OPINION AND ORDER
LEISURE, District Judge:
This is an action for employment discrimination. Plaintiff is Kelly L. McIlwain ("McIlwain"). Defendants are McIlwain's former employer, Korbean International Investment Corporation ("Korbean"), and two Korbean employees, Robert Rosner and Isaac Milstein (collectively, "defendants"). McIlwain alleges that defendants sexually harassed her in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e et seq., the New York Human Rights Law, see N.Y. Exec. Law § 296, and Title VIII of the Administrative Code of the City of New York. This Court has original jurisdiction over McIlwain's Title VII claim pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1331 (Supp. 1993), and supplemental jurisdiction over the state and city law claims pursuant to 28 U.S.C. § 1367(a).
Defendant Milstein has moved to dismiss the complaint as against him for failure to state a claim upon which relief may be granted, see Fed. R. Civ. P. 12(b)(6).
Dismissal under Rule 12(b)(6) is appropriate "only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 ; 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). For the reasons stated below, Milstein's motion is granted in part and denied in part.
"In ruling on a motion to dismiss, . . . [a] complaint is to be construed in the light most favorable to the plaintiff." Conley, 355 U.S. at 45. Thus, for purposes of ruling on defendant Milstein's motion, all factual allegations in the complaint will be taken as true and construed in the light most favorable to McIlwain. See Stewart v. Jackson & Nash, 976 F.2d 86, 87 (2d Cir. 1992) (citing LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).
On or about December 28, 1992, McIlwain was hired by Korbean in its Planning and Development department to recruit traders and account executives for foreign currency. See Complaint P 10. Rosner, who is Director of the Planning and Development department, was McIlwain's "immediate supervisor." Complaint P 14.
On and about December 28, 1992, McIlwain's first day of work, "McIlwain was assigned to work with Milstein a Coordinator of Planning and Development of Korbean." Complaint P 15. Immediately thereupon, "Milstein subjected McIlwain to continuous offensive sexual language and repeatedly touched McIlwain without her permission." Id. On the first day of work, Milstein asked McIlwain if he could touch her knee and attempted to hold her hand. McIlwain informed Milstein that he could not touch her knee, and pulled away her hand. See id.
McIlwain alleges that defendant Milstein would constantly touch her shoulder and ask if she would perform sexual acts on him. McIlwain also alleges that Milstein would frequently conduct conversations of a sexually explicit nature on the phone in McIlwain's presence. See Complaint P 16. Each time Milstein impermissibly touched McIlwain, she moved away and told him to stop. See Complaint P 17.
McIlwain alleges that Milstein's "violative conduct continued to escalate." Complaint P 18. Milstein constantly asked McIlwain to have sex with him. See id. McIlwain never gave "any indication that Defendant Milstein's improper conduct was welcome." Complaint P 20.
McIlwain further alleges that defendants Korbean and Rosner participated in and encouraged the impermissible conduct carried out by Milstein against McIlwain. See Complaint P 22. McIlwain alleges that defendant Rosner did not take her complaints seriously, telling her "that Milstein was sexually deprived and . . . probably just wanted to get McIlwain in bed." Id.
As McIlwain's supervisor, Rosner had the authority to alter McIlwain's work schedule and assignments. See Complaint P 23. By January, 1993, McIlwain's duties and responsibilities had expanded and she was regularly working overtime on various tasks and projects given her by Rosner. See id. Although the Korbean offices closed at 5:00 p.m., McIlwain and Rosner usually worked until 8:00 p.m. by themselves. See id. McIlwain alleges that "in this manner Rosner began a campaign of intentionally overworking McIlwain and capitalized upon his authority over Plaintiff to force her to endure continuous violative conduct." Complaint P 23.
McIlwain alleges that "as her immediate supervisor, Defendant Rosner began subjecting McIlwain to repeated offensive sexual language and violative sexual conduct." Complaint P 24. On or about January 20, 1993, Rosner and McIlwain worked late together on a project and had a business-related dinner at a Houlihan's restaurant in Manhattan. See id. Due to the lateness of the hour, McIlwain and Rosner decided that it would be best to stay in the City for the night. See Complaint P 25. McIlwain agreed to stay at a Holiday Inn for the night with the understanding that she and Rosner would be staying in separate rooms. See id. Rosner insisted on staying in one room, however, and, "due to the fact that Rosner was McIlwain's supervisor, McIlwain felt that she had to acquiesce to his suggestion." Complaint P 26.
McIlwain alleges that Rosner asked McIlwain to take off her robe and come over to his bed. McIlwain further alleges that when she responded "no," Rosner proceeded to enter McIlwain's bed, open his robe, "kiss McIlwain on the lips and touch intimate parts of her body." Complaint P 27.
On or about early February, 1993, McIlwain and Rosner worked late and again went out for a business dinner together. Once again, they stayed in a hotel for the night. McIlwain alleges, in substance, that Rosner raped her that evening. See Complaint P 30.
McIlwain alleges that Rosner's position as McIlwain's supervisor aided him in "accomplishing the assaults":
Defendant Rosner acted within the scope of his authority as McIlwain's supervisor by luring and pressuring McIlwain to go to hotels after business dinners. Moreover, he was aided in accomplishing the assaults, and other mistreatment of McIlwain because of her sex by his position at Korbean as her supervisor and his agency relationship with Korbean.
Complaint P 32.
On or about early January 27, 1993, Rosner, Milstein, and McIlwain went to a diner for a business dinner. During the dinner, Milstein and Rosner made "repeated unwelcome sexual comments to McIlwain." Complaint P 29. In addition, during the first week of February 1993, both Milstein and Rosner looked down McIlwain's blouse, while McIlwain was performing her duties in the office. See id.
On or about February 16, 1993, Rosner, Milstein and McIlwain went to dinner together, once again. McIlwain alleges that during the dinner, Rosner and Milstein "continually sexually harassed McIlwain by asking her sexual questions such as her preference for sexual positions. They also asked McIlwain to describe her fantasies." Complaint P 33.
McIlwain alleges that the discrimination and sexual harassment by defendants Milstein, Rosner, and Korbean had the purpose and effect of unreasonably interfering with McIlwain's work performance and creating an intimidating, hostile, and offensive work environment. See Complaint P 38. McIlwain alleges that on or about February 17, 1993, she was forced to leave work at Korbean because she was unable to tolerate the continued harassment, threats, and assaults. See id.
McIlwain traveled to Philadelphia to meet her boyfriend, who convinced her to go to the hospital so that she could be examined. See Complaint PP 39-40. McIlwain was hospitalized for approximately two weeks and was diagnosed as being bipolar depressive as a result of stress incurred in the prior two and one-half months. See Complaint P 40.
After being hospitalized for a few days, McIlwain called Rosner and inquired about her position at Korbean. See Complaint, P 42. The impression she received from Rosner was that "she [might] be losing her job." Id. McIlwain called Rosner again several days before leaving the hospital and informed him that she wished to come to work to discuss her position at Korbean. See Complaint P 43. When McIlwain asked to return to work on a part-time basis, Rosner responded, "I don't think so." Complaint P 44.
McIlwain alleges that Korbean and Rosner expressly and impliedly made sex a condition for her receipt and retention of job benefits. McIlwain further alleges that "Rosner caused McIlwain to be fired, which act Korbean has condoned, because of the conclusion of the sexual relationship and McIlwain's illness." Complaint P 45.
On September 14, 1994, McIlwain filed her complaint in this Court against Korbean, Rosner, and Milstein for sexual harassment in violation of Federal, New York State, and New York City laws. Before filing this complaint, on August 12, 1993, McIlwain filed charges of sexual harassment and discrimination against defendants Korbean, Rosner, and Milstein with the Equal Employment Opportunity Commission (the "EEOC"). See Plaintiff's Complaint, Exhibit 1.
McIlwain received a Notice of Right to Sue dated July 8, 1994, less than 90 days before she filed this action. See Plaintiff's Complaint, Exhibit 2.
Defendant Milstein now brings the instant motion to dismiss the complaint as against him for failure to state a claim upon which relief may be granted.
I. TITLE VII
Defendant Milstein argues that McIlwain's Title VII claim should be dismissed as against him because he is not an "employer" within the meaning of the statute and is, therefore, not a proper party-defendant. See Memorandum of Law in Support of Defendant Isaac Milstein's Motion to Dismiss the Complaint ("Defendant Mem.") at 2.
McIlwain responds that her detailed allegations of Milstein's intentional personal misconduct support individual liability in this case. See Plaintiff's Memorandum of Law in Opposition ("Plaintiff Mem."), at 10 (citing Archer v. Globe Motorists Supply Co., 833 F. Supp. 211 (S.D.N.Y. 1993); Bramesco v. Drug Computer Consultants, 834 F. Supp. 120 (S.D.N.Y. 1993)). However, McIlwain nowhere alleges that Milstein was McIlwain's "employer." Nor does she argue that Milstein was an "agent" of the employer. McIlwain's response thus raises the issue of whether one who is neither an employer nor an "agent" of an employer may be held liable under Title VII for discriminatory conduct.
Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an employer -- to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (emphasis added). Title VII defines the term "employer" to mean, in pertinent part, "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. " 42 U.S.C. § 2000e(b) (emphasis added).
Plaintiff invokes Archer v. Globe Motorists Supply Co., 833 F. Supp. 211 (S.D.N.Y. 1993) and Bramesco v. Drug Computer Consultants, 834 F. Supp. 120 (S.D.N.Y. 1993) as standing for the proposition that "sufficiently detailed allegations of individualized personal misconduct as opposed to vicarious responsibility might in a proper case support individual liability." Plaintiff Mem. at 10.
In Archer, the Court cited Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir. 1993), cert. denied, 127 L. Ed. 2d 372, 114 S. Ct. 1049 (1994), as holding that "Title VII . . . [is] directed toward employers, not individual non-employer natural persons, at least absent intentional misconduct." Archer, 833 F. Supp. at 213 (emphasis added). In Bramesco, the Court again cited Miller for the proposition that individual liability can be imposed where there is "separate intentional misconduct." Bramesco, 834 F. Supp. at 123.
However, in Miller, the Court of Appeals for the Ninth Circuit squarely held that "individual defendants cannot be held liable for damages under Title VII." Miller, 991 F.2d at 587 (reaffirming Padway v. Palches, 665 F.2d 965, 968 (9th Cir. 1982)). Nowhere in the opinion did the court provide an exception for intentional misconduct.
This Court declines to follow the language in Archer and Bramesco suggesting that individual employees might be individually liable under Title VII if they have engaged in intentional misconduct. Title VII clearly imposes liability only upon "employers" as defined in the statute, and not upon individual employees who have engaged in intentional misconduct but do not otherwise qualify as employers. No Circuit Court of Appeals that has addressed the issue has adopted plaintiff's theory and this Court now also declines to do so. See discussion, infra, pp. 11-14. Having failed to allege that Milstein was McIlwain's "employer" (or that he was even an "agent" of the employer), McIlwain has thus failed to state an actionable Title VII claim as against defendant Milstein.
Next, to determine whether McIlwain's Title VII claim against Milstein should be dismissed with or without prejudice, the Court addresses the issue of whether McIlwain could bring an actionable Title VII claim against Milstein in his individual capacity were she to allege that Milstein was an "agent" of Korbean. In Meritor Sav. Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986), the Supreme Court explained that "Congress' decision to define 'employer' to include any 'agent' of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible." Meritor, 477 U.S. at 72. However, the Court did not there address the issue of whether Title VII liability may be imposed on an employer's agents in their individual capacities.
The Court of Appeals for the Second Circuit has not yet ruled on this issue.
Those Courts of Appeals that have addressed the issue are split over whether the inclusion of the "and any agent" language was intended to provide for individual liability against agents of the employer. In Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.), cert. denied, 130 L. Ed. 2d 491, 115 S. Ct. 574 (1994), for example, the Court of Appeals for the Fifth Circuit held that "title VII does not provide for liability against employees who do not otherwise qualify as employers." Grant, 21 F.3d at 650. The court pointed out the absence of specific language in Title VII imposing individual liability:
Congress has proscribed conduct by 'persons' in other statutory schemes. See 42 U.S.C. §§ 1981, 1983, 1985, 1986. The absence of specific language making a non-employer individual liable for these damages, when Congress has included such language in other contexts, indicates that Congress did not intend to impose individual liability for backpay damages under title VII, unless the individual meets the statutory definition of 'employer.'