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

Filing 28

ORDER granting 25 Motion to Dismiss; denying 26 Plaintiff Joint Motion to Not Dismiss Amended Complaint. Signed by Honorable David L. Russell on 10/16/17. (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 Motion to Dismiss Amended Complaint (Doc. No. 25) to which
Plaintiff filed a pro se response. Having considered the parties’ submissions, the Court
finds as follows.
The Court previously granted Defendants’ motion to dismiss, simultaneously
granting Plaintiff leave to amend in light of his pro se status. Defendants contend that
despite Plaintiff’s attempt at amending, his allegations continue to fall short of the
applicable pleading standards. Plaintiff contends that he has sufficiently alleged facts to
support his contentions that Defendants violated Title VII and the Oklahoma Antidiscrimination Act.
As noted by the Court in dismissing Plaintiff’s original allegations, pursuant to 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). 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).
As before, Defendants are 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 with prejudice. Plaintiff’s attempt to argue to the contrary is without merit and
without citation to any authority that would permit him to hold either Defendant Nievar or
Jackson individually liable for discriminating against him on the basis of his gender.1
Accordingly, the Court considers whether Plaintiff’s Amended Complaint states a
plausible claim for gender discrimination against Defendant A-1 Electric Heat & Air.
Plaintiff’s “Amend Complain” (Doc. No. 24) fails to comply with Federal Rule of
Civil Procedure 10(b), which requires that a party state his claims “in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” This
shortcoming makes it somewhat difficult to construe Plaintiff’s allegations, especially
because much of the document is a general statement of the law, from Plaintiff’s

 In both the Amended Complaint and in response to the instant motion, Plaintiff includes statements related to
discrimination on the basis of gender identity or transgender status. The Court cannot discern any relevance of these
statements to Plaintiff’s allegations. 
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perspective. However, Plaintiff’s factual allegations do exceed the single paragraph
contained in his original pleading, and can be liberally construed as alleging that:
1) At his interview, Carla Nievar asked whether he would be able to get along with
the women in the office;
2) Mrs. Nievar would ask female staffers what they wanted for lunch, but did not
include Mr. Martin in her requests; and
3) Female employees were not reprimanded for using foul language and reporting
to work late.
The amended pleading also alleges Plaintiff was terminated, and that no reason was given
for his termination. It also contains factual allegations that do not appear related to
Plaintiff’s contentions that he was subjected to gender discrimination, including the fact
that Mr. Nievar allegedly enticed him away from a job and failed to live up to assurances
that the position was reliable.
Under Title VII, it is unlawful “for an employer ... to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race ... or national origin.” 42 U.S.C. § 2000e–
2(a)(1). The Court finds that even accepting as true Plaintiff’s allegations, that he has failed
to state a Title VII claim for discrimination on the basis of his gender. Although he contends
female employees were not reprimanded for policy violations, he does not allege that he
was subjected to discipline for using foul language or reporting to work late. Rather, he
contends that he broke no policies during his six weeks on the job. The fact that Mrs. Nievar
would ask female employees what they wanted for lunch but not ask Plaintiff is insufficient
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to establish discrimination on the basis of gender or that the environment in which he
worked was permeated with discriminatory intimidation, ridicule and insult that was
sufficiently severe or pervasive. Herrera v. v. Lufkin Ind., Inc., 474 F.3d 675, 680 (10th
Cir. 2007). Courts often note that Title VII is not a general civility code for the workplace,
see e.g. Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998); Trujillo v. University
of Colorado Health Sciences Ctr., 157 F.3d 1211 (1998). The allegations contained in
Plaintiff’s amended pleading simply do not offer sufficient facts to support his contention
that he was subjected to discrimination on the basis of his gender, either via disparate
treatment or a hostile work environment.
For the reasons set forth herein, Defendants’ Motion to Dismiss is GRANTED.
Plaintiff’s responsive document entitled “Plaintiff Joint Motion to Not Dismiss Amended
Complaint and Brief in Support” (Doc. No. 26) is DENIED.
IT IS SO ORDERED this 16th day of October 2017.

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