The opinion of the court was delivered by: ROBERTSON
Plaintiff, a D.C. police officer, brings this action against the District of Columbia, the Metropolitan Police Department, and seven named MPD officers in their official and individual capacities. Count I alleges discrimination on the basis of plaintiff's association with her disabled son in violation of the Americans with Disability Act, 42 U.S.C. § 12112. Count II raises a claim of unlawful retaliation under the ADA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Counts III and IV present common law claims of intentional infliction of emotional distress and tortious interference with prospective employment. The individual defendants and the Metropolitan Police Department have moved to dismiss. For the reasons set forth below, the claim of tortious interference with prospective employment, stated only against defendants Blancato and Peters, will go forward (together with all the claims stated against the District of Columbia). In all other respects, the motion to dismiss will be granted.
For purposes of the motion to dismiss, these allegations of fact, set forth in the complaint, are taken to be true: Plaintiff has served as a police officer with Metropolitan Police Department since June 1990. During that time, she has had sole custody of her minor son, who suffers from severe allergies and asthma. In October 1991, plaintiff's son became severely ill and was hospitalized. Plaintiff's fellow officers and supervisors learned of her child's condition and began treating her differently from other officers. Because she had a disabled son, plaintiff was denied training and promotion opportunities, accommodations in shift schedules, and other employee benefits.
On September 16, 1992, plaintiff filed a complaint with the Equal Employment Opportunity Commission, charging violations of the ADA. She was then subjected to harassment in retaliation for her EEO activity. On September 30, 1994, the EEOC determined that the Department had unlawfully discriminated and retaliated against plaintiff. After the EEOC's ruling, plaintiff continued to be subjected to retaliation, including negative employment references in connection with her application for a position with the U.S. Customs Service. Plaintiff received her right to sue letter and commenced this action on December 16, 1996.
In their motion to dismiss, defendants submit that the individual officers may not be sued in their individual capacities under Title VII or the ADA; that the claims against the individual defendants in their official capacities must be dismissed as duplicative; that the Metropolitan Police Department is not a suable entity; and that the common law tort claims are subsumed under Title VII and ADA, or, in the alternative, barred by the statute of limitations and by absolute immunity.
Plaintiff concedes that the Metropolitan Police Department is an agency within the District of Columbia government and is thus not suable as a separate entity. See Braxton v. National Capital Housing Authority, 396 A.2d 215 (D.C. 1978). Plaintiff also does not oppose dismissal of the Title VII claim against the officers in their individual capacities in Count II of the complaint. See Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1399 (D.C. Cir.), cert. denied, 516 U.S. 1011, 133 L. Ed. 2d 493, 116 S. Ct. 569 (1995). The rest of defendants' arguments are opposed and require further discussion.
1. Individual liability under the ADA
Defendants argue that the Court of Appeals' holding in Gary v. Long, supra, that Title VII does not allow for individual capacity suits, should be extended to the ADA. One judge of this court has so held. Amariglio v. National Railroad Passenger Corp., 941 F. Supp. 173, 178 (D.D.C. 1996). Plaintiff responds that the plain language of the ADA, its sister relationship to the Rehabilitation Act, and the legal context in which the ADA was enacted all support the maintenance of ADA claims against supervisory employees in their individual capacities.
The ADA prohibits employers from discriminating, with respect to employment, against any qualified individual with a disability on the basis of that disability. An employer is defined as "a person engaged in an industry affecting commerce who has 15 or more employees ... and any agent of such person." 42 U.S.C. § 12111(5)(A)(emphasis added). The ADA's definition of employer is identical to that set forth in Title VII, 42 U.S.C. § 2000e(b), and in the Age Discrimination in Employment Act, 29 U.S.C. § 630(b).
In Gary v. Long, supra, 59 F.3d at 1399, the Court of Appeals rejected the argument, also put forward by plaintiff in this case, that the plain language meaning of "any agent" is that an individual employee may be held personally liable. Id. The Court held that the definition of "employer" permits only employers, and not individual employees, to be held liable under Title VII, and that the words "any agent" in the definition were intended to "incorporate respondeat superior liability" into the statute. Id.
Plaintiff argues that interpretation of the ADA must follow the Rehabilitation Act, rather than Title VII, relying upon 42 U.S.C. § 12201(a)(unless otherwise stated, ADA not to be construed to apply lesser standard than Title V of Rehabilitation Act). No court has interpreted § 12201(a), nor the ADA in general, to require the application of the Rehabilitation Act's standard of individual liability to the ADA. In fact, several courts, relying upon 1992 amendments to the Rehabilitation Act which incorporated the standards applied under the ADA, see 29 U.S.C. § 794(d), have held the reverse: Whether individual liability exists under the Rehabilitation Act must be determined by looking to the ADA. See Haltek v. Village of Park Forest, 864 F. Supp. 802, 803 (N.D. Ill. 1994); Romand v. Zimmerman, 881 F. Supp. 806, 812 (N.D.N.Y. 1995). Accordingly, the court finds that cases construing the existence of individual liability under the Rehabilitation Act are not instructive in determining individual liability under the ADA.
Plaintiff submits, further, that Congress' intent to permit individual liability under the ADA can be discovered in the context in which the ADA was enacted. See Morse v. Republican Party of Virginia, 517 U.S. 186, 134 L. Ed. 2d 347, 116 S. Ct. 1186, 1211 (1996)("Evaluation of congressional action must take into account its contemporary legal context")(citing Cannon v. University of Chicago, 441 U.S. 677, 698-99, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). The argument is not persuasive. It is certainly true that Congress enacted the ADA against a "backdrop" of decisions ...