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SILVER v. MOHASCO CORP.

October 17, 1978

Ralph H. SILVER, Plaintiff,
v.
MOHASCO CORPORATION; Edward Curren; Raymond Greenhill; Frederick Woller; Herbert Brown; and James Cullen, Defendants



The opinion of the court was delivered by: FOLEY

MEMORANDUM-DECISION and ORDER

This is a private "complaint" suit instituted pursuant to the Civil Rights Act of 1964, Title VII, §§ 701 et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e et seq., alleging employment discrimination on the basis of religion. See 42 U.S.C. § 2000e-2. Plaintiff Ralph H. Silver was employed by defendant Mohasco Corporation, a New York corporation with offices in Amsterdam, New York, on July 15, 1974, in the capacity of Senior Marketing Economist. It is alleged that during his employment, plaintiff was mentally abused, deceived, pressured, and coerced by defendant Mohasco Corporation as well as by defendants Edward Curren, Raymond Greenhill, Frederick Woller, Herbert Brown, and James Cullen, individually and in their capacities as officials and employees of Mohasco Corporation, in an attempt to force plaintiff to resign because he was of the Jewish religion.

 Plaintiff alleges that the individual defendants conspired with each other on behalf of defendant Mohasco Corporation to organize and implement a purposeful plan of discrimination and harassment, referred to as the "Woller Plan" in plaintiff's complaint, to be directed against persons of minority groups and religions. More specifically, plaintiff alleges that these defendants conspired to employ members of minority groups and religions as token employees in an attempt to defraud and mislead governmental agencies, the public, and the shareholders of defendant Mohasco Corporation by making it appear that Mohasco Corporation was an equal opportunity employer. It is alleged that this plan called for the hiring of token employees-to be followed by harassment to force their resignation. Thus, plaintiff asserts that he was both hired and fired solely because of his religious beliefs.

 Plaintiff further alleges that despite the continuing harassment by the defendants he refused to resign. On August 29, 1975, plaintiff was discharged by defendant Mohasco Corporation. Plaintiff asserts that his discharge was without warning, in spite of his efforts to perform satisfactorily, and on account of his religious beliefs. In addition, plaintiff alleges that since his termination of employment with defendant Mohasco Corporation the defendants have made false, derogatory, and malicious accusations to prospective employers of the plaintiff when asked for a reference, thereby causing plaintiff to remain unemployed.

 On June 15, 1976, the Equal Employment Opportunity Commission ("EEOC") received a letter written by the plaintiff asserting a charge of discrimination. See 29 C.F.R. § 1601.11(b) (1977). This letter was forwarded to the New York State Division of Human Rights, which on February 9, 1977, found that there was no probable cause to believe that Mohasco Corporation had engaged in an unlawful discriminatory practice with respect to the plaintiff. Subsequent to its deferral to the Division of Human Rights, the EEOC began processing plaintiff's charge of discrimination. On August 24, 1977, the EEOC ended its investigation with a finding that there was no reasonable cause to believe that plaintiff had been discriminated against and issued a notice of right to sue. Thereafter, on November 23, 1977, plaintiff commenced this lawsuit.

 Plaintiff seeks an injunction against the continuing unlawful employment practices of the defendants, compensatory damages against all defendants, jointly and severally, in the sum of $ 100,000.00, punitive damages against defendant Mohasco Corporation in the sum of $ 1,000,000.00 and each individual defendant in the sum of $ 100,000.00, and such other and further relief as the Court deems just and equitable. See, e.g., Curtis v. Loether, 415 U.S. 189, 196-97, 94 S. Ct. 1005, 1009-1010, 39 L. Ed. 2d 260 (1974); Pearson v. Western Electric Co., 542 F.2d 1150, 1151-52 (10th Cir. 1976).

 It appears that plaintiff has also commenced an action in the courts of the State of New York for money damages in the millions against these same defendants. That action is apparently based on allegations of fraud, intentional infliction of emotional harm, libel, slander, invasion of privacy, and violation of plaintiff's civil rights. (Affidavit of Warner M. Bouck, Exhibit 1, filed January 27, 1978).

 Now before this Court is a motion to dismiss, Fed.R.Civ.P. 12(b), on behalf of the individual defendants Curren, Greenhill, Woller, Brown, and Cullen on the grounds of lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted. Also before the Court is a separate motion on behalf of defendant Mohasco Corporation for summary judgment, Fed.R.Civ.P. 56, on the ground, inter alia, that this Court lacks jurisdiction over the subject matter because plaintiff failed to make a timely filing of his grievance with the EEOC as required under Title VII.

 I

 The basis of the individual defendants' motion to dismiss is plaintiff's failure to name them as respondents in his charge filed with the EEOC. It is axiomatic that a jurisdictional prerequisite to the commencement of a "complaint" suit under Title VII is the filing of a charge with the EEOC. This requirement not only puts the respondent named in the charge on notice of the alleged violation, but also permits the EEOC to go forward with attempts at conciliation or voluntary compliance before the filing of a judicial complaint. Defendants Curren, Greenhill, Woller, Brown, and Cullen contend that plaintiff's failure to name them as respondents in the proceeding before the EEOC deprives this Court of subject-matter jurisdiction over any claim asserted against them in this lawsuit.

 It is clearly evident that plaintiff's verified complaint filed with the New York State Division of Human Rights named only Mohasco Corporation as a respondent. (Memorandum in Support of Motion to Dismiss the Complaint by Defendants Curren, Greenhill, Woller, Brown and Cullen, Exhibit C, filed January 27, 1978). Moreover, plaintiff's Title VII charge that was filed with the EEOC based on plaintiff's letter received by the EEOC on June 15, 1976, and correspondence relating thereto not only fail to mention defendants Brown and Cullen at all but characterize only Mohasco Corporation as a respondent. (Id., Exhibits A, B, D, F(1) & F(2)).

 Title VII clearly states that, in cases dealing with private sector employers, if the EEOC dismisses a charge or does not enter into a conciliation agreement with the respondent or does not file a civil action on behalf of the charging party within a certain time period, then the EEOC shall notify the person aggrieved that

 
a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved ...

 within 90 days of the giving of such notice. 42 U.S.C. § 2000e-5(f)(1) (emphasis added). It is undisputed that the individual defendants named in this lawsuit were not sent notices by the EEOC with regard to plaintiff's charge of discrimination, see 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.13 (1977), and that plaintiff's right to sue letter named only Mohasco Corporation as a respondent, see 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.25 (1977). Furthermore, the record of the proceedings before the EEOC does not show that an investigation was conducted or that a determination was made by the EEOC with respect to the individual defendants named in this lawsuit.

 It is important to note, however, that defendants Curren, Woller, and Greenhill are referred to in plaintiff's letter to the EEOC that alleged a violation of his Title VII rights. Nonetheless, in my opinion, the scant references to these individuals in plaintiff's letter can be read and viewed only as asserting that they acted in their corporate capacities on behalf of Mohasco Corporation and in pursuit of corporate objectives. This position is further supported by statements found in plaintiff's letter to the EEOC such as "Mohasco created the economist position to give token compliance with job anti-discrimination legislation." (Memorandum in Support of Motion to Dismiss the Complaint by Defendants Curren, Greenhill, Woller, Brown and Cullen, Exhibit A, filed January 27, 1978) (emphasis added).

 Furthermore, in my judgment, a substantial identity does not exist between defendant Mohasco Corporation and the five individuals named as additional defendants in this civil action to warrant an exception to the general rule that only those parties named in the charge before the EEOC can be brought before a federal district court in a private "complaint" action. See, e.g., Chastang v. Flynn & Emrich Co., 365 F. Supp. 957, 964 (D.Md.1973), aff'd, 541 F.2d 1040 (4th Cir. 1976).

 No determination or attempts at conciliation or voluntary compliance could have been made with respect to these individuals in plaintiff's proceeding before the EEOC solely because of defendant's failure to object to the omission of these individuals as named respondents in his charge filed with the EEOC. See Bryant v. Western Electric Co., 572 F.2d 1087 (5th Cir. 1978) (per curiam). Thus, in my judgment, plaintiff's claim against defendants Curren, Greenhill, Woller, Brown, and Cullen must be dismissed because plaintiff did not name these individuals as respondents in his EEOC charge and because plaintiff did not pursue administrative relief with respect to these individuals prior to the commencement of this civil action. See, e.g., Love v. Pullman Co., 404 U.S. 522, 523, 92 S. Ct. 616, 617, 30 L. Ed. 2d 679 (1972); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136, 1139-40 (5th Cir. 1971); Travers v. Corning Glass Works, 76 F.R.D. 431, 432-33 (S.D.N.Y.1977).

 It is clear to my mind that the tenor of plaintiff's charge filed with the EEOC was directed solely against his corporate employer. Evidently, this also was the view of the EEOC. While recognizing the liberality with which a court must view the procedural requirements of Title VII in favor of a charging party, e.g., Smith v. American President Lines, Ltd., 571 F.2d 102, 105 (2d Cir. 1978); Egelston v. State University College, 535 F.2d 752, 754-55 (2d Cir. 1976); Weise v. Syracuse University, 522 F.2d 397, 411-12 (2d Cir. 1975), I do not believe that this "liberality" should be carried to its extreme at the expense of the rights of an individual alleged to have violated federal antidiscrimination laws. Such a policy, under the circumstances of this case, would, in my judgment, circumvent the statutory requirements of notice and opportunity to engage in meaningful conciliation efforts. A plaintiff, especially one such as the plaintiff in this lawsuit who has had two years of law school training and who had benefit of the advice of counsel at some point during the pendency of his charge before the EEOC, should not be given a blanket reprieve from failing to abide by important statutory jurisdictional requirements.

 Viewing plaintiff's complaint in a light most favorable to his position, as I must at this stage of litigation, the conclusion is still inescapable that plaintiff's failure to name defendants Curren, Greenhill, Woller, Brown, and Cullen as respondents in his Title VII charge filed with the EEOC was not a mere technicality but a fatal flaw warranting dismissal of his claim as against these individual defendants in this lawsuit on the ground of lack of jurisdiction over the subject matter. See, e.g., Sabala v. Western Gillette, Inc., 516 F.2d 1251, 1254 (5th Cir. 1975), vacated & remanded on other grounds, 431 U.S. 951, 97 S. Ct. 2670, 53 L. Ed. 2d 268 (1977); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969); Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267, 268 (4th Cir. 1967) (per curiam), cert. denied, 390 U.S. 910, 88 S. Ct. 836, 19 L. Ed. 2d 880 (1968); Plummer v. Chicago Journeyman Plumbers' Local 130, 452 F. Supp. 1127, 1133-35 (N.D.Ill.1978); Travers v. Corning Glass Works, supra; Harris v. Commonwealth of Pennsylvania, 419 F. Supp. 10, 13 (M.D.Pa.1976); Scott v. University of Delaware, 385 F. Supp. 937, 941-42 (D.Del.1974).

 II

 Defendant Mohasco Corporation moves for summary judgment and dismissal of plaintiff's complaint on the ground, among others, that this Court lacks jurisdiction over the subject matter because plaintiff failed to make a timely filing of his charge with the EEOC as required under Title VII. Thus, the procedural history of this case is, for present purposes, of primary importance and must be detailed.

 Plaintiff's first act, with regard to his claim of discrimination, was the submission of a letter to the EEOC, which was received on June 15, 1976, 291 days after his discharge. In general, Title VII provides that if an alleged unlawful employment practice occurs in a state which has an agency that can grant relief from such a practice, a charging party is required to first file a complaint with such agency and can file a charge with the EEOC only after the passage of 60 days from the commencement of proceedings in the state agency or termination of such proceedings, whichever is earlier. Civil Rights Act of 1964, Title VII, § 706(c), as amended, 42 U.S.C. § 2000e-5(c). The New York State Division of Human Rights is such a so-called "706 agency" under regulations promulgated by ...


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