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 Court therefore holds that
Tomka's individual liability bar applies to individual defendants in
their official capacities, as well as to situations where the plaintiff
seeks prospective injunctive relief against such individuals, under both
Title VII and the ADEA.
Accordingly, it is hereby
ORDERED that Defendants' motion to partially dismiss is GRANTED, and
the Title VII retaliation claim against all Defendants as well as the
Title VII claims against defendants Alexander and Macdaid in their
official capacities DISMISSED; and it is
FURTHER ORDERED that the Clerk of the Court serve a copy of this order
on all parties by regular mail.
IT IS SO ORDERED.
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