United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Schaffer Davis alleges that Defendant Schneider National
Carriers Inc. discriminated and retaliated against him in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et seq., and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621
et seq., when it denied his job application for an
over-the-road driving position. Plaintiff seeks leave to
proceed without prepayment of the filing fee in this case.
The Court has reviewed the affidavit submitted in support of
the motion and concludes that plaintiff lacks sufficient
income and/or assets to pay the filing fee. Accordingly, the
motion for leave to proceed without prepayment of the filing
fee is granted.
courts are permitted to screen every complaint, regardless of
a plaintiff's fee status. 28 U.S.C. § 1915(e)(2)(B);
Hoskins v. Polestra, 230 F.3d 761, 763 (7th Cir.
2003). In screening a complaint, I must determine whether the
complaint complies with the Federal Rules of Civil Procedure
and states at least plausible claims for which relief may be
granted. A complaint, or portion thereof, should be dismissed
for failure to state a claim upon which relief may be granted
if it appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle him
to relief. Hishon v. King & Spalding, 467 U.S.
69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41,
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 [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
plaintiff's statements must “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, 355 U.S.
at 47). However, a complaint that offers “labels and
conclusions” or a “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. (quoting
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to belief
above the speculative level.” Twombly, 550
U.S. at 555 (citations omitted). The court is obliged to give
the plaintiff's pro se allegations, however
inartfully pleaded, a liberal construction. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
Plaintiff asserts claims of employment discrimination under
Title VII and the ADEA. Title VII prohibits an employer from
discriminating against an employee on the basis of the
employee's race, color, religion, sex, and national
origin. 42 U.S.C. § 2000e-2(a)(1). Similarly, the ADEA
prohibits an employer from discriminating against an
individual on the basis of his age and protects employees who
are at least 40 years of age. 29 U.S.C. § 623(a).
Plaintiff has failed to state a discrimination claim under
Title VII and the ADEA. To state a claim of employment
discrimination, a plaintiff must allege that (1) he is a
member of a protected class, (2) he was qualified for the
position in question, (3) he suffered an adverse employment
action, and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). In this case, Plaintiff alleges that Defendant
discriminated against him based on his age, national origin,
race, color, and sex. But Plaintiff does not allege his age,
national origin, race, or sex, or provide any facts to
support his allegation that Defendant's decision not to
hire him was based on his age, national origin, race, or sex.
Accordingly, Plaintiff has failed to state a discrimination
claim under Title VII. See Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016) (noting that a
plaintiff in an employment discrimination case must show that
“the plaintiff's race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse
also claims that Defendant retaliated against him. To
sufficiently plead a retaliation claim, a plaintiff must
allege that he “‘engaged in statutorily protected
activity' and suffered an adverse action ‘as a
result of that activity.'” Alamo v. Bliss,
864 F.3d 541, 555 (7th Cir. 2017) (footnote omitted).
Plaintiff alleges that Defendant retaliated against him
because it refused to rehire him after he was terminated from
the company in 2011. Plaintiff does not, however, allege that
he engaged in statutorily protected activity. Accordingly, he
fails to state a retaliation claim against Defendant.
Plaintiff wishes to proceed, he must file an amended
complaint curing the deficiencies in the original complaint
as described herein. For guidance on writing his amended
complaint, Plaintiff should consult the forms and guides
provided by the court available on the Eastern District of
Wisconsin's website. In particular, Plaintiff should
review the Guide and Complaint for Non- Prisoner Filing
Without a Lawyer and the Complaint for Employment
Discrimination, which are available at
amended complaint must be filed on or before July 19,
2019. Failure to file an amended complaint within
this time period may result in dismissal of this action.
is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled
“Amended Complaint.” 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 (7th Cir. 1998). In Duda, the
appellate court 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).
IS THEREFORE ORDERED that Plaintiff's motion for
leave to proceed without prepayment of the filing fee (Dkt.
No. 2) is GRANTED.
IS FURTHER ORDERED that Plaintiff's complaint is
DISMISSED without prejudice.
IS FURTHER ORDERED that the plaintiff is directed to
file an amended complaint on or before July 19,
2019. Failure to file an amended complaint within