United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on Defendant Ta's Motion to
Dismiss Pursuant to Federal Rule [of] Civil Procedure
12(b)(6) [DE 9], filed on January 23, 2019. Defendant Becky
Ngoc Ta seeks dismissal of employment discrimination claims
brought in the Complaint. Plaintiff Alphonsus Lai filed a
response on February 4, 2019. Ta did not file a reply.
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
Lai alleges that he was hired by Defendant Ta to work as a
“subcontractor” five days a week at a tanning and
nail salon. Lai alleges that, in his second week on the job,
Ta vehemently insulted and harassed Lai for failing to serve
alcohol to a customer even though Lai did not have a license
to serve alcohol. Ta allegedly continued to harass Lai about
declining to serve alcohol, and other issues with Lai's
work performance, over the following weeks.
to Lai, on May 19, 2018, Indiana excise police ordered Ta to
stop serving alcohol without a license. After this, Ta
“said she regrets [hiring the] old guy. [The] [o]ld guy
never did [a] good job like [the] young workers and she
repeated many time[s] [that] I am worse than beginners in
front of my coworkers.” Lai states that Ta
“defamed my character and my work experience, ”
and that Ta did not insult or harass other employees in the
same manner. Lai alleges that because of these disagreements,
his job duties were restricted, and he was eventually
permitted to work only on weekends, and left with “no
choice [but to quit] my job.” On the first page of the
Complaint, Lai states that his action is brought pursuant to
the Age Discrimination in Employment Act (ADEA).
Standard of Review
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint and not the
merits of the suit. See Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on such a
motion, the Court accepts as true all of the well-pleaded
facts alleged by the plaintiff and all reasonable inferences
that can be drawn therefrom. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); see also
Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir.
survive a 12(b)(6) motion to dismiss for failure to state a
claim, the complaint must first comply with Rule 8(a) by
providing “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), such that the defendant is given
“fair notice of what the . . . claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at 555
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009). Second, the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 570); see also Tamayo, 526 F.3d at 1082. The
Supreme Court explained that the “plaintiff's
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(quotation marks and brackets omitted); see also
Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578
F.3d 574, 581 (7th Cir. 2009). The Seventh Circuit Court of
Appeals has explained that “[t]he complaint ‘must
actually suggest that the plaintiff has a right to
relief, by providing allegations that raise a right to relief
above the speculative level.'” Indep. Trust
Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935
(7th Cir. 2012) (quoting Windy City Metal Fabricators
& Supply, Inc. v. CIT Tech. Fin. Serv., Inc., 536
F.3d 663, 668 (7th Cir. 2008)). In order “[t]o meet
this plausibility standard, the complaint must supply enough
fact to raise a reasonable expectation that discovery will
reveal evidence supporting the plaintiff's
allegations.” Indep. Trust Corp., 665 F.3d at
934-935 (quoting Twombly, 550 U.S. at 556)
(quotation marks omitted).
allegations were drafted pro se, without the
assistance of an attorney, and therefore are “to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
instant Motion, Ta moves to dismiss the Complaint because the
ADEA does not permit liability against individual employees
and because Lai has not sufficiently alleged an ADEA claim.
Complaint, Lai refers to Ta as the owner of H20 Tanning and
Nails, Lai's employer. Lai also refers to Ta as his boss.
For the purpose of ruling on a motion to dismiss, the Court
accepts as true the allegations that Ta is the owner and was
Lai's boss, that is, a supervisor. Thus, the question
before the Court is whether an owner or a supervisor can be
liable for employment discrimination under the ADEA.
ADEA forbids discrimination by “employers, ” and
the ADEA's definition of employer mirrors the definitions
of employer in both the Americans with Disabilities Act (ADA)
and Title VII of the Civil Rights Act of 1964. E.E.O.C.
v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-80
(7th Cir. 1995). “Courts routinely apply arguments
regarding individual liability to all three statutes
interchangeably.” Id. at 1280. Neither a
supervisor nor an owner is an “employer” for the
purpose of liability under the ADEA. See Williams v.
Banning, 72 F.3d 552, 555 (7th Cir. 1995) (holding that
a supervisor is not an “employer”); Aic Sec.
Investigations, Ltd., 55 F.3d at 1279-82 (rejecting
individual liability under the ADEA and holding that an owner
and sole shareholder is not an employer); see also
Behning v. Roembke Mfg. & Design, Inc., No.
1:08-CV-71, 2009 WL ...