Williams, Patricia v. State of WI DWD et al

Filing 35

ORDER granting plaintiff Patricia Williams leave to proceed on her claim in case no. 17-cv-254-bbc that defendant Department of Workforce Development refused to give her a permanent position because of her disability, in violation of the Rehabilit ation Act. All other claims in case no. 17-cv-254 and case no. 17-cv-253-bbc and case no. 17-cv-255-bbc are DISMISSED WITHOUT PREJUDICE for plaintiff's failure to provide fair notice of those claims. Plaintiff may have until May 31, 2017, to f ile amended complaints in case nos. 17-cv-253-bbc and 17-cv-255-bbc. Plaintiff's motion to consolidate, dkts. ## 31 and 34 (in case no. 16-cv-830-bbc) and dkt. #4 (in case nos. 17-cv-253-bbc, 17-cv-254-bbc and 17-cv-255-bbc), is DENIED. The clerk of court is directed to forward copies of plaintiff's complaint in case no. 17-cv-254-bbc, completed summons forms and this order to the U.S. Marshal for service on defendant Department of Workforce Development. Signed by District Judge Barbara B. Crabb on 5/12/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PATRICIA ANN WILLIAMS,
OPINION and ORDER
Plaintiff,
16-cv-830-bbc
v.
WISCONSIN DEPARTMENT OF
WORKFORCE DEVELOPMENT,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PATRICIA WILLIAMS,
OPINION and ORDER
Plaintiff,
17-cv-253-bbc
v.
DEPT. OF WORKFORCE DEVELOPMENT
and DEPT. OF ADMINISTRATION,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PATRICIA WILLIAMS,
OPINION and ORDER
Plaintiff,
17-cv-254-bbc
v.
DEPT. OF WORKFORCE DEVELOPMENT,
Defendant.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PATRICIA WILLIAMS,
OPINION and ORDER
Plaintiff,
17-cv-255-bbc
v.
DEPT. OF WORKFORCE DEVELOPMENT,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - These four cases filed by plaintiff Patricia Williams are before the court for two
reasons.

First, case nos. 17-cv-253-bbc, 17-cv-254-bbc and 17-cv-255-bbc need to be

screened in accordance with 28 U.S.C. § 1915 to determine whether the complaint in each
case states a claim upon which relief may be granted. (The court screened case no. 16-cv830-bbc on February 2, 2017. Dkt. #8.) Second, plaintiff has filed a motion to consolidate
all of the cases. For the reasons explained below, I am allowing plaintiff to proceed on a
claim in case no. 17-cv-254-bbc that the Wisconsin Department of Workforce Development
refused to hire her for a permanent position because she is disabled; I am dismissing case
nos. 17-cv-253-bbc and 17-cv-255-bbc without prejudice for plaintiff’s failure to provide fair
notice of her claims, as required by Rule 8 of the Federal Rules of Civil Procedure; and I am
denying plaintiff’s motion to consolidate as premature.

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OPINION
I. SCREENING CASE NO. 17-CV-253-BBC
Plaintiff alleges that employees in the Department of Workforce Development and
the Department of Administration “were involved in printing, forging and cashing DVR
Training Grant Checks by using [plaintiff’s] identity.”

She also says that the same

employees “discriminated” and “retaliated” against her because of her “disability” and “for
exercising her First Amendment rights.” She asserts claims under the First Amendment,
Rehabilitation Act, Title VII of the Civil Rights Act of 1964 and the Racketeer Influenced
and Corrupt Organizations Act.
Plaintiff’s allegations do not state a claim upon which relief may be granted. As to
plaintiff’s First Amendment retaliation claim, a threshold problem is that a state agency such
as the Department of Workforce Development or the Department of Administration cannot
be sued for constitutional violations. Will v. Michigan Dept. of State Police, 491 U.S. 58,
65-66 (1989); Illinois Dunesland Preservation Society v. Illinois Dept. of Natural Resources,
584 F.3d 719, 721 (7th Cir. 2009). Rather, the plaintiff must sue individual defendants
who were personally involved in violating the plaintiff’s First Amendment rights, explaining
what each individual did. Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012).
Although plaintiff includes the names of individual employees in the body of her complaint,
she did not include their names in the caption of her complaint, which is what she must do
if she wants to name them as defendants, Myles v. United States, 416 F.3d 551, 551 (7th
Cir. 2005), and she did not explain how each of them was personally involved in violating

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her rights, which is what she must do to provide fair notice to defendants. She cannot
simply list individuals and state in conclusory fashion that they collectively retaliated against
her. Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008) (plaintiffs may not rely on
"[v]ague references to a group of ‘defendants,' without specific allegations tying the
individual defendants to the alleged unconstitutional conduct").
Even setting aside plaintiff’s failure to name a proper party, this claim has other
problems. To prevail on a First Amendment retaliation claim, a plaintiff must prove three
things: (1) she engaged in conduct that is protected by the First Amendment; (2) the
defendant subjected the plaintiff to adverse treatment because of the plaintiff’s
constitutionally protected activity; and (3) the defendant’s conduct was sufficiently adverse
to deter a person of "ordinary firmness" from engaging in the protected activity in the future.
Gomez v. Randle, 680 F.3d 859, 866-67 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541,
555-56 (7th Cir. 2009). Plaintiff’s allegations are not sufficient to satisfy any of these
elements.
First, plaintiff does not identify her speech or other conduct that is protected by the
First Amendment. Second, plaintiff does not allege that anyone took a particular act against
her because of any protected conduct. Third, because plaintiff does not identify any alleged
actions, it is impossible to tell whether she was subjected to an adverse act that would deter
a person of ordinary firmness from exercising her rights.
A state agency may be a proper defendant under the Rehabilitation Act, e.g., Wagoner
v. Lemmon, 778 F.3d 586 (7th Cir. 2015), but plaintiff’s claim is deficient in other respects.

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To prevail on an employment discrimination claim under the Rehabilitation Act claim, a
plaintiff must prove four things: (1) she is disabled within the meaning of the statute; (2)
she was otherwise qualified for the job in question; (3) she was subjected to an adverse
employment action solely because of her disability; and (4) the employment program of
which her job was a part received federal financial assistance. Whitaker v. Wisconsin
Department of Health Services, 849 F.3d 681, 684 (7th Cir. 2017). Perhaps some of these
elements could be inferred from the complaint, but plaintiff does not identify any way that
the Department of Workforce Development discriminated against her, so she has not stated
a claim under the Rehabilitation Act.
Plaintiff’s Title VII claim fails for the simple reason that the only type of
discrimination plaintiff alleges is disability discrimination.

Title VII applies to

discrimination because of sex, race, national origin and religion. Because plaintiff does not
allege that type of discrimination, I am dismissing the Title VII claim.
Plaintiff’s RICO claim against the state agencies is barred by the doctrine of sovereign
immunity.

Chaz Construction, LLC v. Codell, 137 Fed. Appx. 735, 743, 2005 WL

1313841, at *7 (6th Cir. May 11, 2005); Bair v. Krug, 853 F.2d 672, 674–75 (9th
Cir.1988); Doe v. Board of Trustees of University of Illinois, 429 F. Supp. 2d 930, 941
(N.D. Ill. 2006). Further, a civil RICO claim can be brought only when the plaintiff is
claiming an injury to her business or property, RWB Services, LLC v. Hartford Computer
Group, Inc., 539 F.3d 681, 685 (7th Cir. 2008), something that plaintiff has not alleged.
See also DeGuelle v. Camilli, 664 F.3d 192, 198 (7th Cir. 2011) (plaintiff’s injury must be

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caused by conduct of enterprise in interstate commerce through pattern of racketeering
activity).
Because plaintiff’s allegations do not state a claim upon which relief may be granted,
I am dismissing this complaint. However, I will give plaintiff an opportunity to file an
amended complaint that addresses the problems identified in this order.
I remind plaintiff that an amended complaint must be able to replace the original
complaint. In other words, plaintiff must include all the facts related to a particular claim
that she wants the court to review when considering whether she has stated a claim upon
which relief may be granted. If plaintiff chooses to file an amended complaint, she should
review the elements of her claims and draft her complaint with those elements in mind. She
should also review the court’s February 27, 2017 order in case no. 16-cv-830-bbc that sets
out instructions for filing an amended complaint.

II. SCREENING NO. 17-CV-254-BBC
Plaintiff alleges that she had a temporary position as a training specialist with the
Department of Workforce Development from April 2016 to October 2016 and that the
department “refused to hire or rehire [her] based on her disability.” Plaintiff asserts claims
under the Rehabilitation Act and Title VII of the Civil Rights Act of 1964. I conclude that
plaintiff has stated a claim under the Rehabilitation Act but not Title VII of the Civil Rights
Act.
As to the Rehabilitation Act, plaintiff does not identify in her complaint what her

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disability is and she does not explain why she believes her disability was the reason the
department did not give her a permanent job. However, that information is not required in
this circuit. Rutledge v. Illinois Dept. of Human Services, 785 F.3d 258, 259 (7th Cir.
2015) (plaintiff stated claim for disability discrimination by alleging “that his discharge
ostensibly for neglect was actually motivated by his being disabled”).
Plaintiff does not allege explicitly that the department receives federal funds, but it
is reasonable to assume at the pleading stage that it does. It is also reasonable to infer that
plaintiff was qualified for the position from her allegation that she performed the job for
several months. Of course, at summary judgment at trial, plaintiff will have to come forward
with admissible evidence that supports each element of her claim.
I am dismissing plaintiff’s Title VII claim because plaintiff does not allege that the
department discriminated against her for any of the reasons protected by that statute.

III. SCREENING NO. 17-CV-255-BBC
Plaintiff alleges that employees of the Department of Workforce Development
“released” her “Confidential Case File Records” to various state and municipal agencies and
without her authorization. Plaintiff also alleges that two of her “case file records . . . have
been destroyed” and that the department “is refusing to release any of [her] records.”
Finally, plaintiff alleges that the department took these actions because she “exposed &
reported Fraud within her old DVR Confidential case file.” She asserts claims under the
First Amendment and the Rehabilitation Act.

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Plaintiff’s does not say whether the alleged retaliation in this case is related to the
alleged retaliation in case no. 17-cv-253-bbc. In any event, plaintiff has not stated a claim
under the First Amendment or the Rehabilitation Act.
As to the First Amendment, again, the Department of Workforce Development
cannot be sued for First Amendment violations; plaintiff must name individuals, explaining
how each individual was personally involved in violating her First Amendment rights. Also,
plaintiff does not provide any facts about the nature of the speech that she believes is
constitutionally protected. For example, plaintiff does not provide any details about the
“fraud” that she reported and she does not identify even the subject matter of the files that
were allegedly disseminated, destroyed and withheld. Without that information, it is
impossible to determine whether plaintiff engaged in conduct that is protected by the First
Amendment or whether the alleged conduct of the department’s employees likely would
deter an average person from exercising her First Amendment rights.
Plaintiff’s Rehabilitation Act claim fails because she does not allege that she was
discriminated against because of her disability in the context of a program or activity that
receives federal financial assistance. If plaintiff means to bring a retaliation claim under the
Rehabilitation Act, it is not clear whether a plaintiff may bring such a claim, as the court
noted in case no. 16-cv-830-bbc, dkt. #8 at 5. If such a claim is available, it is limited to
retaliation for complaining about disability discrimination or participating in an
investigation about disability discrimination. Id. at 5-7. Plaintiff does not allege that the
alleged retaliation was related to an investigation or complaint about disability, so she

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cannot proceed on a claim under the Rehabilitation Act.
Again, I will give plaintiff an opportunity to amend her complaint to correct the
problems that I have identified.

IV. MOTION TO CONSOLIDATE
Plaintiff seeks to consolidate all of her cases that are pending in this court. I am
denying this motion without prejudice. Until the scope of plaintiff’s claims in these cases
is determined, it would be premature to determine whether it makes sense for the cases to
be consolidated.

ORDER
IT IS ORDERED that
1. Plaintiff Patricia Williams is GRANTED leave to proceed on her claim in case no.
17-cv-254-bbc that defendant Department of Workforce Development refused to give her
a permanent position because of her disability, in violation of the Rehabilitation Act.
2. All other claims in case no. 17-cv-254 and case no. 17-cv-253-bbc and case no. 17cv-255-bbc are DISMISSED WITHOUT PREJUDICE for plaintiff’s failure to provide fair
notice of those claims.
3. Plaintiff may have until May 31, 2017, to file amended complaints in case nos.
17-cv-253-bbc and 17-cv-255-bbc. If plaintiff does not respond by May 31, 2017, I will
dismiss those two cases with prejudice.

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4. Plaintiff’s motion to consolidate, dkts. ## 31 and 34 (in case no. 16-cv-830-bbc)
and dkt. #4 (in case nos. 17-cv-253-bbc, 17-cv-254-bbc and 17-cv-255-bbc), is DENIED.
5. The clerk of court is directed to forward copies of plaintiff’s complaint in case no.
17-cv-254-bbc, completed summons forms and this order to the U.S. Marshal for service on
defendant Department of Workforce Development. Plaintiff should not attempt to serve
defendant on her own.
6. For the time being, plaintiff must send defendant a copy of every paper or
document she files with the court. Once plaintiff has learned what lawyer will be
representing defendant, she should serve the lawyer directly rather than defendant. The court
will disregard any documents submitted by plaintiff unless she shows on the court's copy that
she has sent a copy to the defendant or its attorney.
7. Plaintiff should keep a copy of all documents for her own files. If plaintiff does not
have access to a photocopy machine, she may send out identical handwritten or typed copies
of her documents.
8. If plaintiff moves while this case is pending, it is her obligation to inform the court
of her new address. If she fails to do this and defendant or the court are unable to locate her,

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her case may be dismissed for failure to prosecute.
Entered this 12th day of May, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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