Johnson v. Univ. Surgical Associates

• Decision Date: 22 November 1994
• Docket Number: No. C-1-93-774.,C-1-93-774.
• Citation: 871 F. Supp. 979
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Pamela JOHNSON, Plaintiff, v. UNIVERSITY SURGICAL GROUP ASSOCIATES OF CINCINNATI, et al., Defendants.

871 F. Supp. 979

Pamela JOHNSON, Plaintiff, v.UNIVERSITY SURGICAL GROUP ASSOCIATES OF CINCINNATI, et al., Defendants.

No. C-1-93-774.

United States District Court, S.D. Ohio, Western Division.

November 22, 1994.

Sharon Jo Sobers, Paul Henry Tobias, Tobias & Kraus, Cincinnati, OH, for plaintiffPamela Johnson.

Brent Gregory Houk, Dinsmore & Shohl, Robert Alexander Pitcairn, Jr., Katz, Teller, Brant & Hild Co., Donald James Mooney, Jr., Benesch, Friedlander, Coplan & Aronoff, Cincinnati, OH, for defendantsUniversity Surgical Group Associates of Cincinnati, Dr. William Graue.

Brent Gregory Houk, Dinsmore & Shohl, Robert Alexander Pitcairn, Jr., Katz, Teller, Brant & Hild Co., Cincinnati, OH, for defendantsUniversity Surgical Associates of Cincinnati, Dan J. Crocker, John R. Gillespie, John J. Finnegan, Gary S. Robins, Frederick L. Steinbeck.

Brent Gregory Houk, Dinsmore & Shohl, Cincinnati, OH, for defendantDr. Josef Fischer, individually and as sole shareholder, owner, & mgr. of USGC, USAC, and University Surgical-Dental Assoc. of Cincinnati.

Robert Alexander Pitcairn, Jr., Katz, Teller, Brant & Hild Co., Cincinnati, OH, for defendantUniversity Oral & Maxillofacial Surgery Associates.

ORDER DENYING DEFENDANT GRAUE'S MOTION TO DISMISS

SPIEGEL, District Judge.

This matter is before the Court for consideration of the Motion to Dismiss of numerous Defendants(doc. 6), Defendant Dr. Graue's Motion to Dismiss(doc. 20), which is opposed by the Plaintiff(doc. 22), and to which the Doctor has replied (doc. 23).Doctor Graue has also provided the Court with Supplemental Memoranda (doc. 24 & 26), each calling the Court's attention to further authorities in support of the Defendant's motion.Upon the filing of the Plaintiff's Amended Complaint, Dr. Graue has renewed his Motion to Dismiss(doc. 29).

BACKGROUND

The Plaintiff, Ms. Pamela S. Johnson was a dental assistant for Dr. William Graue.She claims that she was sexually harassed on the job by Dr. Graue, and that when she complained she was terminated in retaliation.The Plaintiff also contends that the harassment and retaliation have caused her emotional injuries.She brings these claims under Title VII as well as under Ohio Revised Code § 4112.02(A) and Ohio common law.

As we noted earlier in our order granting her Motion to Amend her Complaint, the Plaintiff was having some difficulty discovering the structure of the medical practice for which she worked and precisely who were the appropriate Defendants.As a result we granted the Plaintiff's Motion to Amend her Complaint over the objection of the Defendants.In responding to Dr. Graue's Motion to Dismiss, the Plaintiff alleges that Dr. Graue was her supervisor.The Plaintiff states that "Dr. Graue was acting as an agent of Defendant employer when he hired, evaluated, disciplined, retaliated against and worked for Plaintiff's discharge."Plaintiff's Memorandum in Opposition, at 10-11, Document 22.In addition the Plaintiff asserts a belief "that Dr. Graue is liable apart from the liability created from the alleged harassment and retaliation because he and the other named Defendants collectively are Defendant USDA and because of the nature of their relationship to USAC."Id.

STANDARD OF REVIEW

A motion to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) must be viewed in the light most favorable to the party opposing the motion.Great Lakes Steel v. Deggendorf,716 F.2d 1101, 1105(6th Cir.1983).The court must accept as true all allegations in the well pleaded complaint under attack.Id.The court may grant the motion only "if it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief."Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80(1957);Balderaz v. Porter,578 F.Supp. 1491, 1494(S.D.Ohio1983).

A.ORIGINAL MOTION TO DISMISS(DOC. 6)

Soon after the Complaint was filed certain Defendants moved for dismissal on the grounds that the Complaint failed to state claims against them.At the time we granted the Plaintiff's Motion to Amend, we indicated that this Court's preferred method of dealing with the situation was to grant leave to amend, and then to allow the Defendants to attack the amended complaint.Since the Defendants' original Motion to Dismiss(doc. 6) attacking the original complaint is now moot, we must deny that motion, but grant the moving Defendants leave to refile their motion, now that the Plaintiff has amended her complaint.

B.DR. GRAUE'S MOTION TO DISMISS

Dr. Graue's Motion to Dismiss is based on a single argument.Dr. Graue contends that he cannot be held personally liable under Title VII or under Ohio Revised Code Chapter 4112 because these statutes do not allow for personal liability for employees.Finally, Dr. Graue argues that since the federal claims for harassment and wrongful discharge should be dismissed, then the Plaintiff's state claims should be dismissed for want of federal jurisdiction.

Having reviewed the law in the Sixth Circuit, we find that a co-employee supervisor may be personally liable for acts of intentional discrimination under Title VII, provided that their individual liability is based on their own independent acts and not merely for acts in compliance with policies set forth by their superiors.

In addition, Dr. Graue would be directly liable under Title VIIandChapter 4112, as an employer, as opposed to as an agent, if we accept the Plaintiff's allegation that Dr. Graue has an ownership role in USAC, and that USAC was the Plaintiff's employer.Furthermore, we are not persuaded that a co-employee supervisor is not personally liable under Ohio Sex Discrimination Statutes.Finally, we believe that we should retain jurisdiction over the Ohio sex discrimination and retaliation claims and the common law emotional distress claims under our supplemental jurisdiction, as these claims "are so related to the claims in the action within our original jurisdiction that they form part of the same case or controversy ...."See28 U.S.C. § 1367(a);Shrout v. Black Clawson,689 F.Supp. 774, 781-82(S.D.Ohio1988).

1.CO-EMPLOYEE SUPERVISOR LIABILITY UNDER TITLE VII

It appears that the Sixth Circuit has not squarely considered the issue of individual liability under Title VII.The Defendant cites emerging law in other circuits, as well as, district courts in this circuit, to support his position.However, we are required to look to the Sixth Circuit Court of Appeals and the United States Supreme Court for binding precedent.Neither has spoken definitively on the question of individual liability under Title VII.Moreover, having studied the prior holdings of our parent courts, as well as the language of the statute, we are persuaded that the Defendant is incorrect in his assertion that Title VII does not impose individual liability on a co-employee supervisor.Therefore, we decline to dismiss the Plaintiff's Title VII claim against Dr. Graue in his individual capacity.

Dr. Graue argues that liability is limited under Title VII to employers.The statute forbids intentional discrimination in this way: § 2000e-2.Unlawful employment practices

(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of ... sex ...

42 U.S.C. § 2000e-2.The dispute arises over Title VII's definition of an "employer."The statute states that:

(b) The term "Employer" means a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person....

42 U.S.C. § 2000e(emphasis added).From the plain language of the statute it would seem that an agent of the employer is personally and individually liable for discriminatory acts.However, Dr. Graue bases his argument against individual liability on the holdings of various circuit and district courts.

The most popular argument for the Defendant's position is presented by the Ninth Circuit Court of Appeals.¹In Miller v. Maxwell's International, Inc., et al.,991 F.2d 583(9th Cir.1993), the Ninth Circuit squarely addresses the issue of individual liability under Title VII.The district court had analyzed the statutory language and concluded as we do that the text of the statute did not preclude individual liability.Id. at 587.The Ninth Circuit acknowledged the merits of this statutory construction but proceeded with its own analysis.

That analysis begins with a study of the limits placed on employer liability under the statute.

The statutory scheme itself indicates that Congress did not intend to impose individual liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b) ... in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims.If Congress decided to protect small entities from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.

Id.The Miller court also relied on precedents in the Ninth Circuit which held that "individual defendants could not be held liable for back pay."SeePadway v. Palches,665 F.2d 965, 968(9th Cir.1982).The Padway court had found it significant that Title VII(at that time) allowed only for injunctive relief, including back pay.Id.Dr. Graue argues that a co-employee supervisor, such as himself² is not in the position to be able to grant reinstatement or back pay, and therefore should not be liable under Title VII.

The problem with the Defendant's back pay argument is that under the Civil Rights Act of 1991, a plaintiff is not limited to reinstatement or back pay, but can recover compensatory and punitive damages for intentional discrimination.See42...