Causey v. Balog

Decision Date17 June 1996
Docket NumberCivil No. JFM-94-485.
Citation929 F. Supp. 900
PartiesJames CAUSEY, v. George BALOG, et al.
CourtU.S. District Court — District of Maryland

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Mercedes C. Samborsky, Joppatowne, MD, for plaintiff.

Richard G. Greene, James S. Ruckle, Jr., Assistant Solicitor, Department of Law, Baltimore, MD, for defendants.

MEMORANDUM

MOTZ, Chief Judge.

Plaintiff James Causey, a former transportation official for the City of Baltimore, sues the Mayor and City Council as well as a number of individual defendants for age and race discrimination. Plaintiff alleges that he was not promoted, harassed and eventually terminated from his job because he is an older white male in an administration dominated by younger black men. He asserts claims for (1) violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA); (2) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (3) violations of 42 U.S.C. §§ 1981, 1983 and 1985; and (4) state law defamation. Defendants maintain that Causey simply became caught in a series of efforts to downsize Baltimore's municipal bureaucracy and that his age and race were not considered. Defendants move for summary judgment.

I.

Causey is a white male born in January 1933. After over a decade as an engineer in the private sector, Causey joined the municipal government as a deputy transit commissioner in 1981. By 1987, Causey headed a division within the Department of Transportation (DOT). By all accounts he was a highly effective municipal executive.

In December 1988, newly elected Mayor Kurt Schmoke appointed Causey as the Acting Commissioner of DOT. Five months later, in May 1989, Mayor Schmoke appointed Herman Williams, a younger black man, as the permanent Commissioner of DOT and named Causey as the Deputy Commissioner I of DOT. Causey alleges that Williams subjected him to ongoing harassment — including public and private verbal abuse, threatened termination and disrespectful treatment — until May 1992, when Williams left DOT to become Chief of the Baltimore Fire Department. After Williams' departure from DOT, Causey requested that he be named Commissioner. Mayor Schmoke instead named Victor Bonaparte, a younger black man, Acting Commissioner.

On October 27, 1992, the City Council consolidated Baltimore's municipal bureaucracy by eliminating DOT — including plaintiff's job as Deputy Commissioner I — and transferring responsibility for city transportation to the Department of Public Works (DPW). DPW's newly created Bureau of Transportation (BOT) was divided into three divisions: Highways, Parking and Traffic. Although he sought the job of Chief of BOT, Causey instead was named Acting Chief of the Traffic Division and became Chief of the Traffic Division on December 28, 1992, a position that paid $6000 less annually than his previous position as DOT Deputy Commissioner I. David Montgomery, a black male in his late thirties, was named Chief of BOT. Causey alleges that no other former DOT executive was forced to take a salary cut after the department was abolished, and he claims that the city did not fairly consider him for the job of BOT Chief. He filed race and age discrimination charges with the EEOC on October 28, 1992.

Causey alleges that his situation worsened after he filed charges with the EEOC. He claims that Montgomery, his new supervisor, harassed him by undercutting his authority, denying him access to information, imposing unreasonable deadlines and by requiring him to use personal leave days to attend off-site meetings. He states that Montgomery followed an open door policy with black employees but required Causey to schedule appointments. In March 1993, Causey filed a second complaint with the EEOC alleging harassment in retaliation for his October 1992 EEOC filing.

On November 5, 1993, Montgomery and George Balog, the Director of DPW, informed Causey that his job as Chief of the Traffic Division was being eliminated because of funding shortfalls and that he would be laid off. On January 10, 1994, Causey was informed that he would be terminated as of February 11, 1994. On January 15, 1994, Causey amended his second EEOC complaint to include this termination as part of the alleged pattern of retaliatory discrimination.

Causey finally claims that Montgomery and Keith Scroggins, DPW's Personnel Director, wrongfully accused him of failing to return municipal property after leaving BOT. Plaintiff alleges that his office was not secured after he suffered from heart problems on January 10, 1994 and could not return to work. Causey alleges that Montgomery instead allowed other employees to remove property, including a computer and camera, from his office. Plaintiff claims that Montgomery and Scroggins accused him of theft and publicized this allegation to his coworkers and other municipal personnel.

II.

The ADEA and Title VII make it unlawful for employers to discriminate against employees on the basis of age or race. Defendants argue that the individual defendants in this action are not "employers" under either of these statutes and therefore cannot be liable under Causey's first two counts.

A.

In Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994), the Fourth Circuit held that an individual supervisory employee was not liable as an "employer" under the ADEA. The ADEA defines an employer as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year" including "any agent of such a person." 29 U.S.C. § 630(b). Some courts have relied on this language to find supervisory employees individually liable as "agents" of their employers. See, e.g., House v. Cannon Mills Co., 713 F.Supp. 159, 160-62 (M.D.N.C.1988).

The Birkbeck court rejected this interpretation of § 630(b). The ADEA imposes liability only on employers with 20 or more workers, indicating an intent by Congress to place small entities beyond the scope of ADEA liability. "Given this evident limitation, it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more." Id. at 510 (citing Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993) ("If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees."), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994)). The court accordingly interpreted § 630(b)'s inclusion of "agents" in the definition of "employer" as nothing more than as an acknowledgement that respondeat superior liability applies under the ADEA. See 30 F.3d at 510 (noting that "employer liability ensures that no employee can violate the civil rights laws with impunity"). Birkbeck thus bars Causey's ADEA claims against the individual defendants named in the complaint.

B.

As a further matter, moreover, it seems apparent that the logical force of Birkbeck's holding — that Congress did not intend to impose on individual employees the heavy burden of exposure to federal statutory liability — should preclude individual liability under Title VII as well. The two statutes raise identical concerns related to the proper scope of liability. Moreover, Title VII employs virtually the identical definition of "employer" as that in the ADEA, see 42 U.S.C. § 2000e(b) (defining "employer" as "a person ... who has fifteen or more employees ... and any agent of such a person"), and the Birkbeck court itself described Title VII as "the ADEA's closest statutory kin." 30 F.3d at 510. In short, according to the Fourth Circuit's analysis in Birkbeck, I would find that individual supervisors cannot be liable under Title VII.

Under Fourth Circuit case law, however, the question of individual liability under Title VII remains unsettled. The Fourth Circuit has not expressly extended Birkbeck to Title VII cases, and prior to Birkbeck the Fourth Circuit was one of a minority of circuits that allowed individual liability under Title VII.1 See Paroline v. Unisys Corp., 879 F.2d 100, 104 (1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990). Indeed, in Birkbeck the Fourth Circuit declined to break expressly with Paroline. Citing Paroline, the Birkbeck court stated in footnote 1 that "an employee, however, may not be shielded as an employer's agent in all circumstances. We address here only personnel decisions of a plainly delegable character." 30 F.3d at 510 n. 1. In Paroline, the court had allowed individual liability under Title VII against a supervisor who sexually harassed another employee by repeatedly making unwanted advances. Such sexual harassment clearly is not an activity that an employer could or would "delegate" to a supervisor. Although the meaning of Birkbeck's footnote 1 is not entirely clear, I read it as indicating that, at most, an individual employee can be held liable for actions outside the scope of the duties delegated to him by his employer.2

In this case, however, plaintiff squarely alleges that the individual defendants acted within the scope of the duties delegated to them by the city. Plaintiff claims that various individual defendants helped carry out the Schmoke administration's systematic policy of discriminating against older white employees, a pattern that culminated in his firing. By plaintiff's own account therefore the individual defendants' allegedly discriminatory actions were of a "plainly delegable character." Thus, under Birkbeck his Title VII claims against these defendants fail.3

III.

I next consider plaintiff's ADEA and ...

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