fair notice, the service should be sustained." Vincent C. Alexander, N.Y. Civ. Prac. L. & R. § 311, Supplementary Practice Commentaries C311:1 (McKinney Supp. 1995). Nonetheless, nothing in the case law supports plaintiff's assertion that service of process on the chairperson of the board of trustees is sufficient to give notice to the hospital under New York law. Plaintiff has provided no authority, and the court can find none, that shows that the chairperson of the board of trustees of a corporate entity is meant to be included as a person to properly receive process under § 311(1). See, e.g., Plainview Plumbing & Heating Co. v. Ethical Culture Soc'y of Long Island, Inc., 24 Misc. 2d 1005, 205 N.Y.S.2d 419, 420 (Sup. Ct. Nassau County 1960) (holding that a "Spiritual Leader" was not an officer of the corporation, and as an ex-officio member of the board of directors who had no management duties and who played no role in the conduct of business affairs, was not a proper person to receive process); Fashion Page Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 406 N.E.2d 747, 428 N.Y.S.2d 890, 893 (1980) (listing a variety of corporate personnel who may act as agents for receipt of process but not listing persons on the board of trustees or its directors or officers).
Plaintiff incorrectly refers to Mr. DeSio as "the president and chairman of the Board of Directors" and thus considers him to be both a "director" and an "officer" of the hospital. Pltf. Memo. at 5. However, as David Andersen, Chief Executive Officer of Saratoga Hospital and Nursing Home attests, Mr. DeSio is neither an agent nor an officer of the hospital, spends only four to five hours a month attending Board of Trustee and committee meetings, receives no compensation for his position, and has no individual authority to act on behalf of the hospital. Andersen Aff. at PP 2-4. In short, all evidence before the court points to the conclusion that Mr. DeSio is not a proper individual to receive service on behalf of Saratoga Hospital under either federal or state law. Thus, the court finds that Saratoga Hospital has not been properly served.
2. Individuals as Defendants under the ADA - Dismissal Motion Pursuant to Rule 12(b)(6)
Defendants also assert that plaintiff cannot bring valid claims under the ADA and Rehabilitation Act against the individual defendants she has named because these statutes do not provide for individual liability. On a dismissal motion for failure to state a claim the general rule is that the allegations in a plaintiff's complaint are deemed to be true and must be liberally construed in the light most favorable to the plaintiff. Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). A complaint should not be dismissed unless it appears beyond a reasonable doubt that the plaintiff cannot in any way establish a set of facts to sustain her claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). Nonetheless, it is the plaintiff who has the burden of showing that the court has jurisdiction over a claim at all stages of litigation. Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). Plaintiff here has not supported her burden of showing that the court may hear claims under the ADA and Rehabilitation Act brought against individuals while the defendants have shown that the court cannot.
Plaintiff simply states as a defense to defendants' motion to dismiss that agents of employers are subject to liability in their capacities as agents under both the ADA and Rehabilitation Act because both statutes refer to employers as "any agent of such person." While the statutes do use this language, this court has not interpreted it to create individual liability against such agents.
Under the analogous Title VII of the Civil Rights Act of 1964 it has been held that individual supervisory employees may be named in their official capacities as agents of the employer only as a means to recover from the employer for violations, not to hold them individually liable. Saville v. Houston County Healthcare Auth., 852 F. Supp. 1512, 1522 (M.D. Ala. 1994). Title VII defines "employers" as "persons[s] engaged in an industry affecting commerce who [have] fifteen or more employees ..." 42 U.S.C. § 2000e(b). Many courts have held that individual supervisors may not be held liable under Title VII because the statutory definition of "employers" shows that Title VII was not meant to impose individual liability on employees. See, e.g., Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 & n.2 (9th Cir. 1993); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Saville, 852 F. Supp. at 1522-25. This court has adopted this reasoning. See Dean v. Pepsi-Cola Binghamton Bottlers, 94-CV-49 (N.D.N.Y. Mar. 13, 1995) (granting dismissal of a Title VII claim against plaintiff's supervisors due to the lack of individual liability afforded under Title VII).
The ADA definition of "employers" mirrors that of Title VII. 42 U.S.C. § 12111(5) (1994). The definition of "employers" found in the ADA is also applicable to the Rehabilitation Act. 29 U.S.C. § 794(d) (1993 Supp.); Haltek v. Village of Park Forest, 864 F. Supp. 802, 803 (N.D. Ill. 1994). Just as with Title VII, a number of courts have held that individuals may not be held liable under the ADA and Rehabilitation Act because the statutory definition of "employers" shows that these statutes were not meant to impose individual liability on employees. See. e.g., Haltek, 864 F. Supp. at 803-05 (holding that the ADA and Rehabilitation Act do not allow individual liability based on the acceptance of this rationale as applied to Title VII claims); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1405-06 (N.D. Ill. 1994) (holding that the ADA does not allow for individual liability).
While it appears that few courts have addressed this issue in regard to the ADA and Rehabilitation Act, it would appear to be unsound policy to allow claims against persons in their individual capacities under these statutes while not allowing them under Title VII. Since the definition of "employers" is analogous in each of these acts, it follows that if this court finds that the naming of individuals in Title VII actions can only be used to underscore the principle that employers have respondeat superior liability for the discriminatory acts of their agent employees, no additional liability may be attached under the ADA and Rehabilitation Act. Thus, plaintiff's claims against defendants Andersen and Zimmerman, insofar as they are brought against them in their individual capacities, are dismissed pursuant to Fed.R.Civ.P. 12(b)(6). In doing so, the court finds it unnecessary to reach the issue of whether Andersen and Zimmerman may be sued individually although not named in plaintiff's EEOC complaint.
3. Representative Liability
Although the court has decided that defendants Zimmerman and Andersen may not be held individually liable on plaintiff's claims, they still may be named as defendants in a representative capacity to assert liability against Saratoga Hospital. See Busby, 931 F.2d at 772 (stating that "the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly); Grant, 21 F.3d 649, 652 (adopting the rationale in Busby and holding that it should not be limited to the context of public employees); Gardiner v. Dotson, 1994 U.S. Dist. LEXIS 13412, 1994 WL 520885 at *1 (N.D. Ala. Sept. 19, 1994) (holding that an ADA claim against an employer may be made by naming the employer directly or by naming supervisory employees as agents of the employer). It is not entirely clear in this case whether plaintiff has named the individual defendants in their individual or official capacities. The complaint does not use the terms "official capacity," "representative capacity," or "as agents of" to denote the manner in which Andersen and Zimmerman are named as defendants. However, weighing all ambiguities in favor of the plaintiff, the assertions in the body of her complaint could be construed as claims against these defendants in their official capacities. Furthermore, despite defendants' assertion to contrary, the court cannot read Millard v. Montclair State College, 34 Fair Empl. Prac. Cas. (BNA) 1798, 1799 (D.N.J. 1982) as embodying the principle that official capacity claims against defendants are dismissed along with the individual capacity claims when the defendant fails to name them in the EEOC complaint. In fact other courts have held, and this court believes rightly so, that Title VII claims against persons in their representative capacities may survive even after the individual capacity claims against those persons have been dismissed for failure to name those defendants in the EEOC charge. Rolin v. Escambia County Bd. of Educ., 752 F. Supp. 1020, 1024 (S.D. Ala. 1990). The court believes that the same reasoning should be applied to the claims in this case due to the ADA and Rehabilitation Act's similarities to Title VII, as previously discussed.
In light of the lack of clarity in plaintiff's complaint, the court grants plaintiff 30 days in which to amend her complaint to state a claim against the supervisory employees in their capacities as agents of Saratoga Hospital should the plaintiff indeed be making such a claim. The court finds this appropriate in light of the principle that any ambiguities are to be resolved in favor of the plaintiff on a motion to dismiss. The court cautions, however, that this is not an opportunity to bring additional claims, but only an opportunity to restate a claim which may already exist.
In summary, the court grants reconsideration of its previous order and judgment dismissing this case and vacates them. However, it finds that the claims must be dismissed against Saratoga Hospital as a named defendant due to the failure to serve a proper individual and finds that the claims against defendants Andersen and Zimmerman, insofar as they are brought against them in their individual capacities, must be dismissed pursuant to Rule 12(b)(6). Should plaintiff's claims against defendants Andersen and Zimmerman be brought against them in their official capacities as agents of Saratoga Hospital, the court grants plaintiff 30 days to file an amended complaint reflecting this.
IT IS SO ORDERED.
Dated March 31, 1995
at Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge