Barrera v. Caseys General Store et al

Filing 13

ORDER granting 8 defendant Barela's Motion to Dismiss Party; granting 10 defendant Casey's Motion to Dismiss for Lack of Jurisdiction; and denying 12 plaintiff's Motion to Stay Case. Signed by District Judge J. Thomas Marten on 7/12/2013. Mailed to pro se party Linda Barrera by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LINDA BARRERA,
Plaintiff,
v.

Case No. 13-1146-JTM

CASEY’S GENERAL STORES, INC., et al.,
Defendant.
ORDER
In this case, Linda Barrera alleges Title VII employment discrimination against
her employer, Casey’s General Store,1 and her supervisor, Sarah Barela. The court has
before it defendant Barela’s Motion to Dismiss (Dkt. 8), defendant Casey’s Motion to
Dismiss (Dkt. 10), and plaintiff Barrera’s Motion to Stay (Dkt. 12). After reviewing the
parties’ arguments, the court is prepared to rule.
I. Background
On March 18, 2013, Barrera received her right to sue letter from the EEOC, which
stated that the EEOC was unable to conclude that the information obtained established
violations of the statutes. On April 17, 2013, Barrera filed a pro se complaint in the U.S.
District Court for the District of Kansas, alleging discrimination on the basis of race and
sex. The complaint could be read to allege a retaliation claim as well. Barrera asserted
the following facts in support of her claim:

1The

defendant maintains that Casey’s General Stores, Inc. is a holding company with no employees;
rather, Casey’s Retail Company is the proper defendant before the court in this matter.

Plaintiff suffered disparate treatment by defendant Sarah Barela (store
manager). Defendant Sarah Barela gave a less senior employee weekends
off. Plaintiff is more senior and gets Sunday-Mondays off instead. Plaintiff
has discussed the matter several times with defendant Sarah Barela.
Defendant has addressed the issue with defendant Casey’s General Store
(corporate). Plaintiff has not received any results from talking with
corporate. Plaintiff has suffered untolerable (sic) working conditions as a
result from filing an EEOC complaint.
Dkt. 1.
On May 22, 2013, defendants filed their motions to dismiss. Barela’s motion seeks
dismissal pursuant to FED. R. CIV. P. 12(b)(6), arguing that she may be sued under Title
VII as an agent of Casey’s but not in her personal capacity. Casey’s motion seeks
dismissal for failure to state a claim pursuant to Rule 12(b)(6), and, alternatively for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1). Barrera did not respond to
either motion, opting instead to file a motion seeking a sixty-day extension to find
counsel to represent her in this case.
II. Barrera’s Motion to Stay
Barrera’s motion to stay the case states that she is still trying to locate an attorney
to represent her and that the Kansas Lawyer Referral Service is still assisting her to that
end. The court notes that Barrera has been working with the referral service since before
she filed the case in April of this year. See Dkt. 4. In her prior motion to appoint counsel,
Barrera listed six attorneys she had contacted, all of whom declined to take her on as a
client. Id. After receiving her right to sue letter from the EEOC, Barrera had ninety days
to file suit, which gave her the same amount of time to find an attorney. Instead, she
filed suit without an attorney after thirty days, seeking appointed counsel from the
2

court. The court denied this motion. Since then, Barrera has not found counsel to aid her
and has not responded to the motions filed by defendants.
The motion to stay proceedings does not provide the court with any reason to
believe Barrera will make any progress in her attempts to find an attorney, especially
given the time and her numerous failed attempts to find one to date. Therefore, the
motion to stay is denied.
III. Legal Standard: Rule 12(b)(6) Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” The
complaint must give the defendant adequate notice of what the plaintiff’s claim is and
the grounds of that claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
“In reviewing a motion to dismiss, this court must look for plausibility in the
complaint . . . . Under this standard, a complaint must include ‘enough facts to state a
claim to relief that is plausible on its face.’ “ Corder v. Lewis Palmer Sch. Dist. No. 38, 566
F.3d 1219, 1223–24 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying and affirming
Twombly’s probability standard). “The issue in resolving a motion such as this is ‘not
whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to
offer evidence to support the claims.’ “ Bean v. Norman, No. 008-2422, 2010 WL 420057,
at *2, (D. Kan. Jan. 29, 2010) (quoting Swierkiewicz, 534 U.S. at 511).
3

The court must construe pro se pleadings liberally, but “it need only accept as
true plaintiff’s “well-pleaded factual contentions, not his conclusory allegations.’ ”
Loggins v. Cline, 568 F. Supp. 2d 1265, 1268 (D. Kan. 2008). It is not “the proper function
of the district court to assume the role of advocate for the pro se litigant,” and the court
should not “construct arguments or theories for the plaintiff” or “supply additional
factual allegations to round out a plaintiff’s complaint.” Shelby v. Mercy Regional
Hospital, 2009 WL 1067309, at *2 (D. Kan. April 21, 2009). Moreover, pro se litigants are
subject to and must follow procedural rules governing all litigants. Green v. Dorrell, 969
F.2d 915, 917 (10th Cir. 2002). Even a pro se plaintiff bears the burden of alleging
“enough facts to state a claim to relief that is plausible on its face.” Bafford v. Pokorski,
2008 WL 2783132, at *3 (D. Kan. July 17, 2008).
IV. Legal Analysis
1. Barela’s Motion to Dismiss
Title VII prohibits discrimination by employers on a variety of grounds. See 42
U.S.C. § 2000e–2(a) (1964). However, “personal capacity suits against individual
supervisors are inappropriate under Title VII.” Haynes v. Williams, 88 F.3d 898, 899 (10th
Cir. 1996). Although a supervisor may be named in an official capacity, doing so is only
“a means to sue the employer and ‘is superfluous where, as here, the employer is
already subject to suit directly in its own name.’ ” Blackmon v. U.S.D. 259 Sch. Dist., 769
F. Supp. 2d 1267, 1272 (D. Kan. 2011) (quoting Lewis v. Four B Corp., 211 Fed. App’x 663,
665, n.2 (10th Cir. 2005)). When a plaintiff names as defendants both the employer and
an employee in his or her official capacity, the claims against the employee merge with
4

the claims against the employer. White v. Midwest Office Tech., Inc., 979 F. Supp. 1354,
1356 (D. Kan. 1997).
Here, Barrera named Barela as an additional defendant rather than as an agent of
Casey’s. To the extent Barrera alleges Title VII causes of action against Barela as an
additional defendant, the claim merges with Barrera’s claim against Casey’s. See id.
Therefore, the claims against Barela in her personal capacity are dismissed.
2. Casey’s Motion to Dismiss
In its motion, Casey’s argues that Barrera failed to plead sufficient facts to state a
claim upon which relief may be granted. The court agrees. Barrera alleged Casey’s
discriminated against her based on her race and sex as a Hispanic female. But Barrera’s
complaint does not explain how her claims apply to the facts she alleges, and this
failure is fatal to all of her claims. The material elements of a discrimination claim are: 1)
membership in a protected class; 2) an adverse employment action; 3) being qualified
for the job; and 4) being treated less favorably than others outside the protected class.
Durant v. MillerCoors, LLC, 415 Fed. App'x 927, 931 (10th Cir. 2011).
Adverse employment actions constitute a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits. Orr v.
City of Albuquerque, 417 F.3d 1144, 1150 (10th Cir. 2005). The question of harm arises
most frequently when an employer subjects an employee to noneconomic injury.2

2See

Rosalie Berger Levinson, Parsing the Meaning of “Adverse Employment Action” in Title VII
Disparate Treatment, Sexual Harassment, and Retaliation Claims: What Should Be Actionable
Wrongdoing?, 2004 OKLA. LAW REV. 623, 625 (2003).

5

Barrera’s complaint alleges that Barela gave a less senior employee weekends off, while
Barrera was given Sundays and Mondays off. Essentially, Barrera claims that although
she and her co-worker get two days off per week, she would rather have Saturday off
than Monday, and Casey’s refusal to give her preference priority over a less senior
employee is an adverse employment action. Barrera does not claim that she requested a
religious accommodation to not work on Saturdays because of her faith. See Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). She does not claim that Casey’s had a formal
seniority system in place that would give her a right to choose her days off that would
be superior to a less senior employee’s preferences. See id. at 81 (stating “seniority
systems are afforded special treatment under Title VII itself.”). Simply put, an employee
who does not receive her preferred work schedule, without more, has not suffered an
“adverse employment action” under Title VII. See Watts v. Kroger Co., 170 F.3d 505, 510
(5th Cir. 1999) (holding that a change in the employee’s work schedule does not fall into
the established categories of changes in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits).
Additionally, Barrera does not indicate the race or sex of the less senior
employee. Regarding her possible retaliation claim, Barrera does not indicate any
specific adverse employment actions she has suffered since filing her EEOC complaint.
In short, Barrera’s complaint provides only legal conclusions regarding discrimination
that this court need not accept as true. See Loggins, 568 F. Supp. 2d at 1268. Accordingly,

6

the court finds that Barrera has failed to plead sufficient factual detail to state a claim
under Rule 12(b)(6).
IT IS THEREFORE ORDERED this 12th day of July, 2013, that Barela’s Motion to
Dismiss (Dkt. 8) and Casey’s Motion to Dismiss (Dkt. 10) are granted and Barrera’s
Motion to Stay (Dkt. 12) is denied.

s/J. Thomas Marten
J. THOMAS MARTEN, JUDGE

7