Opinion
Case No. 03-4194-SAC.
May 12, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendants' motion to dismiss the individual defendants and on plaintiff's motion for summary judgment. Plaintiff, acting pro se, filed this Title VII case against his employer, 4B Corporation, its store director, Tom Wiseman, and its Human Resources Director, Ron Giangreco. Plaintiff alleges that the defendants discriminated against him in the terms and conditions of his employment on two specific occasions based upon his race, black, and his sex, male. (Dk. 1).
SUMMARY JUDGMENT MOTION
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The court must view the evidence of record and draw all reasonable inferences in the light most favorable to the nonmovant. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992). If this burden is met, the nonmovant must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). (citations omitted). "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995). "It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment." Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995).
"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). "At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." Hall, 935 F.2d at 1110; see Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995). See Beams v. Norton, 256 F. Supp.2d 1203, 1205-1207 (D. Kan. 2003), aff'd. 93 Fed. Appx. 211 (10th Cir. Mar 26, 2004).
In support of his motion for summary judgment, plaintiff has submitted several pages of exhibits. Other than the pleadings and these few pages, no other documents are included in the record before this court. Although plaintiff's memorandum in support of his motion for summary judgment lists both uncontroverted and controverted facts, no citations to the scant record are made. In short, plaintiff's memorandum fails to meet the requirements of D.Kan. Rule 56.1(a) and (d), warranting denial of his motion.
Further, plaintiff's motion is premature, being made at a time when discovery is ongoing. The discovery deadline is approximately six weeks away, and the dispositive motion deadline is several months away. See Dk. 28. Summary judgment is inappropriate where, as here, the nonmoving party has not had the opportunity to discover information essential to its opposition. Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir. 1992).
Finally, even if the court were able to overlook the procedural and temporal failings of plaintiff's memorandum, defendants' response reveals the presence of controverted facts which render summary judgment inappropriate. These include, but are not limited to, whether plaintiff was treated differently than other employees, whether defendant's acts toward plaintiff were based upon legitimate, non-discriminatory business reasons, and whether plaintiff has suffered any damages by virtue of defendant's acts.
For all the reasons set forth above, plaintiff's motion for summary judgment is denied.
MOTION TO DISMISS
The two individual defendants seek dismissal on two alternative grounds: that they are not the plaintiff's "employer" for purposes of Title VII, and that plaintiff has not exhausted his administrative remedies against them.
Plaintiff's complaint fails to indicate whether he has sued the store director and human resources director in their official or personal capacities. Where, as here, the complaint does not clearly specify whether officials are sued personally or in their official capacities, or both, the court examines the course of the proceedings to determine the nature of the liability sought to be imposed. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991).
Nothing in the course of the short proceedings to date sheds any light upon this issue. Reading the pleadings in the light most favorable to plaintiff, the court construes this as an action against defendants in both their official and individual capacities. Nonetheless, for the reasons that follow, the individual defendants must be dismissed.
A suit against an individual in his official capacity is really "only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. at 165 (quoting Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, n. 55 (1978)). "As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id. at 166.
Here, plaintiff has sued his employer, 4B Corporation. Because plaintiff's claims against the store manager and human resources manager of this corporation in their official capacities are redundant of plaintiff's suit against the corporation itself, they shall be dismissed. See generally Gallardo v. Board of County Comm'rs, Kearny County Kan., 67 Fair Empl. Prac. Cas. 615, 1995 WL 106366 at *2 (D. Kan. Jan. 11, 1995).
Plaintiff's claims, if brought against the individual defendants in their individual capacities, are similarly subject to dismissal. Under Title VII, statutory liability is borne solely by employers, not by individual supervisors. It is well established that "under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate." Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996). See Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993).
Plaintiff recognizes this general rule, but contends that it is inapplicable because the store manager and human resource manager exercised significant control over his hiring and firing or conditions of employment, and thus operated as the alter ego of the employer/corporation.
The Tenth Circuit has held that an alter ego instruction is appropriate in a Title VII action in those narrow situations where the bad actor is an agent whose high managerial rank in or ownership of the company makes him or her the employer's alter ego. Mallinson-Montague v. Pocrnick, 224 F.3d 1224 (10th Cir. 2000). The alter ego theory is not applicable, however, where a plaintiff alleges that the corporation is liable for discrimination committed by an agent, based solely on facts that the agent was plaintiff's supervisor and exercised a high degree of control over him. Id. See Land v. Midwest Office Technology, Inc. 114 F. Supp.2d 1121, 1148 (D. Kan. 2000). Even where such a theory is appropriate, it serves as an alternate avenue of employer liability, not as an alternate avenue of individual liability.
In accordance with the Tenth Circuit's rule that personal capacity suits against individual employees are not available under Title VII, all Title VII claims against the defendants in their individual capacities are dismissed. See Coleman v. Kansas City Bd. of Public Utilities for City of Kansas City, 2003 WL 22213134, *2 (D. Kan. 2003).
The court finds it unnecessary to reach defendants' alternative argument that plaintiff failed to exhaust his administrative remedies against them.
IT IS THEREFORE ORDERED that defendants' motion to dismiss the individual defendants from the case (Dk. 8) is granted, thus 4B Corporation is the sole defendant.
IT IS FURTHER ORDERED that plaintiff's motion for summary judgment (Dk. 20) is denied.