United States Court of Appeals,
Fifth Circuit.
No. 93-2123.
Paula Jo GRANT, Plaintiff-Appellee,
v.
LONE STAR COMPANY, B.L. Watson, et al., Defendants,
Mitchel L. Murray, Defendant-Appellant.
May 27, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before KING and SMITH, Circuit Judges, and KENT,* District Judge.
JERRY E. SMITH, Circuit Judge:
Mitchel Murray appeals a judgment finding him liable for
backpay damages under title VII of the Civil Rights Act of 1964 for
sexually harassing Paula Jo Grant. Because title VII does not
provide for liability against individual employees who do not
otherwise qualify as employers, we reverse and render.
I.
A.
Grant began work with the Lone Star Company ("Lone Star") as
a sales representative on March 26, 1984. She worked at the
Houston branch from then until her resignation on October 14, 1988.
Mitchell Murray became Branch Manager of the Houston branch of Lone
Star on May 1, 1985.
The district court found that while at the Houston branch,
*
District Judge of the Southern District of Texas, sitting
by designation.
1
Grant was subject to frequent sexual harassment, including sexually
explicit jokes and cartoons, comments about her body, clothing, and
personal appearance, lewd comments, and suggestive noises, all of
which had the effect of making her the center of male attention
because of her sex. Sexually explicit language, jokes, and remarks
were directed at other female employees at her office. Pictures of
nude women, including an employee, were posted on the office walls
and were passed around among employees, including supervisors.
With Murray's approval, visitors were permitted to make sexually
explicit jokes at sales meetings.
Grant was subjected to sexually suggestive conduct by male
employees and descriptions of sexual conduct by fellow employees
and supervisors. She also was subjected to crude, hostile, and
intimidating remarks that were belittling to women in general, and
to her in particular. The district court also found that Murray
participated in these activities and that the behavior of Murray
and other defendants had the effect of creating a hostile work
environment that affected a term or condition of Grant's employment
in violation of title VII.
B.
In August 1988, Grant filed a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC). The only
listed respondent in the discrimination charge was Lone Star.
Murray was not listed as a respondent and was not identified in the
body of the charge.
Grant obtained a right-to-sue letter and filed suit in June,
2
1989, against Lone Star, B.L. Watson, M.A. Petsch, Edward C.
Thomas, Jay Clayton, Ben A. Lanford, Jr., Murray, Keith Overstreet,
William P. Middleton, Dennis Thomlinson, Tombo S. Faver, and
Quality Beverage Co., Inc. Grant claimed that defendants
discriminated against her because of her sex, subjected her to
sexual harassment and a hostile work environment, and retaliated
against her for having opposed unlawful employment practices and
for having filed a charge and for having participated in an
investigation or proceeding in violation of title VII. She also
asserted a number of violations of state tort and contract law.
She sought recovery from the principal stockholders of Lone Star;
injunctive relief against Quality Beverage Company, which had
purchased the assets of Lone Star; and backpay, reinstatement,
compensatory and punitive damages, and attorneys' fees.
After a jury trial, all defendants but Murray were found not
liable. The court held that Murray was liable for sexual
harassment not as an employer, but personally because he
participated directly and engaged in acts in addition to condoning
and encouraging the acts of other workers that contributed to a
hostile working environment. The court ordered Murray to pay Grant
backpay of $5,905 and directed Murray and Faver to pay $62,500 in
attorneys' fees and $4,678.74 in expenses.
II.
Murray contends that the district court erred by rendering
judgment against him in his individual capacity for backpay damages
3
under title VII.1 He contends that as a matter of law, backpay
awards under title VII cannot be assessed against individuals who
do not otherwise qualify as employers.2
Under title VII, an "employer" may not discriminate on the
basis of race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-2. An "employer" includes any "person engaged in an
industry affecting commerce who has fifteen or more employees for
each working day in each of twenty or more calendar weeks...." Id.
§ 2000e(b). For purposes of title VII, "The term "person' includes
one or more individuals...." 42 U.S.C. § 2000e(a). Because Murray
is not an "employer" under title VII, the district court erred by
holding him individually liable for harassing Grant.
A.
In this circuit, we have addressed only the issue of whether
a public employee should be exempt from liability for employment
discrimination. We have refused to impose liability for backpay on
1
Murray also contends that he cannot be held liable as a
matter of law because he was not named in the charge of
discrimination filed with the EEOC. We need not reach this
issue.
2
Grant contends that Murray is estopped from contesting the
issue of individual liability because he admitted otherwise at
trial. Judicial estoppel applies where a party tries to
contradict in a second lawsuit his sworn statement in previous
litigation. It is intended to protect the integrity of the
judicial process, avoid inconsistent results, and prevent
litigants from playing fast and loose in order to secure an
advantage. See United States ex rel. Am. Bank v. C.I.T. Constr.,
944 F.2d 253, 258-59 (5th Cir.1991); Brandon v. InterFirst
Corp., 858 F.2d 266, 268 (5th Cir.1988). Murray denied the
propriety of individual liability in the amended pre-trial order,
his amended answer, and his motion for directed verdict. Thus,
judicial estoppel is not appropriate.
4
individual public employees. Grant offers no persuasive argument
why Congress would not have intended to protect private employees,
as well, from individual title VII liability.3
In Clanton v. Orleans Parish Sch. Bd., 649 F.2d 1084 (5th
Cir. Unit A July 1981), this court held that the board's maternity
leave policy violated title VII, but refused to impose liability
for backpay on the individual defendants because it could "find no
authority for holding public officials personally liable for
backpay under Title VII," id. at 1099, and its "research [had]
failed to uncover a single case in which a public official has been
held personally liable for backpay under Title VII," id. at 1099 n.
19. In particular, the court noted that title VII makes
"employer[s]" responsible for backpay damages, whereas 42 U.S.C. §
1983 applies specifically to "person[s]." Id. Only "employers,"
not individuals acting in their individual capacity who do not
otherwise meet the definition of "employers," can be liable under
title VII.
Grant argues that Clanton is merely an example of the
longstanding practice of treating public officials differently from
private citizens. This argument does not square with the rationale
of Clanton, which relies upon the language of title VII,
contrasting it with § 1983's creation of a right to damages against
"persons." The public employees in Clanton were excluded from
liability because title VII does not include non-employer
3
Presumably private employees still could be liable for
violations of state tort and contract law, such as intentional
infliction of emotional distress.
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individuals, regardless of whether they work for a private or
public body. Id.
In Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990), we
also implied that a title VII plaintiff cannot recover against a
public employee in his individual capacity. See also Weiss v.
Coca-Cola Bottling Co., 772 F.Supp. 407, 411 (N.D.Ill.1991)
(interpreting Harvey as holding supervisor liable as employer's
agent only in official capacity), aff'd, 990 F.2d 333 (7th
Cir.1993). In Harvey we also specifically rejected a reading of
Hamilton v. Rodgers, 791 F.2d 439 (5th Cir.1986), that would permit
personal liability for damages under title VII.
Other circuits have held that public employees may not be
personally liable for backpay damages under title VII. In Busby v.
City of Orlando, 931 F.2d 764, 772 (11th Cir.1991), for instance,
the court held that the relief granted under title VII is "against
the employer, not against the individual employees whose actions
constituted a violation of [Title VII]." The court stated that the
proper method for a plaintiff to recover under title VII is to sue
the employer, either by naming the supervisory employee as agent of
the employer or by naming the employer directly. Id. Nothing in
Busby suggests that its rationale should be limited to the context
of public employees.
The Ninth Circuit has also determined that public employees
may not be assessed backpay liability under title VII. Padway v.
Palches, 665 F.2d 965 (9th Cir.1982). The court noted that title
VII identifies unlawful practices only by the employer, not
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officers or employees of the employer, and that backpay awards
should be paid by the employer. Id. at 968.
In Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 584 (9th
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1049, --- L.Ed.2d
---- (1994), the court extended this rule to private employers.
Defendants were employees of a restaurant and its corporate owner.
The plaintiff alleged that she was discriminated against because of
her sex and age and sought to hold the defendants personally liable
for their actions. The court rejected her claim, noting, "Because
Congress assessed civil liability only against an employer under
Title VII, ... "individual defendants cannot be held liable for
back pay.' " Id. at 587 (quoting Padway, 665 F.2d at 968). The
court also rejected the notion that "supervisory personnel and
other agents of the employer are themselves employers for purposes
of liability." Id.
The definition of the term "employer" in § 2000e(b) does not
include individuals who do not otherwise qualify as employers under
the statute. In Miller, the court observed that the purpose of the
"agent" provision in § 2000e(b) was to incorporate respondeat
superior liability into title VII. The court found no reason to
stretch the liability of individual employees beyond the respondeat
superior principle intended by Congress.
The court also noted that the statutory scheme of title VII
indicated that Congress did not intend to impose individual
liability on employees. Title VII limits liability to employers
with fifteen or more employees, because Congress "did not want to
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burden small entities with the costs associated with litigating
discrimination claims" and wanted "to protect small entities with
limited resources from liability." Id. Thus, the court found it
"inconceivable that Congress intended to allow civil liability to
run against individual employees," the smallest of legal entities.
Id. Finally, the Miller court suggested that had Congress
envisioned liability for non-employer natural persons, it would
have included it in its recent amendments to title VII under the
Civil Rights Act of 1991. Id. at 587 n. 2.
We find no reason to limit the rationale of Clanton and Harvey
v. Blake to the realm of public employee disputes. Thus, we
conclude that title VII does not permit the imposition of liability
upon individuals unless they meet title VII's definition of
"employer."
B.
The structure of title VII also indicates that Congress did
not intend natural persons who are not employers to be held liable
for backpay awards. Section 2000e-2 prohibits various types of
discrimination by an "employer." The statute defines an employer
to include any agent of an employer. Id. at § 2000e(b). Damages
available under title VII include reinstatement with or without
backpay and are to be paid by the employer, employment agency, or
labor organization responsible for the unlawful employment
practice. 42 U.S.C. § 2000e-5(g)(1).
Murray contends that the type of damages available under title
VII indicates that individual employees who are not employers are
8
not intended to be held responsible for backpay damages. For
instance, under title VII, equitable damages, including
reinstatement and back pay, are recoverable. These types of
damages can be obtained only from the employer. See Weiss, 772
F.Supp. at 411.
Grant contends that an agent with authority to hire, fire, and
discipline also has the power of reinstatement, promotion, and
correction of employment records. She concludes that all remedies
available under the act should apply to those with the full power
to act in the stead of the principal employer. Her contention
proves too much. Not all agents have the power to hire and fire,
yet title VII contemplates employer liability for their behavior
because they are agents. Thus, Grant's reading would require us to
treat some employees as both an employer and an employee. We
reject this illogical reading. Instead, as the Ninth Circuit noted
in Miller, title VII contemplates liability for the employer, which
has the ability to discipline the employee. Miller, 991 F.2d at
588.
The absence, from the list of potentially liable parties, of
individuals who do not otherwise meet the requirements of a title
VII employer also suggests that Congress did not intend to include
such natural persons. Among the various parties subject to
liability listed in § 2000e-5(g)(1), Congress could have made the
individual employee committing or engaging in the discriminatory
acts liable for damages. It did not. In § 2000e-2, Congress could
have provided that an individual employee is prohibited from
9
engaging in discriminatory conduct. Instead, only an individual
meeting the definition of "employer" is so prohibited.
As we have noted, Congress has proscribed conduct by "persons"
in other statutory schemes. See 42 U.S.C. §§ 1981, 1983, 1985,
1986. The absence of specific language making a non-employer
individual liable for these damages, when Congress has included
such language in other contexts, indicates that Congress did not
intend to impose individual liability for backpay damages under
title VII, unless the individual meets the statutory definition of
"employer." In sum, there is no indication anywhere in title VII
that Congress intended to impose individual liability in such a
circumstance.
III.
Based upon analogous caselaw and the structure of title VII,
we conclude that individuals who do not otherwise qualify as an
employer cannot be held liable for a breach of title VII. Because
the district court erroneously held Murray liable for damages in
his individual capacity, we REVERSE the judgment against him, as
well as the attorneys' fees award, and RENDER judgment in favor of
Lone Star.
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