Silverii v. DBMC Restaurants, LLC et al

Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH STEVE SILVERII CIVIL ACTION
VERSUS NO: 25-1826
DBMC RESTAURANTS, LLC, ET AL. SECTION: "A" (3)
ORDER AND REASONS
The following motions are before the Court: Motion to Dismiss (Rec. Doc. 13)
filed by individual defendants, Von Richard, Kyle Henry, and Theophilus Joseph;
Motion for Leave to File Supplemental Memorandum (Rec. Doc. 24) filed by the
plaintiff, Joseph S. Silverii, who is proceeding pro se.
Silverii opposes the motion to dismiss.
The motions, submitted for consideration on December 10, 2025, are before the
Court on the briefs without oral argument.
I. Background
Joseph S. Silverii, who is proceeding in proper person, has filed a complaint for
employment discrimination against Von Richard, Kyle Henry, Theophilus Joseph, and
DBMC Restaurants, LLC pertaining to Silverii’s former employment at the Walk-On’s
Sports Bistreaux located in Thibodaux, Louisiana. Silverii, who worked as a dishwasher
and later as part of the prep crew, worked at the restaurant from June 23, 2023 until he
quit on July 27, 2024. Silverii contends that he was the “72-year-old white dude” that
management wanted to be rid of. Theophilus Joseph was the manager; Von Richard
Case 2:25-cv-01826-JCZ-EJD Document 25 Filed 12/19/25 Page 1 of 6

Page 2 of 6
and Kyle Henry were Silverii’s coworkers.1
Silverii initiated this lawsuit using the pro se department’s standardized form for
employment discrimination cases. Silverii checked the boxes for race/color
discrimination, gender discrimination, age discrimination, and retaliation.2 (Rec. Doc. 1,
Complaint at 4).
Via the instant Rule 12(b)(6) motion, Von Richard, Kyle Henry, and Theophilus
Joseph (hereinafter “the Individual Defendants”) move to dismiss Silverii’s complaint
against them because non-employer individuals (co-workers and supervisors) cannot be
held liable for employment discrimination under Title VII or the Age Discrimination in
Employment Act (“ADEA”).
II. Discussion
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418
(5th Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to Astate a
claim for relief that is plausible on its face.@ Id. (quoting Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009)). AA claim has facial plausibility when the plaintiff pleads factual
1 The Court assumes that the references to “Vern” in Silverii’s narratives are actually
supposed to be references to Von Richard.
2 The Court assumes that Silverii erred in checking the box for gender discrimination
because that claim was not part of his EEOC charge. Further, the interactions that Silverii
complains about do not suggest gender discrimination. (Rec. Doc. 1-1, Charge of
Discrimination).
Case 2:25-cv-01826-JCZ-EJD Document 25 Filed 12/19/25 Page 2 of 6

Page 3 of 6
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.@ Id. The Court does not accept as true Aconclusory
allegations, unwarranted factual inferences, or legal conclusions.@ Id. (quoting Plotkin v.
IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must be supported
by factual allegations. Id. (quoting Iqbal, 129 S. Ct. at 1950).
In the context of a Rule 12(b)(6) motion to dismiss the Court must accept all
factual allegations in the complaint as true and draw all reasonable inferences in the
plaintiff=s favor. Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes,
416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)).
However, the foregoing tenet is inapplicable to legal conclusions. Iqbal, 129 S. Ct. at
1949. Thread-bare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550,
U.S. 544, 555 (2007)).
As a matter of law, there is no individual liability for Title VII and ADEA
discrimination claims. Hilliard v. Parish, 991 F. Supp. 2d 769, 774 (E.D. La. 2014) (citing
Ackel v. National Comm., Inc., 339 F.3d 376, 381 n.1 (5th Cir.2003); Smith v. Amedisys,
Inc., 298 F.3d 434, 448 (5th Cir.2002)); Coleman v. New Orleans & Baton Rouge S.S.
Pilots’ Ass'n, 437 F.3d 471, n.7 (5th Cir. 2006) (noting that the term “employer” has
been identically treated under the ADEA and Title VII). Silverii’s federal claims against
the Individual Defendants fail, and although he has requested leave to amend should
the Court note any deficiencies with his complaint, Silverii’s federal claims are legally
Case 2:25-cv-01826-JCZ-EJD Document 25 Filed 12/19/25 Page 3 of 6

Page 4 of 6
frivolous as to the Individual Defendants and cannot be cured via amendment.
Dismissal with prejudice is appropriate.
Silverii essentially concedes as much but argues against dismissing the
Individual Defendants from the lawsuit because, he argues, they can be held liable
under state law. To be clear, Silverii’s original complaint does not allude to any state law
claims much less expressly plead any. And although arguments raised in an opposition
cannot be used to amend a pleading in order to add claims to a lawsuit, Silverii
contends that the Individual Defendants could be liable under the Louisiana
Employment Discrimination Law, La. R.S. § 23:301, et seq. (“LEDL”), and Louisiana
Civil Code article 2315.
In reply, the Individual Defendants argue that with no valid basis to assert a
federal claim against them, the Court lacks jurisdiction over any state law claims against
them because there is no diversity of citizenship. This is incorrect. As Silverii points out
in his surreply, original jurisdiction over the state law claims is not required because the
Court can exercise supplemental jurisdiction over those claims pursuant to 28 U.S.C. §
1367(a). Subject matter jurisdiction is not an impediment to any state law claims that
Silverii may attempt to bring in this civil action.
But the Individual Defendants are absolutely correct insofar as they assert that in
its current state, Silverii’s complaint fails to allege facts sufficient to state a claim for
relief against them under any theory of state law. First of all, LEDL claims only lie
against the “employer,” which is defined even more narrowly than under federal law.
Badgerow v. REJ Props., Inc., No. 17-9492, 2018 WL 354297, at * n.4 (E.D. La.
Case 2:25-cv-01826-JCZ-EJD Document 25 Filed 12/19/25 Page 4 of 6

Page 5 of 6
January 10, 2018) (Zainey, J.) (citing La. R.S. § 23:302(2); Dejoie v. Medley, 9 So. 3d
826 (La. 2009)). The Individual Defendants are not “employers” under the state statutory
scheme so any claim against them under the LEDL is legally frivolous.3
Second, as the Court has already noted, no state law claims whatsoever are
referenced in Silverii’s original pleading. Silverii is correct insofar as his pro se pleadings
must be liberally construed and judged by less stringent standards, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), but this does not mean that he is entitled to have
unpleaded legal theories read into his civil action. The plaintiff is “master” of his
complaint, Cody v. Allstate Fire & Cas. Ins. Co., 19 F.4th 712, 715 (5th Cir. 2021), so he
is entitled to rely on one body of law to the exclusion of another so the Court will not
read causes of action into the pleadings that the plaintiff for whatever reason has failed
to include.
That said, Silverii has requested leave to amend his complaint to cure the
deficiencies in his claims against the Individual Defendants. The Court has read all of
Silverii’s correspondence and narratives and the Court finds it highly unlikely that Silverii
will be able to allege facts sufficient to state a claim against each defendant. But given
that leave to amend should be freely given, see Fed. R. Civ. P. 15(a)(2), the Court will
allow Silverii to move to amend his complaint in order to state a claim against the
Individual Defendants.
Accordingly, and for the foregoing reasons;
3 For purposes of the LEDL, an “employer” is a person receiving services from an employee
and, in return, giving compensation of any kind to an employee.
Case 2:25-cv-01826-JCZ-EJD Document 25 Filed 12/19/25 Page 5 of 6

Page 6 of 6
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 13) filed by individual
defendants, Von Richard, Kyle Henry, and Theophilus Joseph, is GRANTED IN PART.
The motion is GRANTED insofar as all federal claims asserted against Von Richard,
Kyle Henry, and Theophilus Joseph are dismissed with prejudice. The motion is
DENIED in all other respects.
IT IS FURTHER ORDERED that the Motion for Leave to File Supplemental
(Surreply) Memorandum (Rec. Doc. 24) filed by the plaintiff, Joseph S. Silverii, is
GRANTED.
IT IS FURTHER ORDERED that by December 31, 2025, the plaintiff shall move
to amend his complaint.
December 18, 2025
_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
Case 2:25-cv-01826-JCZ-EJD Document 25 Filed 12/19/25 Page 6 of 6