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PELECH v. KLAFF-JOSS

June 23, 1993

JUDITH A. PELECH, Plaintiff,
v.
KLAFF-JOSS, LP; ROBERT DAVIS, an individual; CRESCENT CLEANING COMPANY, a Delaware corporation; HARRY FINKEL, an individual; SAFEGUARD SECURITY, INC., an Illinois corporation; and STEVEN ROWLEY, an individual, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Judith Pelech brings this seven-count sexual discrimination and retaliatory discharge action against her erstwhile employers, Klaff-Joss, LP ("Klaff-Joss"), Crescent Cleaning Co. ("Crescent"), and Safeguard Security Intelligence Co., Inc. ("Safeguard"), along with several individual employees and officers of the three companies. Counts I through IV arise under Title VII of the Civil Rights Act of 1965, 42 U.S.C. § 2000e et seq. ("Title VII"), and Counts V through VII include the state law claims of defamation, intentional infliction of emotional distress, and interference with a business expectancy. Presently before us is defendants' joint motion for partial summary judgment and to strike. For the following reasons, we grant in part and deny in part defendants' joint motion for summary judgement and to strike, and deny plaintiff's motion to strike.

 I. Factual Background

 For the purposes of this motion, the facts of this case are as follows: *fn1"

 Beginning in May, 1987, Pelech was employed by Aegis Security Company ("Aegis") as a part-time security guard for the building located at 111 West Jackson Street in Chicago. Klaff-Joss owned the building, and Crescent, under contract to Klaff-Joss, provided cleaning services. In November, 1987, Aegis promoted Pelech to full-time security supervisor for the building.

 Between August, 1988 and June, 1991, Pelech, while still employed by Aegis as a security supervisor, temporarily filled in for the position of elevator starter to cover the holiday and vacation absences of the permanent elevator starter. During this time, Pelech adequately performed both jobs.

 In June, 1991, Pelech learned that the permanent elevator starter was retiring, leaving his position open. Armed with this news, Pelech informed Finkel, the chairman of Crescent, and Davis, the building manager at 111 West Jackson Street, that she wished to be considered for the position. Although Pelech had substituted for the elevator starter for close to three years, she was not interviewed for the job, and in July, 1991, Finkel and Davis decided to hire a man.

 When Pelech confronted Davis to ask him why she was not considered for the opening, he informed her that she was "not qualified, and was not the person they were looking for. Unsatisfied with this explanation, Pelech telephoned her union representative to complain that she had been denied consideration for the position because of her gender. In addition to calling her union representative in front of management personnel, Pelech openly advertised her conviction that she had been denied the elevator starter position because she was a woman.

 In September, 1991, Safeguard Security, Inc. ("Safeguard") assumed Aegis' security contract at 111 West Jackson. Shortly thereafter, Finkel, Davis, and Rowley, the president of Safeguard, summoned Pelech into a meeting and allegedly informed her that unless she "smiled more," she would lose her job. In October, 1991, Rowley fired her from her position as security supervisor and dismissed her from Safeguard.

 On March 16, 1992, Pelech filed charges of gender discrimination and retaliation against Klaff-Joss, Davis, Crescent, Finkel, Safeguard, and Rowley with the Equal Employment Opportunity Commission ("EEOC"). On October 6, 1992, the EEOC issued a "right to sue" letter. Although the charges Pelech submitted to the EEOC named the individual defendants (Davis, Finkel, and Rowley), the EEOC, pursuant to a policy which has bred much provoking litigation, eliminated the individual defendants from the charge and did not name them in the right to sue letter. Consequently, the EEOC did not invite any of the individual defendants to engage in conciliation proceedings designed to promote voluntary compliance. The parties do not agree on whether Davis, Finkel, and Rowley were ever notified that they were personally under investigation for possible Title VII violations.

 II. Discussion *fn2"

 A. Dismissal of Individual Defendants from Counts I, II, III, and IV (Title VII Claims)

 The individual defendants seek summary judgment in their favor on the Title VII claims on the grounds that they were not named in the underlying EEOC charge, as required under Title VII. Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991). While the parties agree that an unnamed party may be sued where that party has received adequate notice of the charge and is afforded the opportunity to participate in any conciliation efforts, Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989), they disagree about whether the individual defendants here received such notice.

 Recently, we addressed the exact issue presented here. In Pommier v. James L. Edelstein Enterprises, 816 F. Supp. 476 (N.D. Ill. 1993), defendants, whose names had been excluded from the right to sue letter by the EEOC, sought to dismiss the Title VII action against them. Rather than reaching the question of whether the defendants had received adequate notice, we concluded that supervisors could not be held personally liable for alleged Title VII violations. 816 F. Supp. at 481.

 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). An employer, in turn, is "a person engaged in 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 person . . . ." Id. § 2000e(b). Although the Seventh Circuit has yet to rule on whether given supervisors or officers are "employers" within the meaning of Title VII, both this Court and one of the two other courts in this district to address the question have concluded that individual supervisors are not "employers" who can be sued under Title VII in their individual capacity. Id; Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407, 410-11 (N.D. Ill. 1991) (court reasoned that a supervisor liable as an employer's agent is really only a surrogate for the employer and is thus only liable in his official, as opposed to individual, capacity). Along with the Weiss court, we observed that this result is bolstered by the fact that the remedies available under Title VII (prior to the 1991 amendment) are remedies which an employer, not an individual, would generally provide -- i.e., back pay, reinstatement and other equitable relief if warranted." Id., citing Weiss, 772 F. Supp. at 411. Although the individual defendants charged in this case include a chairman, president, and building manager, even these high-level officers and employees are "agents" rather than "employers" within the meaning of Title VII. That is, despite the authority these defendants may wield within their organizations, they merely act on behalf of a larger employing company. For example, even though Rowley might sign any backpay check made out to Pelech, the check itself would be issued by Safeguard, the actual employer. Additionally, as the Ninth Circuit noted in Miller v. Maxwell's International Inc., No. 90-16286 (9th Cir. April 19, 1993), "if Congress decided to protect small entities with limited resources from liability, it is inconceivable that it intended to allow civil liability to run against individual employees." Because we continue to find this line of reasoning persuasive, we respectfully disagree with Judge Moran's recent conclusion, in Vakharia v. Swedish Covenant Hospital, Slip Op. 90 C 6548 (N.D. Ill. June 8, 1993), that a plaintiff may bring Title VII claims against an employee in his individual capacity. In keeping with Pommier and Weiss, we grant summary judgment in favor of Davis, Finkel, and Rowley on the Title VII claims contained in Counts I through IV of Pelech's complaint See also Miller v. Maxwell's Int'l. Inc., No. 90-16286 (9th Cir. April 19, 1993) (individual employees may not be held liable for damages under Title VII); Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990) (employees may only be held liable in their official capacities under Title VII).

 B. Preemption of Counts II and III by the National Labor Relations Act *fn3"

 Defendants argue that Counts II and III are preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 et seq., under the so-called Garmon doctrine. In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1969), the Supreme Court confronted the question of whether courts could entertain state law claims implicating rights protected by the NLRA. Fearful of conflict between state and federal regulatory schemes, the Court ruled that

 
when an activity is arguably subject to § 7 or § 8 of the [NLRA], 29 U.S.C. §§ 157, 158, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference is to be averted.

 3 L. Ed. 2d at 780. Defendants contend that Counts II and III, setting forth Title VII claims of retaliatory discharge and ongoing retaliation, are nothing more than artfully drafted assertions of activity covered ...


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