Stephens v. Kay Management Co., Inc.

• Decision Date: 07 December 1995
• Docket Number: Civ. A. No. 95cv470-A.
• Citation: 907 F. Supp. 169
• Parties: Marian STEPHENS, Plaintiff, v. KAY MANAGEMENT CO., INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

907 F. Supp. 169

Marian STEPHENS, Plaintiff, v. KAY MANAGEMENT CO., INC., et al., Defendants.

Civ. A. No. 95cv470-A.

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

December 7, 1995.

Candace S. McCall, Fairfax, Virginia, for Plaintiff.

David M. Estabrook, Gordon, Estabrook & Yenas, McLean, Virginia, for Defendants.

MEMORANDUM OPINION

PAYNE, District Judge.

Marian Stephens instituted this action against Kay Management, Inc. ("Kay Management"), her employer, and Susan Pool ("Pool"), her immediate supervisor. In Count I of the Complaint, Stephens alleges discrimination in violation of Section 102(b)(5)(A) of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(b)(5)(A) and seeks redress pursuant to Section 107(a) of the ADA, 42 U.S.C. § 12117, which incorporates by reference Section 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5.¹ This case is before the court on Pool's Motion for Summary Judgment.

STATEMENT OF FACTS

Stephens, a 40-year old female, was employed as assistant resident manager of the Pinewoods Plaza Apartments in Fairfax County from 1983 until 1988, and as the resident manager from 1988 until her employment was terminated on December 31, 1993. Kay Management, which is in the business of managing apartments and other residential properties and employs over 500 people, took over supervision of the Pinewoods Plaza Apartments in February 1992. Pool, who was then employed by Kay Management, worked as the property manager, and was Stephens' supervisor from April 1993 until the termination of Stephens' employment in December.

In February 1992, Stephens suffered a stroke which caused partial paralysis and left her with a weak left leg. She was, however, able to climb stairs one at a time in order to inspect apartments and to walk the grounds of the complex. The Complaint alleges that Pool appeared to be uncomfortable in Stephens' presence and that, on several occasions, Pool told Stephens to let Michael Wernick, a male employee of Kay Management, "be your legs" or "do the walking for you" because "he's younger than you." Stephens also alleges that, notwithstanding her desire and ability to do so, Pool frequently refused to allow Stephens to accompany Pool and Wernick on their walking tours and inspections of the complex. Shortly thereafter, Pool allegedly began complaining that Stephens could not do her job because of the "handicap." According to Stephens, Pool never became aware of how rapidly Stephens, in fact, was recovering from the stroke because Pool refused to allow Stephens along on the inspections of the complex.

On November 19, 1993, the area manager, Peggy Brosnan, and Pool told Stephens that they believed she was physically unable to perform the "outside" duties of the job and asked Stephens to resign. Notwithstanding Stephens' protests and the fact that she had managed the property for ten years without a single complaint, the termination was to be effective January 1, 1994. Stephens never received a warning or counseling for poor performance, both of which are required by the employment policies of Kay Management.

After Stephens left, her husband was told that Wernick had bragged that Pool had been trying to find a way to fire Stephens for some time and "just hadn't found a way to do it earlier." Kay Management subsequently hired a person twenty years younger than Stephens to fill the resident manager position.

Pool seeks summary judgment on the ground that, under the decision in Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994), individuals making personnel decisions of a plainly delegable character cannot be held personally liable under the ADA. This rule, says Pool, means that she is not a proper defendant in this action. For the reasons set forth below, the Motion for Summary Judgment is granted and the action is dismissed as to Pool.

DISCUSSION

Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

This motion presents the purely legal issue whether an individual supervisor may be held personally liable as an "employer" under the ADA for alleged discrimination in employment decisions. It is therefore properly resolved on summary judgment.

When called upon to interpret the ADA, other courts often have looked to the Age Discrimination in Employment Act ("ADEA")² and Title VII of the Civil Rights Act of 1964³ for guidance. The ADA, ADEA, and Title VII all have virtually identical definitions and liability schemes and all are designed with a common purpose: to prohibit discrimination in employment. Moreover, the ADA itself explicitly recognizes the parallel nature of the statutes by incorporating specifically the remedial scheme set by Title VII. Specifically, the ADA provides that

the powers, remedies, and procedures set forth in Title VII shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.

42 U.S.C. § 12117(a). Accordingly, decisions interpreting the ADEA and Title VII provide useful assistance in interpreting similar provisions of the ADA respecting the extent to which a supervisor may be held personally liable for employment decisions.

1. Decisions Under The Age Discrimination In Employment Act

In this circuit, individuals making personnel decisions of a plainly delegable character are not personally liable under the ADEA. 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). In Birkbeck, the Court of Appeals explained that the language of the ADEA limits liability to the "employer," a term which is defined to mean "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...." 29 U.S.C. § 630(b). According to the Court of Appeals, individual supervisory employees do not fall within the reach of that definition because:

It would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more.

Id. at 510.

Other circuits have adopted similar reasoning to foreclose individual liability of supervisory personnel under the ADEA. See e.g., Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994) ("if Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees."); Smith v. Lomax, 45 F.3d 402, 403-04 & n. 4 (11th Cir.1995) (rejecting individual liability for members of the Board of Commissioners on the grounds that they cannot be considered an "employer" under either the ADEA or Title VII).

2. Decisions Under Title VII

Likewise, several district courts in this circuit have applied the reasoning in Birkbeck to Title VII to justify dismissal of individual defendants on the ground that supervisory personnel cannot be held individually liable under Title VII for the dismissal of an employee. Lane v. David P. Jacobson & Co., Ltd., 880 F.Supp. 1091, 1095-96 (E.D.Va. 1995) ("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."). See also Campbell v. Jackson, Civil Action Number 94-1064-R, 1995 WL 790975 (Memorandum Opinion, W.D.Va. June 21, 1995); Mitchell v. RJK of Gloucester, Inc., 899 F.Supp. 246 (E.D.Va.1995) (holding in Birkbeck applies with equal force to Title VII claims); Ellers v. ITT Corp., Electro-Optical Division, et al., 1994 WL 801482 (W.D.Va.1994) (supervisory personnel cannot be held individually liable under Title VII).

Following the same rationale, the Courts of Appeals in several other circuits have held that there is no individual liability for personnel decisions under Title VII. See e.g., Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); Smith v. St. Bernards Regional Medical Center, 19 F.3d 1254, 1255 (8th Cir.1994); Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994); Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir.1994); Smith v. Lomax, 45 F.3d 402, 403-04 & n. 4 (11th Cir.1995).

3. The Americans With Disabilities Act

The ADA forbids discrimination by any "covered entity," defined as "an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. §§ 12112(a); 12111(2). The ADA defines "employer" as "a person engaged in an industry affecting commerce who has 15 or more employees ... and any agent of such person." 42 U.S.C. § 12111(5)(A). This definition mirrors the definition of "employer" in Title VII and in the ADEA.⁴

Title VII, the ADEA and the ADA share a common structure in furtherance of a common purpose. And each statute defines employer, and hence its jurisdictional reach, with reference to a specified number of employees. These threshold requisites reflect in each statute a balance, struck by Congress, between the goals of eradicating discrimination and protecting small enterprises...