of the document contains the unenumerated statement, "Our mission is to enforce fast play, golf course management, increase good public relations and for everyone to have a [sic] enjoyable time." Costello Aff. of 3/8/95, Ex. A. At best, this neutral language raises an issue of fact as to whether it should have put plaintiffs on notice that they needed to improve their performance. During his deposition, Austin stated that no supervisor gave him instructions at the time he received the list and that the ranger duties already were "quite apparent" to him. Def. Aff. Ex. D, at 44-45. McPeak testified that he never spoke with Costello about the list and that he already was performing each of the tasks on the list. Id. Ex. E, at 80-82. Thus, it would be entirely reasonable for a jury to conclude that the "Ranger Duties" document did not constitute criticism.
Moreover, although Costello testified that negative criticism was not his management style, this legitimate explanation for the lack of criticism of plaintiffs' performance is only one of several permissible inferences. Chambers, 43 F.3d at 39. Similarly, while it may be true that defendants never cited poor performance as a reason for their decision in an effort to spare plaintiffs' feelings, a jury also could interpret the facts to show that defendants' performance rationale for their decision is a pretext. Cornell argues that the lack of criticism in 1992 is irrelevant to its 1993 seasonal hiring decisions. However, the defendants' testimony shows that they based their evaluations of plaintiffs' ability to monitor the 1993 double wave system of play on plaintiffs' 1992 performance. For example, defendant Costello answered affirmatively when counsel for plaintiffs asked him whether he decided not to rehire plaintiffs in 1993 because he "had come to the view that their performance in the 1992 season was inadequate." Pl. Decl. Ex. C, at 58. Contrary to Cornell's assertion, this is not a case where defendants were being asked to give plaintiffs a "second chance" at being rangers. Consequently, a number of unresolved factual issues exist regarding plaintiffs' alleged poor performance.
Finally, although not raised by plaintiffs, the fact that Cornell never asked Austin or McPeak whether they would work increased hours undercuts this otherwise legitimate consideration. At oral argument, counsel for defendants stated that Cornell "assumed" and "perceived" that plaintiffs would not work 20 hours per week, based on their comments and behavior. However, defendants cannot assume plaintiffs' response and then base their decision on this assumption. Cf. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 205-06 (2d Cir. 1995) (holding that inference of age discrimination was supported by fact that employer experiencing a reduction-in-force never surfaced plaintiffs name for positions for which he was qualified).
Consequently, with respect to their refusal to hire claim, Austin and McPeak established a prima facie case of age discrimination, which Cornell effectively rebutted by articulating the golf course reorganization as the legitimate basis for its decision. However, plaintiffs raised genuine issues with respect to whether Cornell's explanation was pretextual. A rational trier of fact, drawing all reasonable inferences in favor of plaintiffs, could conclude that age more likely than not was the basis of Cornell's decision. Defendants' motion for summary judgment regarding this claim therefore is denied. However, because plaintiffs conceded that they were seasonal workers, they failed to establish a claim of unlawful termination. Defendants' motion for summary judgment regarding this claim is granted.
III. Individual Liability
Cornell contends in the alternative that individual defendants Costello and Szabo cannot be held liable for discrimination under the ADEA. Defendants argue that these individuals are not "employers" as defined by 29 U.S.C. § 630(b), which establishes the scope of ADEA liability. Plaintiffs respond that individual agents of an employer may be held liable for age discrimination if they exercised supervisory control over the disputed employment decision.
The provisions of the ADEA apply to an "employer." 29 U.S.C. § 623(a). The ADEA defines employer as "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 . . . [and] the term also means . . . any agent of such a person. . . ." Id. § 630(b). A number of Circuit Courts of Appeals have held that because the ADEA applies only to employers with at least twenty workers, it would be incongruous to impose ADEA liability on a single individual. See, e.g., Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.), cert. denied, 115 S. Ct. 666, 130 L. Ed. 2d 600 (1994); Miller v. Maxwell's Int'l, 991 F.2d 583, 587 (9th Cir. 1993), cert. denied, 114 S. Ct. 1049, 127 L. Ed. 2d 372 (1994). These courts held that an individual's discriminatory actions merely create liability for the employer under the theory of respondeat superior. Birkbeck, 30 F.3d at 510.
Because the Second Circuit Court of Appeals has not decided this issue, Cornell urges me to adopt the reasoning of other circuits and hold that the ADEA does not permit individual liability. However, district courts in the Second Circuit have interpreted the ADEA definition of employer to hold that individuals may be liable for age discrimination if they are the "agents" of an employer. Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 134 (N.D.N.Y. 1990) (McCurn, C.J.); Bostick v. Rappleyea, 629 F. Supp. 1328, 1334 (N.D.N.Y. 1985), aff'd, 907 F.2d 144 (2d Cir. 1990). But see Coraggio v. Time Inc. Magazine Co., 1995 U.S. Dist. LEXIS 5399, 1995 WL 242047, *7-8 (S.D.N.Y. 1995). In both Wanamaker and Bostick, the district court held that individuals are agents of the employer if they participate in the alleged discriminatory decision making process and "control some aspect of an individual's compensation, terms, conditions, or privileges of employment." Wanamaker, 740 F. Supp. at 134 (quoting Bostick, 629 F. Supp. at 1334). Contrary to Cornell's assertion, the application of individual liability is not limited to individuals acting as president, board member, trustee, or partner of an employer but instead focuses on the individual's function in the workplace. Bostick, 629 F. Supp. at 1334-35.
In the context of an analogous Title VII action, a district court in the Second Circuit has held that voting members of a corporate board cannot be held liable for the corporate entity's discriminatory acts unless the individuals exercise "supervisory control, such that they are vested with independent authority to effectuate employment decisions . . .." DeWald v. Amsterdam Hous. Auth., 823 F. Supp. 94, 103 (N.D.N.Y. 1993) (emphasis in original). Similarly, a hospital employee was held individually liable under Title VII because he possessed independent authority to effectuate plaintiffs termination and was responsible for the termination. Dirschel v. Speck, 1994 U.S. Dist. LEXIS 9257, 1994 WL 330262, *6 (S.D.N.Y. 1994). But see Bradley v. Consolidated Edison Co., 657 F. Supp. 197, 207 (S.D.N.Y. 1987) (holding that individuals acting within scope of authority were not employers or agents thereof under Title VII). DeWald and Dirschel are consistent with Wanamaker and Bostick because of the analytical focus on individual control over disputed employment decisions.
Although courts are divided on the imposition of individual liability under the ADEA, I will adopt the reasoning of prior decisions in the Northern District of New York. Thus, Costello and Szabo may be individually liable for discriminatory acts they performed while exercising supervisory control over plaintiffs' employment. In this case, it is clear that defendants Szabo and Costello controlled plaintiffs' employment with Cornell. There is no dispute that they, along with Deibert, jointly decided not to rehire plaintiffs. Moreover, Costello was plaintiffs' direct supervisor. Thus, the individual defendants participated in the process that plaintiffs claim was discriminatory, and I will not dismiss the complaint against them. Defendants' motion accordingly is denied.
IV. Motion to Strike Paragraph 24
Cornell finally requests that I strike Paragraph 24 of the complaint because complaints often are admitted into evidence, and this paragraph concerns settlement discussions of which the jury should not be informed. Plaintiffs respond that the paragraph is evidence that Cornell's discrimination was wilful because it failed to cure the discrimination despite notice from plaintiffs. Because punitive damages are permitted in cases of wilful discrimination, Austin and McPeak argue that the paragraph is relevant to the issue of damages but not liability.
Rule 408 of the Federal Rules of Evidence excludes evidence of compromise negotiations offered to prove liability. Fed. R. Evid. 408. Application of the rule may involve factual issues, such as whether the offer was made in the course of settlement negotiations, and the court determines these facts. Pierce, 955 F.2d at 827. An offer is presumed to fall within Rule 408 if "a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation." Id. The case cited by plaintiffs, Cassino v. Reichhold Chems., 817 F.2d 1338, 1342 (9th Cir. 1987), cert. denied, 484 U.S. 1047, 108 S. Ct. 785, 98 L. Ed. 2d 870 (1988), holds no differently.
Paragraph 24 of plaintiffs' complaint states:
Plaintiffs attempted to resolve their dispute with defendants by contacting the Cornell University counsel's office to report that they had been dismissed on the basis of their age. After a brief investigation into the matter, the University counsel's office found "no basis for [a] claim of age discrimination or any other illegal discrimination in this case" and declined plaintiffs' request for conciliation.
Compl. P 24. This paragraph clearly concerns settlement negotiations covered by Rule 408. The paragraph alludes to correspondence between plaintiffs' counsel and Cornell. At the time these letters were written, plaintiffs were represented by counsel and had an actual dispute with Cornell regarding its employment decision. The letters in the record clearly show that plaintiffs' counsel aimed to achieve a settlement, and counsel even proposed a settlement amount. One of the letters was written after plaintiffs filed their claims with the EEOC, which is an initial step in litigation. Moreover, by using terms such as "resolve" and "conciliation," the very language of the paragraph concerns settlement rather than notice as plaintiffs now contend. Thus, Paragraph 24 alludes to settlement negotiations and falls within the scope of Rule 408. I therefore grant defendants' request to strike the paragraph from the complaint. Plaintiffs may be given an opportunity at trial to submit appropriate evidence to prove wilful discrimination.
For the foregoing reasons, defendants' motion for summary judgment is denied with respect to plaintiffs' claims of unlawful refusal to hire. Defendants' motion for summary judgment on plaintiffs' unlawful termination claims is granted. In addition, because I find that the ADEA permits individual liability, I deny defendants' motion for summary judgment dismissing the complaint against Costello and Szabo. Finally, I grant defendants' motion to strike Paragraph 24 of the complaint because it refers to settlement discussions between the parties.
IT IS SO ORDERED.
Dated: July 20, 1995
Syracuse, New York
ROSEMARY S. POOLER
United States District Judge