* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 20 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

TAMMIE KRAMER,

Plaintiff-Appellant,

v. GALLEON ARMORED CAR AND SECURITY; TOM TENNY; RON NIELSON,

Defendants-Appellees. No. 99-4121 (D.C. No. 99-CV-240) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Tammie Kramer appeals the district court’ s decision dismissing her sexual harassment/Title VII employment discrimi nation claims against individually named defendants Tom Tenny and Ron Nie lson, supervisory employees and corporate officers of defendant Galle on Armored Car and Security, Inc., plaintiff’s former employer. Although plaint iff’s Title VII claim against Galleon is still pending, we have jurisdiction because the district court granted plaintiff’s request for certification of final judg ment pursuant to Fed. R. Civ. P. 54(b). Plaintiff was hired by Galleon in June 1998 as a se curity guard. She resigned in September 1998. Plaintiff alleges that , during her brief employment with Galleon, her supervisor Steven Meyers sexuallyharassed her and forced her to have sexual intercourse with him. See Appellee’s Supp. App. at 3-4 (Complaint, Paras. 17, 18) . Plaintiff alleges further that Meyers’s supervi sors, Tenny and Nielson, were aware that he was sexually harassing female Galleon employees, and did not take any remedial action. See id. at 4 (Complaint, Paras. 20-23). Plaintiff’s two-count complaint alleges: (1) sexual harassment in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e -17, and (2) negligent employment.1 In addition, all defendants moved to dismiss plaint iff’s negligent

employment claims. Plaintiff did not contest that aspect of defendants’ motion to dismiss in the district court nor does she seek to appeal that dismissal. -3- The district court granted Tenny and Nielson’s Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff’s Title VII claims. 1 Citing Haynes v. Williams , 88 F.3d 898 (10 th Cir. 1996), the district court held that, in th is circuit, Title VII liability is borne by employers and not individual supervisors. See Appellant’s App. at 6; see also Haynes , 88 F.3d at 901 (“[P]ersonal capacity suits agains t individual supervisors are inappropriate under Title VII.”); Sauers v. Salt Lake County , 1 F.3d 1122, 1125 (10th Cir. 1993) (“Under Title VII, suits against individuals must proceed in their official capacity ; individual capacity suits are inappropriate.”). The district court then consider ed Galleon’s corporate status while plaintiff was its employee. Galleon was admi nistratively dissolved on July 1, 1997, under Utah law for failure to file it s annual report and reinstated in January 1999. Although Galleon was administratively dissolved when plaintiff was its employee, the district court concluded thatGalleon continued to be plaintiff’s employer. See Appellant’s App. at 7. Thus, the district court dismissed her Title VII claims against Tenny and Ni elson. Plaintiff appeals the district court’s 12(b)(6) dis missal of her sexual harassment claim against Tenny and Nielson on four grounds, that: (1) Tenny and Nielson should be held liable because they continue d to operate the corporation in-4-

violation of Utah law; (2) Tenny and Nielson were h er employers during Galleon’s period of dissolution; (3) since she file d her claim with the Utah Antidiscrimination Division and the EEOC during Gal leon’s dissolution, Tenny and Nielson should not be relieved of personal liab ility by Galleon’s subsequent corporate reinstatement; and (4) the corporate veil should be pierced because Tenny and Nielson tried fraudulently to avoid liabi lity. As an initial matter, we note that plaintiff raises a new argument on appeal. She did not argue in her response to defendants’ motion to dismiss that Tenny’s and Nielson’s behavior should result in the court’s piercing of the corporate veil. Therefore, she has waived this argument and we do not address it. See Singleton v. Wulff , 428 U.S. 106, 120 (1976) (“[A] federal appellate court does not consider an issue not passed upon below.”); see also Pell v. Azar Nut Co. , 711 F.2d 949, 950-51 (10th Cir. 1983) . We review de novo the sufficiency of a complaint an d the district court’s grant of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See GFF Corp. v. Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997). In doing so, we apply the same standards applied by the district court. See David v. City & County of Denver , 101 F.3d 1344, 1352 (10th Cir. 1996). Specifical ly, we accept as true all the well-pleaded factual alle gations in the complaint viewed in the light most favorable to the nonmoving party. See GFF , 130 F.3d at 1384.-5-

Moreover, “[a] 12(b)(6) motion should not be grante d unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Id. (quotation omitted). Accordingly, we assess the limited question “whether the plaintiff’s complaintalone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz , 948 F.2d 1562, 1565 (10th Cir. 1991). Based on our review of the complaint, the parties’ submissions, the district court’s decision, and the relevant case law, in particular our holding in Haynes , 88 F.3d 898, we agree with the district court’s dis position of plaintiff’s Title VII claims against Tenny and Nielson. Accordingly, we AFFIRM the district court’s dismissal for substantially the same reasons statedin that court’s memorandum decision dated May 26, 1999.

Entered for the Court

Mary Beck Briscoe Circuit Judge