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TYSON v. CIGNA CORP.

February 26, 1996

CHARLES T. TYSON and CAROLYN L. TYSON, h/w
v.
CIGNA CORPORATION, INA FINANCIAL CORP., INSURANCE CO. OF NORTH AMERICA, GERALD A. ISOM, RICHARD C. FRANKLIN, J.R. CARON, MIKE F. NATAN, STEVEN E. CURD, BRYAN H. NOLAN, BOBBIE D. ADAMS, KEVIN H. DARK, BERNARD MCALLISTER, MICHAEL GALLAGHER, JOSEPH C. ALLEGRA



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Defendants move to dismiss plaintiff's claims of racial discrimination under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), on the grounds that the statute does not permit lawsuits against employees in their individual capacities. We hold that the NJLAD: (1) does not impose liability on non-supervisory employees, and (2) imposes liability on supervisory employees only to the extent that the supervisory employee affirmatively engages in discriminatory conduct while acting in the scope of employment. A supervisory employee's omissions, acquiescence, passivity or other failure to act will not support a claim under the NJLAD. We will therefore grant the defendants' motion to dismiss plaintiff's NJLAD claims against his co-workers. Because there has been no allegation that plaintiff's supervisors affirmatively engaged in acts of discrimination, we will also grant the defendants' motion to dismiss the NJLAD claims against these defendants.

 I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

 Plaintiff, an African-American, was an employee in the CIGNA Systems division of the Insurance Company of North America ("INA"). Plaintiff alleges that he was racially harassed on the following occasions. In 1981 and 1982, plaintiff alleges that he was harassed by defendant Gallagher. *fn1" Complaint P 12A. In September 1987, plaintiff alleges that he was harassed at a company picnic by defendant Allegra. Complaint P 12B. In August 1991, at another company picnic, defendant McAllister allegedly racially harassed plaintiff. On September 8, 1994, plaintiff viewed an allegedly demeaning sketch that was sent by fax from an unknown party in another company office. Complaint P 12D. On September 9, 1994, defendants McAllister, Gallagher and Allegra allegedly racially harassed plaintiff at another company picnic. Complaint P 14.

 Defendant Isom is the Chairman and CEO of INA. Defendant Franklin is the President of INA. Defendant Caron is the President of the CIGNA Systems Division of INA. Defendant Natan is the Senior Vice president of the CIGNA Systems Division of INA. Defendant Curd is the Vice President of the CIGNA Systems Division of INA. According to the Complaint at P 10, defendants Nolan, Adams and Dark are "directors and supervisors of defendants CIGNA Corporation, and/or INA, with the responsibility of implementing the policies and programs of said defendant corporations prohibiting the racial or ethnic harassment, discrimination or intimidation of corporate employees." Defendants McAllister, Gallagher and Allegra are Tyson's co-workers. Complaint PP 7-11.

 Defendants move to dismiss the Title VII and NJLAD claims as to all defendants other than INA on the grounds that no named defendant other than INA can be held liable under Title VII or the NJLAD because the other defendants are not "employers" or otherwise individually liable. Defendants do not move to dismiss claims five, six, seven or eight, and we do not address these claims.

 II. STANDARD OF REVIEW

 Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept the allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Although the court must assume as true all facts alleged, "it is not. . . proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526, 74 L. Ed. 2d 723, 103 S. Ct. 897 (1983) Finally, when "confronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).

 III. DISCUSSION

 A. Title VII & Individual Defendants

 The defendants move for the dismissal of all Title VII claims against the individual defendants on the grounds that Title VII will not support individual liability against employees. This Court has previously held that an employee may be individually liable under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII as an "employer." Bishop v. Okidata, 864 F. Supp. 416 (D.N.J. 1994) (Irenas, J.). Our conclusion was based on the statutory definition of an employer as "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); Id. at 422. We held that individual liability was premised on the "any agent" language of the above statute.

 However, the Third Circuit has recently ruled that employees may not be held individually liable under Title VII. Sheridan v. E.I. Dupont de Nemours and Co, and Jacques Amblard, 74 F.3d 1439 (1996) (slip op. at 22) (affirming district court's dismissal of Title VII claims against individual supervisory employee and holding that "an employee cannot be sued"). Plaintiff conceded at oral argument that Sheridan dictates the dismissal of the Title VII claims ...


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