Opinion
No. 08-41 EJM.
January 7, 2009
ORDER
This matter is before the court on defendants Portfolio-Cedar Rapids', Kronos Hotels and Resorts', and Crowne Plaza Five Seasons Hotel's (collectively, the Kronos defendants) resisted Motion to Dismiss, filed August 28, 2009. Denied.
Plaintiff brings this action seeking damages for employment discrimination based upon gender in violation of 42 USC § 2000(e)-5(f)(3) (Count 1), IC 216 (Count 2), and seeking wage collection pursuant to IC 91A (Count 3). The court has jurisdiction pursuant to 28 USC §§ 1331 and 1367.
The Kronos defendants seek dismissal pursuant to FRCP 12(b)(6), urging that plaintiff fails to state a claim upon which relief can be granted in Count 1, and therefore upon the failure of the federal claim, this action must be dismissed. Presenting matters outside the pleadings, the Kronos defendants assert they are not "employers" within the meaning of 42 USC § 2000(e)-1(b), as they do not jointly or individually employ more than fifteen individuals as defined therein, and they did not employ plaintiff, but rather she was employed by defendant Alpha Staff Group (Alpha).
Defendants have submitted the affidavit of their in-house counsel in support of their motion.
In considering a motion to dismiss, we must assume that all the facts alleged in the complaint are true. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The complaint must be liberally construed in the light most favorable to the plaintiff. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).Coleman v. Watt, 40 F3d 255, 258 (8th Cir. 1994).
In her Complaint plaintiff alleges at all relevant times the Kronos defendants employed her and employed more than twenty employees. Viewing the Complaint in accordance with the appropriate standards, the motion must be denied.
It is therefore
ORDERED
Denied.