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Perodeau v. City of Hartford3/26/2002
. 2d 372 (1994); Busby v. Orlando, 931 F.2d 764, 772 (11th Cir. 1991); see also Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, 513 U.S. 1058, 115 S. Ct. 666, 130 L. Ed. 2d 600 (1994) (holding that similar definition of employer in Age Discrimination in Employment Act; 29 U.S.C. § 621 et seq.; does not provide for individual liability); but see Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989) (when employee exercises sufficient supervisory authority over plaintiff, employee is employer for purposes of 42 U.S.C. § 2000e ), aff'd in part, rev'd in part, 900 F.2d 27 (1990); Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir. 1986) (person is agent of employer if person participated in decisionmaking process that forms basis of discrimination and agent is individually liable).
In Tomka v. Seiler Corp., supra, 66 F.3d 1314, the Court of Appeals for the Second Circuit rejected the plaintiff's argument that individual employees who are agents of an employer may be held individually liable, concluding that it was ''inconceivable that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees.'' (Internal quotation marks omitted.) Id., citing Miller v. Maxwell's International, Inc., supra, 991 F.2d 587 n.2; see Haynes v. Williams, supra, 88 F.3d 901 (same); Grant v. Lone Star Co., supra, 21 F.3d 652 (same). The court in Miller v. Maxwell's International, Inc., supra, 587, had concluded that '' he obvious purpose of this [agent] provision was to incorporate respondeat superior liability into the statute.'' (Internal quotation marks omitted.)
In Murphy v. Burgess, United States District Court, Docket No. 3:96CV01987 (D. Conn. July 16, 1997), however, the court distinguished § 46a-60 (a) (1) from the federal statute. Specifically, the court concluded that, because the federal statute applies to employers with fifteen or more employees, while § 46a-60 (a) (1) applies to employers with three or more employees, the inconsistency, noted in Tomka, between protecting small employers while allowing individual employees to be sued, did not arise under the Connecticut statute. See also Lueneburg v. Mystic Dental Group, Superior Court, judicial district of New London, Docket No. 535839 (August 1, 1996) (17 Conn. L. Rptr. 219, 221), amended (August 22, 1996) (17 Conn. L. Rptr. 409) (concluding that because § 46a-60 ''imposes liability on business entities with very small numbers of employees, there was no intent by the legislature to protect supervisory employees from individual liability''). We do not agree. Both the Congress and the Connecticut legislature have evinced an intention to protect employers with fewer than a certain number of employees from suit under their respective fair employment statutes. The reasoning in Tomka is no less compelling merely because that number is smaller under the Connecticut statute than under the federal statute.
We recognize that the ambiguity in the federal statute arises from the phrase ''and any agent of such a person''; 42 U.S.C. § 2000e (b); and not from any analog to the phrase ''person or employer'' in § 46a-51 (10), on which the plaintiff in this case exclusively relies. Nevertheless, we conclude that the reasoning of the federal cases concerning the individual liability of agents is equally applicable to the plaintiff's argument that ''persons'' who are not employers may be held liable under § 46a60 (a). If it is incongruous to hold an employer's agent individually liable, it is equally incongruous to hold an employee who is not an agent liable.
Our review of case law from other jurisdictions construing state statutes similar
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