Morke v. Archer Daniels Midland Co. et al

Filing 3

Order dismissing Plaintiff's complaint. Proposed amended complaint due 4/6/2010. Signed by Chief Judge Barbara B. Crabb on 3/16/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R O B E R T JOSEPH MORKE, O PIN IO N and ORDER Plaintiff, 1 0 -c v -9 4 -s lc 1 v. AR C H ER DANIELS MIDLAND CO., JO H N JONAS and MIRANDA GERARD, D efendan ts. --------------------------------------------In this proposed civil action, plaintiff Robert Joseph Morke alleges that defendants discrim inated against him when he was terminated from his employment. Plaintiff has asked fo r leave to proceed in forma pauperis and has supported his request with an affidavit of indigency. The standard for determining whether plaintiff qualifies for indigent status is the following:

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From plaintiff's annual gross income, the court subtracts $3700 for each dependent excluding the plaintiff.

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If the balance is less than $16,000, the plaintiff may proceed without any

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For the purpose of issuing this order, I am assuming jurisdiction over the case. 1

prepayment of fees and costs.

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If the balance is greater than $16,000 but less than $32,000, the plaintiff must prepay half the fees and costs.

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If the balance is greater than $32,000, the plaintiff must prepay all fees and costs. Substantial assets or debts require individual consideration.

In this case, plaintiff has no dependents. He states that he is unemployed and receives $200 per month in a food share program. Plaintiff's annual income of $2,400 is well below the threshold to qualify for indigent status. prep aym ent of fees or costs. In addressing any pro se litigant's complaint, the court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). However, because plaintiff is requesting leave to proceed without prepayment of costs, his complaint must be dism issed if it is legally frivolous, malicious, fails to state a claim upon which relief may be granted or asks for money damages from a defendant who by law cannot be sued for money dam ages. 28 U.S.C. § 1915(e)(2)(B). I cannot reach the merits of plaintiff's claims at this time because his pleading violates R ule 8 of the Federal Rules of Civil Procedure. 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." Rule 8 also requires that the complaint contain enough allegations of fact to make Therefore, plaintiff can proceed without any

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a claim for relief plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (20 07 ); Aschcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (holding that the plausibility standard set forth in Twombly applies to "all civil actions"). To determine whether a com p lain t meets the requirements of Rule 8, a district court should disregard "mere co nclu so ry statements" and assess whether the well-pleaded facts alone state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949. Plaintiff alleges that (1) on November 13, 2007, he filed a complaint with the W isco n sin Equal Rights Division and the Equal Employment Opportunity Commission and tw o days later defendant John Jonas told him that his personnel records were unavailable w h en plaintiff requested them; (2) when plaintiff asked about a grievance concerning "efficien cy/p ay ratios," defendant John Jonas told him that defendant did not need facts or num bers; (3) when plaintiff asked for additional training for himself, defendant Jonas told him "we can't train you now"; (4) when plaintiff requested a driver for future drug testing, d efen dan t Jonas told him "okay"; (5) when plaintiff proposed a technique for increasing corp ora te yearly profit by 2.5% to 5%, defendant Jonas told him "that's not a good idea," after which plaintiff's gross income was reduced by 16%; (5) Between December 13 and D ecem ber 14, 2007, defendant Miranda Gerard met with plaintiff at the Archer Daniels M idland plant and returned an original grievance dated October 21, 2007 concerning an an ti-d iscrim in atio n and harassment policy. She then suggested that plaintiff resign from 3

Arch er Daniels Midland; (6) on March 4, 2008, plaintiff was terminated "without warning" after Jonas told him that he "repeatedly challenge[d] management with complaints." Plaintiff adds that, after he was terminated, defendant Jonas stated that "the entire sum m er" had been "filled" with complaints by plaintiff, including a discrimination case with the Wisconsin Department of Workforce Development, and explained that "we needed to get him out of the plant before something very serious occurred, or before good employees started to leave." In addition, defendants Jonas and Archer Daniels Midland told plaintiff that "after consultation with Miranda Gerard, it was determined that we had endured eno ugh, and [plaintiff] can and should be terminated for insubordination." Plaintiff asserts claims against defendants for "defamation" and "discrimination" and app ears to be pursuing a claim for retaliatory termination as well. To the extent plaintiff is pursu ing a claim for discrimination, he has failed to give adequate notice to defendants abo ut his claim. It is not clear what kind of discrimination occurred (was it race

discrim ination ? age discrimination? sex discrimination? something else?), who engaged in acts of discrimination or what those persons did to make plaintiff believe they were discrim inating against him. All that can be gleaned from the complaint is that plaintiff was un hap py with something that he perceived to be discrimination and filed claims related to his concerns. A s for the claim for defamation, plaintiff does not identify any false statements or 4

suggest that any defendant made such statements to any people other than plaintiff, each o f which would be necessary to support a claim for defamation. Schindler v. Seifer, 474 F.3d 1 0 0 8, 1010 (7th Cir. 2007) (citing Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 53 4, 563 N.W.2d 472, 477 (1997)). Although plaintiff mentions defamation and discrimination, perhaps he describes th ese things as background for the one claim he does support with facts: his claim for retaliatory termination. To state a claim for statutory retaliation, plaintiff must allege facts th a t allow an inference that (1) he engaged in an activity protected by statute; (2) he suffered an adverse employment action taken by the employer; and (3) there is a causal connection between the adverse employment action and the protected activity. Kodl v. B o a r d of Education School District 45, Villa Park, 490 F.3d 558, 562 (7th Cir. 2007) (citation omitted). Plaintiff alleges that he was fired because of certain complaints related to "d iscrim in atio n ." Although this is a start, plaintiff does not include enough facts to allow an inference that he was engaged in a protected activity when he made those complaints. In particular, plaintiff does not provide any information about what he said in the com plaints. "To constitute protected expression, `the complaint must indicate the discrim ination occurred because of sex, race, national origin, or some other protected class. M erely complaining in general terms of . . . harassment, without indicating a connection to 5

a protected class or providing facts sufficient to create that inference, is insufficient.'" Id. at 563 (citation omitted). Until plaintiff identifies what he complained about, it is not p o ssib le to determine whether he states a claim for retaliatory termination. Because plaintiff's complaint does not comply with Rule 8, I must dismiss it without prejudice. Plaintiff is free to file an amended complaint that includes the allegations that I have identified as missing; if it satisfies Rule 8, I will consider the merits of plaintiff's claims. If plaintiff decides to file an amended complaint, he should write it as if he were telling a sto ry to people who know nothing about his situation. Someone reading the complaint shou ld be able to answer the following questions: · What are the facts that form the basis for plaintiff's claims? · What did defendants do that makes them liable for violating plaintiff's rights? · How was plaintiff injured by defendants' conduct? Plaintiff may have until April 6, 2010 in which to file an amended complaint to repair the R u le 8 problems I have identified. If he fails to do so by then, I will order the case closed for plaintiff's failure to prosecute it.

ORDER IT IS ORDERED that 1. Plaintiff Robert Joseph Morke's complaint is DISMISSED because it is in 6

vio latio n of Fed. R. Civ. P. 8. 2. Plaintiff may have until April 6, 2010, in which to submit a proposed amended com plaint that conforms to Rule 8. If, by April 6, 2010, plaintiff fails to respond to this ord er, the clerk of court is directed to close this case for plaintiff's failure to prosecute. 3. If, by April 6, 2010, plaintiff submits a proposed amended complaint as required b y this order, I will take that complaint under advisement for screening pursuant to 28 U .S .C . § 1915. E n tered this 16t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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