United States District Court, W.D. Oklahoma
DEUNA R. SANDBURG, Plaintiff,
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.
MILES-LAGRANGE, UNITED STATES DISTRICT JUDGE.
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.
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
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
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).
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.
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
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 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.
the Court GRANTS ADPTS' Pre-Answer Motion to Dismiss
[docket no. 16], DISMISSES plaintiffs 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.