Summary
noting that Ostrach has been rejected by several courts and concluding that "an individual cannot be liable under the ADA, including an ADA retaliation claim"
Summary of this case from Barch v. Contra Costa County Health Services DeptOpinion
No. C 04-1587 CRB.
August 17, 2004
MEMORANDUM AND ORDER
Plaintiff alleges that he was wrongly terminated from his employment with Chiron Corporation. Now pending before the Court is the Rule 12(b)(6) motion of defendants Joyce Chou and Augustus Okhamafe for dismissal of plaintiff's federal claims. After carefully considering the papers filed by the parties, the Court concludes that oral argument is unnecessary, see Local Rule 7-1(b), and GRANTS defendants' motion.
I. ALLEGATIONS OF THE COMPLAINT
Cai is a 46-year-old male originally from mainland China. He has a B.S. in Chemistry, a Master's Degree in Biomedical and Clinical Science, and has over ten years experience in biomedicine. Cai worked at Chiron Corporation from October 1998 through August 2003 as a Research Associate in the Biopharmaceutical and Drug Delivery Section. Cai alleges he was the only employee in the Small Molecule Formulation RD Group from mainland China and over 40 years old.
Chiron gave Cai awards for his excellent contributions and performance in both December 1998 and April 2002. In November 2002, Cai was promoted to a Research Associate III position and received a salary increase. In December 2002, two of his research projects resulted in two technical invention patent applications. Despite these signs of success, Cai alleges that Joyce Chou, his former supervisor, gave him a poor year 2002 performance assessment, including unsubstantiated complaints about his communication skills, organization, and work quality. While other employees received a salary increase after the year 2002 assessment, Cai's salary was not increased.
In November 2002, Cai began to experience fatigue, an increased heart beat, and high blood pressure. A medical examination showed Cai suffered from a condition that could lead to cancer; he was required to take medication for his various symptoms. Cai alleges his medical condition resulted from the unsafe and toxic working environment at Chiron. Despite his various requests that the working environment be improved, this did not occur prior to his termination.
Plaintiff asserts that both Chou and Okhamafe, his former manager, indicated on various occasions that he should leave Chiron, even offering to provide good recommendations and repair his year 2002 assessment. Both Chou and Okhamafe also complained of Cai's English and communication skills. Despite completing three English training classes from January to February 2003, Chou and Okhamafe tried to force Cai to participate in another course. Cai met with Bill Wourms, the Human Resources supervisor, in March 2003 to discuss both his issues with his supervisors and his year 2002 assessment. Wourms told Cai he did not think he had problems communicating or writing.
Cai witnessed Chou tasting a drug sample in January 2002, which he reminded Chou was toxic. Despite Chou's warning not to communicate the incident to anyone, Cai reported it to Jim Thompson, the Formulation Department Director. Cai maintains that Chou and Okhamafe fraudulently represented to him that he would need to complete weekly performance reviews regarding key clinical filing process tests. The purpose of the reports was to set Cai's goals for the tests; however, Cai asserts both supervisors intended to trick him by using the reports solely to support his termination. Cai alleges Chou and Okhamafe created a hostile work environment through the use of these reports, constantly asking him to leave, and addressing his alleged communication skills.
Despite requesting a department transfer, Cai was terminated on August 11, 2003. He maintains Chou falsely alleged the grounds for his termination, including that he failed to attend communication classes and failed to follow standard operating procedure, which resulted in certain violations. Subsequent to Cai's termination, Chiron hired Patricia Fetch, a young female, and paid her salary at two levels above Cai's pre-termination level.
Cai subsequently filed this lawsuit against his former employer, Chiron Corporation, and his two former supervisors, Joyce Chou and August Okhamafe. Cai's complaint alleges the following five causes of action against all defendants: 1) age discrimination under the Age Discrimination in Employment Act ("ADEA"), 2) national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), (3) violation of the Americans with Disabilities Act of 1990 ("ADA"), 4) violation of the Equal Payment Act ("EPA"), and 5) common law unfair employment practice and retaliation.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). Under Rule 12(b)(6), a complaint should not be dismissed unless a plaintiff can prove "no set of facts in support of his claim that would entitle him to relief." Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court must take the non-moving party's factual allegations as true and must construe those allegations in the light most favorable to the non-moving party. See id. The court must also draw all reasonable inferences in favor of the non-moving party. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
If the court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
III. DISCUSSION
Defendants Chou and Okhamafe moved to dismiss plaintiff's Title VII, ADEA, ADA, and EPA claims on the grounds that these statutes do not allow individual supervisory employees to be personally liable for employment discrimination.
A. Title VII and ADEA Claims
The Ninth Circuit has held that individual supervisors cannot be personally liable under Title VII and the ADEA. See Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 589 (9th Cir. 1993);see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) ("[W]e have consistently held that Title VII does not provide a cause of action for damages against supervisors or fellow employees."). The Miller court reasoned that Title VII limits liability to employers with 15 or more employees, 42 U.S.C. section 2000e(b), and the ADEA limits liability to employers with 20 or more employees, 29 U.S.C. section 630(b), "in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims."Miller, 991 F.2d at 587. The court concluded that it is therefore "inconceivable that Congress intended to allow civil liability to run against individual employees." Id. TheMiller court also held that "because of the similarities in the Title VII and ADEA statutory schemes," the case law holding that individual defendants cannot be held liable for Title VII claims "is applicable to suits under the ADEA." 991 F.2d at 587-88.
Cai cites Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990) as providing for individual liability under Title VII. Cai misinterprets Sosa. Sosa, which was decided after Miller, addresses whether the plaintiff had exhausted his administrative remedies under Title VII; it did not examine who may be liable under Title VII.
Plaintiff also contends that individual supervisors may be liable under Title VII and the ADEA for retaliation. The Ninth Circuit has not so held, however, and plaintiff does not cite any cases permitting Title VII and ADEA claims for retaliation to proceed against supervisors in their individual capacities. No does plaintiff offer any rationale as to why Miller does not bar his Title VII and ADEA retaliation claims.
Accordingly, plaintiff's Title VII and ADEA claims against Chou and Okhamafe must be dismissed. As individual supervisory employees cannot be held liable under these statutes the dismissal is without leave to amend.
B. ADA Claim
The Ninth Circuit has never addressed whether individuals may be held liable under the ADA. The ADA, like 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. § 12111(5)(A). In United States EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995), the Seventh Circuit held that "individuals who do not independently meet the ADA's definition of `employer' cannot be held liable under the ADA." Id. at 1279. The court reasoned that the definition of "employer" in the ADA mirrored that of Title VII and the ADEA, which most circuits, including the Ninth Circuit, have held does not provide for individual liability. Id. Furthermore, the remedies Congress granted at the time it defined "employer" in the ADA were "only remedies that an employing entity, not an individual could provide." Id. at 1281; see also Sullivan v. River Valley School Dist., 197 F.3d 804, 808 n. 1 (6th Cir. 1999) (stating that there is no individual liability under the ADA).
Cai relies on the district court's opinion in Ostrach v. Regents of Univ. Cal., 957 F. Supp. 196 (E.D. Cal. 1997) for the proposition that an individual supervisor may be held liable for retaliation under the ADA even if the supervisor may not be otherwise liable under the statute. The Ostrach court concluded that Miller was wrongly decided and that "by its express language, Title VII [and, therefore the ADA claim before the court], render both an employer and its agents liable." Id. at 198. Nonetheless, because the ADA's definition of "employer" tracked that of Title VII the court acknowledged it was bound byMiller and dismissed the discrimination ADA claim. Id. at 200. However, the court went on to conclude that a "plaintiff may sue the individual defendants under the anti-retaliation provision of the ADA." Id. The court focused on the language of section 12203(a), which specifically refers to a "person," as opposed to an "entity," to conclude that individuals could be liable under the anti-retaliation provision. Id. Plaintiff urges this Court to follow Ostrach and conclude that the individuals defendants may be liable under this provision.
Section 12203, the ADA's retaliation provision, provides, in part, as follows:
(a) Retaliation: No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act. (Emphasis added).
The discrimination section, in contrast, provides that "[n]o covered entity shall discriminate against a qualified individual with a disability." 42 U.S.C. § 12112(a) (Emphasis added).
While the Ninth Circuit has not specifically ruled on this matter, the Ostrach analysis has been rejected by several courts. See e.g., Baird v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999); Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir. 1999); Van Hulle v. Pacific Telesis Corp., 124 F.Supp.2d 642, 646 (N.D. Cal. 2000); Stern v. California State Archives, 982 F. Supp. 690 (E.D. Cal 1997). The Fourth Circuit reasoned that "[t]he remedies available for a violation of the antiretaliation provision of the ADA in the employment context are set forth in 42 U.S.C. § 12117" and section 12117 "specifically makes the remedies available under Title VII applicable to actions under the ADA." Baird, 192 F.3d at 471. "Because Title VII does not authorize a remedy against individuals for violation of its provisions, and because Congress has made the remedies available in Title VII applicable to ADA actions, the ADA does not permit an action against individual defendants for retaliation for conduct protected by the ADA." Id. at 472. The Ostrach court's focus on the word "person" overlooks this structure of the ADA. See Stern, 982 F.Supp. at 694.
The Court finds the reasoning of the majority of courts persuasive and concludes that an individual cannot be liable under the ADA, including an ADA retaliation claim. Plaintiff's ADA claim against the individual defendants must therefore be dismissed without leave to amend.
C. EPA Claim
Plaintiff's opposition does not dispute dismissal of the EPA claim. See Opposition at 6 ("Because a plaintiff may maintain an action against an individual supervisor for retaliation under the ADA and Title VII," the motion should be denied.) (Emphasis added).
IV. CONCLUSION
Defendants Chou and Okhamafe's motion to dismiss plaintiff's Title VII, ADEA, ADA and EPA claims pursuant to Rule 12(b)(6) is GRANTED without leave to amend. Plaintiff may still amend his complaint to pursue state law claims.
IT IS SO ORDERED.