EMAR IFEDIORA, Plaintiff, v. IBM CORPORATION, JIMMY GRAY, DAVID MUMA, TOM BRYANT and GUS TRAMMELL, Defendants.
No. 5:96-CV-922-BO(3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, WESTERN DIVISION
1997 U.S. Dist. LEXIS 6116

April 10, 1997, Decided
April 11, 1997, FILED

DISPOSITION: [*1] Plaintiff`s claims against the Individual Defendants DISMISSED. 

COUNSEL: EMAR IFEDIORA, plaintiff, Pro se, Raleigh, NC. For IBM CORPORATION, defendant: Michael T. Medford, Manning, Fulton & Skinner, Raleigh, NC. For JIMMY GRAY, defendant: Michael T. Medford, (See above). For DAVID MUMA, defendant: Michael T. Medford, (See above). For TOM BRYANT, defendant: Michael T. Medford, (See above). For GUS TRAMMELL, defendant: Michael T. Medford, (See above). 

JUDGES: TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
OPINION BY: TERRENCE W. BOYLE

OPINION:
ORDER
This matter is before the Court on the motion of Individual Defendants to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is GRANTED.

BACKGROUND

Plaintiff was an IBM employee from December 1992 to August 1995. Plaintiff alleges that he was not promoted and ultimately terminated because of his national origin in violation of Title VII of the Civil Rights Act of 1964, as amended. n1 Plaintiff is suing IBM and four individual IBM employees.

n1 Title VII provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise 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." 42 U.S.C. §  2000e-2(a).

[*2] 

Plaintiff brought the case to the Equal Employment Opportunity Commission ("EEOC"). The EEOC`s investigation was unable to conclude that the information obtained established a violation of Title VII. The EEOC issued a right to sue letter on September 13, 1996. Plaintiff, who is pro se, filed this complaint on November 1, 1996.

DISCUSSION

The Individual Defendants argue that Title VII does not permit suits against individual employees. By its terms, Title VII applies only to "employers". An employer is defined as "A person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person." 42 U.S.C. §  2000e(b). Plaintiff argues that the Individual Defendants are liable for the alleged discrimination because they are representatives or agents of IBM.

The clear majority of circuits that have considered the question of individual employee liability under Title VII have held that individual employees are not liable. See, e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077 (3rd Cir. 1996); Williams v. Banning, 72 F.3d 552 (7th Cir. 1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2nd Cir. 1995);  [*3]  Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1399 (D.C. Cir.), cert. denied,     U.S.    , 116 S. Ct. 569, 133 L. Ed. 2d 493 (1995); Lenhardt v. Basic Inst. of Technology, Inc., 55 F.3d 377, 379-80 (8th Cir. 1995) (interpreting parallel state statute to preclude employee liability); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 & n.1 (4th Cir.)(deciding issue under ADEA), cert. denied,     U.S.    , 115 S. Ct. 666, 130 L. Ed. 2d 600 (1994), Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.), cert. denied,     U.S.    , 115 S. Ct. 574, 130 L. Ed. 2d 491 (1994); Miller v. Maxwell`s Int`l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993), cert. denied, 510 U.S. 1109, 114 S. Ct. 1049, 127 L. Ed. 2d 372 (1994).

The Fourth Circuit recently considered the issue of individual employee liability in the context of an Age Discrimination in Employment Act ("ADEA") claim.  Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert. denied,     U.S.    , 115 S. Ct. 666, 130 L. Ed. 2d 600 (1994). The court held that the inclusion of the term "agent" in the ADEA`s definition of "employer" did [*4]  not mean that an individual employee could be held liable for making "personnel decisions of a plainly delegable character." 30 F.3d at 510-11 & n.1. The court stated that the purpose of only applying the ADEA to employers with twenty or more workers is to "reduce the burden of the ADEA on small businesses" and that "it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more." Id. at 510. The court further stated that individual liability would unduly burden "those who routinely make personnel decisions." Id. The court concluded that the reference to "agents" was only an "unremarkable expression of respondeat-superior that discriminatory personnel actions taken by an employer`s agent may create liability for the employer." Id.

The Birkbeck court did not give a define exactly what is meant by "personnel decisions of a plainly delegable character". However, since the case dealt with termination of employment, it is clear that decisions relating to hiring, firing, and promotion [*5]  are plainly delegable. Cortes v. McDonald`s Corp., 955 F. Supp. 531, 1996 WL 772750 (E.D.N.C. 1996); Pardasani v. Rack Room Shoes Inc., 912 F. Supp. 187, 191 (M.D.N.C. 1996); Stephens v. Kay Management Co., Inc. 907 F. Supp. 169, 174 (E.D.Va. 1995). The Birkbeck court did indicate that acts of sexual harassment are not of a plainly delegable character and can result in individual employee liability. Id. at 511 n. 1. The court cited as an example Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc), which held that an individual defendant could be held liable under Title VII for sexual harassment. The implication is that since sexual harassment is not "plainly delegable," individual liability can apply in such cases. See, e.g., Blankenship v. Warren County, 918 F. Supp. 970 (W.D.Va. 1996); Shoemaker v. Metro Information Services, 910 F. Supp. 259 (E.D.Va. 1996).

Although the Fourth Circuit was faced with an ADEA in Birkbeck, it is clear that the court intended for the limitation on individual liability to apply in Title VII cases as well.  30 F.3d at 510-11 & n.1. The court remarked that Title [*6]  VII was "the ADEA`s closest statutory kin" and cited with approval cases from other circuits that held Title VII did not permit liability for individual employees. n2 The only difference between the definition of "employer" found in the ADEA and that found in Title VII is that the ADEA defines an employer as having 20 or more employees as opposed to 15 or more employees under Title VII. Furthermore, the ADEA and Title VII have the same purpose which is to prohibit discrimination in the workplace.

n2 Specifically, the Birkbeck court stated the following:

Employer liability ensures that no employee can violate the civil rights laws with impunity, a safeguard that has proven sufficient with respect to Title VII, the ADEA`s closest statutory kin. See Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir 1990) (holding that the similar provisions in Title VII, 42 U.S.C. §  2000e(b), mean that individuals acting as employer "agents" will be liable in their official capacities only); Padway v. Palches, 665 F.2d 965, 968 (9th Cir. 1982) (same)

 30 F.3d at 510.

[*7] 

Other courts in this circuit that have interpreted Birkbeck to prohibit Title VII suits against individual employees. For example, in Lane v. David P. Jacobson & Co., the district court held that "although the holding of the Fourth Circuit was not founded on the Title VII language, the clear implication of the decision in Birkbeck was that the Fourth Circuit does not support individual liability for agents of employers under Title VII." 880 F. Supp. 1091, 1095-96 (E.D.Va. 1995). See, e.g., Dowdy v. McClease, 1997 U.S. Dist. LEXIS 4002, No. 2:96-CV-37-BO(3), slip op. at 8-9 (E.D.N.C. March 5, 1997); Thayer v. Washington School Bd., 949 F. Supp. 445, 447-48 (W.D.Va. 1996) (holding that there could be no individual liability under Title VII for act done on behalf of employer); Green v. Clarendon County School District Three, 923 F. Supp. 829, 847-49 (D.S.C. 1996) (holding that no individual liability exists for delegable duties of hiring, firing, or promotion); Mitchell v. RJK of Gloucester, Inc., 899 F. Supp. 246, 247-48 (E.D.Va. 1995) (holding that "the logic of Birkbeck should apply with equal force to Title VII claims").

In the instant case, Plaintiff alleges that the Individual [*8]  Defendants were responsible for his failure to be promoted and for his termination. Even assuming Plaintiff`s allegations are true, Plaintiff`s suit must still fail. Title VII does not permit a suits against individual employees for making personnel decisions of a plainly delegable character such as decisions regarding hiring, firing, and promotion. This rule is clearly established by the caselaw cited above. Accordingly, Plaintiff`s claims against the Individual Defendants are DISMISSED.

SO ORDERED.

This 10th day of April, 1997.

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE