United States District Court, E.D. Wisconsin
KESHA S. PACKER, Plaintiff,
JON E. LITSCHER, NEIL THORESON, DENISE SYMDON, and WISCONSIN DIVISION OF COMMUNITY CORRECTIONS, Defendants.
Stadtmueller, U.S. District Judge.
filed a pro se complaint alleging workplace
harassment and constructive discharge on the basis of her
race. (Docket #1). Plaintiff sought, but was denied, leave to
proceed in forma pauperis. (Docket #2 and #3). She
later paid the full filing fee. The Court now exercises its
inherent authority to screen complaints in order to
streamline this action. See Hoskins v. Poelstra, 320
F.3d 761, 763 (7th Cir. 2003). In other words, the Court will
assess whether Plaintiff's complaint is viable as
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [she] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and her
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
alleges that she worked for the Division of Community
Corrections (“DCC”) within the Wisconsin
Department of Corrections (“DOC”) from March 16,
2017 until July 28, 2017. (Docket #1 at 2). During that time,
she was “subjected to harassment and a hostile work
environment based on [her] race.” Id. She says
this was carried about by Defendant Neil Thoreson
(“Thoreson”), regional chief of the office where
she worked. Id. Plaintiff further alleges that
Thoreson failed to appropriately address a discrimination
complaint she filed. Id. at 3. Plaintiff's
experience eventually led her to quit from DCC and take a job
with the DOC's Division of Adult Institutions.
correctly cites Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., as the legal basis for
her claim. Title VII prohibits discrimination in employment
on the basis of a person's membership in certain
protected classes, which are “race, color, religion,
sex, or national origin[.]” 42 U.S.C. §
2000e-2(a)(1). But Plaintiff's allegations are too vague
and conclusory to support a claim for relief. Other than
giving the time frame for her employment, Plaintiff does not
describe any particular instance of discrimination or
hostility. There is also no meaningful detail about
Thoreson's handling of her discrimination complaint.
Without more, the Court cannot say that Plaintiff has pleaded
a plausible claim of discrimination under Title VII.
Additionally, the only proper defendant is DCC. Individual
supervisors cannot be sued under Title VII. Sattar v.
Motorola, Inc., 138 F.3d 1164, 1168 (7th Cir. 1998).
important, however, is Plaintiff's silence on a necessary
precondition to her filing a lawsuit. A plaintiff seeking to
proceed under Title VII must file a charge of discrimination
with the Equal Employment Opportunity Commission within 300
days of the day of the alleged discrimination. 42 U.S.C.
§ 2000e-5; Conner v. Ill. Dep't of Nat.
Res., 413 F.3d 675, 680 (7th Cir. 2005). Once the EEOC
issues its right-to-sue letter at the end of its
investigation of the charge, the plaintiff must then file
their civil lawsuit within 90 days. Id.
Plaintiff's complaint says nothing about any charge filed
with the EEOC or the issuance of a right-to-sue letter. If
she failed to file a charge (the time for doing so has long
since passed), or she did not sue within 90 days of receiving
a right-to-sue letter, the Court will be forced to dismiss
of the deficiencies described above, the Court will order
Plaintiff to file an amended complaint addressing the
Court's concerns. Plaintiff must file her amended
complaint on or before May 15, 2019. Failure
to file an amended complaint within this time period will
result in dismissal of this action. Civ. L. R. 41(c). The
amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Court of Appeals emphasized that
in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted).
The Court has attached to this Order a template complaint
form for claims of employment discrimination; Plaintiff is
encouraged to use that form for her amended complaint. If an
amended complaint is received, the Court will screen it.
IT IS ORDERED that Plaintiff shall file an
amended complaint in accordance with the terms of this Order
on or before May 15, 2019, or this action
will be ...