White v. Randstad US et al

Filing 8

ORDER signed by Judge Pamela Pepper on 3/14/2016 GRANTING 6 Plaintiff's Motion for Reconsideration and APPROVING 2 Plaintiff's Motion for Leave to Proceed in forma pauperis, and SCREENING Complaint. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ELLEN C. WHITE,
Plaintiff,
v.

Case No. 16-cv-76-PP

RANDSTAD US, RANDSTAD
HOLDING NV, US BANK, and
US BANCORP,
Defendants.
______________________________________________________________________________
ORDER GRANTING THE PLAINTIFF’S MOTION FOR
RECONSIDERATION (DKT. NO. 6), APPROVING APPLICATION TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), AND SCREENING
COMPLAINT
______________________________________________________________________________
The plaintiff has filed a motion asking the court to reconsider its denial of
the her motion to proceed in forma pauperis. Dkt. No. 6. The plaintiff also has
filed an amended complaint, attaching a Notice of Right to Sue letter from the
Equal Opportunity Employment Commission, as the court had instructed. Dkt.
Nos. 5, 5-1, and so the court will screen the plaintiff’s complaint under 28
U.S.C. §1915 to determine if the plaintiff has stated a claim for which this
court can grant relief.
I.

The Court Grants The Plaintiff’s Motion For Reconsideration Of Her
Motion To Proceed In Forma Pauperis, and Approves Her
Application to Proceed In Forma Pauperis.
The plaintiff’s motion for reconsideration and her supporting declaration

clarify her financial condition, and provide additional information about her
income, assets, and expenses. Dkt. Nos. 6-7. The plaintiff states that, in the
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year 2015, she received a total of $1,606.65 from her employment at Randstad
US, and received a total of only $4,100 in unemployment benefits. Dkt. Nos. 6,
7. (The plaintiff’s original application led the court to believe that she received
these amounts monthly, which was why the court originally found that she had
the funds to pay the filing fee.) She indicates that she is not employed at this
time, and has no income other than $194 per month in food share benefits.
Dkt. No. 7 at 1. Her unemployment benefits ended in May 2015. Id. She
applied for Social Security disability benefits, but her application was denied.
Id. at 2. She has only $368.24 in her checking account and $123.85 in her
savings account. Id. Further, she declares that, although she has an ownership
interest in a home valued at $42,200 (which is not subject to a mortgage or
similar encumbrance), her interest is divided among her three siblings and her
mother, and she cannot borrow against the home. Id.She states that she has
$850 in monthly expenses, consisting of $200 in rent, $50 in credit card
payments, and $600 in household expenses. The plaintiff’s mother and siblings
occasionally provide her with assistance, but they have a limited ability to do
so. Id.
Based on these clarifications, the court will grant the plaintiff’s motion
for reconsideration. Dkt. No. 6. In light of the plaintiff’s submissions in support
of her motion for reconsideration, the court finds that she does not have the
financial ability to pay the $400 filing fee. This fact, combined with the fact that
the court also finds that the plaintiff’s complaint states a claim (as discussed

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below), leads the court to grant the plaintiff’s motion to proceed in forma
pauperis, and thus the court will waive the filing fee in this case.
II.

Screening of the Plaintiff’s Amended Complaint
A. Standards of Review Under 28 U.S.C. §1915
Section 1915(e)(2)(B) requires a court to dismiss a case filed by an

unrepresented plaintiff at any time if the court determines that it “(i) is
frivolous or malicious; (ii) fails to state a claim upon which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.” For this reason, district courts “screen” complaints filed by selfrepresented plaintiffs, to determine whether the complaint must be dismissed
under these standards.
A claim is legally frivolous when it lacks an arguable basis either in law
or in fact. Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728 (1992);
Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827 (1989). At the
screening stage, the court must accept the complaint’s factual allegations as
true and draw all reasonable inferences in favor of the plaintiff, the court can
“pierce the vail of the complaint’s factual allegations” and need not “accept
without question the truth of the plaintiff’s allegations.” Denton, 504 U.S. at
32. For example, the Supreme Court has explained that a court may dismiss a
claim as frivolous if it is “clearly baseless,” “fanciful,” “fantastic,” “delusional,”
“irrational,” “wholly incredible,” or “based on an indisputably meritless legal
theory.” Id. at 32-33. By contrast, the court may not dismiss a claim as
frivolous simply because “the plaintiff's allegations are unlikely.” Id.
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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
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)). However, a complaint that offers “labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim,
a complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must
be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, the court must “identify[ ] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Id., 556 U.S. at 679. A plaintiff must support legal conclusions with
factual allegations. Id. Second, if there are well-pleaded factual allegations,
courts must “assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Id.
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B. The Allegations of the Complaint
The plaintiff alleges that she worked at US Bank Mobility Infrastructure
for Randstad as a part-time spreadsheet specialist from July 1, 2015 until
October 29, 2015. Dkt. No. 5 at 2. (The court assumes the plaintiff was placed
at US Bank as a temporary worker by Randstad, a staffing solutions business.)
The plaintiff claims that she asked her supervisor at US Bank for an
employment reference, because she had applied for Social Security disability
benefits. Soon thereafter, the plaintiff alleges, she received a telephone call
from Randstad, and was told that her assignment was over, that the work she
was doing had “dried up,” and that US Bank did not need her anymore. Id.
About a week later, the plaintiff received an e-mail from Randstad, “recruiting
for the same position plaintiff ‘finished’ October 29, 2015.” Id. The plaintiff
responded to the e-mail, offering to return to the job. She also called Randstad
to express her surprise that the job she had been told a week prior had “dried
up” was now being filled. Id. at 2-4. The plaintiff alleges that Randstad
responded that “the email sent out to temporary staff available for that type of
position and the immediate need for a spreadsheet specialist was for the
future, just in case there was a need to fill the position again.” Id. at 3. The
plaintiff alleges that her employment was terminated in violation of Title I of the
Americans With Disabilities Act, 42 U.S.C. §12101, et seq., because she was
terminated after had informed her supervisor that she had applied for Social
Security disability benefits. Id.

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A plaintiff bringing an action under Title I of the ADA first must file an
EEOC charge, and must obtain from the EEOC a Notice of Right to Sue. See 42
U.S.C. §12117(a); 42 U.S.C. §2000e–5(b), (e), and (f). The plaintiff filed a Notice
of Right to Sue letter along with her amended complaint, which states that the
EEOC closed its file on the plaintiff’s discrimination charge because the EEOC
could not conclude that the information it obtained established a violation of
the statutes enforced by the EEOC. Dkt. No. 5-1 at 1.
Upon review of the complaint, it appears to the court that the plaintiff
may be asserting two separate claims, both under the ADA. First, the plaintiff
alleges that, in October 2015, she was let go from her temporary position
because she had told her supervisor at US Bank that she had applied for
disability benefits. Second, the plaintiff appears to allege that, in November
2015, the defendants they recruited applicants for the position the plaintiff had
held before she was terminated, but decided not to rehire the plaintiff because
of her disability.
Either of these allegations may present cognizable claims under Title I of
the ADA. Title I of the ADA states that “[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in regard to ... the
hiring, advancement, or discharge of employees.” 42 U.S.C. §12112(a). A claim
for relief under Title I of the ADA requires the plaintiff to allege facts showing
that “(1) [she] is ‘disabled’; (2) [she] is qualified to perform the essential function
of the job either with or without reasonable accommodation; and (3) [she]
suffered an adverse employment action because of [her] disability.” E.E.O.C. v.
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Lee’s Log Cabin, Inc., 546 F.3d 438, 442 (7th Cir. 2008). “In order to recover for
violations of Title I of the ADA, a plaintiff must file a charge of discrimination
with the EEOC within 180 days of the alleged violation (if he does not file an
initial charge with a state agency).” Stewart v. Cty. of Brown, 86 F.3d 107, 108
(7th Cir. 1996) (citing 42 U.S.C. §12117(a)). Based on the dates alleged in the
amended complaint and contained in the plaintiff’s Notice of Right to Sue
letter, the plaintiff appears to have exhausted her administrative remedies
before filing her civil action in this court, and it appears that she timely filed
her complaint.
Before the court can allow this case to proceed, the court must find that
the plaintiff alleged facts that could state a plausible claim that the defendants
discriminated against her on the basis of her disability, in violation of Title I of
the ADA. The plaintiff clearly alleges that she is disabled, although the
complaint does not state the nature of her disability. Liberally construed, the
complaint further alleges that the plaintiff suffered two adverse employment
actions based on her disability. The complaint does not specifically allege that
that the plaintiff was qualified to perform the essential function of her position
(part-time spreadsheet specialist), with or without a reasonable accommodation
for her disability. But the court must draw all reasonable inferences in the
plaintiff’s favor at this stage, and the court can infer from the plaintiff’s attempt
to return to her position at US Bank that she claims she could perform the
essential function of that position. Accordingly, the court finds that the
complaint contains allegations sufficient to put the defendants on fair notice of
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the plaintiff’s claims and the grounds on which her claims rest. Twombly, 550
U.S. at 555; Fed. R. Civ. P. 8(a).
At the screening stage, the court makes a limited finding that the
complaint appears to state a plausible claim for relief, and so the court will
order the complaint to be served on the defendants. The court emphasizes that
this order should not be construed as precluding the defendants from raising
any defenses that may be raised in a responsive pleading or that may be raised
by motion under Rule 12, or as taking any position as to the outcome of any
such motion.
III.

Conclusion
The court GRANTS the plaintiff’s motion for reconsideration (Dkt. No. 6).

The court APPROVES the plaintiff’s application for leave to proceed in forma
pauperis (Dkt. No. 2).
The court ORDERS that the United States Marshals Service shall serve a
copy of the amended complaint (Dkt. No. 5) and this order on the defendants,
pursuant to Federal Rule of Civil Procedure 4.
The plaintiff is advised that Congress requires the U.S. Marshals Service
to charge for making or attempting such service. 28 U.S.C. §1921(a). The
current fee for waiver-of-service packages is $8.00 per item mailed. The full fee
schedule is provided at 28 C.F.R. §§0.114(a)(2), (a)(3). Although Congress
requires the court to order service by the U.S. Marshals Service precisely
because in forma pauperis plaintiffs are indigent, it has not made any provision
for these fees to be waived either by the court or by the U.S. Marshals Service.
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The court ORDERS that the defendants who are served shall answer or
otherwise respond to the complaint.
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. As each filing will
be electronically scanned and entered on the docket upon receipt by the clerk,
the plaintiff need not mail copies to the defendants. All defendants will be
served electronically through the court’s electronic case filing system. The
plaintiff should also retain a personal copy of each document filed with the
court.
The court further advises plaintiff that if she does not timely file
documents, the court may dismiss her case for failure to prosecute.

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In addition, the parties must notify the Clerk of Court of any change of
address. Failure to do so could result in orders or other information not being
timely delivered, thus affecting the legal rights of the parties.
Dated in Milwaukee, Wisconsin this 14th day of March, 2016.

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