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ALFANO v. COSTELLO

October 15, 1996

GEORGIANN E. ALFANO, Plaintiff,
v.
JOSEPH J. COSTELLO, Individually, and as Superintendent of Midstate Correctional Facility; SUSAN A. CONNELL, Individually, and as Deputy Superintendent of Administration at Midstate Correctional Facility; GORDON WELLS, Individually; and as a Captain at Midstate Correctional Facility; "JOHN DOE," Individually, and as employees of the Midstate Correctional Facility; JAMES RAYMOND, Individually, and as an agent of the Inspector General's Office; JAMES COUNTRYMAN, Individually, and as Deputy Superintendent of Security at Midstate Correctional Facility; KEVIN BUTTIMER, Individually, and as Recreational Supervisor at Midstate Correctional Facility; SCOTT CARLSEN, Individually, and as Deputy Superintendent of Programs at Midstate Correctional Facility; WILLIAM FENTON, Individually, and as a Captain at Midstate Correctional Facility; THOMAS A. COUGHLIN, Individually and as former Commissioner of the New York State Department of Correctional Services; PHILLIP COOMBS, Individually, and as Commissioner of the New York State Department of Correctional Services; DENNIS THOMPSON, Individually, and as Deputy Superintendent of Security at Midstate Correctional Facility; GLENN GOORD, Individually, and as an agent of New York State Department of Correctional Services; MICHAEL BROWN, Individually, and as a Lieutenant at Midstate Correctional Facility; JAMES DEERING, Individually, and as a Lieutenant at Midstate Correctional Facility; NEW YORK STATE OFFICE OF THE INSPECTOR GENERAL; THE STATE OF NEW YORK; MIDSTATE CORRECTIONAL FACILITY; NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; NEW YORK STATE DEPARTMENT OF CIVIL SERVICE; and NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL, Defendants.



The opinion of the court was delivered by: POOLER

 INTRODUCTION

 BACKGROUND

 Alfano filed a complaint in district court on November 23, 1994, and alleged eight causes of action against defendants, who generally were her employers and supervisors in the New York State Department of Correctional Services. According to her complaint, Alfano on January 11, 1988, began working as a corrections officer with the rank of sergeant at the Midstate Correctional Facility ("Midstate"). Compl. P 41. Before she worked at Midstate, Alfano had worked since July 1980 as a corrections officer at Otisville Correctional Facility ("Otisville"). *fn1" Compl. P 40. On July 10, 1994, defendant Susan Connell, deputy superintendent of administration at Midstate, placed Alfano on administrative leave from her job. Compl. P 64. Defendants suspended Alfano without pay on August 1, 1994. Id.

 Alfano's complaint contains an array of allegations involving sexual discrimination. Before filing this action, Alfano filed a discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights on February 7, 1992. Ans. Ex. A. She received a right to sue letter from the agencies on August 30, 1994. Compl. Ex. A.

 The majority of plaintiff's claims concern the conduct of her supervisors at Midstate. Plaintiff's allegations include, among other things, discriminatory treatment by defendant Lt. Michael Brown, who wrote an erroneous "counseling memo," denied plaintiff an office, issued her bad evaluations, and "set Plaintiff up" regarding internal prison matters, Compl. P 43; discrimination by defendants Lt. James Deering and Capt. William Fenton, among others, who failed to repair a metal detector in the visitors' area, Compl. P 44; discrimination by defendants Dennis Thompson, Scott Carlsen, Kevin Buttimer, and others who ignored her complaints about unsafe conditions in the prison package room, visiting room and other areas and behaved in a manner designed to undermine Alfano's work and authority, Compl. PP 45, 59; defendants' failure to issue Alfano commendations, which are relevant to "employment opportunities," even though a male corrections officer would have received commendations under the same circumstances, Compl. P 46; defendants' failure to protect Alfano from fellow employee Joseph Cassidy, who had "an unhealthy obsession" with Alfano, Compl. PP 47-48; discrimination by various named and unknown defendants, who made explicit and lewd comments about Alfano, including calling her "black widow" and "fatal attraction," subjected her to sexual inquiries, wrote obscenities and left pornography on her locker, and circulated "compromising pictures of Plaintiff," Compl. PP 49, 51, 53, 54, 66; discrimination by defendant Fenton, who accused plaintiff of eating seductively in the mess hall and accused plaintiff of having an affair with a Midstate corrections officer, Compl. PP 49, 54; discrimination by unknown defendants, who left "a carrot and two potatoes configured as male genitals" in Alfano's mailbox, Compl. P 50; discrimination by defendants in retaliation for plaintiff filing a discrimination lawsuit regarding her employment at Otisville, Compl. P 52; discrimination by Midstate Correctional Facility for its failure to maintain separate locker rooms and toilets for men and women and its failure to issue maternity uniforms, Compl. PP 55, 56; discrimination by defendants for giving job assignments and setting conditions of employment based on employees' gender, Compl. PP 57, 61, 65; and discrimination by defendant James Raymond relating to his investigation of various allegations against plaintiff, Compl. P 58.

 Plaintiff requested $ 5.5 million in damages for her sexual discrimination and sexual harassment claims. Compl. P 67. Her complaint also contained causes of action for, among other things, emotional distress, the tort of outrage, slander and defamation, invasion of privacy, breach of employment contract, sexual discrimination under New York law, and failure to train, supervise and discipline defendant employees.

 DISCUSSION

 I. Standard

 Defendants moved pursuant to Fed. R. Civ. P. 12(c) for a judgment on the pleadings to dismiss Alfano's complaint. The Rule 12(c) standard essentially is the same as that which I apply to a motion under Fed. R. Civ. P. 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994), see also Juster Assoc. v. City of Rutland, Vt., 901 F.2d 266, 269 (2d Cir. 1990). In reviewing the motion, I must accept as true all allegations in the complaint and draw all inferences in favor of the non-moving plaintiff. Sheppard, 18 F.3d at 150. I may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 II. Individual defendants not named in plaintiff's EEOC complaint

 Defendants first contend that the court lacks subject matter jurisdiction over those defendants who are named in Alfano's federal complaint but were not named in her EEOC complaint. Alfano responds that an identity of interests exists between the respondents named in her EEOC complaint and each of the defendants named in her federal action, that several defendants were named in the body of her EEOC charge, and that the individual defendants are not prejudiced by their inclusion in the federal lawsuit.

 In order to satisfy the requirement of administrative exhaustion, plaintiff's lawsuit must be preceded by an EEOC or state agency charge naming the same defendants. 42 U.S.C. ┬ž 2000e-5(e). However, an exception exists to this rule, and a Title VII action may proceed against defendants not named in plaintiff's EEOC complaint if 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 203, 209 (2d Cir. 1991). *fn2" In order to determine identity of interests, I must consider: (1) whether the complainant at the time of filing the EEOC complaint could have ascertained the role of the unnamed party through reasonable effort; (2) whether the interests of the named and unnamed parties are so similar that it would be unnecessary to obtain the unnamed party's participation in EEOC voluntary conciliation and compliance proceedings; (3) whether the unnamed party suffered actual prejudice due to its absence from the EEOC proceedings; and (4) whether the unnamed party represented to the complainant that its relationship to the complainant was to be through the named party. Id. at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977), cert. denied, 449 U.S. 949, 66 L. Ed. 2d 212, 101 S. Ct. 351 (1980)); see also Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241-42 (2d Cir. 1995) (same). Not all of the four factors need weigh in favor of one party. See Cook, 69 F.3d at 1242. The four-factor test may not always be applicable based on the facts of the case at bar. Bridges v. Eastman Kodak Co., 822 F. Supp. 1020, 1025 n.6 (S.D.N.Y. 1993).

 Alfano's EEOC complaint does not name any individuals as defendants. However, the body of the complaint concerns conduct by the following named individuals, all of whom are named defendants in plaintiff's federal lawsuit: Brown, Countryman, Costello, Fenton and Deering. See Answer, Ex. A ("EEOC Compl."). These individuals all were Midstate Correctional Facility employees with supervisory authority over plaintiff.

 The first factor of the analysis weighs against Alfano because she must have been aware of the above defendants' conduct in order to name them in the body of her EEOC complaint. Bridges, 822 F. Supp. at 1024. See also Tout v. Erie Community College, 923 F. Supp. 13, 16 (W.D.N.Y. 1995). The next factor weighs in Alfano's favor because the interests of the named defendants are similar to those of the employer for the purposes of obtaining voluntary conciliation and compliance. Alfano charges that the individual defendants who are named in the body of her EEOC complaint acted on behalf of their employer, and I infer that the employer and employees had the same conciliatory interest. EEOC Compl. P 12. See Tout, 923 F. Supp. at 16. But see Poulsen v. City of North Tonawanda, 811 F. Supp. 884, 892 (W.D.N.Y. 1993) (holding that an employee under internal investigation and his employer had dissimilar interests where employee faced possibility of discipline if plaintiff's charges were sustained). Third, defendants have not provided any evidence of actual prejudice as a result of being absent from EEOC proceedings. *fn3" Tout, 923 F. Supp. at 16. The fourth factor weighs in favor of Alfano because there is a close relationship between the supervisors named in the body of the EEOC complaint and the employer named in the caption. *fn4" See Bridges, 822 F. Supp. at 1025.

 Perhaps most importantly, the fact that these defendants were named within the body of the EEOC complaint weighs heavily in Alfano's favor and allows me to infer that these defendants received notice of the discrimination charges. See Bridges, 822 F. Supp. at 1025. Several district courts have considered the issue of notice to be more informative than strict analysis pursuant to the four factors in Johnson. See Tout, 923 F. Supp. at 15. See also Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 F. Supp. 943, 946-47 (S.D.N.Y. 1996); Drummer v. DCI Contracting Corp., 772 F. Supp. 821, 828-29 (S.D.N.Y. 1991). Thus, defendants Brown, Countryman, Costello, Fenton and Deering are not dismissed from plaintiff's federal lawsuit.

 Nine individual defendants are not named in Alfano's EEOC complaint. They are Connell, Wells, Raymond, Buttimer, Carlsen, Coughlin, Coombs, Thompson, and Goord. Apparently all of these individual defendants were employees of the named defendant employers and also were in positions of some authority over plaintiff. According to the allegations in Alfano's federal complaint, however, all of the conduct she complains of regarding these defendants took place after she filed the EEOC complaint in February 1992. *fn5" Defendants Coughlin, Coombs and Goord are named in Alfano's cause of action regarding negligent supervision.

 Second, the interests of the unnamed individual parties are not similar to those of the named employers because the purpose of conciliation and compliance could not be served where the employer was unaware of Alfano's latest charges. The third factor weighs in favor of plaintiff because defendants did not attempt to show prejudice. Tout, 923 F. Supp. at 16. Finally, the fourth factor shows a close relationship between the unnamed individuals and their employers. See Bridges, 822 F. Supp. at 1025.

 Consistent with my analysis of the five individual defendants who were named in the body of Alfano's EEOC complaint, I next consider whether I can infer that the nine defendants not mentioned in the EEOC charge ever received notice of it. Drawing all inferences in favor of Alfano, I nonetheless cannot infer notice. The nine individuals are not mentioned in the complaint because their allegedly offensive actions took place after Alfano filed the complaint. Several of the defendants -- Carlsen, Coughlin, Coombs, Thompson, and Goord -- are charged with failing to investigate Alfano's allegations, passing unsatisfactory review on the action of defendant Brown, or failing to adequately supervise other employees. As noted above, however, there is no allegation that these individuals were involved in the EEOC conciliation process and thus would have reason to know of Alfano's complaint. The total lack of notice to the nine unnamed defendants undercuts the identity they could have with the named respondents as employees of Midstate Correctional ...


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