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Nosal v. The Kroger Company Foundation

United States District Court, W.D. Wisconsin

April 30, 2019

JAMES NOSAL, individually and as personal representative of CAROLINE E. NOSAL, Plaintiff,



         On 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.

         Defendants 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. 16.

         The 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.


         The 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).

         In 2016, Caroline Nosal was working at Metro Market, a grocery store in Madison, Wisconsin.[1] 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.

         On 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.

         Approximately 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.

         On 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.


         To 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)).

         Defendants 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.

         To 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.[2] But Nosal says that his charge was timely under the doctrines of equitable tolling and estoppel. See Hentosh v. Herman M. Finch ...

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