The opinion of the court was delivered by: ROBERT L. CARTER
Plaintiffs Susan Q. Bridges, Virginia D'Aponte and Kimberly Muryasz allege that defendants Eastman Kodak Company, Yourdon, Inc., Thomas A. Walker, John Kucik, Michael French, Kevin Cash, Mary Heaphy and David Offenhartz violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, 18 McKinney's N.Y. Executive Law § 296(1)(a) (1982). The plaintiffs allege that while employed by Yourdon, a Kodak subsidiary, they were sexually harassed by defendants Cash and Offenhartz, and that they were constructively discharged as a result of the defendants' harassment.
Defendant Cash moves, under Rules 12(b)(1) and 12(b)(6), F.R.Civ.P., (1) for dismissal of himself as a defendant in the plaintiffs' Title VII claims, (2) for dismissal of the plaintiffs' quid pro quo sexual harassment claim, (3) for dismissal of himself as a defendant in the plaintiffs' New York Human Rights Law claim, and (4) for dismissal of the punitive damages portion of the state law claim.
Cash claims he cannot be named as a defendant in the plaintiffs' Title VII lawsuit because the plaintiffs' failed to name him as a respondent in their Equal Employment Opportunity Commission (EEOC) charges. Although only Kodak and Yourdon are named as respondents in the plaintiffs' EEOC charges, each charge contains allegations that Cash sexually harassed the plaintiffs and that, as their supervisor, Cash failed to prevent defendant Offenhartz, a Yourdon employee, from sexually harassing the plaintiffs.
Title VII provides that a complainant who files a charge with the EEOC may bring a civil action against the respondents named in that charge within ninety days after the EEOC or the analogous state agency issues a notice of the right to sue. 42 U.S.C. § 2000e-5(f)(1). As a result of this provision, a district court generally has subject matter jurisdiction only over actions against those individuals named as respondents in an EEOC charge. Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991); Gilmore v. Local 295, 798 F. Supp. 1030, 1037 (S.D.N.Y. 1992) (Goettel, J.); Streeter v. Joint Indust. Bd. of Elec. Indus., 767 F. Supp. 520, 523 (S.D.N.Y. 1991) (Wood, J.).
However, the courts have adopted a flexible approach toward interpreting Title VII's procedural requirements. See Egelston v. State Univ. College, 535 F.2d 752, 754-55 (2d Cir. 1976). In keeping with this flexibility, the Second Circuit has recognized an "identity of interest" exception to the general rule that a defendant must first be named as a respondent in an EEOC charge. Johnson, 931 F.2d at 209. The following four factors must be considered in determining whether to apply the exception:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. at 209-210 (citing Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977).
Despite Cash's failure to address the four factors outlined in Johnson, consideration of those factors is necessary to decide whether the "identity of interest" exception should be applied to permit the plaintiffs' to name Cash as a defendant. See 931 F.2d at 209-210. With respect to the first factor, the plaintiffs cannot claim ignorance of Cash's role in the harassment as an excuse for failing to name him as a respondent in their EEOC charges. Undoubtedly, the plaintiffs knew of his involvement in the harassment at the time they filed their EEOC charges because each charge contains allegations of Cash's harassing conduct.
As for the second factor, the interests of the named defendants, Yourdon and Kodak, were substantially similar to those of Cash for the purpose of obtaining voluntary conciliation and compliance. Cash was an agent of Yourdon and Kodak, and was the supervisor of all three plaintiffs. See Gilmore, 798 F. Supp. at 1038 (unnamed defendant, a regional field manager, had substantial identity with corporate defendant, who was named as respondent in EEOC charge, because he was an agent of the corporate defendant).
With respect to the third factor, Cash has not provided any evidence of actual prejudice as a result of his absence from the EEOC proceedings. Cash argues that the complaint is devoid of any allegation that he was notified of the plaintiffs' EEOC charges, or that he participated in the EEOC conciliation process. However, Cash does not explain how he was harmed by either the alleged lack of notice or his alleged lack of participation.