occurred before July 26, 1992, must be dismissed.
Any claims arising under Section 1981a before that date must also be dismissed. Section 1981a merely provides a remedy for intentional violations of the ADA, and does not create any substantive rights. See Raya, 829 F. Supp. at 1171-72 ("the ADA is the substantive law creating rights and duties; [Section 1981a] merely amends the ADA and provides the remedies.").
Bishop points out that she may, at trial, be entitled to admit pre-ADA instances of discrimination as evidence of defendants' discriminatory intent. See Hazelwood School Dist. v. United States, 433 U.S. 299, 309 n.15, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977). The admissibility vel non of this conduct as evidence is not, however, relevant to whether, under the ADA, Bishop may recover damages for discriminatory acts that occurred before July 26, 1992. Landgraf, Rivers, and Miller v. Florida instruct that she may not.
B. Plaintiff's Claims Against the Individual Defendants
Bishop has also brought claims under the ADA against Boyd and Kocher both "individually" and in their "official" capacities. (Complaint PP 4-5). Boyd and Kocher contend that (1) the ADA does not contemplate suits against supervisory employees of private employers in their "individual" capacities, and (2) these claims are barred because Bishop failed to exhaust her administrative remedies with the Equal Employment Opportunity Commission ("EEOC").
1. "Individual" and "Official" Capacity
Bishop purports to sue Boyd and Kocher in both their "individual" and "official" capacities. In response, Boyd and Kocher argue that a supervisory employee of a private employer may not be held liable in his "individual," as distinguished from his "official," capacity. We fail to see any distinction between these two roles.
Only "employers" may be liable under the ADA. 42 U.S.C. § 12112(a). An "employer" includes "a person engaged in industry affecting commerce who has fifteen or more employees . . . and any agent of such person." 42 U.S.C. § 12111(5)(A).
Generally, an individual with supervisory authority is considered an "agent" of an employer. See Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246, 1251 (E.D. Pa. 1994).
The ADA, Title VII, and the Age Discrimination in Employment Act ("ADEA") all contain similar definitions of "employer."
While the Third Circuit has not addressed the distinction between "individual" and "official" capacities in suits under these statutes, other circuits have held that supervisory employees of public employers may only be sued in their official capacity. See Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). See also Verde v. City of Philadelphia, 862 F. Supp. 1329, 1994 WL 510363, at *3 (E.D. Pa. Aug. 25, 1994). A suit against a supervisory employee in her official capacity is a suit against the individual in name only; it operates in all respects as a suit against the employer. Sauers, 1 F.3d at 1125.
More recently, several courts, including two district courts within this circuit, have held that these statutes do not allow suits against supervisory employees of a private employer in their individual capacity. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir. 1994); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir. 1993); Crawford v. West Jersey Health Systems, 847 F. Supp. 1232, 1237 (D.N.J. 1994); Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1256-57 (M.D. Pa. 1994). In Miller, the most often cited of these cases, the Ninth Circuit found that the term "agent" in the definition of "employer" merely incorporated respondeat superior liability into the statute. Miller, 991 F.2d at 587. The court reached this conclusion because: (1) before the addition of Section 1981a in 1991, these statutes only allowed relief such as back pay and reinstatement, which one would normally seek only from an employer;
and (2) it was incongruous to allow liability to run against individuals while exempting employers with less than the required number of employees. Id.
Some district courts, however, have allowed plaintiffs to pursue actions against supervisory employees of private employers in their "individual" capacities. See Griffith v. Keystone Steel & Wire Co., 858 F. Supp. 802, 1994 WL 392558 (C.D. Ill. July 22, 1994), Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769 (N.D. Ill. 1993); Bridges v. Eastman Kodak Co., 800 F. Supp. 1172 (S.D.N.Y. 1992). These courts have noted that, under 42 U.S.C. § 1981, decisionmaking employees of private employers who take discriminatory actions outside of the scope of the employer's institutional policies may be individually liable. Vakharia, 842 F. Supp. at 784. Furthermore, these courts note that one of the main reasons for not allowing individual liability under these statutes, the nature of the relief available, has been abrogated by the availability of compensatory and punitive damages under Section 1981a. Bridges, 800 F. Supp. at 1180.
A final group of courts has abandoned the "individual""official" dichotomy in these cases. See Hanshaw v. Delaware Technical & Community College, 405 F. Supp. 292, 296 (D. Del. 1975); Kelly v. Richland School Dist., 463 F. Supp. 216, 218 (D.S.C. 1978); Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246 (E.D. Pa. 1994). Most recently, in Shapiro, Judge Gawthrop stated that this distinction was "without a basis in the law." 852 F. Supp. at 1253. The distinction was borrowed from cases decided under 42 U.S.C. § 1983, he noted, which requires that one act "under color of state law," a requirement inapplicable under Title VII or the ADA. Id. Because supervisory employees are clearly "agents of an employer" and thus "employers" under the statute, they may be sued as any other employer. Id.
We agree with Judge Gawthrop's conclusion. The current confusion surrounding "individual" or "official" liability under Title VII results in large part from confusing the issue with the doctrine of qualified immunity of public officials under Section 1983. See, e.g., Harvey, 913 F.2d at 228 ("Only when a public official is working in an official capacity can that official be said to be an 'agent' of the government") (emphasis added). Furthermore, we find the one circuit court decision addressing this issue unpersuasive. In Grant, the Fifth Circuit noted that while supervisory employees fell within the statutory definition of "persons" liable under Section 1983, qualified immunity protected them from individual liability. Although qualified immunity does not apply in Title VII cases, the court further stated, supervisory employees nonetheless are not liable because they do not fall within the statutory definition of "employer." See Grant, 21 F.3d at 651-52.
The plain language of the ADA, however, indicates that "agents" of those who employ more than 15 workers are "employers" and thus liable under the statute. Supervisory employees are clearly "agents," and thus the distinction between "individual" and "official" liability should be abandoned in ADA cases.
Although this approach allows individual liability while exempting companies that employ less than 15 workers, we find that the policies underlying the protection of small employers are much different than those underlying individual liability. Small employers are exempted from the ADA because of the undue burden compliance would put on their financial condition.
Individuals, however, have always been liable for torts committed in the workplace, including indemnification of their employer where the plaintiff proceeds directly against the employer under the theory of respondeat superior. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 51, at 341 (5th ed. 1984). See also Griffith, 858 F. Supp. 802, 1994 WL 392558, at *4 ("'Principal and agent can be joined in one action for a wrong resulting from the tortious conduct of the agent . . . and a judgment can be rendered against each.'") (quoting Restatement (Second) of Agency § 359(c)(1) (1957)). Indeed, the traditional theory was that only the employee, and not the employer, was liable for intentional torts such as those contemplated by Section 1981a. Prosser and Keeton on Torts § 70, at 505.
Thus, the court sees no inconsistency in imposing individual liability on supervisory employees of large employers while exempting small employers and their agents.
2. Exhaustion of Administrative Remedies
Because the court has found that Bishop may proceed directly against Boyd and Kocher, we must now decide whether Bishop is precluded from bringing her claim for failure to exhaust available EEOC remedies. Those proceeding with employment discrimination claims under the ADA must follow the administrative procedures set forth in Title VII, 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117. Section 2000e-5 requires an aggrieved party to file, within 180 days of the alleged discriminatory practice, a charge with the EEOC and receive a "right to sue" letter before bringing an action against "the respondent named in the charge." 42 U.S.C. § 2000e-5. Although this procedure is not jurisdictional, a party must exhaust these administrative remedies before suing in federal court. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982).
In this case, Bishop filed a charge on August 25, 1993, naming Okidata as the sole respondent. EEOC Charge # 170931708 (Plaintiff's Brief at Ex. "A.").
The charge did not name Boyd and Kocher as respondents, however, and did not mention them in the accompanying statement of facts. Boyd and Kocher contend that because they were not "respondents named in the charge," Bishop has not exhausted her administrative remedies against them.
The purpose of requiring resort to EEOC procedures before bringing a private suit is twofold: to give notice to the charged party and to promote voluntary compliance without litigation. Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977). In Glus, the Third Circuit stated that in determining whether a plaintiff who failed to name a defendant as a party in an EEOC charge could nonetheless bring a private suit against that party, a district court should consider:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained by the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party's 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 its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 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.