Johnson v. Northern Indiana Public Service Co.

• Decision Date: 11 February 1994
• Docket Number: Civ. No. 2:93-CV-142-RL.
• Citation: 844 F. Supp. 466
• Parties: Carletha Y. JOHNSON, Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY and Christine Griffiths, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

844 F. Supp. 466

Carletha Y. JOHNSON, Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY and Christine Griffiths, et al., Defendants.

Civ. No. 2:93-CV-142-RL.

United States District Court, N.D. Indiana, Hammond Division.

February 11, 1994.

Douglas M. Grimes, Gary, IN, for plaintiff.

Carletha Y. Johnson, pro se.

Terry J. Smith and Heather C. Sawyer, Schiff Hardin and Waite, Chicago, IL, for defendants.

ORDER

LOZANO, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss and to Strike First Amended Complaint, filed November 29, 1993, and Plaintiff's Motion for Leave to File Second Amended Complaint. For the reasons set forth below, Defendants' Motion to Dismiss and to Strike is hereby GRANTED, and Plaintiff's Motion for Leave to File Second Amended Complaint is DENIED.

BACKGROUND

On or about May 13, 1993, Plaintiff, Carletha Y. Johnson ("Johnson"), brought this Title VII action, pro se, against her employer, Northern Indiana Public Service Company ("NIPSCO"), and her supervisor, Christine Griffiths ("Griffiths"), alleging that on July 30, 1991, she was terminated from her position as a part-time customer service representative on the basis of her race in violation of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et. seq. Prior to filing this Complaint, Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The charge was mailed to Christine Griffiths, Supervisor; NIPSCO; 200 North Main Street; Hobart, Indiana, 46405. The EEOC form provides a space to name "THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME." In this space, Johnson indicated "Northern Indiana Public Service Company." However, in the space provided for specifying the particulars of the charge, Johnson specifically named Griffiths and described the alleged discriminatory action committed by Griffiths.

Defendants filed a motion to dismiss and to strike on July 14, 1993, arguing that Griffiths should be dismissed from the suit and Johnson's claim for compensatory and punitive damages should be stricken from the Complaint. On September 28, 1993, Attorney Douglas M. Grimes entered his appearance for Johnson. On October 13, 1993, Johnson then filed a motion for enlargement of time to respond to Defendants' motion to dismiss and strike, motion for summary ruling, discovery, and holding a joint meeting. This Court granted the motion, giving Johnson leave to respond by November 5, 1993. Johnson did not respond to Defendants' motion to dismiss and to strike; instead, on November 12, 1993, she filed a motion to amend her Complaint. This Court granted Johnson's motion on November 12, 1993, thereby mooting Defendants' prior motion to dismiss and to strike.

In the Amended Complaint, Johnson alleges that Defendants violated her civil rights under 42 U.S.C. § 2000, et seq. ("Title VII") and 42 U.S.C. § 1981. Specifically, she contends that Defendants impermissibly denied her the right to attend and receive mandatory training for the position of permanent part-time customer service representative based on her race. Moreover, Johnson asserts that Griffiths made a recommendation, which was subsequently acted upon by NIPSCO, that Johnson be terminated due to her race. Johnson asserts a right to trial by jury and a claim for punitive damages in addition to other requested relief.

On November 29, 1993, Defendants filed a Motion to Dismiss and to Strike First Amended Complaint. Defendants argue that the Title VII claim against Griffiths should be dismissed because Johnson did not name Griffiths as a respondent in her underlying charge of discrimination filed with the EEOC. In the alternative, they argue that she should be dismissed from the suit because she is not personally liable under Title VII. Defendants also assert that Johnson's claims for punitive damages and trial by jury should be stricken because the alleged discriminatory conduct occurred in July 1991, prior to the November 1991 amendment of the Civil Rights Act ("the Act") which permits trial by jury and punitive damages. Finally, Defendants contend that Johnson's § 1981 claim should be dismissed because allegations of discriminatory training and discharge are not actionable under § 1981 as the law existed in July 1991.

Johnson had fifteen (15) days to respond to Defendants' Motion to Dismiss and to Strike. See Local Rule 7.1. Johnson failed to respond within that time frame. Instead, on December 23, 1993, she filed a Verified Belated Motion for Enlargement of Time to Respond to Defendant's Motion to Dismiss and to Strike. This Court denied the Motion because Johnson already has been given several continuances in this matter. As provided by Local Rule 7.1, "failure to file an answer brief or reply brief within the time prescribed shall be deemed a waiver of the right to make such filing and shall subject the motion to summary ruling."

On February 2, 1993, Johnson filed a Motion for Leave to File Second Amended Complaint as well as a Response to Defendant's Motion to Dismiss and to Strike. As Johnson's Response is untimely, this Court orders her response stricken from the record. In addition, because this Court finds little, if any, difference between her First Amended Complaint and her Second Amended Complaint, Johnson's Motion for Leave to File Second Amended Complaint is DENIED.

DISCUSSION

When deciding a motion to dismiss, this Court must assume the truth of a plaintiff's well pleaded factual allegations, making all possible inferences in the plaintiff's favor. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991); Janowsky v. United States, 913 F.2d 393, 395 (7th Cir.1990). This Court may not dismiss the plaintiff's complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). See also Barnhart v. United States, 884 F.2d 295, 296 (7th Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 743 (1990). In order to prevail, the defendant must demonstrate that "the plaintiff's claim, as set forth by the complaint, is without legal consequence." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987).

Motion to Dismiss Defendant, Christine Griffiths

Defendants argue that Griffiths should be dismissed from this suit because she was not named in the EEOC charge. Additionally, they contend that she should be dismissed from the suit because she cannot be held individually liable as a mid-level supervisor under Title VII. As this Court agrees with Defendants' second proposition, it need not address Defendants' first argument.

Title VII gives an employee the right to sue an "employer" for discrimination. 42 U.S.C. § 2000e, et seq. (1981) Pursuant to 42 U.S.C. § 2000e(b), an "employer" is defined as "a person engaged in an industry affecting commerce who has 15 or more employees ... and any agent of such a person...." Reading the Complaint with all possible inferences in Johnson's favor, Griffiths could be considered an agent of NIPSCO because she allegedly made recommendations regarding Johnson's termination. The issue before this Court, however, is whether the "and any agent of such a person" language subjects supervisors to individual liability as "employers" under the statute.

The Seventh Circuit has not explicitly indicated whether supervisors are employers within the meaning of Title VII; however, it has upheld personal liability against supervisors in Title VII cases without comment. See, e.g. Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir.1989) (upholding personal liability for decision-making supervisor). Moreover, other circuit courts conflict on the issue. Some circuit courts have held that supervisors can be individually liable under Title VII by reading the "and any agent of such a person" language to mean that "agents" also should be considered employers under the statute. Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990); see also Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986) (private citizens are proper defendants as "agents" of an employer under Title VII). Other circuit courts have read this language similarly, holding that an individual qualifies as an employer if he or she serves in a supervisory position and exercises control over traditional employer functions such as hiring and firing. Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993); Harvey v. Blake, 913 F.2d 226, 227 (5th Cir.1990). However, in these circuits, supervisors are liable only in their official capacities. Id. The Ninth Circuit reads the "and any agent of such a person" language to incorporate respondeat superior into the statute and holds that supervisors cannot be held individually liable under Title VII. Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587-88 (9th Cir.1993).

District court judges in this circuit are divided on the issue as well. In Weiss v. Coca Cola Bottling Co. of Chicago, 772 F.Supp. 407, 411 (N.D.Ill.1991), Judge Duff held that a supervisor could be held liable only in his official capacity. Judge Duff reasoned that the damages available under Title VII, i.e. back pay and reinstatement, do not support the inference that supervisors should be held individually liable. Id. Judge Aspen also relied on this reasoning and found that high level officers in a company could not be held individually liable under Title VII. Pelech v. Klaff-Joss, LP, 828 F.Supp. 525, 529 (N.D.Ill.1993). To support his conclusion, Judge Aspen adopted the Ninth Circuit's position that "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...