Tase-Soto v. Botello et al
ORDER signed by Judge J.P. Stadtmueller on 8/7/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff's Complaint (Docket #1) STRICKEN; Plaintiff to file amended complaint by 8/21/2017 or this action will be dismissed for failure to prosecute. See Order. (cc: all counsel, via mail to Santos Tase-Soto) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-CV-1052-JPS
JOSÉ BOTELLO, ROOSEVELT HOLT,
and MARTIN MEZEI,
Plaintiff, Santos Tase-Soto, filed a pro se complaint alleging that
Defendants, his former work supervisors or co-workers, discriminated
against him based on his age while working at the local Palermo’s Pizza
factory (“Palermo’s) in Milwaukee. (Docket #1). Before the Court is
Plaintiff’s petition to proceed in forma pauperis. (Docket #2).
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, whether the lawsuit is frivolous. 28 U.S.C. §§ 1915(a),
(e)(2)(B)(I). On the first question, Plaintiff avers in his motion that he is
unmarried, unemployed, and has no dependents. (Docket #2 at 1). In the
last year, he claims to have received around $11,500 in income through
Social Security disability benefits and renting a room in his apartment. Id.
at 2. He asserts that his monthly expenses, including rent, total $1,085. Id.
His assets include a 2000 Chevrolet Astro, which he values at $1,470, and
$25 in a bank account. Id. at 3–4. On these averments, the Court finds that
Plaintiff has demonstrated that he cannot pay the $350 filing fee and $50
However, notwithstanding any filing fee, the Court must dismiss a
complaint or portion thereof if it has raised claims that are legally “frivolous
or malicious,” that fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B). 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
(1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker
v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The Court may, therefore, dismiss
a claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S.
at 327. “Malicious,” although sometimes treated as a synonym for
“frivolous,” “is more usefully construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109–10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
a plaintiff is required to provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his 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
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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
As noted above, Plaintiff’s complaint concerns alleged workplace
discrimination he suffered on account of his age. He worked at the
Palermo’s factory from at least 2012 until his firing on November 18, 2015.
(Docket #1 at 3). During 2012–2013, Plaintiff’s supervisor, Defendant José
Botello (“Botello”), made negative remarks about Plaintiff’s ability to work
in light of his age. Id. Plaintiff claims that this humiliated him and caused
him a great deal of stress. Id.
At the end of 2013, Botello informed Plaintiff that he would be given
a raise, apparently in line with a raise being given to all workers at the
factory. Id. However, Plaintiff noticed that his pay actually decreased. Id.
He complained to Botello, who justified the decrease by commenting on
Plaintiff’s poor work performance and the fact that Plaintiff had transferred
to the factory’s second shift. Id. Plaintiff claims he was the only worker
denied a raise at this time. Id. He further contends that he should not have
been denied the raise given his years of experience in similar jobs. Id.
Plaintiff then turned to Laura Johnson (“Johnson”), vice president of
human resources at Palermo’s, and plant manager Donald Betters
(“Betters”), who was Botello’s direct supervisor. Id. He told these two
individuals about his humiliation at Botello’s hands. Id. They met with
Botello, but Plaintiff does not describe the contents of the meeting. Id.
Afterward, Botello intercepted Plaintiff at work and threatened to shut
down the entire factory by organizing a strike. Id.
Plaintiff reports that after his meeting with Johnson and Betters,
Botello was dismissed from work for three days. Id. Plaintiff admits that he
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does not know if the dismissal was a result of his complaints about Botello
or some other reason. Id. When Botello returned, he poked fun at Plaintiff,
noting that if he should be fired, he had another lucrative job waiting for
him, while Plaintiff would have to remain at Palermo’s. Id.
Plaintiff’s complaint next jumps to November 18, 2015, the day he
was fired from Palermo’s. Id. This portion of the complaint borders on the
unintelligible, but the Court gathers that Plaintiff believes that two of his
co-workers or supervisors, Defendants Roosevelt Holt (“Holt”) and Martin
Mezei (“Mezei”), conspired with Botello to get Plaintiff fired. See id. What
precisely these two men did is not explained in any cogent fashion. See id.
at 3–4. It appears that the proffered reason for Plaintiff’s firing was
insubordination, although it is clear Plaintiff believes that the real reason
for his discharge was retaliation for his earlier complaints about Botello’s
age discrimination. Id. at 4.
A month or two after his firing, Botello called Plaintiff and suggested
that he contact Palermo’s and seek reinstatement by threatening to sue the
company. Id. Finally, in May or June of 2017, Plaintiff saw Botello in a park,
and Botello greeted him and said that Plaintiff’s firing was unfair. Id. Botello
also reported that he had since been promoted back to the position he had
held before being sanctioned by Johnson and Betters. Id.
For relief, Plaintiff asks for Defendants to pay his medical expenses
and an additional $1,000,000 as compensation for the physical and mental
suffering he has endured. Id. at 6.
Though he does not actually identify the basis for his claims,
Plaintiff’s claims against Defendants appear to arise under the Age
Discrimination and Employment Act (“ADEA”), which makes it illegal for
an employer “to fail or refuse to hire or to discharge any individual or
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otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). To prove discrimination in
violation of the ADEA, Plaintiff must establish that Defendants subjected
him to an adverse employment action because of his age. Van Antwerp v.
City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). Age must have played a
role in the employer’s decision-making process and had a determinative
influence on the outcome. Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573
(7th Cir. 2003). To prove that he was retaliated against under the ADEA,
Plaintiff must show that he engaged in statutorily protected activity, that
he suffered a materially adverse action, and that the retaliation was a butfor cause of, not merely a contributing factor to, the adverse action. Horwitz
v. Bd. of Educ., 260 F.3d 602, 612 (7th Cir. 2001).
Initially, the Court notes that the pay reduction and Plaintiff’s
ultimate termination both appear to qualify as adverse employment
actions. Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744–45 (7th Cir.
2002); Lapka v. Chertoff, 517 F.3d 974, 985–86 (7th Cir. 2008). Additionally,
liberally construing Plaintiff’s allegations, as the Court must, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), the Court concludes that Defendants’ actions
were sufficiently motivated by his age and protected activity (i.e., his
complaint to Johnson and Betters about Botello’s age discrimination) to
pass muster at the screening stage, see Van Antwerp, 627 F.3d at 298
(employee can provide direct evidence of discriminatory animus or show
that employer’s reasons for its actions were mere pretext masking
But Plaintiff’s claim falls short in other respects. First, he does not
allege his age, only that he is “older.” (Docket #1 at 3). The ADEA only
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applies to persons who are age forty or older. 29 U.S.C. § 631(a). Second,
Plaintiff cannot hold Defendants, his supervisors, individually liable under
the ADEA, since they do not qualify as “employers” under the statute.
Cheng v. Benson, 358 F. Supp. 2d 696, 699–700 (N.D. Ill. 2005); Horwitz v. Bd.
of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n.6 (7th Cir. 2001).
Palermo’s can be held liable for Defendants’ actions under a theory of
respondeat superior, see Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th
Cir. 1994), but the company has not been joined as a defendant, making
such a claim impossible at present.
Finally, Plaintiff cannot be awarded compensatory damages under
the ADEA for physical suffering or emotional distress. Barton v. Zimmer,
Inc., 662 F.3d 448, 454 (7th Cir. 2011); Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843, 852 (2001). The closest he can come is to be awarded front pay
in lieu of reinstatement, but that remedy is only available if the
discriminatory actions of the employer caused a disability which actually
prevents him from being reinstated. Barton, 662 F.3d at 455. Plaintiff makes
no such allegation. True enough, Plaintiff might be awarded back pay in
light of the wage reduction and his termination, id., but he does not ask for
For these reasons, the Court must dismiss Plaintiff’s complaint for
failure to state a claim upon which relief may be granted. 28 U.S.C. §
1915(e)(2)(B). 1 The Court will afford Plaintiff fourteen (14) days to file an
It is also worth noting that Plaintiff has provided no indication that he
exhausted his administrative remedies before filing the present lawsuit. Claims
under the ADEA must first be asserted in charges filed with the Equal
Employment Opportunity Commission (“EEOC”). 29 U.S.C. § 626(d). Such
charges must be filed with the EEOC within 300 days of the alleged unlawful
employment practice if the claimant has initially filed a claim with a state agency,
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amended complaint, if he chooses, which cures the deficiencies identified
above. If Plaintiff files an amended complaint, the Court will screen it
pursuant to Section 1915. If Plaintiff does not file an amended complaint by
that deadline, the Court will dismiss this action for failure to prosecute the
same. See Civ. L. R. 41(c).
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the complaint submitted on July
31, 2017 (Docket #1) be and the same is hereby STRICKEN;
IT IS FURTHER ORDERED that Plaintiff is directed to file an
amended complaint on or before August 21, 2017 which cures the defects
in the original complaint as described herein;
IT IS FURTHER ORDERED that 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
or within 180 days if he has not. 42 U.S.C.A. § 2000e–5(e)(1). The exhaustion
requirement is designed to give the employer “some warning of the conduct about
which the employee is aggrieved, and it affords the [EEOC] and the employer an
opportunity to attempt conciliation without resort to the courts.” Rush v.
McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). Plaintiff did not attach any
documents to his complaint establishing that he exhausted his administrative
remedies, nor did he allege anything about it in the body of the complaint. Of
course, exhaustion of remedies is an affirmative defense, so Plaintiff’s failures in
this regard would not be fatal to his claims. See Laouini v. CLM Freight Lines, Inc.,
586 F.3d 473, 475 (7th Cir. 2009).
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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
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 at Milwaukee, Wisconsin, this 7th day of August, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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