Bushy v. Medical Center of the Rockies

Filing 89

ORDER granting 55 Motion to Dismiss. ORDERED that all claims against Dr. Johar in his official capacity are DISMISSED by Judge Philip A. Brimmer on 09/16/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01467-PAB-KLM
AMANDA BUSHY,
Plaintiff,
v.
MEDICAL CENTER OF THE ROCKIES, a corporation, and
Dr. JASJOT JOHAR, in his official capacity,

Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion to Dismiss the Amended Complaint
[Docket No. 55] filed by defendant Dr. Jasjot Johar.
On June 7, 2013, plaintiff Amanda Bushy filed this action, bringing claims under
Tile VII of the Civil Rights Act of 1964. Docket No. 2 at 1. Plaintiff alleges that, as an
employee of defendant Medical Center of the Rockies (“MCR”), she was
subjected to intense and constant sexual harassment and assaults by Dr.
Johar, an emergency department medical director at MCR’s medical facility.
Dr. Johar determined Plaintiff’s work schedule assigning her shifts that would
coincide with his presence. Dr. Johar expressed his authority to hire,
promote, demote and fire Plaintiff. Dr. Johar exercised significant control
over the employment conditions of Plaintiff including when and where she
worked.
Docket No. 48 at 3, ¶¶ 9-10. Plaintiff originally brought claims against Dr. Johar in both
his individual and official capacities. Docket No. 2 at 1. Plaintiff later moved to amend
her complaint to dismiss Dr. Johar in his individual capacity and to dismiss her claims

brought under Colorado law. Docket No. 36. On October 29, 2013, plaintif f’s motion
for leave to file an amended complaint was granted and her amended complaint was
accepted for filing. Docket Nos. 47, 48. Plaintiff’s amended complaint consists only of
Title VII claims for discrimination, harassment, and retaliation, all of which are brought
against both Medical Center of the Rockies and Dr. Johar in his official capacity.
Docket No. 48 at 6-8. On November 5, 2013, Dr. Johar filed the present motion to
dismiss plaintiff’s remaining claims against him, arguing that, because Title VII claims
are limited to employers, plaintiff’s claims against Dr. Johar should be dismissed.
Docket No. 55 at 2.
Dr. Johar moves for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6), a complaint must
allege enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W ]here 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 shown–that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted). Additionally, pursuant to Rule 12(f), the court may, sua sponte, “strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f); see, e.g., Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005) (discussing court’s power under Rule 12(f) to,
on its own initiative, strike pleadings that are abusive or contain offensive language).

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A plaintiff may seek relief under Title VII against his or her employer. Sauers v.
Salt Lake Cnty., 1 F.3d 1122, 1125 (10th Cir. 1993). As such, “personal capacity suits
against individual supervisors are inappropriate under Title VII.” Butler v. City of Prairie
Village, Kan., 172 F.3d 736, 743 (10th Cir. 1999) (quotations omitted); see also
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1083 n. 1 (10th Cir. 2007) (“Under
long-standing circuit precedent, supervisors and other employees may not be held
personally liable under Title VII.”). Thus, a plaintiff can recover under Title VII “either by
naming the supervisory employees as agents of the employer or by naming the
employer directly.” Sauers, 1 F.3d at 1125 (quotation marks omitted). Suits against
employees in their official capacity operate as a suit against the employer itself. Id.;
see also Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . .
generally represent only another way of pleading an action against an entity of which an
officer is an agent. . . . It is not a suit against the official personally, for the real party in
interest in the entity.” (quotation marks and citations omitted)). Although plaintiff may
name supervisors in their official capacities or as alter egos of the employer, the Tenth
Circuit has suggested that such a practice is “is superfluous where, as here, the
employer is already subject to suit directly in its own name.” Lewis v. Four B Corp., 211
F. App’x 663, 665 n.2 (10th Cir. 2005) (unpublished). Under such circumstances,
courts in the Tenth Circuit regularly dismiss claims against a supervisory employee in
his or her official capacity. See Barrera v. Casey’s General Stores, Inc., 2013 WL
3756566, at *2 (D. Kan. July 15, 2013) (dismissing Title VII claim against supervisor
because, when “a plaintiff names as defendants both the employer and an employee in

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his or her official capacity, the claims against the employee merge with the claims
against the employer”); Taylor v. Riverside Behavioral Health, 2011 WL 1528791, at *3
(N.D. Okla. April 20, 2011) (“even if Kistler and Koch were named as supervisory
employees acting in their official capacities, this would amount to a suit against
Riverside, who is already a party to this [Title VII] case”); Park v. TD Ameritrade Trust
Co., Inc., No. 10-cv-02599-BNB, 2010 WL 4608225, at *1 (D. Colo. 2010) (“Because
Plaintiff has sued her employer, a suit against Defendants Moglia and Bradley in their
official capacities under Title VII and the ADA is superfluous.”); see also Doe v. Douglas
Cnty. Sch. Dist. RE-1, 775 F. Supp. 1414, 1416 (D. Colo. 1991) (f inding, in 42 U.S.C. §
1983 case, that because a plaintiff’s official capacity claim is a “suit against the entity,” it
is identical to a claim asserting the same violations directly against the employer and
“dismissal of plaintiff’s redundant claim is warranted as a matter of judicial economy
and efficiency”).
Dr. Johar argues that, because plaintiff named MCR as a defendant, asserting
claims against Dr. Johar in his official capacity is unnecessary. Docket No. 55 at 4. 1
Plaintiff’s response focuses on the propriety of naming Dr. Johar as a defendant in his
official capacity. Docket No. 57 at 5. However, there is no dispute that naming Dr.
Johar as a defendant in his official capacity is one manner in which plaintiff can hold
MCR liable. See Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) (“‘In such a

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Dr. Johar also argues that, “to the extent Bushy continues to attempt to assert
any claim for recovery against Dr. Johar individually . . . , Bushy’s claims must fail.”
Docket No. 55 at 3. However, there is no indication that plaintiff continues to assert
claims against Dr. Johar in his individual capacity and, as such, Dr. Johar’s argument is
moot.
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situation, the individual operates as the alter ego of the employer, and the employer is
liable for the unlawful employment practices of the individual without regard to whether
the employer knew of the individual’s conduct.’” (quoting Sauers, 1 F.3d at 1125)). 2
What plaintiff fails to address is whether bringing identical claims against both MCR and
Dr. Johar in his official capacity is appropriate. Plaintiff argues that the degree to which
MCR is responsible for Dr. Johar’s conduct is a factual issue to be determined at trial,
but plaintiff bears the burden of showing that MCR is liable regardless of whether Dr.
Johar is a named defendant. Moreover, plaintiff fails to address the weight of authority
supporting the dismissal of official capacity claims under analogous circumstances.
See, e.g., Barrera, 2013 WL 3756566, at *3. In the context of 42 U.S.C. § 1983 claims,
the Tenth Circuit has indicated that a suit against the entity and its agent may not be
duplicative if the plaintiff shows that “either separate duties were breached or separate
injuries resulted” and provides an “explanation for the division of the damages award.”
J.M. v. Hilldale Indep. Sch. Dist. No. 1-29, 397 F. App’x 445, 462 (10th Cir. 2010) (citing
Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1306 (10th Cir. 2003)). It is not clear that
the Tenth Circuit would apply this reasoning in the Title VII context, see Lewis, 211 F.
App’x at 665 n.2, but, regardless, plaintiff makes no attempt to show that Dr. Johar and
MCR breached separate duties and the amended complaint does not allege that each
defendant caused separate injuries. Rather, the claims against Dr. Johar and MCR
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Although Haynes considered arguments that individual supervisors could be
liable under Title VII, the Tenth Circuit continues to adhere to the rule articulated in
Sauers. See id.; Williams, 497 F.3d at 1083 n. 1. Thus, plaintiff’s citation to Haynes
does not, strictly speaking, bear on the issue raised in this motion, namely, whether a
plaintiff should be permitted to proceed on identical Title VII claims against an employer
and a supervisory employee in his official capacity.
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appear to be identical. Cf. Cross Continent Dev., LLC v. Town of Akron, Colo., No. 09cv-02413-WYD-KMT, 2012 WL 2568173, at *3 (D. Colo. July 3, 2012) (declining to
dismiss claims against individual defendant in official capacity because plaintiff sought
punitive damages only against individual defendant in official capacity for conduct
“independent to and in addition to the wrongful actions of the Town”). Plaintiff has
failed to justify maintaining identical Title VII claims against both Dr. Johar in his official
capacity and MCR. Thus, because plaintiff maintains claims against MCR, plaintiff’s
claims against Dr. Johar in his official capacity are redundant and will be dismissed.
For the foregoing reasons, it is
ORDERED that Defendant Dr. Jasjot Johar’s Motion to Dismiss the Amended
Complaint [Docket No. 55] is GRANTED. It is further
ORDERED that all claims against Dr. Johar in his official capacity are
DISMISSED.

DATED September 16, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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