Dentsu's agent. Therefore, Dentsu claims that it is not doing business in New York within the meaning of § 301.
We disagree. While some of the cases find personal jurisdiction over a foreign parent corporation under the agency theory involve the specific situation of a foreign manufacturer and its American distributor, we believe that a court may exercise personal jurisdiction over a parent where the agent simply provides general "services sufficiently important to the foreign corporation." See Gelfand, 385 F.2d at 121; see also Estefan, 793 F. Supp. at 1190-94 (exercising jurisdiction under the agency test where both the American company and its foreign affiliates created musical talent and sold the rights to such musical talent to each other).
Therefore, we find, for the purposes of personal jurisdiction, that Dentsu would do all of the New York business that DCA does if DCA were not present in New York, and we hold that Dentsu is subject to personal jurisdiction in New York through its agent, DCA.
B. Dentsu is Plaintiffs' Employer Within the Meaning of Title VII.
Dentsu claims that it was not plaintiffs' employer within the meaning of Title VII. The Second Circuit has found that the term "'employer' . . . is sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an 'employer' of an aggrieved individual as that term has generally been defined at common law." Spirt v. Teachers Ins. & Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982) (quoting Vanguard Justice Society, Inc. v. Hughes, 471 F. Supp. 670, 696 (D. Md. 1979)), vacated and remanded on other grounds, 463 U.S. 1223 (1983); accord People of the State of New York v. Holiday Inns, Inc., 1993 U.S. Dist. LEXIS 1301, 1993 WL 30933, 5-11 (W.D.N.Y. 1993) (holding that a third party parent corporation who interferes with its subsidiary's employment policies may be considered an employer within the meaning of Title VII); see also United States v. Yonkers, 592 F. Supp. 570, 589-92 (S.D.N.Y. 1984) (finding that the State of New York was an "employer" under Title VII because the state provided the direct employer with discriminatory exams which determined in part which employees were hired by the direct employer). "[A] party must  exercise a direct and significant degree of control over the complaining party's direct employer or the complaining party's 'work environment'" to be considered an employer within the meaning of Title VII. Holiday Inns, 1993 U.S. Dist. LEXIS 1301, 1993 WL 30933 at 6.
In Spirt, the administrator of Long Island University's retirement benefits plan was using discriminatory actuarial tables. Spirt, 691 F.2d at 1062-63. All tenured faculty members at the university were required to participate in this plan. Id. at 1057. The plan's administrator, an outside third party, was found to be an "employer" under Title VII because it significantly affected the terms of the tenured faculty members' employment. Spirt, 691 F.2d at 1063; see also Sibley Memorial Hospital v. Wilson, 160 U.S. App. D.C. 14, 488 F.2d 1338, 1342 (D.C.Cir. 1973) (finding a third party hospital to be an "employer" under Title VII because the hospital controlled the plaintiff nurse's access to his private patients).
In the instant case, the plaintiffs have shown that Dentsu significantly affected the subsidiary's employment policies. Dentsu explicitly ordered DCA not to fire any Dentsu expatriates. Moreover, Dentsu regulated the terms of the expatriates' employment. Although Dentsu maintained that it had no specific involvement with the plaintiffs' terminations, the expatriate policy that Dentsu dictated had an impact on all DCA employees because it affected who was to be fired in the downsizing at DCA. We believe that this general labor policy, which Dentsu imposed on DCA, creates an adequate nexus by which the Court may hold Dentsu to be an employer for purposes of Title VII.
C. Dentsu Employs Fifteen People Within the Meaning of Title VII.
Defendant Dentsu also asserts that it is not an "employer" within the meaning of Title VII because it does not employ more than fifteen people in the United States. The term "employer" is defined under Title VII, § 2000e(b) as follows:
. . . a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . .
While it is clear that Dentsu does not have any employees of its own within the United States under the common law interpretation of the word "employee," the Court finds that fact to be irrelevant given the nature of Dentsu's control over DCA's firing policies.
In Spirt, discussed supra, the court found that the retirement benefits plan administrator could be considered an employer under Title VII. Spirt, 691 F.2d at 1063. In that case, the victims of discrimination were the direct employees of the university, not those paid by the administrator. Nevertheless, the Second Circuit implicitly decided that because the administrator interfered with the professors' employment, the administrator was an employer of those professors within the meaning of Title VII.
The only logical "employees" for the court to have considered when determining whether the administrator employed more than fifteen employees were the persons whom the administrator's policy affected, i.e. the professors.
In the instant case, the obvious employees we must count to determine whether Dentsu has more than fifteen employees for the purposes of Title VII are the DCA employees located in New York. They are the people who can or cannot be fired according to Dentsu's policy. It would be illogical to determine that Dentsu was an employer to these plaintiffs because it interfered with DCA's labor policies and then count the number of people Dentsu has, in the traditional sense, "employed" in the United States. The direct employees of the parent corporation are not the ones who are the alleged victims of discrimination, rather the 144 DCA employees are the people affected by Dentsu's policy.
Accordingly, because Dentsu's policy affected more than fifteen employees in the United States, we find that Dentsu employed fifteen employees within the meaning of Title VII.
D. Dentsu is Engaged in an Industry Affecting Commerce Within the Meaning of Title VII.
Dentsu claims that it is not engaged in an industry affecting commerce and is not conducting any trade with the United States within the meaning of Title VII. Under 42 U.S.C. § 2000e(h), the term "commerce" means "trade, traffic, commerce, transportation, transmission, or communication among the several states, between a State and a place outside thereof . . . " As for affecting commerce, the courts have explicitly stated that Title VII applies to foreign corporations to the extent that they employ people and discriminate against them within the United States. See EEOC v. Kloster Cruise Ltd., 743 F. Supp. 856, 858 (S.D.Fla. 1990), rev'd on other grounds, 939 F.2d 920 (11th Cir. 1991); Ward v. W & H Voortman, Ltd., 685 F. Supp. 231, 232 (M.D.Ala. 1988).
In the instant case, we find Dentsu's claim that it is not affecting commerce in the United States to be meritless. Dentsu has directly invested $ 8 million in DCA and has been sharing in some of DCA's payments from DCA's clients. Dentsu also recieves monthly reports from DCA. In addition, the Court has already determined that Dentsu is an "employer" of workers in the United States and has been interfering with DCA's American labor policies. In sum, given that Dentsu has such a large business involvement in the United States and is considered to be an employer of these plaintiffs within the meaning of Title VII, we are satisfied that Dentsu is engaged in an industry affecting commerce for the purposes of Title VII.
E. Dentsu is not an Employer Within the Meaning of the Human Rights Law.
Dentsu asserts that it is not plaintiffs' employer within the meaning of the Human Rights Law and that therefore the Human Rights Law claim against it must be dismissed. We agree. In determining whether an entity may be considered an employer within the meaning of the Human Rights Law, the Court must analyze four elements: 1) whether the proposed employer had the power of the selection and engagement of the employee; 2) whether the proposed employer made the payment of salary or wages to the employee; 3) whether the proposed employer had the power of dismissal over the employee; and 4) whether the proposed employer had the power to control the employee's conduct. State Division of Human Rights v. GTE Corp., 109 A.D.2d 1082, 487 N.Y.S.2d 234, 235 (A.D. 4th Dept. 1985). Courts have held that the most essential factor in this analysis is the fourth one, namely whether the employer had control over the employee's conduct. See In re Villa Maria Institute of Music v. Ross, 54 N.Y.2d 691, 442 N.Y.S.2d 972, 973, 426 N.E.2d 466 (Ct.App. 1981); see also Gemakian v. Kenny Int'l Corp., 151 A.D.2d 342, 543 N.Y.S.2d 66, 67 (A.D. 1st Dept. 1989) (holding that the employer's control over the employee's conduct is the essential element in finding an employer-employee relationship for the purposes of the Human Rights Law).
In applying the test described above to this case, we find that Dentsu is not an employer of the plaintiffs for purposes of the Human Rights Law. First, Dentsu only had the power of selection of employees over a few people - the expatriates. Dentsu had no control, however, over who was hired to fill the remaining 93% of the positions at DCA.
Moreover, DCA, not Dentsu, paid all of its employees' salaries. Dentsu did directly subsidize the expatritates' salaries and provided them extra benefits.
However, these benefits did not comprise the entire compensation of the expatriate employees and Dentsu paid no part of the salaries of the other 134 people working for DCA.
In addition, Dentsu could not fire any DCA employee despite Dentsu's power to veto a dismissal of an expatriate employee. While this constitutes some involvement with the dismissal process, we believe that Dentsu's power in this area is not substantive enough to constitute a general power of dismissal over the entire workforce of DCA.
Finally, Dentsu had little or no involvement with the day-to-day control over the conduct of DCA's employees. DCA consulted the parent corporation only for major decisions. As noted above, control of the employee's conduct is the most important factor for determining whether a defendant is an employer within the meaning of the Human Rights Law. After weighing all of the relevant factors, we conclude that Dentsu cannot be considered an employer within the meaning of the Human Rights Law.
Plaintiffs apparently contend that because Dentsu is considered an employer within the meaning of Title VII, this Court must consider it to be an employer under the Human Rights Law. Plaintiffs have pointed to and we have found no cases that, hold that the New York Court have decided to interpret the term "employer" as broadly as have the federal courts.
Since the New York courts have apparently not chosen to follow the federal standard, we accordingly grant Dentsu's motion for summary judgment as to the Human Rights Law claim.
F. Plaintiffs' Omission of Dentsu on the EEOC Complaint Does Not Preclude Dentsu From Being a Defendant in this Action.
Dentsu claims that it cannot be sued in federal court because plaintiffs did not name Dentsu as a defendant in plaintiffs' EEOC complaint. In order to bring a civil action in federal court under Title VII, one must have filed a complaint with the EEOC. Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). As a general rule, one may only sue in federal court under Title VII a party listed as a defendant on such a complaint. See 42 U.S.C. § 2000e-5(f)(1); Johnson, 931 F.2d at 209. This rule ensures that defendants have adequate notice of potential claims and allows them to make early reparations without the expense of litigation. The Second Circuit has, however, made exceptions to this rule.
In Johnson v. Palma, 931 F.2d 203, the Second Circuit held that if a party unnamed on the EEOC complaint has an "identity of interest" with a party named on the EEOC complaint, the unnamed party may be sued under Title VII. Johnson, 931 F.2d at 209; see Glus v. G.C. Murphy & Co., 562 F.2d 880, 888 (3d Cir. 1977). Courts have allowed this "identity of interest" exception because it is important to maintain "the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements . . ." Id. In order to determine if an identity of interest between the parties exists, the court must consider four factors:
1) whether the role of the unnamed party could through reasonable efforts by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of the named [party] are so similar as the unnamed party's that for purposes 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; and 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.