                   United States Court of Appeals,

                          Eleventh Circuit.

                            No. 94-7019.

                   Gary MASON, Plaintiff-Appellee,

                                 v.

 Ricky STALLINGS, C.L. St. Clair, Jr., Charles Burkhalter, Harold
Woodall, Phillip Jordan, all individually, Defendants-Appellants.

                            May 9, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 93-AR-1725-M), William M. Acker, Jr.,
Judge.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit
Judge.

     RONEY, Senior Circuit Judge:

     The sole issue on this appeal is qualified immunity. Although

all defendants appealed an order denying summary judgment, this

Court dismissed the appeal except the denial of qualified immunity

to those defendants sued for personal liability as individuals.

Mason v. Cherokee County, Alabama, No. 94-7019, (N.D.Ala. Filed

July 21, 1995).    We are in accord with the decision of that panel

that the issue of qualified immunity was sufficiently raised in

motion, pleading, and memorandum before the trial court, even

though not specifically referenced in the motion for summary

judgment itself.

     Plaintiff Mason Stallings alleges a cause of action under the

Americans with Disabilities Act.      42 U.S.C. §§ 12111,   et seq.

(Supp. IV 1992).    Mason, a laborer with the Cherokee County Road

Department, alleged that he was not properly accommodated under the

Disabilities Act after two injuries on the job which resulted in
permanent injury and disability.

     Mason sued Cherokee County, Alabama, the Cherokee County

Commission, and the County Commissioners in both their official and

their individual capacities.          The district court denied without

opinion the County Commissioners' motion for summary judgment on

the claim against them individually, which was argued to include a

ground    of   qualified   immunity   from   suit.     Only   the   qualified

immunity issue is before us.

         We hold that the Disabilities Act does not provide for

individual liability, only for employer liability.              The Seventh

Circuit appears to be the only Circuit thus far to rule directly

that only the employer, not individual employees, can be liable

under the Americans with Disabilities Act.           EEOC v. AIC Sec. Inv.,

55 F.3d 1276, 1279-82 (7th Cir.1995).         We follow that holding and

the reasoning of Judge Michael S. Kanne's thorough opinion for that

court.

     The definition of "employer" in the Disabilities Act is like

the definitions in Title VII of the 1994 Civil Rights Act, 42

U.S.C. § 2000e(b), and in the Age Discrimination in Employment Act,

29 U.S.C. § 630(b).    This Circuit has previously held that there is

no individual responsibility under either of those Acts.             Busby v.

City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) ("The relief

granted under Title VII is against the          employer, not individual

employees whose actions would constitute a violation of the Act.").

Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir.1995) (Individuals

"cannot be held liable under the ADEA or Title VII.").              The Smith

Court relied on Busby for Title VII, and Fourth and Ninth Circuit
decisions for ADEA.   Birkbeck v. Marvel Lighting Corp., 30 F.3d

507, 511 (4th Cir.) ("[T]he ADEA limits civil liability to the

employer...."), cert. denied, --- U.S. ----, 115 S.Ct. 666, 130

L.Ed.2d 600 (1994);   Miller v. Maxwell's Int'l Inc., 991 F.2d 583

(9th Cir.1993) (Title VII and ADEA), cert. denied, --- U.S. ----,

114 S.Ct. 1049, 127 L.Ed.2d 372 (1994).

      The plaintiff argues for individual liability because the

definition of employer includes "any agent of such person."     We

agree with the Seventh Circuit that the "agent" language was

included to ensure respondeat superior liability of the employer

for the acts of its agents, a theory of liability not available for

42 U.S.C. § 1983 claims.   See also Thompson v. City of Arlington,

Tex., 838 F.Supp. 1137, 1151 (N.D.Tex.1993) ("Only when a public

official is working in his official capacity can the official be an

agent of the government.").

      As to individual liability, there is no sound reason to read

the Disabilities Act any differently from this Court's reading of

Title VII and the Age Discrimination Act. The County Commissioners

could not be held liable in their individual capacities for any

violation of the Disabilities Act.

      This creates a problem as to the appropriate disposition of

this appeal.   The lack of any law upon which to base a claim

against a defendant calls for dismissal for failure to state a

claim under Fed.R.Civ.P. 12(b)(6) or for summary judgment for

defendant on that ground. Although denial of qualified immunity on

summary judgment is immediately appealable, a denial of relief for

failure to state a claim is not immediately appealable, whether in
the form of a denial of summary judgment or a motion to dismiss,

absent certification by the trial court under 28 U.S.C. § 1292(b).

The district court in this case denied a § 1292(b) certification.

Therefore, it is not open to us to reverse the denial of summary

judgment on a "failure to state a claim ground."

      Judicially    created   qualified   immunity   enables   a   public

official to avoid suit on an alleged constitutional or federal law

violation where the law governing the claimed right was not clearly

established at the time of the official's conduct.             Harlow v.

Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

     The relevant question on a motion for summary judgment based
     on a defense of qualified immunity is whether a reasonable
     official could have believed his or her actions were lawful in
     light of clearly established law and the information possessed
     by the official at the time the conduct occurred.

Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th

Cir.1990).    In such cases, if the law was clear, there would be no

"qualified" immunity and the individual liability claim could

proceed on whatever other defenses the defendant might have.        Even

if the law was clearly established as to what defendants should

have done in their official capacities in this case, however, there

could not be any claim against them individually.        This, then is

not the kind of case for which "qualified" immunity from suit was

designed.

     Thus, it appears that the denial of qualified immunity is

correct.    The decision we make here in considering the doctrine of

qualified immunity, however, becomes the law of this case.         Having

decided the individual liability issue, it is only fair for the

parties and the district court to understand that the issue has
been resolved in this case, so that no further time need be

expended litigating the point in the district court.

     Therefore, we affirm the denial of summary judgment based on

qualified immunity, and remand to the district court for further

proceedings in view of the plaintiff's failure to state a cause of

action against County Commissioners in their individual capacities.

     AFFIRMED and REMANDED.
