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PAMELA G. HALTEK Plaintiff
vs.
VILLAGE OF PARK FOREST ROBERT MAEYAMA and JOHN LANCASTER Defendants.
 
Case:
No. 93 C 6700
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
 
Date:
September 21 1994 Decided
 
Court:
NORDBERG
 
Author:
The Hon. Justice John A. Nordberg
 

Before the Court is Defendant Robert Maeyama's and Defendant John Lancaster's Motion to Dismiss Counts I through IX of Plaintiff Pamela Haltek's Amended Complaint and Defendant Village of Park Forest's Motion to Strike Plaintiff's claim for damages in Counts I through VII.

Plaintiff's Amended Complaint contains ten counts. Counts I through III allege that the Defendants violated the Americans With Disabilities Act of 1990 ("ADA") 42 U.S.C. SEC.(s) 12111 - 12117. Counts IV through VI state a claim for violation of Section 504 of the Rehabilitation Act of 1973 29 U.S.C. SEC. 794. Counts VII and VIII assert that Defendants violated Title VII of the Civil Rights Act of 1964 42 U.S.C. SEC. 2000e - 2000e-17 as amended by the Civil Rights Act of 1990 42 U.S.C. SEC. 1981a (Supp.1994). Finally Count IX states a claim for retaliatory employment practices.

Defendants request this Court to dismiss Counts I through IX of Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because individual supervisory employees are not "employers" within the meaning of the ADA the Rehabilitation Act of 1973 and Title VII and thus they are not subject to liability under these Acts. Similarly Defendants assert that under Illinois law a claim for retaliatory employment practices cannot be brought against a defendant who is not the plaintiff's employer.

Defendant Robert Maeyama was at the relevant time the Chief of Police of the Village of Park Forest and Defendant John Lancaster was at the relevant time Captain of the Police Department of the Village of Park Forest. (Amended Complaint at P 5.) Both individual Defendants served as Plaintiff's supervisor. Id.

Americans With Disabilities Act Title VII and the Rehabilitation Act of 1973

The issue which this Court confronts is whether supervisory employees are "employers " and thus may be held individually liable for discrimination under the ADA Title VII and the Rehabilitation Act. The ADA defines "employer" as a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such person. 42 U.S.C. SEC. 12111(5)(A). The ADA's definition of employer mirrors the definition in Title VII 42 U.S.C. SEC. 2000e(b). Moreover Section 504(d) of the Rehabilitation Act states "the standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)." 29 U.S.C. SEC. 794(d). Thus in an employment discrimination case such as the instant one the ADA's definition of "employer" is applicable to the three counts in Plaintiff's Amended Complaint which state a claim under the Rehabilitation Act.

The Seventh Circuit has not directly addressed whether a supervisory officer is an "employer" within the meaning of the ADA Title VII and the Rehabilitation Act. However the Seventh Circuit has without discussion upheld personal liability against decision-making supervisors in at least one Title VII case. Gaddy v. Abex Corp. 884 F.2d 312 318-19 (7th Cir.1989). See also Price v. Marshall Erdman & Associates Inc. 966 F.2d 320 324 (7th Cir.1992) (upholding personal liability against a supervisory employee in an Age Discrimination in Employment Act case.)

The District Courts in the Northern District of Illinois are split on the issue of whether the ADA Title VII and the Rehabilitation Act authorize an action against an individual supervisory employee. A number of cases have held that as individual supervisory employees are not "employers" within the meaning of the ADA or Title VII such individuals cannot be sued under the ADA or Title VII in their individual capacity. Dirksen v. City of Springfield 842 F. Supp.1117 1122-23 (C.D. Ill. 1994) (Mills J.); Pelech v. Klaff-Joss LP 828 F. Supp.525 529 (N.D. Ill. 1993) (Aspen J.); Pommier v. James L. Edelstein Enterprises 816 F. Supp.476 480 (N.D. Ill. 1993) (Aspen J.); Weiss v. Coca-Cola Bottling Co. of Chicago 772 F. Supp.407 410-411 (N.D. Ill. 1991) (Duff J.).

The Pelech court reasoned that Title VII prohibits "employers" from discriminating against individuals on the basis of "race color religion sex or national origin." 828 F. Supp. at 529 citing 42 U.S.C. SEC.(s) 2000e-2(a) (b). As previously noted Title VII defines "employer" as "a person engaged in an industry affecting commerce who has 15 or more employees . . . and any agent of such person." 42 U.S.C. SEC. 2000e(b). The Pelech court recognized that the language "any agent" includes immediate supervisors as "employers" when such supervisors are delegated an employer's traditional rights such as hiring and firing. 828 F. Supp. at 529. See also Harvey v. Blake 913 F.2d 226 227 (5th Cir.1990). However both the court in Pelech and in Weiss relied on the Fifth Circuit's reasoning in Harvey that a supervisor liable as an employer's agent is really a surrogate for the employer and thus only liable in his official as opposed to his individual capacity. Pelech 828 F. Supp. at 529; Weiss 772 F. Supp. at 410-11. Suing an individual supervisory employee in his official capacity is the equivalent of suing the employer.

The notion that a supervisor liable as an employer's agent is really a surrogate for the employer and thus only liable in his official capacity is further supported by Title VII's statutory scheme. In Miller v. Maxwell's International Inc. 991 F.2d 583 (9th Cir.1993) cert. denied 114 S. Ct.1049 127 L. Ed. 2d 372 (1994). The Ninth Circuit explained that the statutory scheme of Title VII indicates that Congress did not intend to impose Title VII liability on individual employees because Congress limited Title VII liability to employers with fifteen or more employees. 991 F.2d at 587 citing 42 U.S.C. SEC.2000e(b). The Miller court noted "if Congress decided to protect small entities with limited resources from liability it is inconceivable that it intended to allow civil liability to run against individual employees." 991 F.2d at 587.

The compensatory and punitive damage caps in the Civil Rights Act of 1991 42 U.S.C. SEC. 1981a (b)(3) (Supp.1994) which are based on the size of the respondent employer further supports the conclusion that individual supervisory employees are not meant to be subject to liability under Title VII. Miller 991 F.2d at 587 n.2 citing 42 U.S.C. Sec. 1981a(b)(3).

In addition to the Fifth and Ninth Circuits the Tenth and Eleventh Circuits have also held that "the relief granted under Title VII is against the employer not individual employees whose actions would constitute a violation of the Act. . . . The 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." Busby v. City of Orlando 931 F.2d 764 772 (11th Cir.1991) (citations omitted). See also Sauers v. Salt Lake County 1 F.3d 1122 1125 (10th Cir.1993).

However other circuit courts and other courts in this district have rejected the rationale that an agent of an employer may not be held personally liable under Title VII for action taken on the employer's behalf. Paroline v. Unisys Corp. 879 F.2d 100 104 (4th Cir. 1989) vacated in part on reh'g 900 F.2d 27 (4th Cir. 1990); Jones v. Continental Corp. 789 F.2d 1225 1231 (6th Cir.1986); Raiser v. O'Shaughnessy 830 F. Supp.1134 1137 (N.D. Ill. 1993) (Moran J.); Vakharia v. Swedish Covenant Hospital 824 F. Supp.769 784-85 (N.D. Ill. 1993) (Moran J.); Strzelecki v. Schwarz Paper Co. 824 F. Supp.821 829 (ND. Ill. 1993) (Moran J.).

In Paroline the Fourth Circuit reasoned that "an individual qualifies as an employer under Title VII if he serves in a supervisory position and exercises significant control over the plaintiff's hiring firing or conditions of employment." 879 F.2d at 104. Thus the Paroline court suggested that a supervisory employee acting as the agent of his or her employer could be individually liable under Title VII.

The court in Vakharia held that the decisions in Weiss and Pommier were inconsistent with the broad remedial purposes of Title VII. 824 F. Supp. At 784-85. By way of example the Vakharia court noted that "when a manager at a company terminates an employee on account of that employee's race or age the company is liable as is the manager unless the manager's decision was mandated by company policy set by someone else." Id. The Vakharia court reasoned that Title VII has two purposes: to compensate victims of discrimination and to deter discrimination in the future. Id. at 785. Even though supervisory employees cannot provide a discrimination victim with backpay or reinstatement holding a supervisory employee individually liable furthers Title VII's goal of eradicating discrimination. Id.

Moreover while back pay and reinstatement are generally not remedies which an individual supervisory employee can provide the Civil Rights Act of 1991 allows for compensatory damages and punitive damages - remedies which are traditionally provided against individual defendants. The Vakharia court concluded that allowing individuals who make discriminatory decisions to elude punishment ensures that they will never alter their behavior and that they will subvert the broad remedial purposes of Title VII. Id. at 786.

This Court finds the rationale of the former cases prohibiting individual liability of supervisory employees under Title VII more persuasive than the rationale of the latter cases. Congress explicit limitation of the definition of "employer" to "a person engaged in an industry affecting commerce who has 15 or more employees" suggests an intent to protect those with limited resources from liability. Thus to hold "any agent" of "a person engaged in an industry affecting commerce" individually liable under Title VII would contravene Congress' intent to protect entities with limited resources from liability. It is unreasonable to think that Congress would protect small entities from the costs associated with litigating discrimination claims and limit the available compensatory and punitive damages based on the size of the respondent employer but subject an individual supervisory employee to unlimited liability. To suggest that the availability of compensatory and punitive damages under the Civil Rights Act of 1991 provides support for holding supervisory employees personally liable ignores the damage caps placed on compensatory and punitive damages which are based on the size of the respondent employer.

A supervisory employee acting as the agent of a person engaged in an industry affecting commerce is an "employer" as defined by Title VII and by the ADA. However this Court does not believe that Congress in defining "employer " meant to impose individual liability on a supervisory employee acting as the employee of the employer. Both Title VII and the ADA incorporate any agent into the definition of employer to underscore the notion that the employer is to have some derivative liability for the deliberate discriminatory acts of its designated agent employees. Vodde v. Indiana Michigan Power Co. 852 F. Supp.676 679 (N.D. Ind. 1994). Thus when a plaintiff sues such a supervisory employee it is the equivalent of suing the company because the acts of the agent in his or her official employment capacity are the acts of the company. Consequently this Court concludes that the statutory limitation on Title VII's and the ADA's definition of "employer" supports the determination that supervisory employees are not individually liable under Title VII or the ADA. The language "any agent" in Title VII's and the ADA's definition of "employer" does not undermine such a determination but rather indicates Congress' intent to have the acts of the agent in his or her official employment capacity be the equivalent of the acts of the company on whose behalf the agent acts.

Concluding that an individual supervisory employee cannot be held personally liable under Title VII the ADA or the Rehabilitation Act will not undermine the broad remedial purposes of these Acts. A company that risks liability for the discriminatory acts of its agents will police its supervisory employees and institute disciplinary measures to deter discriminatory acts. Thus the threat of termination suspension and demotion faced by supervisory employees who make discriminatory decisions prevents such employees from eluding punishment for their' discriminatory acts and encourages such employees to eventually alter their behavior thus furthering the remedial purposes of Title VII the ADA and the Rehabilitation Act. Since Defendants Robert Maeyama and John Lancaster cannot be sued in their individual capacity and suing these Defendants in their official capacity is the same as suing the Village of Park Forest Counts I through VIII of Plaintiff's Amended Complaint are dismissed as to Defendants Robert Maeyama and John Lancaster.

Retaliatory Employment Practices

Defendants assert that under Illinois law a claim for retaliatory employment practices cannot be brought against a supervisory employee because the supervisory employee is not the plaintiff's employer. Unfortunately the parties have not cited and this Court through its own research efforts cannot find an Illinois Supreme Court case addressing the issue of whether a supervisory employee can be held personally liable for retaliatory employment practices.

In Morton v. Hartigan 145 Ill. App. 3d 417 495 N.E.2d 1159 1161-62 99 Ill. Dec. 424 (Ill. App. Ct. 1st Dist. 1986) the court held that a plaintiff's supervisor was not a proper party defendant in a retaliatory discharge action because the supervisor was not the plaintiff's employer but rather the employer's agent. See also Balla v. Gambro Inc. 203 Ill. App. 3d 57 560 N.E.2d 1043 1047 148 Ill. Dec. 446 (Ill. App. Ct. 1st Dist. 1990) rev'd on other grounds 145 Ill. 2d 492 584 N.E.2d 104 164 Ill. Dec. 892 (Ill. 1991); Motsch v. Pine Roofing Co. Inc. 178 Ill. App. 3d 169 533 N.E.2d 1 6 127 Ill. Dec. 383 (Ill. App. Ct. 1st Dist. 1988). The Morton court derived support for its decision from the Illinois Supreme Court's admonition against expanding the tort of retaliatory discharge in Barr v. Kelso-Burnett Co. 106 Ill. 2d 520 478 N.E.2d 1354 88 Ill. Dec. 628 (Ill. 1985).

The Second District has declined to follow the First District's holding in Morton. See Bragado v. Cherry Electric Products Corp. 191 Ill. App. 3d 136 547 N.E.2d 643 647 138 Ill. Dec. 476 (Ill. App. Ct. 2nd Dist. 1989); Fellhauer v. City of Geneva 190 Ill. App. 3d 592 546 N.E.2d 791 796 137 Ill. Dec. 846 (Ill. App. Ct.2nd Dist.1989) rev'd on other grounds 142 Ill. 2d 495 568 N.E.2d 870 154 Ill. Dec. 649 (Ill. 1991). The Fellhauer court acknowledged the Illinois Supreme Court's admonition in Barr against the undue expansion of the tort of retaliatory discharge. Id. However the Fellhauer court noted that the Illinois Supreme Court's decision in Barr addressed the definition of what constituted a clearly mandated public policy for the purposes of defining the scope of the tort of retaliatory discharge but did not address who is a proper party defendant to a suit for retaliatory discharge. Id. The Fellhauer court noted further that under normal tort doctrine if the acts of the agent render the principal liable such acts also render the agent liable. Id. Thus the court in Fellhauer concluded that as the Illinois Supreme Court's admonition in Barr was not meant to limit traditional tort doctrine the plaintiff could name his supervisor as a defendant in a retaliatory discharge action. Id.

As this Court finds the rationale of Fellhauer more persuasive than that of Morton this Court holds that a plaintiff can name his supervisor as a defendant in a retaliatory discharge action. Accordingly this Court denies Defendant Robert Maeyama's and Defendant John Lancaster's Motion to Dismiss Count IX of Plaintiff's Amended Complaint as it applies to them.

Motion to Strike the Damages Claims in Counts I through VIII

The Civil Rights Act of 1991 42 U.S.C. SEC. 1981a (b)(3)(B) (Supp. 1994) states as follows:

The sum of the amount of compensatory damages awarded under this section for future pecuniary losses emotional pain suffering inconvenience mental anguish loss of enjoyment of life and other non pecuniary losses and the amount of punitive damages awarded under this section shall not exceed for each complaining party . . .

(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year $100 000[.]

Counts I through VII of Plaintiff's Amended Complaint request $500 000.00 in compensatory damages and $1 000 000.00 in punitive damages. Defendant asserts that as the Village of Park Forest employs fewer than 201 employees and has done so in each of 20 or more calendar weeks in 1992 and 1993 Plaintiff's request for compensatory and punitive damages cannot exceed $100 000. (Affidavit of Erica Peterson at P 4.)

Plaintiff responds that 42 U.S.C. SEC. 1981a (c) (Supp. 1994) provides that the Court shall not inform the jury of the damage caps described in SEC. 1981a (b). Thus Plaintiff argues that by striking her damage claims and forcing her to request compensatory and punitive damages in an amount not exceeding $100 000 this Court would in effect inform the jury of the damage caps outlined in SEC. 1981a (b). Plaintiff asserts and this Court agrees that to avoid violation of SEC. 1981a (c) this Court should deny Defendant's Motion to Strike and if Plaintiff subsequently receives a jury verdict in excess of the appropriate damage cap the Court should then reduce such verdict so that it meets the damage cap requirements of SEC. 1981a (b). See U.S. E.E.O.C. v. AIC Security Investigations Ltd. 823 F. Supp. 571 576 (N.D. Ill. 1993) (reducing punitive damage award to meet the requirements of 42 U.S.C. SEC. 1981a(b)(3)(C)). Accordingly Defendant's Motion to Strike the Damage Claims in Counts I through VII of Plaintiff's Amended Complaint is denied.

CONCLUSION

For the foregoing reasons Defendants' Motion to Dismiss is granted with regard to Counts I through VIII and denied with regard to Count IX. Defendant's Motion to Strike the Damage Claims in Counts I through VII of Plaintiff's Amended Complaint is denied.

ENTER:

JOHN A. NORDBERG

United States District Judge