United States District Court, W.D. Wisconsin
JAMES NOSAL, individually and as personal representative of CAROLINE E. NOSAL, Plaintiff,
THE KROGER COMPANY FOUNDATION, KROGER LIMITED PARTNERSHIP I, KROGER LIMITED PARTNERSHIP II, ROUNDY'S FOUNDATION, INC., ROUNDY'S SUPERMARKETS, INC., ROUNDY'S SUPERMARKETS, INC. d/b/a METRO MARKET, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
February 2, 2016, Caroline Nosal was murdered by a former
coworker in the parking lot of the Metro Market where she
worked. Caroline's father, James Nosal, filed this
lawsuit against the Metro Market, its parent corporation, and
several corporate affiliates, individually and on
Caroline's behalf. He alleges that defendants violated
Title VII of the Civil Rights Act by failing to take adequate
measures to protect Caroline from sexual harassment.
move to dismiss the case under Federal Rule of Civil
Procedure 12(b)(6). Dkt. 6. Among other things, they contend
that Nosal's claims are untimely because he failed to
file a charge with the Equal Employment Opportunity
Commission (EEOC) within 300 days of the allegedly
discriminatory conduct. Nosal acknowledges that he didn't
file the EEOC charge until two years after Caroline's
death, but he argues that the court should equitably toll the
limitations period. He also moves to strike a portion of
defendants' reply in support of their motion to dismiss,
because it relies on evidence from outside the record. Dkt.
court will grant both motions. Even disregarding the
extra-record evidence in the reply brief, it is clear from
the face of Nosal's complaint that the suit is untimely,
and Nosal does not provide legally sufficient reasons for
tolling the limitations period.
court draws the following facts from Nosal's complaint,
Dkt. 1, and accepts them as true for the purpose of deciding
defendants' motion. Parungao v. Comm. Health Sys.,
Inc., 858 F.3d 452, 457 (7th Cir. 2017).
2016, Caroline Nosal was working at Metro Market, a grocery
store in Madison, Wisconsin. One of her coworkers, Chris
O'Kroley, repeatedly harassed, intimidated, and
threatened female employees, including Caroline. Many of
these employees complained to human resources about
O'Kroley, and his inappropriate and harassing conduct was
widely acknowledged and even condoned by management.
January 22, 2016, O'Kroley sent Caroline a series of
sexually harassing and threatening text messages. He told her
that she was “such a bad person, ” and when she
asked why, he responded, “Well maybe you should get
more dick shoved down your throat.” Dkt. 1, ¶ 13.
When Caroline asked him to stop, O'Kroley replied,
“I wonder what time you work tomorrow.” Caroline
reported this text exchange to Tim Smith, the Metro Market
store director, who reported it to Mark Elliot, the area
manager of talent. She also began asking male colleagues to
escort her to her car out of fear that O'Kroley might act
on his threat.
a week later, on February 1, 2016, Metro Market management
terminated O'Kroley in response to Caroline's
complaint. Management failed to warn Caroline about the
termination or to protect her when O'Kroley returned to
the Metro Market the next day and murdered her.
February 23, 2018, Nosal filed a charge of discrimination
with the EEOC on Caroline's behalf. On March 22, the EEOC
issued Nosal a notice of right to sue. He filed this action
on June 22, 2018.
withstand defendants' motion to dismiss under Rule
12(b)(6), Nosal's complaint must have alleged facts
sufficient to state a plausible claim for relief, meaning
facts “that allow the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Firestone Fin. Corp. v. Meyer, 796
F.3d 822, 826 (7th Cir. 2015) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The reviewing court
must accept as true all well-pleaded factual allegations in
the complaint and draw all reasonable inferences from those
facts in the plaintiff's favor, but the court is not
bound to accept legal conclusions. Id. at 827.
“[W]hen it is ‘clear from the face of the
complaint, and matters of which the court may take judicial
notice, that the plaintiff's claims are barred as a
matter of law,' dismissal is appropriate.”
Parungao, 858 F.3d at 457 (quoting Conopco, Inc.
v. Roll Int'l, 231 F.3d 82, 86 (2d. Cir. 2000)).
say that Nosal's complaint fails to state a claim upon
which relief can be granted because Nosal (1) didn't
timely file a complaint with the EEOC; (2) failed to exhaust
his administrative remedies against four of the defendants;
and (3) lacks standing to bring this action in his individual
capacity, or to sue defendants that weren't
Caroline's “employer” for the purposes of
Title VII in a representative capacity. Because the first
ground is dispositive, the court need not address
defendants' other two arguments.
bring suit in federal court under Title VII, a plaintiff must
first file a charge with the EEOC detailing the
discrimination allegations within 300 days of the occurrence
of the discriminatory conduct or event in question. 42 U.S.C.
§ 2000e-5(e); Haynes v. Indiana Univ., 902 F.3d
724, 730 (7th Cir. 2018). In this case, the latest possible
date on which defendants could have violated Caroline's
rights under Title VII was February 2, 2016, the day she was
murdered. According to the complaint, Nosal did not file his
EEOC charge until 752 days later, on February 23,
2018. But Nosal says that his charge was timely
under the doctrines of equitable tolling and estoppel.
See Hentosh v. Herman M. Finch ...