The opinion of the court was delivered by: LEISURE
LEISURE, District Judge :
Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, defendants Banque Indosuez (the "Bank"), Jean-Claude Gruffat ("Gruffat"), and Norbert Graetz ("Graetz") move for partial summary judgment in the instant matter. For the reasons stated below, defendants' motions are granted in part and denied in part.
In October of 1981, Leslie A. Harrison ("Harrison" or plaintiff) joined the Bank as a trader on the Bank's Money Market Desk. Graetz became her supervisor in September of 1989, and upon Graetz's recommendation, the Bank promoted Harrison to First Vice President. Harrison was highly successful in her trading activity and brought large profits to the Bank.
For the years 1989 and 1990, plaintiff's base salary was $ 132,000, and for 1991-1994, her base salary was $ 155,000. She also received significant bonuses that related to the Bank's performance during those years. Her bonuses ranged from a low of $ 120,940 in 1989 to a high of $ 4,164,400 in 1992.
In 1991, Harrison experienced flashbacks of childhood sexual abuse and began therapy shortly thereafter. She received therapy from Arlene Portada from April, 1991, until late 1992, and also received therapy by telephone from a therapist in California, Penny Joss Fletcher.
In the fall of 1993, plaintiff asked Graetz for a leave of absence from the Bank so that she could check into a psychiatric clinic in Arizona. The cause of Harrison's depression is in dispute. Defendants claim that the memories of sexual abuse, coupled with her discovery during this time period that the married man with whom she was having an affair, Ralph Maiano, was seeing another woman, caused her depression. Plaintiff contends that her depression was caused, at least in part, by Graetz's sexual harassment of her. She claims that shortly after his arrival at the Bank in 1989, Graetz commenced a pattern of inappropriate and offensive behavior toward her and others. Harrison alleges that Graetz massaged her shoulders without permission on numerous occasions, showed pornographic films on the trading room television set, displayed sex toys on his office desk, played strip poker on his office computer while plaintiff was present, described sexual acts with his girlfriend to plaintiff, and commented on Harrison's body and whether he wanted to have sex with her.
Graetz granted Harrison's request for a leave of absence, and, with Harrison's knowledge, informed the Bank that Harrison needed time to attend to family matters. Following a short stay in Arizona, Harrison returned to New York and began therapy with Dr. Joseph Martorano, a psychiatrist, and Laurie McDonald, a therapist. She contacted Graetz, told him that the treatment in Arizona did not work for her, that she was under the care of therapists in New York, and that she needed more time before she could return to the Bank.
Harrison and Graetz met for dinner on December 1, 1993. Graetz contends that at that dinner, they came to an understanding that Harrison would go on disability, a situation that did not preclude her return to the Bank. The defendants argue that they suggested this option to plaintiff in order to protect her own interests. The short-term and long-term disability plans at the Bank, as well as a special executive supplemental disability policy for which plaintiff was eligible, would have provided Harrison with large sums of money for the length of her expected working life. Harrison alleges that the first mention of going on a disability status was at this meal. She claims that she was resistant to the idea because she needed only a few weeks until she could return to work.
That same evening, plaintiff raised the issue of her bonus payment for 1993. She did not want to forfeit her bonus payment for the year (approximately $ 1.7 million), and sought a guarantee that she would receive that money. Graetz indicated that he needed to speak to Gruffat before he could provide an answer. The parties agree that Graetz informed plaintiff the next day, December 2, 1993, that the Bank guaranteed her bonus payment, and the Bank subsequently paid her this money. At a dinner on December 2, 1993, attended by personnel in the Bank's Money Market Desk, Graetz announced that plaintiff was taking disability leave and that she would be welcome back at the Bank anytime she was ready to return.
Graetz prepared a letter dated December 2, 1993, which plaintiff signed. The letter stated:
The present serves to inform you that with today's date I am returning from my leave of absent (sic). Unfortunately I'm not in the position to return to my duties at the bank, due to a severe illness.
Plaintiff Exh. 12. The Bank claims that in order to begin disability status, Harrison needed to end her leave of absence. Harrison argues that the letter was tantamount to a forced resignation due to her disability. She contends that she spoke to Graetz twice on December 2 and that he indicated in both conversations that he did not yet have Gruffat's assurance that the Bank would pay her bonus for 1993. Plaintiff alleges that she told Graetz that she refused to sign any document, and that unless she received her bonus payment, she would return to work the following Monday. According to plaintiff, Graetz told her that if she did not sign the letter, things would get "very, very messy." Plaintiff Exh. 13. Harrison also claims that in the fall of 1993, Gruffat had told Graetz that "he didn't want a nut case in his trading room." Plaintiff Exh. 15. Finally, plaintiff claims that she did not sign the letter until December 6, 1993. Not surprisingly, the defendants dispute Harrison's allegations. They claim that Harrison willingly signed the letter on December 2, and deny issuing any ultimatums.
On December 13, 1993, Dr. Martorano completed a short-term disability form for plaintiff. The form fixes November 1, 1993 as the date Harrison became unable to work because of her disability, and indicates June 1, 1994 as the estimated time of return. The form also states that plaintiff's disability was not the result of injury arising out of and in the course of employment. In early 1994, plaintiff contacted the Bank's Human Resources department to inform them that she was not going to apply for long-term disability. On February 8, 1994, the Bank received a letter from plaintiff's attorney, alleging that the Bank forced plaintiff to take disability and that Graetz sexually harassed plaintiff. On March 2, 1994, plaintiff, without solicitation, returned to the Bank her employee ID, access card, and corporate credit card. Finally, the Bank informed plaintiff on April 15, 1994, that, in view of the return of the cards and her stated intention not to return to the Bank, she was deemed to have abandoned her job.
Harrison's allegations concerning sexual harassment and her departure from the Bank form the basis of her claims under Title VII of the Civil Rights Act of 1964, as amended, Title 42, United States Code ("U.S.C."), Section 2000e et seq., the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., New York Executive Law § 296 (HRL), New York City Administrative Code § 8-107 (NYCAC), and common law claims of intentional infliction of emotional distress and breach of fiduciary duty.
In addition, Harrison claims that the Bank breached her contract. She alleges that she and the Bank were parties to an employment agreement that permitted the Bank to terminate her employment only for cause. Harrison points to four separate documents that she argues formalizes this agreement. The first document is a letter agreement dated September 30, 1981, which sets her start date as October 15, 1981, with a probationary period of three months, "during which time either party may terminate the relationship for whatever reason by giving one week's notice." Plaintiff's Exh. 22. The letter concludes, "We are looking forward to a long and mutually rewarding association and welcome you to the IndoSuez network." Id. Harrison contends that the cited language indicates that the parties did not have a traditional "at will" employment relationship and that the Bank could fire her only for cause.
Plaintiff also argues that three separate bonus agreements, which covered the years 1990-1993, support her contract claims. Plaintiff alleges that because the agreement for 1992-1993 stated "if you resign or the Bank terminates your employment for 'cause' (i.e., gross negligence or willful misconduct), you will forfeit your right to any remaining Deferred Bonus," the Bank could not dismiss her at will. Additionally, Harrison contends that the strict formula-based nature of the bonus structure, coupled with the expectation that bonuses are the main form of compensation for a trader, indicates that the bonus agreement served as an employment contract that did not permit at will dismissal.
All defendants move for summary judgment as to plaintiff's claims under the ADA and NYCAC, as well as the contract causes of action. Additionally, defendants Graetz and Gruffat seek dismissal of the Title VII, HRL, and common law tort claims against them. Defendants also seek a ruling that plaintiff's failure to mitigate her damages serves as a bar to her recovery of front and back pay.
I. STANDARD FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, it is this Court's responsibility "not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986). Nonetheless, summary judgment "is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
"A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion." Id. at 325 (internal citations omitted). "The burden on the moving party may be discharged by showing . . . that there is an absence of evidence to support the non-moving party's case." Id. (internal citations omitted). The burden of demonstrating the existence of a genuine issue of material fact then shifts to the non-moving party. See id. at 322-23. The non-moving party may not rely solely on its pleadings nor on conclusory factual allegations in satisfying this burden. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir. 1991). The non-moving party instead must offer specific evidence supporting its claim that there exists a genuine issue of material fact. See Celotex, 477 U.S. at 324. In demonstrating that the factual issue in dispute is "genuine", the non-moving party must offer evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
II. INDIVIDUAL LIABILITY UNDER TITLE VII AND THE ADA
Harrison alleges that defendants Graetz and Gruffat violated Title VII and the ADA. However, the United States Court of Appeals for the Second Circuit has determined that "an employer's agent may not be held individually liable under Title VII." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). The Second Circuit has not addressed whether employees may be held personally liable under the ADA; however, as Title VII and the ADA define "employer" identically, the Court's holding in Tomka clearly supports the rejection of personal liability under the ADA as well. See Cerrato v. Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996); see also Lane v. Maryhaven Center of Hope, 944 F. Supp. 158, 162 (E.D.N.Y. 1996).
Plaintiff additionally argues that Graetz and Gruffat are subject to Title VII and ADA liability in their official capacities. The Hon. John S. Martin, Jr., U.S. District Judge of this Court, encountered this same argument in Bakal v. Ambassador Constr., 1995 U.S. Dist. LEXIS 10542, 94 CIV. 584 (JSM), 1995 WL 447784 (S.D.N.Y. July 28, 1995). In a thorough and scholarly analysis of the issue, Judge Martin noted that "official capacity" suits have "traditionally been permitted to avoid Eleventh Amendment and sovereign immunity problems that might arise if a plaintiff were to sue a government entity directly." Id. at *4. Judge Martin concluded that since employers are subject to suit under Title VII, "There is no need for such 'official capacity' litigation." Id.; see also Gray v. Shearson Lehman Bros., Inc., 947 F. Supp. 132, 136 (S.D.N.Y. 1996) (Mukasey, J.); Brooks v. Hevesi, 1998 U.S. Dist. LEXIS 730, 95 Civ. 3209 (JSM), 1998 WL 32712, *1 (S.D.N.Y. Jan. 29, 1998). This Court agrees with the teaching of these cases. Accordingly, the Court dismisses the Title VII and ADA claims against Graetz and Gruffat.
III. PLAINTIFF'S ADA CLAIM AGAINST THE BANK
The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and ...