Moton v. Park Place Hospitality LLC
ORDER signed by Judge Pamela Pepper on 3/25/2019 DENYING without prejudice 15 defendant's motion to dismiss. (cc: all counsel, via mail to Ned Moton) (cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NED LEE MOTON,
Case No. 17-cv-178-pp
PARK PLACE HOSPITALITY LLC,
ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S MOTION TO
DISMISS (DKT. NO. 15) AND SETTING SCHEDULING CONFERENCE
The plaintiff, representing himself, filed a complaint against Park Place
Hospitality, LLC. Dkt. No. 1. According to the plaintiff, the defendant
discriminated against him and “showed bias in job placement.” Id. at 2. The
plaintiff attached to the complaint a Notice of Suit Rights from the Equal
Employment Opportunity Commission, dkt. no.1-1, but did not state any facts
to support his claim that the defendant had discriminated against him. Dkt.
No. 1. The court allowed the plaintiff to amend the complaint to allege “the
specific facts that are relevant to the claims he seeks to bring against the
defendant and the type of discrimination he believes he has suffered.” Dkt. No.
3. The plaintiff took that opportunity and filed an amended complaint, dkt. no.
5; the court screened it, granted the plaintiff’s motion to proceed without
prepaying the filing fee and ordered the U.S. Marshal to serve a copy of the
amended complaint on the defendant, dkt. no. 6. The defendant has filed a
motion to dismiss the amended complaint for lack of subject matter
jurisdiction under 12(b)(1) and for failure to provide a short and plain
statement of his claims in numbered paragraphs under Federal Rules of Civil
Procedure 8 and 10(b). Dkt. No. 15. Because the court has subject matter
jurisdiction over the plaintiff’s federal law claims, the court will deny the
motion to dismiss without prejudice.
Legal Standard Governing Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a
federal court's lack of subject-matter jurisdiction. When reviewing a Rule
12(b)(1) motion, the court accepts as true all well-pleaded factual allegations
and draws all reasonable inferences in favor of the plaintiff. St. John's United
Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007) (quoting
Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999)). The court
may look beyond jurisdictional allegations and view whatever evidence has
been submitted on the issue to determine whether subject matter jurisdiction
A motion to dismiss under Rule 12(b)(6) asserts that the allegations in
the complaint do not state a claim for which a federal court may grant relief.
Under Rule 8(a)(2), a complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The “short and plain statement” required by Rule 8(a)(2) must “give the
defendant fair notice of what the claim is and the grounds upon which it rests.”
Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Under federal
pleading standards, a plaintiff’s “factual allegations must be enough to raise a
right to relief above the speculative level.” Id., 550 U.S. at 555. Rule 10(b)
requires a party to state its claims in numbered paragraphs, each limited to a
single set of circumstances. Fed. R. Civ. P. 10(b).
The plaintiff alleges that he worked at Hilton Garden Inn from July 6,
2006 to October of 2013. Dkt. 5 at 3. He says that on October 11, 2013, the
general manager and his assistant called the plaintiff into their office and told
him that he could no longer drive the hotel van because of a report received
from the insurance company. Id. The plaintiff admits that he lost his license on
April 13 for operating while intoxicated, but he says that he did not lose his
driving privileges. Id. He says that he was able to get an occupational license as
a first-time offender and that he paid two thousand dollars to get his license
back. Id. The plaintiff did not tell the defendant about the conviction because
he believed he could drive the hotel van with an occupational license. Id.
The plaintiff takes issue with the defendant’s characterization that he
“walked off the job.” Id. at 4. According to the plaintiff, another driver (twentyfive years old and Caucasian) lost his license at the same time but kept his job.
Id. at 4. To explain why he is “claiming discrimination or at the very least
favoritism in job placement” and why he feels that the other driver was treated
better, id. at 1, the plaintiff references “original forms where Administrative
Judge John Gehlhard said there’s no proof that I was offered any job offers,”
and “Findings of Fact,” id. at 4. He asks the court to check various pages of
these forms and findings. Id. The plaintiff is sixty-six years old and African
American. Id. at 5.
The plaintiff attached twelve pages of documents to the amended
complaint; they appear to consist of paperwork he received from the State of
Wisconsin Division of Workforce Development’s Equal Rights Division (“ERD”)
and the State of Wisconsin Labor and Industry Review Commission (“LIRC”). Id.
at 6-12. The documents do not appear to be complete—he filed only certain
pages of each document—and he did not file the excerpts in chronological
order. From what the court can tell, the plaintiff filed a complaint with the ERD
on July 2, 2014, alleging race and age discrimination. Dkt. No. 5-1 at 6. The
ERD issued an initial determination of no probable cause on October 20, 2014.
Id. The plaintiff appealed the initial determination and the administrative law
judge conducted a hearing on November 11, 2015. Id. at 6. The administrative
law judge found that the plaintiff fell within the protected group because of his
race and age, but that the defendant discharged the plaintiff because of his
driving record and lack of insurability. Id. at 1. The administrative law judge
did not find support for the defendant’s position that they offered him
alternative jobs when he could no longer drive the van. Id.
The plaintiff received a notice of right to sue from the EEOC on November
7, 2016. Dkt. No. 1-1. This notice advised the plaintiff that he had ninety days
to file a suit under federal law (Title VII or the Age Discrimination in
Employment Act) in federal or state court. Id. The plaintiff filed this lawsuit on
February 7, 2017. Dkt. No. 1.
The defendant asserts that the complaint does not allege “any facts that
plausibly suggest [the defendant] terminated his employment because of his
race or age.” Dkt. No. 16 at 1. It also argues that the plaintiff appears to be
trying to appeal the decisions of the ERD and the LIRC to this court, and that
this court does not have subject-matter jurisdiction to review those decisions.
The defendant’s Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction is based on the defendant’s view that the amended complaint
contains nothing more than an attack on the ERD and LIRC’s findings. The
court concedes that that is one possible interpretation of the plaintiff’s claims.
Wisconsin has a Fair Employment Act that prohibits discrimination in the
terms, conditions, or privilege of employment because of age or race. Wis. Stat.
§§111.31-111.395. The act provides that the Department of Industry, Labor
and Human Relations shall administer its provisions, and gives the department
authority to investigate complaints of discrimination, hold hearings, and to
order relief, including back pay. See Wis. Stat. §§111.375 and 111.39. A
complainant may file a charge with the ERD within three hundred days from
the date the alleged discriminatory act took place. Wis. Stat. §111.39. An
investigator within the ERD makes an initial determination of probable cause
or no probable cause. Wis. Admin. Code §§DWD 218.06 and 218.07. If
dissatisfied with the result, the complainant may request a hearing. §DWD
218.08(2). The complainant then may appeal the decision to the LIRC within
thirty days. §§DWD218.20(2) and 218.21. That decision may be appealed to the
Wisconsin Circuit Court, Wis. Stat. §§111.395 and 227.52(7), and the
Wisconsin Court of Appeals, Wis. Stat. §227.85. The complainant also may file
a charge with the EEOC three hundred days after the date of the alleged
unlawful practice or within thirty days after a final determination by the ERD.
42 U.S.C. §2000e-5(e)(1).
It looks like the plaintiff availed himself of these processes, or at least
part of them. The defendant states, without a single citation of authority, that
this court does not have the authority to review the decisions of the ERD or the
LIRC. The ERD and the LIRC have limited jurisdiction; they cannot hear and
decide claims under federal anti-discrimination statutes. Staats v. Cty. of
Sawyer, 220 F.3d 511, 516 (7th Cir. 2000). What the defendant should have
argued, but didn’t, is preclusion—that the fact that the ERD and the LIRC
decided the plaintiff’s claims precludes this court from considering them.
Whether the ERD decision has preclusive effect in federal court is a
complicated question—it depends on what facts were presented to the ERD,
and what specific issues the ERD decided. See, e.g., University of Tenn. v.
Elliott, 478 U.S. 788, 795-96 (1986) (holding that unreviewed state
administrative claims do not have preclusive effect on Title VII claims); Brown
v. Kraft Foods Global, Inc., Case No. 11-cv-462, 2011 WL 3477087 (E.D. Wis.
Aug. 9, 2011) (finding that an ERD decision did not have preclusive effect
because the ERD had not made a finding on one of the plaintiff’s allegations).
The same is true of an LIRC decision. See Staats, 220 F.3d 511 (7th Cir. 2000).
Because this court does have jurisdiction to decide claims under federal antidiscrimination statutes unless those claims are precluded, 28 U.S.C. §1331,
the defendant’s subject-matter jurisdiction argument fails.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
to discharge or otherwise discriminate against any person in the terms or
conditions of employment because of race. 42 U.S.C. §2000e(2)(a)(1). The Age
Discrimination in Employment Act prohibits discrimination in the terms or
conditions of employment on the basis of age. 29 U.S.C. §623(a)(1). There are
certain prerequisites to bringing a discrimination claim under Title VII: a
plaintiff must timely file a charge and receive a right to sue letter from the
EEOC. 42 U.S.C. §2000e-5(b), (e), and (f). Once the plaintiff receives a right to
sue letter, he or she has ninety days bring suit in federal court. 42 U.S.C.
§2000e-5(f)(1). The ninety days begins to run when the plaintiff or his attorney
has actual receipt of the notice. Thread-gill v. Moore U.S.A., Inc., 269 F.3d 848,
850 (7th Cir. 2001).
“In a motion based on Fed. R. Civ. P. 12(b)(6), the question before the
Court is whether any set of facts consistent with the complaint would give [the
plaintiff] a right to relief.” Brown, 2011 WL 3477087 at *2 (citing Brooks v.
Ross, 578 F.3d 574, 579 (7th Cir. 2009)). The plaintiff here has alleged a set of
facts that might give him a right to relief in federal court. He has alleged that
the defendant terminated him but did not terminate another driver who was
younger and Caucasian. He also has alleged that the defendant lied about the
plaintiff “walking away” from the job and leaving the building. Dkt. No. 5 at 1.
The Seventh Circuit has stated, “on numerous occasions, that a plaintiff
alleging employment discrimination under Title VII may allege these claims
quite generally.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
The plaintiff has stated a claim for violations of federal anti-discrimination
statutes. He also appears to have satisfied the prerequisites for such a claim;
he attached to the original complaint the EEOC’s notice of right to sue letter,
and he appears to have timely filed his federal complaint.1 The defendant’s
Rule 12(b)(6) argument also fails.
There may be reasons the plaintiff cannot prevail on the claims in the
amended complaint, but at this early stage and in the context of a motion to
dismiss, the court takes the plaintiff’s allegations as true. The court will deny
the motion to dismiss, and will calendar a scheduling conference by separate
The court DENIES the defendant’s motion to dismiss without prejudice.
Dkt. No. 15.
Dated in Milwaukee, Wisconsin this 25th day of March, 2019.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
The ninety days is computed under the Federal Rules of Civil Procedure, so
weekends and holidays are included in that period. Grzanecki v. Bravo Cucina
Italiana, 408 Fed. App’x. 993, 996 (7th Cir. 2011). The EEOC issued the notice
of right to sue on November 7, 2016; the plaintiff filed the complaint on
February 7, 2017. Dkt. No. 1.
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