for plaintiff before the ad hoc committee) regarding the May 7, 1988 meeting or for any other purpose.
Plaintiff seeks the depositions of Dr. Blancato, Dr. Vacanti and Dr. Wender. Defendants contend that the ASA report was a significant matter in the ultimate suspension. Plaintiff is entitled to depose Dr. Blancato. We are not persuaded that the deposition of Dr. Vacanti is needed. He may have appointed the other two to be the surveyors, but the issues here relate to Dr. Vakharia, not ASA in general. Plaintiff has already, apparently, explored general procedures in her questions to Dr. Wender at the ad hoc committee hearing, and those can be explored adequately with Dr. Blancato as well. We do, moreover, permit the deposition of Dr. Wender. Defendants contend that plaintiff deliberately failed to explore quality-of-care issues with Dr. Wender. Because she was acting pro se at the time, we think her attorney is now entitled to make that inquiry.
Five physicians comprised the ad hoc committee. One, Dr. RPogin, is an affiant, and his deposition may be taken. She may also depose two of the four others, thus giving her access to a majority of a unanimous committee. We see no reason, however, to depose counsel (Callahan and Scott), absent some compelling evidence that they influenced the result and acted other than as attorneys. Further, if, as plaintiff claims, Scott prevented her from having witnesses testify she has knowledge about that matter, she can, herself, bring it to the attention of the court, and, if the hearing officer, Hannafan, was unfair, plaintiff can point that out from the 3130 pages of transcript. Finally, we are not persuaded that the depositions of Dr. Shah, Dr. Yelda or Dr. Larson have been reasonably justified.
We are somewhat uncertain how plaintiff is proceeding. Ordinarily depositions are for the purpose of getting information from non-parties or pinning down parties. It is the rare plaintiff who expects the defendants, or those allegedly in league with them, to make the case for her when the charges are of unsavory conduct, unless plaintiff has evidence to present to the defendants that requires an admission. Here the claims are of purposeful discrimination against her, claims that plaintiff has consistently presented for a number of years. To the extent she has personal knowledge of these claims, she can present that evidence by affidavit. To the extent she has evidence from others, she can also present it by their affidavits. Even with such evidence she must still address, now or ultimately, the quality-of-care issues raised by defendants.
Defendants are now scheduled to complete production of documents by June 23, 1993. The permitted depositions should be completed within the following 60 days, or by August 23, 1993. Plaintiff shall file her responsive brief by September 23, 1993 and defendants shall file their reply brief by October 14, 1993.
Liability of Defendants in Their Individual Capacities
At a recent status conference the parties expressed some confusion about the implications of this court's March 31, 1993 order on the personal liability of some of the defendants. Apparently the order requires some elaboration.
As this court noted in its opinion of May 22, 1991, a defendant may be liable under Title VII and § 1981 even if the defendant is not the plaintiff's employer. Vakharia v. Swedish Covenant Hospital, 765 F. Supp. 461, 463 (N.D.Ill. 1991). The same is true, presumably, of defendants sued under the ADEA, though the issue has not been raised in this case. Under all three statutes, if a defendant discriminatorily impedes a person's access to employment opportunities with third parties, the defendant may be liable. That much follows from the May 22, 1991 memorandum and order. The question the parties now raise is whether such a defendant may be liable in his or her individual capacity when the defendant was acting as an agent for someone else. The answer is yes.
Under the ADEA, Title VII and § 1981, individuals may be held personally liable for civil rights violations they commit while working as agents of larger institutions, provided that their individual liability is based on individual acts distinct from institutional policy set by their superiors. When a manager at a company terminates an employee on account of that employee's race or age, the company is liable,
as is the manager, unless the manager's decision was mandated by company policy set by someone else. Thus, decisionmaking employees who discrimination the basis of age may be held liable in their individual capacities under the ADEA. See e.g., Strzelecki v. Schwarz Paper Co., 92 C 6668, slip op. (N.D.Ill. May 27, 1993); House v. Cannon Mills Co., 713 F. Supp. 159 (M.D.N.C. 1988); Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 324 (7th Cir. 1992) (discussing personal liability of decisionmaker). Decisionmaking employees also may be held liable in their individual capacities under Title VII. See Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 1180 (S.D.N.Y. 1992); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1527 (M.D.Fla. 1991); Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir. 1989) (discussing personal liability of decisionmaker); E.E.O.C. v. Vucitech, 842 F.2d 936, 942 (7th Cir. 1988) (discussing personal liability of decisionmakers). And decisionmaking employees may be held liable under § 1981. Al-Khazraji v. Saint Francis College, 784 F.2d 505, 518-19 (3rd Cir. 1986), aff'd, 481 U.S. 604, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987); Musikiwamba v. ESSI, Inc., 760 F.2d 740, 753 (7th Cir. 1985); Manuel v. International Harvester, Co., 502 F. Supp. 45, 50 (N.D.Ill. 1980).
Courts around the country seem to be in complete agreement with respect to personal liability of decisionmaking employees under § 1981. As indicated, this court believes that individual defendants should be treated the same way under the ADEA and Title VII as they are under § 1981. This court recognizes, however, that other courts have treated ADEA and Title VII defendants differently. For example, in Miller v. Maxwell's International, Inc., 61 USLW 2649 (9th Cir. 1993), the Ninth Circuit held that a supervisor could not be held personally liable under the ADEA for a discriminatory decision made on behalf of an employer corporation. In this district, Judges Duff and Aspen have reached a similar conclusion with respect to Title VII. See Weiss v. Coca-Cola Bottling Co. of Chicago, 772 F. Supp. 407, 411 (N.D. Ill. 1991); Pommier v. James L. Edelstein Enterprises, 816 F. Supp. 476, 481 (N.D.Ill. 1993). Judge Duff's opinion reflects the reasoning of the courts that have rejected personal liability of corporate agents: the only remedies available under Title VII, he points out, are remedies that "an employer, not an individual, would generally provide."
Id. While granting the premise, this court respectfully disagrees with the conclusion.
Title VII always has served two purposes: to compensate the victims of discrimination (at least with back pay, if not with full compensatory damages), and to deter discrimination in the future. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). To conclude that personal accountability of supervisory employees is unnecessary to reinstate victims or to award them their back pay is to neglect Title VII's broader goal of eradicating discrimination.
Moreover, while ordinarily personal liability is not of great consequence either to the plaintiff or to the individual defendant (and perhaps that is why the issue is seldom considered), there are cases, like Vucitech, 842 F.2d 936, in which the defendant company goes bankrupt and the plaintiff is forced to seek recovery from the supervisory employees who committed the discriminatory acts. As this court noted in Strzelecki, if the people who make discriminatory decisions do not have to pay for them, they may never alter their illegal behavior and the wrongdoers may elude punishment entirely, while the victim may receive no compensation whatsoever. That outcome is incompatible with the broad remedial purposes of the ADEA and Title VII, which were intended to provide all "necessary relief" and to ensure "complete justice." Albemarle Paper Co., 422 U.S. at 418.
Plaintiff's motion to reconsider the court's partial dismissal of count V is granted in part and denied in part. Her motion to reconsider the court's partial dismissal of count VI is denied. Her motion pursuant to Fed.R.Civ.P. 56(f) is granted in part and denied in part.
JAMES B. MORAN,
Chief Judge, U.S. District Court
June 8, 1993.