The opinion of the court was delivered by: J. CURTIS JOYNER
Defendant David Braverman has Moved this Court to Dismiss Count One of Plaintiff Maia Caplan's Amended Complaint against him. Caplan was an associate with the Defendant law firm of Fellheimer Eichen Braverman & Kaskey (the Firm). Braverman is the principal shareholder and managing partner of the Firm. Caplan's Amended Complaint alleges that Braverman and other members of the Firm created a hostile environment for women at the Firm and sexually harassed Caplan's female secretary. Caplan alleges that she was fired in retaliation for her protests against these actions. Caplan's Amended Complaint asserts causes of action against both Braverman and the Firm for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e -- 2000e-17 (1994), as well as negligent and intentional infliction of emotional distress, tortious interference with existing and prospective contracts, libel, and defamation. Both Defendants have asserted counterclaims against Caplan.
The basis of Braverman's motion is that he is not an "employer" within the meaning of Title VII, and that therefore, Caplan has failed to state a claim against him for which relief can be granted. In considering a 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
It shall be an unlawful employment practice for an employer-. . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
§ 2000e-2(a) (1) (emphasis added). Title VII's Definition section states:
The term "employer" means any person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person.
§ 2000e(b) (emphasis added). The dispute in this motion concerns the scope of the use of the word "employer." Braverman argues that he, as an individual, is not liable under Title VII, whereas Caplan argues that Braverman, as her supervisor, is individually liable as an agent of an employer.
Whether Braverman is an employer would seemingly be a straightforward question. However, as both parties recognize, there is a split, both among the Circuits and within this District, and the Third Circuit has not definitively ruled on this matter.
On one side of the split is the group that reads Title VII's § 2000e(b) literally, to hold that an agent of an employer is an employer, and therefore, subject to suit.
Several of our brethren in this District have specifically addressed this issue and held individuals personally liable under Title VII, although most limit the term "agent of such a person" to those employees in direct supervisory positions over the plaintiff. See Doe v. William Shapiro, Esq. P.C., 852 F. Supp. 1246, 1252-53 (E.D. Pa. 1994) (Gawthrop, J.); Dreisbach v. Cummins Diesel Eng., Inc., 848 F. Supp. 593, 597 (E.D. Pa. 1994) (Bartle, J.); Duva v. Bridgeport Textron, 632 F. Supp. 880, 882 (E.D. Pa. 1985) (Ditter, J.). Others, while not specifically addressing the issue, have held that individuals can be sued under Title VII. See Kinnally v. Bell ...