In King v. McMillan, Judge Wilson ruled that a civil rights lawsuit brought against Sheriff McMillan in Roanoke continued against his successor to the extent he was sued in his official capacity.
In a footnote, the opinion notes: "The court recognizes that there is conflicting precedent within the Fourth Circuit concerning whether McMillan in his individual capacity can be held liable under Title VII. In Paroline v. Unisys, 879 F.2d 100, 104 (4th Cir. 1989), vacated in part and rev’d in part on other grounds per curiam, 900 F.2d 27 (4th Cir. 1990) (en banc), the Fourth Circuit held that employees in supervisory positions with “significant control” over “hiring, firing, or conditions of employment” can be held personally liable under Title VII. Id. at 104. However, later in Lissau v. Southern Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998), the court held that Title VII creates no cause of action against supervisors in their individual capacities. Lissau,159 F.3d at 180-81 (stating that the Civil Rights Act of 1991 does not “mention individual liability as an available remedy” and that Title VII’s “remedial scheme seems so plainly tied to employer, rather than individual, liability”). Although the Fourth Circuit has not expressly overruled Paroline, other courts have held that the Fourth Circuit has impliedly overruled Paroline. See Jones v. Tyson Foods, Inc., 378 F.Supp. 2d 705, 708 (E.D. Va. 2004) (stating that the Fourth Circuit Court of Appeals “overruled Paroline . . . with its decision in Lissau” and noting that “every district court in Virginia to rule on the issue [whether supervisors are individually liable for violations of Title VII] has also followed Lissau”). This court believes it is compelled to do so, as well."
I'd say that's right.
In another interesting footnote, the opinion says this:
"Although Johnson presents this issue as a question of whether she is McMillan’s 'successor' under Rule 25(d), the issue is more accurately framed in terms of whether King has properly named the Office of Sheriff of the City of Roanoke as her “employer” under Title VII. Only employers are liable for Title VII violations. Lissau v. Southern Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998). A sheriff in his or her official capacity, assuming that he or she has more than fifteen employees, is subject to suit as an “employer” within the meaning of Title VII. See Briggs v. Waters, 2006 WL 1982758, *2 (E.D. Va. 2006) (stating that Title VII plaintiff’s “employer” was the “Sheriff’s Office” not the former sheriff in his individual capacity, who was the plaintiff’s supervisor at the time of alleged Title VII violation); Partington v. American International Specialty Lines Ins. Co., 443 F.3d 334, 339 (4th Cir. 2006) (stating that “[u]nder Title VII, the term ‘employer’ is defined to include persons that have at least fifteen employees”). Here, the Office of Sheriff of the City of Roanoke is the statutory “employer” under Title VII and, thus, is liable for King’s Title VII claims. Accordingly, McMillan in his official capacity was a proper defendant at the time King filed this action, and when Johnson succeeded McMillan as the Sheriff of the City of Roanoke, she became liable in her official capacity. See Briggs v. Waters, 2006 WL 1982758, *2 (E.D. Va. 2006) (dismissing a Title VII claim against the former Sheriff of Portsmouth in his official capacity, holding that “[b]ecause [the former Sheriff] no longer holds the office of Sheriff, he does not have an official capacity in which he can be sued” and dismissing a Title VII action against the former Sheriff in his individual capacity because “Title VII creates no cause of action for a claim against a supervisor in his individual capacity”)."
Judge Wilson is probably right on the main point of the opinion, but it is an interesting question, with some arguments to the contrary. Constitutional officers are sort of anomalous entities in Virginia law, but Judge Wilson concluded that the state law vagaries were irrelevant.