United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
this Court is Defendant Justin Small's motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 10). The matter is
fully briefed and at issue. See Docs. 10-12. For the
reasons stated herein, the Court GRANTS Defendant's
considering a Rule 12(b)(6) motion to dismiss, the Court
“accept[s] as true all well-pleaded factual allegations
in the complaint and view[s] them in the light most favorable
to the plaintiff.” Burnett v. Mortg. Elec.
Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir.
2013). A legally-sufficient complaint must include “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P.
8(a). Operationalizing the Rule, a complaint
must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face'” to survive a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This standard “is ‘a middle ground
between heightened fact pleading . . . and allowing
complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of
action.'” Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). That
is, the plaintiff's complaint “need only give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Id. at 1192 (internal
quotation marks and citations omitted). While assessing
plausibility is “a context-specific task . . .
requir[ing] . . . court[s] to draw on [their] judicial
experience and common sense, ” Iqbal, 556 U.S.
at 679, complaints “‘plead[ing] factual content
that allows the court to . . . reasonabl[y] infer that the
defendant is liable for the misconduct alleged'”
are facially plausible. See S.E.C. v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556
U.S. at 678).
relates to Defendant Small, Plaintiff alleges in her
complaint that she accepted employment with Defendant RSM
Development, Inc. (“RSM”) on September 15, 2016.
See Doc. 1, at 2. At the time she accepted RSM's
job offer, Plaintiff was sixty-seven years old. Id.
Plaintiff asserts that “she was subjected to sexual
harassment, age discrimination[, ] and retaliation for
complaints related to said harassment” during her
employment with RSM. Id. Specifically, Defendant
Justin Small (“Small”) responded to a request by
Plaintiff for additional help with job duties by
“stating that Defendants needed to hire her
replacement.” Id. Small also made numerous
comments to Plaintiff regarding her age; for example, Small
stated that RSM hired a thirty-two-year-old woman, Elmira, as
Plaintiff's replacement because RSM needed a
“younger vibe.” Id. at 2-3. When
Plaintiff complained to Small about these age-related claims,
he reassigned most of her work to Elmira. Id. at 3.
Small also threatened that RSM would place Plaintiff on
Medicare because her age was driving up RSM's employee
insurance costs, despite the fact that Plaintiff's
employment contract guaranteed her heath benefits paid by
Defendant. Id. Ultimately, RSM's president
terminated Plaintiff's employment on April 3, 2018.
Id. at 4.
brings several claims, but as against Small, she asserts only
a claim for “gender discrimination/hostile work
environment” pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. See
id. at 4. Plaintiff accuses Small of
“intentionally and with reckless indifference to [her]
rights . . . discriminat[ing] against [her] based upon her
gender.” Id. Moreover, Small “created a
hostile work environment for Plaintiff by his repeated
actions toward her, ” which “caused Plaintiff to
suffer severe emotional distress and assault and battery,
” in addition to other pecuniary and non-pecuniary
has not specified whether her Title VII claim against
Defendant Small is an individual- or official-capacity claim.
As Small notes in his motion to dismiss, “personal
capacity suits against individual supervisors are
inappropriate under Title VII.” Haynes v.
Williams, 88 F.3d 898, 901 (10th Cir. 1996); see
also Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th
Cir. 1993) (“Under Title VII, suits against individuals
must proceed in their official capacity; individual capacity
suits are inappropriate.”); Busby v. City of
Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (“The
relief granted under Title VII is against the employer, not
individual employees whose actions would constitute a
violation of the Act. We think the proper method for a
plaintiff to recover under Title VII is by suing the
employer, either by naming the supervisory employees as
agents of the employer or by naming the employer
directly.” (emphasis and citations omitted)). Moreover,
while “supervisors may be named in their official
capacity and/or as alter egos of the employer . . . as a
means to sue the employer . . .[, ] this procedural mechanism
is superfluous where, as here, the employer is already
subject to suit directly in its own name.” Lewis v.
Four B Corp., 211 Fed.Appx. 663, 665 n.2 (10th Cir.
2005); see also Hopkins v. Bacone College, No.
CIV-16-166-SPS, 2016 WL 6603191, at *1 (E.D. Okla. Nov. 8,
2016) (“[O]fficial-capacity claims under Title VII are
redundant where the employer has also been named. . . . and
should be dismissed.”). In addition to Defendant Small,
Plaintiff is also suing her former employer, RSM. Thus,
regardless of whether Plaintiff's Title VII claim is
brought against Small in his individual or official capacity,
the claim should be dismissed.
does not address Defendant Small's argument at all in her
response. See Doc. 11. Rather, Plaintiff's
argument appears to be that, because the Court could divine
from the facts pled in the complaint some claim-any
claim-against Small, it should not dismiss him from this
action. Id. at 2. In particular, Plaintiff asserts
that “sufficient facts were pleaded in [her] Complaint
to put Small on notice of the claim of Intentional Infliction
of Emotional Distress, ” even though an intentional
infliction of emotional distress claim “was not
specifically labeled as a cause of action” in the
complaint. Id. at 3. Plaintiff is represented by
counsel in this matter; thus, the Court does not liberally
construe her filings. Moreover, the Court is not in the
business of cobbling together unpled theories, arguments, or
claims on behalf of any plaintiff, pro se
or represented. See, e.g., Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(“[T]he court cannot take on the responsibility of
serving as the litigant's attorney in constructing
arguments and searching the record.”); see also
Kennington v. U.S. Dep't of the Treasury, 490
Fed.Appx. 939, 943 (10th Cir. 2012). Plaintiff's
assertion of a Title VII claim against Small, an individual,
is improper-and this is the only claim asserted against him.
Plaintiff's counsel cannot keep Small in this suit as a
defendant by relying on claims that have not been
of dismissal, Plaintiff requests leave to amend her pleading
“[t]o the extent that this Court should find that
Plaintiff's claims were insufficiently pled.”
See Doc. 11, at 5-6. Granting leave to amend as to
Plaintiff's Title VII claim against Small would prove
futile, for the reasons stated above. And as to an
intentional infliction of emotional distress claim, the Court
does not find that such a claim was insufficiently
pled-rather, it finds no such claim was pled at all.
Regardless, leave to amend is appropriately sought in a
separate motion complying with federal and local rules.
See Fed. R. Civ. P. 15(a)(2); see also
LCvR15.1 (“A party moving under Fed.R.Civ.P. 15(a)(2)
to amend a pleading . . . must attach the proposed pleading
as an exhibit to the motion.”). Plaintiff has neither
filed a motion to amend under Rule 15(a)(2) nor complied with
the requirement of LCvR15.1 to provide a proposed pleading.
Thus, the Court denies Plaintiff leave to amend without
prejudice to the future filing of a timely motion complying
with applicable rules. See Mears v. Astora Women's
Health, LLC, No. CIV-18-1091-R, 2019 WL 1590592, at *3
n.4 (W.D. Okla. April 12, 2019) (“If Plaintiffs wish to
seek leave to file a second amended complaint, then they
should comply with the procedures set out in the federal and
local rules to do so.”).
as Plaintiff may not bring a Title VII claim against Small as
an individual defendant-and because no other claim is
asserted against Small-the Court GRANTS the motion to dismiss
and terminates Small as a defendant in this matter.
 A legally-sufficient complaint must
also include “a short and plain statement of the
grounds for the court's jurisdiction” and “a
demand for the relief sought.” Id.
 That Small was a managing partner and
co-owner of Defendant RSM, see Doc. 1, at 1; Doc.
10, at 1, 6, is, on its own, not enough to impose individual
liability on him under Title VII. See Humphreys v. Med.
Towers, Ltd., 893 F.Supp. 672, 688 (S.D. Tex. 1995)
(“The fact that [an individual] control[s] the
operations of . . . [a plaintiff's] employer . . . [and
is] the managing and general partner of [that employer] is