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July 22, 2003


The opinion of the court was delivered by: David Hurd, District Judge



Michele Husnay filed a Title VII claim against two defendants, ECR International Utica Boilers ("Utica Boilers") and ECR International, Inc. ("ECR")(collectively "unnamed defendants"), not previously named in her administrative claim as required by Title VII. The unnamed defendants moved for judgment on the pleadings pursuant to Fed.R. of Civ. P. 12(c), for lack of subject matter jurisdiction, due to the plaintiff's failure to exhaust her administrative remedies. Plaintiff opposed. Oral argument was heard on July 11, 2003 in Utica, New York. Decision was reserved.


In January of 1991, Husnay filed a complaint with the New York State Department of Human Rights ("NYSDHR") against her employer, Enviromaster, for sex discrimination and retaliation. The initial NYSDHR investigation into the claim found probable cause. After hiring of counsel, attempts at settlement, a counsel change, and transfer of the case to a new administrative division, the complaint was addressed in late 2001. There was a scheduling conference, discovery and a hearing scheduled for seven days in June and July 2002. But, prior to the hearing, Husnay requested an adjournment of the NYSDHR action and a right to sue letter from the Equal Employment Opportunity Commission ("EEOC"). Both were granted. Husnay contends that during the administrative process she determined that the corporate relationship(s) between the three entities was more extensive than she originally believed and included them in her Title VII complaint along with Enviromaster.


A. Motion for Judgment on the Pleadings Standard

This motion presents a factual challenge to the court's subject matter jurisdiction. Accordingly, no presumption of truthfulness applies to the jurisdictional facts asserted in the plaintiff's complaint, the plaintiff has the burden to satisfy the court as a fact-finder of the jurisdictional facts, and extrinsic materials may be considered without converting the motion to one for summary judgment. Brown v American Legion Cortland City Post 489, 64 F. Supp.2d 96 (N.D.N.Y. 1999). Parties may use affidavits and other materials beyond the pleadings themselves in support of or in opposition to a challenge to subject matter jurisdiction. Matos v. United States HUD, 995 F. Supp. 48, 49 (D.Conn. 1997) (citing Land v. Dollar, 330 U.S. 731, 735 (1947)). Facts are taken from parties' pleadings and affirmations in support of their pleadings.

B. The Identity of Interest Exception

Title VII requires a plaintiff to first file employment discrimination charges with the EEOC or an authorized state agency. 42 U.S.C. § 2000e-5(e). Plaintiffs are not allowed to add previously unnamed defendants to their Title VII claims because defendants would be denied both early notice and the opportunity for voluntary compliance with Title VII mandates in avoidance of litigation. Bland v. New York, 2003 WL 1798473, at *17 (E.D.N.Y. March 7, 2003), 2003 U.S. Dist. LEXIS 5521, at *52 (citing Eggleston v. Chicago Journeymen Plumbers' Local Union, 657 F.2d 890, 905 (7th Cir. 1981)).

However, if an unnamed defendant is sufficiently intertwined with the named defendant, such that the filing of the initial complaint would have effectively satisfied these requirements as to the unnamed defendant at the same time, then the unnamed defendant may be added. The Second Circuit uses a four factor test to evaluate whether there is a clear identity of interest between the entities:

(1) whether the role of the unnamed party could through reasonable effort by the complainant have been ascertained at the time of the filing 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 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.
Johnson v Palma, 931 F.2d 203, 209 (2d. Cir. 1991). Courts weigh the factors and no one factor is dispositive. Dortz v. City of New York, 904 F. Supp. 127, 143 (S.D.N.Y. 1995). All four do not need to favor one party. Alfano v. Costello, 940 F. Supp. 459, 465 (N.D. N.Y 1996) (citing Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241-42 (2d Cir. 1995)).

1. Ascertainable Role of the Unnamed

Plaintiff concedes that she knew enough about the relationship between the Enviromaster and Utica Boilers at the time she filed her administrative complaint to inquire about adding Utica Boilers' name to it. The complaint in this action states that she knew "key employees of Utica Boilers were consulted or even brought over to manage and ...

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