in making this determination. The defendants are functionally integrated, managerial control is centralized in William and Kenneth Shapiro, and financial control over all defendants is maintained by William Shapiro. Accordingly, the motion under Federal Rule 12(b)(1) will be denied.
The defendants also move for dismissal of Count I against Kenneth Shapiro in his official capacity. While some courts have disallowed Title VII suits against individuals entirely, see Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993), cert. denied, 114 S. Ct. 1049, 127 L. Ed. 2d 372 (1994), a number of courts have permitted an individual with supervisory authority to be sued under Title VII. See, e.g., Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990); Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), vacated in part, en banc., 900 F.2d 27 (4th Cir. 1990). These courts have relied primarily on the statute's definition of "employer," which includes any agent of the employer. I agree with this interpretation and find it persuasive in the context of the ADA, which shares the same language regarding agents of the employer.
In the complaint, the plaintiff alleges that the decision to terminate his employment was "made, agreed to, and/or ratified by all defendants." Drawing all reasonable inferences in the plaintiff's favor, as I must at this stage, I find this sufficient basis for keeping in the claim against Kenneth Shapiro. If he exercised supervisory responsibility over Mr. Doe, participated in the evaluation of Mr. Doe's work, or assisted in making the decision to discharge Mr. Doe, he may qualify as an agent of the employer and be sued under the ADA.
The defendants also move for dismissal of the ADA claim against both William and Kenneth Shapiro in their individual capacities. The case law on the issue of individual capacity suits under Title VII is conflicting and confused. Some courts which have permitted suits against individual defendants, have limited the scope of these claims to their official capacities. See, e.g., Sauers and Harvey, supra, Violanti v. Emery Worldwide, 847 F. Supp. 1251, 1994 U.S. Dist. LEXIS 3370, *13-*18 (M.D. Pa. 1994), Timmons v. Lutheran Children & Family Servs., No. 93-4201, 1993 U.S. Dist. LEXIS 18,011, *13-*16 (E.D. Pa. Dec. 17, 1993), Barger v. Kansas, 630 F. Supp. 88, 90-91 (D.Kan. 1985). These courts reason that individual defendants are only covered by the statute because they exercise authority conferred upon them by the employer; thus suits for abuse of this authority should be against them in their official capacities. They also argue that the relief available under Title VII, such as back pay, is of the type one would expect an employer to provide.
Other courts have held that individuals may be sued in both their official and individual capacities. See, e.g., Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769, 784-86 (N.D. Ill. 1993), Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 1179-80 (S.D.N.Y. 1992), Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1527 (M.D. Fla. 1991). In reaching this conclusion, they rely on the deterrent intent of Title VII, and the inference that Congress would not have intended that individuals who actually engaged in discriminatory conduct would escape liability. They also point out that since the Civil Rights Act of 1991 made available compensatory and punitive damages, relief under Title VII is no longer of a type associated only with the employer.
Still other courts have viewed the individual/official capacity distinction as irrelevant. See Hanshaw v. Delaware Technical & Community College, 405 F. Supp. 292, 296 (D. Del. 1975); Kelly v. Richland School Dist., 463 F. Supp. 216, 218 (D.S.C. 1978). They reason that in the context of suits under Title VII the concepts of official and individual capacity present a false dichotomy. I find the reasoning of this third group of courts persuasive.
The distinction between official and individual capacity is derived from cases arising under 42 U.S.C. § 1983, which requires that defendants act "under color of state law." Because of this requirement, when state employees, acting without authorization, violate a person's constitutional rights, the question arises whether their actions can be viewed as having been taken under color of state law. The Supreme Court held in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), overruled in part on other grounds by, Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), that actions taken by state officers in their official capacity, even if in violation of state law or policy, constitute action under color of state law. After Monroe, the focus in § 1983 cases was on whether an individual defendant was "clothed with the authority of state law" when the constitutional violation occurred. Monroe, 365 U.S. at 184 (citation omitted).
Section 1983 regulates the relationship between state officials and individuals; thus, the threshold question in a § 1983 suit is whether the defendant was a state actor, acting in an official capacity, at the time of the alleged constitutional violation. In contrast, Title VII and the ADA regulate the relationship between employers and employees. As a result, in Title VII and ADA cases, the relevant threshold question is not whether the defendant acted in an official capacity, but whether the defendant is the plaintiff's employer under the statute. If the defendant is an employer, as defined by the statute, he or she may be sued under Title VII or the ADA. Because the scope of the injuries redressable under these statutes is already circumscribed by the employment relationship, to consider further the capacity in which the defendant acted is not a relevant distinction, as it is under § 1983. As one court has explained:
Whether [the alleged discriminatory conduct] took place as a private person or as an officer is of no import here. Title VII actions do not contain the under color of state law' problems associated with section 1983 actions. If the person against whom the complaint is filed is within the definition of employer,' his capacity' during the alleged discriminatory events is irrelevant, so long as the alleged discrimination relates to employment. . . .