Lane v. David P. Jacobson & Co., Ltd.

• Decision Date: 22 March 1995
• Docket Number: Civ. A. No. 2:94CV1101.
• Parties: Jackie T. LANE, Plaintiff, v. DAVID P. JACOBSON & COMPANY, LTD., and Howard Jacobson, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

880 F. Supp. 1091

Jackie T. LANE, Plaintiff, v. DAVID P. JACOBSON & COMPANY, LTD., and Howard Jacobson, Defendants.

Civ. A. No. 2:94CV1101.

United States District Court, E.D. Virginia, Norfolk Division.

March 22, 1995.

COPYRIGHT MATERIAL OMITTED

Henry Evans Howell, III, Virginia Beach, VA, for plaintiff.

Linda S. Laibstain, Hofheimer, Nusbaum, McPhaul & Samuels, Norfolk, VA, for defendants.

OPINION AND ORDER

MILLER, United States Magistrate Judge.

Plaintiff Jackie T. Lane has filed a seven-count complaint against defendants David P. Jacobson & Company ("the Company") and Howard Jacobson. The complaint includes two federal law claims and five state law claims: (1) sexual harassment under Title VII, (2) constructive discharge under Title VII, (3) wrongful termination, (4) intentional infliction of emotional distress, (5) assault and battery, (6) insulting words, and (7) breach of contract.

This matter comes before the Court on two motions to dismiss, one filed individually by Howard Jacobson, and the other filed jointly by David P. Jacobson & Company, Ltd. (the Company) and Howard Jacobson.

All the parties have consented to have all proceedings in this case conducted before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. After a review of the memoranda submitted by the parties, and the applicable statutory and case law, the Court GRANTS both motions to dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Jackie T. Lane worked as a sales representative for a family-owned business located in Norfolk, David P. Jacobson & Company, from 1989 to 1993. The Company specializes in screenprinting and embroidery of t-shirts, sweatshirts, and other items, and does custom designing for a wide range of clients around the country. Lane's responsibilities included soliciting clients, both over the phone and in person.

In her complaint, Lane alleges that she was subjected to a barrage of offensive and abusive conduct and statements regarding both sexual topics and her physical appearance by Howard Jacobson, the president of the Company, and Tan Vo, an employee of the Company. Lane claims that as a result of the abusive conduct of these two individuals she left the Company.

Lane brought this action seeking compensation for these alleged incidents. Both defendants, the Company and Howard Jacobson, have moved to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

Plaintiff Lane filed the original complaint on November 14, 1994, and both defendants filed these motions to dismiss in lieu of answers with accompanying memoranda in support on December 19, 1994. Plaintiff filed memoranda in opposition to the two motions to dismiss on January 11, 1995, and both defendants filed reply memoranda on January 24, 1995.

The undersigned heard oral arguments on this matter on February 9, 1994.

II. STANDARDS FOR A MOTION TO DISMISS UNDER RULES 12(b)(1) AND 12(b)(6)

A motion to dismiss for lack of subject matter jurisdiction 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 party asserting subject matter jurisdiction has the burden to allege and prove such jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In a facial attack, the court assumes all the facts in the complaint are true, thus providing the plaintiff with the same procedural protections as a Rule 12(b)(6) determination. Id.

In a challenge to the underlying allegations of the complaint, the court may consider evidence outside of the complaint to determine whether sufficient facts support the jurisdictional allegations. The court may "consider evidence by affidavit, depositions or live testimony." Id. (citing Mims v. Kemp, 516 F.2d 21 (4th Cir.1975)). Thus, unlike the procedures for a 12(b)(6), which reserves "the truth finding role for the ultimate factfinder, the court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction." Adams, 697 F.2d at 1219; see also Thigpen v. United States, 800 F.2d 393, 396 (4th Cir.1986) ("a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion"). In fact, "the nature of jurisdiction requires that courts establish in fact, rather than assume blindly, their power to hear a dispute." Thigpen, 800 F.2d at 396.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept the facts pleaded by the plaintiff as true. The claim should not be dismissed unless it appears to a certainty that the plaintiff can prove no facts in support of his claims which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); cf. Bruce v. Riddle, 631 F.2d 272, 273-74 (4th Cir.1980). The complaint must be liberally construed in favor of the plaintiff, even if it appears that "recovery is remote and unlikely." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). In ruling on a 12(b)(6) motion, the court can only rely upon the allegations in the complaint and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery County Police Officers, 762 F.2d 30, 31 (4th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986).

In deciding a 12(b)(6) motion, the court accepts the factual allegations in the complaint and must construe them in the light most favorable to the plaintiff. Martin Marietta Corp. v. Int'l Telecommunications Satellite Org., 991 F.2d 94 (4th Cir.1993).

With these controlling principles in mind, the Court turns to the merits of the motions.

III. ANALYSIS

A. Defendant Howard Jacobson's Motion to Dismiss

1. Individual liability under Title VII

Defendant Howard Jacobson argues that Title VII does not permit the imposition of personal liability on supervisors but only on employers, and urges dismissal under Rule 12(b)(1) on this basis.

Title VII refers to an employer as "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(b) (1988) (emphasis added). Plaintiff looks to the emphasized language in the statute as support for her federal claims against Howard Jacobson.

Although several cases have allowed plaintiffs to pursue individuals based on this phrase in Title VII, see, e.g., Harvey v. Blake, 913 F.2d 226 (5th Cir.1990); House v. Cannon Mills, Co., 713 F.Supp. 159 (M.D.N.C.1988), other courts have held that the use of this language merely ensures that the acts of individuals are imputed to the employer through respondeat superior, and is not intended to provide for a remedy against the actual individual wrongdoers. See, e.g., Miller v. Maxwell's Int'l, 991 F.2d 583 (9th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994).

A recent district court opinion from the Western District of Virginia has rejected liability premised upon the same theory, relying on language in a recent Fourth Circuit decision.

In Ellers v. ITT Corp., Electro-Optical Division, et al., Civil Action Number 94-0420-R (Memorandum Opinion, W.D.Va. Nov. 11, 1994), the court determined that a supervisor could not be found individually liable under Title VII. The court in Ellers looked to Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994) for support. In Birkbeck, the Fourth Circuit rejected a claim brought under the Age Discrimination in Employment Act (ADEA) against a supervisor under an identical theory. The court in Birkbeck determined that the use of the term "agent" in the definition of "employer" under the ADEA did not create individual liability, but instead merely reiterated the principle of respondeat superior.

Although Birkbeck interpreted the ADEA and not Title VII, the relevant language in both statutes is identical. In fact, as support for its rejection of the ADEA claim, the Fourth Circuit cited Miller, 991 F.2d at 583, a case in which the Ninth Circuit rejected a claim for individual liability under Title VII. The court in Ellers concluded that "given the Birkbeck court's reliance on Title VII cases and the recognized similarities of the statutory schemes ... the Birkbeck holding should apply to this case. The `agency' principle in § 2000e(b) can create civil liability only for the individual defendant's employer." Ellers, 9-0420-R at 4.

Therefore, although Birkbeck interpreted the term "employer" in the ADEA, the court in Ellers looked to the reasoning in the Birkbeck decision as powerful support for denying individual liability under both Title VII and the ADEA. Although the holding of the Fourth Circuit was not founded on the Title VII language, the clear implication of the decision in Birkbeck was that the Fourth Circuit does not support individual liability for agents of employers under Title VII.

Plaintiff's response is based primarily on an argument about what the law should be. While the law review articles she cited for support might portend the future, the cases in this circuit have not found in her favor. And, as defendant pointedly noted, Congress has had ample time to correct any ambiguity in the statute.

Thus, the Court GRANTS defendant Howard Jacobson's motion to dismiss for lack of subject matter jurisdiction on the Title VII claims.

2. Prefiling requirements for Title VII claims

Defendant argues that plaintiff has failed to complete the required prefiling formalities for the commencement of a Title VII action. Although plaintiff did file an administrative Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC) on December 21, 1993, and...