The opinion of the court was delivered by: JOHN A. NORDBERG
Before the Court is Defendant Robert Maeyama's and Defendant John Lancaster's Motion to Dismiss Counts I through IX of Plaintiff Pamela Haltek's Amended Complaint and Defendant Village of Park Forest's Motion to Strike Plaintiff's claim for damages in Counts I through VII.
Plaintiff's Amended Complaint contains ten counts. Counts I through III allege that the Defendants violated the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111 - 12117. Counts IV through VI state a claim for violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Counts VII and VIII assert that Defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e - 2000e-17, as amended by the Civil Rights Act of 1990, 42 U.S.C. § 1981a (Supp. 1994). Finally, Count IX states a claim for retaliatory employment practices.
Defendants request this Court to dismiss Counts I through IX of Plaintiff's Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), because individual supervisory employees are not "employers" within the meaning of the ADA, the Rehabilitation Act of 1973 and Title VII, and thus they are not subject to liability under these Acts. Similarly, Defendants assert that under Illinois law, a claim for retaliatory employment practices cannot be brought against a defendant who is not the plaintiff's employer.
Defendant Robert Maeyama was, at the relevant time, the Chief of Police of the Village of Park Forest and Defendant John Lancaster was, at the relevant time, Captain of the Police Department of the Village of Park Forest. (Amended Complaint at P 5.) Both individual Defendants served as Plaintiff's supervisor. Id.
Americans With Disabilities Act, Title VII and the Rehabilitation Act of 1973
The issue which this Court confronts is whether supervisory employees are "employers," and thus may be held individually liable for discrimination under the ADA, Title VII and the Rehabilitation Act. The ADA defines "employer" as
a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.
42 U.S.C. § 12111(5)(A). The ADA's definition of employer mirrors the definition in Title VII, 42 U.S.C. § 2000e(b). Moreover, Section 504(d) of the Rehabilitation Act states, "the standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)." 29 U.S.C. § 794(d). Thus, in an employment discrimination case, such as the instant one, the ADA's definition of "employer" is applicable to the three counts in Plaintiff's Amended Complaint which state a claim under the Rehabilitation Act.
The Seventh Circuit has not directly addressed whether a supervisory officer is an "employer" within the meaning of the ADA, Title VII and the Rehabilitation Act. However, the Seventh Circuit has, without discussion, upheld personal liability against decision-making supervisors in at least one Title VII case. Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir. 1989). See also Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 324 (7th Cir. 1992) (upholding personal liability against a supervisory employee in an Age Discrimination in Employment Act case.)
The District Courts in the Northern District of Illinois are split on the issue of whether the ADA, Title VII and the Rehabilitation Act authorize an action against an individual supervisory employee. A number of cases have held that, as individual supervisory employees are not "employers" within the meaning of the ADA or Title VII, such individuals cannot be sued under the ADA or Title VII in their individual capacity. Dirksen v. City of Springfield, 842 F. Supp. 1117, 1122-23 (C.D. Ill. 1994) (Mills J.); Pelech v. Klaff-Joss, LP, 828 F. Supp. 525, 529 (N.D. Ill. 1993) (Aspen J.); Pommier v. James L. Edelstein Enterprises, 816 F. Supp. 476, 480 (N.D. Ill. 1993) (Aspen J.); Weiss v. Coca-Cola Bottling Co. of Chicago, 772 F. Supp. 407, 410-411 (N.D. Ill. 1991) (Duff J.).
The Pelech court reasoned that Title VII prohibits "employers" from discriminating against individuals on the basis of "race, color, religion, sex or national origin." 828 F. Supp. at 529 citing 42 U.S.C. §§ 2000e-2(a), (b). As previously noted, 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. § 2000e(b). The Pelech court recognized that the language "any agent" includes immediate supervisors as "employers" when such supervisors are delegated an employer's traditional rights, such as hiring and firing. 828 F. Supp. at 529. See also Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990). However, both the court in Pelech and in Weiss relied on the Fifth Circuit's reasoning in Harvey that a supervisor liable as an employer's agent is really a surrogate for the employer, and thus only liable in his official, as opposed to his individual, capacity. Pelech, 828 F. Supp. at 529; Weiss, 772 F. Supp. at 410-11. Suing an individual supervisory employee in his official capacity is the equivalent of suing the employer.
The notion that a supervisor liable as an employer's agent is really a surrogate for the employer and thus only liable in his official capacity is further supported by Title VII's statutory scheme. In Miller v. Maxwell's International, Inc., 991 F.2d 583 (9th Cir. 1993), cert. denied, 114 S. Ct. 1049, 127 L. Ed. 2d 372 (1994). The Ninth Circuit explained that the statutory scheme of Title VII indicates that Congress did not intend to impose Title VII liability on individual employees because Congress limited Title VII liability to employers with fifteen or more employees. 991 F.2d at 587, citing 42 U.S.C. § 2000e(b). The Miller court noted, "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." 991 F.2d at 587.
The compensatory and punitive damage caps in the Civil Rights Act of 1991, 42 U.S.C. § 1981a (b)(3) (Supp. 1994), which are based on the size of the respondent employer, further supports the conclusion that individual supervisory employees are not meant to be subject to liability under ...