Kramer v. Galleon Armored Car ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 20 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
TAMMIE KRAMER,
Plaintiff-Appellant,
v. No. 99-4121
(D.C. No. 99-CV-240)
GALLEON ARMORED CAR AND (D. Utah)
SECURITY; TOM TENNY;
RON NIELSON,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Tammie Kramer appeals the district court’s decision dismissing
her sexual harassment/Title VII employment discrimination claims against
individually named defendants Tom Tenny and Ron Nielson, supervisory
employees and corporate officers of defendant Galleon Armored Car and Security,
Inc., plaintiff’s former employer. Although plaintiff’s Title VII claim against
Galleon is still pending, we have jurisdiction because the district court granted
plaintiff’s request for certification of final judgment pursuant to Fed. R. Civ. P.
54(b).
Plaintiff was hired by Galleon in June 1998 as a security guard. She
resigned in September 1998. Plaintiff alleges that, during her brief employment
with Galleon, her supervisor Steven Meyers sexually harassed her and forced her
to have sexual intercourse with him. See Appellee’s Supp. App. at 3-4
(Complaint, Paras. 17, 18) . Plaintiff alleges further that Meyers’s supervisors,
Tenny and Nielson, were aware that he was sexually harassing female Galleon
employees, and did not take any remedial action. See id. at 4 (Complaint, Paras.
20-23). Plaintiff’s two-count complaint alleges: (1) sexual harassment in
violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and (2) negligent
employment.
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The district court granted Tenny and Nielson’s Fed. R. Civ. P. 12(b)(6)
motion to dismiss plaintiff’s Title VII claims. 1
Citing Haynes v. Williams ,
88 F.3d 898 (10 th Cir. 1996), the district court held that, in this circuit, Title VII
liability is borne by employers and not individual supervisors. See Appellant’s
App. at 6; see also Haynes , 88 F.3d at 901 (“[P]ersonal capacity suits against
individual supervisors are inappropriate under Title VII.”); 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.”). The district court then considered Galleon’s corporate status
while plaintiff was its employee. Galleon was administratively dissolved on
July 1, 1997, under Utah law for failure to file its annual report and reinstated in
January 1999. Although Galleon was administratively dissolved when plaintiff
was its employee, the district court concluded that Galleon continued to be
plaintiff’s employer. See Appellant’s App. at 7. Thus, the district court
dismissed her Title VII claims against Tenny and Nielson.
Plaintiff appeals the district court’s 12(b)(6) dismissal of her sexual
harassment claim against Tenny and Nielson on four grounds, that: (1) Tenny and
Nielson should be held liable because they continued to operate the corporation in
1
In addition, all defendants moved to dismiss plaintiff’s negligent
employment claims. Plaintiff did not contest that aspect of defendants’ motion to
dismiss in the district court nor does she seek to appeal that dismissal.
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violation of Utah law; (2) Tenny and Nielson were her employers during
Galleon’s period of dissolution; (3) since she filed her claim with the Utah
Antidiscrimination Division and the EEOC during Galleon’s dissolution, Tenny
and Nielson should not be relieved of personal liability by Galleon’s subsequent
corporate reinstatement; and (4) the corporate veil should be pierced because
Tenny and Nielson tried fraudulently to avoid liability.
As an initial matter, we note that plaintiff raises a new argument on appeal.
She did not argue in her response to defendants’ motion to dismiss that Tenny’s
and Nielson’s behavior should result in the court’s piercing of the corporate veil.
Therefore, she has waived this argument and we do not address it. See Singleton
v. Wulff , 428 U.S. 106, 120 (1976) (“[A] federal appellate court does not
consider an issue not passed upon below.”); see also Pell v. Azar Nut Co. , 711
F.2d 949, 950-51 (10th Cir. 1983) .
We review de novo the sufficiency of a complaint and the district court’s
grant of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See GFF Corp.
v. Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997).
In doing so, we apply the same standards applied by the district court. See David
v. City & County of Denver , 101 F.3d 1344, 1352 (10th Cir. 1996). Specifically,
we accept as true all the well-pleaded factual allegations in the complaint viewed
in the light most favorable to the nonmoving party. See GFF , 130 F.3d at 1384.
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Moreover, “[a] 12(b)(6) motion should not be granted unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of [her] claim which
would entitle [her] to relief.” Id. (quotation omitted). Accordingly, we assess the
limited question “whether the plaintiff’s complaint alone is legally sufficient to
state a claim for which relief may be granted.” Miller v. Glanz , 948 F.2d 1562,
1565 (10th Cir. 1991).
Based on our review of the complaint, the parties’ submissions, the district
court’s decision, and the relevant case law, in particular our holding in Haynes ,
88 F.3d 898, we agree with the district court’s disposition of plaintiff’s Title VII
claims against Tenny and Nielson. Accordingly, we AFFIRM the district court’s
dismissal for substantially the same reasons stated in that court’s memorandum
decision dated May 26, 1999.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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