White v. City of New Berlin et al

Filing 12

ORDER signed by Judge Pamela Pepper on 8/17/2016 GRANTING 11 Plaintiff's motion to issue summons, SCREENING 10 Amended complaint and DISMISSING City of New Berlin and Kari Morgan as defendants. Please refer to the order for additional information. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ELLEN WHITE,
Plaintiff,
Case No. 16-CV-00041-PP
v.
CITY OF NEW BERLIN,
KARI MORGAN and
DAVID AMENT,
Defendants.

ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 10) AND GRANTING
MOTION TO ISSUE SUMMONS (DKT. NO. 11)

I.

Factual Background
On January 11, 2016, plaintiff Ellen White filed a pro se complaint, Dkt.

No. 1, along with a motion for leave to proceed without paying the filing fee,
Dkt. No. 2. On March 17, 2016, the court issued an order screening the
complaint, granting the motion to proceed in forma pauperis and requiring the
plaintiff to file an amended complaint. Dkt. No. 6. Among other things, this
order required the plaintiff to specifically describe the allegations she wanted to
bring against each individual party, and required her to file, if she had it, her
notice of right to sue from the EEOC. Id. On May 27, 2016, the plaintiff filed an
amended complaint, Dkt. No. 10, along with an EEOC Dismissal and Notice of
Rights form, Dkt. No. 10-1. She then filed, on July 19, 2016, a motion to issue
summons. Dkt. No. 11.

1

The Dismissal and Notice of Rights form the plaintiff submitted is dated
December 9, 2015. Dkt. No. 10-1. The plaintiff filed her complaint on January
11, 2016, well within the ninety-day time limit specified in the Notice of Suit
Rights. Accordingly, the court finds that the plaintiff has met the pre-requisite
for filing suit under the ADA, the ADEA and Title VII.
The amended complaint lists four causes of action. The first cause of
action alleges that defendants Morgan and Ament violated the plaintiff’s right
to due process under the Fourteenth Amendment of the Constitution when
they fired her. Dkt. No. 10 at 8. The second cause of action alleges that
defendants Morgan and Ament fired the plaintiff in violation of the Americans
with Disabilities Act (because she suffers from fibromyalgia), the Age
Discrimination in Employment Act (because she is over forty years old), and
Title VII of the Civil Rights Act (because she is African-American). Id. The third
cause of action alleges that defendants Morgan and Ament fired her in violation
of Wisconsin’s Fair Employment Act—Wis. Stat. §§111.321, 111.322(3),
111.33(2)(a), and 111.34(1)(b). Id. The fourth cause of action alleges that
defendants Morgan and Ament fired her in violation of Ҥ11-1B, 1C, 11-11B,
11-12, 11-13A, 11-14, 11-23 of the New Berlin Municipal Code.” Id. at 9.
II.

Discussion
To state a claim under the federal notice pleading system, the plaintiff

must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need to plead
specific facts, and her statement need only “give the defendant fair notice of
2

what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47(1957)). Furthermore, “[a] document filed pro se is ‘to be liberally
construed.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Courts must hold pro
se complaints, “however inartfully pleaded, … to less stringent standards than
formal pleadings drafted by lawyers…” Id. As a result, the United States Court
of Appeals for the Seventh Circuit has set an “undemanding” standard for
employment discrimination complaints at the screening stage. See Samovsky
v. Nordstrom, Inc., 619 F. App’x 547, 548 (7th Cir. 2015); Tate v. SCR Medical
Transp., 809 F.3d 343 (7th Cir. 2015).
For example in Samovsky, the Seventh Circuit, in an unpublished order,
vacated a district court’s decision to dismiss a complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Samovsky v. Nordstrom, Inc.,
619 F. App’x at 548. The Seventh Circuit found that the dismissal was
premature because the plaintiff checked the appropriate boxes on the form
complaint and attached a charge of discrimination filed with the EEOC that
included an affidavit about the plaintiff’s claims. Id. Even though the affidavit
was “rambling and confusing,” the court found that the plaintiff had stated a
claim by including at the bottom of her submission, “that despite being
qualified, she was not hired because she was discriminated against on account
of her national origin, sex, age, and religion.” Id. The Seventh Circuit then
noted that “[i]ndeed, I was turned down for a job because of my race is all a

3

complaint has to say.” Id. (quoting Tamayo v. Blagojevich, 526 F.3d 1074,
1084 (7th Cir. 2008)).
The Seventh Circuit reiterated this finding in a decision issued later that
year, Tate v. SCR Medical Transp., 809 F.3d at 345. In Tate, the Seventh
Circuit reversed and remanded a district court’s dismissal of a complaint for
failure to state a claim, finding that:
The only seriously deficient allegation concerns the
disability, which is not named or otherwise identified
in the complaint … surely a plaintiff alleging
discrimination on the basis of an actual disability
under 42 U.S.C. § 12102(1)(A) must allege a specific
disability .…
The other violations that the plaintiff complains of—
sexual harassment, discrimination on the basis of his
sex, and retaliation for engaging in protected activity—
are adequately alleged, given our ruling in Luevano v.
Wal–Mart Stores, Inc., supra, 722 F.3d at 1028, quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1084–85 (7th
Cir.2008), that “to prevent dismissal under Rule
12(b)(6), a complaint alleging sex discrimination need
only aver that the employer [had] instituted a
(specified) adverse employment action against the
plaintiff on the basis of her [or his] sex.” The pro se
complaint in this case satisfies that undemanding
standard.
Id. at 345–46 (citations omitted). Essentially, in order for a pro se litigant in an
employment discrimination suit who has received an EEOC notice of right to
sue need only describe the adverse employment action and identify a statuteprotected basis of discrimination. Id.
The court finds that the plaintiff has met the Seventh Circuit’s standard
regarding her second and third causes of action—the plaintiff’s claims under
the ADEA, ADA and Title VII, and the Wisconsin state law equivalents (Fair
4

Employment Act).1 The amended complaint states that defendant Morgan,
under the direction of defendant Ament, removed her from her position
because of her race, age, and disability (fibromyalgia), and because she
opposed the city’s policy of excluding African Americans from the fire
department. Dkt. No. 10 at 3. The court finds that that is all she needs to state
in order to proceed past the screening stage on her second and third causes of
action.
The plaintiff may not proceed on those causes of action, however, as to
all defendants. An employment discrimination complaint is properly brought
against “the head of the department, agency or unit, as appropriate.” 42 U.S.C.
§2000e-16(c); Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988) (“Under
Title VII and the Rehabilitation Act the proper defendant is ‘the head of the
department, agency, or unit, as appropriate.’ 42 U.S.C. § 2000e–16(c); 29
U.S.C. § 794a(a)(1) (adopts Title VII procedures)”). Defendant Ament is the
mayor of the City of New Berlin and therefore, he is the appropriate defendant
for the plaintiff’s claims. The court will dismiss the other defendants.
The court also finds that the plaintiff may not proceed on her first cause
of action, under 42 U.S.C. §1983. To prevail on a claim under 42 U.S.C. §1983,
a plaintiff must demonstrate that (1) she was deprived of a right secured by the
The court will exercise supplemental jurisdiction over the Wisconsin state law
claims pursuant to 28 U.S.C. §1367, and treat the causes of action similarly for
the purposes of screening the complaint. It is important to note, however, that
there is some debate whether the Fair Employment Act gives rise to a private
right of action. See Kurtz v. City of Waukesha, 280 N.W.2d 757, 763 (Wis.
1979) but see Boczon v. Northwestern Elevator Co., Inc., 652 F. Supp. 1482,
1485 (E.D. Wis. 1987). The court makes no finding on that question at this
early stage in the case.
1

5

Constitution or laws of the United States, and (2) the defendants acted under
color of state law. See Potkay v. Ament, 34 F. Supp. 3d 937, 946 (E.D. Wis.
2014) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The plaintiff alleges
that the defendants violated her due process rights under the Fourteenth
Amendment.
“In order to assert a Fourteenth Amendment due process claim, [a
plaintiff] must demonstrate that [s]he possessed a property interest in [her job
position] that is protected by the Constitution.” Johnson v. City of Fort Wayne,
Ind., 91 F.3d 922, 943 (7th Cir. 1996). “Such property interests are created
and defined by an independent source, such as a contract or state law, or, as
alleged here, municipal ordinance.” Potkay, 34 F.Supp.3d at 946 (citing Gen.
Auto Serv. Station v. City of Chicago, 526 F.3d 991, 1000 (7th Cir. 2008)). “A
constitutionally protected property interest arises when government gives its
employees assurances of continued employment.” Id. (citing Gorman v.
Robinson, 977 F.2d 350, 356 (7th Cir. 1992)). The plaintiff points to the New
Berlin Municipal Code as her source of this property interest. That code
provides, however, that a civil service appointment does not become absolute
until after the successful completion of a one-year period. New Berlin
Municipal Code §11-9. As the plaintiff admits in her pleadings, her employment
was terminated while she still was in the one year probationary part of her
position (although that probationary period had been extended due to
performance issues). Dkt. No. 1 at 4. Consequently, she never obtained a

6

constitutionally-protected property interest in that employment. The plaintiff
may not proceed on her §1983 claim.
Finally, the court will not allow the plaintiff to proceed on her fourth
cause of action. The plaintiff asserts that the defendants violated the New
Berlin Municipal Code when they terminated her. The code does not provide a
private right of action for non-employees who claim to have suffered adverse
employment actions; rather, §11-12 lays out the procedures that employees of
the municipality are required to follow in suspending, demoting, and
dismissing personnel. In other words, while a New Berlin employee may be
subject to sanctions for failing to follow the procedures in the municipal code,
the code does not provide a person who was suspended, disciplined or fired a
right to file a lawsuit against a employee who failed to follow the code in doing
the suspending, disciplining or firing. In addition, discriminatory employment
actions by municipalities are governed by Wisconsin’s Fair Employment Act.
Kurtz, 280 N.W.2d at 765 (“By amending the Act to effectively apply to state
employees with causes of action arising under the Act, the legislature has
consented to suit under the provisions of the Act, and this consent extends to
municipalities.”) Consequently, the plaintiff already has filed a discrimination
claim in her third cause of action, upon which the court will allow her to
proceed.
III.

Conclusion

The court ORDERS that the plaintiff may proceed against defendant
David Ament in his capacity as mayor of the city of New Berlin on her claims
7

that defendant Ament fired the plaintiff in violation of the Americans with
Disabilities Act (because she suffers from fibromyalgia), the Age Discrimination
in Employment Act (because she is over forty years old), Title VII of the Civil
Rights Act (because she is African-American), and Wisconsin’s Fair
Employment Act—Wis. Stat. §§111.321, 111.322(3), 111.33(2)(a), and
111.34(1)(b).
The court further ORDERS that defendants City of New Berlin and Kari
Morgan are DISMISSED as defendants.
The court GRANTS the plaintiff’s motion to issue summons (Dkt. No. 11),
and ORDERS that the U.S. Marshals Service shall serve a copy of the
complaint, a waiver of service form and/or the summons, the magistrate judge
consent/refusal form, and this order upon the defendant, pursuant to Fed. R.
Civ. P. 4. The court advises the plaintiff that Congress requires the U.S.
Marshals Service to charge for making, or attempting to make, such service. 28
U.S.C. §1921. The full fee schedule appears at 28 C.F.R. §0.114(a)(2)-(3). Even
though Congress requires the court to order the U.S. Marshals Service to
provide service when it allows a person to proceed in forma pauperis, Congress
has not allowed either the court or the U.S. Marshals Service to waive those
fees.

8

The court further ORDERS that the defendant shall answer or otherwise
respond to the complaint within the time frame prescribed by the Federal Rules
of Civil Procedure.
Dated in Milwaukee, Wisconsin this 17th day of August, 2016.

9