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Zuk v. Gonzalez

July 26, 2007

VLADIMIR ZUK, PLAINTIFF,
v.
ESTEBAN GONZALEZ, CAPTAIN, ONONDAGA COUNTY JUSTICE CENTER; VINCENT WASILEWSKI, ASSISTANT CHIEF, ONONDAGA COUNTY JUSTICE CENTER; KEVIN BRISSON, CAPTAIN, ONONDAGA COUNTY JUSTICE CENTER; THOMAS METZ, LIEUTENANT-PERSONNEL SECTION; ANTHONY CALLISTO, FORMER CHIEF-CUSTODY DIVISION (RETRIED JUNE, 2006); RICHARD CARBERY, CHIEF-CUSTODY DIVISION, ONONDAGA COUNTY JUSTICE CENTER; KEVIN WALSH, SHERIFF OF ONONDAGA COUNTY; AND WARREN DARBY, UNDERSHERIFF OF ONONDAGA COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

There Clerk of the Court has sent Plaintiff's complaint to the Court for its review. See Dkt. No. 1. Plaintiff filed his complaint pursuant to Title VII of the Civil Rights Act of 1964, as amended and codified at 42 U.S.C. § 2000e et seq., and he has paid the filing fee for this action.

In his complaint, Plaintiff alleges, among other things, that, while he was an employee of Onondaga County at the Onondaga County Justice Center, Defendants discriminated against him in the course of his employment, denied him promotion, and retaliated against him on the basis of his national origin.*fn1

II. DISCUSSION

Plaintiff names Esteban Gonzalez, Vincent Wasilewski, Kevin Brisson, Thomas Metz, Anthony Callisto, Richard Carbery, Kevin Walsh, and Warren Darby as Defendants. However, it is well-established that Title VII does not create individual liability for violations of its terms. Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995). Only the employer may be held liable, and is in fact held vicariously liable for a hostile work environment created by a supervisor with immediate or successively higher authority over the victimized employee. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed. 2d 633 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed. 2d 662 (1998).

Linder v. City of N.Y., 263 F. Supp. 2d 585, 594-95 (E.D.N.Y. 2003).

Therefore, the Court dismisses the above-named Defendants from this action in their personal capacity.

The question remains, however, whether Plaintiff may sue the aforesaid Defendants in their "official" capacity as representatives of the County of Onondaga.

"[T]he Second Circuit has left open the question whether [Title VII] suits may be maintained against employees in their 'official capacity[.]'" Guzman v. Round Hill Country Club, Inc., No. 3:03CV0851, 2003 WL 23212750, at *1 (D. Conn. Jan. 30, 2003) (citing Hafez v. Avis Rent A Car System, Inc., No. 99-9459, 2000 WL 1775508, *2 (2d Cir. Nov. 29, 2000)). However, "most circuits either have rejected such suits outright, on the ground that employees cannot incur personal liability under Title VII, or have treated such suits as an action against the employer." Id. (footnote and citations omitted). This has been the "trend" in the district courts within the Second Circuit as well. See id. at *1, n.4 (citing McBride v. Routh, 51 F. Supp. 2d 153, 156-57 (D. Conn. 1999) (citing cases)).

Simpson v. N.Y. State Dep't of Civil Serv., No. 02-CV-1216, 2005 WL 545349, *9 (N.D.N.Y. Mar. 1, 2005).

For example, in Bottge v. Suburban Propane, 77 F. Supp. 2d 310 (N.D.N.Y. 1999), the court held "that [the Second Circuit'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 . . . Title VII[.]" Id. at 313. The court explained further that "[t]he 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." Id.; see also Gray v. Shearson Lehman Bros., Inc., 947 F. Supp. 132, 136 (S.D.N.Y. 1996) (dismissing Title VII claims against individuals sued in their official capacities). The Court finds the courts' reasoning in Simpson and Bottge persuasive and, therefore, dismisses Plaintiff's Title VII claims against the individual Defendants in their official capacities as well.

Since the Court has dismissed all of the claims against all of the individual Defendants, no Defendant remains. Nonetheless, to the extent that Plaintiff has named the individual Defendants in their official capacities, he has in essence named Onondaga County -- his actual employer -- as a Defendant.*fn2 See Ciancio v. Gorski, No. 98-CV-0714E, 1999 WL 222603, *1 (W.D.N.Y. Apr. 14, 1999) (holding that because the county employer would pay any judgment in an official capacity suit, the county employer was the proper defendant). Construing Plaintiff's complaint liberally in light of his pro se status, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and in the interest of judicial economy, the Court will sua sponte substitute Onondaga County as the sole Defendant in place of the individually named Defendants. See Ciancio, 1999 WL 222603, at *1 (citing [Fed. R. Civ. P.] 21 ("[p]arties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just"); Cimemotion NV v. ...


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