351 F.Supp.2d 858 (E.D.Wis. 2004), 02-C-0817, Stately v. Indian Community School of Milwaukee, Inc.

Docket Nº02-C-0817.
Citation351 F.Supp.2d 858
Party NameMarny STATELY, Plaintiff, v. INDIAN COMMUNITY SCHOOL OF MILWAUKEE, INC., Defendant.
Case DateDecember 30, 2004
CourtUnited States District Courts, 7th Circuit, Eastern District of Wisconsin

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351 F.Supp.2d 858 (E.D.Wis. 2004)

Marny STATELY, Plaintiff,

v.

INDIAN COMMUNITY SCHOOL OF MILWAUKEE, INC., Defendant.

No. 02-C-0817.

United States District Court, E.D. Wisconsin.

Dec. 30, 2004

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Marny Stately, San Diego, CA, Pro Se.

Brian A. O'Brien, Kevin Wadzinski, Gardner, Carton & Douglas, Washington, DC, David J. B. Froiland/Lawrence T. Lynch, Foley & Lardner, Milwaukee, WI, for Defendant.

DECISION AND ORDER

RANDA, Chief Judge.

The Indian Community School of Milwaukee, Inc. ("ICS" or "the school") hired Marny Stately ("Stately") in August 2001 and fired her five months later. (Compl. ¶ 5.) Stately believes that her termination was unlawful and is suing ICS. She claims ICS discriminated against her on the basis of her religion and her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Civil Rights Act of 1866, 42 U.S.C. § 1981 (" § 1981"), and the Wisconsin Fair Employment Act, Wis. Stat. §§ 111.321-.322 ("WFEA"). She also alleges breach of contract and wrongful termination.

Before the Court are several motions. First, ICS has moved the Court to dismiss the action for lack of subject matter jurisdiction based on the Free Exercise and Establishment Clauses of the First Amendment. ICS also has filed a motion asking the Court to extend the time for discovery and filing dispositive motions. Finally, Stately has recently filed a letter1 requesting appointment of counsel. For the reasons set forth below, ICS's motion to dismiss for lack of subject matter jurisdiction is granted, and the remaining two motions-ICS's motion for extension of time for discovery and filing of dispositive motions and Stately's motion for appointment of counsel-are dismissed as moot.

I. BACKGROUND

ICS is a private elementary and middle school in Milwaukee, Wisconsin. (Mem. Supp. Mot. Dismiss ("Mem.") at 2.) Established in 1969, ICS seeks to offer students an education based on traditional Indian spiritual and cultural principles. (Id.) All of the school's students are either members

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of Indian tribes or of Indian descent, as are the members of its Board of Directors. (Id.)

The school focuses primarily on developing its students spiritually, as well as emotionally, physically, socially, artistically, and intellectually. (Id. at 3.) To achieve this development, ICS teachers are directed to expose students to as much Indian culture and spiritual belief in the classroom as possible. (Id.) Teachers, as a condition of their employment, are required to teach and engage in traditional Native American ceremonies on a regular basis and participate in the school's spiritually based mentorship program. (Decl. of Jo Lewis ("Lewis Decl.") ¶ 9.) The students' tribal backgrounds are diverse, however, so the school is careful not to overemphasize the spiritual traditions of one tribe to the exclusion of another. (Mem. at 4.) Moreover, many of the students also practice traditional western religions, like Catholicism, and various forms of Protestantism, among others. (Id.)

ICS regularly conducts religious ceremonies. On the first day of every month, the school holds opening ceremonies and on the last day of every month, closing ceremonies. (Lewis Decl. ¶ 17.) Attendance is mandatory for students and teachers alike. (Id.) The ceremonies include culturally and spiritually significant activities like pipe ceremonies, drumming, song, and prayer. (Id. pp 17, 20.) The school also hosts sweat lodge ceremonies twice a month. (Decl. of Brian Gunn ("Gunn Decl.") Ex. 1 at 23-24.) The school has its own sweat lodge structure, constructed of willow, where, during the ceremonies, heated rocks are brought into a pit inside the lodge. (Id. at 23 & 24 n. 10.) The sacred sweat lodge ceremonies are believed to provide physical and spiritual healing to individuals and communities alike. (Id. at 23.) Students and faculty also make regular use of the school's spirit pole, both formally and informally, by performing rituals or praying. (Id. at 25.) Like the sweat lodge, the spirit pole is considered a sacred place. (Id.) Constructed of cedar (regarded as a cleansing substance), the pole is adorned with tobacco and eagle feathers. (Id.) Spirit poles have been described as the axis mundi --the center around which the earth turns. (Id.) The school observes seasonal feasts to celebrate the changing of the seasons. (Id. at 29.) Smudging-a method of prayer and blessing involving the spreading of smoke from aromatic herbs-is practiced regularly. (Id. at 30.)

The school also has at least four full-time positions for Native American cultural, spiritual, and language specialists. (Aff. of Dr. Linda Sue Warner ("Warner") ¶ 6.)2 These specialists foster a deeper understanding of rituals and ceremonies. The language teachers, besides teaching conversational language skills, teach students and other teachers prayers and blessings in either the Ojibwe, Menominee, or Oneida language. (Decl. of Cheryl Weber pp 5-7.)

For a brief time Stately was a teacher at ICS. During her time at the school, Stately participated, and sometimes assumed a leadership role, in various religious and cultural ceremonies. (Answers to Req. for Admission pp 21-22, 24-25, 39-43, 62, 63.) She also served as a mentor to several students in the school's spiritually based mentorship program. (Lewis Decl. ¶ 14; Warner Aff. Ex. 11.) Like the other teachers, Stately was expected to incorporate Native American cultural and religious traditions into her lessons. In December 2001, apparently unhappy with her lack of respect for the variety of religious

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traditions at the school, ICS fired Stately. (Compl. ¶ 5.) Not surprisingly, ICS and Stately disagree on the reasons she was fired. In response to her termination, Stately began a series of legal actions culminating in the filing of this suit in August 2002.

Stately has consistently failed, however, to diligently prosecute her action in this Court. When Stately's original counsel withdrew, the Court granted her time to find new representation. After three months of waiting, the Court issued an order giving Stately thirty additional days either to find an attorney or move the case forward on her own.3 Stately never found an attorney.

Once on her own, Stately's dereliction quickly became blatant. For months Stately disregarded the Court's order to notify ICS of her experts by July 1, 2003, and her lay witnesses by August 8, 2003 (she had done neither by late November 2003). Similarly, Stately's Rule 26(f) initial disclosures were over six months late. She never provided ICS with signed and sworn responses to Requests for Admissions and Interrogatories.4

Stately has also made it impossible for ICS to depose her. Stately's deposition was first set for Monday, October 13, 2003. On Friday, October 10, 2003, despite having nearly one month's notice of the deposition date, Stately informed ICS that she would not be at the deposition. Stately had moved to California since filing her lawsuit and claimed to be unable to return to Milwaukee for the deposition. The Court again ordered Stately to make herself available for deposition, this time on or before May 10, 2004. The Court made it clear that further delay in discovery would not be tolerated. (See Second Amended Scheduling Order, April 7, 2004 ("Neither the pendency of motions nor settlement discussions shall affect any of the dates set in this action, and neither shall justify delays in the taking of discovery.").) But Stately's cavalier disobedience continued. Stately, once again, did not attend her deposition and told ICS that she would not do so until later.

Over two years passed in the litigation and discovery had gone virtually nowhere. Consequently, ICS filed a motion to dismiss and a motion to extend discovery. Though Stately did not respond to ICS's motions, the Court denied them without prejudice because ICS had not shown that it served Stately. After the Court denied ICS's motions, however, Stately wrote a letter to the Court admitting that she had been served. In her letter, she noted that, while she did not oppose ICS's motion to extend discovery, she needed forty-five more days to respond to ICS's motion to dismiss. Stately's request for extra time came eight days after her responsive deadline had passed. Satisfied that Stately had, in fact, been served, the Court reopened ICS's motions and gave Stately two weeks to respond.5 Two weeks came and two weeks went; Stately did not respond. Then, four days after her deadline

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and over two years after her lawyer withdrew, Stately wrote a letter requesting that the Court appoint her counsel.

Thus, ICS's motion to dismiss is still unopposed. Were it empowered, the Court would dismiss the action sua sponte for Stately's failure to prosecute. See, e.g., Casteel v. Pieschek, 3 F.3d 1050, 1055 (7th Cir. 1993) ("Under Federal Rule of Civil Procedure 41(b), dismissal is appropriate when there is a clear record of delay or contumacious behavior." (quotations omitted)); Daniels v. Brennan, 887 F.2d 783, 785...

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