The opinion of the court was delivered by: Kahn, District Judge
MEMORANDUM — DECISION AND ORDER
As of March 1998, defendant Suburban Propane had employed Plaintiff for
nearly twenty years and attained the position of regional manager for the
sales area encompassing eastern New York and parts of Massachusetts and
Connecticut. Once Plaintiff reached the twentieth year of employment with
defendant Suburban, she would have been entitled to a substantial
increase in defendant Suburban's contributions to her retirement
benefits. On March 18, 1998, one month prior to that twenty year mark,
defendant Suburban fired her. Defendant David R. Macdaid, Plaintiff's
supervisor, reportedly advised her that her performance was excellent and
the termination unrelated to her employment. According to Plaintiff, she
was told that her discharge was "strictly a matter of geography." Upon
Plaintiff's refusal to sign a waiver of all discrimination claims, her
severance pay was withheld.
Defendant Mark Alexander is President and CEO of defendant Suburban,
and, Plaintiff alleges, has orchestrated a systematic purge of managerial
personnel over 40 who were approaching the twenty year mark of service.
Plaintiff contends that her refusal to sign a waiver of all
discrimination claims, which Defendants demanded as a condition of her
receipt of severance pay, was a protected activity and Defendants'
refusal to pay constitutes retaliation within the meaning of Title VII.
Defendants maintain that refusal to sign a waiver cannot be construed as
protected activity, and Plaintiff has therefore failed to allege a Title
VII retaliation claim. Defendants argue that the only protected activity
that Plaintiff engaged in was the filing of a discrimination charge with
the EEOC three months after termination and subsequent to Defendants'
refusal to pay her severance, which would mean that the retaliation
preceded the protected activity — a logical impossibility even
within the confines of Title VII: prospective retaliation does not
The Court's must determine whether Plaintiff has established a prima
facie case of retaliation and, more specifically, whether refusal to sign
the waiver represents a protected activity. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Plaintiff's burden at this stage is slight — she may establish a
prima facie case with de minimis evidence. See Dister v. Continental
Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). A prima facie case of
retaliation under Title VII and the ADEA requires proof that: (1) the
plaintiff was engaged in an activity protected under the ADEA; (2) the
employer was aware of the plaintiff's participation in the protected
activity; (3) the plaintiff was subject to an adverse employment action;
and (4) there is a nexus between the protected activity and the adverse
action taken. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.
1995) (retaliation claim under Title VII).
With respect to the first element, participation in protected
activity, Plaintiff need not establish at this stage that the conduct she
opposed was actually a violation of Title VII, but only that she possessed
a "good faith, reasonable belief that the underlying employment practice
was unlawful" under that statute. See Reed v. A.W Lawrence & Co.,
95 F.3d 1170, 1178 (2d Cir. 1996). The reasonableness of Plaintiff's
belief is to be assessed in light of the totality of the circumstances.
See id. As to the second element, implicit in the requirement that the
employer have been aware of the protected activity is the requirement
that it understood, or could reasonably
have understood, that the plaintiff's opposition was directed at conduct
prohibited by Title VII.
Refusal to sign a waiver of rights can only constitute protected
activity if that refusal represents an intent to complain about
discriminatory employment practices. Title VII provides that "[i]t shall
be an unlawful employment practice for an employer to discriminate
against any of his employees . . . because [the employee] has opposed any
practice made an unlawful employment practice by" Title VII.
42 U.S.C. § 2000e-3(a). In short, there must be some indicia in
declining to sign a waiver suggesting that the employee has made a
complaint. Protected activity involves some form of objection, however
informal. Declining to sign a waiver of rights does not represent such an
objection to discrimination, and therefore is not protected activity
within the meaning of Title VII. Moreover, Plaintiff fails to allege at
the time of termination that she in any way disclosed to her supervisors
that her refusal represented such an objection. The retaliation claim
consequently founders on the second prong for establishing a prima facie
case of retaliation since her employers were not on notice that her
refusal to sign the waiver was related to a complaint of discrimination.
B. Defendants Alexander and Macdaid
It is well-established that "individual defendants with supervisory
control over a plaintiff may not be held personally liable under Title
VII." Tomka, 66 F.3d at 1313. Nevertheless, Plaintiff contends that she
is entitled to bring Title VII claims against defendants Alexander and
Macdaid in their official capacities even if they will not be financially
liable under the statute. While the Second Circuit has reserved on this
issue, see Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 n. 2
(2d Cir. 1995), courts in the Northern District which have reviewed this
issue have rejected individual liability, see, e.g., Walsh v. City of
Auburn, 942 F. Supp. 788 (N.D.N.Y. 1996). Indeed, the weight of authority
in this Circuit is against such liability. See McBride v. Routh,
51 F. Supp.2d 153, 156-57 (D.Conn. 1999) (collecting cases). The
official/personal capacity distinction seems misplaced since it would
place this Court in the position of holding someone liable without
providing Plaintiff with a remedy at law. The ...