United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
Defendants Rob Kimbel, Brad Smith, and Dustin Hughes have
filed a Motion to Dismiss (Doc. 10) certain claims brought
against them by Plaintiff Sheilah Davis. The Motion is ripe
for decision, as Ms. Davis has not filed any response to it
and the deadline for her to do so has passed. For the reasons
given below, Defendants' Motion is GRANTED.
lawsuit began in the Circuit Court of Washington County,
Arkansas, where Ms. Davis filed a Complaint (Doc. 3) on June
14, 2016 against her employer, Kimbel Mechanical Systems,
Inc. ("Kimbel"), and Messrs. Kimbel, Smith, and
Hughes, who were all employees of Kimbel when she worked
there. Ms. Davis's Complaint brings seven counts against
Defendants, alleging that they violated her civil rights
under the Arkansas Civil Rights Act ("ACRA"), as
well as under a variety of federal statutes, including Title
VII of the Civil Rights Act of 1964 ("Title VII"),
the Americans with Disabilities Act ("ADA"), and
the Age Discrimination in Employment Act ("ADEA").
On July 29, 2016, Defendants removed the case to this Court,
(Doc. 1), and filed their Answer (Doc. 6) to Ms. Davis's
Complaint. A month later, the individual Defendants filed the
instant Motion under Fed.R.Civ.P. 12,  arguing that Ms.
Davis's claims against them in their individual
capacities under Title VII, the ADA, the ADEA, and the ACRA
should all be dismissed-with the exception of her claim for
retaliation under the ACRA-because such claims against
individuals are not cognizable under these statutes. As noted
above, Ms. Davis never responded to this Motion.
survive the individual Defendants' Motion to Dismiss for
failure to state a claim, the Complaint must contain "a
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
The purpose of this requirement is to "give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 500 U.S. 544, 555 (2007)). The
Complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. For purposes
of this Motion, the Court must accept as true all factual
allegations in the Complaint, and construe the pleadings in
the light most favorable to Ms. Davis, drawing all reasonable
inferences in her favor. See Ashley Cnty., Ark. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
Eighth Circuit has explicitly held on numerous occasions
"that supervisors may not be held individually liable
under Title VII." Bales v. Wal-Mart Stores,
Inc., 143 F.3d 1103, 1111 (8th Cir. 1998) (quoting
Bonomolo-Hagen v. Clay Central-Everly Comm. Sch.
Dist, 121 F.3d 446, 447 (8th Cir. 1997)); see also
Van Horn v. Best Buy Stores, LP., 526 F.3d 1144, 1147
(8th Cir. 2008) ("The district court properly granted
summary judgment in favor of Mr. Clark on the Title VII claim
because that law does not provide for an action against an
individual supervisor. . . ."). This is because
"liability under [Title VII] can attach only to
employers, " Smith v. St. Bernards Reg'l Med.
Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994), which is
defined at 42 U.S.C. § 2000e(b). The ADEA and the ADA
likewise frame their prohibitions in terms of
"employers." See 29 U.S.C. § 623(a)
(ADEA); 42 U.S.C. §§ 12111(2), 12112(a) (ADA).
Although the Eighth Circuit has never decided whether claims
may be brought against private-sector individual supervisors
under the ADA or ADEA, it has observed that the ADEA
"define[s] employer in a substantially identical
manner" to Title VII, Lenhardt v. Basic Inst, of
Tech., Inc., 55 F.3d 377, 380 (8th Cir. 1995), and this
Court notes that the only significant difference between
those two statutes' definitions of "employer"
and the one found in the ADA is the number of employees
necessary to satisfy the jurisdictional threshold.
Compare 42 U.S.C. § 2000e(b) (Title VII),
and 29 U.S.C. § 630(b) (ADEA), with 42
U.S.C. § 12111(5) (ADA). Accordingly this Court rules,
consistent with prior rulings in the Western District of
Arkansas, that individuals are not subject to liability under
the ADEA, Woolbright v. Tankinetics, Inc., 2013 WL
5373614, at *8 (W.D. Ark. Sept. 25, 2013), or the ADA,
Morris v. Pilgrim's Pride Corp., 2014
WL 3514987, at *6 n.5 (W.D. Ark. July 15, 2014). See also
Adams v. Tyson Foods, Inc., 2010 WL 1488006, at *1-*2,
(W.D. Ark. Apr. 13, 2010) (no individual liability for
supervisors under Title VII, ADEA, and ADA). As for the ACRA,
the Arkansas Supreme Court held in Calaway v. Practice
Management Services., Inc. that individual supervisors
may be liable for retaliation under the ACRA, and in so
holding, the Court explicitly contrasted retaliation claims
with general discrimination claims on the grounds that the
latter may only be brought against "employers."
See 2010 Ark. 432, at *3-*4 (emphasis in original).
THEREFORE ORDERED that Defendants Rob Kimbel's, Brad
Smith's, and Dustin Hughes's Motion to Dismiss (Doc.
10) is GRANTED, and that all of Plaintiff Sheilah Davis's
claims against them under Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, and the Arkansas Civil
Rights Act are DISMISSED WITH PREJUDICE,  except her
retaliation claim under the Arkansas Civil Rights Act.
IS SO ORDERED.
 Although Defendants styled this as a
motion to dismiss brought under Rule 12(b)(6), it would have
been more properly styled as a motion for judgment on the
pleadings under Rule 12(c) because Defendants had already
filed their Answer. However, this is a technicality that
makes no substantive difference, as Rule 12(h)(2)(B) permits
parties to raise the defense of failure to state a claim in
motions for judgment on the pleadings, and it is well-settled
that the same legal standard governs all motions asserting
this defense, regardless of whether they are brought under
Rule 12(b)(6) or Rule 12(c). Ashley Cnty, Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
 This dismissal is made with prejudice
rather than without because amendment of the Complaint would
be futile; there is no set of facts that could be pled which
would change this Court's ruling of law that ...