Kalkhoff v. Panera Bread Co, 2:21-cv-01153

Background

Plaintiff Michael Kalkhoff sued Panera Bread, LLC and several Panera employees alleging sexual harassment, discrimination, and retaliation arising from conduct between October 5, 2016 and March 13, 2017.
Kalkhoff (through counsel) alleges a female supervisor repeatedly touched his buttocks/genital area during shifts, he reported it, Panera failed to act because he was a middle‑aged male, and his hours were later reduced in retaliation, forcing him to leave.
Kalkhoff filed multiple pleadings: an October 6, 2021 original complaint (employment claims), an October 8 amendment that only checked a “Retaliation” box, and an October 25 submission about settlement discussions; the court treated the October 25 filing as inapposite and disregarded it.
Kalkhoff requested in forma pauperis; the court found he lacked resources and granted leave to proceed without prepaying the filing fee but must screen the complaint under 28 U.S.C. § 1915(e)(2).
The court noted the Title VII/ADEA 90‑day filing period ran from a Nov. 30, 2018 right‑to‑sue letter (deadline Feb. 28, 2019), and the WFEA 300‑day deadline ran to Jan. 7, 2018; the federal complaint was filed Oct. 6, 2021, appearing untimely.
The court allowed Kalkhoff leave to amend by Dec. 6, 2021 to plead facts supporting equitable tolling; failure to amend would result in a recommendation of dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
In forma pauperis eligibility	Kalkhoff lacks funds to prepay fees	(Not disputed in record)	Court granted leave to proceed without prepaying fees.
Screening under 28 U.S.C. § 1915(e)(2) / 12(b)(6) standard	Complaint alleges actionable harassment, discrimination, and retaliation with factual detail	(Defendants had not yet presented substantive defenses)	Court applied Rule 12(b)(6)/Iqbal/Twombly standards and retained complaint for screening; allowed amendment to cure tolling issues.
Operative pleading / piecemeal amendments	Kalkhoff intends to preserve earlier employment claims despite later filings	Later filings attempted piecemeal amendments and raised unrelated settlement‑dispute claims	Court treated the Oct. 6 complaint (with Oct. 8 checkbox amendment) as operative and disregarded the Oct. 25 settlement complaint.
Timeliness / statute of limitations and equitable tolling	Kalkhoff alleges dates of misconduct and contests timeliness via potential equitable tolling	Timeliness: filings on their face are beyond statutory deadlines for Title VII, ADEA, and WFEA	Court concluded claims appear untimely on the face of the pleadings but permitted amendment to allege facts showing diligence and extraordinary circumstances for equitable tolling; failure to amend would lead to dismissal.

Key Cases Cited

Denton v. Hernandez, 504 U.S. 25 (1992) (standards for dismissing frivolous in forma pauperis suits).
Neitzke v. Williams, 490 U.S. 319 (1989) (frivolousness standard for pro se suits).
Erickson v. Pardus, 551 U.S. 89 (2007) (pro se complaints to be liberally construed).
Estelle v. Gamble, 429 U.S. 97 (1976) (pro se pleadings held to less stringent standards).
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard).
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (requirement of factual enhancement beyond naked assertions).
DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) (applying Rule 12(b)(6) standard to §1915 screening).
Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671 (7th Cir. 2009) (pleading out of court on statute of limitations).
United States v. Lewis, 411 F.3d 838 (7th Cir. 2005) (dismissal at pleading stage when plaintiff pleads facts establishing untimeliness).
Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002) (statute‑of‑limitations dismissal on the face of the complaint).
Xechem, Inc. v. Bristol‑Myers Squibb Co., 372 F.3d 899 (7th Cir. 2004) (plaintiffs need not anticipate all defenses in pleadings).
Lee v. Cook County, Ill., 635 F.3d 969 (7th Cir. 2011) (elements for equitable tolling: diligence and extraordinary circumstances).
Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling principles for timeliness).
Threadgill v. Moore U.S.A., Inc., 269 F.3d 848 (7th Cir. 2001) (equitable tolling reserved for good faith error or extraordinary prevention).