C. Defendants' Other Defenses
In addition to arguing that plaintiff failed to meet her burden of proving pretext for her discrimination claims, defendants raise three other issues that I must address. First, defendants argue that certain of plaintiff's allegations are time-barred. Second, defendants argue that plaintiff cannot proceed with her claims because of her election of remedies. Finally, defendants argue that Stiell, Long, and Liebowitz cannot be held individually liable for their alleged misconduct. I address each argument in turn.
1. Time Limitations
Defendants argue that plaintiff's allegations of discriminatory events occurring prior to May 15, 1994 are not actionable under ADEA or Title VII.
They also argue that plaintiff's allegations of discriminatory events occurring prior to February 5, 1993 are not actionable under state or city anti-discrimination provisions. (See generally Defs. Mem. at 36-37). Even if the statute of limitations has expired for the purpose of bringing suit on particular claims, proof of the conduct forming the basis for those claims may nonetheless be admissible as evidence of a discriminatory environment or as circumstantial evidence that the conduct alleged in the current suit has occurred. United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977). Hence, I need not reach this issue at this time, as the events pre-dating plaintiff's discharge may be admissible even if they are not a basis for liability.
2. Election of Remedies
Defendants also argue that plaintiff's age discrimination claim under New York state and city anti-discrimination provisions is not actionable because of the election of remedies provision in § 297(7) of the New York Executive Law and § 8-502 of the New York City Administrative Code. (Defs. Mem. at 33 n.18).
Defendants' argument is rejected because the November 30, 1995 letter from the City Commission on Human Rights is dispositive on this issue. (Rosenthal Aff., Ex. 5). In that letter, the commission notified plaintiff that her complaint was "closed for administrative convenience." (Id.). That being the case, plaintiff was no longer precluded from filing suit by the election of remedies doctrine, as state law permits a plaintiff to file suit after the issuance of a dismissal for administrative convenience. N.Y. Executive Law § 297(9) (McKinney Supp. 1997-98). To the extent defendants rely on the December 14, 1995 letter from the Commission's Office of Mediation & Conflict Resolution (Rosenthal Aff., Ex. 6), that reliance is misplaced, because the letter did not open or reinstate plaintiff's case. Indeed, the case apparently was never reinstated. Thus, plaintiff's state and city law claims are not barred by the election of remedies doctrine.
3. Individual Liability
Defendants correctly argue that individual defendants Stiell, Long, and Liebowitz cannot be held personally liable under Title VII or the ADEA. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); Storr v. Anderson School, 919 F. Supp. 144, 148 (S.D.N.Y. 1996). Under New York law, however, the individual defendants may be sued in their personal capacities for discriminating on the basis of age or sex. Tomka, 66 F.3d at 1316-17. In Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 (Ct. App. 1984), the New York Court of Appeals held that an employee is not individually subject to suit under New York's Human Rights Law "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." 483 N.Y.S.2d at 660. The Tomka court added that a defendant who "actually participates in the conduct giving rise to a discrimination claim may be held personally liable." Tomka, 66 F.3d at 1317.
In light of these holdings, defendant Long clearly cannot be personally liable even if plaintiff prevails on her age discrimination claim at trial. There is no evidence that defendant Long had any involvement whatsoever in the personnel decisions that led to this case. There is a question of fact, however, as to Liebowitz's involvement given his contact with plaintiff prior to her discharge. As to defendant Stiell, there is no doubt that she can be held personally liable for the alleged misconduct in this case -- if plaintiff prevails.
Accordingly, the claims against defendant Long are dismissed with prejudice. To the extent defendants move for summary judgment dismissing the claims against Liebowitz and Stiell, the motion is granted as to the national origin claims and the ADEA claim, and is denied as to the age claim under state and city law.
Defendants' motion for summary judgment is denied in part and granted in part. The national origin claims are dismissed in all respects as to all defendants. The ADEA claim is dismissed as to the three individual defendants. The age discrimination claim under state and city law is dismissed as to Long. Plaintiff may proceed with her ADEA claim against the Hospital and with her state and city age discrimination claims against the Hospital, Liebowitz, and Stiell.
The parties shall appear for a pretrial conference on April 24, 1998 at 11:30 a.m.
Dated: New York, New York
March 27, 1998
United States District Judge