Ferguson v. Nissen Staffing Continuum Inc et al

Filing 28

ORDER signed by Judge Pamela Pepper on 3/27/2018. 14 Defendant Nissen Staffing Continuum's motion to dismiss GRANTED. 20 Defendant BuySeason's motion to dismiss GRANTED to the extent that it is based on failure to state a claim and fai lure to seek relief against the defendant. By end of day 4/27/2018 plaintiff must file amended complaint if he wishes to proceed on claims of race and age discrimination under Title VII; failure to file will result in dismissal for failure to diligently prosecute. (cc: all counsel, via mail to Tyrone Ferguson--with EDWI guide and non-prisoner complaint form) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TRYONE FERGUSON, SR.,
Plaintiff,
v.

Case No. 17-cv-198-pp

NISSEN STAFFING CONTINUUM, INC.
and BUYSEASONS, INC.,
Defendants.
ORDER GRANTING DEFENDANT NISSEN STAFFING CONTINUUM, INC.’S
MOTION TO DISMISS (DKT. NO. 14), GRANTING DEFENDANT BUY
SEASONS, INC.’S MOTION TO DISMISS (DKT. NO. 20),
AND GRANTING THE PLAINTIFF LEAVE TO FILE AN AMENDED
COMPLAINT BY APRIL 27, 2018

On February 14, 2017, the plaintiff, who is representing himself, filed a
complaint alleging various claims, including race and age discrimination. Dkt.
No. 1. Both defendants filed motions to dismiss. Dkt. Nos. 14, 20. Defendant
Nissen Staffing Continuum, Inc. moves to dismiss for lack of subject matter
jurisdiction as to the forgery claim, and failure to state a claim on all remaining
claims. Dkt. No. 14. Defendant BuySeasons, Inc. joins in Nissen’s motion to
dismiss, but also moves to dismiss because the plaintiff’s prayer for relief did
not mention BuySeasons, and because BuySeasons alleges that it has not been
properly served with a summons and complaint. Dkt. No. 20. The plaintiff has
not responded to the motions to dismiss. The court will grant the motions to

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dismiss, but will give the plaintiff the opportunity to file an amended
complaint.
I.

Defendant Nissen Staffing Continuum’s Motion to Dismiss
(Dkt. No. 14)
A.

Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a complaint must
provide a “short and plain statement of the claim” showing that the pleader
merits relief, Fed. R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the
claim “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)). A
complaint must also contain “sufficient factual matter” to state a facially
plausible claim to relief—one that “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This
plausibility standard “asks for more than a sheer possibility” that a defendant
acted unlawfully. Boucher, et al. v. Finance System of Green Bay, Inc., 880
F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). A plaintiff's
failure to respond to an argument raised in a motion to dismiss forfeits any
argument on that issue. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th
Cir. 2011) (“[A] litigant effectively abandons the litigation by not responding to
alleged deficiencies in a motion to dismiss.”); Lekas v. Briley, 405 F.3d 602,
614 (7th Cir. 2005).

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B.

The Complaint

The plaintiff begins his complaint by alleging that Nissen and
BuySeasons violated “Title VII of the Civil Rights Act of 1964” and the “Age
Discrimination Act of 1975.” Dkt. No. 1 at 1. The plaintiff says that on August
16, 2016, he filed two separate charges with the Equal Employment
Opportunity Commission (“EEOC”). Id. at 2. He says that in these charges, he
alleged that he was discriminated against on the basis of his age (he is almost
56), and that he was fired in violation of the Age Discrimination in Employment
Act. Id.
The plaintiff next says that on December 19, 2016, several months after
he filed the EEOC charges, he filed a formal written request with the EEOC,
asking for “all documents.” Id. He alleges that it was then that he discovered
that defendant Nissen had forged his signature on a document that stated that
the applicant understood Nissen’s policies and procedures regarding
employment. Id. (citing Dkt. No. 1-1 at 1, “Exhibit 1”). The plaintiff alleges that
this forgery violated the Forgery and Counterfeiting Act of 1981 (“an Act of the
Parliament of the United Kingdom”). Id.
The plaintiff then discusses a standup forklift test, and points the court
to a series of recordings that he submitted as exhibits to the complaint. Id. In
this section of the complaint, the plaintiff says that one of Nissen’s recruiters,
Luis Rodriguez, was “Latin America,” and that although Rodriguez was late
several times, Nissen never fired Rodriguez. Id. at 3. The plaintiff says that
Nissen also did not fire Rodriguez’s son son, who is “between 26 and 29 years
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old.” Id. The plaintiff alleges that his is an African American who, at the time,
was 54 years old, and that his work was so outstanding that Nissen and
BuySeasons asked him to come “back to work for BuySeasons.” Id.
The plaintiff continues over the next two pages by describing
conversations he had with Rodriguez (and a few others, but mostly
Rodriguez)—it appears to the court that all of these conversations related to the
plaintiff trying to get Nissen to place him at BuySeasons. Id. at 3-4.
After returning to his claim that Nissen forged his signature on Exhibit 1,
id. at 5, the plaintiff alleges that he is filing suit to “correct unlawful
employment practices on the basis of race, sex and age discrimination,” id. He
also alleges that forgery is a crime under Wisconsin law “punished as a Class H
felony.” Id. In his prayer for relief, he asks the court to issue an injunction
against Nissen, preventing Nissen from taking various actions against him. Id.
He also seeks compensation for past and future “pecuniary and non-pecuniary
losses resulting from the unlawful and intimidating employment practices.” Id.
The plaintiff attached a number of items to the complaint, including the
document that allegedly has the plaintiff’s signature forged on it, dkt. no. 1-1
at 1; a letter from Lori Gengler at Nissen Staffing Continuum stating that the
plaintiff “is no longer working through our agency,” id. at 2; and his notices of
right to sue letter from the EEOC, id. at 3-4. He also filed with the court an
audio disc containing a series of unauthenticated, recorded telephone phone
calls; the plaintiff asserts that these calls are from him to Rodriguez, Mr.
Gamboe (a supervisor) and Mr. Duke to find out why he was not supposed to
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report to work. Dkt. No. 1, CD on file. As the court noted above, the plaintiff
referenced the conversations on the CD numerous times in the complaint.1 Id.
at 3-4.
C.

Plaintiff’s Claims

In its screening order, the court allowed the plaintiff to proceed only on
his employment discrimination claims against both defendants on the basis of
race and age under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
§2000e et seq., and on the basis of age under the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. §621 et seq. Dkt. No. 4 at 3.
Despite that fact, the defendants have moved to dismiss all of the claims the
plaintiff appears to have been trying to raise: (1) race and sex discrimination
under Title VII; (2) race and sex discrimination under Title I; (3) age
discrimination; (4) fraud or forgery under the Forgery and Counterfeiting Act of
1981; (5) fraud or forgery under Wis. Stat. §943.38; and (6) defamation.
1.

Plaintiff’s Claims for Forgery and Counterfeiting Act of 1981

The plaintiff asserted that the alleged forgery of his name on Exhibit 1
violated the “Forgery and Counterfeiting Act of 1981;” according to the plaintiff,
this is an “Act of the the Parliament of the United Kingdom which makes it
illegal to make fake versions of many things, including legal documents,
contracts, audio and visual recordings, and money of the United Kingdom and
certain protected coins.” Dkt. No. 1 at 4. As far as the court can tell, the
For purposes of a Rule 12(b)(6) motion, the pleadings “consist generally of the
complaint, any exhibits attached thereto, and supporting briefs.” Thompson v.
Ill. Dep't of Prof. Regulation, 300 F.3d 750, 753 (7th Cir. 2002).
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plaintiff is asserting that the alleged forgery of his name violates a statute from
the country of England.
Federal district courts have limited jurisdiction. District courts have
original jurisdiction over civil case arising under the Constitution, laws or
treaties of the United States, 28 U.S.C. §1331, and cases in which the amount
in controversy exceeds $75,000 and involves citizens of different states (or
citizens of a state and subjects of a foreign state), 28 U.S.C. §1332. The
plaintiff’s allegation that Nissen violated a statute from England do not arise
under the Constitution, the laws or any treaties of the United States. That
means the court does not have what is known as “federal question” jurisdiction
over that allegation. The plaintiff lives in Milwaukee, Wisconsin, and alleges
that Nissen (the defendant who he claims committed the forgery) operates a
“staffing corporation” “headquartered in Waukesha, Wisconsin.” In other
words, the plaintiff has sued a defendant who lives in the same state that he
lives in. This means that the court does not have what is known as “diversity
jurisdiction” over the plaintiff’s forgery claim against Nissen.
Because the court does not have jurisdiction over the plaintiff’s claim
that Nissen forged his name in violation of a statute from the country of
England, the court will grant the defendants’ motion to dismiss that claim.
2.

Plaintiff’s Claim of Sex Discrimination in violation of Title VII
and Title I

On the last page of his complaint, the plaintiff said that he had filed his
lawsuit to “correct unlawful employment practices” on the basis of sex
discrimination under Title VII of the Civil Rights Act of 1964 and Title I of the
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Civil Rights Act of 1991. Dkt. No. 1 at 5. The plaintiff did not raise a sex
discrimination claim in his EEOC complaints; he alleged only discrimination
based on race (African American) and age.2 Before a plaintiff can bring a Title
VII sex discrimination claim in federal court, he first must file a charge with the
EEOC, “and the EEOC must issue a right-to sue letter.” Conner v. Ill. Dept. of
Natural Resources, 413 F.3d 675, 680 (7th Cir. 2005) (citing Hentosh v.
Herman M. Finc. Univ. of Health Scis./The Chi. Med. Sch., 167 F.3d 1170,
1173 (7th Cir. 1999)). “Generally, ‘a Title VII plaintiff cannot bring claims in a
lawsuit that were not included in [his] EEOC charge.’” Lavalais v. Vill. of
Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013). Because the plaintiff did not
include a sex discrimination allegation in his EEOC complaints, he cannot
pursue a sex discrimination claim in this lawsuit.
In addition, none of the allegations in the plaintiff’s complaint state facts
that would support a sex discrimination claim. He does not allege that the
defendants refused to hire him or place him because he is a man. He does not
allege that they hired or placed equally qualified women instead of hiring or
placing him.
Finally, the plaintiff said that in addition to bring suit under Title VII, he
also was suing under Title I of the Civil Rights Act, which is codified at 42
The plaintiff attached the dismissal and notice of rights forms that he received
from the U.S. Equal Employment Opportunity Commission. Dkt. No. 1-1 at 34. Because he refers to the EEOC claim in his complaint and the claim is
central to his complaint, the fact that Nissen attached to its motion the actual
EEOC charge of discrimination form that the plaintiff filed against it (dkt. no.
15-1) does not convert the motion to dismiss to one for summary judgment.
See Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994).
2

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U.S.C. §1981a. Although Title I broadens the remedies available to a successful
Title VII litigant, it does not provide substantive rights independent of Title VII.
42 U.S.C. §1981a. The court will dismiss the plaintiff’s claims under Title I.
3.

Plaintiff’s Claim of Race Discrimination

The plaintiff states that he is suing to correct employment practices for
race discrimination under Title VII and Title I. Again, Title I does not provide an
independent substantive cause of action, and the court will dismiss the
plaintiff’s Title I race discrimination claim.
With regard to the plaintiff’s Title VII race discrimination claim: In the
absence of direct evidence (such as a defendant stating that it is firing a person
because of his race), a plaintiff alleging a Title VII race discrimination claim
must show: (1) that he is a member of a protected class, (2) that he was
qualified for the applicable positions; (3) that he was subjected to an adverse
employment act, and (4) that there is a link between the fact that he is a
member of a protected class and the fact that he suffered an adverse
employment act. McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009).
In a Title VII case, a plaintiff can generally allege the connection between
membership in a protected class and an adverse employment action. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
The plaintiff alleges: (1) that he is African American; (2) that he “was
discharged;” (3) that no one can fail a standing forklift test; (4) that his
supervisor at BuySeasons (Mr. Gamboe) had no complaints; (5) that Nissen’s
recruiter, Luis Rodriguez Sr., was Latino; (6) that Rodriguez arrived late for
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work at BuySeasons numerous times but the defendants never fired him; and
(7) that the plaintiff performed outstanding work, which prompted Luis
Rodriguez Sr. to ask the plaintiff how he felt about returning to BuySeasons.
Even if the court liberally construes the plaintiff’s allegations, the current
complaint does not state a claim against either defendant. The plaintiff does
not tell the court what specific adverse employment action he suffered. Was he
working for Nissen or BuySeasons, and then they fired him? Is he alleging that
Nissen refused to place him, or that BuySeasons refused to hire him? The
plaintiff does not say which defendant did what to him. He does not explain
what makes him believe that he was fired (or not hired or placed) because of
his race, other than to point out that Rodriguez (who is of a different race) was
late several times to BuySeasons and was not fired.
The documents the plaintiff attached to the complaint don’t help the
court. He attached the September 23, 2016 letter from Ms. Gengler saying that
the plaintiff “[was] no longer working through [Nissen].” Dkt. No. 1-1 at 2. This
doesn’t prove that the plaintiff was fired, or discriminated against, by Nissen.
Exhibit 1, the Nissen policy statement on which the plaintiff alleges someone
forged his signature, states that the applicant understands that only Nissen
can terminate the applicant’s employment, and that failure to complete an
assignment will be interpreted as the applicant’s decision to voluntarily quit.
Id. at 1. This does not shed light on what action the plaintiff believes the
defendants took against him, or why he believes they took these actions based
on his race.
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The plaintiff talks about Rodriguez being late, but does not explain why
that is relevant to his claims. Does he think that he was fired for being late,
when someone of a different race was not? He talks about passing the standing
forklift test. Does he believe that people of other races failed the test but were
placed, while he was not?
The court will allow the plaintiff to amend his complaint, to try to make
his Title VII discrimination claim clearer. In the amended complaint, he needs
to tell the court what adverse employment action he believes each of the two
defendants took against him. He must explain why he believes that the
defendants took those actions based on his race, and not for some other
reason. The plaintiff should tell the court when the adverse employment
actions took place, and where.
Along with this order, the court is sending the plaintiff a copy of the
court’s Guide to Filing Non-Prisoner Complaints, and a form complaint. If the
plaintiff chooses to file an amended complaint, he must use this form. He must
write the word “Amended” next to the word “Complaint” at the top of the first
page. He must put the case number assigned to this case—17-cv-198—in the
space under “Case Number” on the first page. The amended complaint will take
the place of the original complaint, so the plaintiff may not incorporate his
original complaint into the amended complaint.
4.

Plaintiff’s Claim of Age Discrimination

The plaintiff also asserts several times that he believes that the
defendants discriminated against him based on his age, in violation of the Age
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Discrimination in Employment Act. The ADEA protects workers forty years of
age and older, and “makes it unlawful for an employer . . . ‘to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age.’” Skiba v. Ill. Cent. R.R. Co.,
Case No. 17-2002, 2018 WL 1190856, at *5 (7th Cir. 2018) (quoting 29 U.S.C.
§623(a)(1)).
Again, in its current state, the complaint does not state a claim for age
discrimination. The plaintiff alleges that he was 54 years old at the time of the
complaint. He also alleges that Luis Rodriguez, Jr. is between 27 and 29. Other
than that, the plaintiff does not say what adverse employment actions either
defendant took against him. He does not say why he believes that they took
those actions based on his age. The court will allow the plaintiff to try to make
his age discrimination claim clearer in the amended complaint. As with his
race discrimination claim, he will need to tell the court what each defendant
did, when they did it, where they did it and why he believes they did it based
on his age.
The court emphasizes that if the plaintiff chooses to file an amended
complaint, he may bring only two claims in it: his claims of racial
discrimination and age discrimination under Title VII. He may not bring any of
the other claims the court dismisses in this order.

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5.

Plaintiff’s Claim under Wis. Stat. §943.38

It is not clear to the court whether the plaintiff was trying to assert a
claim that whoever forged his name on Exhibit 1 violated Wis. Stat. §943.38. If
the plaintiff was trying to assert that claim, however, the court will dismiss it.
Wis. Stat. §943.38 is a criminal statute. Private citizens cannot sue people
under criminal statutes. Only a state prosecutor, as a representative of the
State of Wisconsin, may bring criminal charges.
6.

Plaintiff’s Claim of Common Law Fraud

The plaintiff mentions “fraud” in some places in the complaint. Again, it
is not clear to the court whether the plaintiff is trying to bring a common-law
fraud claim, or against whom he is trying to bring it. If he was trying to allege
that the defendants committed fraud, the court will dismiss that claim because
the plaintiff has not pled his claim with particularity as required by Rule 9(b) of
the Federal Rules of Procedure. To plead a fraud claim under Wisconsin law, a
plaintiff must identify a false representation, must show that the false
representation was made with the intent to defraud and for the purpose of
inducing another to act upon it, and must show that the false statement
actually induced another to rely and act upon that representation, causing
injury or damage. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 318 n.5
(1987); see also Ollerman v. O'Rourke Co., 94 Wis.2d 17, 25 (1980).
The plaintiff alleged that Exhibit 1 to the complaint does not bear his
signature or his penmanship. This is nowhere near sufficient to allege a fraud
claim. He does not allege that the defendants made a false misrepresentation
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(or say which of them did so), knowing that it was untrue. He does not say
what the false representation was. He does not say that they intended to
induce anyone to rely on the false claim, or that anyone actually did rely on the
false claim. The court will dismiss any claim of fraud.
7.

Plaintiff’s Claim of Defamation

In his prayer for relief, the plaintiff asks the court to issue an injunction
ordering the defendants not to defame his character. The court cannot tell
whether the plaintiff was trying to bring a defamation claim, but if he was, the
court will dismiss it. In Wisconsin, a defamation claim requires (1) a false
statement concerning another (2) communicated by speech, conduct, or in
writing to someone other than the person defamed (3) that is unprivileged and
is defamatory. See Hart v. Bennet, 267 Wis. 2d 919, 941 (2003). The plaintiff
did not allege that anyone made a false statement about him that was
defamatory.
II.

Defendant BuySeasons’ Motion to Dismiss (Dkt. No. 20)
BuySeasons joined the arguments raised in Nissen’s motion to dismiss,

and the court will grant the motion for the same reasons it gave in its
discussion of Nissen’s motion. BuySeasons also asserts, however, that the
prayer for relief in the complaint does not ask for any relief against
BuySeasons, and because the plaintiff failed to properly serve BuySeasons
within ninety days and that no proof of service has been filed with the court.
Dkt. No. 20 at 2.

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BuySeasons is correct that the plaintiff did not ask for any relief against
BuySeasons. His prayer for relief asks the court to enjoin Nissen from engaging
in certain actions, and to order Nissen to pay him compensation. Dkt. No. 1 at
5. This is another basis for the court to grant BuySeasons’s motion to dismiss.
BuySeasons’s allegation that it was not properly served, however, ignores
the realities of how this pro se plaintiff’s case has proceeded, and is frankly
somewhat disingenuous.
It is true that typically, a plaintiff has the burden to make a prima facie
showing that he effected proper service when the defendant has challenged
sufficiency of service under Rule 12(b)(5). A plaintiff’s pro se status doesn’t
excuse his failure to comply with procedural rules. McMasters v. United States,
260 F.3d 814, 818 (7th Cir. 2001). Rule 4 says that a plaintiff must complete
service within ninety days of the filing of the complaint. Fed. R. Civ. P. 4(m). A
plaintiff serving a corporation must effectuate that service (1) in a manner
prescribed under Wisconsin law or (2) “by delivering a copy of the summons
and of the complaint to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service of process and . . .
by also mailing a copy of each to the defendant.” Fed. R. Civ. P. 4(h)(1). Under
Wis. Stat. §180.0504, a corporation’s registered agent is the agent for service of
process or, if the corporation has no registered agent, service may be made by
registered or certified mail provided certain criteria is met. Wis. Stat.
§§180.0504(1), (2).

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In this case, though, the court’s screening order required the U.S.
Marshal’s Service to serve the defendants on the plaintiff’s behalf. Dkt. No. 4.
Given that order, the plaintiff was entitled to rely on the U.S. Marshal to timely
effect service.
The plaintiff filed the complaint on February 14, 2017. Dkt. No. 1. The
court issued its screening order on February 24, 2017. Dkt. No. 4. The U.S.
Marshal mailed the waiver of service packet to BuySeasons on March 8, 2017,
but BuySeasons did not waive service. Dkt. No. 11. On May 25, 2017, ten days
after BuySeasons filed its motion, the U.S. Marshal Service filed the executed
summons with the court. Dkt. No. 25. The process receipt and return filed by
the U.S. Marshal on May 26, 2017 shows that the Marshal effected service on
May 25, 2017 by delivering a copy of the summons and complaint to Mary Jo
Rowbottom (Customer Service) at BuySeasons, 8040 Excelsior Drive, Suite
400, Madison, Wisconsin 53717.
So—the Marshal effected service one hundred days after the plaintiff filed
is complaint, and exactly ninety days after the court issued its screening order.
If the defendant had waived service when the Marshal mailed the service
packet, the Marshal would not have had to expend time and resources to
effectuate formal service. Courts have found good cause to extend the time for
service under Rule 4(m) when it is the Marshal’s Service that fails to serve the
defendant in a timely manner. See Graham v. Satkoski, 51 F.3d 710, 712 (7th
Cir. 1995). In this case, the Marshal did not fail to timely effectuate service,
given that it did so ninety days after the court issued the screening order.
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The court also notes that a defendant’s failure to sign and return the
waiver of service, without showing good cause, requires the court to impose (1)
the expenses later incurred in making service and (2) reasonable expenses
required to collect those service expenses. Fed. R. Civ. P. 4(d)(2).
While the court will grant BuySeasons’s motion to dismiss based on
failure to state a claim and failure to seek relief against it, the court will not
grant that portion of the motion that seeks dismissal for failure to properly
serve BuySeasons.
III.

Conclusion
The court GRANTS defendant Nissen Staffing Continuum, Inc.’s motion

to dismiss. Dkt. No. 14.
The court GRANTS defendant BuySeasons, Inc.’s motion to dismiss, to
the extent that it is based on failure to state a claim and failure to seek relief
against the defendant. Dkt. No. 20.
The court ORDERS that if the plaintiff wishes to proceed on his claims of
racial and age discrimination under Title VII, he must file an amended
complaint in time for the court to receive it by the end of the day on Friday,
April 27, 2018. If the court does not receive an amended complaint that
complies with this order by the end of the day on Friday, April 27, 2018, the

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court will dismiss the case for failure to diligently prosecute under Civ. L.R.
41(c) (E.D. Wis.).
Dated in Milwaukee, Wisconsin this 27th day of March, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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