Yang v. Lakewood Management L.L.C.

918 F. Supp. 2d 1205, 2013 WL 183756, 2013 U.S. Dist. LEXIS 6855
CourtDistrict Court, D. Kansas
DecidedJanuary 17, 2013
DocketCase No. 12-1354-RDR
StatusPublished
Cited by2 cases

This text of 918 F. Supp. 2d 1205 (Yang v. Lakewood Management L.L.C.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yang v. Lakewood Management L.L.C., 918 F. Supp. 2d 1205, 2013 WL 183756, 2013 U.S. Dist. LEXIS 6855 (D. Kan. 2013).

Opinion

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

Plaintiff has brought a pro se employment discrimination action alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. His complaint names two defendants: Lakewood Management Service, L.L.C. and Richard Brockman.1 The materials filed with plaintiffs complaint indicate that plaintiff filed a charge of discrimination with the EEOC and the Kansas Human Rights Commission alleging race and sex discrimination. Doc. No. 1, p. 14. Plaintiff alleged in his EEOC complaint that he was sexually harassed on February 13, 2011 and discharged because of his race on February 16, 2011. His complaint in this court only alleges harassment and an injury to his left eye.

Plaintiffs complaint describes three incidents of harassment which occurred on February 13, 2011. First, at about 4:00 p.m., a co-worker put some peanut butter on plaintiffs head when he was working in the dishroom. Second, (although the allegations are somewhat unclear) at about 5:00 p.m., a paper wad or something like that was thrown at plaintiff. Finally, at approximately 7:00 p.m., some pepper sauce was put on plaintiffs head and it fell into plaintiffs left eye so that he needed help to wash his eye. Plaintiff has alleged that Mrs. Li Tian committed these acts of harassment. Doc. No. 1 at p. 21. Plaintiff also alleges that his left eye was harmed by kitchen chemicals.

This case is before the court upon motions to dismiss filed on behalf of defendants. Doc. Nos. 8 and 10.

[1207]*1207I. Standards for pro se pleadings

“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Tenth Circuit has “repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (quotation omitted).

II. Motion to dismiss standards

FED.R.CIV.P. 12(b)(6) provides for dismissal of actions for failure to state a claim upon which relief may be granted. “To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation omitted). The court must not “weigh potential evidence that the parties might present at trial, but ... assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Cohon v. New Mexico Dept of Health, 646 F.3d 717, 724 (10th Cir.2011) (interior quotations omitted).

The Supreme Court has stated that plausibility requires that the allegations of a complaint should “raise a reasonable expectation that discovery will reveal evidence” supporting the elements of the claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and “allo[w] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “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.” Id. (internal quotations and citations omitted).

The Tenth Circuit has elaborated upon the plausibility standard as follows:

we have concluded the Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, 'and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012) (interior quotations and citation omitted).

III. Defendant Brockman’s motion to dismiss shall be granted because he is not alleged to be plaintiffs employer.

Plaintiff does not allege that defendant Brockman participated in the alleged acts of harassment. But, even if he did, Title VII provides a cause of action against employers, not individual supervisors or co-workers. DeFreitas v. Horizon Inv. Management Corp., 577 F.3d 1151, 1162 n. 2 (10th Cir.2009); Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.1996). Since plaintiff does not allege that defendant Brockman was his employer, he cannot allege a cause of action under Title VII against defendant Brockman.

IV. Defendant Lakewood’s and defendant Brockman’s motions to dismiss shall be granted because the complaint does not allege plausible grounds for finding that plaintiff suffered from illegal harassment or a hostile work environment.

Title VII makes it “an unlawful employment practice 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] sex ...” 42 U.S.C. § 2000e-2(a)(1). “[A] plaintiff [1208]*1208may establish a violation of Title VII by proving that discrimination based on sex [or race] has created a hostile or abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To succeed upon a hostile work environment claim, a plaintiff must show that “ ‘the workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” MacKenzie v. City and County of Denver, 414 F.3d 1266, 1280 (10th Cir.2005) (quoting Penry v. Fed. Home Loan of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998)). It is relevant to consider the frequency of the alleged discriminatory conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating and whether the conduct interferes with the employee’s work performance. Id.

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918 F. Supp. 2d 1205, 2013 WL 183756, 2013 U.S. Dist. LEXIS 6855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yang-v-lakewood-management-llc-ksd-2013.