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McGee v. Oshkosh Defense, LLC

United States District Court, W.D. Wisconsin

September 30, 2019

CONOR L. MCGEE, Plaintiff,

          OPINION & ORDER

          WILLIAM M. CONLEY, District Judge.

         Pro se plaintiff Conor L. McGee filed this lawsuit against Oshkosh Defense, LLC, the Wisconsin Economic Development Corporation (“WEDC”), the State of Wisconsin, and the Oshkosh Police Department. McGee invokes various claims against these defendants, all of which appear to stem from McGee’s unsuccessful efforts to be hired by Oshkosh Defense in 2017, and a search of McGee’s person conducted by the Oshkosh Policy Department during one of his interviews at Oshkosh Defense. Specifically, McGee claims that: (1) Oshkosh Defense and the WEDC violated his rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, in failing to hire him; and (2) all defendants violated his federal and state law rights by conspiring to steal his innovations and inventions, sexually assaulting him, threatening him, retaliating against him, and defaming him. Currently pending are motions to dismiss filed by Oshkosh Defense, the WEDC, and the State of Wisconsin have moved to dismiss, and a motion for judgment on the pleadings filed by the Oshkosh Police Department. (Dkt. ##15, 19, 22, 27.) For the reasons that follow, the court will grant defendants’ motions to dismiss and for judgment on the pleadings and direct entry of judgment in defendants’ favor.


         Plaintiff Conor L. McGee names four defendants in this lawsuit: Oshkosh Defense, LLC; the State of Wisconsin; the Wisconsin Economic Development Corporation; and the Oshkosh Police Department. The allegations in his complaint are vague, disjointed, and often interrupted by conclusory assertions about violations of his rights, but his claims arise out of efforts to obtain employment with defendant Oshkosh Defense.

         McGee alleges that in April and October of 2017, he applied for the posted position of Project Coordinator - Data Science at Oshkosh Defense. It is unclear what McGee actually alleges happened during the first interview in April, but McGee at least alleges that he not only failed to get the position, but the Oshkosh Police Department was called, which led to the police confronting McGee. During that confrontation McGee claims that officers harassed, illegally searched and abused him. Unfortunately, McGee has not provided any facts about why the police were called during that interview, the names of the officers actually who were involved, nor what exactly was the claimed basis for their search, if any. McGee then apparently applied and was interviewed for the second job posting with Oshkosh Defense in October 2017. McGee learned that he did not receive that position on November 20, 2017.

         During both interview processes, McGee interacted with the Senior Director of Product Support Engineering, Clint Herrick. McGee alleges during his various interactions with Herrick related to his applications, Herrick: (1) made negative comments about McGee’s physical disability; (2) made disparaging remarks about a birth defect; (3) questioned whether McGee had worked in dangerous environments and referred to him as a “mental health victim”; (4) requested that the Oshkosh Police Department search McGee during the April 2017, interview; (5) gaslighted McGee by questioning his credibility and sanity; (6) took credit for harming McGee; (7) prevented McGee from applying for positions with Oshkosh Defense on other occasions; (8) threatened him; and (9) retaliated against McGee.

         McGee claims that Oshkosh Defense discriminated against him on the basis of his disability by failing to hire him and then mishandling and opposing his subsequent complaint about its failure to hire him. McGee also claims that Oshkosh Defense stole his technological inventions and innovations, conspired to sexually assault him, and engaged in a propaganda war to discredit his name. Related to the theft of his inventions, McGee further claims that Oshkosh Defense conspired with WEDC and the State of Wisconsin to steal his inventions to create manufacturing jobs in Oshkosh and the State of Wisconsin. Finally, related to his sexual assault claim, McGee claims that Oshkosh Defense conspired with the Oshkosh Police Department and the State of Wisconsin to allow Oshkosh Police Detective Jeremy Wilson and Chris Sell to “sexually assault, rape, stalk, threaten, and abuse” McGee over “many years.” (Compl. (dkt. #1) ¶ 8.)[2]

         In his opposition briefing (dkt. ## 26, 34), McGee appears to attempt to allege additional facts not discernable in his complaint, which although vague, includes that: (1) he suffers from a birth defect, a broken collarbone, a qualified mental health disability, and near-sightedness; (2) he was essentially an employee of the WEDC and the State of Wisconsin by virtue of these two entities stealing his intellectual property; (3) Oshkosh Defense stole and patented his “original technical and technological inventions, improvements, and enhancements”; (4) he was forced into sexual acts, and act of prostitution by defendants; and (5) his father was involved in conspiring with the Oshkosh Police Department to subject him to sexual slavery by having him involuntarily committed. McGee alleges that on May 25, 2018, he received a right to sue letter from the Equal Employment Opportunity Commission (“EEOC”). McGee has not alleged who he named in his EEOC Charge, nor has he alleged whether he filed a notice of claim against defendants.


         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a plaintiff must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In effect, this means that the complaint must indicate “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556. When “[e]valuating the sufficiency of the complaint, [the court] construes it in the light most favorable to the non-moving party, accept[s] well-[pled] facts as true, and draw[s] all inferences in [the plaintiff’s] favor.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d. 939, 946 (7th Cir. 2013).

         A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is reviewed under the same standard as Rule 12(b)(6), except that the court considers not only the complaint and referenced documents, but all pleadings, as well as documents that are incorporated into any pleading by reference. Buchanan-Moore v. City of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991). To succeed, “the moving party must demonstrate that there are no material issues of fact to be resolved, ” even with the court viewing all facts in the light most favorable to the nonmoving party. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998). While the non-moving party’s factual allegations are generally accepted as true in response to a 12(c) motion, “allegations in the form of legal conclusions are insufficient to survive.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (citing McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012)).

         Here, each defendant moved separately for dismissal, at times on distinct grounds. While the court will address each defendant’s motion separately, the court notes at the outset, that McGee’s assertions and allegations related to the alleged conspiracy by the defendants to both steal his intellectual property and inventions, as well as threaten, harass and assault him are simply too implausible and lacking in specificity to pass muster under the commonsense standard the court must use in evaluating whether a complaint satisfies the pleading requirements described in Iqbal and Twombly. Indeed, McGee has alleged precious few facts of any kind in his complaint, and as reflected above, the court could discern only a handful. The balance of McGee’s complaint and opposition brief relate to assertions and accusations that defendants have been conspiring against him for years in numerous ways. Given the alleged breadth and egregiousness of this alleged conspiracy, the court cannot deem his allegations plausible absent some, specific factual allegations grounding his assertions in reality.

         Oshkosh Defense cites to a decision from the Court of Appeals for the Seventh Circuit that supports this conclusion. In Walton v. Walker, 364 Fed.App’x 256, 257 (7th Cir. 2010), the court affirmed dismissal of a complaint in which a complaint set forth “unsupported allegations that a wide variety of state and local officials over many months conspired to violate” the plaintiff’s rights. Id. at 258. The court commented that “the sheer size of the alleged conspiracy -- involving numerous agencies of state and local government -- points in the direction of paranoid fantasy.” Id. at 257. McGee’s conspiracy-related claims, all based on references to the theft of his unspecified innovations and intellectual property and threats, harassment and assaults that seems to have plagued him for years, are too far-fetched and vague (as to the basic who, what, where, when and how) to avoid dismissal. Indeed, given that neither of McGee’s opposition briefs (dkt. ##26, 34) suggests that he is able to allege any facts suggesting that these wide-ranging conspiracies exist, much less that any named defendant engaged in a specific act in furtherance of the conspiracy, confirms that dismissal of these broad claims is appropriate as failing to rise above the speculative level. Regardless, even granting him the leniency this court affords pro se litigants such as McGee, his varied claims must be dismissed on the grounds of immunity and for failure to state a claim.

         I. Defendant Oshkosh Defense, LLC’s Motion to Dismiss (dkt. #15)

         Oshkosh Defense seeks dismissal of all of McGee’s claims against it, on the grounds that his allegations do not support an ADA claim, nor any claim under Wisconsin law related to intellectual property, assault or battery, or defamation.

         A. ADA claim

          “The ADA and Rehabilitation Act prohibit an employer from discriminating against a qualified individual with a disability because of the disability.” Jackson v. City of Chic., 414 F.3d 806, 810 (7th Cir. 2005) (quoting Silk v. City of Chic., 194 F.3d 788, 798 (7th Cir. 1999)). Regardless of whether plaintiff’s claim is viewed as outright discrimination or a failure-to-accommodate, he must allege that he is “disabled” under the ADA and that with or without accommodation he could perform the job’s essential functions. See Hooper, 804 F.3d at 853 (citing Bunn v. Khoury Enters., Inc., 753 F.3d 676, 683 (7th Cir. 2014)) (identifying elements of discrimination claim as: being disabled under the ADA, qualified to perform job’s essential functions, and termination because of the disability); E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005) (citing Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001)) (identifying elements of failure-to-accommodate claim as: being “a qualified individual with a disability”; employer knowledge of disability; and the employer’s failure to accommodate the disability).

         In order to be such a “qualified individual, ” an employee must also “satisf[y] the prerequisites for the position” and be able to “perform the essential functions of the position . . . with or without reasonable accommodation” at the time he was fired. Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 285, 287 (7th Cir. 2015); see also Whitaker v. Wis. Dept. of Health Servs., 849 F.3d 681, 684 (7th Cir. 2017) (explaining that an “otherwise qualified” employee is one who “is capable of performing the ‘essential functions’ of the job with or without a reasonable accommodation”); Nowak, 142 F.3d at 1003 (explaining that the qualified individual determination “must be made as of the time of the employment decision” (internal citation omitted)). Finally, plaintiff bears the burden of establishing that he was a qualified employee. Nowak, 142 F.3d 1003.

         Here, McGee’s allegations do not satisfy the first element of an ADA claim. While he refers to himself as “disabled” and mentions both physical and mental disabilities, McGee’s complaint fails to allege sufficient facts to infer that he would actually qualify disabled as defined by the ADA. In his opposition brief, McGee does add additional information about his condition, claiming that he suffers from a “congenital birth defect and related symptoms, ” he “sometimes” limps, was born with a broken collarbone, is near-sighted and has a qualified mental health disability. (Pl. Opp’n Br. (dkt. #26) at 1, 5.) Yet McGee has not paired these descriptions with any factual averments related to how his physical and mental health challenges actually affected any major life activity. This dooms his ADA claim.

         Oshkosh Defense points to a recent decision from the Court of Appeals for the Seventh Circuit, Koty v. DuPage Cty., Ill., 900 F.3d 515, 519 (7th Cir. 2018), affirming the district court’s dismissal of an ADA claim under similar allegations. Indeed, in Koty, the plaintiff’s complaint actually contained more details about the alleged disability than McGee does here, including that he had a femoral hip impingement with torn labrum and other medical disabilities, and that the pain was aggravated by the vehicle his employer assigned to him to drive. Id. Nevertheless, the Seventh Circuit affirmed the dismissal of the ADA claim because the plaintiff had failed to allege that his injuries affected “any major life activity.” Id. Given that McGee’s allegations -- drawn from both his complaint and briefing -- are even less concrete, and McGee has included no details about how his physical and mental health issues actually impact his life on a daily basis, his ADA claim fails at the first element.

         Even if McGee had cleared this first hurdle, Oshkosh Defense also points out that McGee’s allegations do not satisfy the second element, requiring that he “is qualified to perform the essential function of the job either with or without reasonable accommodation.” Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th Cir. 2013). Since McGee’s complaint provides no details about his desired position with Oshkosh Defense, much less any allegations about his qualifications to perform the functions of that position, his ADA claim fails at the second element as well.

         B. ...

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