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VERDE v. CITY OF PHILADELPHIA

August 22, 1994

DOLORES VERDE & ANTHONY VERDE
v.
CITY OF PHILADELPHIA, DAVID GLANCEY, ENRICO FOGLIA, EUGENE P. DAVEY, WILLIAM JAMEISON, HARRY GOLDBERG



The opinion of the court was delivered by: DONALD W. VANARTSDALEN

 VanARTSDALEN, S.J.

 August 22, 1994

 1. Procedural History

 Plaintiff Dolores Verde filed this complaint on April 19, 1994 alleging sexual harassment in violation of her civil rights under federal and state statutory law, as well as causes of action under common law. *fn1" Plaintiff alleges that while employed by the Board of Revision of Taxes of the City of Philadelphia (the Board) as a real estate clerk she was subjected to a "continual course of unlawful sexual harassment, discrimination, and disparate treatment based on her gender, as well as unlawful actions in retaliation for her complaints regarding such treatment." (Complaint at 5-6.) Plaintiff contends that the unlawful course of conduct was engaged in by various employees, including supervisors and administrative and management personnel of the Board. Plaintiff specifically names individual defendants David Glancey, the chairman of the Board, Enrico Foglia, the Executive Director of the Board, Eugene P. Davey, the Administrator of the Board, William Jameison, a supervisor at the Board, and Harry Goldberg, an evaluator for the Board (the named defendants). All named defendants are sued both individually and in their official capacities. Plaintiff also brings this action against the City of Philadelphia (the City), a municipal entity, as her employer.

 In Count I, plaintiff alleges violations of her civil rights under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a). In Count II, plaintiff alleges violations of her civil rights under 42 U.S.C. § 1983. In Count III, plaintiff alleges violations of the Pennsylvania Human Relations Act (the PHRA), Pa. Stat. Ann. tit. 43, §§ 951-963. In Count IV, plaintiff alleges a cause of action for intentional infliction of emotional distress. Finally, in Count V, plaintiff's husband Anthony Verde alleges a cause of action for loss of consortium. *fn2" All counts are brought against all defendants.

 On June 24, 1994 defendants filed the present motion to dismiss portions of the complaint for failure to state a claim upon which relief can be granted. Defendants seek to dismiss Count I as against all named defendants in their individual capacities, and Counts III, IV, and V as against all named defendants in their official capacities. Defendants further seek to have Counts III, IV and V dismissed against the City.

 Plaintiffs filed their response in opposition to defendants' motion to dismiss on August 10, 1994. For the reasons set forth below, defendants' motion to dismiss will be granted in part and denied in part.

 2. Count I with respect to the named defendants in their individual capacities

 In Count I plaintiff proceeds against the City and against all named defendants in their individual capacities, asserting that the named defendants are subject to individual liability under Title VII as "agents" of their employer, the City. *fn3" Plaintiff "demands judgment against all defendants, jointly and severally, for compensatory damages . . . attorneys fees and costs . . . as well as equitable damages and relief, and . . . punitive damages of the non-municipal defendants individually . . . ." (Compl. at 14-15.) Glancey, Foglia, Davey, Jameison and Goldberg seek to have Count I dismissed in their individual capacities for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). These defendants argue that under Title VII individual defendants can be sued only in their official capacities, not in their individual capacities.

 The Supreme Court delineated the distinction between suits against defendants in their personal, or individual, capacity, and in their official capacity in Kentucky v. Graham, 473 U.S. 159, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). When proceeding against a defendant in his individual capacity, a plaintiff seeks to impose liability upon a government official for the action he takes under color of state law, and can recover only against the defendant's personal assets. Id. at 165-66. In contrast, a suit against a defendant in his official capacity alleges that the government entity's "policy or custom" played a part in the violation of federal law with which the individual defendant is charged, and "generally represents only another way of pleading an action against an entity of which an officer is an agent." Id. Thus, in a suit against a defendant in his official capacity the assets of the government entity are accessible. Id.

 Defendants deny the existence of any individual liability under Title VII, and seek to have Count I dismissed as against the named defendants in their individual capacities. Although the Third Circuit has not addressed the issue, courts in this and other circuits have reached varying conclusions with respect to individual liability under Title VII. Compare, e.g., Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. May 27, 1994) and Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir. 1993) and Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) and Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990) with Doe v. William Shapiro, P.C., 852 F. Supp. 1256 (E.D. Pa. 1994) and Bridges v. Eastman Kodak Co., 800 F. Supp. 1172 (S.D. N.Y. 1992) and Bertoncini v. Schrimpf, 712 F. Supp. 1336 (N.D. Ill. 1989). Plaintiffs argue that the 1991 revisions to Title VII, however, removed all uncertainty about the liability of individuals under Title VII. According to plaintiffs, "the rationale for holding actions brought pursuant to Title VII to be 'inappropriate' against agents of employers in their personal capacities has been utterly eviscerated by the 1991 amendments affording Title VII claimants the full panoply of legal, as opposed to merely equitable, relief." (Filed Doc. No. 6 at 16.) Plaintiff quotes Bridges that, because the amendments of 1991 "authorize[] the award of compensatory and punitive damages . . . [and s]ince such damages are of a type that an individual can be expected to pay, there appears little reason to adopt the reading of Title VII" that bars individual liability. Id. at 16-17 (quoting Bridges, 800 F. Supp. at 1180).

 Plaintiff reasons that, prior to the 1991 amendments to Title VII, courts were loathe to impose liability under Title VII on individuals because the remedies then conferred by Title VII were of a sort that individuals were ill-equipped to provide, e.g., reinstatement and backpay. According to plaintiff, the 1991 amendments remove any concerns the court might have had about "inappropriate" remedies, because the additional remedies allowed by the 1991 amendments--compensatory and punitive damages--can be meted out to individuals "appropriately."

 This line of reasoning looks to judicial precedent for approbation of a particular conclusion with respect to legislative intent, normally a sound step in statutory interpretation. But in the present instance, where subsequent amendments to legislation may affect the assessment of legislative intent, the focus of the inquiry into individual liability under Title VII should not be on the validity of judicial interpretations of the statute up to that point. Rather, the focus should be on the 1991 amendments themselves, what they reveal about Congress's intentions with respect to individual liability, and how the amendments may reflect a change in those intentions. In this regard, the reasoning of the Ninth Circuit in Miller v. Maxwell's Int'l, Inc. is instructive.

 The Miller court first noted that Title VII--in both its pre- and post-1991 versions--limits liability to employers with fifteen or more employees, see 42 U.S.C. § 2000e(b), "in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims." Miller, 991 F.2d at 587. The court further reasoned that if "Congress decided to protect small entities with limited resources from liability [under Title ...


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