The opinion of the court was delivered by: Richard D. Rogers United States 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.*fn1 The materials filed with plaintiff's 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.
Plaintiff's 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 plaintiff's 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 plaintiff's head and it fell into plaintiff's 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.
I. 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 (2009) (quotation omitted). The court must not "weigh potential evidence that the parties might present at trial, but . . . assess whether the plaintiff's 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 (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. "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 plaintiff's 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 ...