Petition for Writ of Certiorari — Timothy Ryan Gove, Petitioner v. Sargento Foods, Inc.

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TABLE OF APPENDICES

APPENDIX A- TIMOTHY R GOVE v,. SARGENTO

FOODS INC., no.2:18-cv-1335 (11/25/2020) District

Courts Judgment... ceceeeseececcccceeess.. vetseereeeeeeee LA

APPENDIX B- TIMOTHY R GOVE v. SARGENTO

FOODS INC., no.20-3501 & 21-1235 (7% cir.,

3/17/21), District Courts Decision Vacated........... 22a

APPENDIX C-— TIMOTHY R GOVE v. SARGENTO

FOODS INC., no.22-1410 (7 cir., 03/29/22), Plaintiff

Voluntary Dismissed Pppealie. .......c00. caseaceareees 27a

APPENDIX D- TIMOTHY R GOVE v. SARGENTO

FOODS INC., no.23-1759 (7 cir., 04/21/23), case

Dismissed Lack of Jurisdiction.........000600600.0...... 28a

APPENDIX E- TIMOTHY R GOVE v. SARGENTO

FOODS INC., no. 2:18-cy-1335 (09/10/24), District

Court Judgment.....ccccccsceesecceseesseesecceccccc. 29a

APPENDIX F- TIMOTHY R GOVE vu. SARGENTO

FOODS INC., no. 24-2691 (7% cir., 07/09/25), Opinion

Affirming District Court J udgment...........eececcese 92a

TABLE OF APPENDICES

Note: This is an exact retyping of the original.

A. TIMOTHY R GOVE v. SARGENTO FOODS

INC., no.2:18-cv-1335 (11/25/2020) District

Courts Judgment

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF WISCONSIN TIMOTHY RYAN

GOVE, Plaintiff, v. SARGENTO FOODS, INC.,

Defendant. Case No. 18-cv-1335-pp ORDER

DISMISSING CASE FOR FAILURE TO STATE A

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CLAIM AND DENYING AS MOOT PLAINTIFFS

MOTION TO TRANSFER (DKT. NO. 22)

In its July 26, 2019 order screening the amended

complaint, the court ordered that if the plaintiff

wished to proceed with the case, he must file a

second amended complaint explaining who harassed

him, when, where, how and why. Dkt. Nos. 19. The

plaintiff timely filed the second amended complaint.

Dkt. No. 20. The court will dismiss the second

amended complaint for failure to state a claim. It will

deny as moot the plaintiffs motion to transfer the

case to the Green Bay division of the Eastern

District. Dkt. No. 22.

I. Screening the Second Amended Complaint

A. Standard Under 28 U.S.C. §1915(e)(2)(B) (ii), in

cases where the court has allowed a plaintiff to

proceed without prepaying the filing fee, the court

“shall” dismiss the case if it determines that the case

fails to state a claim upon which relief may be

granted. In determining whether the complaint

states a claim, the court applies the same standard

that it applies when considering whether to dismiss

a case under Federal Rule of Civil Procedure

12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th

Cir. 2017) (citing Booker-El v. Superintendent, Ind.

State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To

state a claim, a complaint must include “a short and

plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

The complaint must contain enough facts, accepted

as true, to “state a claim for relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows

a court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

(citing Twombly, 550 U.S. at 556). Because the

plaintiff is representing himself, the court must

liberally construe the allegations of his complaint.

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

B, Facts Alleged in the Second Amended Complaint

The plaintiff alleges that he worked as a laborer for

Sargento Foods, Inc. in the North Building of its

Hilbert, Wisconsin plant from 2012 until April 30,

2018. Dkt. No. 20 at 5. Early in the second amended

complaint, he summarized his claims:

Iwas fired by Sargento Foods Inc. April 30th, 2018

due to retaliation for demanding disciplinary action

against the ongoing discriminating, harassing,

threaten [sic] and assaulting actions by a sociallyknit group of co-workers. This [sic] main active

participants in this group is as follows: Katherine

Clauson, Bruce Behnke, Melissa Bratz, Victoria

Zahn, Amy Fucile, Jeff Van Asten, William Roit.

Id. The plaintiff describes himself as a “Christian.”

Id. He says that he was fifty-seven years old and

identifies himself as male. Id. He says that because

of his faith, he did not have sex outside of marriage,

and that management and his co-workers were

aware of this fact. Id. at 6. 1. Alleged Sexual

Harassment a. Katherine Clauson

The plaintiff says that Katherine Clauson was a

Manpower, Inc. temporary worker; he says she began

on a ninety-day probationary period and then was

hired as a fulltime worker. Id. at 5. While it is not

clear, it appears that the plaintiff alleges that

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Clauson was twenty-two years old, with a large age

gap between her twenty-two years and his fiftyseven. Id. The plaintiff alleges that in 2017, Clauson

harassed him, both during her probationary period

and after she was hired full-time, and that her

behavior was ignored by Sargento management

“without corrective measures or, discipline.” Id.

The plaintiff asserts that on February 2, 2017, in

front of a crowd of women, Clauson told him “how

hot she was.” Id. On February 21, 2017, Clauson filed

a complaint against the plaintiff with the Human

Resources Department; the plaintiff says that in a

meeting three days later, in a conversation with HR

representative Maria Herrera, Herrera said that the

complaint was an email issue and that it seemed

resolved. Id. at 6. The plaintiff asserts that he was

never told what the complaint was or shown the

complaint, “which was standard protocol,” and he

alleges that Clauson filed the complaint in an

attempt to get him fired in retaliation for the

plaintiff for not accepting Clauson’s advances. Id.

The plaintiff alleges that on March 29, 2017,

Sargento offered Clauson a full-time position with

the company “to be filled at a later date,” despite the

fact that the plaintiff had made Sargento aware of

“other harassment issues.” Id.

The plaintiff next asserts that on April 5, 2017, while

Clauson was still a temporary worker through

Manpower, Inc., she and Amy Fucile “[t]hreaten

gestures to vandalize [his] motor vehicle.” Id. The

plaintiff says, “She did it out retaliation for my

answer to HR representative Maria Herrera question

me to why she was so angry that I didn’t sleep with

her. I answered ‘maybe she was because she could

seduce a older man?” Id. The plaintiff says that he

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reported this event to HR personnel Jeff Kiesner and

Maria Herrera, and that Keisner said, “She’s not

even hired and she doing this.” Id.

The plaintiff alleges that on April 19, 2017, Clauson,

while a full-time probationary employee, made a

“[s]Jexual gesture of fellatio” at him as he was leaving

the production area in retaliation for the plaintiffs

answer to defend himself to Victoria Zahn’s sarcastic

accusation about him telling on Clauson. Id. He says

he reported this event to HR representative Maria

Herrera who was aware of the incident, investigated

it and had proof that it happened. Id.

The plaintiff alleges that Clauson again made a

“[s]exual gesture of imitating fellatio

(whistling/blowing) as she was walking” past the

plaintiff on April 24, 2017. Id. The plaintiff

characterizes this as a “continuation of the previous

stunt.” Id. The next day the plaintiff was working

with Jorge Santos, who asked the plaintiff about

what was going on; the plaintiff says, “was scheduled

for a meeting with management at 8:30 AM.” Id. It is

not clear whether the plaintiff, Santos or Clauson

‘was scheduled to meet with management, but the

plaintiff says that this is “more proof management

was aware of Katherine Clauson’s actions.” Id. The

plaintiff says that Clauson was in her ninety-day

probationary period and should have been fired for

this. Id.

The plaintiff says that on April 27, 2017, Clauson

was informed that starting the following week, she

would be working third shift at Kiel,1 the plaintiff

asserts that management “knew what was going on

and shipped her out to get her away from me!” Id. at

7.

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The plaintiff asserts that on July 28, 2017, Clauson

“show[ed] up active” on his messenger email “after

roughly 4 months... of being blocked by Katherine

Clauson by the advice of HR management Maria

Herrera.” Id. The plaintiff says that he suggested to

Maria Herrera in their “so-called email issue

meeting” that if it was an issue, “why doesn’t she just

block me.” Id. He says he reported the issue to HR

management Jeff Keisner, and told Kiesner that

even thought the plaintiff previously was blocked by

Clauson, now the plaintiff was blocking Clauson. Id.

Keisner commented, “Keep it that way.” Id. The

plaintiff asserts that the human resources

management at Sargento ignored these and other

incidents and took no disciplinary measures. Id.

1 Sargento’s web site indicates that it has four

facilities in Wisconsin, located in Plymouth, Kiel,

Hilbert and Elkhart Lake.

https://wiww.sargento.com/ourcompany/about-us.

He says that because there were no disciplinary

measures, “a series of discriminatory acts quickly

escalated into an unwelcomed intimidating,

harassing behaviors by both Sargento co-workers

and later by Sargento management.” Id. He says that

from the rest of 2017 through his termination date

on April 30, 2018, working at Sargento “became the

most hostile environment” the plaintiff ever had

encountered, severe enough to affect his health, life

and work. Id.

b. Tammy Wolf/Kathy Griffey The plaintiff says that

some time in the later summer months of 2017,

before the “messenger activation stalking stunt by

Katherine Clauson on 0729-2017,” Tammy Wolf

made a “Sexual Comment of ‘T like a mushroom with

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a nine inch stem” as she walked past the plaintiff

while he was working. Id. The plaintiff says that he

turned around to look, briefly shaking his head in

disbelief. Id. He says that on December 6, 2017, he

was working when Kathy Griffey stopped to talk to

him. He told her that her upper lip was raw, and the

plaintiff says that Griffey made a “Sexual Comment

of ‘needing something to suck on.” Id. The plaintiff

says he asked Griffey several times to quite saying

sexual innuendo to him, and she responded that it

was her New Year’s resolution. Id.

The plaintiff asserts that when he told HR

representative Maria Herrera what some of the

women were saying sexually and talking to him

about, Herrera “didn’t have anything to say.” Id. He

says he made clear to Herrera that sexual topics

were “unwanted by [him]” and that the women were

“well aware of it.” Id. He says that Sargento’s

management posted a sexual discrimination policy

on the bulletin board but that “sexually harassments

still continued! Id.

2. Alleged Threats/Assaults The plaintiff says that

on February 8, 2018, he was behind Aaron Beitler in

the hand washing area when he overheard Beitler

say, “Every time I see [the plaintiff] I want to beat

the fuck out of him.” Id. at 8. The plaintiff says that

Beitler was reacting to rumors that he heard from

Bill Roit and Katherine Clauson’s friends. Id.

The plaintiff alleges that on February 5, 2018, as he

walked by Jeff Van Asten in the lunchroom, Van

Asten commented that “someone should put him six

feet under.” Id. The plaintiff asserts that the prior

week, Van Asten and Bruce Benke “were gloating

like they always do when they think I’m in trouble,”

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and says “[t]hey knew something [he] didn’t.” Id. He

says that “[s]omething changed.” Id.

The plaintiff asserts that on March 12, 2018, he was

palletizing on line 320 and that quality control

personnel Emily DenDecker and process technicians

Owen Carle and Ricky Ferron assaulted him by

throwing and hitting him with boxes filled with

products. Id. He says he changed palletizing lifts, but

that forklift driver Tony Wittman laughed at him

and asked him why he wasn’t working at the other

lift. Id. The plaintiff says that “[t]his act was because

of Emily DenDecker attitude and influence.” Id. He

says that although DenDecker was not in a position

of authority over him, she was telling him what to

do. Id. He asserts that DenDecker had been

harassing and intimidating 7 Case 2:18-cv-01335-PP

Filed 11/25/20 Page 7of21 Document 23him for

some time “due to the Katherine Clauson issues, her

attitude was horrible towards” the plaintiff. Id.

The plaintiff says that he reported these threats and

assaults to HR management Jeff Kiesner and Laura

Beihm. Id. He says that Beihm asked him whether

he considered Beitler’s statement a threat, and that’

the plaintiff responded by asking her, “Would you

consider it a threat?” Id. Biehm responded in the

affirmative, so the plaintiff said, “then the answer is

Yes!” He says that Kiesner and Biehm both refused

him an opportunity to file a complaint, but he says

that Kiesner said, “no one should have to should

have to be treated like that.” Id.

3. General Harassment The plaintiff alleges that

later in the day on March 12, 2018, after Owen Carle

and Ricky Ferron assaulted him, as the plaintiff

walked by Ricky Ferron, Owen Carle loudly made

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insinuating remarks to the effect that Katherine

Clauson couldn’t come to first shift because of the

plaintiffs lies; the plaintiff says this was a false

rumor and that he just kept walking. Id.

The plaintiff says that on July 21, 2017, Jeff Van

Asten and Bruce Benke were mocking and laughing

at him as he walked by, insinuating that he was in

trouble from the retaliatory stunt Van Asten and

Cathy Beil2 had pulled the day before—“(Cheese

cutter stopping).” Id. He asserts that this was

retaliatory behavior “due to Katherine Clauson

issues.” Id.

2 Later in the complaint the plaintiff refers to Cathy

Bail—the court assumes that Cathy Beil and Cathy

Bail are the same person. The plaintiff contends that

he reported these acts to HR managers Jeff Kiesner

and Laura Beihm “in good faith.” Id.

4. Conspiracy The plaintiff asserts that on July 20,

2017, Cathy Bail and Jeff Van Asten acted like it

was his fault that the cheese cutting machine

stopped and that Cathy Bail tried to have him falsely

suspended. Id. at 9. He says this was retaliation due

to the Katherine Clauson issues. Id. He alleges that

on December 18, 2017, Wendy Mueller, Amy Fucile

and Melissa Bratz set up a stunt to make it look like

he wasn’t working. Id. The plaintiff asserts that

supervisor Eric Driessen was aware of both these

acts and questioned the plaintiff about them. Id. He

says Driessen questioned him about how the plaintiff

felt about meeting their quotas. Id. The plaintiff says

that management did not pursue any disciplinary

actions against him because Katherine Clauson’s

sexually discriminatory acts “were still in the 300

day time frame.” Id.

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The plaintiff alleges that on September 7, 2017

Shaun Carter came up to him and said he heard that

Katherine Clauson was coming back to north

building first shift. Id. The plaintiff says,

“Management supervisor spread rumors thru the coworkers that Katherine Clauson was coming back to

the north Hilbert building in a process tech meeting .

.. [four months after her discrimination and

harassments acts against [the plaintiff].” Id. After

work, the plaintiff asked HR representative Jeff

Kiesner about Clauson coming back and Kiesner told

him that he had “nothing to worry about” and that

his “slate” was “clean.” Id. The plaintiff says, “In

other words, there’s nothing on file of these

allegations.” Id. Kiesner gave the plaintiff the

“itinerary” of Clauson’s schedule, of when she would

be coming back. Id. The plaintiff says that he

responded that he “didn’t care what Clauson’s

schedule [was], she didn’t stop what she’s doing”. Id.

He says that Kiesner told him, “remember the ‘R’

factor;” the plaintiff says the “R factor” means rape.

Id. The plaintiff says that this remark related to “a

previous Katherine Clauson’s parking lot stunt I

which spoke to HR about and along with other

coworker harassments in a meeting with Human

Resources on 08-28-2017.” Id. The plaintiff alleges

that Sargento had this event on parking lot

surveillance cameras. Id.

The plaintiff contends that at the anniversary dinner

banquet event on February 1, 2018, HR personnel

Sonia Otte deliberately did not have his name called

for acknowledgment of five years of service, unlike

anyone else in his group. Id. at 10. He says that the

company president, Louie Gentine, personally

apologized to him for this “so called

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miscommunication.” Id. The plaintiff claims that this

was retaliation by Sargento “due to Katherine

Clauson issues.” Id. The plaintiff says that at the

same event, HR personnel Jeff Kiesner intentionally

changed the dinner orders from what the plaintiff

had requested. Id. He says he told his date that this

was what Sargento did to people who said or did

something that Sargento didn’t want to hear. Id. The

plaintiff says, “This is a prime example of how

management retaliates against/treats you when you

whistle blow against other workers or stick up for

yourself.” Id. He alleges that these acts were

deliberate. Id.

The plaintiff asserts that after he was assaulted on

March 12, 2018, he took two days off work due to the

stress. Id. When he returned, he gave HR personnel

Jeff Kiesner a letter explaining what his coworkers

were doing and how the lack of discipline on

Sargento’s part contributed to the issues. He says he

spoke of the assault by Ricky Ferron, Emily

DenDecker and Owen Carle and the comment that

Carle had made to Ferron, as well as an incident

later in the day when Victoria Zahn “thru hands

right in front of [the plaintiffs] face” because he

accidentally turned around and walked in front of

her. Id.

The plaintiff says he tried to file a grievance

complaint against the company with Jeff Kiesner

and Laura Beihm and “one back up in training

supervisor” whose name he thinks was Stacy. Id. He

says that all of them refused to allow him the

opportunity to file a complaint. Id. (The plaintiff

indicates that later in the morning, Ricky Ferron

came to him and apologized for how he’d acted on

March 12; when the plaintiff responded that he

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expected it from other people but not from Ferron,

Ferron got very defensive and said, “It’s my apology.”

Id.)

The plaintiff says that on March 29, 2018, supervisor

Eric Driessen refused to sign his quarterly safety

sheets after they'd been sitting on his chair for three

or four days. Id. The plaintiff says that the result of

this “would have been a vast reduction in yearly

bonus,” and he again asserts that this was in

retaliation “from the Katherine Clauson

discrimination behaviors and the 0312-2018 assault.”

Id.

On April 6, 2018, the plaintiff met with HR

representatives Maria Herrera and Laura Beihm. He

says that they “forced” him to participate in a

“Fitness for Duty Exam” by a forensic psychologist.

Id. The plaintiff says that this was “Sargento’s

retaliations for the most recent hostile environment

act by it workers, all because Katherine Clauson was

still employed at Sargento.” Id. The plaintiff says

that while he was writing statements on the form he

was required to sign, and as he was trying to

concentrate to get his statement right, Herrera said,

“What are you writing a book.” Id. at 11. The

plaintiff says that Herrera was distracting him. Id.

The plaintiff says that in the meeting, he brought up

a point about HR management allowing Katherine

Clauson to apply for jobs in the north building,

“when she shouldn’t have the right to apply for any

jobs with what she’s done.” Id. Herrera responded

that that was “her decision.” Id. The plaintiff says,

however, that once a person is suspended or

disciplined for any reason at Sargento, the person is

not allowed to apply for any other positions for at

least six months. Id. The plaintiff says he also raised

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a point about how Sargento “shipped off Katherine

Clauson to other plants to elevate the problem.” Id.

He says that Herrera replied that “she was sent

there for training.” Id. The plaintiff says that he

responded that “it doesn’t matter how you spin it, we

know why she was sent there, and the truth never

stays buried.” Id. The plaintiff says that Herrera

suddenly became quiet and that Beihm came back

with his copy of the signed document. Id.

5. Conclusion At the end of the second amended

complaint, the plaintiff summarized his claims

differently than he had in the beginning. He stated

that “Sargento hired Katherine Clauson knowing she

actively tried to seduce a male coworker, filed a false

accusation report in retaliation, and did the

sexual/religious discriminating and harassing acts to

a man of his faith and beliefs.” Id. He says that as

the discriminatory acts escalated, Sargento was

forced to schedule Clauson at other plaints in Kiel

and Plymouth, which caused coworkers who

socialized with Clauson to increase harassment,

discrimination and retaliatory acts. Id. He says that

management tried to pressure him to quit through

harassing behaviors and was looking for a reason to

fire him, and that “[bJoth parties” created the most

severe hostile environment he’d ever encountered. Id.

The plaintiff says that the final decision to fire him

was made after Ferron, DenDecker and Carle—all

Clauson’s friends—assaulted him, because

management thought it was easier to get rid of one

person than half a dozen. Id.

The plaintiff says that Sargento’s discrimination

against him “was religion, sexual, gender, and civil

conspiracy.” Id. He says that Sargento had first-hand

knowledge of the sexually discriminatory acts of his

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co-worker due to his faith and the fact that he was

an older male. Id. He alleges that “Sargento did

everything to cover up the discriminatory behaviors

of Katherine Clauson, Co-workers and finally

involving themselves in a civil conspiracy to oust

[him].” Id. at 11-12. The plaintiff asserts that if the

shoe were on the other foot, and a man had done

what Clauson did, “Sargento would have walked him

out the door immediately and suspended him, until

the outcome of their investigation.” Id. at 12.

C. Discussion 1. Legal Standards a. Discrimination

The plaintiff alleges sex, religious, and age

discrimination; hostile work environment based on

sexual harassment; and civil conspiracy. “Under

Title VII, an employer may not discriminate based on

‘race, color, religion, sex, or national origin.” Abrego

v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018)

(quoting 42 U.S.C. §2000e-2(a)). To state a Title VII

discrimination claim, a plaintiff must show that

(1) he is a member of a class protected by the statute,

(2) that he has been the subject of some form of

adverse employment action (or that he has been

‘subjected to a hostile work environment), and (3) that

the employer took this adverse action on account of

the plaintiff's membership in the protected class. Id.

Under the Age Discrimination in Employment Act

of 1967, an employer may not “discharge any

individual or otherwise discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s age.” 29 U.S.C. §623.

At the pleading stage, the plaintiff need not prove

his case; the Seventh Circuit has held that “in order

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to prevent dismissal under Rule 12(b)(6), a complaint

alleging [Title VII] discrimination need only aver

that the employer instituted a (specified) adverse

employment action against the plaintiff on the basis

of [protected class status].” Luevano v. Wal-Mart

Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013)

(quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084

(7th Cir. 2008)).

b. Hostile work environment To state a hostile work

environment claim, a plaintiff must allege (1) [he]

was subject to unwelcome harassment; (2) the

harassment was based on [his] national origin or

religion (or another reason forbidden by Title VIL); (8)

the harassment was severe and pervasive so as to

alter the conditions of employment and create a

hostile or abusive working environment; and (4) there

is a basis for employer liability. Huri v. Office of the

Chief Judge of the Circuit Court of Cook Cty., 804

F.3d 826, 833 (7th Cir. 2015).

To state a hostile work environment claim

specifically due to sexual harassment, a plaintiff

must allege that: (1) [he] was subjected to unwelcome

sexual harassment; (2) the harassment was based on

[his] sex; (8) the harassment unreasonably interfered

with [his] work performance by creating an

intimidating, hostile or offensive working

environment that seriously affected [his]

psychological well-being; and (4) there ts a basts for

employer liability. Moser v. Ind. Dept. of Corr., 406

F.3d 895, 902 (7th Cir. 2005).

For a plaintiff to succeed on a hostile work

environment claim, he must show that “the

harassment was so severe or pervasive that it altered

the conditions of employment and created a hostile

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or abusive working environment.” Davison v. State

Collection Service, Inc., 824 F. App’x 424, 426 (7th

Cir. 2020) (quoting Smith v. Ill. Dep’t of Transp., 936

F.3d 554, 560 (7th Cir. 2019)). “Whether harassment

reaches this level depends on ‘the frequency of the

discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Id.

(quoting Mendenhall v. Mueller Streamline Co., 419

F.3d 686, 691-92 (7th Cir. 2005)).

c. Retaliation “To plead a Title VII [or ADEA]

retaliation claim, a plaintiff must (though [he] need

not use the specific terms) allege that []he engaged in

statutorily protected activity and was subjected to

adverse employment action as a result of that

activity.” Id.; see Reed v. Innovative Health &

Fitness, No. 05-C-0987, 2007 WL 725066, at *11

(E.D. Wis. Mar. 7, 2007), aff'd sub nom. Reed v.

Innovative Health & Fitness Ltd., 259 F. Appx. 875

(7th Cir. 2008) (unpublished) (same as to the ADEA).

Statutorily protected activity includes filing

complaints with the EEOC and protesting unlawful

discrimination. See 42 USCA §2000e-3(a); 29

U.S.C.A. §623(d).

d. Conspiracy Civil conspiracy involves “a

combination of two or more persons by some

concerted action to accomplish some unlawful

purpose or to accomplish by unlawful means some

purpose not in itself unlawful.” N. Highland Ince. v.

Jefferson Mach. & Tool Inc., 898 N.W.2d 741, 747

(Wis. 2017) (quoting City of Milwaukee v. NL Indus.,

Inc., 278 Wis.2d 313, 691 N.W.2d 888 (citation

omitted)). A civil conspiracy claim has three

elements: (1) the formation and operation of a

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conspiracy; (2) a wrongful act or acts done pursuant

to the conspiracy; and (3) damage resulting from the

act or acts. Id.

2. Analysis The plaintiff has filed three complaints

trying to state a claim against his former employer

for harassment and discrimination. He has described

a multitude of incidents, from co-workers throwing

filled boxes at him on one occasion to someone

forgetting to recognize his years of service at the

annual dinner. The court has no doubt that Sargento

was not a good work environment for the plaintiff. It

appears that co-workers often were unkind or rude to

him and that he was not always treated with the

respect he felt he deserved. But while the plaintiff

asserts that he was discriminated against based on

his gender, age and religion, the second amended

complaint demonstrates that the plaintiff believes

that his coworkers treated him badly because he

rejected the advances of their friend Katherine

Clauson over a three-month period in early 2017 and

possibly got her transferred to another plant.

The plaintiffs allegations about Clauson’s behavior

do not state a claim for discrimination or for a hostile

work environment. The plaintiff says that Clauson

told him she was hot in front of a group of women,

filed an HR complaint against him with unknown

contents, threatened to vandalize his car and twice

made sexually suggestive gestures toward him.

Three events which the plaintiff construes as having

been sexual in nature do not constitute the kind of

severe, pervasive harassment described by the

Seventh Circuit. Because of his beliefs, the plaintiff

found these incidents offensive. But the small

number of acts, taking place over months, do not

support an argument that the harassment—if it was

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that—was pervasive. At worst, Clauson’s behavior

was “merely vulgar and inappropriate.” Hostetler v.

Quality Dining, Inc., 218 F.3d 798, 805-806 (7th Cir.

2000).

The same is true of the comments allegedly made by

Tammy Wolf and Kathy Griffey. Each woman made

one remark which the plaintiff found distasteful.

Perhaps Griffey made other remarks; the plaintiff

says that he asked her to stop using sexual innuendo

around him and she responded that it was her New

Year’s resolution to do so. But the plaintiff describes

only one incident with Griffey and one with Wolf,

and while both comments might have been vulgar or

inappropriate, they do not constitute a hostile work

environment or discrimination.

To the extent that other workers at Sargento were

disrespectful or unkind to the plaintiff or even

retaliated against him because they were friends

with Clauson, such actions do not violate federal law.

Federal law prohibits discrimination based on

protected classifications such as gender, race,

religion or age; it does not prohibit discrimination

based on social cliques or loyalty to friends.

The plaintiff attempts to shoehorn his claims into the

categories of gender, age and religious discrimination

by asserting that he was a fifty-sevenyear-old male

at the time of the events and that his co-workers

knew that his religious beliefs meant that he did not

believe in extra-marital sex. But he does not allege

that a single person—neither Clauson nor any other

co-worker— mentioned anything about his gender,

his age or his faith. The plaintiff assumes that

women made what he considered lo be offensive

comments to him because they knew about his

19a

religious beliefs, but nothing in his allegations

supports that assumption. He assumes that HR did

not credit his complaints because of his age, but

nothing in his allegations support that assumption.

Nor does the plaintiff do more than summarily allege

that these offensive remarks interfered with his

work.

The plaintiff alleges that some employees harassed

him in a way that interfered with his work—

specifically that DenDecker, Carle, and Ferron threw

filled boxes at him, forcing him to move to a different

pallet. Dkt. No. 20 at 8. He also alleges that Jeff Van

Asten and Bruce Benke made threatening remarks

both to his face and behind his back. See id. at 7—8.

But again, the plaintiff repeatedly asserts that these

co-workers took these actions because they were mad

at him about his interactions with Clauson, not

because of his age or gender or religion.

The plaintiffs retaliation claim fails for the same

reason. Title VII and the ADEA protect those who

make specific kinds of protests, including protests of

unlawful discrimination or filing official complaints

with the EEOC. Seé 42 USCA §2000e-3(a); 29

U.S.C.A. §623(d). The plaintiff doesn’t allege that he

performed any protected acts during his

employment. The box-throwing incident was not

based on gender, age or religion so filing a complaint

about it isn’t a protected act.

Civil conspiracy is a state law claim. A federal court

cannot hear and decide a state-law claim unless the

lawsuit is between parties from different 19 Case

2:18-cv-01335-PP Filed 11/25/20 Page 19 of 21

Document 23states and involves a claim for $75,000

or more in damages, 28 U.S.C. §1332, or unless the

20a

state law claim is “so related to claims in the action”

over which the court has jurisdiction “that they form

part of the same case or controversy,” 28 U.S.C.

§1367. Both the plaintiff and Sargento are citizens of

Wisconsin (Sargento Foods, Inc. is a Wisconsin

corporation with its principal office in Plymouth,

Wisconsin, https://www.wdfi.org/apps/CorpSearch/

Details.aspx?entityID=1S08516 &hash=136507677&s

earchFunction]D=fle279d d-e4d7-4e67-a15d-

5ff79b213d87 &type=Simple&q=sargento), and

because the plaintiff has not stated any federal

claims upon which the court can grant relief, it

cannot consider the state-law claim using its

supplemental jurisdiction.

While the court understands that the plaintiff

strongly feels that he was ill-treated at and by

Sargento, he has not stated any claims recognizable

by a federal court and the court must dismiss the

case.

IT. Motion to Transfer (Dkt. No. 22) The plaintiff also

recently filed a motion to transfer the case to the

Green Bay division of the Eastern District of

Wisconsin. Dkt. No. 22. Because the court is

dismissing the case, the court will deny the motion

as moot.

III. Conclusion The court DENIES AS MOOT the

plaintiffs motion to transfer. Dkt. No. 20 Case 2:18-

ev-01835-PP Filed 11/25/20 Page 20 of 21

Document 23The court ORDERS that this case is

DISMISSED for failure to state a claim for which a

federal court can grant relief. The clerk will enter

judgment accordingly.

21a

This order and the judgment to follow are final. A

dissatisfied party may appeal this court’s decision to

the Court of Appeals for the Seventh Circuit by filing

in this court a notice of appeal within 30 days of the

entry of judgment. See Fed. R. of App. P. 3, 4. This

court may extend this deadline if a party timely

requests an extension and shows good cause or

excusable neglect for not being able to meet the 30-

day deadline. See Fed. R. App. P. 4(a)(5)(A).

Under limited circumstances, a party may ask this

court to alter or amend its judgment under Federal

Rule of Civil Procedure 59(e) or ask for relief from

judgment under Federal Rule of Civil Procedure

60(b). Any motion under Federal Rule of Civil

Procedure 59(e) must be filed within 28 days of the

entry of judgment. The court cannot extend this

deadline. See Fed. R. Civ P. 6(b)(2). Any motion

under Federal Rule of Civil Procedure 60(b) must be

filed within a reasonable time, generally no more

than one year after the entry of the judgment. The

court cannot extend this deadline. See Fed. R. Civ. P.

6(b)(2).

The court expects parties to closely review all

applicable rules and determine, what, if any, further

action is appropriate in a case. Dated in Milwaukee,

Wisconsin this 25th day of November, 2020. BY THE

COURT:

HON. PAMELA PEPPER Chief United States

District Judge 21 Case 2:18-cv-01335-PP

Document 23 Filed 11/25/20 Page 21 of 21

22a

B. TIMOTHY R GOVE v. SAARGENTO FOODS

INC., no.20-3501, 21-1235 (7** cir., 3/17/21),

District Courts Decision Vacated.

NONPRECEDENTIAL DISPOSITION To be cited

only in accordance with Fed. R. App. P. 32.

United States Court of Appeals For the Seventh

Circuit Chicago, Illinois 60604 Submitted June 10,

2021* Decided July 12, 2021 Before FRANK H.

EASTERBROOK, Circuit Judge MICHAEL S.

KANNE, Circuit Judge DIANE P. WOOD, Circuit

Judge Nos. 20-3501 & 21-1235

TIMOTHY RYAN GOVE, Plaintiff-Appellant, v.

SARGENTO FOODS, INC., Defendant-Appellee.

TIMOTHY R GOVE v. SARGENTO FOODS INC.,

no.22-1410 (7 cir., 03/29/22), Plaintiff Voluntary

Dismissed Appeal .

ORDER Timothy Gove, a devout Christian,

appeals the dismissal of his complaint against his

former employer, Sargento Foods, Inc., asserting

claims of a hostile work environment based on

religion, retaliation, and sex and age discrimination.

The district court dismissed the complaint for failure

to state a claim. Because the district court imposed a

pleading standard stricter than the applicable noticepleading regime of

* We have agreed to decide this case without oral

argument because the briefs and record adequately

present the facts and legal arguments, and oral

argument would not significantly aid the court.

FED. R. APP. P. 34(a)(2)(C). 1Nos. 20-3501 & 21-

1235

23a

Federal Rule of Civil Procedure 8, we vacate the

judgment and remand the case for further

proceedings.

As he set forth in his second amended complaint, the

allegations of which we assume to be true, see

Freeman v. Metro. Water Reclamation Dist., 927

F.3d 961, 963 (7th Cir. 2019), Gove was subjected to

harassment while working as a laborer at one of

Sargento’s manufacturing plants. Gove, age 57,

alleged that Katherine Clauson, a 22- year-old

temporary coworker, harassed him—by flirting with

him, whistling at him, and gesturing to him ina

sexualized manner—because she knew that he was a

monogamous Christian. Not long after Gove rejected

her advances and reported her behavior to human

resources, Clauson and another coworker further

badgered Gove when they pretended to vandalize his

car. A month after the harassment began, Sargento

hired Clauson for a full-time position and transferred

her to another plant.

Some months later, other coworkers began to bully

Gove. They mocked him for rejecting Clauson’s

advances, blamed him for causing her transfer, and

made sexual gestures at him. In one instance, they

pelted him with product-filled boxes while he worked

at a machine. Another time, they threatened to beat

him up or “put him six feet under.” These incidents

proved so stressful that Gove needed to take two

days off work. He complained to human resources

about the sexual comments and the “assault,” but

Sargento took no disciplinary action. Gove tried to

file a grievance, but human resources “refused [him]

... the opportunity to file a complaint.” Later,

Clauson was transferred back to Gove’s plant.

24a

A year after the harassment started, Sargento asked

Gove without explanation to take a mandatory

“Fitness for Duty” exam conducted by a forensic

psychologist. Gove did so, despite some reservations.

Shortly afterward, Sargento fired him.

Gove then filed this suit, alleging workplace

harassment, retaliation, and sex and age

discrimination. The district court screened the

complaint, see 28 U.S.C. § 1915(e)(2)(B) (ai), but found

the allegations insufficient to allow it to determine

whether Gove stated a claim. The court directed him

to amend his complaint to provide more details about

“what happened, who was involved, and what each

person did,” as well as “who discriminated against

him, what discriminating acts occurred, and whether

the discrimination was based on race, religion, or

some other class protected by the law.”

Gove then submitted dozens of pages, naming the

coworkers who “abused” him and asserting that he

was forced to submit to the psychological exam in

retaliation for filing grievances. The court found his

submissions unwieldy and unfocused, and it told him

again to amend his complaint to clarify the nature of

his claims. This would be Gove’s “last opportunity,”

the court warned, to describe how and why his

coworkers harassed him, “what, exactly, they did to

him ... [and] where they did it,” what Sargento

retaliated against him for doing, and how Sargento

“knew about these events, and what (if anything)

{[Sargento] did when it learned of them.”

Gove amended his complaint to describe specific

incidents—including names and dates—when his

coworkers harassed him. He also asserted that

human resources refused to allow him to file a

25a

grievance and fired him in retaliation for

complaining about his coworkers’ behavior. The

district court dismissed this complaint with prejudice

for failure to state a claim. Gove did not state a

hostile-work-environment claim, the court concluded,

because the harassment he described was not “severe

or pervasive” but “[a]t worst ... merely vulgar and

inappropriate.” The court added that Gove tried to

“shoehorn” his claims into categories of religious,

age, and sex discrimination, but he had not alleged

that anyone said anything about his faith, age, or

sex. For similar reasons, the court rejected Gove’s

age- and sex-discrimination theories. It dismissed his

retaliation claim because he did not allege that he

engaged in any protected activity.

Gove filed a notice of appeal and, on the same day,

moved the district court to alter or amend its

judgment. See FED. R. CIV. P. 59(e). He sought to

introduce new evidence that Sargento, during the

suit, had hired women to seduce him and discredit

his claim of being a monogamous Christian. The

court denied the motion, concluding that he failed to

explain why he could not have discovered this

information earlier or how it was material. Gove filed

a notice of appeal from that ruling as well. We

consolidated both appeals.

Gove argues that the district court erred by

demanding too much specificity in his complaint. We

agree with him. Notice pleading requires only that

complaint contain facts sufficient to state a claim

that is plausible on its face. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Gove, who has not yet had

the benefit of discovery, did not need to allege every

evidentiary element of his claims. See Swierkiewicz

26a

v. Sorema N.A., 534 U.S. 506, 510-12, 514 (2002).

And the allegations of his complaint were sufficient

to survive dismissal.

First, regarding Gove’s hostile-work-environment

claim, a fair reading of the complaint shows that

Gove alleged harassment so “severe or pervasive”

that it created an abusive working environment. See

Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017)

(citation omitted). He asserted, for instance, that

over the course of a year his coworkers made sexual

gestures to him, threw materials at him, and

threatened to hurt him or vandalize his car because

of his faith; this harassment, he said, proved so

stressful that he had to take time off work. He also

alleged that he reported the harassment repeatedly

to human resources, which did nothing to ameliorate

it. The district court, in demanding more specifics

about the nature of Sargento’s abusive work

environment and particular actions taken by

individual coworkers or administrators, improperly

applied the equivalent of the summary-judgment

standard to Gove’s claims. See Huri v. Office of the

Chief Judge of Cir. Ct. of Cook Cnty., 804 F.3d 826,

834 (7th Cir. 2015). By alleging such details as the

type of discrimination (religious), who did it, and

when, Gove said enough to state a hostile-workenvironment claim. We also conclude that Gove

adequately stated a claim of retaliation. Gove needed

to assert only that he engaged in protected activity

and was subject to an adverse employment action as

a result of that activity. See Luevano v. Wal-Mart

Stores, Inc., 722 F.3d 1014, 1029 (7th Cir. 2018).

Reporting workplace harassment based on religion is

protected activity under Title VII. See Huri, 804 F.3d

at 833. By asserting that Sargento fired him for his

27a

complaints about faith-based harassment, Gove

alleged enough to state a claim of retaliation. See

Alamo, 864 F.3d at 555-56.

Finally, we agree with Gove that the district court

erred in dismissing his sex and age-discrimination

claims. He adequately stated these claims by

alleging that he was harassed at work and

ultimately fired because he was an older male. See

Swierkiewicz, 534 U.S. at 514; Freeman, 927 F.3d at

965.

We emphasize that we conclude here only that

Gove’s allegations are sufficient to state a claim. We

express no opinion about how the district court

should evaluate Gove’s case at any later stage. We

VACATE the judgment and REMAND for further

proceedings. Case: 21-1235 Document: 00713854940

Filed: 08/03/2021 Pages: 4 (4 of 7)

We VACATE the judgment the judgment and

REMAND for further proceedings.

C. TIMOTHY R GOVE v. SARGENTO FOODS

INC., no.23-1759 (7t" cir., 04/21/23), case

Dismissed Lack of Jurisdiction. Case no.: 22-

1410 Document: 5-1 Filed: 08/29/2022 Pages: 1

(1 of 2)

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT Everett McKinley Dirksen

United States Courthouse Room 2722 - 219S.

Dearborn Street Chicago, Illinois 60604 March 29,

2022 By the Court: Office of the Clerk Phone: (812)

435-5850 www.ca7.uscourts.gov

28a

TIMOTHY R. GOVE, Plaintiff - Appellant v.

SARGENTO FOODS INC., Defendant - Appellee

No. 22-1410

Originating Case Information: District Court No:

2:18-cv-01335-PP Eastern District of Wisconsin

District Judge Pamela Pepper

Upon consideration of the MOTION TO

VOLUNTARILY DISMISS APPEAL, filed on March

28, 2022, by the pro se appellant, IT IS ORDERED

that this case is DISMISSED, pursuant to Federal

Rule of Appellate Procedure 42(b).

TIMOTHY R. GOVE, Plaintiff - Appellant v.

SARGENTO FOODS INC., Defendant - Appellee

Originating Case Information: District Court No:

2:18-cv-01335-PP Eastern District of Wisconsin

District Judge Pamela Pepper Upon consideration of

the MOTION TO VOLUNTARILY DISMISS

APPEAL, filed on March 28, 2022, by the pro se

appellant, IT IS ORDERED that this case is

DISMISSED, pursuant to Federal Rule of Appellate

Procedure 42(b). form name:

c7_FinalOrderWMandate (form ID: 137)

D. TIMOTHY R GOVE v. SARGENTO FOODS

INC., no.23-1759 (7th cir., 04/21/23), case

Dismissed Lack of Jurisdiction

United States Court of Appeals For the Seventh

Circuit Chicago, Illinois 60604 May 25, 2023

Before: Frank H. Easterbrook, Circuit Judge Ilana

Diamond Rovner, Circuit Judge John Z. Lee, Circuit

Judge

29a

TIMOTHY R. GOVE, Plaintiff-Appellant v.

SARGENTO FOODS INC., Defendant-Appellee

Appeal No. 23-1759 from the United States District

Court for the Eastern District of Wisconsin. No. 2:18-

cv-01335-PP. |] ] Pamela Pepper, |] Chief Judge.

ORDER

On consideration of the papers filed in this appeal

and review of the short record, IT IS ORDERED that

this appeal is DISMISSED for lack of jurisdiction.

Generally, an appeal may not be taken in a civil case

until a final judgment disposing of all claims against

all parties is entered on the district court’s civil

docket pursuant to Fed. R. Civ. P. 58. See Alonzi v.

Budget Construction Co., 55 F.3d 331, 333 (7th Cir.

1995); Cleaver v. Elias, 852 F.2d 266 (7th Cir. 1988).

The district court has not entered a final judgment

under Rule 58 in the present case, and for good

reason.

Plaintiff-appellant Timothy Gove’s case remains

pending in the district court. The order that plaintiffappellant Gove wants reviewed is merely a case

management order, and not immediately appealable.

See Jangia V. Questar Capital Corp., 615 F.3d 735,

740 (7th Cir. 2010). In short, now is not the time to

appeal.

E. TIMOTHY R GOVE v. SARGENTO FOODS

INC., no. 2:18-cv-1335 (09/10/24), District Court

Judgment.

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF WISCONSIN TIMOTHY RYAN

30a

GOVE, Plaintiff, v. SARGENTO FOODS, INC.,

Defendant. Case No. 18-cv-1335-pp ORDER

GRANTING DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT (DKT. NO. 137) AND

DISMISSING CASE

Six years ago the defendant filed a pro se complaint

that appeared to state a retaliation and

discrimination claim against the defendant, his

former employer. Dkt. No. 1. Soon after filing an

amended complaint, dkt. no. 7, before the court had

an opportunity to screen it, the plaintiff began to file

discovery motions, dkt. nos. 12, 13. The court gave

the plaintiff an opportunity to amend, dkt. no. 19,

but dismissed the second amended complaint for

failure to state a claim, dkt. no. 23. On appeal, the

Seventh Circuit Court of Appeals determined that

the plaintiff could proceed on hostile work

environment, retaliation and sex and age

discrimination claims. Dkt. No. 37. The appellate

court expressed “no opinion about how the district

court should evaluate the [plaintiffs] case at a any

later stage.” Id. at 4.

On March 3, 2022, the court dénied the plaintiffs

motion to transfer the case to the Green Bay

Division, dkt. no. 47, and the plaintiff again

appealed, dkt. no. 49. The Seventh Circuit dismissed

the appeal. Dkt. No. 55.

On June 27, 2022, the court held a hearing after the

plaintiff had served numerous third-party subpoenas

on individuals who were not parties to the case and

who appeared to be unrelated to the allegations in

the second amended complaint. Dkt. No. 78. The

court emphasized to the plaintiff that he was

proceeding on his allegations that were civil—not

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