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Washington v. Milwaukee County

United States District Court, E.D. Wisconsin

January 14, 2020

KERRY WASHINGTON, Plaintiff,
v.
MILWAUKEE COUNTY, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Kerry Washington, an employee of defendant Milwaukee County (the “County”) at its General Mitchell International Airport (“GMIA”), sues the County for race discrimination under 42 U.S.C. § 1981(a), 42 U.S.C. § 2000e-2(a)(1), and 42 U.S.C. § 2000e-2(k)(1). (Docket # 1.) The County moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Docket # 16.) For the reasons that follow, the County's motion will be granted in part and denied in part.

         BACKGROUND

         Washington, who is African-American, alleges that he has been employed by the County since November 2010 as an Airport Operations Coordinator at GMIA. (Compl. ¶¶ 1, 7, Docket # 1.) Washington has applied for several promotions since he was hired, and the County has declined each of Washington's applications without an interview. (Id. ¶ 9.) Washington asserts that he was the best-qualified candidate for most of the positions he applied for. (Id. ¶ 10.) In 2018, Washington applied for the promotional positions of Assistant Manager of Airport Operations, Airside Coordinator, and Security Coordinator. (Id. ¶ 11.) Washington alleges that the County selected less-qualified white candidates. (Id.) Washington alleges that he also applied for promotional positions in 2012 and 2015 and was rejected in favor of less-qualified white candidates. (Id. ¶¶ 12-13.) Washington's complaint asserts that statistics of hiring and promotions at GMIA will show large disparities in salaries and a lack of African-Americans in the managerial and supervisory positions that Washington applied for. (Id. ¶ 14.)

         On August 3, 2018, Washington, who was represented by counsel, filed a complaint with the Wisconsin Department of Workforce Development Equal Rights Division (“ERD”). (Docket # 17-1 at 3-4.) The charge was dual-filed with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Id. at 5.) Pursuant to a work-sharing agreement, the ERD commenced investigation of the charge while the EEOC deferred. (Docket # 17-6.) On October 2, 2018, the ERD wrote to Washington's attorney requesting a written response to information provided by the County, as well as the names and addresses of any supportive witnesses, by October 22, 2018. (Docket # 17-2.) On October 25, 2018, the ERD notified Washington's attorney that it had not received a response:

It is necessary for you to cooperate in the investigation of your client's complaint. This will be your last opportunity to provide the information requested in my previous letter.
You must send us your written response within 20 days of the date of this letter. . . . If no response is received by November 14, 2018, your complaint will be dismissed by the Equal Rights Division.

         (Docket # 17-3.) Washington was copied on this letter. (Id.) On December 4, 2018, the ERD sent Washington a notice of final dismissal within twenty days if he did not respond, stating that Washington “has failed to respond to requests for information and the evidence in the file does not support a probable cause finding. Therefore, the case is being dismissed because the Complainant has failed to respond to a 20-day Certified letter.” (Docket # 17-4.) On December 7, 2018, the ERD ordered the complaint dismissed, but not for failure to respond; rather, the dismissal stated that the complainant had signed a written request to withdraw the complaint and requested that the EEOC investigate the federal law claims. (Docket # 17-5.)

         The EEOC reopened Washington's charge of discrimination and wrote Washington's attorney requesting information showing that the reasons Milwaukee County gave for denying promotions to Washington were not the actual reasons for the denials. (Docket # 17-7, Docket # 17-8.) The letter also indicated that some of the discriminatory acts Washington complained of, going as far back as 2010, may be untimely due to the 300-day limitations period for filing a charge. (Id. at 2.) The letter indicated:

If you do not respond within thirty (30) days of the date of this letter, the Commission may conclude that either your client does not have any additional information to submit or does not disagree with the Respondent's position and may make a determination based on the evidence, or administratively close your client's charge based on failure to respond. If, upon review of your client's rebuttal, the Office determines that further investigation will not result in finding a violation, your client will be issued a Dismissal and Notice of Right to Sue, and an explanation of his/her private litigation rights.

(Id.) On March 5, 2019, the EEOC issued a dismissal and right-to-sue letter, explaining its determination as follows:

Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statues. No finding is made as to any other issues that might be construed as having been raised by this charge.

         (Docket # 17-10.) On March 7, 2019, Washington's attorney emailed the EEOC investigator requesting a right-to-sue letter, and learned that it had been issued a few days earlier. (Docket # 17-9.)

         Washington filed his complaint in this court on June 3, 2019. (Docket # 1.) On July 31, 2019, the County filed its answer. (Docket # 7.) The County's motion for judgment on the pleadings ...


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