Fountain v. Cerreto Inc. et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER FOUNTAIN,
Plaintiff,
v.
CERRETO INC. and JAMES GHANIM KASSIR,
Defendants.
Case No. 26-1014-JWB-BGS
REPORT AND RECOMMENDATION
FOR DISMISSAL OF COMPLAINT
Plaintiff Christopher Fountain filed this action pro se1 . In conjunction with his federal court
complaint (Doc. 1), Plaintiff filed a motion to proceed without prepayment of fees, which is a
motion requesting leave for Plaintiff to proceed in forma pauperis (“IFP”). Doc. 3. After review of
Plaintiff’s complaint, however, the Court recommends to the District Court that Plaintiff’s claims
against the Defendants be dismissed for failure to state a claim upon which relief may be granted.
I. 	Standard of Review for IFP Complaints
When a Plaintiff proceeds IFP, the court may screen the Complaint under 28 U.S.C. §
1915(e)(2). The court “shall dismiss” an in forma pauperis case “at any time if the court determines
that … the action or appeal – (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2). “When a plaintiff is proceeding in forma pauperis, a court has a duty to
review the complaint to ensure a proper balance between these competing interests.” Mitchell v.
Deseret Health Care Facility, No. 13-1360-RDR-KGG, 2013 WL 5797609, at *1 (D. Kan. Sept. 30,
1 Plaintiff proceeds pro se. The Court construes his filings liberally and holds him to a less stringent standard
than trained lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). But the Court does not assume the role of advocate for the pro se litigant. Hall, 935 F.2d at
1110.
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2013). The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.” Harris v.
Campbell, 804 F. Supp. 153, 155 (D. Kan. 1992) (internal citation omitted) (discussing similar
language contained in § 1915(d), prior to the 1996 amendment). Sua sponte dismissal under § 1915(d)
may be appropriate when “on the face of the complaint it clearly appears that the action is frivolous
or malicious.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Henriksen v. Bentley, 644
F.2d 852, 854 (10th Cir.1981)).
In determining whether dismissal is appropriate under 28 U.S.C. § 1915(e)(2)(B), a plaintiff’s
complaint will be analyzed by the Court under the same sufficiency standard as a Fed. R. Civ. P.
12(b)(6) motion to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.
2007). In conducting this analysis, the Court will accept as true all well-pleaded facts and draw all
reasonable inferences from those facts in favor of a plaintiff. See Moore v. Guthrie, 438 F.3d 1036,
1039 (10th Cir. 2006).
While a complaint generally need not plead detailed facts, it must give the defendant
sufficient notice of the claims asserted by the plaintiff so they may provide an appropriate answer.
Fed. R. Civ. P. 8(a); Monroe v. Owens, 38 Fed. App’x. 510, 515 (10th Cir. 2002) (citation omitted).
This requires that a complaint contain three minimal pieces of information: (1) a short and plain
statement of the claim showing that the pleader is entitled to relief, (2) a short and plain statement of
the grounds upon which the court’s jurisdiction depends, and (3) the relief requested. Fed. R. Civ.
P. 8(a).
Because the court will liberally construe the pleadings of a pro se plaintiff, the court should
“reasonably read the pleadings to state a valid claim on which the plaintiff could prevail … despite
the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at
1110. The court cannot, however, become an advocate for the pro se plaintiff. Id.
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A pro se plaintiff’s complaint must still “set forth the grounds of plaintiff’s entitlement to
relief through more than labels, conclusions, and a formulaic recitation of the elements of a cause of
action.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007), and Hall, 935 F.2d at 1110
(holding that a plaintiff need not precisely state each element, but must plead minimal factual
allegations on those material elements that must be proven)). “In other words, plaintiff must allege
sufficient facts to state a claim which is plausible – rather than merely conceivable – on its face.” Id.
(citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). See also Bemis, 500 F.3d at 1218 (stating that
factual allegations in the complaint must establish “above the speculative level” that plaintiff is
entitled to relief).
The Court’s relaxed scrutiny of the pro se plaintiff’s pleadings “does not relieve [him] of the
burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d
at 1110. A pro se plaintiff’s pleading conclusory statements is insufficient to state a claim because
no special legal training is required to “recount the facts surrounding his alleged injury[.]” Id. See
also Olson v. Carmack, 641 Fed. App’x. 822, 825 (10th Cir. 2016). If this Court finds, after construing
the allegations in Plaintiff’s complaint liberally, that Plaintiff has failed to state a claim upon which
relief may be granted, the court is compelled to recommend that the action be dismissed.
II. 	Plaintiff’s Claims and Factual Allegations
The following facts come from Plaintiff's complaint 2 and attached exhibit. See generally Doc.
1. For § 1915 screening purposes, the Court accepts the Plaintiff's allegations as true and construes
all reasonable inferences drawn from those allegations in the light most favorable to the Plaintiff.
See Kay, 500 F.3d at 1217-18.
2 Plaintiff’s Complaint consists of both the Court’s form “Civil Complaint” and “Employment
Discrimination Complaint” (collectively referred to as the “complaint”).
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Plaintiff’s pleadings are difficult to follow and lack a clear, organized presentation of facts.
The complaint itself contains minimal narrative allegations and relies heavily on conclusory
statements and broad legal references. Much of the factual content is split between two civil
complaint forms. Additional information appears in an attached EEOC Charge of Discrimination
form, which itself is ambiguous. Plaintiff represents that the form was prepared with the assistance
of an employment attorney, yet he now proceeds pro se. The charge is also unsigned, but he
indicates in the complaint it was filed in January 2025. As a result of these confusing and incoherent
filings, the Court is required to piece together Plaintiff’s account from scattered assertions across
multiple submissions, making it difficult to discern the precise factual basis and scope of his claims.
Plaintiff brings this action against his former employer, Cerreto Inc. (“Cerreto”), and its
owner, James Ghanim Kassir. He alleges that, while employed as a truck driver, he was assigned to
operate a tractor-trailer that was unsafe and contained hazardous conditions, including black and
green mold in the sleeper cab. According to Plaintiff, the vehicle had been stored in a salvage yard
for an extended period before being returned to service, and his exposure to the mold caused
serious respiratory symptoms and other health problems. He further alleges that Cerreto’s
management and dispatch personnel were informed of the mold in the vehicle and his related health
issues, but the condition was not remedied. Instead, he was sent to a mechanic who failed to correct
the underlying problems and was required to continue driving despite worsening symptoms. He
further contends that requests for medical attention, including time to seek treatment, were denied
or ignored.
Plaintiff further alleges that, after complaining about the working conditions, he was
subjected to hostility from dispatchers and management. He claims these interactions created a
hostile work environment and that his continued complaints were met with retaliation rather than
corrective action. According to the attached EEOC charge of discrimination, Cerreto ultimately
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terminated Plaintiff’s employment on March 28, 2025. Plaintiff disputes the employer’s stated
reasons for the termination and asserts that the true motivation was retaliation for his complaints
about his working conditions.
The EEOC charge and accompanying medical letter further alleges that Plaintiff suffers
from multiple medical conditions, including respiratory impairment, anxiety, and physical injuries
affecting his spine and lower extremities. Plaintiff asserts that these conditions meet the definition
of a disability under the Americans with Disabilities Act (“ADA”)3 and that he uses a prescribed
support animal to assist with daily functioning and work-related activities.
Plaintiff appears to assert claims under federal employment statutes based on his treatment
during his employment and the termination of that employment. His filings suggest claims for
failure to accommodate and retaliation, which the Court understands to be grounded primarily in the
ADA. Plaintiff also alludes to a hostile work environment, which if construed liberally, could be
interpreted as an attempt to bring a Title VII claim. He also checks the box on the complaint form
indicating he intends to bring a claim under the Age Discrimination in Employment Act (“ADEA”)
but provides no factual allegations to support such a claim.
As relief, Plaintiff seeks monetary damages—including compensation for lost wages,
emotional distress, and physical harm—as well as punitive damages and other unspecified relief that
the Court construes as equitable or injunctive in nature. The precise contours of Plaintiff’s claims
and requested relief, however, remain difficult to discern because the complaint does not clearly
identify which statutes form the basis of each claim, which Defendants allegedly violated which
rights, or how the alleged facts satisfy the elements of any particular cause of action.
3 The governing law is the ADA Amendments Act of 2008 (“ADAAA”), and the Court applies the amended
statute and regulations. For ease of reference, however, the Court continues to use the term “ADA.”
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III. 	Analysis
As explained below, Plaintiff’s complaint does not satisfy the basic pleading requirements of
Federal Rule of Civil Procedure 8. The complaint fails to present a short and plain statement of the
claims showing that Plaintiff is entitled to relief and instead relies on disorganized facts scattered
across multiple documents and undeveloped legal references. In addition, the Court recommends
dismissal for failure to state a claim because Plaintiff’s ADA, Title VII, and ADEA claims are
inadequately pleaded, and he has not alleged facts showing that he exhausted his administrative
remedies before bringing his employment claims. Finally, Defendant Kassir is not a proper party to
this litigation.
a. 	Plaintiff has not satisfied Rule 8’s pleading standard.
To survive screening under 28 U.S.C. § 1915(e)(2)(B)(ii), a complaint must include sufficient
facts, accepted as true, to state a claim to relief that is plausible on its face. See Kay, 500 F.3d at
1217-18. Although the Court construes a pro se litigant’s pleadings liberally, a plaintiff must still
allege facts supporting a recognized cause of action. See id.
While a complaint generally need not plead detailed facts, it must give the defendant
sufficient notice of the claims asserted by the plaintiff so that they can provide an appropriate
answer. Monroe, 38 F.App’x at 515. Rule 8(a) requires three minimal pieces of information to
provide such notice to the defendant: (1) the pleading should contain a short and plain statement of
the claim showing the pleader is entitled to relief; (2) a short and plain statement of the grounds
upon which the Court's jurisdiction depends; and (3) the relief requested. Fed. R. Civ. P. 8(a).
Plaintiff’s complaint does not satisfy this standard. The pleadings contain little organized
factual narrative and do not clearly identify what conduct is alleged to have violated which legal
rights. Instead, the complaint relies largely on conclusory assertions, broad legal labels, and
references to various statutes and constitutional provisions without explaining how the elements of
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those claims are met. The complaint does not clearly set out the relevant events in chronological
order, identify the specific actions taken by each Defendant, or explain how those actions give rise
to liability under any particular legal theory.
Nor does the complaint clearly delineate Plaintiff’s claims. Although Plaintiff appears to
assert claims related to failure to accommodate, retaliation, and hostile work environment, the
pleading does not specify which Defendants are alleged to be responsible for which conduct or
which statutes form the basis of each claim. A Defendant should not be required to guess the
nature of the claims against it or to sift through attachments and extraneous materials to piece
together a theory of liability. Rix v. McClure, No. 10-1224-CM, 2011 WL 166731, at *3 (D. Kan. Jan.
19, 2011) (“Defendants are not required to guess the nature of plaintiff's claims.”). Rule 8 requires
that the operative allegations appear in the complaint itself and be stated in a clear and intelligible
manner.
The attached (and unsigned) EEOC charge does not cure these deficiencies. Even liberally
construed, it reflects Plaintiff’s narrative account of events rather than a coherent statement of
claims pleaded in the complaint. And the Court may not rewrite the complaint by incorporating
factual allegations from ancillary filings to supply missing elements. See White White v. Stormont Vail
Hosp., No. 23-4054-JAR-RES, 2023 WL 8378841 (D. Kan. Oct. 2, 2023) (“[I]t is not the Court's role
to “supply additional factual allegations to round out a plaintiff's complaint”). Because the
complaint fails to provide a short and plain statement showing entitlement to relief and fails to give
fair notice of the claims and their factual bases, it does not comply with Rule 8 and is subject to
dismissal on that basis alone. See Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). The
undersigned recommends that Plaintiff’s claim be dismissed for failure to comply with Rule 8.
b. 	Plaintiff has not alleged plausible claims under the ADA.
The ADA encompasses several specific areas where persons with disabilities have legal
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rights: employment, public services, public accommodations, and other miscellaneous provisions.
See generally 42 U.S.C. §§ 12101–12213. Title I prohibits employment discrimination against qualified
individuals with disabilities and applies to employers with fifteen or more employees.4 Bowles v. Grant
Trucking, LLC, 842 F. App'x 236 (10th Cir. 2021). See also 42 U.S.C. § 12111(5)(A). In order to state
a plausible discrimination claim under the ADA, Plaintiff must show that (1) he is disabled as that
term is defined under the ADA; (2) he is qualified, with or without reasonable accommodation, to
perform the essential functions of the job; and (3) he encountered adverse employment action
because of his disability. Blakely v. Cessna Aircraft Co., 256 F. Supp. 3d 1169, 1173 (D. Kan. 2017).
At the outset, the Court highlights that Title I applies only to employers with fifteen or more
employees during the relevant period. See 42 U.S.C. § 12111(5)(A). Here, the complaint contains no
factual allegations regarding the size of Cerreto’s workforce, the number of employees Cerreto
employed, or any other facts from which the Court could reasonably infer that Cerreto is a covered
employer under the ADA. Conclusory assertions that Cerreto is an “employer,” without factual
content addressing the fifteen-employee requirement, are insufficient to state a plausible claim for
relief. Because Plaintiff has not alleged facts establishing that Cerreto has met the fifteen-employee
requirement, the undersigned recommends that Plaintiff’s ADA claims be dismissed.
Further, even if Cerreto met the fifteen-employee threshold, Plaintiff also substantively falls
short. In this case, it appears Plaintiff is asserting ADA claims for failure to accommodate and
retaliation.
1. 	Failure to Accommodate
To establish a prima facie failure-to-accommodate claim, Plaintiff must show: (1) he was
disabled; (2) he was otherwise qualified for the position; (3) he requested a reasonable
4 Plaintiff’s complaint indicated that he is asserting an employment discrimination claim based on the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101, et seq., which the Court construes
as Title I of the ADA.
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accommodation; and (4) Defendant refused to accommodate her disability. Aubrey v. Koppes, 975
F.3d 995, 1005 (10th Cir. 2020) (citations omitted).
Here, Plaintiff does not adequately allege that he was a qualified individual able to perform
the essential functions of his position with a reasonable accommodation. While Plaintiff asserts that
he suffered from various physical and mental health conditions, the complaint does not identify the
essential functions of his job as a truck driver or explain how he could perform those functions with
accommodation. Instead, Plaintiff’s allegations suggest that he believed the assigned vehicle was
unsafe and that his health deteriorated while operating it. Absent factual allegations describing how
any requested accommodation would have enabled him to perform the job’s essential duties, the
complaint does not plausibly allege that Plaintiff was qualified within the meaning of the ADA.
The complaint also fails to plausibly allege that Plaintiff requested a reasonable
accommodation. Although Plaintiff alleges that he complained about the condition of the truck and
requested time off, the pleadings do not identify a specific accommodation proposal tied to a
disability. General complaints about working conditions or requests to be excused from work,
without more, do not constitute a request for a reasonable accommodation under the ADA. See
Dinse v. Carlisle Foodservice Prods. Inc., 541 F. App'x 885, 889-90 (10th Cir. 2013) (stating that it must be
clear that an employee wants assistance for a disability and that “mere awareness” does not trigger
an employer’s duty to accommodate).
Finally, Plaintiff does not allege facts showing that Defendants refused to accommodate a
disability. The complaint does not describe any interactive process, any specific accommodation
proposal, or any refusal by Defendants to provide an accommodation that would have enabled
Plaintiff to perform his job. At most, the allegations reflect a workplace dispute over vehicle safety
and Plaintiff’s dissatisfaction with his working conditions. Such allegations, without more, are
insufficient to state a failure-to-accommodate claim. See Dinse, 541 F. App'x at 889-90.
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Because Plaintiff has not alleged facts showing that he was a qualified individual, that he
requested a reasonable accommodation, or that Defendants refused such an accommodation, his
failure-to-accommodate claim is inadequately pleaded and fails to state a claim for relief under the
ADA.
2. 	Retaliation
To prove a claim of ADA retaliation, Plaintiff must show that he: (1) engaged in a protected
activity; (2) was subjected to an adverse employment action subsequent to or contemporaneous with
the protected activity; and (3) there was a causal connection between the protected activity and the
adverse employment action.” Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1187 (10th Cir. 2016)
(quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)) (internal quotations
omitted).
First, Plaintiff does not plausibly allege that he engaged in protected activity under the ADA.
Protected activity includes requesting a reasonable accommodation or opposing conduct made
unlawful by the ADA. As discussed above, Plaintiff alleges that he complained about the condition
of the truck and the effect it had on his health, but the complaint does not allege that Plaintiff
complained of disability discrimination, asserted rights under the ADA, or otherwise engaged in
conduct that would put Defendants on notice that he was invoking statutory protections. General
workplace complaints or disputes over safety conditions, without more, do not constitute protected
activity for purposes of an ADA retaliation claim. See Dinse, 541 F. App'x at 889-90 (stating that it
must be clear that an employee wants assistance for a disability and that “mere awareness” does not
trigger an employer’s duty to accommodate).
Second, even assuming Plaintiff engaged in a protected activity, the complaint does not
allege facts establishing a causal connection between that activity and his termination. The
complaint does not identify when any protected activity occurred, when Defendants became aware
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of it, or how closely it preceded the alleged adverse action. Nor does Plaintiff allege facts suggesting
retaliatory motive, such as statements by decisionmakers, temporal proximity, or disparate treatment
following the alleged protected activity. Absent such allegations, the complaint does not plausibly
support an inference that Plaintiff’s termination occurred because of protected activity. See Khalik v.
United Air Lines, 671 F.3d 1188, 1194 (10th Cir. 2012); see also Anderson v. Coors Brewing Co., 181 F.3d
1171, 1179 (10th Cir. 1999) (stating that temporal proximity alone is typically insufficient to establish
causal connection).
Finally, the complaint’s conclusory assertion that Plaintiff was terminated “in retaliation” is
insufficient to state a claim. 	See Lawson v. Godderz, No. 25-2199-JWB, 2025 WL 3022371, at *6-7 (D.
Kan. Oct. 29, 2025). Conclusory statements, without supporting factual allegations, do not satisfy
the pleading standard. Id. Because Plaintiff has not alleged facts showing that he engaged in
protected activity or that his termination was causally connected to such activity, his retaliation claim
fails to state a claim for relief.
c. 	Plaintiff has not pled a plausible hostile work environment claim.
Although Plaintiff does not expressly identify the statutory basis for his hostile work
environment allegations, the Court will construe the claim as arising under Title VII. The Court
must construe Plaintiff’s complaint liberally and he alleges “a hostile work environment.” The Court
further construes the claim as one for hostile work environment because Plaintiff’s allegations focus
on perceived harassment and abusive workplace conditions. 5
To adequately plead a hostile work environment claim, a plaintiff must allege facts showing
that the workplace “is permeated with discriminatory intimidation, ridicule, and insult that is
5 Title VII also contains a fifteen-employee requirement. See 42 U.S.C. § 2000e(b). Therefore, for the reasons
stated earlier, the undersigned recommends that Plaintiff’s Title VII claims be dismissed because Plaintiff has
not alleged facts establishing that Cerreto has met the fifteen-employee requirement. Even assuming this
requirement is met, Plaintiff’s Title VII claims still fall short for the reasons to follow.
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sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Brown v. LaFerry's LP Gas Co., 708 F. App’x 518, 520 (10th Cir.
2017) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The alleged conduct must render
the environment both subjectively and objectively hostile. Id. Ordinary workplace friction—such as
“[r]un-of-the-mill boorish, juvenile, or annoying behavior”—is insufficient, as are a few isolated
incidents. Throupe v. Univ. of Denver, 988 F.3d 1243, 1252 (10th Cir. 2021) (internal quotation and
citation omitted). Where “none of the acts [a plaintiff] complains of, either considered alone or in
combination, can be said to have altered the conditions of employment such that the atmosphere
was abusive,” dismissal for failure to state a claim is appropriate. Givens v. City of Wichita, No. 23-
1033, 2024 WL 1198503, at *16 (D. Kan. Mar. 20, 2024) (quoting Chand v. Braithwaite, 2020 WL
9209284, at *2 (D.S.C. 2020)).
In assessing whether alleged conduct is sufficiently severe or pervasive, courts evaluate the
totality of the circumstances. Throupe, 988 F.3d at 1252. Relevant considerations include “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. (internal quotation and citation omitted). This analysis also
encompasses the overall work environment, not just discrete incidents. See Hicks v. Gates Rubber Co.,
833 F.2d 1406, 1415–16 (10th Cir. 1987) (“Evidence of a general work atmosphere therefore—as
well as evidence of specific hostility directed toward the plaintiff—is an important factor in
evaluating the claim.”).
Here, the alleged conduct—taken as true—amounts to discrete instances of workplace
friction, criticism, or unpleasant interactions. Plaintiff does not allege facts showing a pattern of
discriminatory intimidation, ridicule, or insult that was frequent, severe, physically threatening, or
humiliating. Nor does the complaint allege conduct that unreasonably interfered with Plaintiff’s
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work performance. At most, the allegations describe sporadic or isolated incidents of conduct that,
while perhaps unwelcome or frustrating, fall squarely within the category of “run-of-the-mill
boorish, juvenile, or annoying behavior” that is insufficient as a matter of law. Throupe, 988 F.3d at
1252.
The complaint also fails to allege facts supporting an objectively hostile environment when
viewed under the totality of the circumstances. Plaintiff does not plead facts describing a workplace
permeated with hostility or a broader atmosphere of discrimination, as opposed to individualized
disagreements or perceived slights. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415–16 (10th Cir.
1987). Even when the alleged incidents are considered collectively, they do not plausibly suggest
that the workplace was abusive or that the conditions of Plaintiff’s employment were altered in a
meaningful way.
Because none of the alleged acts—either individually or in combination—rise to the level of
severity or pervasiveness required to state a hostile work environment claim, dismissal is appropriate.
See Givens, 2024 WL 1198503, at *16-17.
d. 	Plaintiff has alleged no facts to support an ADEA claim.
To prevail on an ADEA claim a plaintiff “must establish that age was a ‘determining factor’
in the employer's challenged decision.” Lucas v. Dover, 857 F.2d 1397, 1400 (10th Cir.1988) (quoting
EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir.1988)). The plaintiff “need not prove that age was
the sole reason for the employer's acts, but must show that age ‘made the difference’ in the
employer's decision.” EEOC v. Sperry Corp., 852 F.2d at 507 (quoting EEOC v. Prudential Fed. Sav. &
Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289
(1985)) (emphasis in original). The ADEA applies to individuals who are at least forty years of age.
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29 U.S.C. § 631(a). 6
Here, the complaint does not allege Plaintiff is at least forty years of age and does not
describe any statements, conduct, or circumstances from which age-based animus could reasonably
be inferred. Instead, the complaint relies on conclusory assertions of unfair treatment, untethered to
any factual allegation linking the employer’s decision to Plaintiff’s age. Such bare assertions are
insufficient to plausibly allege that age “made the difference.” See Sperry Corp., 852 F.2d at 507.
Absent any facts suggesting age-based motivation, Plaintiff has failed to state a claim under the
ADEA, and dismissal is warranted. 7
e. 	Plaintiff has not exhausted his administrative remedies.
Plaintiff’s claims are also subject to dismissal for failure to exhaust administrative remedies.
It is well-established in this District that prior to filing a federal court employment discrimination
lawsuit, a plaintiff must exhaust his administrative remedies by presenting the claims to the EEOC
or the Kansas Human Rights Commission and receiving a right-to-sue letter based on that charge.
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181, 1185 (10th Cir. 2018). Although exhaustion is no
longer jurisdictional, a plaintiff’s failure to exhaust generally warrants dismissal of the unexhausted
claims. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018); Hickey v. Brennan, 969 F.3d 1113
(10th Cir. 2020).
Under Title VII or the ADA, a plaintiff must first file a timely charge of discrimination with
6 The ADEA applies only to employers with twenty or more employees. See 29 U.S.C. § 630(b). Therefore,
for the reasons stated earlier, the undersigned recommends that Plaintiff’s ADEA claims be dismissed
because Plaintiff has not alleged facts establishing that Cerreto has met the twenty-employee requirement.
Even assuming this requirement is met, Plaintiff’s ADEA claims still fall short for the reasons to follow.
7 Also, a plaintiff's lawsuit “is generally limited by the scope of the administrative investigation that can
reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Smith v. Cheyenne Ret.
Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (internal quotation and citation omitted). Because Plaintiff’s
EEOC charge does not allege anything related to age discrimination, Plaintiff’s ADEA claims exceed the
scope of any administrative investigation that could reasonably have been expected to follow the charge.
Dismissal is also appropriate on this basis.
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the EEOC (or the appropriate state agency) and receive a right-to-sue letter. Jones v. Needham, 856
F.3d 1284, 1289 (10th Cir. 2017); Jones v. UPS, Inc., 502 F. 3d 1176, 1183 (2007). Under 42 U.S.C. §
2000e–5(e)(1), a plaintiff must exhaust administrative remedies with respect to each discrete alleged
discriminatory act by filing an EEOC charge within 180 days after the date on which the act
occurred. The charge “shall be in writing and signed and shall be verified,” 29 C.F.R. § 1601.9, and
must at a minimum identify the parties and “describe generally the action or practices complained
of,” 29 C.F.R. § 1601.12(b). The EEOC is required to give the aggrieved person notice of the
disposition of the charge within 180 days of the filing of the charge, and “within ninety days after
the giving of such notice a civil action may be brought against the respondent named in the
charge....” 42 U.S.C. § 2000e-5(f)(1).
Here, the complaint does not allege that Plaintiff satisfied the exhaustion requirement.
Plaintiff attached an unsigned EEOC charge to the complaint and indicates it was filed in January
2025, which is nearly 300 days after his alleged termination.8 The complaint likewise does not allege
that the EEOC issued a right-to-sue letter or that the statutory waiting period elapsed before suit
was filed. Plaintiff has not plausibly established that he exhausted administrative remedies, as the
complaint does not allege that he obtained a right-to-sue notice. See Lincoln, 900 F.3d at 1185-86.
Accordingly, Plaintiff has demonstrated that his administrative remedies were exhausted as to the
claims asserted.
f. 	Defendant James Kassir should be dismissed.
Under Tenth Circuit law, individual employees or supervisors cannot be held liable under the
ADA, Title VII, or ADEA. Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 744 (10th Cir. 1999);
Haynes v. Williams, 88 F.3d 898, 899-901 (10th Cir. 1996); Ledbetter v. City of Topeka, Kan., 112 F. Supp.
8 Under 42 U.S.C. § 2000e–5(e)(1), a plaintiff may have up to 300 days to file an EEOC charge where state or
local proceedings are initiated. The Court therefore does not base its recommendation on timeliness, but
instead on Plaintiff’s failure to allege that he obtained a right-to-sue letter.
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2d 1239, 1244 (D. Kan. 2000), aff'd, Ledbetter v. City of Topeka, Kansas, 61 F. App'x 574 (10th Cir.
2003). “[T]he ADA precludes personal capacity suits against individuals who do not otherwise
qualify as employers under the statutory definition.” Butler, 172 F.3d at 744. “[I]ndividual
supervisor liability is not proper under the ADEA.” Ledbetter, 112 F. Supp. at 1244. Similarly, “[t]he
relief granted under Title VII is against the employer, not individual employees whose actions would
constitute a violation of the Act.” Haynes, 88 F.3d at 899-901. Although a supervisor’s actions may,
in certain circumstances, be imputed to the employer for purposes of establishing employer liability,
that principle does not create a separate cause of action against the supervisor in his individual
capacity. See id.
Here, Plaintiff names Kassir as an individual Defendant based on his alleged role as a
supervisor or owner. The complaint contains no allegations describing his involvement in the
events at issue. To the extent Plaintiff seeks to hold Kassir responsible for alleged discriminatory or
retaliatory conduct, the proper defendant is the employer itself. See, e.g., Haynes, 88 F.3d at, 899
(“[T]he proper method for a plaintiff to recover under Title VII is by suing the employer, either by
naming the supervisory employees as agents of the employer or by naming the employer directly.”).
Therefore, to the extent Plaintiff seeks to hold Kassir individually liable under the ADA, Title VII,
or ADEA, those claims against him should be dismissed.
IV. 	Conclusion
For the reasons explained above, the Magistrate Judge recommends that the District Judge
dismiss Plaintiff's claims because his complaint does not state a claim on which relief may be
granted under 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS THEREFORE RECOMMENDED to the District Court that Plaintiff’s complaint
(Doc. 1) be DISMISSED for failure to state a claim on which relief may be granted. Pursuant to 28
U.S.C. § 636(b)(1), Fed R. Civ. P. 72, and D. Kan. Rule 72.1.4, Plaintiff shall have fourteen (14) days
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after service of a copy of these proposed findings and recommendations to serve and file with the
U.S. District Judge assigned to the case, any written objections to the findings of fact, conclusions of
law, or recommendations of the undersigned Magistrate Judge. Plaintiff’s failure to file such written,
specific objections within the 14-day period will bar appellate review of the proposed findings of
fact, conclusions of law, and the recommended disposition. See Moore v. United States, 950 F.2d 656
(10th Cir. 1991).
IT IS SO RECOMMENDED.
Dated February 3, 2026, at Wichita, Kansas.
/s/ B ROOKS S EVERSON
Brooks G. Severson
United States Magistrate Judge
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