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JENDUSA v. CANCER TREATMENT CTRS. OF AMERICA

November 2, 1994

JOSEPH D. JENDUSA, Plaintiff,
v.
CANCER TREATMENT CENTERS OF AMERICA, INC. and MIDWESTERN REGIONAL MEDICAL CENTER, INC. and RICHARD STEPHENSON


Castillo


The opinion of the court was delivered by: RUBEN CASTILLO

Plaintiff Joseph Jendusa ("Jendusa") sues defendants Cancer Treatment Centers, of America Inc. ("CTCA"), Midwestern Regional Medical Center, Inc. ("Midwestern"), and Richard Stephenson ("Stephenson") (collectively "defendants)", alleging that defendants terminated his employment at CTCA and Midwestern on the basis of his disability in violation of the Americans With Disabilities Act ("ADA"). 42 U.S.C. § 12101 et seq. CTCA and Midwestern have answered the complaint. Pursuant to Rule 12(b)(6), Stephenson moves to have the complaint against him dismissed, contending that liability under the ADA may attach only to a "covered entity" (i.e., an employer, employment agency, labor organization, or joint labor-management committee) and that he may not be held personally liable under the ADA.

 BACKGROUND

 Jendusa's complaint alleges the following well-pleaded facts which are taken as true on a motion to dismiss. See Canedy v. Boardman, 16 F.3d 183, 187 (7th Cir. 1994). Jendusa was employed by Midwestern and CTCA for over three years. Compl. P 9. CTCA is in the business of managing acute inpatient health care facilities. Id. P 5. Midwestern provides acute health care. Id. P 6. Stephenson is Chairman of the Board and principal owner of CTCA and Midwestern. Id. P 7. At the time of his termination, Jendusa was employed in the position of Vice President of Human Resources. Compl. P 9.

 In mid-March, 1993, Jendusa informed Robert Mayo, then President of CTCA, that he had multiple sclerosis. Id. P 10. Thereafter, Jendusa informed Stephenson and R. Richard Wieland, President of CTCA's corporate parent, that he had multiple sclerosis and requested that the company accommodate his disability by temporarily reducing his work week to 40 hours. Id. Two days later, Jendusa was terminated. Id. The company recruited a new Director of Human Resources to take over his duties, and Jendusa was not considered for the position. Id. Stephenson participated directly in Jendusa's termination. Id. P 7.

 DISCUSSION

 The ADA prohibits employers from discriminating, with respect to employment, against any qualified individual with a disability on the basis of that disability. See 42 U.S.C. §§ 12111 (2), 12112(a). The ADA defines an employer as: "a person engaged in an industry affecting commerce who has [25] *fn1" or more employees . . . and any agent of such person." 42 U.S.C. § 12111(5)(A). *fn2" The question presented by defendant's motion is whether the ADA's "and any agent" language permits a finding of personal liability against such agents.

 The Seventh Circuit has not directly addressed the issue of whether supervisors, managers, or other decisionmaking personnel may be held personally liable under Title VII, the ADEA, or the ADA. *fn3" In the absence of any clear guidance by the Court of Appeals, a split has developed with respect to this issue among the courts of the Northern District of Illinois. Compare Haltek v. Village of Park Forest, F. Supp. , 1994 WL 529335 *4 (N.D. Ill. Sept. 27, 1994) (Nordberg, J.) (concluding that supervisory employees are not individually liable under Title VII or the ADA); Russell v. NMB Technologies, Inc., 1994 WL 376277 *6 (N.D. Ill. July 15, 1994) (Kocoras, J.) (holding that there is no individual liability under Title VII); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1405 (N.D. Ill. 1994) (Alesia, J.) (holding that a supervisor cannot be held personally liable under Title VII, ADA, or ADEA); Carlson v. Northwestern Univ., 1994 WL 130763 *2 (N.D. Ill. Apr. 14, 1994) (Norgle J.) (supervisor not liable); Dellert v. Total Vision, Inc., 1994 WL 262219 *1 (N.D. Ill. June 13, 1994) (Aspen J.) (president and part-owner of defendant employer not subject to personal liability; Jaskowski v. Rodman & Renshaw, Inc., 842 F. Supp. 1094, 1098 (N.D. Ill. 1994) (Aspen, J.) (Title VII does not permit suits against individuals); Pelech v. Klaff-Joss,LP, 828 F. Supp. 525, 529 (N.D. Ill. 1993) (Aspen, J.) (employer's agents not subject to individual liability); Pommier v. James L. Edelstein Enters., 816 F. Supp. 476, 480-81 (N.D. Ill. 1993) (Aspen, J.) (concluding that supervisors could not be held personally liable under Title VII or ADA); Mobley v. Kelly Kean Nissan, Inc., F. Supp. , 1993 WL 740252 *4 (N.D. Ill. Sept. 8, 1993) (Aspen, J.) (holding that supervisors are not employers against whom Title VII actions may be maintained); Hamilton v. City of Chicago, 1993 WL 535351 *3 (N.D. Ill. Dec. 17, 1993) (Marovich, J.) (Title VII action may not be maintained against supervisors in their individual capacities); Finley v. Rodman & Renshaw, Inc., 1993 U.S. Dist. LEXIS 17308, 63 Fair Empl. Prac. Cas. (BNA) 916, 1993 WL 512608 *1-*2 (N. D. Ill. Dec. 8, 1993) (Lienenweber, J.) (individual defendants cannot be held personally liable under Title VII); Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407, 410-11 (N.D. Ill. 1991) (Duff, J.) (Supervisors are only surrogates for employer and therefore are not personally liable under Title VII); with Cassano v. Desoto, Inc., F. Supp. , 1994 WL 419761 *2-*3 (N.D. Ill. 1994 (Shadur, J.) (upholding the prospect of individual liability under Title VII) *fn4" ; Raiser v. O'Shaughnessy, 830 F. Supp. 1134, 1137 (N.D. Ill. 1993). (Moran, C.J.) (recognizing personal liability under Title VII); Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769, 784-86 (N.D. Ill. 1993) (Moran, C.J.) (recognizing personal liability against decisionmaking employees under Title VII); Strzelecki v. Schwarz Paper Co., 824 F. Supp. 821, 829 (N.D. Ill.) (Moran, C.J.) (recognizing possibility of personal liability of president and principal shareholder in ADEA action); Deluca v. Winer Indus., Inc., 857 F. Supp. 606, 607 (N.D. Ill. 1994) (Conlon, J.) (recognizing personal liability claims against supervisor under Title VII and ADA); Janopoulos v. Harvey L. Walner & Assocs., Ltd., 835 F. Supp. 459, 461 (N.D. Ill. 1993) (Conlon, J.) (recognizing personal liability under Title VII and ADA where the individual defendant was essentially the employer); Ruich v. Ruff, Weidenaar & Reidy, Ltd., 837 F. Supp. 881, 883-84 (N.D. Ill. 1993) (Conlon, J.) (same Title VII); Koenig v. Board of Educ., 1993 WL 532472 *2 (N.D. Ill. Dec. 21, 1993) (Holderman, J.) (noting that the Seventh Circuit has let an ADEA damage award against an individual defendant stand, and concluding that individuals may be personally liable under ADEA); Marshall v. Chicago Housing, Auth., 1991 WL 66069 *2 (N.D. Ill. Apr. 22, 1991) (Hart, J.) (recognizing liability of agents under Title VII); Bobkoski v. Board of Educ., 1991 U.S. Dist. LEXIS 1090 *12 (N.D. Ill. Jan. 30, 1991) (Kocoras, J.) (ADEA permits individuals to be sued in individual capacity); EEOC v. AIC Security Investigations, Ltd., 1993 WL 427454 *6-*9 (N.D. Ill. Oct. 21, 1993) (Guzman, Mag. J.) (finding individual liability under ADA); Kennedy v. Fritsch, 1993 U.S. Dist. LEXIS 2458 *12-*13 (N.D. Ill. 1993) (Lefkow, Mag. J.) (employer's agents may be sued under Title VII); see also Taylor v. Abbott Labs., 1993 U.S. Dist. LEXIS 17661 (N.D. Ill. 1993) (Bobrick, Mag. J.) (dicta). *fn5"

  In addition to this split within the courts of the Northern District, there is a split among the courts of appeal that have considered the issue with the Fifth, Ninth, Tenth, and Eleventh Circuits holding that individual liability may not be imposed against supervisory or management personnel under Title VII or the ADA, see Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir. 1994), petition for cert. filed Aug. 25 1994; Miller v. Maxwell's Int'l, 991 F.2d 583, 587-88 (9th Cir. 1993), cert. denied, 114 S. Ct. 1049 (1994); Sims v. KCA Inc., 1994 U.S. App. LEXIS 15065 (10th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991), and the Fourth and Sixth Circuits holding that individual liability may be imposed. See Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), vacated in part on rehearing on other grounds, 900 F.2d 27 (4th Cir. 1990); Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir. 1990); but see Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 65 Fair. Empl. Prac. Cas. 669, 671-72 & n.1 (4th Cir. 1994) (distinguishing Paroline and holding that actions against decisionmakers may not be maintained under ADEA).

 As the number of divergent opinions cited above reveals, the question of personal liability under these federal antidiscrimination statutes does not readily admit of any easy answers. The arguments on both sides of the issue have been amply articulated in the opinions cited above and there is little to be gained from rehashing them in detail yet another time. As set forth more fully below, this court concurs with what appears to be the minority view in this district and finds that Congress' intent in enacting the ADA is best effectuated by holding that agents of an employer may be individually liable for engaging in unlawful discrimination. *fn6"

 In addressing this issue, the court begins, as it must, with the plain language of the statute. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) (observing that the task of resolving a dispute over the meaning of a statutory provision must begin with the language of the statute); In re Sanderfoot, 899 F.2d 598, 600 7th Cir. 1990) ("Interpretation of a statute must begin with the statute's plain language."), rev'd on other grounds, 500 U.S. 291, 114 L. Ed. 2d 337, 111 S. Ct. 1825 (1991). As previously noted, the ADA prohibits a "covered entity" from discriminating. 42 U.S.C. § 12112(a). The definition of a "covered entity" includes "an employer," 42 U.S.C. § 12111(2), which is defined, in turn, as "a person engaged in an industry affecting commerce who has [25] or more employees . . . and any agent of such person." 42 U.S.C. § 12111(5)(A). By incorporating "agents" within the definition of "employers," the plain language of the statute appears to subject individuals to liability for engaging in unlawful employment discrimination. The court finds such a reading of the statute to be most consistent with Congress' intent in enacting antidiscrimination legislation--viz., deterring discriminatory employment practices and ensuring that complete justice is secured by victims of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). See Vakharia, 824 F. Supp. at 785; Griffith, 858 F. Supp. at 805. 7 Moreover, holding that an employer's agents may be found personally liable for engaging in unlawful discrimination is also consistent with the Seventh Circuit's repeated admonitions that "Title VII is remedial legislation which must be construed liberally." Philbin v. General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991). See also Taylor v. Western & S. Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992) ("Title VII is to 'be construed and applied broadly'); EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1040 (7th Cir. 1982) (noting that "federal courts have consistently interpreted Title VII in a manner which places great weight on the important remedial purposes of the legislation"), cert. denied, 467 U.S. 1204 (1984). See also Armbruster v. Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983) ("To effectuate its purpose of eradicating the evils of employment discrimination, Title VII should be given a liberal construction. The impact of this construction is the broad interpretation given to the employer and employee provisions.") (emphasis added).

 In reaching the holding that an employer's agents may be found personally liable for engaging in unlawful discrimination, this court is fundamentally persuaded that the prospect of individual liability is essential if the antidiscrimination statutes are to have their full deterrent effect. See Strzelcki, 824 F. Supp. at 829 (noting that the ADEA's goal of deterring potential discriminators is undermined by not recognizing personal liability); Vakharia, 824 F. Supp. at 785 (same).

 Courts that have refused to recognize the prospect of individual liability have concluded that the imposition of such liability is unnecessary to accomplish the deterrent function of the antidiscrimination statutes. For instance, in Miller v. Maxwell's Int'l Inc., 991 F.2d 583 (9th Cir. 1993), cert. denied, 114 S. Ct. 1409 (1994), which defendant urges this court to adopt, the Ninth Circuit intimated that the deterrence function of the antidiscrimination statutes would be adequately accomplished in the marketplace:

 
Although one court has determined that [holding that individual defendants cannot be held liable for damages] "would encourage supervisory personnel to believe that they may violate Title VII with impunity," Hamilton, 791 F.2d at 443, the court's reasoning is unsound. No employer will allow supervisory or other personnel to violate Title VII when the employer is liable for the Title VII violation. An employer that has incurred civil damages because one of ...

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