Ruich v. Ruff, Weidenaar & Reidy, Ltd., 93 C 4872.

• Decision Date: 05 October 1993
• Docket Number: No. 93 C 4872.,93 C 4872.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Christine M. RUICH, Plaintiff, v. RUFF, WEIDENAAR & REIDY, LTD., and Charles Reiter, Defendants.

837 F. Supp. 881

Christine M. RUICH, Plaintiff, v. RUFF, WEIDENAAR & REIDY, LTD., and Charles Reiter, Defendants.

No. 93 C 4872.

United States District Court, N.D. Illinois, E.D.

October 5, 1993.

Susan G. Feibus, Kane, Obbish, Propes & Garippo, Mary L. Mikva, Seliger & Mikva, Chicago, IL, for plaintiff.

Edward P. Freud, Ruff, Weidenaar & Reidy, Ltd., Chicago, IL, Barry L. Chaet, Beck, Chaet, Loomis, Molony & Bamberger, S.C., Milwaukee, WI, for defendants.

MEMORANDUM OPINION AND ORDER

CONLON, District Judge.

Christine Ruich ("Ruich") sues defendants Charles Reiter ("Reiter") and Ruff, Weidenaar & Reidy, Ltd. ("Ruff, Weidenaar") for sexual harassment, retaliation for filing a charge of discrimination, battery, and intentional infliction of emotional distress. Ruich sues under Title VII of the Civil Rights Acts of 1964, as amended in 1991, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and under Illinois common law. Ruff, Weidenaar and Reiter separately move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).

BACKGROUND

For purposes of ruling on motions to dismiss, the court takes as true all factual allegations in the complaint. Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir.1992). From February 1989 through July 1992, Ruich was employed as a legal secretary for Ruff, Weidenaar, and was assigned to work for Reiter, a partner at the law firm. Complaint ¶¶ 7-8. During that time, Reiter made lewd and sexually suggestive comments to Ruich. Complaint ¶ 9. Reiter also made sexual advances: he kissed the back of Ruich's neck and slapped her backside, and in other ways touched her sexually. Complaint ¶ 10. In June 1992, when Ruich complained to Reiter about his conduct and asked him expressly to cease his sexual advances, Reiter became unduly critical of Ruich's work, and placed unrealistic demands upon her. Complaint ¶ 12.

In July 1992, Ruich complained to the partners of Ruff, Weidenaar, including the managing partner, and informed the management that she felt forced to resign. The partners asked Ruich not to leave the firm, but refused to investigate Reiter's actions. Complaint ¶ 13. The partners of Ruff, Weidenaar had been aware of Reiter's behavior since about March 1989. Complaint ¶ 11.

On July 16, 1992, Ruich told Ruff, Weidenaar's managing partner that she felt she must resign; the managing partner told Ruich that she would be paid through August 15, 1992. Complaint ¶ 14. Subsequently, when Ruich filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), Ruff, Weidenaar's management told Ruich that she would be paid only through July 31, 1992. Complaint ¶ 15. Ruich filed a second charge of discrimination with the EEOC regarding the reduction in severance pay. Complaint ¶ 4.

Ruich has sought psychiatric treatment to combat the emotional distress and depression that Reiter's and Ruff, Weidenaar's actions have caused her. Complaint ¶ 16. On June 23, 1993, the EEOC granted Ruich notification of the right to sue on both charges of discrimination that she had filed. Complaint ¶ 4.

DISCUSSION

1. Motion To Dismiss

A motion to dismiss concerns the sufficiency of the complaint, not the merits of the suit. Triad Ass'n, 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 court grants a motion to dismiss only if it is clear that the plaintiff can prove no set of facts that would entitle him to relief. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir.1993); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

In ruling on motions to dismiss, the court takes all well-pleaded facts to be true, and draws all inferences and resolves all ambiguities in the non-moving party's favor. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993); Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992). Thus, the complaint may be dismissed for failure to state a claim upon which relief can be granted only if the facts that the plaintiff alleges show that she is not entitled to judgment. Bartholet v. Reishauer, A.G., 953 F.2d 1073, 1079 (7th Cir. 1992).

2. Reiter's Motion

a. Individual liability under Title VII

Under Title VII, employers are prohibited from discriminating against their employees. Reiter contends he was not Ruich's employer; he asserts that count I, a Title VII claim against Reiter in his individual capacity, must be dismissed. Reiter argues that Title VII provides a cause of action against an employer, but not against the employer's agent. Reiter asserts that an employee's direct supervisor is merely an agent of the employer, who can be sued only in his official capacity. Reiter's argument is not persuasive.

The appellate courts are divided over the issue of individual liability under Title VII. See Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990) (supervisor may be individually liable as "employer" under Title VII); Jones v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986) (same); but see Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir.1993) (agent not individually liable under Title VII and ADEA). The Seventh Circuit has not addressed the question of individual liability expressly, although it has upheld personal liability against supervisors in Title VII cases. See, e.g., Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir.1989) (upholding personal liability for decision-making supervisor); EEOC v. Vucitech, 842 F.2d 936, 939-42 (7th Cir.1988) (same).

Judges in this district also are divided over the issue of personal liability for supervisors. In Weiss v. Coca-Cola Bottling Co. of Chicago, 772 F.Supp. 407 (N.D.Ill.1991), Judge Duff held that a supervisor could be liable only in his official capacity. In reaching his decision, Judge Duff relied on Title VII's damages scheme, which provides for remedies traditionally associated with an employer —e.g., back-pay and reinstatement. Weiss, 772 F.Supp. at 411. In Pommier v. James L. Edelstein Enterprises, 816 F.Supp. 476 (N.D.Ill.1993), Judge Aspen relied on the definition of employer in Title VII, and followed Weiss, in holding that a supervisor is not an employer for the purposes of Title VII. Pommier, 816 F.Supp. at 480-81. These decisions recently were rejected by Chief Judge Moran in Vakharia v. Swedish Covenant Hospital, 824 F.Supp. 769 (N.D.Ill.1993). In Vakharia, Chief Judge Moran noted the holdings in Weiss and Pommier, and "respectfully disagreed with the conclusion." The Chief Judge found that personal liability of supervisors is necessary to serve the two purposes of Title VII—to compensate victims of discrimination and to deter future discrimination. Vakharia, 824 F.Supp. at 785 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2362, 2371-72, 45 L.Ed.2d 280 (1975)).

The situation in this case differs from the cases discussed above in an important respect. In this case, the supervisor who is being sued in his individual capacity is a partner in the law firm/employer. Reiter was not a mere supervisor who had decisionmaking capabilities. Rather, he was a member of the partnership that employed Ruich; he was Ruich's employer. Under Title VII, "the term `employer' means a person engaged in an industry affecting commerce ... and any agent of such person." 42 U.S.C. § 2000e(b) (emphasis added). The courts that have ruled on personal liability under Title VII have considered whether the "agent" is liable as an "employer." See, e.g., Pommier v. James L. Edelstein Enterprises, 816 F.Supp. 476, 480-81 (N.D.Ill.1993). In this case, Reiter was not an agent, but was the employer himself.

The conclusion that Reiter was Ruich's employer is bolstered by the Seventh Circuit's holding in EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178-79 (7th Cir.1984). In the Dowd & Dowd case, the question was whether a law firm qualified as a Title VII employer that employed more than fifteen employees. In concluding that the law firm was not covered under Title VII because it employed fewer than fifteen workers, the Seventh Circuit held that shareholder attorneys in an incorporated law firm are not employees under Title VII, but are employers. See also Burke v. Friedman, 556 F.2d 867, 869 (7th Cir.1977) (partners in accounting firm are employers under Title VII).¹ Ruich may sue Reiter, her former employer, in his personal capacity under Title VII. Reiter's motion to dismiss count I is denied.

b. Supplemental jurisdiction

Because Reiter is a proper defendant under Title VII, Reiter's contention that the court should not exercise supplemental jurisdiction over the state law counts (counts II, III, and IV) is moot.

3. Ruff, Weidenaar's Motion

Ruff, Weidenaar contends that Ruich's common law claims in counts III and IV are preempted by the exclusivity provisions of the Illinois Workers Compensation Act ("IWCA"). 820 ILCS 305/1, et seq. Under the IWCA, an employee may not recover common law damages from her employer unless she establishes that her injuries: (1) were not accidental; (2) did not arise from employment; (3) did not occur during the course of employment; or (4) are not compensable under the IWCA. See Juarez v. Ameritech Mobil Communications, Inc., 957 F.2d 317, 323 n. 4 (7th Cir.1992). Ruff, Weidenaar asserts that Ruich's injuries were accidental because Ruff, Weidenaar did not authorize Reiter's conduct. Because Reiter is a partner in the law firm, and thus was Ruich's employer, Ruff, Weidenaar's position is untenable.

In Meerbrey v. Marshall Field & Co., 139 Ill.2d 455, 151 Ill.Dec. 560, 564, 564 N.E.2d 1222, 1226 (1990), the Illinois Supreme Court ruled that injuries that are inflicted intentionally by a co-worker are "accidental" under the IWCA, because they are accidental from the point of view of both the employee and the employer. The Meerbrey court...