Smith v. Swift Transportation
MEMORANDUM AND ORDER granting 37 Motion to Dismiss. The court dismisses all claims asserted by plainitff against the defendant that arose prior to 12/4/12 for failure to state a claim upon which relief can be granted. It is Further Ordered that th e parties shall inform the court on or before 3/28/14, whether plaintiff has made any efforts to pursue his arbitration claims against the defendant that arose after 12/4/12. Signed by District Judge Richard D. Rogers on 3/18/14.Mailed to pro se party Shervis Ramar Smith by regular mail (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERVIS RAMAR SMITH,
SWIFT TRANSPORTATION CO. INC.
Case No. 13-2247-RDR
MEMORANDUM AND ORDER
This is an employment action brought by the plaintiff, proceeding pro se,
against his former employer under Title VII of the Civil Rights Act of 1964, 42
U.S.C. ' 2000e et seq. This matter is presently before the court upon defendant=s
motion to dismiss. The defendant contends that the court should dismiss plaintiff=s
complaint for (1) failure to comply with the court=s orders of October 7, 2013 and
January 14, 2014; and (2) failure to state a claim upon which relief can be granted
under Fed.R.Civ.P. 12(b)(6).1
Following the filing of the defendant=s reply, plaintiff
filed another document entitled APlaintiff=s Response to 2nd
Motions to Dismiss (NO)!@ The court must construe this as a
surreply. The local rules of this court contemplate only the
filing of responses and replies to motions. They do not
contemplate the filing of surreplies. See D.Kan. Rule 7.1(c).
Surreplies are disfavored and will only be permitted in
exceptional circumstances, such as when new material is raised
for the first time in the movant=s reply. See Locke v. Grady
Cnty., 437 F. App=x 626, 633 (10th Cir. 2011); Drake v. Cox
The history of this case is extensive, even though the case has not proceeded
beyond the complaint stage. Plaintiff, proceeding pro se, filed this action on May
23, 2013. He later filed an amended complaint on July 11, 2013. The amended
complaint was 120 pages. The discrimination claims asserted were vague and
some were incomprehensible. In an order issued on October 7, 2013, the court
reviewed the complaint and the accompanying documents as follows:
In the form provided by the court, plaintiff indicates that the
Adiscrimination@ occurred from October 2010 to May 2013. He has
further indicated that the nature of the case is Amistaken identity.@ He
suggests that he has been subjected to Asexual harassment and
defamation of character.@ In the section requesting the essential facts
of his claim, he has stated:
ARamona Robertson went out of her way to help me
obtain my job at SWIFT Transportation under the
impression I was my older brother Anthony Smith, who=s
in the entertainment business around the Metro Area.
Every since she learn I wasn=t him, I been put threw (sic)
hell! From her and co-workers labeling me as a St. Thug
and such. Not only that; she turn out to be related to my
sons mother; now Ramona has slandered my name
threwout (sic) her co-workers.@
Commc=ns, Inc., 2011 WL 2680688 at *5 (D.Kan. July 7, 2011).
Plaintiff has not pointed to any new material raised in
defendant=s reply brief or any other exceptional circumstances
that would justify a surreply. Accordingly, the court shall not
consider the matters raised in plaintiff=s surreply. Even if the
court were to consider this material, we would not find that it
changes the decision reached in this memorandum and order.
In an attached charge of discrimination filed with the Kansas
Human Rights Commission on April 24, 2013, plaintiff indicated that
he was rehired on or about September 12, 2012, and he currently
works as an owner/operator. He states that during his employment he
was subjected to adverse term and conditions including but not limited
to being addressed by managers as a Astreet thug@ and Agang member.@
He notes that Agenerally@ his managers do not treat him with respect.
He contends that the actions of Swift Transportation were taken
because of his race, black, and his sex, male.
The other documents before the court indicate that plaintiff was
hired by Swift on October 13, 2010 as a driver. He was terminated on
April 12, 2011. He was later rehired. On December 4, 2012, plaintiff
entered into a Contractor Agreement with Swift, thus becoming an
owner-operator truck driver. In the agreement, the parties agreed to
Aconclusive and binding@ arbitration of A[a]ll disputes arising under,
arising out of or relating to this Agreement. . ., and any disputes
arising out of or relating to the relationship created by this Agreement,
including any claims or disputes arising under or relating to any state
or federal laws, statutes or regulations. . .in accordance with Arizona=s
Arbitration Act and/or the Federal Arbitration Act.@
In that order, the court granted defendant=s motion to compel arbitration in
part and denied it in part. The court stayed the action pending the resolution of the
arbitration proceedings for all claims asserted by plaintiff arising after December 4,
2012. The court denied defendant=s motion to dismiss for improper venue and
granted the defendant=s motion for a more definite statement in part. In granting
the motion for more definite statement, the court found that framing a response to
the plaintiff=s complaint would be Aextremely difficult.@ The court noted that
plaintiff=s claims were Adifficult to discern.@ The court stated that plaintiff should
focus on the claims that occurred prior to December 4, 2012.
with a second amended complaint and defendant again sought a more definite
statement. The court again granted the defendant=s motion. The court once again
found that plaintiff=s complaint remained deficient. The court stated:
The court is in agreement with the arguments raised by the
defendant. The amended complaint is a mishmash of various
allegations and complaints by plaintiff. He has not followed the
guidelines established by the court in our earlier order. The court will
give plaintiff one more chance to repair his amended complaint. Once
again, the court expects plaintiff to comply with the guidelines set
forth by the court in the earlier order. Failure to do so may result in
the dismissal of these claims.
Plaintiff then filed his third amended complaint. The filing of this complaint
led to the filing of the instant motion.
The defendant initially argues that the court should dismiss this action for
plaintiff=s failure to plead with the specificity ordered by the court in its prior
orders. The defendant notes that plaintiff has identified two forms of sexual
harassment in this complaint, quid pro quo and hostile work environment, but has
failed to Aidentify a single fact to support such claims.@ The defendant also asserts,
in the alternative, that the court should dismiss this action for failure to state a
claim upon which relief can be granted under Rule 12(b)(6). The defendant argues
that plaintiff=s third amended complaint does not plead facts sufficient to make a
plausible claim for sexual harassment under either the quid pro quo or hostile work
The court will turn its attention to the defendant=s alternative motion to
dismiss for failure to state a claim upon which relief can be granted. The court
believes that this is proper approach since plaintiff has made efforts to comply with
the court=s prior orders.
ATo 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.=@
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
A[T]he mere metaphysical possibility that some
plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complaint must give the court reason to believe that this plaintiff
has a reasonable likelihood of mustering factual support for these claims.@ Ridge
at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff=s complaint
alone is legally sufficient to state a claim for which relief may be granted.@ Dubbs
v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). In determining whether a
claim is facially plausible, the court must draw on its judicial experience and
common sense. Iqbal, 556 U.S. at 678. All well-pleaded facts in the complaint are
assumed to be true and are viewed in the light most favorable to the plaintiff. See
Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810,
813 (10th Cir. 1984). Allegations that merely state legal conclusions, however, need
not be accepted as true. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
A complaint alleging employment-based discrimination, retaliation or
harassment under Title VII must Amake at least minimal factual allegations on
every element@ of the claim. Sims v. Wyandotte Co./Kansas City, Kan., 120
F.Supp.2d 938, 967 (D.Kan. 2000). Vague references to discrimination, retaliation
or harassment without any indication that the alleged misconduct was motivated by
gender or another category protected by Title VII will be insufficient to support an
See Anderson v. Academy School Dist. 20, 122
Fed.Appx. 912, 916 (10th Cir. 2004).
A court liberally construes a pro se complaint and applies Aless stringent
standards than formal pleadings drafted by lawyers.@ Erickson v. Pardus, 551 U.S.
89, 94 (2007). Nonetheless, a pro se litigant=s Aconclusory allegations without
supporting factual averments are insufficient to state a claim upon which relief can
be based.@ Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court Awill
not supply additional factual allegations to round out a plaintiff=s complaint or
construct a legal theory on a plaintiff=s behalf.@ Whitney v. New Mexico, 113 F.3d
1170, 1173B74 (10th Cir. 1997).
In his third amended complaint, plaintiff appears to only be asserting a claim
of a hostile work environment under Title VII since it is titled ATittle (sic) VII
Hostile work environment.@ In accordance with prior complaints, plaintiff alleges
that he was mistreated by Ramona Robertson when he was hired by the defendant.
Plaintiff contends that Ms. Robertson began mistreating him when she discovered
that he was not his older brother. Plaintiff asserts that once she made this
discovery, she began calling him a Astreet thug@ and Acreated a hostile work
environment.@ Apparently others, including several male supervisors, also referred
to him as a Astreet thug@ following a termination and a rehire.
An employee may assert two theories under Title VII: disparate treatment
and hostile work environment. To prove a disparate treatment claim, plaintiff must
show he suffered an adverse employment action because of his sex. Orr v. City of
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). Sexual harassment may come
in the form of quid pro quo or a hostile work environment. Hicks v. Gates Rubber
Co., 833 F.2d 1406, 1413 (10th Cir. 1987). AQuid pro quo harassment occurs when
submission to sexual conduct is made a condition of concrete employment
benefits.@ Id. Plaintiff can establish a claim of hostile work environment based on
unlawful sex discrimination by showing (1) that he was discriminated because of
his sex; and (2) that the discrimination was sufficiently severe or pervasive so as to
alter his conditions of employment. Morris v. City of Colo. Springs, 666 F.3d 654,
664 (10th Cir. 2012). To establish a hostile work environment claim, plaintiff must
show that the environment was both Aobjectively and subjectively hostile or
abusive.@ Id. (citation omitted).
The complaint does not clearly indicate that plaintiff was terminated or
treated unfairly because of his sex. The complaint contains no allegations that
support a claim of gender bias. Moreover, the complaint does not sufficiently state
a claim of quid pro quo sexual harassment or a hostile work environment. The
complaint is void of any allegations or facts that suggest that anyone demanded or
even intimated that sexual conduct was a condition of some employment benefit.
As a result, plaintiff has not stated a claim of quid pro quo harassment. He has also
not adequately stated allegations of a hostile work environment. His complaint
contains no allegations that any action was taken against him because of his
gender. He has clearly stated that Ms. Robertson took her actions because of a
case of Amistaken identity.@ Such a situation, even if it results in unfair treatment,
does not constitute a Asexually@ hostile work environment. There is simply no
showing that any actions were taken against the plaintiff because of his gender, as
required by Title VII. From the outset, it has been clear to the court that plaintiff
misunderstands the requirements for a lawsuit alleging Adiscrimination.@ The court
has patiently attempted to provide plaintiff with several opportunities to state a
discrimination claim, but he has ultimately failed to do so. As a result, the court
shall grant defendant=s motion as it pertains to all claims made by plaintiff against
the defendant for conduct that allegedly occurred prior to December 4, 2012.
In the court=s order of October 7, 2013, the court determined that all of
plaintiff=s claim that arose after December 4, 2012 are subject to arbitration. The
court compelled plaintiff to pursue such claims in arbitration, and stayed such
claims pending the resolution of arbitration. The court is unaware of any actions
taken by plaintiff in pursuit of arbitration. The parties shall inform the court by
March 28, 2014 whether plaintiff has made any efforts to pursue such claims in
IT IS THEREFORE ORDERED that defendant=s motion to dismiss (Doc. #
37) be hereby granted. The court dismisses all claims asserted by plaintiff against
the defendant that arose prior to December 4, 2012 for failure to state a claim upon
which relief can be granted.
IT IS FURTHER ORDERED that the parties shall inform the court on or
before March 28, 2014, whether plaintiff has made any efforts to pursue his
arbitration claims against the defendant that arose after December 4, 2012.
IT IS SO ORDERED.
Dated this 18th day of March, 2014, at Topeka, Kansas.
s/ Richard D. Rogers
Richard D. Rogers
United States District Judge
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