Bruguier, Jeaninne v. Lac du Flambeau Band of Lake Superior Chippewa Indians et al
Filing
22
ORDER granting 13 Motion to Dismiss in case 3:16-cv-00604-jdp and 3:16-cv-605-jdp. Signed by District Judge James D. Peterson on 2/21/2017. Associated Cases: 3:16-cv-00604-jdp, 3:16-cv-00605-jdp (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEANINNE BRUGUIER,
Plaintiff,
v.
OPINION & ORDER
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS and HENRY ST. GERMAINE,
16-cv-604-jdp
Defendants.
JONI R. THEOBALD,
Plaintiff,
v.
OPINION & ORDER
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS, L.D.F. BUSINESS
DEVELOPMENT CORPORATION, and
HENRY ST. GERMAINE,
16-cv-605-jdp
Defendants.
Plaintiffs Jeaninne Bruguier and Joni Theobald assert claims under Title VII and state
law, alleging that defendants wrongfully terminated their employment and otherwise violated
their rights because of plaintiffs’ political activities.
Defendants Lac du Flambeau Band of Lake Superior Chippewa Indians, L.D.F.
Business Development Corporation, and Henry St. Germaine jointly move to dismiss these
actions on several threshold issues. Dkt. 13. The court will dismiss all Title VII claims under
Federal Rule of Civil Procedure 12(b)(6) for plaintiffs’ failure to state a claim. Tribal
sovereign immunity precludes their claims, and an Indian tribe is not an employer under
Title VII. The court will decline to exercise supplemental jurisdiction over the state-law
claims and dismiss both cases.
ALLEGATIONS OF FACT
To decide a Rule 12(b)(6) motion, the court may consider plaintiffs’ complaints,
documents referenced in the complaints, documents critical to the complaints, and
information subject to judicial notice. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th
Cir. 2012). The court draws the following facts from plaintiffs’ complaints, charges filed with
the EEOC, right-to-sue letters, and publicly available charters of tribal corporations.
Defendant Lac du Flambeau Band of Lake Superior Chippewa Indians (the Tribe) is a
federally recognized Indian tribe. In the 1930s, the Tribe was reorganized and approved by
the Secretary of the Interior pursuant to Section 16 of the Indian Reorganization Act of 1934
(the IRA), 25 U.S.C. § 5123 (originally 25 U.S.C. § 476). Defendant Henry St. Germaine is
a former president of the Tribe’s council. In 2012, the tribal council established defendant
L.D.F. Business Development Corporation (L.D.F. Business Development) pursuant to
Article VI, Section 1(o) of the Tribe’s constitution. Under L.D.F. Business Development’s
charter, the Tribe is the “sole owner.” Dkt. 14-6, at 2.
Plaintiffs are former employees of the Tribe. Plaintiff Bruguier was the Tribal
Administrator. Theobald was the Director of Gikendaasowin [Knowledge] Education &
Workforce Development. The Tribe terminated plaintiffs’ employment in 2015.
In July 2015, Theobald announced her candidacy for a seat on the tribal council.
Plaintiffs allege that St. Germaine, then-president of the tribal council, arranged a phony
internal audit to create a negative perception of Theobald and those associated with
2
Theobald, including Bruguier. The internal auditors obtained confidential documents that
pertained to plaintiffs and published those documents on a Facebook page that had over 900
members.
Around the same time, St. Germaine and two other council members met and
identified the two highest-paid female managers, Bruguier and Theobald, as candidates for
termination. The Tribe later accused plaintiffs of misconduct and terminated their
employment, without giving them an opportunity to defend against the accusations. The
Tribe terminated male employees too, but the Tribe gave them an opportunity to speak
before the tribal council before their termination.
Plaintiffs filed separate charges with the EEOC, each alleging sex discrimination, race
discrimination, and retaliation. They filed their charges only against the Tribe and not
against the other defendants. Dkt. 14-1, at 3 and Dkt. 14-2, at 3. The EEOC dismissed both
charges for lack of jurisdiction on June 3, 2016. Dkt. 14-3, at 1 and Dkt. 14-4, at 1. The
same notices that informed plaintiffs of the dismissal informed them of their right to sue.
Plaintiffs filed separate complaints with this court on September 1, 2016, and the court
consolidated these two cases.
ANALYSIS
The parties debate whether defendants’ motion should be treated as a motion to
dismiss for lack of subject matter jurisdiction or for failure to state a claim. “Customarily, a
federal court first resolves doubts about its jurisdiction over the subject matter.” Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 578 (1999). But as the Seventh Circuit has recently
explained, a federal district court “has leeway to choose among threshold grounds for denying
3
audience to a case on the merits.” Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 821
(7th Cir. 2016). Here, the court will construe defendants’ motion as a motion to dismiss for
failure to state a claim because the issues discussed in this opinion are not jurisdictional.
The standards governing a Rule 12(b)(6) motion are well established. A complaint
must contain allegations that, when accepted as true, state a claim for relief that is plausible
on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). If the allegations in a complaint “however true, could not raise a
claim of entitlement to relief,” the court should grant the motion. Virnich v. Vorwald, 664
F.3d 206, 212 (7th Cir. 2011) (quoting Twombly, 550 U.S. at 558).
A. Title VII claims against the Tribe
Both plaintiffs claim that the Tribe discriminated against them based on sex, race, and
national origin and that the Tribe retaliated against them in violation of Title VII. But their
claims fail for two reasons. First, the Tribe’s sovereign immunity precludes their claims.
Second, the Tribe is not an “employer” under Title VII. Each of these two reasons provides
an independent basis for dismissal.
1. Sovereign immunity
As a matter of federal law, Indian tribes have sovereign authority traditionally enjoyed
by sovereign powers. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014). Thus,
Indian tribes are immune from suit in both state and federal courts unless Congress abrogates
the tribe’s sovereign immunity or the tribe waives its sovereign immunity. Wells Fargo Bank,
Nat’l Ass’n v. Lake of the Torches Econ. Dev. Corp., 658 F.3d 684, 689 (7th Cir. 2011) (citing
Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)). In the Seventh Circuit,
sovereign immunity is not a jurisdictional issue. Meyers, 836 F.3d at 820. The parties here
4
agree that the Tribe is a federally recognized Indian tribe, and plaintiffs do not contend that
Congress abrogated the Tribe’s sovereign immunity. Thus, the remaining question is whether
the Tribe waived its sovereign immunity.
An Indian tribe’s waiver of sovereign immunity must be “clear.” C & L Enter’s, Inc. v.
Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001). It cannot be implied,
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), and any ambiguity must be resolved
in favor of immunity, Meyers, 836 F.3d at 827 (citing F.A.A. v. Cooper, 132 S. Ct. 1441, 1448
(2012)); Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1153 (10th Cir. 2011). An
Indian tribe can waive its sovereign immunity by, among other means, a tribal resolution or a
contract. Stifel, Nicolaus & Co., Inc. v. Lac du Flambeau Band of Lake Superior Chippewa Indians,
807 F.3d 184, 202 (7th Cir. 2015).
a. Corporate charter
Plaintiffs contend that the Tribe waived its sovereign immunity because its corporate
charter authorizes the Tribe “[t]o sue and be sued in courts of competent jurisdiction within
the United States.” Dkt. 15, at 5. Defendants, on the other hand, contend that plaintiffs are
actually referring to the corporate charter of an entity that is not a party to this case. To
understand the parties’ argument, some historical background is necessary. In the 1930s, the
Secretary of the Interior issued a charter of incorporation for the Tribe under Section 17 of
the IRA, which allows Indian tribes to create tribal corporations and conduct business
through them. 25 U.S.C. § 5124 (originally 25 U.S.C. § 477). Dkt. 16-1, at 1.1 The Tribe
ratified the charter and established a Section 17 corporation in 1937. Id.
1
The court may take judicial notice of this corporate charter because it is publicly available at
the Library of Congress and the National Indian Law Library. See Geinosky, 675 F.3d at 745
n.1; Library of Congress, American Indian Constitutions and Legal Materials: US North
5
But the Tribe and its Section 17 corporation are distinct. Ramey Const. Co., Inc. v.
Apache Tribe of Mescalero Reservation, 673 F.2d 315, 320 (10th Cir. 1982) (collecting cases).
The former is the government of Lac du Flambeau Band of Lake Superior Chippewa Indians
reorganized under Section 16 of the IRA. 25 U.S.C. § 5123 (originally 25 U.S.C. § 476). The
latter is a subordinate entity established to do business on behalf of the Tribe under Section
17. 25 U.S.C. § 5123 (originally 25 U.S.C. § 476). Thus, the Section 17 corporation’s waiver
of sovereign immunity as to itself does not waive sovereign immunity as to the Tribe that
established it. Rosebud Sioux Tribe v. Val-U Const. Co. of S. D., Inc., 50 F.3d 560, 563 (8th Cir.
1995) (“‘[S]ue and be sued clause’ in the Tribe’s corporate charter does not operate as a
general waiver of the Tribe’s immunity from suit.”); see also Ute Distribution Corp. v. Ute Indian
Tribe, 149 F.3d 1260, 1268 (10th Cir. 1998) (collecting cases). Plaintiffs’ complaints also
make clear that they are suing the Tribe, not the Section 17 corporation. They worked
directly for the Tribe, and the Tribe’s council terminated their employment. Thus, they
clearly indicate that defendant is the Tribe, not the Section 17 corporation. Accordingly, any
waiver of sovereign immunity by the Section 17 corporation that is not a party to this case
does not waive the Tribe’s sovereign immunity.
Even if plaintiffs had sued the Section 17 corporation, not the Tribe, the “sue and be
sued” clause quoted by plaintiffs does not show, with the requisite clarity, that the Section 17
corporation waived sovereign immunity. The Seventh Circuit has not decided whether a “sue
and be sued” clause in a tribal corporation’s charter waives tribal immunity, but as one
commentator explains, plaintiffs’ position that a “sue and be sued” clause waives sovereign
Central, available at http://www.loc.gov/law/help/american-indian-consts/us-north-central.php
(last visited Feb. 3, 2017); National Indian law Library, Tribal Law Gateway, available at
http://www.narf.org/nill/triballaw/index.html (Feb. 3, 2017).
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immunity is a minority position.2 Outside the tribal context, the Seventh Circuit and other
courts have concluded that similar “sue and be sued” clauses do not waive immunity for
instrumentalities of states, foreign nations, and the United States.3 Although immunity for
those instrumentalities may differ from immunity of a tribal corporation, the principles
applicable to those instrumentalities are instructive in the tribal context.4 Applying those
principles to the “sue and be sued” clause at hand, the most appropriate reading is that the
clause gave the tribal corporation the power to waive sovereign immunity as to itself and to
litigate in its own name, without actually waiving immunity as to the corporation or the
Tribe. See Garcia, 268 F.3d at 86.5
2
See Cohen’s Handbook of Federal Indian Law § 7.05 (2012 ed.) (summarizing case law).
3
See Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 561 (2017) (holding that Fannie Mae’s
“sue-and-be-sued” clause is “most naturally read” to mean that it “permits suit in any state or
federal court already endowed with subject-matter jurisdiction”); Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999) (noting that a state does
not waive sovereign immunity by enacting a statute that allows a government instrumentality
to “sue and be sued” or permits suits against it “in any court of competent jurisdiction.”);
Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000); Fed. Deposit Ins. Corp. v. Citizens Bank &
Tr. Co. of Park Ridge, 592 F.2d 364, 371 (7th Cir. 1979) (holding that “sue-and-be-sued
authority [of the FDIC] does not permit suit outside [the Federal Tort Claims Act] for torts
excepted from the coverage of that Act.”); Dayton v. Czechoslovak Socialist Republic, 834 F.2d
203 (D.C. Cir. 1987) (Ruth Bader Ginsburg, J.) (“[W]e agree that no intelligent waiver of a
foreign sovereign’s immunity is fairly extracted from endowment of a state trading company
with the capacity to sue and be sued.”).
4
C & L Enter’s, 532 U.S. at 421 nn.3-4 (noting that the law governing foreign sovereign
immunity is instructive in the context of tribal sovereign immunity but declining to hold that
tribal sovereign immunity is the same as state sovereign immunity); Sokaogon Gaming Enter.
Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 660 (7th Cir. 1996) (considering
sovereign immunity under the Federal Torts Claims Act and the Tucker Act); Garcia v.
Akwesasne Hous. Auth., 268 F.3d 76, 86 (2d Cir. 2001) (applying the principles of state and
foreign sovereign immunity to hold that “sue and be sued” clause in a tribal ordinance does
not waive sovereign immunity).
5
This reading of the “sue and be sued” clause is also consistent with the purpose of a Section
17 charter. The purpose of Section 17 of the IRA is to allow Indian tribes to conduct
7
The corporate charter of L.D.F. Business Development, which is an economic arm of
the Tribe, Dkt. 14-6, at 1, casts further doubt on plaintiffs’ position because it provides a
separate procedure for waiver of sovereign immunity. Id., at 2. Section 6.05 of the L.D.F.
Business Development’s charter has a similar “sue and be sued” clause, but makes clear that a
waiver of sovereign immunity requires a unanimous vote of all of its directors. Id. If the “sue
or be sued” clause in the Section 17 corporate charter cited in plaintiffs’ complaints were a
wholesale waiver of sovereign immunity as to the Tribe and all of its affiliated entities, it is
difficult to see why the charter of L.D.F. Business Development, which is an arm of the
Tribe, would provide a separate procedure for waiving sovereign immunity.
The parties discuss Sokaogon Gaming Enterprise Corporation, in which the Seventh
Circuit stated that “to agree to be sued is to waive any immunity one might have from being
sued,” 86 F.3d at 659. There, the Seventh Circuit considered whether a tribal corporation
had waived its sovereign immunity in an arbitration agreement, where the tribal corporation
had agreed to arbitrate “‘claims, disputes or other matters’ arising out of or related to the
contract.” Id. The fact that the critical language appeared in an agreement between the two
contracting parties left no room for ambiguity. If two contracting parties agree to arbitrate
business through the “modern device” of corporations, Clay Smith, Tribal Sovereign Immunity:
A Primer, 50 Advocate 19, 20 (2007) (quoting Opinion No. M-36515, 65 Interior Dec. 483,
484 (1958)), accord William V. Vetter, Doing Business with Indians and the Three “S”Es:
Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction, 36 Ariz. L. Rev. 169
(1994), and practically speaking, conducting business through those entities entails
empowering them to litigate in their own names to enforce contracts. That is, the “sue or be
sued” clause is a practical necessity for a functioning Section 17 corporation, just like any
other corporation. Indeed, a similar “sue or be sued” clause is included in many other Section
17 corporations. See Library of Congress, American Indian Constitutions and Legal Materials,
available at http://www.loc.gov/law/help/american-indian-consts/index.php (last visited Feb. 3,
2017). Adopting plaintiffs’ broad reading the “sue and be sued” clause would mean that all
those Section 17 corporations have waived their sovereign immunity. Nothing indicates that
Section 17 was meant to force tribal corporations to waive sovereign immunity.
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disputes arising from a contract, that shows their clear intention to be bound by their
contractual obligations and to be sued pursuant to their agreement. But here, there is no
contract or transactional document evincing any intent to be bound by a specifically stated
obligation. Rather, the corporate charter generally articulates the powers of the Section 17
corporation. It does not express the Section 17 corporation’s consent to be sued in federal
court for any and all claims.
Plaintiffs also suggest that courts have already determined that the Tribe had waived
its sovereign immunity. But the case cited by plaintiffs, Stifel, 807 F.3d 184, actually
undermines their position. In Stifel, the court held that certain tribal entities associated with
the Tribe had waived sovereign immunity in several transactional documents and tribal
resolutions that pertained to those transactions. Id. at 202. If the Tribe had comprehensively
waived its sovereign immunity as to itself and all of its affiliated entities, it would be odd for
the court to conclude that the tribal entities in Stifel had waived immunity for each one of the
individual transactions.
b. Tribal ordinance
Plaintiffs also contend that the Tribe waived its sovereign immunity under Section 47
of the Lac du Flambeau Tribal Code. Section 47 has three subsections. Subsection 102 of
Section 47 incorporates various federal labor laws:
The provisions of the Federal Labor Act, United States Code
Title 29, and any rules or orders of any Federal administrative
agency promulgated thereunder, are hereby incorporated as
tribal law as if fully set forth herein.
9
Lac du Flambeau Tribal Code § 47.102.6 The other two subsections provide for a tribal
court’s jurisdiction to adjudicate violations of Section 47.102 and the Tribe’s authority to
enact Section 47. See Lac du Flambeau Tribal Code §§ 47.101, 103. Nowhere does it say that
the Tribe waives sovereign immunity.
Plaintiffs argue that the incorporation of federal labor laws is itself a waiver of
sovereign immunity. But that argument has been rejected in a case cited by plaintiffs: as the
Tenth Circuit has held, an Indian tribe’s promise to provide fair labor standards “in no way
constitutes an express and unequivocal waiver of sovereign immunity and consent to be sued
in federal court.” Nanomantube, 631 F.3d at 1153 (quoting Sanderlin v. Seminole Tribe of Fla.,
243 F.3d 1282, 1289 (11th Cir. 2001)).
Plaintiffs also argue that the reference to the “Federal Labor Act” is ambiguous, and
thus it should be construed broadly to include Title VII. But a waiver of sovereign immunity
must be clear, and any ambiguity is construed against waiver. Id. Not only that, as the
preamble of Section 47 indicates, the Tribe adopted Section 47 as part of the settlement in
Reich v. Lac du Flambeau Band of Lake Superior Chippewa Indians, which concerned the Fair
Labor Standards Act. See Lac du Flambeau Tribal Code § 47; Case No. 94-cv-259 (W.D. Wis.
Mar. 28, 1994), Dkt. 2. Thus, even if the court were to attempt to resolve the ambiguity,
plaintiffs’ position would be a stretch. The “Federal Labor Act” meant the FLSA, not Title
VII.
6
The Lac du Flambeau Tribal Code, cited by plaintiffs, is publicly available. See Lac du
Flambeau Tribal Code §§ 47.101-03, available at http://www.ldftribe.com/pages/23/CourtOrdinances/ (last visited Jan. 26, 2017).
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2. Definition of “employer” under Title VII
A second reason to dismiss plaintiffs’ Title VII claims against the Tribe is that an
Indian tribe is not an “employer” under Title VII. Title VII prohibits an “employer” from
engaging in unlawful employment practices, including discrimination based on “race, color,
religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), and retaliation, 42 U.S.C.
§ 2000e-3(a). Showing that the defendant is an “employer” under Title VII is an element of a
plaintiff’s claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Title VII
unequivocally excludes Indian tribes from the definition of an “employer”:
The term “employer” means a person engaged in an industry
affecting commerce who has fifteen or more employees for each
working day in each of twenty or more calendar weeks in the
current or preceding calendar year, and any agent of such a
person, but such term does not include . . . an Indian tribe . . . .
42 U.S.C. § 2000e(b). Thus, plaintiffs cannot state a Title VII claim against the Tribe.
Plaintiffs contend that Section 47 of the Lac du Flambeau Tribal Code, discussed
above, “subjects” the Tribe to Title VII. Dkt. 15, at 7. But Section 47 does not refer to Title
VII. And even if the Tribe had agreed to the substantive requirements of Title VII in Section
47, that would not itself allow plaintiffs to sue the Tribe in federal court. Congress, not an
Indian tribe, determines what claims litigants may bring to federal court. See Johnson v.
Choctaw Mgmt./Servs. Enter., 149 F. App’x 800, 802 (10th Cir. 2005); Bales v. Chickasaw Nation
Indus., 606 F. Supp. 2d 1299, 1307 (D.N.M. 2009).
Plaintiffs also state that the Tribe “expressly consented” to federal labor laws,
including 29 C.F.R. § 31.1, because the Tribe received the federal YouthBuild grant. Dkt. 15,
at 4. The court takes plaintiffs to mean that the receipt of the federal YouthBuild grant
requires compliance with Title VII. But plaintiffs do not explain how the receipt of the
11
YouthBuild grant would require the Tribe to comply with Title VII, so this undeveloped
argument is waived. See Lust v. Sealy, Inc., 243 F. Supp. 2d 908, 919 (W.D. Wis. 2002)
(“Arguments not developed in any meaningful way are waived.” (quoting Cent. States, Sw. &
Sw. Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808 (7th Cir. 1999)).
Besides, the prohibition against discrimination under 29 C.F.R. § 31.1 has nothing to do with
plaintiffs’ claims; it deals with Title VI of the Civil Rights Act, not Title VII.
In sum, the Tribe did not waive its sovereign immunity. Neither the “sue and be sued”
clause referenced in plaintiffs’ complaints nor Section 47 of the Lac du Flambeau Tribal Code
waives sovereign immunity. By its terms, Title VII does not apply to Indian tribes. The
Tribe’s receipt of the federal YouthBuild grant does not establish the Tribe’s liability under
Title VII. Nor does Section 47. Accordingly, the court will dismiss all Title VII claims against
the Tribe.
B. Title VII claims against St. Germaine
Plaintiffs assert sex discrimination claims under Title VII against St. Germaine, a
former president of the tribal council. But Title VII does not impose liability on managers in
their individual capacities. Passananti v. Cook County, 689 F.3d 655, 677 (7th Cir. 2012).
Indeed, plaintiffs indicate in their opposition brief that they no longer intend to pursue
claims against St. Germaine. Dkt. 15, at 2 n.1. Thus, the court will dismiss plaintiffs’ Title
VII claims against St. Germaine.
C. Title VII claims against L.D.F. Business Development
Only Theobald asserts claims against L.D.F. Business Development, and those claims
arise under Title VII. The court will dismiss those claims for three reasons.
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First, the most fundamental problem with Theobald’s complaint is that she is suing
L.D.F. Business Development under Title VII, but she does not allege how it harmed her or
whether it was actually her employer at all. Aside from her legal conclusions under her causes
of action, her sole allegation against L.D.F. Business Development is that it was her “joint
employer” (and even this single allegation is based on “information and belief”). 16-cv-605,
Dkt. 1, ¶ 4. She does not offer any factual allegation in support of this “joint employer”
theory. Because she has not alleged “enough to raise a right to relief above the speculative
level,” the court must dismiss her claims against L.D.F. Business Development. Twombly. See
550 U.S. at 555. The court also rejects her argument that she is entitled to discovery on her
employment relationship with L.D.F. Business Development. Dkt. 15, at 13-14. She has not
offered even a minimal showing of why she believes that L.D.F. Business Development was
her joint employer or why she could not identify her employers without discovery.
Second,
sovereign
immunity
precludes
Theobald’s
claims.
L.D.F.
Business
Development was established by the Tribe’s constitution to promote the economic interests
of the Tribe, and the Tribe is its “sole owner.” Dkt. 14-6, at 1-2. Thus, L.D.F. Business
Development is a “governmental subdivision” of the Tribe and is entitled to sovereign
immunity. See Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 812 (7th Cir. 1993);
Barker v. Menominee Nation Casino, 897 F. Supp. 389, 393 (E.D. Wis. 1995).7
Third, Theobald never filed an EEOC charge against L.D.F. Business Development.
Generally, a plaintiff may not assert a Title VII claim against a party that has not been
7
Theobald again contends that she should be allowed to discover the relationship between
the Tribe and L.D.F. Business Development. But her own allegations and the documents
referenced in her complaint demonstrate that L.D.F. Business Development is a
governmental subdivision of the Tribe. Accordingly, the court will deny Theobald’s request
for discovery.
13
named in an EEOC charge. Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir. 2013).
One exception to this rule is that a plaintiff may still proceed against the unnamed party if
the “party has been provided with adequate notice of the charge.” Id. (quoting Eggleston v.
Chi. Journeymen Plumbers’ Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir. 1981). But
a plaintiff cannot rely on this exception by making conclusory allegations that she exhausted
all administrative remedies. Id. at 667. The plaintiff must instead allege enough facts in her
complaint to allow the court to infer that the exception should apply. See Id. Here, Theobald
does not dispute that she never filed an EEOC charge against L.D.F. Business Development.
Nor does she allege in her complaint enough facts to infer that L.D.F. Business Development
has been given adequate notice. Accordingly, the court will dismiss her claims against the
L.D.F. Business Development.
D. State-law claims
Plaintiffs claim defamation, intentional infliction of emotional distress, invasion of
privacy, and negligence under state law. They rely on 28 U.S.C. § 1367 for the court’s
jurisdiction over these state-law claims.
Under 28 U.S.C. § 1367, the court may exercise supplemental jurisdiction “over all
other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States
Constitution.” But it is “the well-established law of this circuit that the usual practice is to
dismiss without prejudice state supplemental claims whenever all federal claims have been
dismissed prior to trial.” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also
28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental
14
jurisdiction over a claim under subsection (a) if the district court has dismissed all claims over
which it has original jurisdiction.”).
Here, as noted above, the court will dismiss all Title VII claims in this case. No federal
claim remains, and the court sees no reason to depart from the circuit’s general rule in this
instance. Accordingly, the court will dismiss all state-law claims without prejudice.
ORDER
IT IS ORDERED that:
1. Defendants Lac du Flambeau Band of Lake Superior Chippewa Indians, Henry
St. Germaine, and L.D.F. Business Development Corporation’s motion to
dismiss, Case No. 16-cv-604, Dkt. 13, is GRANTED.
2. These cases are DISMISSED.
3. The clerk of court is directed to close both Case Nos. 16-cv-604 and 16-cv605.
Entered February 21, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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