conciliation process, the EEOC was at least aware of his response to the plaintiffs' allegations. Moreover, Cash admits in his brief that the EEOC investigation of the plaintiffs' allegations prior to its issuance of a right-to-sue letter was "perfunctory." Thus, to the extent there was an investigation, Cash was not harmed by the EEOC's failure to contact him.
The fourth factor is phrased so as to enable plaintiffs to name an agent's principal as a defendant even though they named only the agent as a respondent in their EEOC charges.
See 931 F.2d at 210. In this case the opposite occurred. The plaintiffs named the principals, Yourdon and Kodak, as respondents, but did not name the agent, Cash, as a respondent. Nonetheless, an agency relationship existed between Cash and corporate defendants Yourdon and Kodak, and the court's real concern in Johnson with respect to the fourth factor seemed to be the closeness of the relationship between the named and unnamed defendants. See Id. In particular, the court was troubled that the named and unnamed defendants had a looser relationship than that of agent and principal; the named defendant was the local affiliate of the unnamed defendant.
In addition to the four factors comprising the "identity of interest" exception, the Second Circuit in Johnson implied that another relevant consideration is whether, although not named as a respondent, the defendant is cited within the body of the EEOC charge as having played a role in the discrimination. Id. 931 F.2d at 210 (discussing Kaplan v. Int'l Alliance of Theatrical & Stage Employees & Motion Picture Machine Operators, 525 F.2d 1354 (9th Cir. 1975)); Maturo v. Nat'l Graphics, Inc., 722 F. Supp. 916, 925 (D.Conn. 1989) (permitting suit against defendant not named as respondent in plaintiff's EEOC charge in part because defendant was identified in body of administrative charge as the harasser). The plaintiffs clearly state in their EEOC charges that Cash played a significant role in the sexual harassment.
Based upon the application of this additional consideration as well as the four factor "identity of interest" test, an exception will be made to allow the plaintiffs to name Cash as a defendant in their Title VII claims. Thus, Cash's motion to dismiss for lack of subject matter jurisdiction is denied.
Cash next contends that the plaintiffs' quid pro quo sexual harassment claim must be dismissed pursuant to Rule 12(b)(1), F.R.Civ.P, for lack of subject matter jurisdiction. In Title VII cases, district courts have subject matter jurisdiction only over those claims reasonably related to the factual allegations in the plaintiff's EEOC charge. Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992).
Cash argues that the plaintiffs' EEOC charges bear no relationship to their quid pro quo claim because the charges assert only a "hostile environment" theory of sexual harassment. Indeed, the plaintiffs' specifically allege in their EEOC charges that the conduct of defendants Offenhartz and Cash created a "hostile environment," but do not expressly state that the defendants' behavior constituted quid pro quo sexual harassment. (Exhibit A, Plaintiffs' Atty. Affirmation).
However, plaintiffs are not required to articulate in their EEOC charges the precise legal theories which they will later assert in a Title VII lawsuit. Rather, a complainant filing an EEOC charge is only required "to describe generally the action or practices complained of." EEOC Procedural Regulations, 29 CFR § 1601.12(b) (1992). In Gomes, the Second Circuit concluded that it was unaware of any case in which a plaintiff's failure, in an EEOC charge, "to properly identify a theory of discrimination barred a subsequent suit in federal court relating to the precise incident challenged in the EEOC complaint." 964 F.2d at 1335.
Thus, the factual allegations in an EEOC charge, rather than any legal theories stated therein, should be the focus for determining whether a cause of action is reasonably related to the plaintiff's EEOC charge. In making this decision, the court must look "not merely to the four corners of the often inarticulately framed charge, but take into account the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. (quoting Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979)).
Cash also argues that the factual allegations in the plaintiffs' EEOC charges bear no relation to the plaintiffs' quid pro quo claim. Cash asserts that the charges only describe conduct amounting to "hostile environment" harassment, and that an EEOC investigation would not have extended to an inquiry into the possibility of quid pro quo harassment because the two theories are based on very different forms of sexual misconduct. According to Cash, sexual misconduct in the form of verbal abuse and gesturing may amount to "hostile environment" harassment, but quid pro quo harassment requires allegations that the plaintiffs were expected to participate in "sexual acts" such as intercourse or the provision of "sexual favors."
In actuality, the two sexual harassment theories are not distinguishable on the basis of the sexual conduct alleged.
In recognizing quid pro quo harassment and "hostile environment" harassment as two distinct forms of sexual discrimination under Title VII, the Supreme Court endorsed the EEOC Guidelines' definition of sexual harassment which regards unwelcome "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" as actionable under either theory of harassment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986) (quoting 29 CFR § 1604.11(a) (1992); see, e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1st Cir. 1990) (sexual remarks and gestures are considered conduct amounting to quid pro quo harassment).
The conduct exhibited by Cash, as described in the plaintiffs' EEOC charges, is the type of conduct regarded by the EEOC Guidelines' definition as actionable. The plaintiffs' EEOC charges allege that Cash was "almost daily abusive, used foul and offensive language, treated me and other women in a violent manner, referred to me and other women as bitches;" and that Cash "refused to restrain, or prohibit David Offenhartz from conducting himself in such a degrading and offensive manner." (P 4 of Addendum to plaintiffs' EEOC charges ("Addendum"), Exhibit A, Plaintiffs' Atty. Affirmation). Thus, Cash's basis for regarding the plaintiffs' quid pro quo claim as unrelated to the factual allegations in their EEOC charges is misguided.
Moreover, although not required to do so, the plaintiffs' EEOC charges come very close to expressly alleging a quid pro quo theory of harassment. "Hostile environment" and quid pro quo harassment are theoretically distinct claims, but the discrimination which gives rise to each claim "is not neatly compartmentalized." Carrero, 890 F.2d at 579. As a pertinent example, discharge from a "hostile environment" may constitute quid pro quo harassment. See Chamberlin, 915 F.2d at 782; see also "Policy Guidance on Current Issues of Sexual Harassment," EEOC Compliance Manual, No. 137, at 4033 (BNA April, 1990) (if constructive discharge due to "hostile environment" is proven, claim will also become one of quid pro quo harassment because tangible job condition was affected).
The plaintiffs' EEOC charges contain all the factual allegations necessary for a quid pro quo claim based on just such an occurrence of discharge from a "hostile environment." Specifically, the plaintiffs allege in their EEOC charges that Cash and Offenhartz "continued a pattern and practice relating to myself and other women creating a 'hostile environment' constituting sexual harassment and intimidation . . . ." The charges further allege that as a result of these actions, as well as the defendants' "failure to discontinue the acts complained of," the plaintiffs "were compelled to resign" and were "constructively discharged."
(P 6 of Addendum, Exhibit A, Plaintiffs' Atty. Affirmation). Thus, the court need not look any further than the four corners of the plaintiffs' EEOC charges to see that the plaintiffs' quid pro quo claim is reasonably related to their EEOC charges.
Cash also moves to dismiss plaintiffs' quid pro quo claim pursuant to Rule 12(b)(6), F.R.Civ.P., for failure to state a claim. According to Cash, like the plaintiffs' EEOC charges, their complaint fails to allege that the plaintiffs were sexually propositioned, a requirement Cash regards as a necessary element for assertion of a quid pro quo claim. However, as discussed above, Cash's conception of the sexual misconduct required for quid pro quo harassment is too constrained.
To state a claim for quid pro quo sexual harassment an employee must allege the following:
(1) the employee is a member of a protected group; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the employee's reaction to harassment complained of affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment; and (5) respondeat superior. Henson v. Dundee, 682 F.2d 897, 909 (11th Cir. 1982); Ottaviani v. State University of New York, 679 F. Supp. 288, 335 (S.D.N.Y. 1988) (Kram, J.) (adopting Henson test), aff'd, 875 F.2d 365 (2d Cir. 1989), cert. den., 493 U.S. 1021, 107 L. Ed. 2d 740, 110 S. Ct. 721 (1990); McLaughlin v. State of New York Governor's Office of Employee Relations, 739 F. Supp. 97, 105 (N.D.N.Y. 1990) (adopting Henson test).