Cassel v. Truss Communications

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

CARY CASSEL,

Plaintiff,

v.

Case No. 23-CV-00226-SEH-CDL

TRUSS COMMUNICATIONS, INC.;

EASY SYSTEMS, INC.

Defendants.

OPINION AND ORDER

Before the Court are Defendant Truss Communications, Inc.’s (“Truss”)

motion to dismiss [ECF No. 22] and Defendant Easy Systems, Inc.’s (“Easy

Systems”) motion to dismiss [ECF No. 23].

Plaintiff Cary Cassel worked for about a year in a remote sales and data

entry position before being discharged due to an alleged hostile work

environment. [ECF No. 1 at 3]. He filed a charge of discrimination with the

Oklahoma Attorney General’s Office, Office of Civil Rights Enforcement,

asserting that he was discriminated and retaliated against for opposing

sexual harassment and unfair pay practices, and for advocating for unpaid

wages in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

[Id.]. His charge was also presented to the Equal Employment Opportunity

Commission (“EEOC”).

The Court liberally construes Cassel’s complaint, as it must. Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Cassel grounds his claims on

purported discrimination based on “mental health” and “obese weight.” [ECF

No. 1 at 2]. Based on these alleged disabilities, and in addition to them,

Cassell appears to assert claims under Title I of the American with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111–12117, the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, and Oklahoma law. [Id.].

Because Cassel did not include ADA claims in his charge of discrimination,

the Court finds that he has not exhausted his administrative remedies as to

these claims. Cassel also did not list Easy Systems as an employer on his

charge of discrimination. Because Cassel alleges that the latest date he was

discriminated against was July 5, 2022, the time to cure his failure to

exhaust has long-since passed.1 [ECF No. 1 at 3]. Cassel cannot cure his

failure to plead exhaustion under the ADA, so the Court will dismiss his ADA

claims with prejudice.

The Court further finds that Cassel’s complaint does not state a claim

upon which relief may be granted because it lacks sufficient facts to support

1 See 42 U.S.C. § 12117(a) (noting that the procedures set forth in § 2000e-5 apply to

persons alleging discrimination based on disability); id. § 2000e-5(e)(1) (a charge

must be filed within 180 after the allegedly unlawful employment practice occurred;

however, if proceedings are initiated through a State or local agency, such charge

shall be filed within 300 days).

any of his claims. The Court will dismiss the remaining claims in the

complaint without prejudice.

I. Background

The Court derives the background facts from the allegations in the

complaint and assumes they are true for purposes of determining the motions

to dismiss. [ECF No. 1]; Albers v. Bd. of Cnty. Comm’rs, 771 F.3d 697, 700

(10th Cir. 2014). The Court also considers and draws from the charge of

discrimination Cassel filed with the EEOC.2 [ECF No. 1 at 3].

Truss hired Cassel in July 2021 for a remote sales and data entry position.

[ECF No. 1 at 3]. During his employment, Cassel opposed “sexual[]

harass[ment] by the CEO … advocat[ed] for unpaid wages” and opposed

“unfair pay practices and procedures.” [Id.]. He “complained multiple times to

[his] employer” and was retaliated against because of his complaints and

2 Although a district court is usually limited to the allegations in the complaint

when considering a Rule 12(b)(6) motion, the “court may consider documents

referred to in the complaint if the documents are central to the plaintiff’s claim, and

the parties do not dispute the documents’ authenticity.” Jacobsen v. Desert Book

Co., 287 F.3d 936, 941 (10th Cir. 2002). Here, Cassel attached the charge to his

complaint [ECF No. 1 at 3], the defendants provided copies of the charge [ECF Nos.

22-2, 23-2], and Cassel does not contest its authenticity. Therefore, the Court will

consider the charge in the context of ruling on the motions to dismiss. However, the

Court will not consider the additional documents attached to Defendants’ responses,

which appear to be copies of Cassel’s resignation letter. [ECF Nos. 22-1, 23-1]. To

consider this evidence would require the Court to convert the motions to dismiss to

motions for summary judgment. See Gee v. Pacheo, 627 F.3d 1178, 1186–87 (10th

Cir. 2010) (district court erred by improperly relying on documents attached to a

motion to dismiss to refute factual assertions in the complaint).

harassed by being given additional work. [Id.]. On or about July 5, 2022,

Cassel was “constructively discharged … due to the increasing hostile work

environment.” [ECF No. 1 at 3].

Cassel filed with the EEOC a charge of employment discrimination on

January 16, 2023. [ECF No. 1 at 3]. He indicated on the form that he believed

he was discriminated against by “truss communications,” with the latest

incident occurring on July 5, 2022. [Id.]. He further stated that the

discrimination was based on “Retaliation.” [Id.]. The “particulars” of his claim

provide:

On or about July 2021, I was hired for position remote worker

and sales for data entry. During my employment I was retaliated

against because I opposed sexually harassed by the CEO,

advocating for unpaid wages, unfair pay practices and

procedures. I complained multiple times to my employer, and I

believe because of my complaint I was harassed and given an

additional workload. Subsequently on or about July 5, 2022, I

constructively discharged from the employer due to the

increasing hostile work environment. Nothing was done about

the unfair treatment. I believe that I have been discriminated

against because of retaliation in violation of Title VII of the Civil

Rights Act of 1964.

[ECF No. 1 at 3]. Cassel received his right to sue letter on March 30, 2023.

[Id. at 5].

On June 5, 2023, Cassel sued Truss Communications and Easy Systems in

federal court. [ECF No. 1 at 1–2]. It appears he used a form complaint for

Title VII actions. [Jd.]. Aside from identifying the parties and requesting

$250,000 in relief, the entirety of Cassel’s allegations include:

4, On or about , defendant(s)

(Month'day) (Ycar)

(Specify the unlawful employment practices which you are alleging against the defendant(s), such as: refusal to

hire, discharge from employment, harassment in employment, etc.)

Harassment in employment, discharge from employment due to hostile work environment, miscatagorised as salary witr

job test, failed to pay overtime, failed to pay reimbursements, franchise fraud, defamation of character, emotional dis

because of (state why defendant(s) discriminated against you, 1c. race, calor religion, sex or national origin, etc.)

Discrimination based on mental health, obese weight.

The chart below compares the claims Cassel asserts in his complaint with

the claims he asserted in his Charge of Discrimination with the EEOC.?

Complaint Charge of Discrimination

[ECF No. 1 at 1-2] [ECF No. 1 at 3]

Basis: Mental Health, Obesity Basis: Retaliation

harassment harassment / sexual harassment

discharge due to hostile work constructive discharge due to hostile

environment work environment

miscategorized salary unpaid wages/unfair pay practices

failure to pay overtime discrimination

failure to pay reimbursements retaliation

veneseees

3 The Court reads the assertions in Cassel’s complaint liberally by correcting the

spelling in the salary claim and construing “emotional dis” as a claim of “emotional

distress.”

defamation of character

emotional distress

Therefore, Cassel seemingly asserts three categories of claims against

Truss and Easy Systems: (1) disability discrimination under Title I of the

ADA; (2) violations of the FLSA; and (3) Oklahoma torts.

Truss and Easy Systems move to dismiss the complaint on various

grounds. [ECF Nos. 22, 23]. Truss argues that the complaint should be

dismissed for lack of subject matter jurisdiction and failure to state a claim

upon which relief can be granted. [ECF No. 22 at 7]. Specifically, Truss

contends that Cassel has failed to exhaust his administrative remedies

because the complaint “presents completely different claims from those that

were presented to the EEOC.” [Id.]. Further, Truss argues that the complaint

fails to allege any facts in support of Cassel’s claims that would satisfy the

pleading standard. [Id. at 8]. Easy Systems raises the same arguments as

Truss but adds that dismissal should be with prejudice because Cassel never

named Easy Systems within his EEOC charge. [ECF No. 23 at 7–8]. Easy

Systems asserts that Cassel is unable to exhaust his administrative remedies

because he is now time-barred from filing a charge of discrimination against

Easy Systems, and this leaves the Court without jurisdiction. [Id.]. Easy

Systems alternatively argues that the complaint should be dismissed for

insufficiency of process. [Id. at 8].

Cassel has not filed a response to either motion. However, on October 24,

2023, he filed a notice titled “Evidence Proving Employment of Easy Systems

and Statement.” [ECF No. 32]. In this filing, Cassel states that “Easy

Systems Inc Was Noticed,” and that Easy Systems is the “Parent Company of

Truss.” [ECF No. 32 at 1, 7–8]. The following day, Cassel filed a “Motion for

Prima Facie Evidence Court Order” alleging “a criminal offense in Relation to

the EEOC complaint and Lawsuit.” [ECF No. 33]. This filing does not appear

to be responsive to any of the arguments raised in Defendants’ motions to

dismiss.

II. Discussion

When considering a motion to dismiss, the Court “must accept all the well-

pleaded allegations of the complaint as true and must construe them in the

light most favorable to the plaintiff.” Albers, 771 F.3d at 700 (quotation

omitted). However, a court need not accept as true those allegations that are

conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d

1151, 1154–55 (10th Cir. 2001). “[C]onclusory allegations without supporting

factual averments are insufficient to state a claim upon which relief can be

based.” Hall, 935 F.2d at 1110 (citations omitted).

To survive, a complaint must include “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. A motion to dismiss is

properly granted when a complaint provides no “more than labels and

conclusions” or a “formulaic recitation” of the elements. Twombly, 550 U.S. at

555.

Additionally, Rule 8 of the Federal Rules of Civil Procedure requires that a

complaint contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It further provides that

“[e]ach allegation must be simple, concise, and direct.” Id. at 8(d)(1). “Rule 8

serves the important purpose of requiring plaintiffs to state their claims

intelligibly so as to inform the defendants of the legal claims being asserted.”

Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). The complaint must

“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 Twombly,

550 U.S. at 555).

When alleging fraud, a heightened pleading standard applies, and “a party

must state with particularity the circumstances constituting [the] fraud or

mistake.” Fed. R. Civ. P. 9(b). Under this standard, a plaintiff is generally

required “to identify the time, place, and content of each allegedly fraudulent

representation or omission, to identify the particular defendant responsible

for it, and to identify the consequence thereof.” Gaddy v. Corp. of President of

Church of Jesus Christ of Latter-Day Saints, 551 F. Supp. 3d 1206, 1217 n.85

(D. Utah 2021) (quotation omitted).

A. Cassel was required to exhaust administrative remedies for any

Title VII or ADA claims.

“A plaintiff normally may not bring a Title VII [or ADA] action based upon

claims that were not part of a timely-filed EEOC charge for which the

plaintiff has received a right-to-sue-letter.” Foster v. Ruhrpumpen, Inc., 365

F.3d 1191, 1194 (10th Cir. 2004) (citation, brackets, and internal quotation

marks omitted); E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 285 (2002)

(“Congress has directed the EEOC to exercise the same enforcement powers,

remedies, and procedures that are set forth in Title VII ... when it is enforcing

the ADA’s prohibitions against employment discrimination on the basis of

disability.”); Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 988 (10th

Cir. 2021) (noting ADA Title I plaintiff “must have exhausted her

administrative remedies as to that claim before filing suit”). This

requirement is meant “to protect employers by giving them notice of the

discrimination claims being brought against them, in addition to providing

the EEOC with an opportunity to conciliate the claims.” Foster, 365 F.3d at

1195. To promote these purposes, a plaintiff’s claim in federal court “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.” Delsa Brooke Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164,

1170 (10th Cir. 2020) (cleaned up). EEOC charges are typically filed by non-

attorneys, so courts liberally construe allegations in the charge. Smith v.

Cheyenne Retirement Investors L.P., 904 F.3d 1159, 1166 (10th Cir. 2018).

However, courts must dismiss claims for failure to exhaust administrative

remedies when it is undisputed that the plaintiff has not filed a timely EEOC

charge. Id. at 1163–64.

1. Cassel has failed to exhaust administrative remedies for his

ADA claims.

As an initial matter, Defendants incorrectly contend that the Court lacks

jurisdiction over Cassel’s claims. [ECF No. 22 at 8, 15; ECF No. 23 at 7, 18].

“[A] plaintiff’s failure to file an EEOC charge regarding a discrete

employment incident merely permits the employer to raise an affirmative

defense of failure to exhaust but does not bar a federal court from assuming

jurisdiction over a claim.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th

Cir. 2018). District courts “have split over whether this language means that

exhaustion is a condition precedent to suit or a true affirmative defense for

which the defendant bears the burden.” Avington v. Ind. School Dist. No. 1 of

Tulsa Cty., No. 24-cv-00410-SH, 2025 WL 1287736, at *4 n.5 (N.D. Okla. May

1, 2025) (collecting cases). However, the Court will not decide the issue,

because it finds Defendants have shown that the complaint (and its properly

considered attachments) admit all the elements of an exhaustion defense. See

id. at *4 (“Where a motion to dismiss is based on an affirmative defense, it

may be properly granted only ‘when the complaint itself admits all the

elements of the affirmative defense by alleging the factual basis for those

elements.’” (quoting Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299

(10th Cir. 2018)).

Having determined that exhaustion was required and the Court has

jurisdiction, the Court will now turn to whether Cassel exhausted his ADA

claims. Cassel’s charge of discrimination states that he was “discriminated

against because of retaliation, in violation of Title VII of the Civil Rights Act

of 1964.” [ECF No. 1at 3]. It also lists “Retaliation” as the basis for Cassel’s

claims. [Id.]. The failure to allege to the EEOC a particular basis for

discrimination “creates a presumption that the charging party is not

asserting [those] claims[.]” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th

Cir. 2007), overruled on other grounds by Lincoln, 900 F.3d at 1185. But the

presumption may be rebutted “if the text of the charge clearly sets forth the

basis of the claim.” Id. (the “charge must contain facts concerning the

discriminatory and retaliatory actions underlying each claim”). “The ultimate

question is whether the conduct alleged in the lawsuit would fall within the

scope of an EEOC investigation which would reasonably grow out of the

charges actually made in the EEOC charge.” Smith, 904 F.3d at 1164–65

(cleaned up).

The complaint does not specifically allege that Cassel’s “mental health”

and “obese weight” are purported disabilities. But the Court liberally

interprets these references as Cassel’s intent to bring ADA disability claims.

Cassel’s charge does not mention any of his alleged disabilities; nor does it

state that he was discriminated against in violation of the ADA. Therefore,

the EEOC would not have had any reason to investigate whether Cassel was

discriminated against on the basis of a disability. Cassel therefore failed to

exhaust administrative remedies for his ADA hostile work environment

claims, and these claims will be dismissed.

To assert claims under Title VII or the ADA, Cassel must have filed a

charge of discrimination within 300 days of the dates he alleges the

discriminatory conduct took place because he initiated proceedings by filing a

charge with a State agency. See n. 1, supra. Cassel listed on his charge that

July 5, 2022 was the latest date discrimination occurred. [ECF No. 1 at 3].

Any potential ADA claim he has against Truss or Easy Systems is now time-

barred. Thus, the Court will dismiss the ADA claims Cassel brings with

prejudice.

2. Cassel’s failure to name Easy Systems in his charge is not

fatal to his claims against this defendant.

Easy Systems argues that Cassel’s failure to name them within his charge

“is fatal to any claims [he] may have had against Easy Systems.” [ECF No. 23

at 7]. Although a plaintiff generally should name all defendants in his EEOC

charge, the omission of a party’s name does not necessarily require dismissal.

Romero v. Union Pac. R.R., 615 F.2d 1303, 1311 (10th Cir. 1980). A Title VII

or ADA action may proceed against a defendant not named in the EEOC

charge “where the defendant was informally referred to in the body of the

charge” or “where there is sufficient identity of interest” between the

unnamed defendant and the party named in the EEOC charge. Id. (citations

omitted).

Four factors are relevant in determining whether an unnamed party may

be included in a subsequent lawsuit: (1) whether the unnamed party’s role

could be ascertained by the complainant through “reasonable effort” when the

EEOC charge was filed; (2) whether the interests of the named and unnamed

parties are “so similar ... that for the purpose of obtaining voluntary

conciliation and compliance it would be unnecessary to include the unnamed

party in the EEOC proceedings”; (3) whether the unnamed party’s absence

from the EEOC proceedings resulted in actual prejudice to their interests;

and (4) “whether the unnamed party has in some way represented to the

complainant that its relationship with the complainant is to be through the

named party.” Id. at 1312. Easy Systems has not addressed these factors and

is therefore not entitled to dismissal on this basis.

B. The complaint fails to state a claim upon which relief can be

granted.

Defendants each contend that the complaint should be dismissed under

Fed. R. Civ. P. 12(b)(6) because Cassel has failed to state a claim upon which

relief can be granted. [ECF No. 22 at 16–20; ECF No. 23 at 12–17]. The Court

agrees.

1. Cassel has failed to plead a Title VII claim.

Because Cassel asserts that his claims are brought under Title VII, the

Court will first consider whether the complaint states any plausible Title VII

claim. Under Title VII, it is unlawful for an employer to “discriminate against

any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Where the instances of the alleged discrimination are circumstantial, a

plaintiff must prove a Title VII violation through the burden-shifting test

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The

exact elements of a Title VII claim can vary based on the circumstances, but

generally a claimant shows a prima facie case of discrimination by

demonstrating: (1) he “belongs to a protected class;” (2) he “suffered an

adverse employment action;” and (3) the adverse action occurred “under

circumstances giving rise to an inference of discrimination.” E.E.O.C. v.

PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007). Although Cassel need not

establish a prima facie case of discrimination in his complaint to survive a

motion to dismiss, the Court nonetheless looks to “the elements of each

alleged cause of action to help determine whether Plaintiff has set forth a

plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.

2012). General, formulaic, and conclusory assertions of discrimination are

insufficient. Id. at 1193.

Because Cassel is proceeding pro se, the Court construes his filings

liberally and holds him “to a less stringent standard than formal pleadings

drafted by lawyers.” Hall, 935 F.2d at 1110. However, a pro se plaintiff must

“follow the same rules of procedure that govern other litigants.” Garrett v.

Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)

(quotation omitted). The Court “will [also] not supply additional factual

allegations to round out a plaintiff’s complaint or construct a legal theory on

a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir.

1997) (citing Hall, 935 F.2d at 1110).

Cassel’s complaint fails to show that he was discriminated against based

on his race, color, religion, sex, or national origin. Rather, he asserts that he

was discriminated against “based on mental health [and] obese weight.” [ECF

No. 1 at 2]. The Court finds, to the extent that any of Cassel’s claims can

reasonably be construed as brought under Title VII, they fail to state a claim

upon which relief can be granted.

2. Cassel has failed to plead an ADA hostile work environment

claim.

Notably, Cassel seems to be bringing his ADA hostile work environment

claims4 under the doctrine of constructive discharge. Therefore, Cassel must

allege facts demonstrating that he was “discriminated against by his

employer to the point where a reasonable person in his position would have

felt compelled to resign,” and that he “actually resigned.” Green v. Brennan,

578 U.S. 547, 555 (2016) (citation omitted). “[W]hen the employee resigns in

the face of such circumstances, Title VII treats that resignation as

tantamount to an actual discharge.” Id. Here, Cassel sets forth no facts in

support of his conclusory statement that he was “discharge[d] from

4 The Court is liberally construing Cassel’s claim of “harassment” and his claim of

“discharge due to hostile work environment” as two ADA hostile work environment

claims.

employment due to hostile work environment.” [ECF No. 1 at 2]. The Court

finds this statement insufficient to show constructive discharge. Nonetheless,

it will still analyze whether Cassel has stated a viable ADA hostile work

environment claim.

“ADA hostile work environment claims are analyzed under the same

standards applied to similar Title VII claims.” Callahan v. Comm. Graphics,

Inc., 657 F. App’x 739, 746 (10th Cir. 2016) (citing Lanman v. Johnson Cty.,

393 F.3d 1151, 1156 (10th Cir. 2004) (“[W]e hold that a hostile work

environment claim is actionable under the ADA.”). The elements for such a

claim are: (1) the plaintiff is “disabled” as defined by the ADA; “(2) the

plaintiff was subject to unwelcome harassment; (3) the harassment was

based on the alleged disability; and (4) due to the harassment’s severity or

pervasiveness, the harassment altered a term, condition, or privilege of the

plaintiff’s employment and created an abusive working environment.” Id. at

746–47 (citing Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)

(listing elements of sexually hostile work environment claim). Thus, Cassel

must show he was disabled at the time of his employment and that he was

harassed on account of his disability. See also 42 U.S.C. § 12112(a), (b)(5)(A)

(prohibiting employers from discriminating against a “qualified individual on

the basis of disability”).

Defendants argue that the complaint fails to show that either of Cassel’s

alleged disabilities meet the definition of a “disability” under the ADA. [ECF

No. 22 at 18–19; ECF No. 23 at 15–17]. The ADA sets out three categories of

“disability”: (1) “a physical or mental impairment that substantially limits

one or more major life activities of such individual;” (2) “a record of such an

impairment;” or (3) “being regarded as having such an impairment.” 42

U.S.C. § 12102(1). The complaint fails to state which category Cassel is

invoking, because it merely states that Cassel was discriminated against

“based on mental health, obese weight.” [ECF No. 1 at 2]. To proceed based

on the first category, an actual impairment, “an ADA plaintiff must (1) show

[he] has ‘a recognized impairment’; (2) ‘identify one or more appropriate

major life activities’; and (3) ‘show the impairment substantially limits one or

more of those activities.’” Neri v. Bd. of Educ. For Albuquerque Public

Schools, 860 F. App’x 556, 561–62 (10th Cir. 2021) (quoting Felkins v. City of

Lakewood, 774 F.3d 647, 650 (10th Cir. 2014)).

The ADA recognizes certain mental health conditions as qualifying

disabilities. See 29 C.F.R. 1630.2(h) (“mental impairment means … (2) Any

mental or psychological disorder, such as an intellectual disability … organic

brain syndrome, emotional or mental illness, and specific learning

disabilities”). However, the Court finds that the complaint fails to specify any

mental health condition Cassel has that would qualify as a disability under

the ADA. Thus, to the extent the complaint alleges actual impairment based

on a mental health disability, it does not contain enough facts to support such

a claim. Although “[s]pecific facts are not necessary,” a complaint requires

sufficient factual assertions to give the defendant notice of “the grounds upon

which [the claim] rests.” Erickson, 551 U.S. at 93 (quoting Twombly, 550 U.S.

at 555).

The complaint also does not sufficiently allege that Cassel’s “obese weight”

is a “recognized impairment” under the ADA. Although the Tenth Circuit has

not yet addressed whether obesity qualifies as a “disability” under the ADA,

the Eighth, Second, and Sixth Circuits have each held “for obesity to qualify

as a physical impairment—and thus a disability—under the ADA, it must

result from an underlying physiological disorder or condition.” Morriss v.

BNSF Ry. Co., 817 F.3d 1104, 1109 (8th Cir. 2016); E.E.O.C. v. Watkins

Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006); Francis v. City of

Meriden, 129 F.3d 281, 286 (2d Cir. 1997). The complaint makes no mention

of any underlying disorder or condition for Cassel’s obesity.

Moreover, the complaint does not sufficiently allege why Cassell’s mental

health or obesity substantially impair a major life activity. If he is bringing a

claim under the “regarded as” category of disability, he would not need to

plead or prove that the actual or perceived impairment “substantially limited

one or more major life activities.” Morriss, 817 F.3d at 1111; 29 C.F.R.

§ 1630.2(l)(1). However, because the complaint fails to show which category of

ADA disability claim Cassel is bringing, the Court cannot conclude that any

of his ADA claims have been sufficiently pled. At bottom, the complaint’s

conclusory statement that Cassel was discriminated against “based on

mental health, obese weight” is simply not enough to show a plausible ADA

hostile work environment claim. In any event, because Cassel failed to

exhaust administrative remedies and his ADA claims are consequently

dismissed with prejudice, these claims cannot go forward.

3. Cassel has failed to plead an FLSA claim.

The Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, “protects

all covered workers from substandard wages and oppressive working hours.”

ElHelbawy v. Pritzker, 663 F. App’x 658, 663 (10th Cir. 2016) (cleaned up).

Section 206(a)(1) of the FLSA sets a minimum wage, and Section 215(a)(2)

enforces it. Generally, employees who work more than 40 hours in a

workweek are due overtime compensation of at least one-and-one-half times

their regular rate of pay. 29 U.S.C. § 207(a)(1). “[T]o survive a motion to

dismiss, a plaintiff asserting a[n] [FLSA] claim to overtime payments must

allege that [he] worked more than forty hours in a given workweek without

being compensated for the overtime hours worked during that workweek.”

ElHelbawy, 663 F. App’x at 663 (quoting Landers v. Quality Commc’ns, Inc.,

771 F.3d 638, 644–45 (9th Cir. 2014) (internal quotation marks omitted)).

Here, the complaint fails to show that Cassel worked more than 40 hours in

any week or that, if he did, he was not paid overtime for those hours.

Liberally construing Cassel’s allegations of “miscatagorised [sic] as salary

with job test, failed to pay overtime, failed to pay reimbursements” as

allegations that the defendants violated the FLSA, the Court finds these

wholly insufficient to state a claim upon which relief can be granted. These

assertions are merely conclusory statements that do not set forth any facts

that would “raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555.

4. Cassel has failed to plead a fraud claim and the Court declines

to exercise jurisdiction over the remaining state law claims.

The court notes that Cassel references “franchise fraud” in the complaint,

but it is unclear how this reference ties into any of his asserted claims. As

stated above, allegations of fraud carry a heightened pleading standard, see

Fed. R. Civ. P. 9(b), requiring plaintiffs “to identify the time, place, and

content of each allegedly fraudulent representation or omission, to identify

the particular defendant responsible for it, and to identify the consequence

thereof,” see Gaddy, 551 F. Supp. 3d at 1217 n.85 (quoting Hafen, 338 F.

Supp. 2d at 1263). Here, the complaint lacks specificity, so Cassel’s claims are

dismissed for failure to state a claim upon which relief can be granted.

As to Cassel’s state law claims, the Court declines to exercise jurisdiction.

Federal courts do not have independent jurisdiction over state law claims

unless those claims “turn on substantial questions of federal law[.]” Grable &

Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).

When a “district court has dismissed all claims over which it has original

jurisdiction,” the court “may decline to exercise supplemental jurisdiction”

over the remaining state law claims. 28 U.S.C. § 1367(c)(3); see also TV

Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022,

1028 (10th Cir. 1992) (noting that supplemental jurisdiction over state law

claims “is extended at the discretion of the court and is not a plaintiff’s

right”).

“[A] federal court should consider and weigh in each case, and at every

stage of the litigation, the values of judicial economy, convenience, fairness,

and comity in order to decide whether to exercise jurisdiction over a case

brought in that court involving pendent state-law claims.” Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350 (1988). “Notions of comity and federalism

demand that a state court try its own lawsuits, absent compelling reasons to

the contrary.” Thatcher Enters. v. Cache Cty. Corp., 902 F.2d 1472, 1478

(10th Cir. 1990).

Here, the Court dismisses all the claims based in federal law, leaving only

state law claims. Having considered the foregoing policy considerations, the

Court concludes dismissal of the state law claims is warranted.

III. Conclusion

For the reasons outlined above, the complaint is dismissed under Fed. R.

Civ. P. 12(b)(6) for failing to state a claim upon which relief can be granted.

Because Cassel has failed to exhaust administrative remedies as to his ADA

hostile work environment claims, and the time to cure his failure to plead

ADA exhaustion has passed, these claims are dismissed with prejudice. See

Walker v. United Parcel Service, Inc., 240 F.3d 1268, 1271–72 (10th Cir. 2001)

(treating district court’s dismissal as “with prejudice” because any attempt by

the plaintiff to refile her claims after dismissal would be out of time). The

Court will not address Easy System’s alternative argument that the

complaint should be dismissed for insufficient service of process under Fed.

R. Civ. P. 12(b)(5), because the issue is moot upon dismissal.

The Court recognizes that “[d]ismissal of a pro se complaint for failure to

state a claim is proper only where it is obvious that the plaintiff cannot

prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)

(quotation omitted). But whether the Court has addressed the merits of a

plaintiff’s claims is relevant to the futility analysis, because “a careful judge

will explain the pleading’s deficiencies so that a [plaintiff] with a meritorious

claim can then submit an adequate complaint.” Gee v. Pacheco, 627 F.3d

1178, 1186 (10th Cir. 2010).

IT IS THEREFORE ORDERED that Defendant Truss Communications,

Inc.’s motion to dismiss [ECF No. 22] and Defendant Easy Systems, Inc.’s

motion to dismiss [ECF No. 23] are GRANTED. Cassel’s ADA hostile work

environment claims are DISMISSED WITH PREJUDICE and the remaining

claims in the complaint [ECF No. 1] are DISMISSED WITHOUT

PREJUDICE. A separate judgment will enter.

IT IS FURTHER ORDERED that Cassel’s “Motion for Prima Facie

Evidence Court Order’ alleging “a criminal offense in Relation to the EEOC

complaint and Lawsuit.” [ECF No. 33] is DENIED. Private citizens cannot

compel enforcement of criminal law. See generally Diamond v. Charles, 476

U.S. 54, 64-65 (1986); see also Kelly v. Rockefeller, 69 F. App’x 414, 415 (10th

Cir. 2003) (“the criminal statutes do not provide for private civil causes of

action’).

DATED this 9th day of October, 2025.

Sen HE

Sara E. Hill ee

UNITED STATES DISTRICT JUDGE

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