may be sued in their personal capacities." Id. at 1313.
The court began its analysis with the language of the statute, which, like the ADA, defines the term employer as "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person." 42 U.S.C. § 2000e(b) (Title VII definition of "employer"), § 12111(5)(A) (ADA definition of "employer"). Although the court recognized that in general, the plain meaning of the statute would govern, which in this case would require a finding that the law permits individual liability, Title VII presents the "'rare case'" where the "'literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" Id. at 1313-14, quoting, Samuels, Kramer & Co. v. C.I.R., 930 F.2d 975, 979 (2d Cir.), cert. denied, 502 U.S. 957 (1991). In such cases, the intent of the legislators, rather than the language of the statute controls. 66 F.3d at 1314.
According to the Second Circuit the "agent clause" is part of a sentence limiting liability to employers with fifteen or more employees. This restriction was imposed to avoid imposition of liability on small employers. Id., citing, 110 Cong. Rec. S. 13092 (1964) (Remarks of Sen. Cotton); 110 Cong. Rec. S. 13088 (Remarks of Sen. Humphrey); 110 Cong. Rec. S. 13092-93 (1964) (Remarks of Sen. Morse) (addressing the costs of compliance on employers with less than 15 employees). As a result, it is inconceivable that Congress would protect small employers but simultaneously permit liability against individual employees, especially given that nowhere did the floor debates address agent liability under the statutory definition of the term "employer." See id.
Further, the court relied upon Title VII's remedial provisions. For example, prior to the enactment of the Civil Rights Act of 1991, a Title VII plaintiff was limited to back pay and reinstatement which are essentially equitable remedies most appropriately provided by employers. Id. Also, the addition of compensatory and punitive damages under the Civil Rights Act of 1991 was "calibrated" to the size of the employer without repealing the exemption for employers with less than 15 employees. There is no similar limitation for agents of employers. Id. at 1315.
Finally, the practical implications of individual liability could lead to anomalous results leaving the individual bearing the brunt of Title VII judgment. The court noted by way of illustration, that where an employer-entity filed for bankruptcy, the agent may be the only one exposed to liability. Alternatively, if a plaintiff settled against the employer, he or she could still be free to pursue the agent. Id. at 1315-16.
In reaching this conclusion, the majority rejected the dissent's reasoning that precluding individual liability would render the "agent clause" mere "surplusage." Id. at 1316. According to the majority opinion, the purpose of the "agent clause" was to expressly include the doctrine of respondeat superior as a basis for employer liability rather than an independent ground for individuals. Id. ; but see Janis R. Franke, Does Title VII Contemplate Personal Liability for Employee/Agent Defendants? 12 HOFSTRA LAB. L.J. 39 (1994) (addressing arguments regarding individual liability under Title VII and advocating individual liability).
Although the Second Circuit has not addressed the issue of individual liability in the context of the ADA, those circuit courts that have, reached a similar conclusion to Tomka. See Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (rejecting individual liability under the ADA and finding that the purpose of the "agent" clause is to incorporate the doctrine of respondeat superior into the ADA); EEOC v. AIC Securities Investigations, Ltd., 55 F.3d 1276, 1280-82 (7th Cir. 1995) (same); see also Lenhardt v. Basic Inst. Of Tech., 55 F.3d 377, 381 (8th Cir. 1995) (holding that a Missouri statute similar to the ADA does not provide for individual liability). Similarly, district courts within the Second Circuit to consider the issue have concluded that there is no cause of action under the ADA against an individual as an agent of his or her employer. See Cerrato v. Durham, 941 F. Supp. 388, 1996 U.S. Dist. LEXIS 13454, 1996 WL 524341 (S.D.N.Y. 1996); Yaba v. Cadwalader, Wickersham & Taft, 931 F. Supp. 271 (S.D.N.Y. 1996); Ryan v. Grae & Rybicki, P.C., 1995 U.S. Dist. LEXIS 11544, 1995 WL 170095 (E.D.N.Y. 1995); Leykis v. NYP Holdings, Inc., 899 F. Supp. 986 (E.D.N.Y. 1995) (finding no individual liability but permitting naming of individual defendants in their representative capacities as discussed below); Altman v. N.Y.C. Health & Hosp. Corp., 903 F. Supp. 503 (S.D.N.Y. 1995); Jones v. Inter-County Imaging Ctrs., 889 F. Supp. 741 (S.D.N.Y. 1995); but see Iacampo v. Hasbro, Inc., 929 F. Supp. 562, 1996 WL 308962 (D.R.I. 1996) (giving the ADA definition of the term "employer" its plain meaning and finding that the statute provides for individual liability); Bishop v. Okidata, Inc., 864 F. Supp. 416 (D.N.J. 1994) (same); Doe v. William Shapiro, Esq., 852 F. Supp. 1246 (E.D. Pa. 1994) (same).
Relying on this precedent in the Second Circuit, the Court finds that there is no cause of action against a supervisor, individually, for discriminatory employment practices in violation of the ADA. As the Second Circuit reasoned in Tomka, and other courts have concluded in the context of the ADA, see, e.g., AIC Securities Investigations, it would be incongruous for Congress to limit liability to employers with more than fifteen employees but impose liability upon individual employees, even when considering the plain meaning of the definition of the term employer under the statute. Further, the Court declines the plaintiff's invitation to draw a distinction between Tomka and this case based on the fact that the ADA rather than Title VII is being invoked. Both statutes employ identical language to define the term "employer." Accordingly, giving the term different meanings depending upon the type of discrimination, in effect creating a hierarchy of discrimination, would be unreasonable. As a result, the Court finds as a matter of law that the ADA does not provide for a cause of action against an employer's individual agents or employees.
b. Representative liability
The plaintiff argues in the alternative, that if the Court determines that the ADA does not provide for individual liability, that defendant Bryant should nevertheless continue in this lawsuit as a named defendant in his "representative capacity." As Lane, correctly recognizes, the Second Circuit has yet to rule on this issue. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 n.2 (2d Cir. 1995). The district courts in New York to consider the question are divided. See Abdullajeva v. Club Quarters, Inc., 1996 U.S. Dist. LEXIS 12805, No. 96 Civ 0383, 1996 WL 497029 (S.D.N.Y. 1996), comparing, Coraggio v. Time Inc. Magazine Co., 1995 U.S. Dist. LEXIS 5399, 94 Civ. 5429, 1995 WL 242047 at *8 (S.D.N.Y. 1995) (individuals may be held liable for discrimination in violation of Title VII in their official capacities); Leykis v. NYP Holdings, Inc., 899 F. Supp. 986, 991 (E.D.N.Y. 1995) ("such liability gains advantages in discovery, in ultimate liability of the [employer], and, of course, in the personal satisfaction of calling upon the alleged wrongdoer to publicly answer the accusations levied against him") with Bakal v. Ambassador Constr., 1995 U.S. Dist. LEXIS 10542, No. 94 Civ. 584, 1995 WL 447784 at *3 (S.D.N.Y. 1995) (holding that there is no representative liability under Title VII); Yaba v. Cadwalader, Wickersham & Taft, 896 F. Supp. 352, 354 n.1 (S.D.N.Y. 1996) (following Bakal); Bonner v. Guccione, 916 F. Supp. 271, 279 (S.D.N.Y. 1996) (same).
In support of his position, the plaintiff relies on the reasoning set forth in Coraggio :
It is not anomalous to permit individuals to be named as defendants, even though no judgment can be collected from them. I decline to follow the reasoning in Bramesco v. Drug Computer Consultants, 834 F. Supp. 120, 123 (S.D.N.Y. 1993), that if the claims levied against an individual are also chargeable to the employer, "plaintiff gains nothing apart from consumption of time and creation of bitterness by inclusion of the individual as a defendant." Both tangible and intangible benefits accrue to plaintiffs who name individual wrongdoers as defendants. The Federal Rules of Civil Procedure ("Rules"), for example, facilitate discovery against parties by requiring them to produce on notice relevant documents in their possession, whereas documents possessed by non-parties must be obtained by subpoena. Compare Fed. R. Civ. P. 34 with Fed. R. Civ. P. 45. As is apparent from the Rules, the same is true for depositions; a party can be deposed on notice, whereas the deposition of a non-party witness may have to be compelled by subpoena. See Fed. R. Civ. P. 30. Moreover, if only employers could be named as Title VII defendants, those employees who allegedly committed discriminatory acts would escape public accountability, while those who played no part in the purported discrimination are unnecessarily stigmatized. In this respect, the employer-only approach is under-inclusive and over-inclusive. By contrast, naming individuals as defendants identifies the alleged wrongdoers, forcing them to answer for their acts publicly, even if they do not have to answer for them financially. If they are vindicated, their names are cleared.