Hall v. State of Wisconsin et al

Filing 36

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 2/3/2020. 19 Plaintiff's motion for summary judgment GRANTED under Fed. R. Civ. P. 56(e)(3). (cc: all counsel, via mail to Rossetta Hall)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROSETTA L. HALL,
Plaintiff,
Case No. 18-cv-895-pp
v.
STATE OF WISCONSIN,
Defendant.
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 19) AND DISMISSING CASE
______________________________________________________________________________
The plaintiff filed her complaint on June 13, 2018, alleging that
defendants the State of Wisconsin, the District I Court of Appeals, and Judge
Kitty Brennan fired her based on her race and in retaliation. Dkt. No. 1. Two
weeks later, she filed an amended complaint, alleging that she was fired due to
her race, her age, her disability and in retaliation. Dkt. No. 3. Magistrate Judge
David Jones screened the complaint, and dismissed the Court of Appeals and
Judge Brennan as defendants. Dkt. No. 5. The State waived service, dkt. no. 9,
and filed its answer on October 18, 2018, dkt. no. 11.
After the close of discovery, the State filed this motion for summary
judgment. Dkt. No. 19. The State argues that there is no evidence that Judge
Brennan fired the plaintiff because of her race; Judge Brennan fired the
plaintiff (who had been her judicial assistant) because the plaintiff was
insubordinate to Judge Brennan in front of the office staff. Dkt. No. 26 at 3. As
to the plaintiff’s allegation that Judge Brennan fired her due to her age, the
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State points out that it is immune from suit under the Age Discrimination and
Employment Act, and that there is no evidence that Judge Brennan fired the
plaintiff due to her age. Id. The State argues that the court must dismiss the
plaintiff’s disability claim because the State has sovereign immunity under the
ADA, because the Wisconsin Court of Appeals isn’t a covered program under
the Rehabilitation Act, and because there is no evidence that Judge Brennan
believed the plaintiff was disabled or fired her because of a disability. Id. at 4.
Finally, the State points out that the plaintiff’s retaliation claim consists of a
bare-bones, conclusory assertion that she was fired in retaliation. Id.
The defendant filed its motion on August 9, 2019. The plaintiff’s
opposition materials would have been due September 8, 2019. On August 27,
2019, the court received from the plaintiff a motion for extension of time,
asserting that the State had been late in providing her with discovery, that she
hadn’t been able to schedule a “deposition” and that she thought it would be
hard to do so, that she was due even more discovery, that she wanted the court
to “dismiss” the summary judgment motion, that there were inconsistencies in
Judge Brennan’s deposition and that the plaintiff disputed that she was fired
for disciplinary reasons. Dkt. No. 29 at 1-2. The State had no objection to the
court extending the time for the plaintiff to respond to the summary judgment
motion, but pointed out that it had not been able to respond to her requests for
emails due to the sheer number of emails it had to review to find those that
might be responsive. Dkt. No. 33.

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The court refused to dismiss the motion for summary judgment, but
extended the deadline for completing discovery to December 13, 2019 (granting
the parties an additional two months for discovery) and requiring the defendant
to notify the court by December 20, 2019 if it planned to amend the summary
judgment motion based on the new discovery. Dkt. No. 34. The court heard
nothing from the defendant by December 20, so on December 26, 2019, the
court ordered that the plaintiff must file her opposition to the motion for
summary judgment in time for the court to receive it by the end of the day on
January 31, 2020. Dkt. No. 35. The court advised the plaintiff that if it did not
receive the response by the end of the day on January 31, 2020, it could rule
on the motion without her input, and might even grant the motion as
unopposed. Id.
The plaintiff did not file a response by January 31, 2020. The court will
grant the defendant’s motion for summary judgment. The only evidence the
plaintiff has submitted is her own statement that she was not fired for
disciplinary reasons, and a document from Madree Williams, stating that she
was not involved “in any of the incidents” described in Judge Brennan’s
affidavit. Dkt. No. 31. Unlike the affidavits provided by the State, this
document filed by the plaintiff is not notarized or sworn, nor is it a verified
declaration under 28 U.S.C. §1746. The plaintiff asserted in her August 27,
2019 motion that there were “inconsistencies” in Judge Brennan’s declaration
(on the docket at Dkt. No. 20) but did not identify those inconsistencies. The
plaintiff has presented no evidence of her age, and no evidence showing that
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she is disabled; she has not even identified her alleged disability. In contrast,
the defendant has presented multiple pieces of evidence—four sworn
declarations (including the declaration of a then-sitting state appeals judge), an
email, a memo from another appellate judge—demonstrating that Judge
Brennan terminated the plaintiff because she could not get along with other
court staff and because she defied Judge Brennan (her boss) in an all-staff
meeting, in front of the staff.
Under Civil Local Rule 56(b)(4) (E.D. Wis.), the court deems
uncontroverted statements of material fact admitted for the purposes of
summary judgment. Federal Rule of Civil Procedure 56(e) provides that if a
party fails to properly support an assertion of fact or properly address another
party’s assertion, the court may, among other things, “grant summary
judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. P.
56(e)(3). The plaintiff has had almost six months from the date the defendant
filed its summary judgment motion to provide her opposition materials. She
has provided nothing but some conclusory statements in a motion to extend
time and an unsworn, uncertified statement purporting to be from one of the
several individuals Judge Brennan mentioned in her declaration. The court will
grant summary judgment in favor of the defendant and will dismiss the case.
The court GRANTS the defendant’s motion for summary judgment under
Fed. R. Civ. P. 56(e)(3). Dkt. No. 19.

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The court ORDERS that this case is DISMISSED. The court will enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Fed. R. of App. P. 3, 4. This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under limited circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2).
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 3rd day of February, 2020.
BY THE COURT:
____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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