Falbaum v. Pomerantz

891 F. Supp. 986

Jacob V. FALBAUM, Anthony E. Gill, Emile Lewkowiez, and Raymond Terwilliger, Plaintiffs, v. John J. POMERANTZ, Alan Golub, Laura H. Pomerantz, Herman Gordon, and B. Michael Thrope, Defendants.

Lee L. KISHBAUGH, Plaintiff, v. John J. POMERANTZ, Alan Golub, Laura H. Pomerantz, Herman Gordon, and B. Michael Thrope, Defendants.

Nos. 94 Civ. 5503 (MGC), 94 Civ. 7921 (MGC).

United States District Court, S.D. New York.

July 25, 1995.

Wisehart & Koch by Arthur Wisehart, Michael H. Prince, New York City, for plaintiffs.

McDermott, Will & Emery by Joel Cohen, John J. Pomerantz, Alan Golub, Laura H. Pomerantz, and Herman Gordon, New York City, for defendants.

Parker Chapin Flattau & Klimpl, L.L.P. by Alvin Stein, New York City, for defendant B. Michael Thrope.

MEMORANDUM OPINION AND ORDER

CEDARBAUM, District Judge.

Leslie Fay, a women's clothing manufacturer, is a debtor-in-possession in bankruptcy proceedings in this District. Five former managerial employees sue four current employees of Leslie Fay and Leslie Fay's outside counsel for age discrimination in their "individual capacities" under federal, New York State, Pennsylvania, and New York City law. Jurisdiction is based on a federal question, 28 U.S.C. § 1331, and diversity of citizenship. 28 U.S.C. § 1332.

Defendants move to dismiss the complaints on the ground that only the employer is suable and that they are not subject to personal liability under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law, N.Y.Exec.Law §§ 290 et seq. (McKinney 1993) ("NYHRL"), and the Pennsylvania Human Relations Act ("PHRA"), Pa. Stat.Ann. tit. 43, §§ 951 et seq. (1991 & Supp. 1994). In addition, defendants move to dismiss plaintiffs' claims under the PHRA and the New York City Civil Rights Law ("NYCCRL"), Admin.Code of New York City § 8-101 et seq. (1986 & Supp.1994), for failure to exhaust administrative remedies.

The complaints also assert claims of legal malpractice and breach of fiduciary duty against Herman Gordon, Leslie Fay's general counsel, and B. Michael Thrope, Leslie Fay's outside counsel. At oral argument, I granted defendants' motion to dismiss the claims against Gordon and Thrope but reserved decision on the balance of defendants' motion. (Tr. Feb. 2, 1995 at 34.) For the reasons that follow, defendants' motion to dismiss is granted in part and denied in part.

Background

Plaintiff Jacob V. Falbaum was Director of Physical Distribution for the Dress Division of Leslie Fay; Anthony E. Gill was Production Manager; Emile Lewkowiez was Director of Quality Control; Raymond J. Terwilliger was Vice President of Human Resources; and Lee L. Kishbaugh was Factory Manager for the Dress Division. Defendants are the Chairman of the Board of Directors and Chief Executive Officer of Leslie Fay, a Senior Vice President, the President, and the General Counsel, who is also a Senior Vice President. Leslie Fay is not named as a defendant in either complaint. Defendants are alleged to be "agents of Leslie Fay who in their supervisory positions instigated, authorized, required, caused, and aided and abetted" age discrimination. (Falbaum Amend.Compl. at ¶ 7; Kishbaugh Compl. at ¶ 6.) Specifically, defendants are alleged to have "conceived, devised and conspired" to implement a discriminatory "reduction-in-force" program, pursuant to which plaintiffs were terminated. (Falbaum Amend.Compl. at ¶ 30; Kishbaugh Compl. at ¶ 28.) In addition, defendants are alleged to have "conspired among themselves and with others to retaliate against those individuals, including plaintiffs, who opposed or protested against defendants' willful and deliberate discriminatory acts and practices, and requested or recommended remedial action with respect thereto." (Falbaum Amend.Compl. at ¶ 31; Kishbaugh Compl. at ¶ 31.)

Discussion

I. Age Discrimination in Employment Act

The ADEA makes it unlawful for an "employer," inter alia, to discharge an individual on the basis of age. 29 U.S.C. § 623(a)(1). An employer is defined as "a person engaged in an industry affecting commerce who has twenty or more employees." 29 U.S.C. § 630(b). The statute further defines an employer to include "any agent of such a person." Id. Defendants move to dismiss the ADEA claims on the ground that the statutory reference to "agent" authorizes only employer liability for the conduct of employees acting within the scope of their employment, but does not provide an independent cause of action against such employees personally. This question — whether supervisory personnel may be personally liable under the ADEA for acts undertaken in their capacities as agents — has sharply divided courts in recent years.

The ADEA's definition of employer, including the term "agent," is very similar to that found in other civil rights laws such as Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e(b) and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111(5)(A). The issue of the personal liability of agents has also been addressed in cases arising under those statutes, and courts have relied on those cases to interpret the ADEA. See, e.g., Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-511 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994). Several Circuits have held that an individual may not be personally liable for conduct performed as an agent under either the ADEA, the ADA or Title VII. See E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7th Cir.1995) (individuals may not be personally liable as agents under ADA); Birkbeck, 30 F.3d at 510-511 (individuals may not be personally liable as agents under ADEA); Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir.) (individuals may not be personally liable as agents under Title VII), cert. denied, ___ U.S. ___, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (same); but see Ball v. Renner, 54 F.3d 664, 668-69 (10th Cir.1995) (declining to reach issue in Title VII case absent proof that defendant exercised managerial/supervisory authority over plaintiff); see also Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993) (individuals may not be personally liable as agents under either the ADEA or Title VII), cert. denied, ___ U.S. ___, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (individual may not be liable in individual capacity under Title VII); cf. Lenhardt v. Basic Inst. of Technology, Inc., 55 F.3d 377, 381 (8th Cir.1995) (individuals may not be liable as agents under Missouri Human Rights Act patterned after Title VII).

The Second Circuit has not been presented with the question, and the decisions in this district have divided. See, e.g., Coraggio v. Time Inc. Magazine Co., No. 94 Civ. 5429 (MBM), 1995 WL 242047, at *9 (S.D.N.Y. 1995) (individuals may not be personally liable under Title VII, but may be named in their "official capacities"); Dirschel v. Speck, No. 94 Civ. 330262 (LMM), 1994 WL 330262, at *6 (S.D.N.Y.1994) (individual may be personally liable as agent under Title VII); Reilly v. Metro-North Commuter R.R. Co., No. 93 Civ. 7317 (PKL), 1994 WL 202720, at *1 (S.D.N.Y.1994) (dismissing Title VII claim against individual where no evidence that plaintiff would be prejudiced by proceeding against employer); Donato v. Rockefeller Fin. Servs., No. 93 Civ. 4663 (LLS), 1994 WL 695690 (S.D.N.Y.1994) (denying leave to amend complaint to add individual defendant where plaintiff would "suffer no prejudice" from proceeding against employer alone); Bramesco v. Drug Computer Consultants, 834 F.Supp. 120, 123 (S.D.N.Y.1993) (individual may not be personally liable under Title VII and the ADEA absent specific allegations of age discrimination against individual defendant and prejudice in dropping individual defendant from the case); Archer v. Globe Motorists Supply Co., 833 F.Supp. 211, 214 (S.D.N.Y.1993) (dismissing Title VII and ADEA claims against individual defendants, but noting that allegations of "individualized personal misconduct" might support personal liability); Allen v. City of Yonkers, 803 F.Supp. 679, 683 (S.D.N.Y.1992) (individuals may not be personally liable as agents under Title VII); Bridges v. Eastman Kodak Co., 800 F.Supp. 1172, 1180 (S.D.N.Y.1992) (individuals may be personally liable as agents under Title VII); Elias v. Sitomer, No. 91 Civ. 8010 (MBM), 1992 WL 370419, at *5 (S.D.N.Y.1992) (individual may be personally liable as agent under the ADEA); Cheng v. Tams Consultants, Inc., No. 90 Civ. 5832 (CSH), 1991 WL 79198, at *3 (S.D.N.Y.1991) (supervisory personnel may be personally liable as agents under Title VII); Lehtinen v. Bill Communications, Inc., 59 Fair Empl. Prac.Cas. (BNA) 1077, 1081, 1989 WL 38130 (S.D.N.Y.1989) (individual who "participated in the decision making process" resulting in the alleged discrimination may be personally liable under Title VII); Bradley v. Consolidated Edison Co., 657 F.Supp. 197, 207 (S.D.N.Y.1987) (employees acting within scope of their authority may not be personally liable under Title VII); Tuber v. Continental Grain Co., 36 Fair Empl.Prac.Cas. (BNA) 933, 937, 1984 WL 1326 (S.D.N.Y.1984) (individuals who "controlled some aspect of plaintiff's conditions of employment" are employers under Title VII); Women in City Gov't United v. City of New York, 515 F.Supp. 295, 299 (S.D.N.Y.1981) (trustees who approve retirement plan may not be personally liable under Title VII); Rodgers v. Grow-Kiewit Corp., 93 Lab.Cas. (CCH) ¶ 13,431, at 20,541, 1981 WL 2390 (S.D.N.Y.1981) (individual may not be personally liable as agent under the ADEA); Hannahs v. New York State Teachers' Retirement System, 26 Fair Empl. Prac.Cas. (BNA) 527, 532, 1981 WL 226 (S.D.N.Y.1981) (individuals may not be personally liable under Title VII insofar as they act "pursuant to their official duties"); ...