medical care and counseling, and avoid overtime work.
Complaint, pp. 4-5. In Count I of his Complaint, Griffith
seeks compensatory and punitive damages from Defendant
Keystone. Id., pp. 1-6. In Count II, he asks for compensatory
and punitive damages from Defendant Cutting. Id., pp. 6-11. In
Counts III through VI, Griffith seeks compensatory and punitive
damages from Defendants Langley, Scoby, Jay, and Eberly
respectively. Id., pp. 11-30.
Defendant Keystone filed a Motion to Dismiss the Complaint
(# 17). Defendant Cutting filed a Motion to Dismiss Count II
of the Complaint (# 23). Defendants Langley, Scoby, Jay, and
Eberly filed a Motion to Dismiss Counts III through VI of the
Complaint (# 21). Magistrate Judge Kauffman recommended that
the Defendants' Motions to Dismiss be denied.
"A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The factual allegations
of the complaint are to be construed in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232,
235-37, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).*fn1
Keystone moves to dismiss Griffith's Complaint for lack of
subject matter jurisdiction because the terms of the CBA
between Keystone and the union provide the grievance procedure
and arbitration as the appropriate remedy. As authority for
this proposition, Keystone cited Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)
and a series of cases following the Supreme Court's decision in
This Court agrees with Magistrate Judge Kauffman that
Gilmer does not apply to the facts of this case. Unlike the
plaintiff in Gilmer, Griffith did not sign an individual
agreement to arbitrate. He is only bound by the union's CBA. He
is not suing to enforce contractual rights, which would be
covered by the CBA, but rather his statutory rights under Title
In Alexander v. Gardner-Denver Co., 415 U.S. 36, 38-40, 94
S.Ct. 1011, 1015, 39 L.Ed.2d 147 (1974), the arbitration clause
in question was part of a CBA and the plaintiff was suing under
the equal employment provisions of Title VII. The Court held
that contractual and statutory rights are "distinctly separate"
and, therefore, Title VII rights cannot be waived under the
contractual provisions of a CBA. Alexander, 415 U.S. at 49-52,
94 S.Ct. at 1020-21. See also, Barrentine v. Arkansas-Best
Freight System, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641
(1981) and McDonald v. City of West Branch, 466 U.S. 284, 104
S.Ct. 1799, 80 L.Ed.2d 302 (1984).
This Court agrees with the Magistrate that the facts of this
case fall more squarely under the
Alexander/Barrentine/McDonald line of precedent, which
recognize Griffith's right to pursue his statutory rights
outside of the arbitration process established by the CBA.
Accordingly, Keystone's Motion to Dismiss will not be granted
under this theory.
In the alternative, Keystone argues that Griffith's
Complaint should be dismissed because the Complaint contains
allegations of quid pro quo sexual harassment while the EEOC
charge did not. Thus, Keystone contends that Griffith has
failed to satisfy the condition precedent of submitting a
corresponding charge to the EEOC prior to filing his Complaint
In general, a Title VII plaintiff cannot bring claims in a
lawsuit that were not brought in his EEOC charge. Taylor v.
Western-Southern Life Ins. Co., 966 F.2d 1188, 1194 (7th Cir.
1992). Although a plaintiff
"must file a timely charge with the EEOC encompassing the acts
complained of as a prerequisite to filing suit in federal
court," the Seventh Circuit has held that this requirement
should not be interpreted technically to interfere with Title
VII's broad remedial purpose and underlying policy attempting
to rectify a long history of discrimination. Babrocky v. Jewel
Food Co. & Retail Meatcutters, 773 F.2d 857, 863 (7th Cir.
1985). Exact correspondence between the EEOC charge and the
subsequent Complaint is not required, because the EEOC charge
only contains factual statements, "which may implicate several
different types of illegal discrimination." Id. at 865-66.
Thus, in a Title VII suit, the complaint may properly encompass
any discrimination that is like or reasonably related to the
allegations in the EEOC charge. O'Rourke v. Continental
Casualty Co.,983 F.2d 94, 97 (7th Cir. 1993).
In this case, Griffith's EEOC charge stated facts relating
to repeated acts of alleged sexual harassment against him
during the course of his employment with Keystone. Griffith's
Complaint contains these same factual assertions and alleges
sexual harassment in violation of his Title VII rights. In
both documents, Griffith presents an identical set of facts
and alleges that the conduct constitutes sexual harassment.
Therefore, this Court finds that the allegations in Griffith's
Complaint are reasonably related to his EEOC charge and agrees
with Magistrate Judge Kauffman that there is no fatal variance
between the two documents. Accordingly, Keystone's Motion to
Dismiss must also be denied under this theory.
The individual defendants also move to dismiss Counts II
through VI of the Complaint on the theory that they are low
level supervisors, which do not constitute "employers" under
42 U.S.C. § 2000e(b), and therefore cannot be held liable in
their personal capacities. The Defendants' Motions to Dismiss
rely on Miller v. Maxwell's International, Inc., 991 F.2d 583
(9th Cir. 1993), which held that individual supervisors are not
liable for damages under either Title VII or the ADEA.
The Seventh Circuit has not addressed the issue of whether
an individual supervisor can be held personally liable for
sexual harassment in the workplace. There is a split of
opinion among the circuits on this issue. In addition to the
Ninth Circuit in Miller, the Fifth and Eleventh Circuits have
also held that the statutory scheme of Title VII does not allow
personal liability for employees. See Grant v. Lone Star Co.,
21 F.3d 649, 653 (5th Cir. 1994); Busby v. City of Orlando,
931 F.2d 764, 772 (11th Cir. 1991). However, the Fourth and Sixth
Circuits have allowed individual liability to be imposed
against supervisors for violations of Title VII. See Paroline
v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), aff'd in
pertinent part, 900 F.2d 27 (4th Cir. 1990); Jones v.
Continental Corp., 789 F.2d 1225, 1231 (6th Cir. 1986).
Although the Defendants correctly note that the Seventh Circuit
ADEA cases cited by the Magistrate do not specifically address
the questions raised in a case under Title VII, these cases
provide the best indication of how the Seventh Circuit would
decide the issue in light of the substantial similarity between
the liability schemes of Title VII and ADEA.
The plain language of both the ADEA, 29 U.S.C. § 630(b), and
Title VII, 42 U.S.C. § 2000e(b), define an employer to include
a person acting as the agent of the employer. The statute does
not limit the liability of the agent to only his official
capacity. Furthermore, the 1991 Amendments to the Civil Rights
Act expanded the available remedies to include compensatory
damages and punitive damages, which can be imposed against
individual defendants. Cases holding that the agents of an
employer may not be held personally liable under Title VII are
"inconsistent with the broad remedial purposes of the statute."
Raiser v. O'Shaughnessy, 830 F. Supp. 1134, 1137 (N.D.Ill.
Title VII 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
calendar year, and any agent of such a person . . .
42 U.S.C. § 2000e(b). (Emphasis added).
Under the terms of the statute, an employer is prohibited from
discriminating against any