means 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). Congress limited the applicability of Title VII to entities with fifteen or more employees in order to protect "small entities from the hardship of litigating discrimination claims." EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995).
Defendants have submitted copies of the quarterly unemployment tax contribution reports UCT and Midwest filed with the Illinois Department of Employment Security during the relevant calendar years of 1994 and 1995. These reports show that neither company employed fifteen or more employees during those years. Plaintiff acknowledges this but argues that under one or more of the theories of agency, joint employer, or single entity, the court may add the employee totals for the two companies together to produce a combined total greater than the fifteen employees required for subject matter jurisdiction. In their reply, defendants argue that these theories are inapplicable under the facts of this case, and, further, that even if the employees of the two companies were added together, they would still not add up to fifteen because some of the employees listed on the unemployment tax reports are part-time employees who do not work every day. The parties have not provided sufficient evidence regarding who worked when for the court to be able to determine whom to count and whom not to count, but we need not address that question because we agree with defendants that the theories argued by plaintiff for combining employees are not applicable to the facts.
Before addressing plaintiff's arguments for combining the employee totals of UCT and Midwest, we note that plaintiff has made no allegations or offered any evidence that would permit us to exercise subject matter jurisdiction over Cihak in his individual capacity. The Seventh Circuit has recently held that Title VII's definition of employer, which "includes an employer's agents, is simply a statutory expression of traditional respondeat superior liability and imposes no individual liability on agents." Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995); see also, AIC Security, 55 F.3d at 1279-80 (holding the same in the context of the Americans with Disabilities Act, which uses virtually the same definition of "employer" as Title VII). Agents are liable only if they independently meet the statutory definition of "employer" by, among other things, having fifteen employees. DeVito v. Chicago Park Dist., 83 F.3d 878, slip op. at 8 (7th Cir. 1996).
These holdings not only require that the case be dismissed with respect to Cihak, they also mean that if plaintiff's agency rationale for exercising subject matter jurisdiction -- over two entities that are not statutory employers -- ever had any vitality in the Seventh Circuit, it has none now. Clearly, under the Seventh Circuit's interpretation of the statutory language, neither an agent nor its principal can be liable for a Title VII violation unless each is a statutory employer in and of itself when viewed separately from the other. Therefore, even if plaintiff could establish an agency relationship between UCT and Midwest, we would still lack subject matter jurisdiction.
Plaintiff's joint employer theory is similarly flawed. The only case plaintiff cites in support of this theory is Magnuson v. Peak Technical Servs., 808 F. Supp. 500 (E.D. Va. 1992), but this case does not stand for the proposition that entities not meeting the statutory definition of "employer" can nevertheless become liable under Title VII by being combined with each other. Magnuson recognizes that more than one employer can be liable to an individual under Title VII if they each "'control some aspect of an individual's compensation, terms, conditions, or privileges of employment.'" Id. at 507-08 (quoting Spirt v. Teachers Ins. & Annuity Ass'n, 475 F. Supp. 1298, 1308 (S.D.N.Y. 1979)). Magnuson also recognizes, however, that before an entity can become liable as a joint employer under Title VII, it must first "fall within Title VII's statutory definition of 'employer.'" Magnuson, 808 F. Supp. at 507.
Plaintiff's single entity theory has more merit and recognition in the Seventh Circuit than either of the other two theories. Under this theory, which was originally recognized in the area of labor relations, two nominally separate but interrelated business entities can be considered to be a single entity. Rogers v. Sugar Tree Prods., Inc., 7 F.3d 577, 582 (7th Cir. 1993). To determine whether a single employer exists, we must consider the following factors:
"(1) Interrelation of operations, i.e. common offices, common record keeping, shared bank accounts and equipment.