BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE
Plaintiff Jerelynn Bertoncini, former Deputy Village Clerk and payroll clerk of the Village of Round Lake Beach ("the Village"), has filed a three-count complaint against various Village officials. In Count I she alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against Mayor Carl Schrimpf, Treasurer Donna Langel, and Trustees John Thomas, Walter Antczak and Richard Maston. In Count II she alleges a conspiracy by these defendants to violate her equal protection rights under 42 U.S.C. § 1985(3). In Count III she alleges libel per se against Mayor Schrimpf. The defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the motion to dismiss is granted in part and denied in part.
The allegations of the complaint are straightforward, and are taken as true for the purposes of this motion. Plaintiff began working for the Village on May 18, 1981. At some point prior to December, 1986, Mayor Schrimpf made unsolicited sexual advances to her. She rebuffed them, and in December 1986 the mayor's sexual advances ceased.
His harassment, however, did not. Instead, from December 1986 until plaintiff resigned the mayor and defendant Langel sought to embarrass, discredit and punish plaintiff for her refusal to engage in sexual relations with the mayor. The three defendant trustees knew of these activities, but took no action to prevent them. On March 18, 1988, while still employed with the Village, plaintiff filed a charge of sexual discrimination with the Illinois Department of Human Rights ("the IDHR") and the Equal Employment Opportunity Commission ("the EEOC") against the Village, alleging that Mayor Schrimpf and an unidentified Village employee had taken action against her for having rejected the mayor's sexual advances.
On May 18, 1988, Diane Kuyper, a reporter with the Waukegan News Sun, reported that plaintiff had resigned her positions with the Village earlier in the month. In the article, Kuyper also reported statements Mayor Schrimpf had made to the Village Board regarding "irregularities" in connection with plaintiff's work as payroll clerk, irregularities which had been discovered during an independent audit of the Village payroll.
On August 10, Kuyper reported that the IDHR charge had been dismissed. In the article, Kuyper also quoted and paraphrased statements made by Mayor Schrimpf (apparently to Kuyper) that the Village was "still investigating additional offenses involving Bertoncini." Two days later, the mayor held a press conference in which he repeated that the discrimination charge against him had been dismissed, and then stated that some procedural irregularities on plaintiff's part were still being investigated. These statements were subsequently reported in the Round Lake News.
Plaintiff later withdrew her EEOC charge and received a right to sue letter from the EEOC giving her the right to file a judicial proceeding within 90 days. She filed this action within 90 days of receiving the letter.
The defendants assert a number of grounds for the dismissal of Count I, some applicable to all defendants and others pertaining to particular defendants. The court will address them in turn.
The defendants first argue that the Title VII claim is time-barred because plaintiff did not file her EEOC charge until March 1988, 15 months after Mayor Schrimpf's alleged sexual advances ended in December 1986, and thus well beyond the 180-day limitations period for bringing a charge. See 42 U.S.C. § 2000e-5(e). This argument misconstrues the nature of her Title VII claim.
Plaintiff does not predicate her claim on Mayor Schrimpf's sexual advances. She does not state that these activities offended her, nor does she assert that the sexual advances caused her to quit. Instead, plaintiff alleges here, as she did in her EEOC charges, that the wrongdoing against her lies in the defendants' conduct after plaintiff rebuffed Mayor Schrimpf, and that this conduct continued through the time that she filed her charge with the EEOC.
Contrary to the defendants' assertions, then, the complaint does not establish that plaintiff must have known of the basis of her claim in December, 1986. It may be that plaintiff was not bothered at all by the mayor's sexual advances, and that things became unbearable for her only when the mayor and Langel engaged in their alleged efforts to embarrass, discredit and punish her for her rejection of the mayor. See Horn v. Duke Homes Division of Windsor Mobile Homes, 755 F.2d 599 (7th Cir. 1985). If so, then plaintiff can hardly be expected to have filed a charge with the EEOC before she discovered the discriminatory campaign against her. And the defendants, who allegedly participated in this continuing violation of plaintiff's rights, cannot rely on the statute of limitations as a defense to plaintiff's claims. See Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 606 (7th Cir. 1984).
Perhaps recognizing that allegations of a continuing campaign of harrassment would get plaintiff through the statute of limitations door, the defendants argue that the complaint here does not adequately plead such activity. This argument borders on frivolous.
Paragraph 8 of the complaint states:
That from December, 1986, until her resignation in May, 1988, and subsequent to Plaintiff rebuffing the sexual advances of the Defendant Carl Schrimpf, the Defendants, Carl Schrimpf with the aid of Defendant Donna Langel, did engage in conduct intended to embarrass, discredit and punish the Plaintiff for her refusal to accept Defendant Schrimpf's sexual advances.
The defendants complain that this paragraph does not specify what conduct took place, and does not contain any facts showing a nexus between this conduct and Mayor Schrimpf's alleged sexual advances. It need not. Rule 8(a)(2) requires pleadings to contain a "short and plain statement of the claim showing that the pleader is entitled to relief," which is precisely what paragraph 8 does. Plaintiff therefore has stated a timely claim for sexual harassment continuing through May, 1988.
Langel and the trustees ("the unnamed defendants") next argue that the claims against them should be dismissed because plaintiff failed to name them in her charge to the EEOC. They note that, with certain exceptions, a party not named in an EEOC charge may not be sued under Title VII. Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890 (7th Cir. 1981). They argue that they do not fall within any of the recognized exceptions to this rule. As it turns out, the court need not reach this argument.
Title VII prohibits employers from discriminating against individuals on the basis of "race, color, religion, sex or national origin." 42 U.S.C. §§ 2000e-2(a), (b). The statute defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year, and any agent of such a person. . . ." 42 U.S.C. § 2000e(b) (emphasis added). A person is "one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers." 42 U.S.C. § 2000e(a).
There is no question that the Village is both a person and an employer under the statute, and therefore a proper defendant here. But plaintiff has not named the Village as a defendant; instead, she has named only Village officials. If by doing so she seeks to hold these defendants personally liable for violating Title VII, she may have a problem.
The Seventh Circuit has never addressed the question of whether individuals who are officers or officials of Title VII employers are themselves subject to personal liability under Title VII. See Huebschen v. Department of Health and Social Services, 716 F.2d 1167 (7th Cir. 1983) (defendant not subject to Title VII liability where parties agreed that he was not an employer under the statute). Numerous other courts have faced this issue, but they have split on the answer.
The courts holding that a plaintiff may bring suit against individual defendants have noted that, although Title VII provides for actions only against employers, its definition of employers includes persons who employ more than 15 people, and agents of such employers. They have thus held that individuals who participate in a Title VII violation may be held personally liable for this wrongdoing along with their employers if the individuals are supervisory or management level officers -- i.e., agents of the employer for the purposes of personnel decisions. Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986); Tafoya v. Adams, 612 F. Supp. 1097 (D.C. Colo. 1985), aff'd, 816 F.2d 555 (10th Cir. 1987); Anderson v. Phelps, 655 F. Supp. 560 (M.D. La. 1985); Ditch v. Board of County Commissioners of County of Shawnee, 650 F. Supp. 1245, 1251 (D. Kan. 1986); Acampora v. Boise Cascade Corp., 635 F. Supp. 66 (D.N.J. 1986); Ponton v. Newport News School Board, 632 F. Supp. 1056, 1068 (E.D. Va. 1986); Thompson v. International Association of Machinists, 580 F. Supp. 662 (D.D.C. 1984); Jeter v. Boswell, 554 F. Supp. 946, 952-53 (N.D. W.Va. 1983); Guyette v. Stauffer Chemical Company, 518 F. Supp. 521, 525-26 (D.N.J. 1981); see also Romain v. Kurek, 772 F.2d 281 (6th Cir. 1985); Hendrix v. Fleming Companies, 650 F. Supp. 301, 303 (W.D. Okla. 1986) (individual defendants guilty of misfeasance, as opposed to nonfeasance, are personally liable under Title VII; but individuals who merely allow activity to occur are not); Feng v. Sandrik, 636 F. Supp. 77 (N.D. Ill. 1986).
Courts holding that individuals are not subject to personal liability have focused on the fact that only equitable relief is available for Title VII violations. Section 2000e-5(g) provides that when a court finds a violation of Title VII it may "order such affirmative actions as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court may deem appropriate." Since reinstatement is obviously available only from the employer-entity, and even back pay would seem to be something that the entity would generally provide, these courts have read Title VII as precluding actions against individuals (unless, of course, the employer is a sole proprietorship or a partnership, in which case the individual is the employer). See Williams v. City of Montgomery, 742 F.2d 586, 589 (11th Cir. 1984); Clanton v. Orleans Parish School Board, 649 F.2d 1084 (5th Cir. 1981); Williams v. Hevi-Duty Electric Co., 668 F. Supp. 1062, 1070 (M.D. Tenn. 1986) (supervisor cannot be personally liable under Title VII because the "employer guilty of a violation of Title VII is the one against whom affirmative relief, including back pay, may be adjudged"), rev'd on other grounds, 819 F.2d 620 (6th Cir. 1987); Bradley v. Consolidated Edison Company of New York, Inc., 657 F. Supp. 197, 207 (S.D.N.Y. 1987).
This court, however, need not resolve at this juncture the potential personal liability of individuals who work for an employer-entity. In Suarez v. Illinois Valley Community College, 688 F. Supp. 376 (N.D. Ill. 1988), this court explained that although the official/individual capacity distinction is most often employed in cases arising under 42 U.S.C. § 1983, it is applicable as well in the Title VII context. Id. at 379-80; see also Bradley v. Consolidated Edison Company of New York, Inc., 657 F. Supp. at 207 (Title VII plaintiff can sue supervisors in their representative capacities). Thus, when a plaintiff brings a Title VII suit against an individual in his official capacity, her suit is against the entity for which the individual works. Monell v. New York City Department of Social Services, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981).
Because pleadings are often ambiguous as to whether an official issued in his official or individual capacity, see Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988), cert. denied, 488 U.S. 856, 109 S. Ct. 147, 102 L. Ed. 2d 118 (1988), the Seventh Circuit has created a rebuttable presumption that a suit against an official is an official capacity suit, Kolar v. City of Sangamon, 756 F.2d 564, 568 (7th Cir. 1985), and therefore seeks recovery only from the entity. Here, this presumption controls. The heading of the complaint includes the names of the defendants along with their positions in Village government. Furthermore, the fact that plaintiff named the Village in her EEOC charge, but then did not include it in her complaint, strongly suggests that she seeks liability against the Village through the individual defendants. See Volk v. Coler, 845 F.2d 1422, 1436 (7th Cir. 1988) (employer is strictly liable for sexual harassment by supervisory personnel). Thus, the court finds that plaintiff has sued the defendants in their official capacities, and accordingly that the only real defendant in this case is the Village.
Given this construction of the complaint, the court need not decide whether the defendants could be held personally liable for the alleged Title VII violations. Nor need the court determine whether plaintiff's EEOC charge sufficed to permit plaintiff to sue the unnamed defendants in their individual capacities. The charge named the Village, and the complaint seeks to impose liability on the Village. There is therefore no reason to dismiss any of the defendants from the Title VII claim on the grounds that they were not named in the EEOC charge.
Count II alleges that the defendants conspired to violate plaintiff's right to the equal protection of the laws, and seeks recovery against them under 42 U.S.C. § 1985(3). Section 1985(3) provides, in relevant part:
If two or more persons in any state or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
The defendants argue that this claim must be dismissed because plaintiff has alleged only that the defendants discriminated against her because she rejected the mayor's sexual advances, not that they discriminated against her because she was a woman. According to the defendants, the allegations therefore allege only individual mistreatment, not the sort of class-based animus outlawed by the Equal Protection Clause. They rely for this argument on the Seventh Circuit's opinion in Huebschen v. Department of Health and Social Services, 716 F.2d 1167 (7th Cir. 1983).
In Huebschen, the Court held that a male employee had not established sexual discrimination by a female supervisor. The employee and the supervisor had been involved in a romantic relationship, but when the relationship turned sour, the supervisor reacted with a vengeance. The Court determined that the supervisor's conduct demonstrated an animus toward her former lover, not an animus to men:
The proper classification, if there is one at all, was the group of persons with whom [defendant] had or sought to have an affair. It was this group, of which [plaintiff] may have been the only one, that [defendant] sought to disadvantage. As unfair as [defendant's] treatment of [plaintiff] may have been, we are simply not persuaded that the Equal Protection Clause should protect such a class.