Daryl Strohschein v. Saputo Cheese USA Inc.
Filing
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OPINION and ORDER denying 10 Motion to Dismiss; granting 13 Motion to Sever; granting 22 Partial Stipulation of Dismissal. Plaintiffs' state-law claims are DISMISSED. The claims of Peter Markgren will proceed as case No. 21-cv-429-jdp. The claims of Daryl Strohschein will proceed under new case 22-cv-470-jdp. Jury Selection and Trial for Markgren's case set for 2/27/23. Jury Selection and Trial for Strohschein's case set for 3/27/23. Signed by District Judge James D. Peterson on 8/25/22. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PETER MARKGREN and
DARYL STROHSCHEIN,
Plaintiffs,
OPINION and ORDER
v.
21-cv-429-jdp
SAPUTO CHEESE USA INC.,
Defendant.
For more than 30 years, plaintiffs Peter Markgren and Daryl Strohschein worked for
defendant Saputo Cheese, USA, Inc., a producer of blue cheese. Markgren eventually became
a rotary press operator at Saputo’s original plant and Strohschein became a night shift
production supervisor at Saputo’s newly built plant. Markgren was terminated from his
position in 2019 at the age of 55. Several months later, Strohschein was also terminated. He
was 54 years old.
Plaintiffs assert age, sex, and disability discrimination and retaliation claims against
Saputo. Saputo moves to dismiss most of those claims under Federal Rule of Civil Procedure
12(b)(6) on grounds that plaintiffs have not adequately alleged discriminatory conduct and
that plaintiffs failed to exhaust one of their claims. Dkt. 10. Saputo also moves to sever
Markgren’s and Strohschein’s claims. Dkt. 13.
The court will deny Saputo’s motion to dismiss. The allegations in plaintiffs’ complaint
meet federal pleadings standards for discrimination and retaliation claims and Saputo has not
demonstrated any failure to exhaust. The motion to sever will be granted because plaintiffs’
claims are based on fundamentally discrete and separate events.
ANALYSIS
A. Motion to dismiss
Plaintiffs bring various age, sex, and disability discrimination and retaliation claims
against Saputo. Specifically, Markgren and Strohschein both contend that they were
terminated on the basis of: (1) age in violation of the Age Discrimination in Employment Act
(ADEA); and (2) sex in violation of Title VII of the Civil Rights Act. Markgren also contends
that Saputo: (3) created a hostile work environment based on age; (4) failed to accommodate
his disabilities in violation of the Americans with Disabilities Act (ADA); (5) terminated him
based on his disabilities in violation of the ADA; and (6) retaliated against him for age and
disability-related reasons.1
Saputo moves under Rule 12(b)(6) to dismiss plaintiffs’ claims, with the exception of
both plaintiffs’ age-based termination claims. Saputo’s primary contention is that plaintiffs’
allegations are inadequate to support the required elements of each of their claims. The bulk
of Saputo’s brief discusses the prima facie elements for each of plaintiffs’ claims and identifies
those elements where plaintiffs failed to allege underlying facts.
But at the pleading stage, the standard for stating an employment discrimination or
retaliation claims is permissive. A plaintiff is not required plead detailed factual allegations or
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Plaintiffs also initially brought state-law claims of negligent and intentional infliction of
emotional distress, negligent hiring and retention, and wrongful termination. They filed a
“partial stipulation of dismissal” of those state-law claims. Dkt. 22. But a stipulation under
Federal Rule of Civil Procedure 41(a) can be used only to dismiss the entire action; the
appropriate vehicle here is an amended complaint under Rule 15(a). See Taylor v. Brown, 787
F. 3d 851, 857-58 (7th Cir. 2015). So I will construe the parties’ stipulation as a motion to
amend plaintiff’s complaint with defendants’ written consent under Rule 15(a)(2). I will accept
the motion and deem those claims to be dismissed from plaintiff's operative complaint. Dkt. 1.
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a prima facie case with factual support for each element of his claim. Kaminski v. Elite Staffing,
Inc., 23 F.4th 774, 777 (7th Cir. 2022). Rather, a plaintiff must only identify the type of
discrimination he believes occurred, who is responsible, and when it happened. Swanson v.
Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010). What matters is that a plaintiff advances
plausible allegations that he experienced discrimination because of a protected characteristic.
Graham v. Bd. of Educ., 8 F.4th 625, 627 (7th Cir. 2021) (to plead an employment
discrimination case, “it is enough for a plaintiff to assert that [he] was treated worse because
of protected characteristics”).
In this case, the court has reviewed plaintiffs’ lengthy complaint and concludes that it
contains sufficient allegations to satisfy the applicable standard. For example, Markgren and
Strohschein allege that they were terminated on the basis of sex. Markgren says that he was
fired following an altercation with an employee who harassed him. Strohschein says that he
was terminated after a series of mechanical problems halted cheese production for a week. But
plaintiffs say that these incidents were pretextual reasons for firing them and that they were
treated more harshly because they are men. They say that Saputo’s female human resources
staff did not fairly investigate these incidents or allow them to explain their actions. More
broadly, they allege that Saputo had a practice of protecting female employees from discipline
more than men. They provide examples of female employees who violated procedures or failed
to perform their duties and faced no consequences. Markgren also says he was replaced with a
less-experienced female employee. This is enough to state a plausible discrimination claim at
the pleading stage.
To state a retaliation claim, a plaintiff must allege that he: (1) engaged in statutorily
protected activity; and (2) suffered an adverse employment action because of the protected
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activity. See Freelain v. Vill. of Oak Park, 888 F.3d 895, 901 (7th Cir. 2018). In this case,
Markgren says that he engaged in statutorily protected activity when he took Family Medical
Leave Act (FMLA) leave to address medical issues, requested accommodations for his
disabilities, and complained about harassment by his coworkers. He says that he was
disciplined and terminated from his job as a result of these actions. These allegations are
adequate to state a claim for retaliation.
The remaining allegations in plaintiffs’ complaint are similarly detailed and sufficient
to state plaintiffs’ other age and disability discrimination claims. Saputo’s arguments attacking
plaintiffs’ ability to a establish a prima facie discrimination case are more appropriate for the
summary judgment stage, when plaintiffs will be required to adduce admissible evidence in
support of each element of their claims. Graham, 8 F.4th at 627.
Saputo also contends that Markgren failed to exhaust his failure-to-accommodate claim
brought under the ADA. Before bringing a lawsuit against an employer under the ADA, an
employee must first exhaust his administrative remedies by filing a charge with the Equal
Employment Opportunities Commission (EEOC). Riley v. City of Kokomo, 909 F.3d 182, 189
(7th Cir. 2018).
Exhaustion usually is not litigated in a motion to dismiss because a court cannot
consider evidence outside the pleadings and resolving exhaustion issues depends on documents
that a plaintiff has filed with relevant outside administrative agencies. But in this case, both
parties attached versions of Markgren’s state-level and EEOC charging documents to their
briefs.2 Saputo attached a charging document that Markgren filed by mail. Dkt. 12-1. Plaintiffs
2
Plaintiffs first ask the court not to consider the documents but go on to offer documents of
their own. Even if the court excluded the documents, it would result in the same outcome
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attached a charging document that Markgren later filed by fax. Dkt. 17-2. Because both sides
submitted the charging documents, and because charges of discrimination filed with
administrative bodies are subject to judicial notice as matters of public record, Obazuaye v.
Illinois Dep't of Hum. Servs., No. 21-c-3132, 2021 WL 5204700, at *2 (N.D. Ill. Nov. 9, 2021),
the court will consider them.
Saputo contends that Markgren didn’t exhaust his failure-to-accommodate claim
because he didn’t discuss requesting accommodations in his state-level and EEOC charge. The
general rule is that a plaintiff may not raise claims in his federal lawsuit that were not raised in
the EEOC charge. Id. But there is an exception for claims that are “reasonably related to one
of the EEOC charges and can be expected to develop from an investigation into the charges
actually raised.” Id.
The parties agree that Markgren accused Saputo of disability discrimination in his
EEOC charging documents. He stated in both versions that he was terminated and harassed
because of his heart condition, back injury, and depression. Markgren’s mailed charging
document does not explicitly refer to accommodations, Dkt. 12-1, but in his faxed document,
he wrote “failure to accommodate” by hand in the margins next to his allegations, Dkt. 17-2,
at 4. The parties discuss whether the handwritten note was enough to raise the failure-toaccommodate claim, whether Saputo received notice of the claim, and state investigators’
treatment of accommodation issues in its determination on Markgren’s charges.
But the handwritten note is beside the point because Markgren’s failure-toaccommodate claim was reasonably related to his other disability discrimination allegations in
because the court concludes that plaintiff has exhausted his claim.
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the state-level and EEOC charge. Failure-to-accommodate claims are distinct from ADA
disability discrimination claims. Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). But
for exhaustion purposes, the two are frequently intertwined. Edwards v. Illinois Dep't of Fin., 210
F. Supp. 3d 931, 943 (N.D. Ill. 2016) (failure-to-accommodate claim was reasonably related
to ADA discrimination claim even though plaintiff did not use the words “reasonable
accommodation” in her EEOC charge, because an investigation into her termination claims
would have revealed a reasonable accommodation claim); Ortiz v. Bd. of Educ. of City of Chi.,
No. 11-c-9228, 2013 WL 3353918, at *5 (N.D. Ill. July 2, 2013) (failure-to-accommodate
claim reasonably related to disability discrimination claim when it was not unreasonable to
think that an investigation into the termination would uncover accommodation allegations).
Here, Markgren described his disabilities in his EEOC charge and discussed several
instances where he took FMLA leave to address his health conditions, which is a type of
accommodation. He stated in the EEOC charge that Saputo’s human resources department
was aware of his disabilities and some of his limitations, particularly in relation to his heart
condition and back injuries. So it is reasonable to think that an investigation into Markgren’s
disability discrimination claims based on termination and harassment would also lead to
questions about whether Markgren sought and received accommodations. Markgren has
properly exhausted this claim.
B. Motion to sever
Saputo moves to sever Markgren’s claims from Strohschein’s claims under Federal Rule
of Civil Procedure 21. Dkt. 13. Rule 21 allows a court to sever any claim against any party.
The court may sever Markgren’s claims from Strohschein’s if their claims are “discrete and
separate.” Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 442 (7th Cir. 2006). In other
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words, severance is appropriate if one set of claims is capable of resolution despite the outcome
of the other set. Id.
Here, it makes sense to sever the case. Plaintiffs’ claims bear some similarities, and they
involve some overlapping facts. For example, both plaintiffs worked for Saputo for many years
before being terminated at around the age of 55. And both plaintiffs allege that Saputo
terminated them based on their age and gender.
But the claims are independently capable of resolution for several reasons. During the
time period relevant to this lawsuit, Markgren and Strohschein held different jobs in different
plants. They were terminated three months apart and were given different reasons for losing
their jobs. For the most part, the events at issue involved different Saputo employees and
managers. And Markgren brings four claims, based on disability discrimination and retaliation,
that Strohschein does not.
Under these circumstances, it would be less efficient to try the claims together. The
court will grant Saputo’s motion to sever Markgren’s claims from Strohschein’s claims and
litigate them separately.
ORDER
IT IS ORDERED that:
1. Defendant Saputo Cheese USA, Inc.’s motion to dismiss, Dkt. 10, is DENIED.
2. Defendant’s motion to sever, Dkt. 13, is GRANTED.
3. The parties’ partial stipulation to dismiss plaintiffs’ state-law claims, Dkt. 22, is
construed as a motion for leave to amend the complaint. The motion is GRANTED.
Plaintiffs’ state-law claims are DISMISSED.
4. This case is severed in accordance with Fed. R. Civ. P. 21 and the court’s inherent
authority. The claims of Peter Markgren will proceed as case No. 21-cv-429-jdp.
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The clerk of court is directed to assign a new case number to the claims of plaintiff
Daryl Strohschein.
5. As stated in Dkt. 20, the court will try Markgren's case on February 27, 2023, and
it will try Strohschein's case on March 27, 2023.
Entered August 25, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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