Cassano v. DeSoto, Inc., 93 C 4485.

• Decision Date: 19 July 1994
• Docket Number: No. 93 C 4485.,93 C 4485.
• Citation: 860 F. Supp. 537
• Parties: Karyn A. CASSANO, Plaintiff, v. DeSOTO, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

860 F. Supp. 537

Karyn A. CASSANO, Plaintiff, v. DeSOTO, INC., et al., Defendants.

No. 93 C 4485.

United States District Court, N.D. Illinois, Eastern Division.

July 19, 1994.

John Malevitis, Bernard R. Nevoral & Assoc, Ltd., Chicago, IL, for plaintiff.

William Cirignani Seyforth, Shaw, Fairweather, & Geraldson, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Mark Renfro ("Renfro") and T. Farrell Shoffeitt ("Shoffeitt") have moved for summary judgment against Karyn Cassano ("Cassano"), seeking to be dismissed from her Title VII¹ Complaint charging them as well as DeSoto, Inc. ("DeSoto") with sex discrimination. For the reasons stated in this memorandum opinion and order, their motion is denied.

Facts²

Cassano's assertions of discrimination presented to EEOC (as reflected in her Affidavit, P.Ex. B) expressly identify both Renfro and Shoffeitt as the architects of DeSoto's assertedly discriminatory adverse employment action:

I began my employment with the above named Respondent DeSoto in March of 1980, where my most recent title was Personnel Administrator. Up until the beginning of June of 1991, Dan Zacharski was the Director of Office Services and my immediate supervisor. In my May of 1991 performance review, Zacharski recommended that I be considered for exempt status in 6 to 7 months, which would have entitled be sic to a higher salary and better benefits. In early June of 1991, shortly after control of the company changed hands, Zacharski was let go. In May of 1991, Mark Renfro became the new Human Resources Director and after Zacharski left, Renfro became my immediate supervisor.

From June of 1991 until January 24, 1992, I performed all of Zacharski's former duties as Director of Office Services. On or about January 6, 1992, I was denied a salary increase and promotion to exempt status by Renfro and the new Chief Operating Officer — T. Farrell Shoffeitt, and for this reason gave notice of my resignation on the same date.

Cassano's Charge of Discrimination (P.Ex. A, prepared by EEOC by typing information onto its printed form and then having it signed by Cassano) named only DeSoto itself in the box provided immediately below the legend reading "Named as the employer, labor organization, employment agency, apprenticeship committee, state or local government agency who discriminated against me." But here is what Cassano testified at her deposition in this case (Dep. 130-31, 134):

Q. Take a look at it. Is that your signature at the bottom of your charge of discrimination?

A. Yes.

Q. You signed that on July 6, 1992?

A. Yes.

Q. Did you decide at that time to sue Mark Renfro?

A. Yes.

Q. Where is his name down as a Defendant or a Respondent to your charge of discrimination?

A. Apparently, they left it off.

Q. Who is "they"?

A. EEOC.

Q. Where is Farrell Shoffeitt's name?

A. Apparently, they left it off, EEOC.

* * * * * *

Q. Well, the form that you filled out for EEOC, did you list Mark Renfro and Farrell Shoffeitt as Respondents?

MR. MALEVITIS: Objection, asked and answered.

BY THE WITNESS:

A. I gave them DeSoto, Mark Renfro, Farrell Shoffeitt, William Speer's names.

"Employers" under Title VII

Title VII's definition of "employer" reads this way in relevant part (Section 2000e(b), emphasis added):

(b) The term "employer" 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....

And Section 2000e-2(a) defines "unlawful employment practice" in terms of discriminatory conduct by "an employer." Finally, Section 2000e-5(e) calls for the EEOC filing of unlawful employment practice charges against "the person against whom such charge is made."

Read in the normal way (that is, as a matter of plain meaning), those provisions would appear to make individuals Renfro and Shoffeitt as well as corporate employer DeSoto potentially liable for their asserted discrimination here. Our Court of Appeals has not had occasion to opine directly on that question.³ But despite the statutory language a substantial number of courts (perhaps a majority) have rejected such personal liability. As this Court's colleague Honorable Marvin Aspen put it in Pommier v. James L. Edelstein Enterprises, 816 F.Supp. 476, 480-81 (N.D.Ill.1993) (citing and following the opinion of another colleague, Honorable Brian Barnett Duff, in Weiss v. CocaCola Bottling Co., 772 F.Supp. 407, 410-11 (N.D.Ill.1991)):

The only court within this district to address the issue has held that such supervisors are not "employers" against whom a Title VII action may be maintained in their individual capacities. The Court in Weiss reasoned that, to the extent that such a supervisor is an "agent" of the employer, such individual stands only as a surrogate for the employer and, hence, may only be held liable in their official capacity.

That approach is unpersuasive to this Court. Like its other colleague Honorable James Moran, and in part for the reasons that he has set out in Vakharia v. Swedish Covenant Hosp., 824 F.Supp. 769, 785-86 (N.D.Ill.1993), this Court opts to uphold the prospect of individual personal liability stemming from a discriminatory decision made by a responsible decisionmaker on behalf of an employer corporation. After all, there is no compelling reason for importing into employment discrimination cases the "official capacity" concept that plays a role in Section 1983 jurisprudence:

1. It does not require a congressional enactment to render a corporation or other institutional employer responsible for its employees' actions taken on its behalf. And if that really were Congress' limited intention, it surely chose an odd and roundabout way of doing so — why would it enact a provision that defined such employees as "agents" coming within the definition of "employer," instead of including a direct statement of respondeat superior liability in the statute?

2. It would be an extraordinary situation in which an assertedly discriminated-against employee, after conferring with an EEOC intake representative and explaining to that representative the circumstances of claimed discrimination by a corporation or other institutional employer, would end up naming only a fellow employee as the "employer,"⁴ thus requiring an application of the "official capacity" doctrine to bring the actual employer into the equation. And if both the actual employer and a fellow employee were in fact targeted in any EEOC charge and in the subsequent complaint, the latter's inclusion would be mere surplusage under "official capacity" principles.

So this Court does not share the point of view of such decisions as Pommier and Weiss as a means of explaining away the normal reading of the statutory provisions.

DeSoto Mem. 3 misleadingly cites this Court's opinion in Zakutansky v. Bionetics Corp., 806 F.Supp. 1362 (N.D.Ill.1992) as standing for the same proposition as Weiss and Pommier. That citation (significantly lacking any specific page reference) is frankly both bogus and offensive — what Zakutansky, id. at 1365 actually did was to uphold a complaint that had included a decisionmaking fellow employee in his individual capacity as a Title VII "employer" — though this Court there recognized the reality (id. at 1365 n. 7) that the only potential for enforcing such individual liability might be if the corporate employer proved financially incapable of satisfying plaintiff's entitlement on the Title VII claim. It is bad enough for a lawyer to miscite any precedent (perhaps suspecting that the judge may not read the case?) — but to miscite a judge's own decision to him or to her must be viewed as foolhardy in the extreme.

Omission from the EEOC Charge

Thus rejecting a nonliteral reading of the statutory provisions does not fully answer the present question, however. Still another literal reading, this time of Section 2000e-5(f)(1) (emphasis added), suggests the dismissal of Renfro and Shoffeitt because they were not named in Cassano's charge filed with EEOC:

Within ninety days after the giving of such notice of right to sue a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved....

But this time the authoritative case law in this Circuit recognizes an exception that creates the prospect of defendant status for persons such as Renfro and Shoffeitt...