704,
Elizabeth J. LENHARDT, lawful successor and Personal
Representative of the Estate of Peter Lenhardt,
III, deceased, Appellant,
v.
BASIC INSTITUTE OF TECHNOLOGY, INC., а corporation, Defendant,
James A. Zoeller, an individual, Appellee.
No. 94-3149.
United States Court of Appeals,
Eighth Circuit.
Submitted April 10, 1995.
Decided May 16, 1995.
Rehearing and Suggestion for Rehearing En Banc Denied July 6, 1995.
Donald G. Wilkerson, St. Louis, MO, argued (H. Kent Munson, on the brief), for appellant.
Robert A. Kaiser, St. Louis, MO, argued (Daniel K. O'Toole on the brief), for appellee.
Before FAGG, Circuit Judge, HENLEY, Seniоr Circuit Judge, and BOWMAN, Circuit Judge.
BOWMAN, Circuit Judge.
The sole question presented by this appeal is whether James A. Zoeller is an employer within the meaning of the Missouri Human Rights Act (MHRA). The MHRA imposes liability only on employers for proscribed acts of discrimination in the workplace. The District Court1 held that Zoeller was not an employer and granted his motion for summary judgment. The plaintiff, Peter Lenhardt III, timely filed his notice of appeal with the District Court. As a result of Lenhardt's subsequent death, Elizabeth J. Lenhardt has been substituted as the appellant in this case in her сapacity as lawful successor and personal representative of Peter Lenhardt III. We agree that Zoeller was not Lenhardt's employer within the meaning of the MHRA and thus we affirm the District Court.
While this case does not turn on an issue of fact, to plaсe the controversy in context we briefly summarize the salient facts as set out in Lenhardt's brief. Lenhardt was employed by the Basic Institute of Technology, Inc. (BITI), in St. Louis, serving as BITI's admissions director. During Lenhardt's employment, Zoeller was the president, sole director, and sоle shareholder of BITI. Lenhardt was diagnosed with cancer of the cheek in January 1992. He subsequently had surgery and was then scheduled for six weeks of radiation treatment. Lenhardt planned to work during the radiation treatment, but BITI required him to take a leave of absence until the treatment was completed. During Lenhardt's radiation treatment, BITI terminated his employment. BITI did not inform Lenhardt of its decision until he reported for work at the end of the treatment in April 1992.
Lenhardt filed a two-count complaint against BITI and Zoeller in the Distriсt Court. In Count I Lenhardt alleged that BITI and Zoeller had violated the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1140 (1988), because the termination of Lenhardt's employment was motivated by a desire to "deprive Plaintiff of continued participation in BITI's group health insurance benefit coverage and discriminate against Plaintiff for exercising his [ERISA] rights...." Complaint at 3-4. In Count II, a supplemental state law claim, see 28 U.S.C. Sec. 1367 (Supp. V 1993), Lenhardt alleged that BITI and Zoeller had violated the MHRA, Mo.Rev.Stat. Ch. 213 (1994), because their dеcision to terminate Lenhardt's employment was motivated by Lenhardt's disability or handicap. Zoeller moved for summary judgment on Count II prior to trial, arguing that he could not be held liable in his individual capacity because he was not Lenhardt's employer within the meаning of the MHRA. The District Court granted the motion and dismissed Count II as to Zoeller. Count I was tried to the court against both defendants, and Count II was tried to a jury against BITI only. The jury returned a verdict in favor of Lenhardt on Count II in the amount of $60,000, and the court entered judgment against BITI on that verdict. On Count I, the court then found in favor of the defendants and entered judgment for BITI and Zoeller. Lenhardt appeals only the District Court's order granting summary judgment in favor of Zoeller on Count II. BITI has not appealed the final judgment entered against it in accordanсe with the jury verdict on Count II.
We review de novo a district court's grant of summary judgment. See Maitland v. University of Minnesota,
Zoeller is entitled to judgment as a matter of law unless he was, along with BITI, an "employer" of Lenhardt for purposes of the MHRA. The MHRA defines an employer as follows:
"Employer" includes the state, or any political subdivision thereof, or any person employing six or more persons within the state, and any person directly acting in the interest of an emplоyer, but does not include corporations and associations owned and operated by religious or sectarian groups.
Mo.Rev.Stat. Sec. 213.010(6) (1994). To date, the Missouri Supreme Court has not decided whether individual officers or other employees of а corporate employer can be held liable as employers under the MHRA. When a state's highest court has not addressed the precise question of state law that is at issue, a federal court must decide "what the highest state court would probably hоld were it called upon to decide the issue." Hazen v. Pasley,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the MHRA are similar statutory schemes that prohibit discrimination in employment against protected classes. Both federal statutes inсlude definitions of an employer that are analogous to the MHRA's definition of the term. Title VII, for example, defines an employer as follows:
a person engaged in an industry affecting commerce who has fifteen or more employees for eаch working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....
42 U.S.C. Sec. 2000e(b) (1988); see also 29 U.S.C. Sec. 630(b) (1988) (ADEA) (defining employer in substantially identical manner). This language is analogous, though not identical, to the language previously adopted by the Missouri legislature that is now codified in Sec. 213.010(6). Lenhardt contends that the two definitions are not analogous because, he asserts, an individual need not be an agent under the Missouri statute in order to fаll within the definition of an employer. We are not persuaded. Lenhardt's assertion regarding the Missouri statute may or may not be true; it is not self-evident from the language of Sec. 213.010(6), and Lenhardt has not called our attention to any authority directly in point. In any event, the distinction Lenhardt would have us draw is a distinction without a difference in the context of this case. If the words "any agent of such a person" and "any person directly acting in the interest of an employer" subjected corporate supervisory personnel to individual liability, Zoeller would come within either definition of an employer. We therefore reject Lenhardt's argument that the two definitions are not analogous to one another.
This Court has not decided the question of individual employee liability under Title VII when the employee is the Title VII plaintiff's supervisor, and we do not do so today. We have held, however, that a Title VII plaintiff could not hold co-workers liable in their individual capacities under Title VII even though such co-workers might be considered agents of thеir employer. See Smith v. St. Bernards Regional Medical Center,
Lenhardt argues that the cases holding that a supervisor or other employеe cannot be sued in his or her individual capacity under Title VII are incorrectly decided. He relies, however, on earlier cases from the Fourth, Fifth, and Tenth Circuits. Appellant's Brief at 8-10 (citing Sauers v. Salt Lake County,
Lenhardt, in a final attempt to convince us that our sister circuits have all erred, advances the following "chamber of horrors" argument:
It defies logic that an individual ... with complete control over an employment situation could not be held liable in his individual capacity. To so hold would give such employees a "free pass" to act in a discriminatory manner with impunity because those employees would know that under no circumstances could they be held liablе for their actions under Title VII.
Appellant's Brief at 13. We are not persuaded. As a practical matter employees who unlawfully discriminate against their fellow employees, and who thereby expose their employer to liability, do not get anything like а "free pass" to continue their wrongdoing with impunity. By incorporating the principles of respondeat superior into Title VII, Congress has required employers to answer for prohibited acts of discrimination perpetrated by their employees. An employer who is subjected to well-founded claims of employment discrimination as a result of an employee's intentional acts of discrimination is not likely to look favorably upon the offending employee. To the contrary, the employer, to protеct its own interests and to avoid further liability, almost certainly will impose some form of discipline upon the offending employee. That discipline may include a "free pass" to the unemployment line, a result that would seem particularly likely if the employеe engages in repeated acts of intentional discrimination against fellow employees. The scheme that our sister circuits have concluded Congress adopted in Title VII, with liability for unlawful discrimination in the workplace imposed only on the employing entity, is not illogical nor does it result in the "free pass" described by Lenhardt.
Looking to analogous federal civil rights statutes, as we believe the Missouri Supreme Court would, we hold that the Missouri Supreme Court would interpret the definition of an employer in the MHRA, Mo.Rev.Stаt. Sec. 213.010(6), in a manner consistent with decisions of our sister circuits construing Title VII's definition of an employer. Every circuit that has considered the issue ultimately has concluded that an employee, even one possessing supervisory authority, is not an employеr upon whom liability can be imposed under Title VII. Thus, we believe the Missouri Supreme Court would hold that the definition of the term employer in the MHRA does not subject employees, including supervisors or managers, to individual liability. We therefore hold that Zoeller was not Lenhardt's employer within the meaning of the MHRA and, accordingly, that the District Court correctly ruled as a matter of law that Lenhardt could not maintain an action against Zoeller under the MHRA.
For the foregoing reasons, the order of the District Court granting Zoeller's motion for summary judgment is affirmed.
Notes
The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri