Crosten v. Kamauf, Civil Action No. WMN 95-1934.

• Decision Date: 25 March 1996
• Docket Number: Civil Action No. WMN 95-1934.
• Citation: 932 F. Supp. 676
• Parties: Michele CROSTEN, Plaintiff, v. David KAMAUF, et al.
• Court: U.S. District Court — District of Maryland

932 F. Supp. 676

Michele CROSTEN, Plaintiff, v. David KAMAUF, et al.

Civil Action No. WMN 95-1934.

United States District Court, D. Maryland.

March 25, 1996.

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Stephen C. Wilkinson, and Stephen C. Wilkinson, P.A., Cumberland, MD, for Plaintiff Michele Crosten.

Jay R. Fries, and Kruchko & Fries, Baltimore, MD, for Defendant David Kamauf.

Robert S. Paye, and Geppert, McMullen, Paye & Getty, Cumberland, MD, for Defendant Memorial Hospital and Medical Center of Cumberland, Inc.

MEMORANDUM

NICKERSON, District Judge.

Before the Court is Defendants' Motion to Dismiss. Paper No. 8. Plaintiff has opposed the motion, and Defendants have replied. Upon a review of the motion and the applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6) and that Defendants' motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiff Michele Crosten has brought this action against her former employer, Memorial Hospital and Medical Center of Cumberland "Memorial", and one of her former supervisors, David Kamauf, alleging that she was subjected to a sexually hostile work environment. Specifically, Plaintiff alleges that Defendant Kamauf made repeated and unwanted sexual advances toward her and that Memorial, although aware of Kamauf's harassment of Plaintiff, did not take adequate steps to stop that harassment. Plaintiff further alleges that her emotional reaction to Kamauf's behavior ultimately reached a level of severity that she was forced to resign her position.

Plaintiff asserts claims under the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., "Title VII" against both Memorial and Kamauf, as well as various common law claims against Memorial. Defendants now move to dismiss the following claims on the ground that Plaintiff failed to exhaust her administrative remedies as to these claims:

— Counts I and III, the Title VII claims brought against Defendant Kamauf; and

— Count VII, the Title VII/Retaliation claim brought against Defendant Memorial.

Defendants also move to dismiss the following claims for failure to state a claim upon which relief can be granted:

— Counts I, II, III, IV, and VII, Plaintiff's Title VII claims, to the extent they are based on the United States or Maryland Constitutions;¹

— Counts V and VI, Negligence;

— Count VIII, Invasion of Privacy;

— Count IX, Intentional Infliction of Emotional Distress;

— Count X, Breach of Implied Contract and Breach of Covenant of Good Faith and Fair Dealing;

— Count XI, Fraudulent Misrepresentation; and

— Count XII, Wrongful Discharge.

II. STANDARD FOR MOTION TO DISMISS

This motion is made pursuant to both Rule 12(b)(1) and Rule 12(b)(6). A motion to dismiss for lack of subject matter jurisdiction brought pursuant to Rule 12(b)(1) may attack the complaint on its face, in that the complaint fails to allege facts upon which the court can base jurisdiction, or it may attack the truth of the underlying jurisdictional allegations contained in the complaint. The burden is on the party asserting subject matter jurisdiction to allege and prove jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). When a motion attacks the complaint on its face, the court accepts the allegations in the complaint as true, as it would on a motion pursuant to 12(b)(6). Id. When a motion challenges the underlying allegations in the complaint, however, the court may consider evidence outside of the complaint to determine whether sufficient facts support the plaintiff's jurisdictional allegations. In considering that evidence, the Court may resolve factual disputes to determine the proper disposition of the motion. Id.

A motion made pursuant to Fed. R.Civ.P. 12(b)(6) allows a claim to be dismissed for failure to state a claim upon which relief can be granted. The purpose of a motion under Rule 12(b)(6) is to test the legal sufficiency of the statement of the claim. Chertkof v. Baltimore, 497 F.Supp. 1252, 1258 (D.Md.1980). The standard for a motion to dismiss is well known: a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Faulkner Advertising Assoc. v. Nissan Motor Corp, 905 F.2d 769, 771-72 (4th Cir.1990). For the purposes of ruling on a motion under Rule 12(b)(6), the Court must accept the allegations contained in the complaint as true, and must liberally construe the complaint as a whole. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); Finlator v. Powers, 902 F.2d 1158 (4th Cir.1990).

With these principles in mind, the Court will address the arguments presented by the parties.

III. DISCUSSION

A. Violation of United States Constitution and Maryland Declaration of Rights

In Counts I, II, III, IV and VII, Plaintiff alleges that Defendants' conduct was violative of unspecified provisions of the United States Constitution and the Maryland Declaration of Rights. Defendants move to dismiss this aspect of those claims arguing that Plaintiff cannot state a claim for such a violation as she has alleged no facts to support a finding of state action. Plaintiff concedes "an action for such violations, separate from that provided by Title VII, cannot be maintained absent the presence of some form of state action" and further concedes that, in the instant case, there is no such state action. Accordingly, Plaintiff's constitutional claims included in Counts I, II, III, IV and VII will be dismissed.

B. Individual Liability under Title VII

Defendants argue that the Title VII claims against Defendant Kamauf should be dismissed in that Title VII does not impose individual liability on supervisory employees, but only on the actual employing entity, in this case, Memorial. In addition, Defendants argue that, even if the Court finds that Title VII liability could extend to supervisory employees, Kamauf should be dismissed because Plaintiff failed to name him in her EEOC charge.

1. Liability of Supervisory employees

Title VII of the Civil Rights Act of 1964 makes it unlawful for "employers" to discriminate against any individual on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). At least until very recently, it was clear that the Fourth Circuit took the position that, under certain conditions, supervisory personnel could be included in the definition of "employers" for purposes of Title VII liability. In the leading decision on this issue, Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), the Fourth Circuit clarified,

An individual qualifies as an "employer" under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment. The supervisory employee need not have the ultimate authority to hire or fire to qualify as an employer, as long as he or she has significant input into such personnel decisions. Furthermore, an employee may exercise supervisory authority over the plaintiff for Title VII purposes even though the company has formally designated another individual as the plaintiff's supervisor. As long as the company's management approves or acquiesces in the employee's exercise of supervisory control over the plaintiff, that employee will hold "employer" status for Title VII purposes.

879 F.2d at 104 (citations omitted).

Defendants argue in the instant motion that Paroline was "implicitly" overruled by the Fourth Circuit's more recent decision 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). Birkbeck was an age discrimination suit brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. "the ADEA". The plaintiffs, who were allegedly discharged because of their age, sued the company that formerly employed them, as well as the vice president of the company who was primarily responsible for their discharge. Defendants in the instant action note that, in discussing whether the ADEA's definition of "employer" was sufficiently broad to encompass supervisory employees, the court noted similarities between the definitions of employers under the ADEA and under Title VII. In rejecting supervisory employee liability under the ADEA, the Court opined, "employer liability ensures that no employee can violate the civil rights laws with impunity, a safeguard that has proven sufficient with respect to Title VII, the ADEA's closest statutory kin." Birkbeck, 30 F.3d at 510.

The Court agrees that the reasoning of Birkbeck appears somewhat inconsistent with the reasoning of Paroline. Nonetheless, the Fourth Circuit expressly limited its holding in Birkbeck so as not to overrule its holding in Paroline. While rejecting supervisor liability in the case before it, the court stated in a footnote, "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. The court then cited Paroline, a sexual harassment case, as an example of a situation where personal liability under Title VII remains a question of fact. Id.

Other courts in this circuit, relying on this distinction drawn in Birkbeck, have allowed for the imposition of individual liability in Title VII sexual harassment cases. See, e.g., Shoemaker v. Metro Information Services, 910 F.Supp. 259, 265 (E.D.Va.1996) ("This court holds that supervisors may be individually liable in Title VII cases where they wield significant control over plaintiffs and their conduct cannot be categorized as a plainly delegable duty,"); Turner v. Randolph County, 912 F.Supp. 182 (M.D.N.C.1995) (while critical of the reasoning of Paroline and noting that the weight of recent authority is shifting away from individual liability,...