Brown v. Pick 'n Save Food Stores

• Decision Date: 24 April 2001
• Docket Number: No. 00-C-148.,00-C-148.
• Citation: 138 F.Supp.2d 1133
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Sharon BROWN, Plaintiff, v. PICK 'N SAVE FOOD STORES, Defendant.

138 F.Supp.2d 1133

Sharon BROWN, Plaintiff, v. PICK 'N SAVE FOOD STORES, Defendant.

No. 00-C-148.

United States District Court, E.D. Wisconsin.

April 24, 2001.

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Sharon Brown, pro se.

Lisa Bergerson, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Sharon Brown brings this pro se action against her former employer, B & H Gold Corporation d/b/a Gold's Pick 'N Save, alleging that defendant discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12117, and violated state law by wrongfully discharging her in retaliation for filing a worker's compensation claim. The court has jurisdiction of the ADA claim pursuant to 28 U.S.C. §§ 1331 and 1343 and of the state law claim under 28 U.S.C. § 1367(a).

Plaintiff was employed by defendant as a cashier clerk for nine years. In 1998 while at work, she fell and injured her knee and ankle and subsequently filed a worker's compensation claim after which defendant terminated her. Plaintiff alleges that during the course of her employment defendant violated the ADA by treating her unfairly because she has a learning disability and suffers from mental retardation and clinical depression. Plaintiff also alleges that defendant wrongfully fired her because she filed for worker's compensation. Defendant filed an answer to the complaint and now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

II. STANDARD OF REVIEW

Under Rule 12(c), a party may move for judgment on the pleadings. See Fed.R.Civ.P. 12(c). "Like Rule 12(b) motions, courts grant a Rule 12(c) motion only if `it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.'" N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir.1998) (quoting Craigs, Inc. v. Gen. Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir.1993)). Thus, to succeed, the moving party must demonstrate that there are no material issues of fact to be resolved. Id. The facts are viewed in the light most favorable to the nonmoving party, but facts set forth in the complaint that undermine the plaintiff's claim are not ignored. Id. The pleadings referenced in Rule 12(c) include the complaint, the answer, and any written instruments attached as exhibits. Id. at 452-53. "Written instruments" include documents such as affidavits, letters, contracts, and loan documentation. Id. at 453.

The motion challenges the sufficiency of the complaint to state a claim upon which relief may be granted. Judgment is warranted if the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). The essence of the motion is not that the plaintiff has pleaded insufficient facts, it is that even assuming all of her facts are accurate, she has no legal claim. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). Complaints by pro se plaintiffs are to be liberally construed. Wilson v. Civil Town of Clayton, 839 F.2d 375, 378 (7th Cir.1988).

III. DISABILITY DISCRIMINATION CLAIM

Defendant argues that it should be granted judgment on plaintiffs ADA claim because the administrative complaint she filed with the Wisconsin Equal Rights Division ("ERD") prior to commencing the present suit did not include her disability discrimination claim. Before bringing an ADA suit a plaintiff must first file a charge of disability discrimination before the appropriate federal or state administrative agency. 42 U.S.C. § 12117(a); Luna v. Walgreens, 888 F.Supp. 87, 88 (N.D.Ill. 1995). Additionally, the scope of subsequent judicial proceedings is limited by what is claimed in the charge filed with the agency. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992).

Defendant does not dispute that plaintiff filed a complaint before the appropriate state agency, the ERD. However, defendant asserts that plaintiff's ERD complaint did not include a disability discrimination charge, and that plaintiff confirmed at a hearing before a state administrative law judge that she was not pursuing such a charge. Plaintiff disputes this and states that her ERD filing included a statement that defendant discriminated against her based on her disability.

In support of its motion defendant submits an affidavit and a transcript of the ERD hearing. Plaintiff also submits an affidavit containing her version of what happened before the ERD. However, none of the parties' submissions relating to the ERD proceedings were attached to their pleadings. On a motion for judgment on the pleadings, I may generally only consider materials attached to the pleadings. N. Ind. Gun & Outdoor Shows, Inc., 163 F.3d at 452-53.¹ Therefore, at this point, I will not address what effect the administrative proceedings may have on the plaintiffs right to pursue her disability discrimination claim.

Plaintiff's complaint in the present case sets forth facts in support of a violation of the ADA, albeit in the most general terms. Therefore, defendant's motion to dismiss the ADA claim will be denied.

IV. RETALIATORY DISCHARGE CLAIM

Defendant also seeks judgment on the pleadings with respect to plaintiffs retaliatory discharge claim. I assess the merits of defendant's motion under the Rule 12(c) standard of review previously stated. Plaintiff's retaliatory discharge claim is a state law claim, thus, I analyze defendant's motion under Wisconsin substantive law. My task is to predict how the Wisconsin Supreme Court would apply state law in this case. Kaplan v. Pavalon & Gifford, 12 F.3d 87, 89 (7th Cir.1993). Obviously, cases decided by the Wisconsin Supreme Court are the most persuasive evidence of how that court would resolve the legal issues presented here. Id. Intermediate appellate court decisions are helpful but not binding or dispositive regarding what the Wisconsin Supreme Court would do in a similar case. Id. Absent guidance from Wisconsin courts I may look to other jurisdictions to predict how the Supreme Court of Wisconsin would decide the issue. King v. Damiron Corp., 113 F.3d 93, 95 (7th Cir.1997).

Plaintiff's retaliatory discharge claim raises several interrelated questions. Broadly speaking, these questions are whether Wisconsin law permits an employer to fire an employee for filing a worker's compensation claim and, if not, what remedy, if any, is available to the terminated employee. I address these questions below.

A. Wrongfulness of Discharge

Almost twenty years ago in Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 567, 335 N.W.2d 834 (1983), the Supreme Court of Wisconsin recognized a common-law exception to the doctrine of employment at will. Under the employment-at-will doctrine, where employment is for an indefinite term, an employer may discharge an employee "for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong." Id. (internal quotation marks omitted). However, the court noted that there were exceptions to the employment-at-will doctrine. First, the court stated that both Congress and the Wisconsin legislature had enacted statutes designed to curb harsh applications and abuse of the doctrine. Id. These statutes prohibited basing employment decisions on such factors as race, color, religion, sex, national origin, age, handicap, marital status, ancestry, sexual orientation, arrest or conviction record, union activities, jury service, military service, wage garnishment, refusal to submit to lie detector testing, testifying pursuant to subpoena, testifying at proceedings enforcing minimum wage laws, union protections, or occupational, safety, and health laws, or suffering a compensable worker's compensation illness or injury. Id. at 567-68 & n. 9, 335 N.W.2d 834.

Second, the court observed that courts in other jurisdictions had created a narrow public policy exception to protect certain wrongfully discharged employees not protected by such statutory prohibitions. Id. at 569, 335 N.W.2d 834. The court then adopted a narrow public policy exception for Wisconsin, and held that "an employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law." Id. at 573, 335 N.W.2d 834.

In the present case plaintiff alleges that defendant fired her for filing a worker's compensation claim subsequent to a workplace injury.² Such conduct, if true, would violate Wis. Stat. § 102.35(2). Section 102.35(2) prohibits an employer from "without reasonable cause, refus[ing] to rehire an employe injured in the course of employment, or ... because of a claim or attempt to claim [worker's] compensation benefits from such employer, discriminat[ing] or threaten[ing] to discriminate against an employe as to the employe's employment." An employer who violates the statute "shall forfeit to the state not less than $50 nor more than $500 for each offense." Id. Section 102.35(2) is thus a statutory modification of the employment-at-will doctrine and makes it illegal for employers to fire their workers in retaliation for filing worker's compensation claims.

B. Remedy

Plaintiff, therefore, has adequately alleged that defendant illegally discharged her. The next question is therefore what remedy, if any, is available. Defendant argues that under Wisconsin law such retaliatory discharge actions are barred either by the exclusive remedy provision of the worker's compensation law, or by the forfeiture provision in § 102.35(2).³ I now turn to these issues.

1. Exclusive Remedy Under Worker's Compensation

The worker's compensation act strikes a balance between the interests of employers and employees. Injured workers are guaranteed prompt relief regardless of fault, but in exchange employers are granted immunity...