govinfo:USCOURTS-wiwd-3_25-cv-00759-2

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WISCONSIN 
  
 
DAVID STOTESBERY, 
 
Plaintiff, 
v. 
 
DOUSMAN TRANSPORT COMPANY, INC., 
 
Defendant. 
OPINION and ORDER 
 
25-cv-759-jdp 
 
 
Plaintiff David Stotesbery, proceeding without counsel,  alleges in an amended 
complaint that his former employer, defendant Dousman Transport Company, Inc., retaliated 
against him for refusing to op erate a school bus that he re ported was unsafe. Dkt. 18. 
Stotesbery brings a retaliation claim under the Surface Transportation Assistance Act. Because 
Stotesbery is proceeding without prepaying th e filing fee, I must screen the amended 
complaint, as I did the original complaint, under 28 U.S.C. § 1915(e)(2)(B). See Dkt. 16 at 1. 
I dismissed the original complaint for failure to state a plausible claim for relief. 
The amended complaint is highly similar to the original complaint, with one primary 
substantive change. But Stotesbery’s new allegati ons do not fix the proble ms that I identified 
with Stotesbery’s retaliation claim in my first screening order. Accordingly, I will dismiss the 
amended complaint without leave to amend for failure to state a plausible claim for relief, deny 
as moot Dousman Transport’s motion for a more  definite statement, Dkt. 19, and close the 
case. 
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BACKGROUND 
Dousman Transport is a Wisconsin corporation engaged in student transportation. Dkt. 
18 at 6. Stotesbery worked as a school bus dr iver at Dousman Transport’s Jefferson terminal 
until September 20, 2023. Id. at 2. After his employment ended, Stotesbery filed a Surface 
Transportation Assistance Act (STAA) complain t with the Occupational Safety and Health 
Administration (OSHA) in September 2023. Id. at 6. OSHA dismissed the complaint, and 
Stotesbery objected to OSHA’s findings and requested an administrative hearing. Id. The 
matter was docketed before the Department of Labor Office of Administrative Law Judges 
(OALJ). Id. After no final decision was issued with in 210 days, Stotesbery brought this case, 
after which the OALJ proceeding was dismissed without prejudice. Id. 
The STAA prohibits an employer from ta king adverse action against an employee 
because he has engaged in a form of activity that the statute protects. Formella v. U.S. Dep’t of 
Lab., 628 F.3d 381, 389 (7th Cir. 2010). In his or iginal complaint, Stotesbery alleged that 
Dousman Transport retaliated against him because he: (1) refused to operate an unsafe vehicle; 
(2) reported safety concerns; (3) reported retali ation; and (4) “blacklist[ed] him from future 
employment opportunities.” Dkt. 1 at 7–10. He also alleged that the “adverse action” 
requirement of a retaliation claim was met by his “constructive discharge.” Id. at 8–9.  
On screening the original complaint, I conc luded that Stotesbery had alleged that he 
had engaged in activity that the STAA protects by: (1) by refusing to dr ive a school bus, bus 
69, based on his pre-trip inspecti on that revealed problems with its rear emergency exit door; 
and (2) reporting safety concerns about sch ool buses to Dousman Transport’s terminal 
manager and president, Jamie Magner and Larry Kirkley, and to school officials. See Dkt. 16 at 
2–3, 7–9. 
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The issue, I explained, was whether Stotesbery had alleged that Dousman Transport 
had taken adverse action against him based on that protected activity. See id. at 8–9. In relevant 
part, Stotesbery alleged that Magner took ad verse action against him by “declaring his 
departure” as a resignation even though it was “compelled by [an] unlawful ultimatum.” Dkt. 1 
¶¶ 25, 37. Stotesbery explained that Magner ga ve him three options: (1) drive bus 69 despite 
the safety issue; (2) stay at the terminal while Magner drove the bus; or (3) leave, which Magner 
would treat as a resignation. See Dkt. 16 at 8 (summarizing original complaint’s allegations).  
I assumed for screening purposes that an “u ltimatum” consisting of only the first and 
third options would be adverse action. Id. But I noted that Magner gave Stotesbery another 
option: staying at the terminal while Magner drove the bus. Id. I concluded that this allegation, 
even in the complaint’s full context, did not plausibly suggest that Magner pressured Stotesbery 
to resign because of his refusal to drive the bus, or that he reasonably would have believed that 
his termination was imminent if he stayed at the terminal. Id. In other words, I concluded that 
Stotesbery did not allege any facts plausibly suggesting that having to stay at the terminal while 
Magner drove the bus amounted to discipline or discrimination in the pay, terms, or privileges 
of his employment. Id. For the same basic reasons, I conc luded that Stotesbery failed to 
plausibly allege that his reported safety concerns caused him to be terminated or constructively 
discharged. See id. at 9. Stotesbery’s other theories of retaliation were conclusory and partly 
redundant with his main theori es of retaliation, so I dismissed those claims as well. See id. 
at 9–11. 
Stotesbery’s amended complaint, Dkt. 18, is highly similar to the original complaint. 
As with the original complaint, Stotesbery alleges that Magner directed him drive bus 69 or 
stay at the terminal while she drove it, and th at if he left she would treat that act as a 
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resignation. Id. at  3, 7–8. Bu t  St ot e sb e r y  now al l e ge s t hat  M ag ne r ’s “di r e c ti ve  wou l d l e ave 
[him] as the sole . . . employee in the terminal building and alone at th e dispatch desk while 
she drove the route.” Id. at 7. He also alleges that he “h ad not been trained on dispatch, the 
terminal’s phones, or dealing with customers.” Id. Stotesbery adds that he “declined to drive 
Bus 69 or accept the untrained dispatch directive, and he left.” Id. 
  Stotesbery alleges that, later that day,  Magner emailed him and told him that she 
would “See him in the am,” which “conveye d an invitation for [him] to return.” Id. at 8. But 
Stotesbery alleges that this email “did not expressly withdraw Magner’s [earlier] quit 
declaration.” Id. Stotesbery also alleges that, in his re ply to Magner’s email, he restated his 
options as: “(a) drive Bus 69 after it failed pre-trip; (b) sit in the office while Magner drove Bus 
69 after it failed pre-trip; or (c) quit.” Id. Stotesbery then wrote: “This email being the only 
thing I’ve heard from you since offering me those choices, I’m sticking with #3.” Id.  
ANALYSIS 
As in the original complaint, Stotesbery alleges that Dousman Transport retaliated 
against him because he reported that bus 69 had a defective emergency exit, refused to operate 
an unsafe bus, and sought correction of that condition or a replacement vehicle. Id. at 9. As a 
general matter, this activity is protected under the STAA. See Dkt. 16 at 7, 9; see also 49 U.S.C. 
§ 31105(a)(2) (“To qualify for protection, the employee must have sought from the employer, 
and been unable to obtain, corre ction of the hazardous safety or security condition.”). The 
basic issue is whether Dousman Transport took adverse action against Stotesbery based on this 
protected activity. See Formella, 628 F.3d at 389. More specifically, the issue is whether having 
to stay at the terminal while Magner drove bus 69 amounted to discipline or discrimination in 
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the pay, terms, or privileges of his employment. See Dkt. 1 at 7, 9. As a general rule, “[i]n the 
absence of circumstances sugges ting a constructive discharge, an employee who voluntarily 
resigns cannot be said to have experienced an adverse employment action.” Andrews v. CBOCS 
W., Inc., 743 F.3d 230, 235 (7th Cir. 2014) (analyzing employment discrimination claim under 
a similar statue, Title VII), overruled in part on other grounds by Ortiz v. Werner Enters., Inc. , 834 
F.3d 760 (7th Cir. 2016). 
The court concludes that Magner’s directive to stay at the terminal while she drove bus 
69 was not an adverse action. Stotesbery has no t alleged that complying with this directive 
risked harming his compensation or career prospects. Cf. Lewis v. City of Chicago, 496 F.3d 645, 
653 (7th Cir. 2007) (giving examples of adverse employment actions under Title VII). From 
what I can tell, his theory is that having to stay at the terminal would have exposed him to 
much worse job conditions, cf. id., but he doesn’t explain how this is so. Stotesbery alleges that 
he “had not been trained on dispatch, the term inal’s phones, or dealing with customers,” but 
he doesn’t allege that Magner asked him to handle those responsibilities. See., e.g., Dkt. 18 at 
8 (alleging that, in his reply to Magner’s email, he wrote that she gave him the option to “sit 
in the office while Magner drove Bus 69”). Nor has Stotesbery alleged that any inability on his 
part to fulfill those responsibilities would have seriously disrupte d Dousman Transport’s 
operations or endangered the public. So, as with the original complaint, the amended 
complaint’s allegations show that Stotesbery vo luntarily walked off the job when he left the 
terminal. 
Other allegations in the amended complaint confirm that Stotesbery voluntarily 
resigned. Stotesbery acknowledges that, after he left the terminal, Magner emailed him and 
“conveyed an invitation” for him to  return. He also acknowledges that he later replied to this 
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email and said that he was “sticking with” his earlier decision to leave the terminal. Stotesbery 
contends that these communications don’t sh ow that he voluntarily resigned, but his 
explanation is unpersuasive. See id.  a t  9 .   E v e n  a c c e p t i n g  h i s  factual allegations as true, 
Stotesbery has not alleged that his protected activity caused Dousman Transport to take 
adverse employment action against him. Thus  he has failed to state a plausible STAA 
retaliation claim. 
CONCLUSION 
When a plaintiff proceeds wi thout counsel, the court of appeals has cautioned against 
dismissing his case with out giving him a chance to amend the complaint. F e l t o n  v .  C i t y  o f  
Chicago, 827 F.3d 632, 636 (7th Cir. 2016). But if it is clear that any amendment would be 
futile, I need not grant leave to amend. Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013).  
I allowed Stotesbery to amend the original complaint to fix the problems with his STAA 
retaliation claim. Stotesbery’s amended complaint is highly similar to the original complaint, 
and its primary substantive change does not fix the problems that I identified in my first 
screening order. I will therefore dismiss the amended complaint without leave to amend, deny 
as moot Dousman Transport’s motion for more definite statement, and close the case. 
ORDER 
IT IS ORDERED that: 
1. Plaintiff David Stotesbery’s amended comp laint, Dkt. 1, is DISMISSED without 
leave to amend for failure to state a plausible claim for relief. 
2. Defendant Dousman Transport Company, Inc.’s motion for more definite 
statement, Dkt. 19, is DENIED as moot. 
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3. The clerk of court is directed to enter judgment and close the case. 
Entered September 30, 2026. 
BY THE COURT: 
 
      / s /  
      ________________________________________ 
      J A M E S  D .  P E T E R S O N  
      D i s t r i c t  J u d g e  
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