Opinion
02 Civ. 3727 (GBD)
September 3, 2002
MEMORANDUM OPINION AND ORDER
In this employment discrimination action under the Americans with Disabilities Act ("ADA"), defendants move to dismiss the claims against the individual defendants pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff, who is pro se, filed an affirmation in opposition to the motion on July 29, 2002. A pretrial conference was held on July 31, 2002, at which time the substance of the motion was clarified for plaintiff and plaintiff was informed that he should respond to the motion within 30 days. No further response has been filed by plaintiff.
In Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Second Circuit held that an employer's agent, including those with supervisory control, may not be held individually liable under Title VII. Based on Tomka and the fact that Title VII and the ADA define "employer" identically, district courts in this circuit have held that an employee cannot be held liable under the ADA, although the Second Circuit has not directly ruled on the issue. See, e.g., Glozman v. Retail. Wholesale Chain Store Food Employees Union, Local 338, 204 F. Supp.2d 615, 627 (S.D.N.Y. 2002); Harrison v. Indosuez, 6 F. Supp.2d 224, 229 (S.D.N.Y. 1998); Sacay v. Research Foundation of City Univ. of New York, 44 F. Supp.2d 496, 503 (E.D.N.Y. 1999). Accordingly, defendants' motion to dismiss the claims against the individual defendants is granted.