Lee v. Swansons Services et al

Filing 32

ORDER denying 30 defendant's motion to dismiss as to plaintiff's § 1981 claim against her employer Swanson...the motion is otherwise granted...all other claims against Swanson and all claims against the individual defendants are dismissed for reasons stated in the court's prior orders...defendant Swanson's answer shall be filed by 07/06/2011. See order for further specifics. Signed by Honorable Joe Heaton on 06/22/2011. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
YOLANDA LEE,
Plaintiff,
vs.
SWANSON SERVICES, INC., ET AL.,
Defendants.

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NO. CIV-10-1083-HE

ORDER
Plaintiff Yolanda Lee asserts claims under 42 U.S.C. § 1981 arising out of her former
employment relationship with defendants Swanson Services, Inc. (“Swanson”), Victoria
Cantu, Venecia Frost, and Debbie Welch. The court previously dismissed plaintiff’s first two
amended complaints, once for failing to assert a basis for subject matter jurisdiction, see Doc.
#20, and once for failing to allege sufficient facts to support her claims, see Doc. #27.
Mindful of plaintiff’s pro se status,1 however, the court granted plaintiff leave to file a third
amended complaint, while notifying plaintiff that she needed to assert some factual basis
upon which her racial discrimination claims are based. Defendants have now moved to
dismiss plaintiff’s third amended complaint. Plaintiff having failed to timely respond to it,2
the motion is now at issue.
When considering whether plaintiff’s claims should be dismissed under Rule 12(b)(6)
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Pro se pleadings are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972).
2

A district court may not grant a Rule 12(b)(6) motion to dismiss based solely on a
plaintiff’s failure to respond. See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003).
Rather, it “must still examine the allegations in the plaintiff’s complaint and determine whether
the plaintiff has stated a claim upon which relief can be granted.” Id. at 1178.

the court accepts all well-pleaded factual allegations as true and views them in the light most
favorable to plaintiff, the nonmoving party. Anderson v. Suiters, 499 F.3d 1228, 1232 (10th
Cir. 2007). The question is whether the complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). Considering plaintiff’s claims under this standard, the court concludes defendants’
motion should be denied in part and granted in part.
The previous orders by the court have set forth a description of this case’s facts and
procedural history, which need not be repeated here. In their motion, defendants assert that
plaintiff’s third amended complaint offers little to no new factual information that would
allow her to state a plausible claim for relief. While the court concedes there are marked
similarities between plaintiff’s present and previous complaints, the latest complaint does
appear to allege, at least against Swanson, additional evidence of § 1981 violations arising
from plaintiff’s demotion and ultimate termination. Though difficult to discern, the
complaint seems to allege that defendant Swanson’s reasons for demoting plaintiff and then
terminating her—non-performance of her job and lack of contact with Swanson while absent,
respectively—were merely a pretext. Plaintiff suggests that her status as an African
American was the actual basis for these respective employment actions, and she supports her
argument by asserting that she was treated differently than other employees she claims were
similarly situated.
Based on the present submissions, there is considerable reason to doubt whether
plaintiff will ultimately be able to establish a § 1981 claim based on race. However, the court
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concludes plaintiff has stated sufficient facts—barely and by the thinnest of margins—to
state a claim under § 1981. In reaching that conclusion, the court has accorded plaintiff’s
submissions the broadest possible measure of deference due to her pro se status. In any
event, defendant’s motion to dismiss [Doc. #30] is DENIED as to plaintiff’s § 1981 claim
against her employer, Swanson. The motion is otherwise GRANTED. All other claims
against Swanson and all claims against the individual defendants are DISMISSED, for the
reasons stated in the court’s prior orders.
Defendant Swanson’s answer shall be filed within 14 days. If the parties have not
already discussed the possibility of an agreed resolution of this case, the court encourages
them to do so.
IT IS SO ORDERED.
Dated this 22nd day of June, 2011.

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