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dismissing ADEA action against employer's agents because individual supervisors cannot be held personally liable under that statute
Summary of this case from Anderson v. Derby Board of EducationOpinion
Civil No. 3:01cv458 (AVC)
April 11, 2002
RULING ON THE DEFENDANTS' MOTION TO DISMISS
This is an action for damages, equitable and injunctive relief alleging wrongful termination of employment based upon national origin and age discrimination. It is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq.; and the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a-58 and 46a-60 et. seq. The plaintiff, Mario A. Javier, seeks a declaratory judgment reinstating him to the position he held before he was terminated and/or compensatory and punitive damages from his former employer, the defendant, Beiersdorf, Inc., and six other named individual defendants who were all employees of Beiersdorf, Inc. at the time of the plaintiff's termination.
The defendants have filed the within motion to dismiss arguing that: 1) with respect to the defendants, Chip Esposito. Rosemary Barvenik and David Fiore, the complaint fails to state a claim upon which relief can be granted and; 2) as to the defendant, Beiersdorf, Inc., the CFEPA claims fail for lack of subject matter jurisdiction.
The issues presented are: 1) whether a cause of action alleging acts by individuals who are acting within the scope of their employment for others gives rise to personal liability against them under Title VII and the ADEA, and; 2) whether Javier exhausted all of his administrative remedies as required by Conn. Gen. Stat. § 46a-100 to the end that the court has subject matter jurisdiction over the plaintiff's CFEPA claims.
Conn. Gen. Stat. § 46a-100 provides in relevant part: "[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities . . . and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . . ."
For the reasons that hereafter follow, the court concludes that: 1) an employer's agents are not subject to individual liability under Title VII and the ADEA, and; 2) the court does not have jurisdiction where the plaintiff fails to exhaust his administrative remedies. The motion to dismiss is therefore granted.
FACTS
Examination of the amended complaint, the answer to the amended complaint, the defendants' motion to dismiss, the plaintiff's motion in opposition to defendants' motion to dismiss, and memorandums in support of each discloses the following relevant facts:
The plaintiff, Mario A. Javier, is a 46-year old man originally from the Philippines with a degree in chemistry and some prior experience in that field.
On or about December 10, 1999, Javier began working in a full-time, permanent capacity as a quality assurance chemist for Beiersdorf, Inc. after working the previous month and a half for the company as a temporary employee. Upon accepting the position, Javier alleges that the defendant, David Fiore, assured him that his job was secure and that he would "be fired only if" he "committed a really big costly mistake." Javier also alleges that at that time the defendant, Alex Krewics, mentioned that the defendant and Javier's immediate supervisor, Joanne Carson, had concerns about hiring someone older than herself. The defendants deny both of these assertions.
On his first day of work, Javier alleges that two of his coworkers told him: "You cannot just come to this country and do what you want." According to Javier, he informed Carson of the situation, but she did nothing to rectify it and instead "sided [with the two coworkers]."
The complaint further alleges that "[o]n several instances [three coworkers, including the defendant, Rosemary Barvenik] destructively interfered with [his] work" by "displacing samples, displacing result sheets and tossing out samples without [his] knowledge." He claims to have verbally informed Carson of those instances "but no action was done."
On or about December 16, 1999, a co-worker informed Javier that he would have to be retrained. Javier alleges that he was "discriminatingly treated" when he asked for a syllabus of the training so that he could prepare in advance and did not receive anything in response to his request.
On or about December 22, 1999, another named defendant, Chip Esposito, counseled Javier about his attitude and work performance. Javier alleges that Esposito told him he was "unfriendly," that he should not "write remarks on the compounding sheet[s]," and that "you got [sic] a language problem."
On or about December 27, 1999, one Mary Garfield retrained Javier. When he asked Garfield to sign his notes, she refused and told him that she would take the notes to be typed and return them to him that afternoon. On or about January 4, 2000, Garfield gave Javier typed notes of the training that he claims were not his. He got his original notes back several days later.
Javier alleges that during the first week of January his supervisor "persistently asked about [his] age." "Because of her persistence," Javier informed his supervisor that he was 45 years old. The defendants deny that Javier was ever asked about his age.
On or about January 13, 2000, Javier alleges that he met with Esposito, who informed Javier that his "employment [was] being terminated for unsatisfactory job performance." One Vincent Mauriello, then Beiersdorf, Inc.'s vice president of human resources, met with Javier and gave him a "pink slip." Javier alleges that the reason for termination indicated on the slip was "other." Security personnel then escorted Javier off the premises.
Javier alleges that Beiersdorf, Inc. replaced him with a younger, female worker who was also formerly a temporary employee. The defendants deny this assertion.
On or about June 19, 2000, Javier filed an administrative charge with the Connecticut Commission on Humans Rights and Opportunities ("CHRO").
On or about December 18, 2000, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a "Dismissal and Notice of Rights" that included the following determination:
Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.
The dismissal also included a "Notice of Suit Rights" that stated: "[t]his will be your only notice of dismissal and of your right to sue [under Title VII or the ADEA]. . . You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court . . . ." The dismissal specifically noted that "[t]he time limit for filing suit based on a state claim may be different."
On or about February 7, 2001, Javier filed comments with the CHRO to be considered in conjunction with the EEOC's investigative report, as permitted under Conn. Gen. Stat. § 46a-83(d).
Conn. Gen. Stat. § 46a-83(d) provides, in relevant part: "Before issuing a finding of reasonable cause or no reasonable cause, the investigator shall afford each party and his representative an opportunity to provide written or oral comments on all evidence in the commission's file . . . ."
On or about March 13, 2001, the CHRO issued a final notice entitled "Notice of Final Agency Action — No Reasonable Cause Determination — Substantial Weight Review." The CHRO "examined the investigative record promulgated by the EEOC . . . together with any and all proof worthy evidence in the Commission's case file . . . viewed in a light most favorable to Complainant" to determine "that there [was] `No Reasonable Cause' to credit Complainant's complaint of discrimination." The notice advised the complainant to "apply for reconsideration of the disposition" or "appeal this disposition to the Superior Court of the State of Connecticut."
On March 21, 2001, Javier filed the within complaint in this matter.
STANDARD
When ruling on a motion to dismiss under Rule 12(b)(1) or Rule 12(b) (6), the court must accept all well pleaded factual allegations as true and must draw all reasonable inferences in favor of the plaintiff. See Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir. 2001); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). A court may dismiss such a complaint only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). This requirement "compels even more vigilance with respect to civil rights violations where the plaintiff is pro se."Easton v. Dundram, 947 F.2d 1011, 1015 (2d Cir. 1991). Thus, the court may consider statements contained in the plaintiff's opposition to the motion to dismiss. See Lucas v. New York City, 842 F. Supp. 101, 104 (S.D.N.Y. 1994).
Where a plaintiff proceeds pro se, a court must liberally construe his supporting papers and "interpret [them] to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (1) must be granted if a plaintiff has failed to establish subject matter jurisdiction. Golden Hill Paugussett Tribe of Indians v. Weicker, 839 F. Supp. 130, 136 (D. Conn. 1993). Federal courts "are empowered to hear only those cases that (1) are within the judicial power of the United States, as defined by the constitution, and (2) that have been entrusted to them by a jurisdictional grant by Congress." 13 C. Wright A. Miller, Federal Practice and Procedure § 3522 (1984).
DISCUSSION
The defendants Esposito, Barvenik and Fiore first argue that the complaint fails to state a cause of action upon which relief can be granted. Specifically, Esposito, Barvenik and Fiore contend that the complaint makes no claims against Esposito, Barvenik and Fiore in their individual capacities and, furthermore, that no facts giving rise to any such claims were pled in the amended complaint. To the contrary, the defendants argue that Javier alleges in the amended complaint that any and all of the acts or omissions attributable to the named individual defendants were "undertaken within the scope of [their] authority as . . . employee[s] of defendant [Beiersdorf] in behalf of and in the interest of [their] employer."
In the alternative, the defendants argue with respect to Esposito, Barvenik and Fiore that Javier's Title VII and ADEA claims are legally insufficient because individual agents of an employer are not subject to liability under Title VII. Specifically, Esposito, Barvenik and Fiore note the unambiguous and conclusive law in this and other circuits that denies individual liability to employer's agents under Title VII.
Javier responds by asserting that he did raise valid claims against the individual defendants in his amended complaint, although he does not specify whether he is suing them in their individual or official capacities. In response to Esposito, Barvenik and Fiore's argument regarding the plaintiff's Title VI claims, Javier notes the circuit split regarding the imposition of individual liability under Title VII and argues that individual liability may be imposed on a company official who has authority over hiring and firing.
The Second Circuit in Tomka v. Seiler Corp. 66 F.3d 1295, 1313-17 (2d Cir. 1995) resolved the split in this circuit over whether an employer's agent may be held individually liable under Title VII. Noting that Title VII specifically limited liability to employer-entities with fifteen or more employees, the court in Tomka reasoned that "[i]t [is] `inconceivable' that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees." Tomka, 66 F.3d at 1314 (quoting Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993), cert. denied, 510 U.S. 1109 (1994)).
42 U.S.C. § 2000e(b) defines "employer" in relevant part as: "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of that person."
Looking to Title VII's remedial nature, the court also noted that
[w]hile it might be argued that a supervisory employee with the power to hire, fire or discipline a plaintiff should be treated as an "employer" because the supervisor has the power to reinstate and correct employment records . . . this interpretation would require a court to differentiate between supervisors with the power to hire and fire from supervisors without these powers. Because Title VII speaks only of "agents," there is no basis in the statute for this distinction.Tomka, 66 F.3d at 1314-15 (internal citations omitted). Accordingly, the court held "that an employer's agent may not be held individually liable under Title VII." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).
Although "[t]he Second Circuit has not yet addressed . . . the specific issue [of] whether a plaintiff may assert a Title VII claim against an individual supervisor in his or her official capacity[,] . . . [c]ourts in this District . . . have rejected such claims." Miner v. Town of Cheshire, 126 F. Supp.2d 184, 200 (D. Conn. 2000). The plaintiff inMiner, like the plaintiff in the instant case, did not make any distinction between official and individual capacity in her amended complaint. Following the decision in Tomka, the court in Miner found that the plaintiff could assert a Title VII claim only against her employer and not her individual supervisor. Miner, 126 F. Supp.2d at 200.
Similarly, in McBride v. Routh, 51 F. Supp.2d 153, 156-57 (D. Conn. 1999), the court reviewed decisions from this circuit discussing the official and individual capacity distinction and found that "Tomka and the language of Title VII compel a holding that only employer-entities have liability under Title VII. Thus, . . . [a] plaintiff may not assert a Title VII claim against [the individual defendant] in her individual or official capacity." This court has asserted more forcefully in dicta that "[it] does not join in the questionable utilization of the official/individual capacity analysis." Schaffer v. Ames Dep't Stores, Inc., 889 F. Supp. 41, 46 n. 10 (D. Conn. 1995). Thus, "an employee's response to co-employees' discrimination . . . is to file an action against the employer." Schaffer, 889 F. Supp. at 46.
Tomka's reasoning has been applied to ADEA cases as well. The Second Circuit has held that an individual supervisor cannot be held personally liable under the ADEA, noting that because "[t]he statutory definition of `employer' in the ADEA mirrors the definition in Title VII . . . our analysis of claims raised under one of these statutes has generally been informed by the other." Martin v. Chemical Bank, 129 F.3d 114 (table), 1997 U.S.App. LEXIS 32022 *8-9 (2d Cir. 1997). See also EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-80 (7th Cir. 1995) (noting that ADA, Title VII and ADEA are very similar and that "courts routinely apply arguments regarding individual liability to all three statutes interchangeably."); Boise v. Bouffard, 127 F. Supp.2d 467, 472 (S.D.N.Y. 2001).
29 U.S.C. § 630(b) provides in relevant part: "[t]he term `employer' means a person engaged in an industry affecting commerce who has twenty or more employees. . . . The term also means (1) any agent of such person . . . ." Compare with 42 U.S.C. § 2000e(b) that defines "employer" in relevant part as: "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of that person."
Because the Second Circuit's decision in Tomka and the application of its reasoning to ADEA cases makes it clear that employer's agents are not subject to personal liability under Title VII and the ADEA, the plaintiff's Title VII and ADEA claims against Esposito, Barvenik and Fiore are dismissed.
The defendants next argue that Javier's claims under Connecticut General Statute § 46a-60 must be dismissed against Beiersdorf, Inc. for lack of subject matter jurisdiction. Specifically, Beiersdorf, Inc. argues that the current action is improper because Javier failed to exhaust his administrative remedy by requesting a reconsideration of the CHRO's decision or appealing that decision to the Superior Court.
Javier argues in response that he did request a release from jurisdiction. Specifically, Javier contends that he included such a request in the comments he sent to the CHRO before the commission's final determination that stated in relevant part: "And should . . . the commission finds [sic] it impossible to solve this problem before the statute of limitation to file a civil suit in the [federal] court runs out, it is thereafter requested that the commission issue complainant release of jurisdiction so complainant could proceed to file a civil suit in the federal court, before the statute of limitation expires." Javier argues in the alternative that he was not required to exhaust his administrative remedies because the CHRO cannot provide all of his requested relief.
The "[f]ailure to exhaust administrative remedies permits a court to dismiss the action because no subject matter jurisdiction exists. . . This is especially true where Congress has designed an extensive administrative procedure to protect the interests of potential plaintiffs." DiLaura v. Power Auth., 982 F.2d 73, 79 (2d Cir. 1992). "[F]ailure to follow administrative procedures in pursuing a claim of discrimination forecloses access to judicial relief" Garcia v. St. Mary's Hosp., 46 F. Supp.2d 140, 142 (2d Cir. 1999).
Connecticut General Statute § 46a-100 provides in relevant part: "[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities . . . and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business . . . ." Connecticut General Statute § 46a-101 provides in relevant part: "[n]o action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section."
The CHRO's notice of final agency action specifically directed the complainant to request a reconsideration of the agency's decision or appeal the agency's action to the superior court. Javier failed to request reconsideration of the CHRO's decision and did not appeal the commission's finding of "no reasonable cause" to the superior court after receipt of the notice. Instead, he filed the within action against his former employer and coworkers. "[S]ubject matter jurisdiction does not exist where a plaintiff has not obtained a release from the CHRO and has, therefore, failed to comply with the clear and unambiguous statutory prerequisite embodied in C.G.S.A. § 46a-101." White v. Martin, 23 F. Supp.2d 203, 206 (D. Conn. 1998) aff'd 1999 U.S. App. LEXIS 25061 (2d Cir. 1999) (citing Catalano v. Bedford Assoc., 9 F. Supp.2d 133, 135 (D. Conn. 1998)).
Connecticut General Statute § 46a-101(b) provides in relevant part: "[t]he complainant . . . may . . . request that [he] receive a release from the commission at any time from the date of filing the complaint . . . ." However, section 46a-101(c) provides in relevant part: "[t]he commission may defer acting on a request for a release for thirty days if the executive director of the commission . . . certifies that he has reason to believe that the complaint may be resolved within that period."
Javier did include a request for release from jurisdiction in the comments he submitted on February 7, 2001 to the CHRO to be considered in conjunction with the EEOC's evidence. However, on March 13, 2001, the CHRO issued its final agency notice thereby effectively denying Javier's request for release from jurisdiction. Therefore, Javier was required to pursue the statutory remedies specifically provided for by Conn. Gen. Stat. § 46a-100 and 46a-101 following the CHRO's decision.
Furthermore, this court has held that the dismissal of an administrative charge by the CHRO does not relieve the plaintiff of obtaining the required release. "The plain language of the CFEPA requires a plaintiff to file a complaint and obtain a release from the CHRO to bring an original action for discrimination in a judicial forum."Catalano v. Bedford Assoc., 9 F. Supp.2d 133, 135 (D. Conn. 1998) (emphasis in original). The court in Catalano found that a plaintiff's right to sue letter issued by the EEOC did "not exhaust the administrative remedies in Title 46a of the [Connecticut] General Statutes." Catalano, 9 F. Supp.2d at 135, n. 1. The court in the instant case concludes that Javier's right to sue letter issued by the EEOC does not constitute a waiver to the requirement under Conn. Gen. Stat. § 46a-100 that a complainant obtain a release from the commission before bringing an original action for discrimination.
This court has held "that a plaintiff must pursue his claim through the CHRO if the CHRO can provide some, even if not all, of the requested relief. . . The exhaustion requirement would be meaningless if a plaintiff could avoid the statutorily prescribed process by seeking a remedy unavailable through the CHRO." Catalano v. Bedford Assoc., 9 F. Supp.2d at 135; see also White v. Martin, 23 F. Supp.2d at 206. The court concludes that because the CHRO could provide "some, even if not all, of the requested relief" in the instant case, Javier's failure to exhaust his administrative remedies requires the dismissal of the plaintiff's CFEPA claims.
CONCLUSION
For the reasons stated herein, the motion of the defendants to dismiss the plaintiff's complaint (document no. 15) is GRANTED.