Martin v. A-1 Electric Heat and Air et al

Filing 23

ORDER granting 20 Motion to Dismiss, GRANTS Plaintiff leave to amend his Complaint. Plaintiff is reminded of his obligation to comply with both the rules of this Court and the Federal Rules of Civil Procedure. Plaintiffs amended complaint shall be filed within ten days of entry of this order. Signed by Honorable David L. Russell on 8/24/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TIMOTHY JOHN MARTIN,
Plaintiff,
v.
A-1 ELECTRIC HEAT & AIR,
CARLA NIEVAR and JONATHAN
JACKSON,
Defendants.

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Case No. CIV-16-1348-R

ORDER
Defendants filed a Joint Motion to Dismiss (Doc. No. 20) to which Plaintiff filed a
pro se response. Having considered the parties’ submissions, the Court finds as follows.
On November 28, 2016, Plaintiff filed a single-paged pro se Complaint that
consisted of the following:
I Timothy John Martin, am filing gender discrimination sue against, Mrs.
Carla Nievar- owner of A-1 Electric Heat and Air for gender discrimination.
Mrs. Carla Nievar showed gender favoritism in my employment work history
during a two month period, which violated the company policy. I am also
showing that Jonathan Jackson is a part of this sued, because of showing
nepotism and favoring a one-side issue.
Under Fed. R. Civ. P. 12(b)(6) the Court must accept all well-pled factual allegations, but
not conclusory, unsupported allegations, and may not consider matters outside the
pleading. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The singleparagraph Complaint is, as Defendants’ motion argues, insufficient to state a claim against
either the individuals or A-1 Heat & Air. Plaintiff’s conclusory contention that the owner
and a supervisor of A-1 Electric showed favoritism during his employment is insufficient

to meet his obligation of alleging factual matter that, if accepted as true, would establish
that he is entitled to relief. Although the Court gives the filings of a pro se Plaintiff liberal
construction, it will not construct a legal theory on his behalf. Ross v. Bush, --- Fed.Appx.
----, 2017 WL 3484854, * 1 n. 1 (10th Cir. August. 15, 2017). Accordingly, Defendant’s
allegations against all Defendants are subject to dismissal for failing to state a claim,
because alleging someone showed gender favoritism is too conclusory to meet Plaintiff’s
pleading burden.
Defendants are further correct that there is no individual liability under Title VII or
the Oklahoma Anti-discrimination Act. See Haynes v. Williams, 88 F.3d 898, 899 (10th
Cir. 1996)(an individual may qualify as an employer under Title VII for the purpose of
imputing liability to the true employer, but the individual is the alter ego of the employer
and may not be sued in his personal capacity); Fulton v. People Lease Corp., 241 P.3d 255,
261 (Okla. Civ. App. 2010)(there is no individual or supervisory liability under the
OADA). Accordingly, Defendants Nievar and Jackson are hereby dismissed from this
action.
Where dismissal is granted for failure to state a claim, the Court should grant leave
to amend freely “if it appears at all possible that the plaintiff can correct the defect.” Triplett
v. Leflore County, Okla., 712 F.2d 444, 446 (10th Cir.1983). Plaintiff did not file a separate
motion to amend his complaint; however, he asserts within his response to the instant
motion that he can amend his claims and specifically requests leave to do so. The Court
hereby GRANTS Defendants’ Motion to Dismiss and further GRANTS Plaintiff leave to
amend his Complaint. Plaintiff is reminded of his obligation to comply with both the rules
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of this Court and the Federal Rules of Civil Procedure. Plaintiff’s amended complaint shall
be filed within ten days of entry of this order.
IT IS SO ORDERED this 24th day of August 2017.

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