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STRAKA v. FRANCIS

October 11, 1994

GERRIE STRAKA, BONITA LUMBRAZO, and MARY KAY MCSHEFFERY, Plaintiffs,
v.
BRUCE FRANCIS, LINCOLN FRANCIS, and EXECUTIVE FLIGHT MANAGEMENT/TRANS AMERICAN CHARTER, LTD., Defendants.


MAROVICH


The opinion of the court was delivered by: GEORGE M. MAROVICH

Plaintiffs Gerrie Straka ("Straka"), Bonita Lumbrazo ("Lumbrazo"), and Mary Kay McSheffery ("McSheffery") filed this cause of action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. Sec. 2000e et seq., the Civil Rights Act of 1991, and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. ("ADEA"). Defendants in the case are Executive Flight Management/Trans American Charter, Ltd. ("Executive Flight"), and Lincoln and Bruce Francis (collectively, "the Individual Defendants"), who are pilots employed by and shareholders of Flight Management. Lincoln Francis is the President of the company and son of Bruce Francis. Plaintiffs allege that Defendants' acts of sexual harassment and age discrimination created a hostile and intolerable work environment causing Plaintiffs' resignation and constructive discharge on April 11, 1993. Defendants counter-claim that Plaintiffs' resignation caused Flight Management to lose business and they therefore seek damages in the amount of $ 350,000 and such other relief as this Court deems just and proper.

 Defendants filed a partial motion to dismiss the Individual Defendants, claiming that individual employees of an employer may not be held personally liable under Title VII or the ADEA. Defendants also filed counterclaims including: tortious interference with a contract between Executive Flight and a client, David D. Linnemeier ("Linnemeier"), Director of Aviation for Huizenga Holdings, Inc. (Count I); breach of an employment contract alleged to exist between Executive Flight and Plaintiffs (Count II); promissory estoppel (Count III); and equitable estoppel (Count IV). Plaintiffs filed a motion to dismiss Defendants' counterclaims.

 For the reasons stated below, the Court grants Defendants' partial motion to dismiss, and Plaintiffs' motion to dismiss Counts I, II, III, and IV of Defendants' counterclaims.

 BACKGROUND

 Executive Flight is an Illinois corporation that provides charter airline passenger service throughout the United States. Plaintiffs are female residents of Illinois who were hired as flight attendants in September 1992 by Executive Flight. Plaintiffs were hired to provide flight attendant services for sports teams and were assigned to work pursuant to a 1992 contract negotiated in Florida between Executive Flight and Linnemeier for the Florida Marlins ("Marlins"). The contract was to provide charter jet service for the team during the 1993 professional baseball season. According to Defendants, Plaintiffs knew the contract with Linnemeier was the company's largest, that the Marlins were their most publicly recognized client, and that they were being hired and agreed to work on flights for sports teams.

 Flight attendants for the Marlins' flights required training for a specially equipped DC-9 aircraft. Accordingly, Plaintiffs were trained between September 1992 and April of 1993. Their first flight with the Marlins occurred on April 1, 1993; it originated in Jacksonville, Florida and ended in Fort Lauderdale, Florida. On April 11, 1993, Plaintiffs were scheduled to work as attendants on a Marlins flight which was to depart Fort Lauderdale at 5:30 p.m. en route to San Francisco, California. Federal Aviation Administration ("FAA") regulations require two certified flight attendants on all flights, and the contract between Executive Flight and the Marlins included provision of three certified attendants on each flight. According to Defendants, Plaintiffs were aware of such regulations.

 At about 2:00 p.m. on April 11, 1993, Plaintiffs telephoned Executive Flight's Chicago, Illinois office to provide notice that they were resigning. At some point during that same day, Plaintiffs also telephoned the caterer scheduled to provide meal service on the Marlins flight in an attempt to cancel the order. According to Defendants, Plaintiffs were aware of a provision in the Executive Flight-Marlins contract that required meal service, and that their resignation and cancellation of the catering order would prevent or substantially impede Executive Flight in discharging its contractual responsibilities.

 Plaintiffs allege their continued employment was conditioned upon being subjected to repeated incidents of sexual harassment and age discrimination either participated in directly or condoned by the Defendant company through its officers, managers, and employees. Such incidents include alleged comments regarding Plaintiffs' physical appearance and attire, a lewd and lascivious gift from Defendant Bruce Francis to Plaintiff Lumbrazo, comments of a sexual nature regarding Lumbrazo's physical appearance and that Plaintiffs were too old to be flight attendants, suggestions that Plaintiffs should be "more friendly" with the players during flights and "not act like the players' mothers," and lewd and lascivious comments regarding sexual activity with Plaintiff Lumbrazo.

 Plaintiffs further claim the repeated acts of sexual harassment and age discrimination caused their constructive discharge from work as of April 11, 1993; and that they, therefore, at that time telephoned their notice of resignation to Flight Management in Chicago.

 DISCUSSION

 I. DEFENDANTS' PARTIAL MOTION TO DISMISS

 The Court will first address Defendants' motion to dismiss Individual Defendants Bruce and Lincoln Francis as defendants in this case. A Complaint should not be dismissed unless the court concludes beyond a doubt that plaintiffs can prove no set of facts to support their claim which would entitle them to relief. Gorski v. Troy, 929 F.2d 1183, 1186 (7th Cir. 1991); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When ruling on a motion to dismiss, the court assumes the truth of all well-pled allegations and makes all possible inferences in favor of the non-movant. Falk v. U.H.H. Home Servs. Corp., 835 F. Supp. 1078, 1079 (N.D. Ill. 1993).

 Individual Liability under Title VII and the ADEA

 The question before the Court is a narrow one: whether individual employees of an employer may be held personally liable under the ADEA or Title VII for conduct or omissions constituting sexual harassment or fostering a hostile work environment. As a general rule, this Court, a majority of the courts in this district, the Seventh Circuit, and the Supreme Court have held that individual employees, regardless of their rank or authority within the employment entity, are not personally liable for conduct or omissions constituting sexual harassment or age discrimination under Title VII or the ADEA. See e.g., Hamilton v. City of Chicago, 93 C 3342, 1993 U.S. Dist. LEXIS 17889 (N.D. Ill. Dec. 13, 1993); Pelech v. Klaff-Joss, LP, 828 F. Supp. 525, 529 (N.D. Ill. 1993); Pommier v. James L. Edelstein Enters, 816 F. Supp. 476, 480-81 (N.D. Ill. 1993); Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407, 410 (N.D. Ill. 1991); Shager v. Upjohn, 913 F.2d 398, 404 (7th Cir. 1990); Kentucky v. Graham, 473 U.S. 159, 165-67, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).

 Title VII prohibits employers from discriminating against individuals on the basis of "race, color, religion, sex or national origin." 42 U.S.C. §§ 2000e-2e(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). The ADEA limits liability ...


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