*District Judge of the Southern District of Texas, sitting

by designation. 

1

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,
2

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,
3

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
 

1Murray 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. 

 

2Grant 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

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
 

3Presumably private employees still could be liable for

violations of state tort and contract law, such as intentional

infliction of emotional distress. 

5

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
6

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
7

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
8

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
9

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
10

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.