Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, Case No. 10–C–560.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtPATRICIA J. GORENCE
Citation864 F.Supp.2d 760
PartiesRicky JONES, Plaintiff, v. INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL ORNAMENTAL AND REINFORCING IRON WORKERS et al., Defendants.
Docket NumberCase No. 10–C–560.
Decision Date28 March 2012

864 F.Supp.2d 760

Ricky JONES, Plaintiff,
v.
INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL ORNAMENTAL AND REINFORCING IRON WORKERS et al., Defendants.

Case No. 10–C–560.

United States District Court,
E.D. Wisconsin.

March 28, 2012.


[864 F.Supp.2d 764]


Ricky Jones, Franklin, WI, pro se.

James R. Kimmey, Jeffrey E. Hartnett, Bartley Goffstein LLC, St. Louis, MO, Matthew R. Robbins, Yingtao Ho, Previant Goldberg Uelmen Gratz Miller & Brueggeman SC, Jacob J. Curtis, Joseph W. Voiland, Thomas M. Burnett, Reinhart Boerner Van Deuren SC, Milwaukee, WI, Nadim Sahar, Wisconsin Department of Justice, Madison, WI, David C. Moore, Janesville, WI, for Defendants.


DECISION AND ORDER

PATRICIA J. GORENCE, United States Magistrate Judge.

On July 7, 2010, plaintiff Ricky Jones filed a pro se civil rights complaint under 42 U.S.C. §§ 1981, 1983, 1985, the 14th Amendment to the United States Constitution, the Employee Retirement Income Security Act (ERISA), and the Union Member Bill of Rights. The plaintiff alleges that the defendants discriminated against him on the basis of his race and retaliated against him “for his success on previous lawsuits.” (Complaint at 2). The plaintiff also alleges that defendant Ironworkers Local 8 Welfare Fund violated ERISA when it “arbitrarily terminated my spouse and my health insurance benifits [sic], violated confidentiality based on a discriminatory and retalitory [sic] animus from privious [sic] lawsuits filed by me.” Id.

The defendants each filed motions to dismiss. The following motions are currently pending: (1) defendant International Association of Bridge, Structural, Ornamental & Reinforcing Ironworkers, AFL–CIO's (International Association) motion to dismiss (Docket # 18); (2) defendant Ironworkers District Council of North Central States' (District Council) motion to dismiss (Docket # 21); (3) defendants Ironworkers Local 8 and members of its Executive Board, Tom Cullen, Gilbert Toslek, William Fleming and Richard Hanson's motion to dismiss (Docket # 30); (4) defendant Ironworkers Local 8 Health and Welfare Fund Board of Trustees' motion to dismiss (Docket # 33); (5) defendants DWD Bureau of Apprenticeship and Karen Morgan's motion to dismiss (Docket # 47); and (6) defendant J.P. Cullen Construction

[864 F.Supp.2d 765]

Company's motion to dismiss (Docket # 60).

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.).

MOTION TO DISMISS STANDARDS

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. SeeFed.R.Civ.P. 12(b)(6). To state a cognizable claim under federal notice pleading, the plaintiff is required to provide a “short and plain statement of the claim showing that [she] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and the statement need only “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 [1957] ). Although detailed factual allegations are not required, Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, a pleading that offers “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Id.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. “Where a complaint pleads facts that are ‘merely consistent’ with a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557, 570, 127 S.Ct. 1955) (internal citations omitted).

Determining whether a complaint states a plausible claim for relief will be a content-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (internal citations omitted).

In considering a motion to dismiss, courts should follow the principles set forth in Twombly by first “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 129 S.Ct. at 1950. Legal conclusions must be supported by factual allegations. Second, if there are well-pleaded factual allegations, the court must “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

When deciding a motion to dismiss, a court must construe the complaint “in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences” in favor of the plaintiff.

[864 F.Supp.2d 766]

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The court, however, is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Motion to Dismiss: Defendant International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, AFL–CIO (International Association)

Defendant International Association asserts that Count I of the complaint (the only count that purports to state a claim against it) should be dismissed, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction over the claim because the plaintiff failed to exhaust his administrative remedies prior to filing suit and because he did not bring his claim within the relevant statute of limitations. Additionally, defendant International Association asserts that Count I fails to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).

In response, the plaintiff asserts that he need not present any theory of his case at this stage of the proceedings. The plaintiff cites Hart v. Transit Management of Racine, Inc., 426 F.3d 863 (7th Cir.2005) in support of his assertion. The plaintiff also states that “[t]he crux of the action seeks to vendicate [sic] rights pursuant to 42 U.S.C. § 1981.” (Plaintiff's Reponce [sic] to Dft's motion to dismiss at 1).

In Count I, the plaintiff alleges that defendant International Association:

discriminated against me in the enforcement of the CBA (collective bargaining agreement) when they denied me, an Afro–American, the same guarantees and provisions given to Caucasians in same or similar circumstances to wit:

A. failed to enforce my right to free speech at Union meeting on 3–26.09

B. failed to vendicate (sic) my right to proper notice

C. failed to require that I receive an exact copy of the charges through proper service

D. violated my right to present a defense prohibiting me from returning E. back to hearing when members assaulted me during entermination (sic). I was taken to hospital though trial went on without me.

E. violated my rights by finding guilt without any evidence denying my without considering any of my argument.

(Complaint at 1).


Defendant International Association construes the plaintiff's claim as one brought pursuant to Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e, et seq., or the Wisconsin Fair Employment Act (WFEA), Wis. Stats. 111.31 et seq.

As a general rule, a plaintiff may not bring a Title VII suit in federal court without first filing a timely complaint with the Equal Employment Opportunity Commission (EEOC). Rush v. McDonald's Corp., 966 F.2d 1104, 1111 (7th Cir.1992). Contrary to the defendants assertion, however, the filing of a timely charge of discrimination with the EEOC is a statute of limitations, rather than a jurisdictional prerequisite. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). As a result, the timely filing requirement is subject to waiver, estoppel and equitable tolling. Id.;see also, Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990). Accordingly, the court does not lack jurisdiction and Count I of the plaintiff's complaint is not subject to dismissal based on Rule 12(b)(1).

[864 F.Supp.2d 767]

Moreover, because a complaint need not anticipate and attempt to plead around affirmative defenses, dismissal under Rule 12(b)(6) on statute of limitations grounds is “irregular.” See United States v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir.2004). A motion to dismiss may raise the statute of limitations if “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense.” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.2009) (quoting United States v. Lewis, 411 F.3d 838, 842 [7th Cir.2005] ).

In this case, however, the relevant dates are not “set forth unambiguously in the complaint” and, therefore, it is not...

To continue reading

Request your trial
7 practice notes
  • Chapman v. Cooperative, Case No. 15-C-533
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 24 Febrero 2016
    ...action for compensatory and punitive damages. See Jones v. Int'l Ass'n of Bridge Structural Ornamental and Reinforcing Iron Workers, 864 F. Supp. 2d 760, 767 (E.D. Wis. 2012). However, 2011 Wisconsin Act 219 repealed the 2009 amendments. Velyov v. Frontier Airlines, Inc., No. 14-C-0071, 201......
  • Lohrasbi v. Bd. of Trs. of the Univ. of Ill., No. 13-3105
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • 5 Febrero 2014
    ...when defendant filed the motion to dismiss); Jones v. Int'l Ass'n of Bridge StructuralPage 20Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 766-767 (E.D. Wis. 2012) (finding dismissal inappropriate when the complaint alleged multiple adverse employment actions, but only listed ......
  • Sharp v. Stoughton Trailers, LLC, 15-cv-598-jdp
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 2 Junio 2016
    ...private right of action under the WFEA. See, e.g., Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 767 (E.D. Wis. 2012) ("Prior to the enactment of 2009 Wisconsin Act 20, a plaintiff could not maintain a private cause action under WFEA. ......
  • Inguran, LLC v. Abs Global, Inc., 17-cv-446-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 28 Septiembre 2018
    ...the same set of facts is essential to both claims," Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 771 (E.D. Wis. 2012), then the two suits arise out of the same transaction or "series of connected events," and the earlier judgment has ......
  • Request a trial to view additional results
7 cases
  • Chapman v. Cooperative, Case No. 15-C-533
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 24 Febrero 2016
    ...action for compensatory and punitive damages. See Jones v. Int'l Ass'n of Bridge Structural Ornamental and Reinforcing Iron Workers, 864 F. Supp. 2d 760, 767 (E.D. Wis. 2012). However, 2011 Wisconsin Act 219 repealed the 2009 amendments. Velyov v. Frontier Airlines, Inc., No. 14-C-0071, 201......
  • Lohrasbi v. Bd. of Trs. of the Univ. of Ill., No. 13-3105
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • 5 Febrero 2014
    ...when defendant filed the motion to dismiss); Jones v. Int'l Ass'n of Bridge StructuralPage 20Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 766-767 (E.D. Wis. 2012) (finding dismissal inappropriate when the complaint alleged multiple adverse employment actions, but only listed ......
  • Sharp v. Stoughton Trailers, LLC, 15-cv-598-jdp
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 2 Junio 2016
    ...private right of action under the WFEA. See, e.g., Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 767 (E.D. Wis. 2012) ("Prior to the enactment of 2009 Wisconsin Act 20, a plaintiff could not maintain a private cause action under WFEA. ......
  • Inguran, LLC v. Abs Global, Inc., 17-cv-446-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 28 Septiembre 2018
    ...the same set of facts is essential to both claims," Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, 864 F. Supp. 2d 760, 771 (E.D. Wis. 2012), then the two suits arise out of the same transaction or "series of connected events," and the earlier judgment has ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT