McElhone v. BNSF Logistics International, Inc. et al

Filing 12

Memorandum Opinion and Order granting 9 Motion to Dismiss filed by David Pulk. The court ORDERS that Pulk's motion to dismiss be, and is hereby, granted. The court further ORDERS that all claims and causes of action brought by plaintiff, Tracey McElhone, against defendant Pulk be, and are hereby, dismissed with prejudice. The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to such dismissal. (Ordered by Judge John McBryde on 1/28/2015) (mem)

IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION

TRACEY McELHONE,

U.S. DISTRICT COUliT---.
ciWI1ltTlffi~~ DISTRICT OF TEXAS

FILED

.28 2015
CL~RK, u.s. DISTRICT COURT.

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Plaintiff,

Depury

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vs.

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NO. 4:14-CV-949-A

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BNSF LOGISTICS INTERNATIONAL,
INC . ET AL .
I

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Defendants.

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MEMORANDUM OPINION
and
ORDER
Now before the court for consideration is the motion to
dismiss plaintiff's original complaint pursuant to Rule 12(b) (6)
of the Federal Rules of Civil Procedure, filed by defendant David
Pulk ("Pulk").

Plaintiff, Tracey McElhone, filed nothing in

response to the motion.

Having now considered the motion and the

complaint by which plaintiff initiated this action, as well as
the applicable legal authorities, the court concludes that the
motion should be granted.
I.

Background
Plaintiff initiated this action by filing her original
complaint naming Pulk and BNSF Logistics, International, Inc.

_

I.

("BNSFL") as defendants.

The complaint included the following

pertinent factual allegations:
Pulk was plaintiff's supervisor.

He wa$ employed by BNSFL

as the manager of the company's office in Flower Mound, Texas.
Pulk had the authority to hire and fire employees, including
plaintiff.

Pulk "sexually harassed and eventually assaulted

plaintiff and maintained an atmosphere that was a sexually
hostile environment in which to work."
1.

Pl.'s Original Compl. at

Plaintiff's employment with BNSFL was terminated after she

reported the assault.
Plaintiff asserted a single claim of sexual harassment in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§

2000e et seq.

("Title VII"), against both defendants.
II.

Legal Standards Applicable to Motion to Dismiss
Rule 8(a)

(2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain ua short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed.R.Civ.P. 8(a) (2)

I

uin order to give the defendant fair notice

of what the claim is and the grounds upon which it rests, Bell
2

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Id. at 555 & n.3.

Thus, while a.court must accept

all of the factual allegations in the complaint as true, it need
not credit bare legal conclusions that are unsupported by any
factual underpinnings.
(2009)

See Ashcroft v. Igbal, 556 U.S. 662, 669

("While legal conclusions can provide'the framework of a

complaint, they must be supported by factual allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.

Id.

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient.
U.S. at 566-69.

Twombly, 550

"Determining whether a complaint states a

plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense."

Igbal, 556 U.S. at 679.
3

III.
Analysis
Plaintiff's complaint alleged only a single cause of action,
sexual harassment pursuant to Title VII.

Pulk contends that this

claim should be dismissed because Title VII imposes liability
only an employer, and he is not an employer as contemplated by
the statute.

The court agrees.

Title VII imposes liability on any employer that violates
its provisions.
1990).

Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.

An "employer" under Title VII is "a person engaged in an·

industry affecting commerce ... and any agent of such a person."
42 U.S.C.2000e(b).

The Fifth circuit, however, "does not

interpret the statute as imposing individual,liability for [a
Title VII] claim."

Indest v. Freeman Decorating, Inc., 164 F.3d

258, 262 (5th Cir. 1999).

Supervisors and other employees thus

cannot be liable under Title VII for acts performed in their
individual capacities.
241 (5th Cir. 1998)

Id.;

Huckabay v. Moore, 142 F.3d 233,

("[O]ur cases make plain that the term

'employer' does not include a hiring or supervisory official in
his personal or individual capacity.").

4

Here, nothing is alleged in the complaint that Pulk, as
opposed to BNSFL, was plaintiff's employer.

While the complaint

alleged that Pulk had the authority to hire and fire, such is
insufficient to find that Pulk was plaintiff's employer for
purposes of Title VII.

See,

~,

Huckabay, 142 F.3d at 241.

The law is well-settled in this circuit that'" [i]ndividuals are
not liable under Title VII in either their individual or official
capacities."

Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 382

n.1 (5th Cir. 2003).

No other claim or basis for liability is

alleged against Pulk in the complaint.
claim

Accordingly, plaintiff's'

against Pulk must be dismissed.
Pulk seeks dismissal for the additional reason that

plaintiff's right to sue letter from the EEOC, attached to the
complaint, omits any reference to him.

Hence, plaintiff has

failed to show she exhausted administrative remedies against Pulk
as required by statute.

While the court agrees that this ground

would also likely result in dismissal of the claim against Pulk,
it need not engage in further analysis, considering dismissal is
warranted as discussed above.

5

I

IV.

Order
Therefore,
The court ORDERS that Pulk's motion to dismiss be, and is
hereby, granted.
The court further ORDERS that all claims and causes of
action brought by plaintiff, Tracey McElhone, against defendant
Pulk be, and are hereby, dismissed with prejudice.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to such
dismissal.
The court further ORDERS that the caption of this action be
changed by the removal of "David Pulk" from the title, so that
from this point forward, the title shall read, "Tracey McElhone,
Plaintiff, v. BNSF Logistics, International, Inc., Defendant."
SIGNED January 28, 2015.