Bornick v. Sondalle, 01-C-0405.

• Decision Date: 20 November 2001
• Docket Number: No. 01-C-0405.,01-C-0405.
• Citation: 179 F.Supp.2d 941
• Parties: Thomas R. BORNICK, Plaintiff, v. Kenneth SONDALLE, in his individual capacity, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

179 F.Supp.2d 941

Thomas R. BORNICK, Plaintiff, v. Kenneth SONDALLE, in his individual capacity, Defendant.

No. 01-C-0405.

United States District Court, E.D. Wisconsin.

November 20, 2001.

Jeff Scott Olson, Jeff Scott Olson Law Firm, Madison, WI, for Plaintiff.

Richard Briles Moriarty, Michael J. Losse, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendant.

DECISION AND ORDER

GORENCE, United States Magistrate Judge.

The plaintiff, Thomas R. Bornick, commenced this action on April 25, 2001, against defendant, Kenneth Sondalle. In his first amended complaint (complaint), the plaintiff alleges that his rights secured under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 215(a)(3) were violated when his employment was terminated by the defendant in retaliation for reporting wage violations. The plaintiff alleges that defendant Sondalle, who was at all relevant times a warden for the State of Wisconsin, is sued in his individual capacity. The plaintiff seeks compensatory damages, including damages for lost wages, out-of-pocket expenses, physical, mental and emotional distress, community humiliation and loss of reputation, and punitive damages.

The defendant filed a motion to dismiss based on lack of jurisdiction (Docket # 7) and a motion to dismiss the first amended complaint for lack of jurisdiction (Docket # 10). Both motions seek dismissal of the complaints on the ground that the action is barred by the Eleventh Amendment because the state's immunity also extends to the defendant.

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73.1 (E.D. Wis.).

DEFENDANT'S MOTIONS TO DISMISS

The defendant filed a motion to dismiss the complaint for lack of subject matter on June 20, 2001. Thereafter, on June 25, 2001, the plaintiff filed an amended complaint. An amended complaint supersedes the prior complaint. See Duda v. Board of Educ. of Franklin Park Public School Dist. No. 84, 133 F.3d 1054, 1056 (7th Cir.1998). In Duda, the appellate court emphasized that in such instances, the "prior pleading is in effect withdrawn as to all matters not restated in the amended pleading." Id. (citations omitted). In light of the foregoing, the initial defendant's motion to dismiss (Docket # 7) will be denied.

The defendant also filed a motion to dismiss the amended complaint based on lack of jurisdiction on July 5, 2001, citing Rules 12(b)(1) and (2) of the Federal Rules of Civil Procedure. He asserts that the Eleventh Amendment of the United States Constitution bars the plaintiff's claims under the FLSA, as amended, 29 U.S.C. § 201 et seq. The defendant notes that the plaintiff asserts that he sues the defendant only in his individual capacity and only for monetary relief under the FLSA. However, the defendant contends that under binding precedent, the claims against the defendant under the FLSA are actually claims against the state and therefore barred by the Eleventh Amendment. The defendant cites Luder v. Endicott, 253 F.3d 1020 (7th Cir.2001) and Mueller v. Thompson, 133 F.3d 1063, 1064 (7th Cir. 1998), in support of his position.

In opposing the motion, the plaintiff asserts that his claim in this case is genuinely against the defendant in his individual capacity, as the claim is based upon actions made solely by the defendant which were not in furtherance of any state custom or policy. In so contending, the plaintiff relies on Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.2001).¹ He also argues that the circumstances of this case are different than those presented in Luder.

A motion brought pursuant to Rule 12(b)(1) seeks dismissal for lack of subject matter jurisdiction. In ruling on a Rule 12(b)(1) motion, the court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993). A court must dismiss the case without ever reaching the merits if it concludes it has no jurisdiction. Id. However, "[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether, in fact, subject matter jurisdiction exists." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979).

In a motion to dismiss for lack of subject matter jurisdiction where the relevant facts are contested, the party asserting jurisdiction bears the burden of establishing the required jurisdictional facts "by competent proof." Id. The plaintiff must prove by "a preponderance of the evidence or `proof to a reasonable probability' that jurisdiction exists." NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.1995) (quoting Gould v. Artisoft, Inc., 1 F.3d 544, 547 [7th Cir.1993]). In resolving the issue of subject matter jurisdiction, the plaintiff's complaint will be read as a whole with any relevant specific allegations found in the body of the complaint taking precedence over the formal jurisdictional allegation and with all uncontroverted factual allegations being accepted as true. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1350, at 219-20 (1990); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

The defendant's motion to dismiss also cites Fed.R.Civ.P. 12(b)(2), which refers to a motion to dismiss for lack of personal jurisdiction. In ruling on a motion to dismiss for lack of personal jurisdiction, courts are not limited to the facts set forth in the complaint, but rather may receive and consider affidavits from both parties. Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983); see also, Met-L-Wood Corp. v. SWS Industries, Inc., 594 F.Supp. 706, 708 n. 5 (N.D.Ill.1984). When deciding such a motion solely on the basis of the parties' written materials, the plaintiff need only show a prima facie case of personal jurisdiction and is entitled to have all inferences about material jurisdictional facts resolved in his favor. Wisconsin Elec. Mfg. Co., Inc. v. Pennant Products, Inc., 619 F.2d 676, 677 (7th Cir.1980).

Review of the allegations of the complaint to determine whether the plaintiff's complaint is actually a claim for damages against the state is essential to an analysis of the Eleventh Amendment issue raised by the defendant's motion.² The court will accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. See Capitol Leasing Co., 999 F.2d at 191.

At all relevant times, the plaintiff was employed by the State of Wisconsin Department of Corrections (Department of Corrections). "At all material times" to the complaint, defendant Kenneth Sondalle was employed as a warden for the Department of Corrections. (Complaint ¶ 5). The plaintiff alleges that defendant Sondalle is sued in his individual capacity. (Complaint ¶ 5). In July 1978, the plaintiff began work as a correctional officer at Waupun Correctional Institution in Waupun Wisconsin. By 1991, the plaintiff had reached the rank of captain.

In 1991, the plaintiff initiated a grievance procedure for wage and hour violations against his employer, the Department of Corrections. He sought compensation for overtime hours worked but not paid. Thereafter, sometime in 1993, the plaintiff filed a wage and hour complaint with the Department of Employment Relations in Madison, Wisconsin. After an investigation, the Department of Employment Relations wrote a letter directing the Department of Corrections to compensate the plaintiff for 325 hours of overtime. The Department of Corrections did not comply with the directive. The Department of Corrections settled with the plaintiff fifteen months later.

The "Madison Office, as well as many managing officers," knew of the plaintiff's wage and hour complaint. (Complaint ¶ 23). "At this time," defendant Sondalle, who later terminated the plaintiff's employment, was the Administrator of the Department of Corrections' Division of Adult Institutions. (Complaint ¶ 23). The implications of the plaintiff's complaint were "far-reaching and potentially costly" for the Department of Corrections. (Complaint ¶ 23). When the complaint was filed, it was clear that the Department of Corrections would quite possibly be responsible for compensating numerous eligible employees, like the plaintiff, who might choose to make a claim for overtime pay.

The plaintiff alleges that he was subject to seven reprisals after he made his wage and hour complaint. The first reprisal occurred one month after the plaintiff initiated his complaint in 1991, when Jeff Smith, his supervisor at that time, moved the plaintiff from first to second shift. The second reprisal, occurred when the plaintiff's supervisor, Adelaide Krahn, Chief of Training and Standards, decided that the plaintiff was no longer "allowed to teach at MPTC/FDL, despite many other correctional officers doing the same thing." (Complaint ¶ 27).

The third reprisal took place in 1996 when Ms. Krahn initiated an investigation of the plaintiff's personal use of a state computer and his placing of long distance phone calls on state phones.³ Pre-disciplinary procedures were not followed. The plaintiff received a letter of reprimand and a five-day suspension as a result of the investigation.⁴ Ms. Krahn verbally reprimanded the plaintiff in front of Tom Borgen, the "Security Chief." (Complaint ¶ 37). Ms. Krahn also "realigned" some of the plaintiff's responsibilities, "including removal of Juvenile Training responsibility." (Complaint ¶ 36). As the...