this
court from considering them. Whether the ERD decision has
preclusive effect in federal court is a complicated
question-it depends on what facts were presented to the ERD,
and what specific issues the ERD decided. See, e.g.,
University of Tenn. v. Elliott, 478 U.S. 788, 795-96
(1986) (holding that unreviewed state administrative claims
do not have preclusive effect on Title VII claims); Brown
v. Kraft Foods Global, Inc., No. 11-cv-462, 2011 WL
3477087 (E.D. Wis. Aug. 9, 2011) (finding that an ERD
decision did not have preclusive effect because the ERD had
not made a finding on one of the plaintiff's