Wilburn v. Watry Industries LLC

Filing 13

ORDER signed by Judge Pamela Pepper on 9/19/2016 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and DENYING 8 Defendant's Motion to Dismiss Retaliation Claim. (cc: all counsel) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
FRANK WILBURN,

Case No. 16-564-pp

Plaintiff,
v.
WATRY INDUSTRIES, LLC.,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA
PAUPERIS (DKT. NO. 2) AND DENYING DEFENDANT’S MOTION TO
DISMISS RETALIATION CLAIM (DKT. NO. 8)
______________________________________________________________________________
On May 10, 2016, the plaintiff, who is represented by counsel, filed a
complaint against defendant Watry Industries, LLC. Dkt. No. 1. Along with the
complaint, the plaintiff filed a motion for leave to proceed in forma pauperis.
Dkt. No. 2. The defendant waived service, then filed a motion to dismiss one
count of the plaintiff’s complaint—a claim for retaliation in violation of Title VII
of the Civil Rights Act of 1964. For the reasons explained below, the court will
grant the plaintiff’s motion for leave to proceed in forma pauperis and will deny
the defendant’s motion to dismiss.
I.

THE COURT WILL GRANT THE PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS
In order to allow a plaintiff to proceed without paying the filing fee, the

court must first decide whether the plaintiff has the ability to pay the filing fee,
and if not, must determine whether the lawsuit is frivolous. 28 U.S.C.
§§1915(a) and (e)(2)(B)(i). In the plaintiff’s motion, he indicated that he is
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married, but that neither he nor his wife is employed. Id. at 1. He has a minor
son whom he supports. Id. Over the last twelve months, he has received $600
from his girlfriend. Id. at 2. The plaintiff does not own a vehicle, nor does he
own a home. Id. at 3. He does not have any cash or checking, savings or other
similar accounts. Id. The plaintiff has learned that he may have approximately
$2,000 in an old retirement account, but he has not been able to verify that. Id.
at 4.
The plaintiff advises the court that he has been estranged from his wife
for approximately twenty years. Id. at 4. While he is out of work, he is living
with his son and the mother of his son, who provides support to them. Id. As
for expenses, the plaintiff lists rent payments of $355 per month. Id. at 2. He
has monthly expenses of $235 for phone and utilities. Id. He should be paying
child support of approximately $230 per month, but he is in arrears. Id. Thus,
the plaintiff has an income of $600 per month, and expenses of $585 per
month. The court concludes from this information that the plaintiff has
demonstrated that he cannot pay the $350 filing fee and $50 administrative
fee.
Ordinarily, the court would proceed to examine whether the complaint is
frivolous, malicious, or fails to state a claim for which relief can be granted. See
28 U.S.C. §1915. The court need not conduct that analysis in this case,
however, because the defendant has appeared through counsel, and its motion

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to dismiss challenged only the plaintiff’s retaliation complaint.1 Because the
defendant did not seek to dismiss them, the court will allow the remaining four
claims to proceed
For the reasons explained below, the court will deny the defendant’s
motion to dismiss the plaintiff’s retaliation claim. Accordingly, the court will
grant the plaintiff’s motion to proceed without paying the filing fee, and will
allow him to proceed on all five counts of the complaint.
II.

THE COURT WILL DENY THE DEFENDANT’S MOTION TO DISMISS
THE PLAINTIFF’S RETALIATION CLAIM
The defendant has moved to dismiss the plaintiff’s retaliation claim on

the sole ground that the plaintiff did not administratively exhaust this claim in
the proceedings before the EEOC. The defendant argues that the plaintiff failed
to check the box for “retaliation” in his EEOC charge and did not allege that he
had been retaliated against for having engaged in a statutorily protected
activity. According to the defendant, the court’s determination of whether the
plaintiff’s retaliation claim can proceed should be based solely on the
information contained in his EEOC charge, and not on additional information
that the plaintiff and his attorney subsequently provided to the EEOC, because
the defendant did not receive notice of such information.

The plaintiff’s complaint alleges five causes of action: (1) a claim for
employment discrimination based on race in violation of Title VII of the Civil
Rights Act of 1964; (2) a claim for employment discrimination on the basis of a
disability, in violation of the Americans With Disabilities Act; (3) a claim for
employment discrimination based on age, in violation of the Age Discrimination
in Employment Act; (4) a claim for retaliation, in violation of Title VII, the ADA,
and the ADEA; and (5) a claim for hostile and abusive work environment, in
violation of Title VII, the ADA, and the ADEA.
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The Seventh Circuit “has adopted a liberal standard for reviewing the
scope of an EEOC charge,” Farrell v. Butler Univ., 421 F.3d 609, 616 (7th Cir.
2005), and has cautioned that “[w]hat boxes . . . are checked on the EEOC
form do not necessarily control the scope of a subsequent civil complaint.”
Kristufek v. Hussman Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993).
Accordingly, a complaint brought under Title VII may contain not only the
allegations in the administrative charge, but also claims that are “like or
reasonably related to the allegations of the charge and growing out of such
allegations.” Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 864
(7th Cir. 2010) (quoting McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 481 (7th
Cir. 1996)).
“Normally, retaliation and discrimination charges are not [sufficiently]
like or reasonably related to one another” to permit an EEOC charge of one
type of to support a subsequent civil suit for another. Id. at 864-65 (see also
Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726–27 (7th Cir. 2003)
(concluding that sexual harassment and sex discrimination claims were not
reasonably related to the retaliation claim alleged in EEOC charge). A
retaliation claim alleged in a complaint, however, can be reasonably related to
allegations in a charge of discrimination when it is “so related and intertwined
in time, people, and substance that to ignore the relationship for strict and
technical application of the rule would subvert the liberal remedial purposes of
the Act.” Sitar, 344 F.3d at 727 (quoting Kristufek, 985 F.2d at 368). This
approach takes into account the fact that many Title VII plaintiffs file an EEOC
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charge without legal assistance, Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188,
1195 (7th Cir. 1992), but does not allow a plaintiff to “circumvent the EEOC’s
investigatory and conciliatory role and deprive the charged party of notice of
the charge.” Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988)
(quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)).
In this case, the plaintiff’s EEOC charge states the he began working for
the defendant in July 2014. Dkt. No. 8-1 at 2. He claims to have been injured
in February 2015, after which he “was reassigned to work alone in a room that
was like a box and smelled horrible. Sherry (LNU) in HR told me that I couldn’t
use a certain bathroom or the break room. I was not allowed to talk to other
workers or have them talk to me.” Id. At some point, the plaintiff reported that
treatment to HR, and “Sherry laughed and said it was an inside joke.” Id. Later,
the plaintiff overheard an assistant manager named Russ call him “a n-r” when
talking to Quinn. Id. The plaintiff stated that “[i]n April or May 2015, [he] found
a hand-written note written by Russ stating, ‘Want [sic] you leave n-r’ and a
picture of a swastika.” Id. The plaintiff “showed the note to Sherry and she
laughed saying it was an inside joke.” Id. The plaintiff asserted that he had
been discriminated against on the basis of his race, age and disability. Id.
In his subsequent civil complaint, the plaintiff alleged that the defendant
discriminated against him based on his race, age and disability. The plaintiff
alleged that he was employed by the defendant from October 2014 until June
29, 2015. Dkt. No. 1 at ¶¶4, 9. He alleged that he could perform all of the
functions, duties and responsibilities of his job at all relevant times. Id. at ¶11.
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In February 2015, the plaintiff suffered a work-related back injury and was
instructed by his physician to take the day off before returning to work, and to
follow work restrictions when he returned to his job. Id. at ¶12. The plaintiff
returned to his job to deliver his work restrictions, and he was told by an HR
representative “to go home for the day.” Id. at ¶14. A plant manager, Russ
Detiege, allegedly called the plaintiff later that night, displeased with the
plaintiff for having left work. Id. at ¶15. Detiege told the plaintiff he was “not
going to get paid for sitting at home.” Id.
The plaintiff returned to work the following day and was met with a box
containing screws and bolts. Id. at ¶16. He was instructed to sort the parts into
bags, and did so for four hours before leaving to go home. Id. The next day, the
plaintiff arrived at work and overheard Detiege tell another employee, Quinn
Guzman, to “keep tearing the bags open and let that Ol’ Nigger keep counting
them over and over until he gets tired of it.” Id. at ¶17. The plaintiff alleges that
he was subjected to this routine for approximately one and one-half months.
Id. at ¶19.
The plaintiff alleges that on or about April 15, 2015, the defendant began
to subject him to new and different abuses. An HR representative, Sheri
Brandt, met the plaintiff at work and told him that he would be working in a
different room. Id. at ¶20. This room was a small room with no interior lighting
and a rancid smell, which, until the defendant asked the plaintiff to use it as a
sorting room, had been used only as a passageway. Id. at ¶¶20-21. Upon
opening one of the boxes of screws and bolts, the plaintiff found an note stating
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“‘Want [sic] you Just Leave niGGer’ [sic] followed by an image of a swastika.” Id.
at ¶22. The plaintiff alleges that he reported the note to Brandt, who asked the
plaintiff to wait while she notified to Detiege. Id. at ¶23. Brandt asked the
plaintiff to write a statement regarding the note, and while he was doing so, the
plaintiff heard Brandt and Detiege laughing. Id. The plaintiff asked why they
were laughing, and they replied “that it was an inside joke.” Id. The defendant
allegedly took no action in response to the note he had found in the box. Id. at
¶25.
A few days later, the plaintiff was informed by the HR representative and
the plant manager that he no longer would be able to use the break room to get
food or water, or to use the telephone. Id. at ¶27. Instead, he would need to ask
another person to enter the break room to get those things for him. Id. After
that, the plaintiff’s co-workers began to tell him that they could not speak with
him. Id. at ¶29. The plaintiff alleged that he “was effectively segregated from all
other employees. He was not invited to any employee trainings or special
events. He was not even allowed on the floor or in the break room.” Id. at ¶30.
Around April 23, 2015, the plaintiff visited his physician. Id. at ¶34. The
plaintiff’s physician showed the plaintiff an email from Detiege, in which
Detiege allegedly asked the plaintiff’s physician to discontinue the plaintiff’s
work restrictions. Id. The plaintiff also reported to his physician that, despite
his work restrictions, the defendant was requiring the plaintiff to lift and pull
heavy boxes. Id. at ¶35. Detiege somehow learned that the plaintiff had told his
physician that the defendant was not accommodating the plaintiff’s work
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restrictions, and warned the plaintiff that he as “no right to be telling this
doctor what’s going on with this company.” Id. at ¶37. The plaintiff then was
reassigned to work under a supervisor named Amy Carpenter, who allegedly
subjected him to racist insults, such as calling him “boy.” Id. at ¶¶39-41.
The plaintiff reported Carpenter’s statements to HR personnel. Id. at ¶42.
On June 29, 2015, the plaintiff discussed his work restrictions with an HR
representative, who allegedly told the plaintiff “to go home and rest,” and that
“he should never have returned to work until he was one hundred percent
(100%) healed.” Id. at ¶43. She also allegedly told the plaintiff not to contact an
attorney, because she would “handle it.” Id. at ¶45. The plaintiff alleges that he
has had no further communication with the defendant, and is receiving no pay
or benefits. Id. at ¶45.
The allegations supporting the plaintiff’s retaliation and discrimination
claims are “so related and intertwined in time, people, and substance that to
ignore the relationship for strict and technical application of the rule would
subvert the liberal remedial purposes of” Title VII. Kristufek, 985 F.2d at 368.
The two claims arise out of a common factual basis. The three individuals
named in the plaintiff’s EEOC charge (Russ, Quinn, and “Sherry”) are named in
the plaintiff’s complaint, and two of whom (Russ and “Sheri”) play integral roles
in the plaintiff’s retaliation claim.2 As alleged in the complaint, certain of the
The plaintiff’s EEOC charge refers to a “Sherry” as a representative of the
defendant’s HR department, while he refers to a “Sheri” in his complaint. At
this stage, the court has no basis to conclude that “Sherry” and “Sheri” are
different persons; this discrepancy likely is nothing more than a spelling
mistake in one of the documents.
2

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defendant’s adverse actions against the plaintiff (isolating the plaintiff from his
co-workers and forbidding him from using the break-room or the telephone)
occurred soon after the plaintiff complained to the defendant’s HR department
regarding Detiege’s racist note, a protected activity. E.g., Castro v. DeVry Univ.,
786 F.3d 559, 564 (7th Cir. 2015) (“Plaintiffs sincerely and reasonably believed
they were complaining about conduct prohibited by Title VII, which is all that is
required to establish protected activity.”). “That should have been enough even
in a perfunctory investigation of the charges to have revealed the retaliation
aspect as part of the whole.” Kristufek, 985 F.2d at 368. The similarities
between the plaintiff’s EEOC charge and the more detailed allegations in the
complaint lead the court to conclude that the allegations of retaliation alleged
in the complaint could reasonably be expected to grow out of an EEOC
investigation of the allegations in the plaintiff’s EEOC charge. The court
concludes that the plaintiff adequately exhausted his administrative remedies
before filing his complaint in federal court.
III.

CONCLUSION
Accordingly, the court GRANTS the plaintiff’s motion to proceed in forma

pauperis, and WAIVES the filing fee associated with the complaint. Dkt. No. 2.

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The court DENIES the defendant’s motion to dismiss the plaintiff’s retaliation
claim. Dkt. No. 8.
Dated in Milwaukee, Wisconsin this 19th day of September, 2016.

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