Joe v. Walgreens Co/ILL et al

Filing 28

OPINION AND ORDER granting 7 Defendants' Motion for Summary Judgment. Signed by U. S. District Judge Roberto A. Lange on 06/23/2010. (LH)

UNITED STATES DISTRICT C O U R T D I S T R I C T OF S O U T H D A K O T A S O U T H E R N DIVISION REV. DAVID L. JOE, Plaintiff, vs. WA L G R E E N S C O / I L L , W A L G R E E N S C O / I L L ( D I S T R I C T 311), J A S O N FREDERICK (IN HIS OFFICIAL C A P A C I T Y ) , M A R Y ANN H A N S E N (IN HER OFFICIAL CAPACITY), KRISTINE RA YSBY (IN H E R OFFICIAL CAPACITY), F R A N K MAXWELL (IN HIS OFFICIAL CAPACITY, Defendants.

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CIV 0 9 - 4 1 4 4 - R A L

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O P I N I O N AND O R D E R G R A N T I N G DEFENDANT'S' MOTION F O R S U M M A R Y JUDGMENT

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I . INTRODUCTION

Plaintiff, Rev. David L. Joe ("Rev. Joe"), filed a pro se complaint against Dcfcndants on September 24, 2009, alleging state and federal employment discrimination claims. On October 1 6 , 2 0 0 9 , Defendants jointly filed a Motion to Dismiss for lack o f subject matter jurisdiction under Rule 1 2 ( b ) ( l ) o f the Federal Rules o f Civil Procedure, for failure to state a claim upon which r c l i c f can be granted under Rule 12(b)( 6), and alternatively, for Summary Judgment under Rule 56 (Doc. 7), along with a Statement o f Undisputed Material Facts (Doc. 8). This Court grants the Motion for Summary Judgment for the reasons explained below.

II. FACTS
Although pro se pleadings are to be construed liberally, pro se litigants are not excused ii'om compliance with relevant rules o f procedural and substantive law. Schooley v.
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Kennedy, 712 F.2d 372, 373 (8th Cir. 1983). Under S.D.L.R. 56.I(d), "[a]ll material facts set forth in the m o v a n t ' s statement o f material facts will be deemed to be admitted unless controverted by the opposing parties' statement o f material facts." Because Piainti1T has neither submitted a statement
ofmaterial1~lcts

nor directly responded to Dcfendants'

S t a t e m e n t o f U n d i s p u t e d M a t e r i a l Facts, D e f e n d a n t s ' S t a t c m e n t o f U n d i s p u t e d Material Facts is deemed admitted. According to Defendants' Statement o f Undisputed Material Facts ("SOMF"), Defendant Walgreens Co/ILL ("Walgreens") employed Rev. Joe until November 2008. In December 2008, Rev. Joe filed a charge o f discrimination with the South Dakota Division o f Human Rights. On March 20, 2009, the Division o f Human Rights issued a Determination o f N o Probable Cause (Doc. 12-1) to believe that Rev. J o e ' s allegations were well founded, and Rev. Joe did not appeal. Rev. Joe also made a claim with the United States Equal Employment Opportunity Commission ("EEOC"). On May 27, 2009, the EEOC issued a Dismissal and Notice o f Rights 1(mn informing Rev. Joe that "[t]he EEOC has adopted the findings o f the state or local fair employment practices agency that investigated this charge." (Doc. 11-2); SOMF 5. The form further notified Rev. Joe that he had the right to file a lawsuit, and that the "lawsuit must be filed WITHIN 90 DAYS o f y o u r receipt o f this notice; o r your right to sue based on this charge will be lost." (Doc. 11-2, at I ) (emphasis in original). The form was delivered by certified mail to Rev. Joe on June 4, 2009. SOMF 6; (Doc. 8-1). Rev. Joe submitted a certified mail receipt containing a handwritten "6-13." (Doc. 23-2). The Complaint, dated September 1 3 , 2 0 0 9 , appears to have been faxed to the office o f

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the Clerk o f Court o f the United States District Court for thc District o f South Dakota shortly before midnight on Scptember 13, 2009, and was filed with the Clerk on September 24, 2009. SOMF 7. In addition to Walgreens, the Complaint named Jason Frederick, Mary Ann Hansen, Kristine Raysby, and Frank Maxwell as Defendants. All these individuals were employees o f Walgreens during the events giving rise to the Complaint.

III. DISCUSSION
Although P l a i n t i f f s pro se Complaint is not entirely clear, the Complaint appears to make a claim o f disability discrimination and religious discrimination against Defendants. I t is also not clear whether P l a i n t i f f alleges federal law and/or state law discrimination claims. Regardless, P l a i n