in industry affecting commerce . . . and any agent of such a person." See id. § 2000e(b) (emphasis added). The term "agent" has been held to include supervisors and other individuals who participate in the discriminatory decision-making process. See Tuber v. Continental Grain Co., 36 Fair Empl. Prac. Cas. (BNA) 933 (S.D.N.Y. 1984) (Conner, J.). Thus, defendants Walker and Kucik may be sued if they fulfill the above requirements.
Defendants contend that although Walker and Kucik may be sued, they may only be sued in their official capacities. Cases in this Circuit have not discussed this issue in the Title VII context. Rather, they appear to assume that both individual and official liability can be imposed under Title VII. See, e.g., Zaken v. Boerer, 964 F.2d 1319, 1322-24 (2d Cir. 1992) (discussing admissibility of evidence against defendant in her individual capacity in Title VII case). However, under the Age Discrimination in Employment Act ("ADEA"), it is clear that "corporate officers and directors may be individually liable." Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 135 (N.D.N.Y. 1990) (emphasis added). Since "the substantive prohibitions of the ADEA were derived in haec verba from Title VII," id. at 134 (citations omitted), this construction of the ADEA is instructive in interpreting Title VII.
Defendants, however, urge the court to adopt the holdings of Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407, 410-11 (N.D.Ill. 1991), and Seib v. Elko Motor Inn, Inc., 648 F. Supp. 272 (D.Nev. 1986). In Weiss, the district court held that individual defendants may not be sued in their individual capacities, relying on the damages provisions of Title VII. The court reasoned that since the damages provisions of Title VII only authorized the type of relief that an employer would be expected to provide -- reinstatement, back pay, etc. -- defendants may not be sued in their individual capacities since individual defendants would be unable to provide this relief. See 772 F. Supp. at 411; accord Seib, supra, 648 F. Supp. at 274.
Other cases that prohibit individual liability have based their holdings on similar reasoning. See Bertoncini v. Schrimpf, 712 F. Supp. 1336, 1340 (N.D.Ill. 1989) (collecting cases); see also Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990).
However, the rationale for adopting such a reading of Title VII has been undercut by the Civil Rights Act of 1991, which authorizes the award of compensatory and punitive damages. See Pub. L. No. 102-166, § 102, 105 Stat. 1071. Since such damages are of a type that an individual can be expected to pay, there appears little reason to adopt the reading of Title VII urged by defendants. Cases adopting the limited reading of Title VII were decided under the former version of the Act and their reasoning is inapposite here. Therefore the court will follow prior cases in this Circuit, which have assumed that both individual and official liability may be imposed, and plaintiffs may maintain suit against defendants Walker and Kucik in their individual capacities under Title VII.
Finally, defendants have moved to dismiss the New York Human Rights Law claims against defendant Walker. Defendants argue that Walker has no ownership interest in Kodak or Yourdon nor any power over personnel decisions and therefore may not be sued under the HRL.
In Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984), the New York Court of Appeals held that a corporate employee may not be individually sued under the HRL "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." 63 N.Y.2d at 542, 483 N.Y.S.2d at 660; accord Wanamaker, supra, 740 F. Supp. at 134. In the present case, defendants contend that Walker was only employed by Kodak, not Yourdon, plaintiffs' nominal employer, and that he had no authority or control over the plaintiffs.
However, as explained above, the relation between Kodak and Yourdon cannot be determined at the present time, and thus the extent of Walker's authority over the plaintiffs is unclear. Even if, as defendants contend, Walker was only employed by Kodak, if it is later determined that Kodak and Yourdon may be treated as a single employer then Walker could possess the requisite authority over the plaintiffs necessary to subject him to liability under Patrowich. In addition, the HRL also makes it an unlawful discriminatory practice "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so." N.Y.Exec. Law § 296(6) (McKinney 1982). Thus, walker might be held liable regardless of whether he is nominally employed by Kodak. See Wanamaker, supra, 740 F. Supp. at 135-36. Since the relationship between Kodak and Yourdon remains unclear, defendants' motion to dismiss the Human Rights Law claims against walker must be denied.
Accordingly, defendants' motion under Rule 12(b)(6), F.R.Civ.P., to dismiss the complaint to the extent that it states claims based on the Civil Rights Act of 1991 is denied. Defendants' motion under Rule 12(b)(6), F.R.Civ.P., to dismiss the Title VII compensatory and punitive damages claims of each plaintiff in excess of $ 300,000 is granted. Defendants' motion, under Rules 12(b)(1) and 12(b)(6), F.R.Civ.P., to dismiss the pendent New York Human Rights Law claims is denied. Defendants' motion under Rule 12(b)(6), F.R.Civ.P., to dismiss the Title VII claims against defendants Walker and Kucik in their individual capacities, and the claim against Walker under New York law is denied.
IT IS SO ORDERED.
Dated: New York, New York
September 1, 1992
Robert L. Carter