The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
Before the Court is a motion to dismiss filed by defendants Arkansas Department of Education, T. Kenneth James, and Annette Barnes. Plaintiff responded to the motion. For the reasons stated below, the motion is granted in part and denied in part.
According to the allegations of her complaint, Linda Hill has been employed at the Arkansas Department of Education ("ADE") since 1998. On February 4, 2002, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging race discrimination and unlawful retaliation. Plaintiff claims that after she filed that charge, she was subjected to race and gender discrimination and retaliation, and was denied promotions. On January 10, 2006, Hill filed another EEOC charge, alleging race and gender discrimination and retaliation. She asserts that since filing the 2006 charge, she has continued to experience discrimination and retaliation. On May 15, 2006, the EEOC issued a Dismissal and Notice of Rights regarding the January 10 charge. Plaintiff Hill filed an initial complaint in this Court on August 14, 2006, and an amended complaint on September 1, 2006.
Plaintiff Hill alleges race and gender discrimination and retaliation, and brings this action pursuant to Title VII of the Civil Rights Act of 1965, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. As defendants, Hill names the ADE; T. Kenneth James, Commissioner of the ADE, in his official capacity; Annette Barnes, an employee of the ADE, in her individual and official capacities; and Ed Jones, an employee of the ADE and her supervisor, in his individual capacity.*fn1
Defendants ADE, James, and Barnes move for dismissal pursuant to Fed. R. Civ.P. 12(b)(6), failure to state a claim. They argue Hill's Title VII claims against James and Barnes in their individual capacities should be dismissed because they are not "employers" as defined by Title VII; her §§ 1981 and 1983 claims against the ADE and against James and Barnes in their official capacities should be dismissed based on sovereign immunity and because they are not considered "persons" under the acts; her §§ 1981 and 1983 claims against the ADE and James should be dismissed because supervisors cannot be held vicariously liable for an employee's unconstitutional activity; her Title VII and §§ 1981 and 1983 claims should be dismissed for failure to state a prima facie case of discrimination or retaliation; and her punitive damages claims against Barnes should be dismissed pursuant to § 1981a(b)(1) and because Hill failed to allege malice or reckless indifference.
In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, all facts alleged in the complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). The complaint must be reviewed in the light most favorable to the plaintiff, McMorrow v. Little, 109 F.3d 432, 434 (8th Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). The Court may grant a motion to dismiss on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
A motion to dismiss is not a device for testing the truth of what is asserted or for determining whether the plaintiff has any evidence to back up what is in the complaint. ACLU Foundation v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims, irrespective of a judge's disbelief of a complaint's factual allegations or a judge's belief that the plaintiff cannot prove what the complaint asserts. Id. See also Hickman v. Tosco Corp., 840 F.2d 564, 565 (8th Cir. 1988); Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). Thus, a motion to dismiss should be granted "as a practical matter . . . only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Individual employees, including supervisors, may not be held personally responsible under Title VII. See Spencer v. Ripley County State Bank, 123 F.3d 690 (8th Cir. 1997).
In response to defendants' motion to dismiss her Title VII claim against James and Barnes, Hill points out that she brings her Title VII only against her employer, the ADE. See Am.Compl. ¶8.
Defendants also seek dismissal of Hill's Title VII claim on the basis that her complaint fails to set forth a prima facie case of discrimination. In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), the Supreme Court held that a complaint in an employment discrimination lawsuit need not set out the elements of a prima facie case as spelled out in McDonnell Douglas Corp. v. Green in order to survive a motion to dismiss ...