Lynam v. Foot First Podiatry Centers, PC

• Decision Date: 25 May 1995
• Docket Number: No. 94 C 6789.,94 C 6789.
• Citation: 886 F. Supp. 1443
• Parties: Julie LYNAM, et al., Plaintiffs, v. FOOT FIRST PODIATRY CENTERS, P.C., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

886 F. Supp. 1443

Julie LYNAM, et al., Plaintiffs, v. FOOT FIRST PODIATRY CENTERS, P.C., et al., Defendants.

No. 94 C 6789.

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

May 25, 1995.

Stephen G. Seliger, Mary Lane Mikva, Clare Marie Kralovec, Seliger & Mikva, Ltd., and James Gerard Bradtke and Jennifer Kay Soule, Soule & Bradtke, Chicago, IL, for plaintiffs.

Carmel M. Cosgrave, Michael S. Loeffler, Andrew S. Nadolna, Thomas P. Carney, Jr., Querrey & Harrow, Ltd., and Michael T. Roumell, and Tracey Lynne Truesdale, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiffs Julie Lynam ("Lynam"), Robin Schmulbach ("Schmulbach"), and Jenny Lucchesi ("Lucchesi") bring this sex discrimination action against the defendants¹ under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1983 & Supp.1995) (count I). Invoking the Court's supplemental jurisdiction, plaintiffs Lynam and Schmulbach also assert various state-law claims: Lynam and Schmulbach bring claims against some of the individual defendants under Illinois law for assault and battery based on their alleged touching of these plaintiffs (count II); and, Lynam also raises a claim of intentional infliction of emotional distress against the individual defendants (count III).

Defendants Sklar, Wilhelm, Stojanovski, Lantvit and Lieb² move to dismiss count I of plaintiffs' complaint on the ground that Title VII does not authorize the imposition of liability against individuals in their individual capacity-except perhaps under certain circumstances not present here. These defendants also move to dismiss counts II and III, contending that these counts are barred by the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq.

BACKGROUND

Plaintiffs' first amended complaint alleges the following facts which are taken as true on a motion to dismiss. See Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir.1989).

Lynam, Schmulbach, and Lucchesi were employed as medical assistants at various Foot First Podiatry Centers in the Chicago suburban area. Defendant Sklar is the President and Secretary of four of the five Foot First corporate defendants named in this suit and had primary supervisory authority at all of the Foot First offices where the plaintiffs worked. Am.Compl. ¶ 9. In particular, Sklar was plaintiffs' primary supervisor. Id. Defendants Wilhelm, Warheit, Stojanovski, Lantvit, and Lieb also had supervisory authority at Foot First centers at which plaintiffs worked; and, plaintiffs specifically allege that each of these defendants was one of their supervisors with authority to affect their interests (including authority to hire, fire, and promote). Id. ¶¶ 10-14. During the course of plaintiffs' employment, all six of these individually named defendants repeatedly made lewd and sexually suggestive, sexually profane and generally offensive sexual remarks to the plaintiffs while they were working. Id. ¶ 15. Additionally, defendants Sklar, Wilhelm, and Stojanovski "touched plaintiff Lynam in an offensive and unwelcome manner" and Sklar and Wilhelm "touched plaintiff Schmulbach in an offensive and unwelcome manner." Id. ¶ 15. Sklar discharged Lynam in November of 1992 because she would not participate in or encourage the individually named defendants' sexually offensive behavior. In March and May of 1993 respectively, Lucchesi and Schmulbach were constructively discharged for the same reasons. Id. ¶ 16.

ANALYSIS

Standard of Review

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Associates, Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). The only question is whether relief is possible under any set of facts that could be established consistent with the allegations. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). All well-pleaded facts are taken as true, all inferences are drawn in favor of the plaintiff and all ambiguities are resolved in favor of the plaintiff. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992).

Count I

On May, 22, 1995, the Seventh Circuit issued its opinion in U.S. E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir.1995), in which the court held that "individuals who do not otherwise meet the statutory definition of `employer' cannot be liable under the ADA." Id. at 1282. Because the ADA and Title VII define "employer" in a materially identical manner, that holding compels the same result in a suit brought under Title VII. See Jendusa v. Cancer Treatment Centers of America, 868 F.Supp. 1006, 1008 n. 2 (N.D.Ill.1994); AIC Security, 55 F.3d at 1282 ("our holding ... obviously affects the resolution of the very similar questions under Title VII and the ADEA"). Although this Court continues to be of the opinion that Congress' intent to eradicate discrimination in the workplace is best served by recognizing individual liability under the antidiscrimination statutes, see Jendusa, 868 F.Supp. at 1011, we are mindful of our subordinate position as a district court and recognize that we are, of course, bound to follow Seventh Circuit precedent. Accordingly, we grant defendant's motion to dismiss count I as directed against them in their individual capacity.³

As a postscript, however, we note that although the Seventh Circuit has now provided much needed guidance in this circuit, the final word has, perhaps, not yet been spoken. The circuits continue to be split and, indeed, within several circuits there is no clear consensus. See Ball v. Renner, 54 F.3d 664, 666-67 (10th Cir.1995) (summarizing circuit court positions). As one example of the divergent views of the circuit courts, we observe that in AIC Security, the Seventh Circuit adopted the position that the "and any agent" language of the antidiscrimination statutes serves merely "to ensure that courts would impose respondent superior liability upon employers for the acts of their agents." AIC Security, 55 F.3d at 1281. In stark contrast, less than two weeks earlier, the Tenth Circuit observed in dicta that reading the "and any agent" language as merely embodying respondent superior principles "makes little sense" while,

giving the "agent" phrase its literal meaning — that is, as making the responsible agent a statutory "employer" who is prohibited ... from discriminatory conduct and is rendered liable ... for violating that prohibition — is eminently sensible as a matter of statutory structure and logical analysis.

Ball v. Renner, 54 F.3d 664, 667 (10th Cir. 1995). Ultimately, the Ball court did not have to reach the issue because it held that the individually named defendant in that case could not be found to be an "employer" because he lacked supervisor/managerial authority over the plaintiff. Id. at 667-68. As the Ball court observed, the recent holdings of the Tenth Circuit are somewhat equivocal with respect to whether individual supervisors may be held personally liable. See id.; compare Sauers v. Salt Lake County, 1 F.3d 1122, 1124-25 (10th Cir.1993) (permitting suit against an individual but only in his or her "official capacity" hence negating personal liability) and Brownlee v. Lear Siegler Management Servs. Corp., 15 F.3d 976, 978 (10th Cir.1994) (noting that "a principal's status as an employer can be attributed to its agent to make the agent statutorily liable for his own age-discriminatory conduct"). However, if the Ball opinion represents the current inclination of the Tenth Circuit, then it would appear that the Tenth Circuit is now leaning toward recognizing individual liability under Title VII thus deepening the divide between the circuits. In view of the conflicting circuit opinions and the national importance of the issue we would not be at all surprised to see the Supreme Court consider the matter and provide the final judicial word.

We find some support for this Court's principle emphasis on the antidiscrimination statutes' deterrent function, see Jendusa v. Cancer Treatment Centers of America, Inc., 868 F.Supp. 1006, 1011 (N.D.Ill.1994) ("this court is fundamentally persuaded that the prospect of individual liability is essential if the antidiscrimination statutes are to have their full deterrent effect"), in the Supreme Court's most recent discussion of the antidiscrimination statutes in McKennon v. Nashville Banner Publishing Co., ___ U.S. ___, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). In McKennon, wherein the Court addressed the effect of so-called after-acquired evidence on the viability of an ADEA claim, the Court reiterated the important societal functions served by the private litigant who seeks redress for his or her injuries resulting from employment discrimination. The Court began its discussion by articulating the common purpose of the antidiscrimination statutes: "`the elimination of discrimination from the workplace,'" ___ U.S. at ___, 115 S.Ct. at 884 (quoting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979)), thereby underscoring the importance of the fundamental deterrence objective of these statutes. Quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 94 S.Ct. 1011, 1018, 39 L.Ed.2d 147 (1974), the Court noted that "the private litigant in Title VII not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices." McKennon, ___ U.S. at ___, 115 S.Ct. at 884. This Court remains "fundamentally persuaded" that the prospect of individual liability is essential if Congress' intent to deter discriminatory employment practices is to be fully effectuated. See Jendusa, 868 F.Supp. at 1011. Moreover, in view of such language, we believe that the Seventh Circuit has perhaps too easily...