Kasprzak v. Venture Capital Culvers et al

Filing 20

DECISION AND ORDER signed by Judge Lynn Adelman on 8/10/15 that defendants motion to dismiss 9 is GRANTED. However, plaintiff is granted leave to amend his complaint to cure the noted defects. Plaintiff may file an amended complaint on or before September 14, 2015. If plaintiff fails to file an amended complaint by that date, his case will be dismissed with prejudice. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
KENNETH KASPRZAK,
Plaintiff,
v.

Case No. 14-cv-1556

VENTURE CAPITAL CULVERS and
BOB TORRES,
Defendants.
_____________________________________________________________________
DECISION AND ORDER
Plaintiff Kenneth Kasprzak, pro se, brings this lawsuit against his former employer,
Venture Capital Culvers,1 and former manager, Bob Torres. Although it is unclear from the
complaint what plaintiff’s claim is, the civil cover sheet submitted with his complaint lists the
nature of his suit as arising under the Americans with Disabilities Act (“ADA”). Therefore
I will proceed under the assumption that plaintiff is bringing an ADA claim. Before me now
is defendants’ motion to dismiss.
From what I can discern from the complaint, plaintiff worked at the Culver’s
Restaurant in Lake Geneva starting in either 2006 or 2008, and at some point after that
defendant Torres was hired as manager. Plaintiff alleges that Torres wanted to fire him
ever since he was hired, and at some point he denied plaintiff a position doing “prep work.”
Plaintiff also complains that over a four year period he never received a raise and was
nicknamed “$7.75.” In March 2014, there was some sort of altercation between Torres and
plaintiff. Torres called the police, who removed plaintiff from the property and warned him

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Plaintiff misidentified his employer in his complaint. The correct name is Joint
Venture Management, Inc., d/b/a Culvers of Lake Geneva.

not to return. Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) and the Equal Rights Division of the Wisconsin Department of
Workforce Development (“ERD”). He then commenced this suit.
Defendants ask me to dismiss this case because plaintiff’s complaint fails to state
a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The complaint must, at minimum, “give the defendant fair
notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(internal quotations and citation omitted). In construing plaintiff’s complaint, I assume all
factual allegations to be true at this stage in the litigation. Iqbal, 556 U.S. at 678.
The ADA prohibits discrimination in employment based on disability. 42 U.S.C. §
12101 et seq. To survive a motion to dismiss under Rule 12(b)(6), plaintiff must allege facts
establishing that “(1) he is ‘disabled’; (2) he is qualified to perform the essential function
of the job either with or without reasonable accommodation; and (3) he suffered an
adverse employment action because of his disability.” Gogos v. AMS Mech. Sys., Inc., 737
F.3d 1170, 1172 (7th Cir. 2013) (internal quotations and citation omitted). Additionally,
plaintiff is required to file a disability discrimination charge with the EEOC and obtain a
notice of right to sue, also called a right-to-sue letter, from the EEOC before commencing
a lawsuit in federal court. 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5’s

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enforcement provision); Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir.
2004). See also Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)
(explaining prerequisites to sue in the Title VII context). Thus, plaintiff’s complaint must
also allege that he has met this requirement.
Plaintiff’s complaint fails to satisfy this standard because it does not adequately
plead a claim under the ADA sufficient to put defendants on notice of what plaintiff is
alleging. Plaintiff’s complaint does allege adverse employment actions, namely that
defendants denied his request for a new position and failed to increase his pay, but it does
not allege that defendants took these actions because of a disability. At most, the
complaint alleges that defendant Torres did not like plaintiff, but this is not enough to
establish an ADA claim. Additionally, while plaintiff mentions that he is disabled, he does
not identify the specific disability that was the subject of discrimination. The only specific
disability the complaint mentions is arthritis, and that is mentioned only in the context of
explaining plaintiff’s poor handwriting and not the reason why defendants discriminated
against him. Therefore, I will dismiss plaintiff’s complaint for failure to state a claim upon
which relief may be granted.
However, I will give petitioner the opportunity to file an amended complaint to cure
these defects. If plaintiff wishes to file an amended complaint, he should allege facts that
show that he is disabled and what his disability is, that he is qualified to perform his job with
or without an accommodation, and that defendants took some adverse employment action
against him because of his disability. I remind plaintiff that he must allege specific facts and
that a bare recital of these elements will not be enough. Vesely v. Armlist LLC, 762 F.3d
661, 664–65 (7th Cir. 2014).
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Plaintiff’s complaint also fails to plead that he exhausted his administrative remedies
by obtaining a right-to-sue letter from the EEOC. Defendants state that as far as they are
aware, plaintiff has not requested or received a notice of a right to sue from the EEOC.
Thus, if plaintiff chooses to file an amended complaint, it must allege that he has received
a right-to-sue letter, and I will require him to attach a copy of that letter to the amended
complaint.
I next address whether plaintiff may sue his manager Bob Torres in his amended
complaint. “Ordinarily, a party not named in an EEOC charge may not be sued” under the
ADA. See Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). It
does not appear that plaintiff named Torres in his EEOC or ERD charge, thus Torres was
not on notice of the alleged ADA violation. Id. (stating that one purpose of the filing of an
EEOC charge is “to notify the charged party of the alleged violation”). Thus, unless plaintiff
can show that he named Torres in his administrative charges, he may not proceed with
claims against Torres.
Finally, I address defendants’ argument that plaintiff cannot proceed on his ADA
claim against his employer, Joint Venture Management, Inc. d/b/a Culver’s of Lake
Geneva, because he misnamed the employer on his EEOC and ERD charges, filing the
claims against “Venture Capital Culvers.” If plaintiff is able to cure the other defects in his
complaint, I will allow him to proceed with an ADA claim against his employer despite
having used the wrong name in the EEOC and ERD charges. “The purpose of requiring
the complaint to match the EEOC charge is to give the employer some warning of the
conduct about which the employee is aggrieved and afford the EEOC and the employer
an opportunity to attempt conciliation without resort to the courts.” Tamayo v. Blagojevich,
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526 F.3d 1074, 1089 (7th Cir. 2008) (recognizing an exception to the rule where a party
has adequate notice of the charge and an opportunity to participate in conciliation). Here,
it appears that Joint Venture Management was on notice of the EEOC and ERD charges
despite plaintiff’s error. In fact, it was Joint Venture Management who filed copies of
plaintiff’s ERD complaint with this court. However, plaintiff is advised that if he files an
amended complaint, he should name the proper defendant, Joint Venture Management,
Inc. d/b/a Culvers of Lake Geneva, and not Venture Capital Culvers.
THEREFORE, IT IS ORDERED that defendants’ motion to dismiss (ECF No. 9) is
GRANTED. However, plaintiff is granted leave to amend his complaint to cure the noted
defects. Plaintiff may file an amended complaint on or before September 14, 2015. If
plaintiff fails to file an amended complaint by that date, his case will be dismissed with
prejudice.
Dated at Milwaukee, Wisconsin, this 10th day of August, 2015.

s/ Lynn Adelman
__________________________
LYNN ADELMAN
District Judge

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