Rust, Vanessa v. Alter Metal Recycling

Filing 43

ORDER denying defendant Alter Metal Recycling's 18 Motion to Dismiss. The schedule is amended as discussed within this opinion. Signed by District Judge James D. Peterson on 11/6/2018. (jef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

VANESSA RAE RUST,
Plaintiff,

ORDER

v.
ALTER METAL RECYCLING,

16-cv-3-jdp

Defendant.
Pro se plaintiff Vanessa Rust brings this Title VII discrimination lawsuit about her
termination from defendant Alter Metal Recycling. Alter filed a motion to dismiss the case
under Federal Rule of Civil Procedure Rule 12(b)(6), saying that Rust’s claims are barred by
the doctrine of claim preclusion, because Rust’s similar discrimination claims under the
Wisconsin Fair Employment Act were dismissed after a hearing by the state’s Equal Rights
Division. See Dkt. 18 and Dkt. 18-1. In a May 4, 2018 order, I called Alter’s motion “severely
undeveloped,” and stated that the authority that Alter cited appeared to show that claim
preclusion did not apply to this case. See Dkt. 33. I gave Alter a chance to either develop its
argument in a supplemental brief or withdraw its motion to dismiss. Id.
Alter has responded by stating that it now agrees that claim preclusion does not apply.
Dkt. 35, at 1. Alter instead raises new arguments: that Rust should have asked the Equal
Employment Opportunity Commission for a “right to sue” letter after the administrative law
judge had taken more than 180 days to rule on her complaint, and that she waited more than
90 days to sue after the final decision dismissing her complaint. Id. at 1–2.
Alter’s new arguments were not part of the original motion to dismiss based on claimpreclusion grounds, which would be reason enough to disregard them. In any event, the new

arguments are also undeveloped. Alter does not cite any authority showing that I should dismiss
the case for Rust’s failure to request a right-to-sue letter before the ALJ ruled on her case. Alter
incorrectly states that Rust waited until February 7, 2018, to file this lawsuit. As the court’s
docket clearly shows, she filed it on January 4, 2016, within 90 days of the right-to-sue letter
issued by the EEOC. See Dkt. 27-1. I will deny Alter’s motion to dismiss.
Rust’s newly retained counsel has filed a motion requesting a telephonic scheduling
conference, in particular mentioning the upcoming expert-disclosure and dispositive-motions
deadlines. At this point, I conclude that it is unnecessary to hold a scheduling conference, but
in light of counsel’s recent appearance and this order denying Alter’s motion to dismiss, I will
amend the schedule: Rust’s expert-disclosure deadline is moved to December 10, 2018; Alter’s
is moved to January 22, 2019; and the dispositive-motions deadline is moved to February 14,
2019. If either party seeks further amendment to the schedule, it should file a motion detailing
the reasons for its request.

ORDER
IT IS ORDERED that:
1. Defendant Alter Metal Recycling’s motion to dismiss, Dkt. 18, is DENIED.
2.

The schedule is amended as discussed above.

Entered November 6, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

2