Mollet v. City of Greenfield
Filing
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DECISION AND ORDER signed by Judge Lynn Adelman on 4/4/17 denying 6 Motion to Dismiss. Pursuant to the plaintiff's request, his claim of age discrimination is dismissed. (cc: all counsel) (gc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES A. MOLLET,
Plaintiff,
v.
Case No. 16-C-1145
CITY OF GREENFIELD (FIRE
DEPARTMENT),
Defendant.
______________________________________________________________________
DECISION AND ORDER
James Mollet has filed a complaint alleging that the City of Greenfield retaliated
against him for opposing discrimination in the workplace, in violation of Title VII of the
Civil Rights Act of 1964, and also discriminated against him because of his age, in
violation of the Age Discrimination in Employment Act (“ADEA”). Before me now is the
defendant’s motion to dismiss the complaint for failure to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b)(6).
I. BACKGROUND
The plaintiff’s complaint alleges the following.
Between March 6, 1995 and
March 23, 2013, the plaintiff was employed as a firefighter/paramedic with the City of
Greenfield Fire Department.
At the time of the events giving rise to this suit, the
plaintiff’s title was Battalion Chief.
On February 9, 2012, the plaintiff told his superiors, Chief John Cohn and
Assistant Chief George Weber, that there had been an incident at the fire station during
which a Latino firefighter, Cesar Hernandez, was harassed based on his ethnicity. The
incident was that someone had put up posters around the fire station depicting a picture
of the Mexican flag with the words “Border Control” written on it. When the plaintiff
brought this incident to Cohn’s and Weber’s attention, Weber told the plaintiff to
investigate the matter, which he did. After conducting the investigation, the plaintiff
reported to Cohn and Weber that another Battalion Chief, Shawn Hammernik, was
aware of the incident and had a picture on his telephone of one of the offensive posters.
The plaintiff alleges that, after he submitted his report on the incident, Cohn and
Weber began to treat him negatively.
Among other things, they “criticiz[ed] [his]
communication skills, especially as those skills relate to texting.” Compl. ¶ 17. They
also removed him from certain roles in the department, including training and mentoring
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roles. They also repeatedly told him that his job was in jeopardy.
Eventually, the
plaintiff complained about Cohn’s and Weber’s actions to the City’s Human Resources
Director. He also complained to Human Resources about the incident involving the
Mexican flag and the harassment of Hernandez. Id. ¶ 21. Cohn eventually learned that
the plaintiff had complained to Human Resources.
Id. ¶ 33.
At some point after
learning about his meeting with Human Resources, Cohn told the plaintiff that he must
either “change or ‘get off the bus.’” Id. ¶ 34. Cohn also told the plaintiff that he did not
trust him anymore, and that he was going to either demote or discharge him. At this
point, the plaintiff began to look for new employment.
On February 19, 2013, the plaintiff informed Weber that he had a job offer from
another fire department that was conditioned on his passing physical and psychological
examinations. The plaintiff told Weber that if he passed these exams, he would resign
from the Greenfield Fire Department. He did not, however, tender his resignation at that
time.
A few days later, Cohn wrote the plaintiff a letter purporting to “accept” his
resignation and informing him that his last day of employment would be February 24,
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2013. After the plaintiff informed Cohn that he had not actually tendered his resignation,
Cohn stated that, nonetheless, the plaintiff’s last day of employment with the
department would be February 24th.
However, Cohn eventually rescinded the
discharge and placed the plaintiff on paid leave pending the outcome of the conditional
offer of employment. Thereafter, Cohn and Weber contacted the plaintiff several times
and told him that if he decided to continue his employment with the department he
would be demoted or discharged.
By March 2013, the plaintiff had obtained a position with another fire department
and resigned from the Greenfield Fire Department. He alleges that his new position
paid a lower salary and came with fewer benefits.
The plaintiff’s complaint alleges that Cohn’s and Weber’s actions, which
eventually resulted in his constructive discharge, constitute retaliation for the plaintiff’s
opposing discrimination in the workplace, in violation of Title VII. Compl. ¶ 45. The
complaint also alleges that Cohn’s and Weber’s actions constitute age discrimination, in
violation of the ADEA. However, in response to the defendant’s motion to dismiss, the
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plaintiff withdrew his claim of age discrimination.1 Thus, the only question is whether
the complaint states a claim for retaliation under Title VII.
II. DISCUSSION
To plead a retaliation claim under Title VII, a plaintiff must allege that he engaged
in statutorily protected activity and was subjected to an adverse employment action as a
result of that activity. Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th Cir.
2013).
The plaintiff must also “provide some specific description of [the protected]
conduct beyond the mere fact that it is protected.” EEOC v. Concentra Health Servs.,
Inc., 496 F.3d 773, 781 (7th Cir. 2007).
In the present case, the plaintiff has sufficiently pleaded a claim for retaliation.
First, the complaint describes the protected activity. Specifically, the complaint alleges
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The plaintiff asks that I dismiss the age-discrimination claim without prejudice to his
amending his complaint to renew the claim after discovery has begun, in the event that
he discovers information indicating that the defendant’s actions were motivated by his
age. The defendant contends that the dismissal of the age-discrimination claim should
be with prejudice. However, at this point, I need not specify whether the dismissal is
with or without prejudice. Rather, I will simply dismiss the claim based on the plaintiff’s
request that I do so. If I eventually dismiss this entire suit on the merits, then the agediscrimination claim will be within the preclusive effect of the final judgment. However,
so long as this case is pending, the plaintiff may file a motion to amend his complaint
under Federal Rule of Civil Procedure 15 to add a claim of age discrimination. I will
determine whether the plaintiff may amend the complaint if and when he files such a
motion.
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that the plaintiff “reported” to his superiors, Cohn and Weber, that a Latino firefighter
was subjected to harassment on the basis of his ethnicity when posters depicting a
Mexican flag with the words “Border Control” written on it were hung in the fire station.
The plaintiff also reported that another Battalion Chief had photos of the poster on his
phone. The defendant seems to contend that the complaint does not allege that the
plaintiff’s report qualified as a “complaint” about discrimination in the workplace or
“opposing discrimination in the workplace.” It is true that the complaint does not use
these exact phrases but instead alleges only that the plaintiff “reported” the harassment
to his supervisors. However, why would the plaintiff’s report not qualify as a complaint
or as opposition to discrimination in the workplace? The only reason to report the
incident would be to prevent it from occurring again. Thus, a reasonable inference to
draw from the complaint is that the plaintiff’s report was a complaint about the flag
incident and the other Battalion Chief’s invovlement.
The complaint also sufficiently alleges that the plaintiff was subjected to an
adverse employment action because of his complaint about the flag incident.
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Specifically, the complaint alleges that soon after he made his report about the incident
and the other Battalion Chief’s involvement, his supervisors began to treat him
negatively by, for example, criticizing his communication skills and removing him from
training and mentoring roles.
The complaint alleges that this negative conduct
escalated to the point where Cohn threatened to demote or discharge the plaintiff if he
did not leave the department. The complaint also alleges that because of these threats,
the plaintiff resigned from the department to take a job elsewhere and thus was
constructively discharged.
The defendant points out that the plaintiff has not specifically alleged that Cohn
and Weber’s negative treatment of him was caused by his report about the flag incident
and the other Battalion Chief’s involvement. However, a causal relationship is clearly
implied by the complaint, in that the complaint alleges that this negative treatment
began immediately after the plaintiff made his report. Moreover, the plaintiff specifically
alleges that he is suing the defendant for retaliation.
What else could the alleged
retaliation be for than the plaintiff’s complaint about the flag incident and the other
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Battalion Chief’s involvement? In short, the defendants have all of the information they
need to begin to investigate the plaintiff’s claim and prepare a defense. They know
what the alleged protected activity is (the plaintiff’s report about the flag incident and the
Battalion Chief’s involvement) the identities of the alleged retaliators (Cohn and Weber)
and what the adverse employment action consisted of (Cohn and Weber’s negative
treatment of the plaintiff and his eventual constructive discharge). See Luevano, 722
F.3d at 1028 (stating that the complaint merely needs to give the defendant sufficient
notice to enable it to begin to investigate and prepare a defense).
The defendant also contends that the plaintiff’s allegations do not give rise to a
plausible claim of retaliation. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007). I disagree. The plaintiff alleges that his superiors
began to criticize his actions and threaten to demote or discharge him soon after he
reported the flag incident and the Battalion Chief’s involvement, which raises a plausible
inference that the reason for his superiors’ actions was to retaliate against him because
of his report.
See, e.g., Diadenko v. Folino, 741 F.3d 751, 756 (7th Cir. 2013)
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(explaining that adverse actions that follow close on the heels of protected activity can
give rise to an inference of retaliation). This is enough to “present a story that holds
together,” which is all that the plaintiff needs to do to plead a plausible claim of
employment discrimination. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.
2010).
The plaintiff does not need to present evidence to support his claims or to
allege facts that satisfy the McDonnell-Douglas burden-shifting framework. Luevano,
722 F.3d at 1028. Accordingly, the plaintiff has stated a claim for retaliation under Title
VII.
For the reasons stated, IT IS ORDERED that the defendant’s motion to dismiss
the complaint is DENIED.
IT IS FURTHER ORDERED that, pursuant to the plaintiff’s request, his claim of
age discrimination is DISMISSED.
Dated at Milwaukee, Wisconsin, this 4th day of April, 2017.
_s/Lynn Adelman__________
LYNN ADELMAN
United States District Judge
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