Sandburg v. ISL Employees Inc et al

Filing 24

ORDER granting 16 defendant ADP TotalSource I, Inc.'s Pre-Answer Motion to Dismiss, dismissing plaintiff's claims against ADP TotalSource I, Inc.'s without prejudice, and granting plaintiff leave to amend her complaint. Plaintiff shall file her amended complaint within twenty (20) days of thedate of this Order (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 4/17/2018. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DEUNA R. SANDBURG,
Plaintiff,
vs.
ISL EMPLOYEES, INC. d/b/a
RAMBLING OAKS ASSISTED
LIVING; INTEGRAL SENIOR
LIVING, LLC d/b/a RAMBLING
OAKS ASSISTED LIVING; ADP
TOTALSOURCE I, INC.,
Defendants.

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Case No. CIV-17-1108-M

ORDER
Before the Court is defendant ADP TotalSource I, Inc.’s (“ADPTS”) Pre-Answer Motion
to Dismiss, filed November 17, 2017. On December 8, 2017, plaintiff filed her response. On
December 15, 2017, ADPTS filed its reply, and on January 17, 2018, plaintiff filed her surreply.
On October 12, 2017, plaintiff filed the instant action, asserting the following claims
against defendants: (1) sexual harassment, creation of a sexually hostile work environment, and
retaliation in violation of Title VII of the Civil Rights Act of 1961 (“Title VII”); (2) disability
discrimination, harassment, and retaliation in violation of the Americans with Disabilities Act
(“ADA”) and ADA Amendments Act (“ADAAA”); (3) retaliation for opposing unlawful
discrimination in the workplace in violation of Title VII and the ADA/ADAAA; (4) failure to pay
wages in violation of the Fair Labor Standards Act; (5) wrongful discharge in violation of state
law which prohibits terminating an employee for engaging in whistle-blowing activities; (6)
violation of Oklahoma’s Protective Services for Vulnerable Adults Act; and (7) blacklisting.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), ADPTS now moves this Court to dismiss all
of plaintiff’s claims against it.
Regarding the standard for determining whether to dismiss a claim pursuant to Rule
12(b)(6) for failure to state a claim upon which relief may be granted, the United States Supreme
Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. 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. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.”
Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at
678 (internal quotations and citations omitted). A court “must determine whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal
quotations and citation omitted). Finally, “[a] court reviewing the sufficiency of a complaint
presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable
to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

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ADPTS asserts that in order to be liable for any of plaintiff’s claims, it would have to be
plaintiff’s employer and/or the employer of the individuals plaintiff alleges engaged in the
discriminatory and other conduct at issue in this case. ADPTS further asserts that in her Complaint,
plaintiff does not sufficiently allege that ADPTS was her employer or the employer of the
individuals whose conduct is at issue. Plaintiff contends that she has sufficiently identified ADPTS
as her employer in her Complaint.
Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual
allegations are true and construing them in the light most favorable to plaintiff, the Court finds that
plaintiff has not set forth sufficient factual allegations showing that ADPTS was her employer or
the employer of the individuals whose conduct is at issue in this case. In her Complaint, plaintiff
alleges: “Rambling Oaks is managed by Defendants Integral Senior Living, LLC and ISL
Employees, Inc. (collectively ‘ISL’), which contracts with Defendant ADP Totalsource I, Inc.
(‘ADP’) for payroll services. ISL issued Sandburg’s paychecks and ADP issued her W-2 during
her employment.” Complaint at ¶ 7. Plaintiff makes no other allegation specifically related to
ADPTS; plaintiff’s remaining allegations refer to “Defendants” collectively. The Court finds the
above allegations are not sufficient to show that ADPTS was plaintiff’s employer. Because all of
plaintiff’s claims against ADPTS would require that ADPTS be plaintiff’s employer or the
employer of the individuals whose conduct is at issue, and because this Court has found that
plaintiff has not sufficiently alleged that ADPTS was her employer or the employer of the other
individuals, the Court finds that plaintiff’s claims against ADPTS should be dismissed.
However, in her response, plaintiff requests the Court grant her leave to file an amended
complaint if the Court is inclined to grant ADPTS’ motion. Federal Rule of Civil Procedure
15(a)(2) provides, in pertinent part, that “a party may amend its pleading only with the opposing

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party’s written consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to amend is within the trial court’s
discretion. Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). “Refusing leave
to amend is generally only justified upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Having reviewed the parties’ submissions, the Court finds that plaintiff should be granted leave to
amend her complaint.
Accordingly, the Court GRANTS ADPTS’ Pre-Answer Motion to Dismiss [docket no. 16],
DISMISSES plaintiff’s claims against ADPTS without prejudice, and GRANTS plaintiff leave to
amend her complaint. Plaintiff shall file her amended complaint within twenty (20) days of the
date of this Order.
IT IS SO ORDERED this 17th day of April, 2018.

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