Conner, Senior D.J.:
Plaintiff Daniel Sharkey brings this action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Plaintiff, a Vice President and manager for Ultramar Energy Limited ("UEL") during times relevant in this case, alleges that, due to his age, he was denied a comparable position in the new company created out of a corporate merger and reorganization involving UEL, and was ultimately terminated. Defendant Ultramar Corporation ("Ultramar"), the successor to UEL after the reorganization, has moved to dismiss for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment dismissing the complaint, Fed. R. Civ. P. 56. Defendant Lasmo (AUL Ltd.) ("Lasmo"), has filed a memorandum in support of defendant Ultramar's motion, and has reserved the right to make a similar motion following resolution of the instant motion. This motion was referred to the Honorable Lisa Margaret Smith, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). On June 27, 1995, Magistrate Judge Smith filed a Report and Recommendation (the "Report") in which she recommends that the motion be denied. This case is presently before the court on objections to the Report filed by defendant Ultramar pursuant to 28 U.S.C. § 636(b)(1).
For the reasons discussed below, we accept Magistrate Judge Smith's recommendation and deny defendant Ultramar's motion to dismiss or for summary judgment.
In 1992, plaintiff was employed by UEL as Vice president of Refinery Coordination and Products Trading. UEL was an affiliate of defendant Lasmo, which was known at the time as American Ultramar Limited.
Both UEL and American Ultramar Limited were corporate subsidiaries of Ultramar p.l.c., a public limited company organized under the laws of the United Kingdom. In late 1991 or early 1992, Lasmo p.l.c., an oil and gas exploration company also organized under the laws of the United Kingdom, acquired Ultramar p.l.c. and Ultramar p.l.c.'s corporate subsidiaries in a hostile takeover. In 1992, Lasmo p.l.c. planned to consolidate various Ultramar p.l.c. business activities into a new corporation, namely, defendant Ultramar.
UEL was to have its function assumed by the new corporation. Plaintiff alleges that some time in early 1992, Lasmo p.l.c. directed defendant Lasmo's management to hire executive staff for the new corporation.
In 1992, Patrick Guarino, General Counsel of both defendant Lasmo and defendant Ultramar, offered executive positions with defendant Ultramar to plaintiff, who was then 59 years old, and two other Vice Presidents of UEL, Patrick McAward, who was then 35, and Michael Kuzmin, who was then 42. The positions required relocation to Canada. The two younger UEL Vice Presidents, McAward and Kuzmin, were offered substantially more favorable employment packages than plaintiff was offered, including (1) a sign-on bonus equivalent to one half year's salary in the form of restricted stock in defendant Ultramar; (2) stock options in defendant Ultramar; (3) a relocation allowance of up to $ 15,000; and (4) an "evergreen" agreement providing for automatic extension of the term of employment so that it would never be less than two years, and two years severance pay upon separation. Plaintiff alleges that defendants did not offer plaintiff these incentives because defendants did not want to be bound to plaintiff, who was then 59 years old, for more than two years. Plaintiff also alleges that defendants did not believe that plaintiff, because of his age, would risk rejecting the offer defendants had made to him.
In June 1992, plaintiff met with Patrick Guarino, General Counsel of both defendant Lasmo and defendant Ultramar, and advised him that he would accept the offer of employment with defendant Ultramar if he was given the same package as the other two Vice Presidents. Guarino refused to match their packages. In July 1992, the public offering of defendant Ultramar's stock was completed, and plaintiff's employment with UEL was terminated on July 31, 1992.
In April 1993, plaintiff filed an age discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). At the time he filed the charge, plaintiff claims that he did not know that defendant Ultramar had been formed prior to its July 1992 public stock offering. Plaintiff maintains that when he filed his EEOC complaint, he was not represented by an attorney, and that he did not consult an attorney about the EEOC complaint until well after it had been filed. Although plaintiff's statement in support of his EEOC charge identified defendant Ultramar as plaintiff's prospective employer, it listed only defendant Lasmo as a respondent.
Defendant Ultramar has moved to dismiss for failure to state a cause of action or, in the alternative, for summary judgment. Defendant Ultramar asserts that dismissal is appropriate because (1) plaintiff did not sufficiently allege conduct by defendant Ultramar; (2) plaintiff did not name defendant Ultramar in his EEOC complaint, which is a prerequisite to filing this federal action against defendant Ultramar; (3) defendant Ultramar was not an "employer" within the meaning of the ADEA; and (4) plaintiff was not employed by or offered employment with defendant Ultramar, nor did he seek such employment.
Defendant Ultramar filed its motion as a motion to dismiss or, in the alternative, for summary judgment. The court may convert a motion to dismiss into one for summary judgment after "all the parties [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Goyette v. DCA Advertising Inc., 830 F. Supp. 737, 741 (S.D.N.Y. 1993) (quoting In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied sub nom. M.J.M. Exhibitors, Inc. v. Stern, 475 U.S. 1015, 89 L. Ed. 2d 310, 106 S. Ct. 1195 (1986)). All parties to this action have submitted memoranda, affidavits, and exhibits in support of their respective positions. Because these additional documents have been considered by this court and in the preparation of the Report, the motion is deemed to be one for summary judgment.
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed. R. Civ. P. 56(c); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, and "the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought[.]" Cronin, 46 F.3d at 202; Chambers, 43 F.3d at 36. The inferences to be drawn from the submitted materials, such as affidavits, exhibits, interrogatory answers and depositions, must be viewed in the light most favorable to the party opposing the motion. Cronin, 46 F.3d at 202; Chambers, 43 F.3d at 36.
STANDARD OF REVIEW
On review of proposed findings or recommendations on a motion for summary judgment, a district court must make a de novo determination of those portions of the report or proposed findings to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). After conducting its review, the court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). The rule also permits the court to accept any portion of a magistrate's disposition to which no objection has been made as long as it is not "erroneous on the face of the record." Fed. R. Civ. P. 72, Notes of Advisory Committee on Rules (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S. Ct. 143, 42 L. Ed. 2d 119 (1974)).
Defendant Ultramar has filed a written objection within the allotted time period, and we therefore review de novo the findings of the Report to which defendant objects. For the reasons stated below, we accept the recommendation of Magistrate Judge Smith, and deny Ultramar's motion to dismiss or for summary judgment.
Defendant Ultramar raises four arguments in support of its motion for summary judgment dismissing the complaint: (1) plaintiff failed to allege any conduct by Ultramar; (2) plaintiff failed to file an administrative claim against Ultramar; (3) Ultramar was not an employer within the meaning of the ADEA; and (4) Ultramar is not the entity that offered to employ plaintiff.
The Report rejects the first argument because the complaint alleges that the discriminatory offer of employment with defendant Ultramar was made by management of defendant Lasmo, a reference to Guarino, then General Counsel of defendant Lasmo and defendant Ultramar. In addition, the submissions make clear that plaintiff will be able to produce evidence of defendant Ultramar's participation in, and responsibility for, allegedly discriminatory acts, thus giving rise to a genuine issue of material fact. The Report rejects Ultramar's second argument based on the identity-of-interest exception set forth in Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991). The Report rejects Ultramar's third argument because Ultramar fell within the definition of an employer under the ADEA. Finally, the Report rejects Ultramar's fourth argument because a fact finder reasonably could conclude that Ultramar was the entity that offered to employ plaintiff. We find none of these conclusions erroneous on the face of the record.
Defendant Ultramar objects only to Magistrate Judge Smith's application of the identity-of-interest exception excusing plaintiff's failure to name defendant Ultramar in the EEOC complaint. Therefore, we review de novo this portion of the Report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. p. 72(b).
I. The Identity-of-Interest Exception
Section 626(d) of Title 29 provides in pertinent part that "no civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC." Exhaustion of federal administrative remedies is a jurisdictional prerequisite to commencing a law suit pursuant to the ADEA, and, as a general rule, a party who has not been named as a respondent in an EEOC charge may not subsequently be named as a defendant in a civil suit under the ADEA. See, e.g., Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991) (prerequisite to commencing a Title VII action against a defendant is the filing with the EEOC or authorized state agency of a complaint naming the defendant (citing 42 U.S.C. § 2000e-5(e)))
; Goyette v. DCA Advertising Inc., 830 F. Supp. 737, 747 (S.D.N.Y. 1993) (same).
However, "because these charges generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional pleading requirements, [the Second Circuit has] taken a 'flexible stance in interpreting Title VII's procedural provisions,' . . . so as not to frustrate Title VII's remedial goals." Johnson v. Palma, 931 F.2d at 209 (quoting Egelston v. State University College at Geneseo, 535 F.2d 752, 754, 755 (2d Cir. 1976). This approach has recognized an exception to the general rule, referred to as the identity-of-interest exception. Johnson v. Palma, 931 F.2d at 209. The identity-of-interest exception permits a Title VII or ADEA action to proceed against an unnamed party where there is a "clear identity of interest between the unnamed defendant and the party named in the administrative charge," Johnson v. Palma, 931 F.2d at 209.
As a threshold matter, this exception only applies where plaintiff is not represented by counsel. Defendant Ultramar maintains that plaintiff was represented by counsel at the time of the EEOC filing because plaintiff was represented by Mr. Golub, plaintiff's counsel in the present action, in a separate action unrelated to the EEOC complaint, Sharkey v. Ultramar Energy Ltd., 867 F. Supp. 258, which was filed in March 1993, and dismissed on summary judgment in November 1994. However, the transcript from the April 12, 1995 status conference before Magistrate Judge Smith clearly controverts Ultramar's position:
THE COURT: I would also ask plaintiff's counsel what response you have . . . with regard to the issue of whether or not Mr. Sharkey was represented by counsel when he filed his EEOC complaint?
MR. GOLUB: . . . Mr. Sharkey was not represented in filing the EEOC claim. I was representing him on the ERISA claim that was pending before Judge Broderick. . . .