MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Robert Maeyama’s and Defendant John Lancaster’s Motion to Dismiss Counts I through IX of Plaintiff Pamela Haltek’s Amended Complaint and Defendant Village of Park Forest’s Motion to Strike Plaintiffs claim for damages in Counts I through VII.
Plaintiffs Amended Complaint contains ten counts. Counts I through III allege that the Defendants violated the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111-12117. Counts IV through VI state a claim for violation of Section 504 of the Rehabilitation Act of 1973,. 29 U.S.C. § 794. Counts VII and VIII assert that Defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a (Supp.1994). Finally, Count IX states a elaim for retaliatory employment practices.
Defendants request this Court to dismiss Counts I through IX of Plaintiffs Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), because individual supervisory employees are not “employers” within the meaning of the ADA, the Rehabilitation Act of 1973 and Title VII, and thus they are not subject to liability under these Acts. Similarly, Defendants assert that under Illinois law, a claim for retaliatory employment practices cannot be brought against a defendant who is not the plaintiffs employer.
Defendant Robert Maeyama was, at the relevant time, the Chief of Police of the Village of Park Forest and Defendant John Lancaster was, at the relevant time, Captain of the Police Department of the Village of Park Forest. (Amended Complaint at ¶ 5.) Both individual Defendants served as Plaintiffs supervisor. Id.
Americans With Disabilities Act, Title VII and the Rehabilitation Act of 1973
The issue which this Court confronts is whether supervisory employees are “employers,” and thus may be held individually liable for discrimination under the ADA, Title VII and the Rehabilitation Act. The ADA defines “employer” as
a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.
42 U.S.C. § 12111(5)(A). The ADA’s definition of employer mirrors the definition in Title VII, 42 U.S.C. § 2000e(b). Moreover, Section 504(d) of the Rehabilitation Act states, “[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).” 29 U.S.C. § 794(d). Thus, in an employment discrimination case, such as the instant one, the ADA’s definition of “employer” is applicable to the three counts in Plaintiffs Amended Complaint which state a claim under the Rehabilitation Act.
The Seventh Circuit has not directly addressed whether a supervisory officer is an “employer” within the meaning of the ADA, Title VII and the Rehabilitation Act. However, the Seventh Circuit has, without discussion, upheld personal liability against decision-making supervisors in at least one Title VII case.
Gaddy v. Abex Corp.,
The District Courts in the Northern District of Illinois are split on the issue of whether the ADA, Title VII and the Rehabilitation Act authorize an action against an individual supervisory employee. A number of cases have held that, as individual supervi
*804
sory employees are not “employers” within the meaning of the ADA or Title VII, such individuals cannot be sued under the ADA or Title VII in their individual capacity.
Dirk-sen v. City of Springfield,
The
Pelech
court reasoned that Title VII prohibits
“employers”
from discriminating against individuals on the basis of “race, color, religion, sex or national origin.”
The notion that a supervisor liable as an employer’s agent is really a surrogate for the employer and thus only liable in his official capacity is further supported by Title VU’s statutory scheme. In
Miller v. Maxwell’s International, Inc.,
The compensatory and punitive damage caps in the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3) (Supp.1994), which are based on the size of the respondent employer, further supports the conclusion that individual supervisory employees are not meant to be subject to liability under Title VII.
Miller,
In addition to the Fifth and Ninth Circuits, the Tenth and Eleventh Circuits have also held that “[t]he relief granted under Title VII is against the
employer,
not individual employees whose actions would constitute a violation of the Act____ [T]he proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.”
Busby v. City of Orlando,
However, other circuit courts and other courts in this district have rejected the rationale that an agent of an employer may not be held personally liable under Title VII for action taken on the employer’s behalf.
Paroline v. Unisys Corp.,
In
Paroline,
the Fourth Circuit reasoned that “an individual qualifies as an employer under Title VII if he serves in a supervisory position and exercises significant control over the plaintiffs hiring, firing or conditions of employment.”
The court in
Vakharia
held that the decisions in
Weiss
and
Pommier
were inconsistent with the broad remedial purposes of Title VII.
Moreover, while backpay and reinstatement are generally not remedies which an individual supervisory employee can provide, the Civil Rights Act of 1991 allows for compensatory damages and punitive damages— remedies which are traditionally provided against individual defendants. The Vakharia court concluded that allowing individuals who make discriminatory decisions to elude punishment ensures that they will never alter their behavior and that they will subvert the broad remedial purposes of Title VII. Id. at 786.
This Court finds the rationale of the former cases, prohibiting individual liability of supervisory employees under Title VII, more persuasive than the rationale of the latter cases. Congress’ explicit limitation of the definition of “employer” to “a person engaged in an industry affecting commerce who has 15 or more employees” suggests an intent to protect those with limited resources from liability. Thus to hold “any agent” of “a person engaged in an industry affecting commerce” individually liable under Title VII would contravene Congress’ intent to protect entities with limited resources from liability. It is unreasonable to think that Congress would protect small entities from the costs associated with litigating discrimination claims and limit the available compensatory and punitive damages based on the size of the respondent employer, but subject an individual supervisory employee to unlimited liability. To suggest that the availability of compensatory and punitive damages, under the Civil Rights Act of 1991, provides support for holding supervisory employees personally liable ignores the damage caps placed on compensatory and punitive damages, which are based on the size of the respondent employer.
A supervisory employee acting as the agent of a person engaged in an industry affecting commerce is an “employer” as defined by Title VII and by the ADA. However, this Court does not believe that Congress, in defining “employer,” meant to impose individual liability on a supervisory employee acting as the employee of the employer. Both Title VII and the ADA incorporate any agent into the definition of employer to underscore the notion that the employer is to have some derivative liability for the deliberate discriminatory acts of its designated agent employees.
Vodde v. Indiana Michigan Power Co.,
Concluding that an individual supervisory employee cannot be held personally liable under Title VII, the ADA or the Rehabilitation Act will not undermine the broad remedial purposes of these Acts. A company that risks liability for the discriminatory acts of its agents will police its supervisory employ *806 ees and institute disciplinary measures to deter discriminatory acts. Thus, the threat of termination, suspension and demotion faced by supervisory employees who make discriminatory decisions prevents such employees from eluding punishment for their discriminatory acts and encourages such employees to eventually alter their behavior thus furthering the remedial purposes of Title VII, the ADA and the Rehabilitation Act. Since Defendants Robert Maeyama and John Lancaster cannot be sued in their individual capacity and suing these Defendants in then-official capacity is the same as suing the Village of Park Forest, Counts I through VIII of Plaintiffs Amended Complaint are dismissed as to Defendants Robert Maeyama and John Lancaster.
Retaliatory Employment Practices
Defendants assert that under Illinois law, a claim for retaliatory employment practices cannot be brought against a supervisory employee because the supervisory employee is not the plaintiffs employer. Unfortunately, the parties have not cited and this Court, through its own research efforts, cannot find an Illinois Supreme Court case addressing the issue of whether a supervisory employee can be held personally liable for retaliatory employment practices.
In
Morton v. Hartigan,
The Second District has declined to follow the First District’s holding in
Morton. See Bragado v. Cherry Electric Products Corp.,
As this Court finds the rationale of Fellhauer more persuasive than that of Morton, this Court holds that a plaintiff can name his supervisor as a defendant in a retaliatory discharge action. Accordingly, this Court denies Defendant Robert Maeyama’s and Defendant John Lancaster’s Motion to Dismiss Count IX of Plaintiffs Amended Complaint as it applies to them.
Motion to Strike the Damages Claims in Counts I through VIII
The Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3)(B) (Supp.1994), states as follows:
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party ...
*807 (B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000[.]
Counts I through VII of Plaintiffs Amended Complaint request $500,000.00 in compensatory damages and $1,000,000.00 in punitive damages. Defendant asserts that, as the Village of Park Forest employs fewer than 201 employees, and has done so in each of 20 or more calendar weeks in 1992 and 1993, Plaintiffs request for compensatory and punitive damages cannot exceed $100,000. (Affidavit of Erica Peterson at ¶ 4.)
Plaintiff responds that 42 U.S.C. § 1981a(c) (Supp.1994), provides that the Court shall not inform the jury of the damage caps described in § 1981a(b). Thus, Plaintiff argues that by striking her damage claims and forcing her to request compensatory and punitive damages in an amount not exceeding $100,000, this Court would in effect inform the jury of the damage caps outlined in § 1981a(b). Plaintiff asserts, and this Court agrees, that to avoid violation of § 1981a(c), this Court should deny Defendant’s Motion to Strike and if Plaintiff subsequently receives a jury verdict in excess of the appropriate damage cap, the Court should then reduce such verdict so that it meets the damage cap requirements of § 1981a(b).
See, U.S. E.E.O.C. v. AIC Security Investigations, Ltd.,
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted with regard to Counts I through VIII and denied with regard to Count IX. Defendant’s Motion to Strike the Damage Claims in Counts I through VII of Plaintiffs Amended Complaint is denied.
DATED: September 21, 1994