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BRIDGES v. EASTMAN KODAK CO.

May 19, 1993

SUSAN Q. BRIDGES, VIRGINIA D'APONTE, and KIMBERLY MURYASZ, Plaintiffs,
v.
EASTMAN KODAK COMPANY, YOURDON, INC., THOMAS A. WALKER, JOHN KUCIK, MICHAEL FRENCH, KEVIN CASH, MARY HEAPHY, AND DAVID OFFENHARTZ AS SUPERVISORS, AGENTS AND EMPLOYEES OF EASTMAN KODAK COMPANY AND YOURDON, INC. (A KODAK COMPANY), Defendants.


Carter


The opinion of the court was delivered by: ROBERT L. CARTER

CARTER, District Judge

 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.

 Discussion

 I.

 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. *fn1"

 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). *fn2"

 Without addressing the four factors, Cash concludes that the "identity of interest" exception should not be applied to forgive the plaintiffs' failure to name him as a respondent in their EEOC charges. Cash claims that his interest is necessarily different from that of Kodak and Yourdon because the charges omit any reference to a quid pro quo theory of sexual harassment. As a result of the alleged omission, Cash contends that Kodak and Yourdon were encouraged to pursue a defense strategy incompatible with his defense. *fn3" Cash's argument is unavailing, for, as discussed below with respect to Cash's motion to dismiss the plaintiffs' quid pro quo claim, neither Cash nor defendants Kodak and Yourdon had any basis for concluding from the plaintiffs' EEOC charges that the plaintiffs would not later assert a quid pro quo cause of action.

 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.

 In any event, the plaintiffs submitted evidence which indicates bat Cash had notice that the plaintiffs filed EEOC charges naming him as a harasser. In letters Kodak submitted to the EEOC, Kodak noted Cash's repudiation of the plaintiffs' sexual harassment allegations, and Kodak indicated that it supported Cash's position. (Exhibit C, Plaintiffs' Atty. Affirmation). *fn4" Certainly, Kodak and Yourdon would not have been able to report Cash's response to the charges without first notifying and informing him about the charges. As a result of the letters, even if the EEOC did not involve Cash in the conciliation process, the EEOC was at least aware of his response to the plaintiffs' allegations. Moreover, Cash admits in his brief that the EEOC ...


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