Lister v. Griffin et al

Filing 18

MEMORANDUM AND ORDER granting 13 Defendants Motion to Dismiss for Failure to State a Claim. Plaintiff shall be allowed 15 days from the date of this order to file an amended complaint that names his employer as the defendant. Signed by District Judge Richard D. Rogers on 1/18/2012.Mailed to pro se party James Lister by certified mail ; Certified Tracking Number: 70111570000262700546 (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES LEE LISTER,
Plaintiff,
vs.

Case No. 11-1183-RDR

FRANK GRIFFIN and
KIM HILLARD,
Defendants.
MEMORANDUM AND ORDER
This is an employment discrimination action brought by the
plaintiff, proceeding pro se, pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq.

He contends that he

was terminated and not promoted due to his race and religion. This
matter is presently before the court upon the motion to dismiss
filed

by

defendants

Frank

Griffin

and

Kim

Hillard.

Having

carefully reviewed the arguments of the parties, the court is now
prepared to rule.
I.
Plaintiff filed his complaint on July 14, 2011. He asserts in
the complaint that he was hired in November 2009 to work at the
Intrust Bank Arena.

He alleges that the acts of discrimination

occurred on November 10, 2010.

A charge of discrimination was

filed with the Equal Employment Opportunity Commission and he
received a Notice of Right to Sue Letter, which was dated May 5,
2011.

In his complaint, plaintiff named Frank Griffin and Kim

Hillard

as

“operations

the

defendants.

director”

and

Griffin
Hillard

is

is

identified

identified

as

as

the

“human

resources” personnel.
II.
In

their

motion,

the

defendants

seek

dismissal

under

Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted.
wrong

defendants

They contend that plaintiff has sued the

because

personal

capacity

actions

against

individual supervisors are not allowed under Title VII.

They

further argue that, if dismissal is granted, plaintiff would not be
able to refile his complaint against his former employer because
the complaint would be time-barred.
In response, plaintiff asserted that he filed suit against the
proper defendants because they were the ones that made the decision
to

fire

him,

and

they

promotion decisions.

were

also

responsible

for

hiring

and

He further noted that he can name his prior

employer as the defendant, if allowed.
III.
In ruling on a motion to dismiss for failure to state a claim
under

Fed.R.Civ.P.

12(b)(6),

the

court

assumes

as

true

all

well-pleaded facts in plaintiff’s complaint and views them in a
light most favorable to plaintiff. See Zinermon v. Burch, 494 U.S.
113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th
1984).

Cir.

To survive a motion to dismiss under Rule 12(b)(6), a

2

complaint must present factual allegations that “raise a right to
relief above the speculative level” and must contain “enough facts
to state a claim to relief that is plausible on its face.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
must

be

enough

that,

if

assumed

to

be

true,

The allegations
the

plaintiff

plausibly, not merely speculatively, has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).
“‘Plausibility’ in this context must refer to the scope of the
allegations in a complaint:

if they are so general that they

encompass a wide swath of conduct, much of it innocent, then the
[plaintiff ‘has] not nudged [his] claims across the line from
conceivable to plausible.’”

Id. (quoting Twombly, 550 U.S. at

570). Under this standard, “the 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).
Because plaintiff is proceeding pro se, the court construes
his pleadings liberally and holds the pleadings to a less stringent
standard than formal pleadings drafted by lawyers.

Erickson v.

Pardus, 551 U.S. 89, 94 (2007); McBride v. Deer, 240 F.3d 1287,
1289 (10th Cir. 2001).

Liberal construction does not, however,

3

“‘relieve the plaintiff of the burden of alleging sufficient facts
on which a recognized legal claim could be based.’”

Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (quotation omitted).
The court need not accept as true those allegations that state only
legal conclusions.

See id.
IV.

The defendants are correct that the law is settled that Title
VII may only be brought against the employer entity, and not
individual supervisory defendants.

Butler v. City of Prairie

Village, 172 F.3d 736, 743 (10th Cir. 1999). Accordingly, the court
must

dismiss

plaintiff’s

complaint

against

these

defendants.

However, given plaintiff’s pro se status, the court shall give
plaintiff fifteen (15) days from the date of this order to file an
amended complaint in which he names his former employer as the
defendant.

If plaintiff files such a complaint, the defendant can

at a later time raise its arguments about the timeliness of the
plaintiff’s amended complaint and whether it relates back to the
original

complaint

pursuant

to

Fed.R.Civ.P.

15(c).

If

the

plaintiff fails to file an amended complaint, the court will
dismiss this action.
IT IS THEREFORE ORDERED that defendants’ motion to dismiss
(Doc. # 13) be hereby granted. Plaintiff’s complaint against these
defendants is hereby dismissed.
IT IS FURTHER ORDERED that plaintiff be allowed fifteen (15)

4

days from the date of this order to file an amended complaint that
names his employer as the defendant.
IT IS SO ORDERED.
Dated this 18th day of January, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

5