Senecal et al v. B.G. Lender Services LLC et al
Filing
82
MEMORANDUM-DECISION AND ORDER denying 42 Motion for Summary Judgment: The Court hereby ORDERS that Defendant Keena's motion for summary judgment is DENIED; and the Court further ORDERS that the Clerk of Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/30/13. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JENNIFER SENECAL,
Plaintiff,
vs.
1:12-CV-0487
(MAD/RFT)
B.G. LENDERS SERVICE LLC; KEENA
STAFFING, INC; and BRIAN GRANGER
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
LAW OFFICES OF ANTHONY J.
COLLELUORI & ASSOCIATES, PLLC
6800 Jericho Turnpike, Suite 208E
Syosset, New York 11791
Attorneys for Plaintiff
ANTHONY J. COLLELUORI, ESQ.
BOND, SCHOENECK & KING, PLLC
111 Washington Avenue
Albany, New York 12210
Attorneys for Defendant Keena Staffing, Inc.
NICHOLAS J. D'AMBROSIO, JR., ESQ.
BERGER & KERNAN, PC
10 Maxwell Drive
Suite 101
Clifton Park, New York 12065
Attorneys for Defendants B.G. Lenders
Service, LLC and Brian Granger
JOSEPH C. BERGER, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff, Jennifer Senecal, was formerly an employee of Defendant B.G. Lenders
Service.1 Defendant B.G. Lenders Service had a contract with Defendant Keena by which
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Defendant B.G. Lenders Service, LLC was incorrectly sued as "B.G. Lender Services."
Defendant Keena was to serve as Defendant B.G. Lenders Service's Professional Employer
Organization. This arrangement involved a specific delegation of payroll, human resources, and
other duties between Defendants, which were considered co-employers.
Plaintiff alleges that while working for Defendant B.G. Lenders Service, she was sexually
harassed by its owner, Defendant Brian Granger, Plaintiff's employment with Defendant B.G.
Lenders Service was terminated. Plaintiff filed a charge with the EEOC against Defendant B.G.
Lenders Service. Approximately nine months later, Plaintiff filed an amended EEOC charge
against both Defendant B.G. Lenders Service and Defendant Keena. The EEOC eventually
determined that reasonable cause supported Plaintiff's claims. After an unsuccessful period of
voluntary conciliation, the EEOC notified Plaintiff of her right to sue, and she subsequently
brought Title VII and New York Human Rights Law ("NYHRL") claims against both Defendants.
Defendant Keena has moved for summary judgment dismissing all of Plaintiff's claims
against it. Defendant Keena argues that Plaintiff's Title VII claims against it must be dismissed
because Plaintiff's amended EEOC charge naming Defendant Keena was untimely. The Court
does not decide whether or not Plaintiff's amended charge was untimely. Instead, the Court finds
that, even if Plaintiff's amended EEOC charge against Defendant Keena was untimely, Plaintiff's
Title VII claims against Defendant Keena may proceed because Defendant Keena and Defendant
B.G. Lenders Service share an identity of interest, and Plaintiff named Defendant B.G. Lenders
Service in a timely EEOC charge. Defendant Keena argues that Plaintiff's NYHRL claims
against it must be dismissed because they fall outside the applicable statute of limitations. The
Court finds that Plaintiff's NYHRL charges do not fall outside the statute of limitations because
that statute of limitations was tolled while Plaintiff's amended EEOC charge was pending.
Accordingly, the Court denies Defendant Keena's summary judgment motion in its
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entirety and allows all of Plaintiff's Title VII and NYHRL sexual harassment claims against
Defendant Keena to proceed.
II. BACKGROUND
Plaintiff Jennifer Senecal who worked as an "Office Manager" at Defendant B.G. Lenders
Service, LLC from "on or about October 30, 2006 through on or about August 25, 2008." See
Dkt. No. 47 at ¶¶ 2, 4. Plaintiff's supervisor during this time was Defendant Brian Granger,
Defendant B.G. Lenders Service's owner. See id. at ¶ 16; Dkt. No. 53-3 at 1. Defendant Keena
Staffing, Inc. ("Defendant Keena") is a Professional Employer Organization ("PEO") which had a
co-employer relationship with Defendant B.G. Lenders Service "[b]eginning in or around July
2004 through December 2009[.]" See Dkt. No. 47 at ¶¶ 1-2; see generally Dkt. No. 42-11.
A.
Plaintiff's Allegations of Sexual Harassment
Plaintiff alleges that Defendant Granger first began harassing her "on or about February 3,
2007," at which point he allegedly began asking "very personal" questions about Plaintiff's female
friend. See Dkt. No. 49 at ¶ 8. Defendant Granger's sexual harassment allegedly continued
throughout 2007, eventually taking the form of sexual advances towards Plaintiff, despite
Plaintiff's claims that she told him to stop. See id. at ¶¶ 9-13. Plaintiff alleges Defendant
Granger's inappropriate behavior continued and became more frequent throughout the first half of
2008. See id. at ¶¶ 14-23.
In May and June of 2008, Plaintiff allegedly made numerous complaints to Defendant
Keena about Defendant Granger's inappropriate behavior. See Dkt. No. 49 at ¶¶ 24-26. Plaintiff
alleges that, at one point during this time period, she actually drove to Defendant Keena's
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premises to make her complaints. See id. at ¶ 24. Plaintiff claims that her alleged conversations
with Defendant Keena were not encouraging and that Defendant Keena made no effort to remedy
or prevent any of Defendant Granger's harassment. See id. at ¶¶ 24-26. Defendant Keena has
denied ever receiving "any communication or complaints from [Plaintiff] regarding sexual
harassment during her term of employment[.]" See Dkt. No. 42-6 at 1. After these alleged
interactions with Defendant Keena, Plaintiff alleges that Defendant Granger's harassment
continued and became even more frequent. See Dkt. No. 49 at ¶¶ 27-36.
On August 25, 2008, Defendant B.G. Lenders Service terminated Plaintiff. See Dkt. No.
47 at ¶ 19; Dkt. No. 42-2 at 1. Plaintiff's "Employee Termination Form" was completed by
Defendant Keena and printed on Defendant Keena's letterhead. See Dkt. No. 47 at ¶ 19; Dkt. No.
42-2 at 1. Plaintiff claims she received notice of her termination the next day. See Dkt. No. 49 at
¶ 37. Plaintiff alleges that a letter notifying her of her termination came from Defendant B.G.
Lenders Service's attorney and claims that it did not mention Defendant Keena. See id.
Defendant Keena does not claim that Plaintiff ever received a copy of the "Employee Termination
Form[.]" See Dkt. No. 47 at ¶¶ 19-21; Dkt. No. 42-1 at ¶ 6. Defendant Granger signed the
"Employee Termination Form[,]" but Plaintiff never signed it, even though there is a line at the
bottom marked "Employee's Signature[.]" See Dkt. No. 42-2 at 1. Defendants claim that Plaintiff
was terminated for "falsifying timecards and business records." See Dkt. No. 47 at ¶ 19.
Plaintiff, however, claims that she was fired for complaining about Defendant Granger's alleged
harassment. See Dkt. No. 42-3 at 2; Dkt. No. 42-4 at 1; Dkt. No. 53-4 at 2.
On January 9, 2009, Plaintiff allegedly spoke with Defendant Keena to collect her
employee tax records and to further complain about Defendant Granger. See Dkt. No. 49 at ¶ 38.
Defendant Keena denies that this communication ever took place. See Dkt. No. 42-10 at ¶ 37. At
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the very least, Plaintiff received her 2008 W-2 form from Defendant Keena at some point in early
2009. See Dkt. No. 47-1 at 3.
B.
Defendant B.G. Lenders Service's Relationship with Defendant Keena
"Beginning in or around July 2004 through December 2009," Defendant Keena and
Defendant B.G. Lenders Service were part of a co-employer relationship. See Dkt. No. 47 at ¶ 2.
After December 2009, Defendant Keena and Defendant B.G. Lenders Service ended their coemployer relationship and entered into an "Administrative Services Organization" agreement
from January 1, 2010 to January 1, 2011. See Dkt. No. 42-10 at ¶ 6 n.1. Any differences between
a co-employer relationship and an Administrative Services Organization are not relevant to
Defendant Keena's motion for summary judgment. At the time of Plaintiff's termination,
Defendant Keena and Defendant B.G. Lenders Service were co-employers, as per their coemployer agreement (the "Agreement") "executed on or around February 27, 2008, and . . .
effective through December 31, 2009." See Dkt. No. 47 at ¶ 6; see generally Dkt. No. 42-11. It is
this Agreement that is pertinent to this motion.
Defendant Keena claims that, according to the Agreement, it "was responsible for
providing payroll, benefits management, and human resources services to B. G. Lenders
Service[.]" See Dkt. No. 47 at ¶ 8. Each of these functions is outlined in detail in the Agreement.
Defendant Keena was responsible for paying out wages to the co-employees working at
Defendant B.G. Lenders Service and for withholding payroll taxes for those co-employees. See
Dkt. No. 42-10 at ¶ 9; Dkt. No. 42-11 at 6-7, § V(A)-(E). Defendant Keena "[bore] sole
responsibility for the payment, from its own account, of all applicable wages and payroll taxes
with respect to the Employees[.]" See Dkt. No. 42-11 at 4, § III(D). In exchange, Defendant B.G.
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Lenders Service was responsible "to pay for services rendered prior to the release of each payroll,
including sufficient funds to cover gross wages, [Keena's] service fee, contributions to employee
benefits, and any applicable workers' compensation charges." See id. at 22, Ex. B. Defendant
Keena also "provided and administered contractually agreed-upon benefit programs to employees
working at B.G. Lenders Service." See Dkt. No. 42-10 at ¶ 10. These benefits consisted of,
among other things, an employee health plan. See Dkt. No. 42-11 at 7, § VI(E); id. at 33-39, Exs.
E & E-1. Defendant B.G. Lenders Service was similarly responsible for making appropriate
payments to Defendant Keena for administering these plans. See id. at 22, Ex. B.
Defendant Keena's human resources services included "[e]mployee complaint and dispute
resolution[,]" "interpretation of and compliance with local, state and federal employment laws and
regulations[,]" and "[t]raining workshops covering employment law compliance, safety." See
Dkt. No. 42-11 at 40, Ex. F. In the event that any employee complaints resulted in litigation or
administrative inquiries, the Agreement required Defendant B.G. Lenders Service to keep
Defendant Keena informed of all pending actions so that the Defendants could cooperate in
resolving the employee's claim. See id. at 13-14, § IX(L). Finally, Defendant Keena also
"create[d] and maintain[ed] personnel files on all Employees." See id. at 11, § VIII(F); Dkt. No.
42-10 at ¶ 12.
Defendant Keena not only provided human resources services to Defendant B.G. Lenders
Service, it also reserved a great deal of authority over personnel decisions. The Agreement gave
Defendant Keena "the authority to hire all Employees assigned to [B.G. Lenders Service], subject
to the terms of any collective bargaining agreement which may exist." See Dkt. No. 42-11 at 5, §
IV(A). Defendant Keena also "retain[ed] a right of direction and control of the Employees
consistent with its role as a co-employer of the Employees." See id. at 5, § IV(B). Defendant
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B.G. Lenders Service, on the other hand, retained "control over (i) the day-to-day job duties of the
Employees, and (ii) the worksite at which, or from which, the Employees perform services." See
id. at 6, § IV(B). According to this division of authority, Defendant Keena reserved "the right to
terminate the employment of an Employee with [Keena] or to reassign the Employee to another
Client [other than B.G. Lenders Service]." See id. at 6, § IV(D).
Defendant Keena claims that it had no "ownership interests in, or financial control of B.G.
Lenders Service, [nor did] B.G. Lenders Service have any ownership interests in, or financial
control of Keena." See Dkt. No. 42-10 at ¶ 10. Similarly, Defendant Keena claims "[t]here has
never been any overlap or commonality of owners, management executives, or officers between
Keena and B. G. Lenders Service, nor has there ever been any comingling [sic] of assets or funds
between the entities." See Dkt. No. 43 at ¶ 12.2
Defendant Keena claims that it "and B.G. Lenders Service do not accept any responsibility
or liability for the other's business operations, employees, personnel policies, or other action [sic]
by virtue of this relationship[.]" See Dkt. No. 43 at ¶ 11. Plaintiff disputes this assertion. See
Dkt. No. 47 at ¶ 11. The Agreement explicitly states that neither Defendant Keena nor Defendant
B.G. Lenders Service is authorized to act as an agent of the other. See Dkt. No. 42-11 at 1, § I.
Plaintiff disputes this characterization, drawing the Court's attention to the section of the
Agreement labeled "Client Service Fees[.]" See Dkt. No. 47 at ¶ 12; Dkt. No. 42-11 at 3-5, §
III(A)-(H). This section simply explains the payments owed by Defendant B.G. Lenders Service
in exchange for Defendant Keena's services. See Dkt. No. 42-11 at 3-5, § III(A)-(H). Plaintiff
claims that it does not establish any joint hierarchy of management that governs the business
decisions of the two companies. See id. It does not establish any shared funds from which each
Defendant pays into and is allowed to withdraw from. See id. In fact, Defendant Granger chose
to provide collateral for any late payments Defendant B.G. Lenders Service might make through
an Automated Clearinghouse and a personal guaranty. See id. at 22-26, Exs. B & B-1.
Defendants Granger and B.G. Lenders Service chose this option instead of paying a security
deposit or giving Defendant Keena the authority to initiate wire transfers from Defendant B.G.
Lenders Service's account. See id. This further demonstrates the extent to which commonality of
funds or assets between Defendants was avoided.
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The Agreement also has a lengthy section that provides each Defendant with various types of
indemnification to protect against damages brought on by the other Defendant. See id. at 14-16, §
X(A)-(G). These indemnity provisions extended to "any and all claims made by Employees
resulting from any . . . charges of discrimination; wrongful termination, or other labor-related
causes of action; and claims of sexual harassment." See id. at 15, § X(A). These provisions
related to damage allocation do not, however, change the fact that Defendants pledged to
cooperate in resolving these types of employee claims. See id. at 13-14, § IX(L).
C.
Plaintiff's Professional Relationship with Defendant Keena
Plaintiff and Defendants agree that Plaintiff worked as the office manager for Defendant
B.G. Lenders Service, but her actual duties at that position have been a matter of some debate.
Dkt. No. 47 at ¶ 3. The Agreement states that "[n]o person shall become an Employee unless
such person is hired by PEO3 as an Employee." Dkt. No. 42-11 at 5, § IV(A). This makes the
circumstances surrounding Plaintiff's hiring appear atypical. Plaintiff was hired after responding
to a newspaper advertisement posted by Defendant B.G. Lenders Service. Dkt. No. 42-13 at 1.
Defendant Keena was not present during this interview. Id. In fact, Defendant B.G. Lenders
Service told the EEOC that Plaintiff was never employed or supervised by Defendant Keena. See
id. Plaintiff does not dispute the setting of her interview but describes her employment status as
"hired through Keena Staffing by Defendant Granger for employment." Dkt. No. 49 at ¶ 5.
Plaintiff's day-to-day duties as Office Manager have been vigorously contested by the
parties. Defendant Keena alleges that "Plaintiff had regular communication with Keena . . .
In the Agreement, Defendant Keena is referred to as "PEO," which stands for
"Professional Employer Organization."
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regarding B.G. Lenders Service's payroll changes for new hires and terminations, and other
employment matters such as employee benefits and workers' compensation claims." See Dkt. No.
47 at ¶ 17. Since Plaintiff allegedly performed these functions, Defendant Keena asserts that
"Plaintiff was fully aware of the relationship between Keena and B.G. Lenders Service." See id.
Plaintiff denies performing these duties outside of "a brief two week period during which [she]
called payroll in[.]" See Dkt. No. 49 at ¶ 4. For the remainder of her employment with Defendant
B.G. Lenders Service, Plaintiff has described her office responsibilities as "all clerical duties as
requested." See id.
Defendant Keena has provided seven different forms printed on its letterhead, each of
which is filled out by Plaintiff and bears her signature. See Dkt. No. 42-14 at 1-8. These forms
are dated fairly sporadically and span a period between July 31, 2007 and May 8, 2008. See id.
The series of forms contains the following: an "Employee Information Packet" for another
employee, an "Employee Termination Form" for another employee, two hourly wage increase
forms for two other employees, an "Accident/Incident Investigation Report" for another
employee's accident, an email address change notification for Plaintiff, and Plaintiff's request to
change the automatic deductions taken from her paycheck. See id. These forms establish that
Plaintiff sent Defendant Keena information about Defendant B.G. Lenders Service's employees
outside of the alleged two-week period. Defendant Keena has not provided any other direct
correspondence between itself and Plaintiff.
Defendant Keena also alleges that Plaintiff was responsible for distributing an employee
handbook ("the Handbook") to all of Defendant B.G. Lenders Service's employees. See Dkt. No.
43 at ¶ 18. The Handbook outlines the relationship between Defendant B.G. Lenders Service and
Defendant Keena and allegedly encourages employees to contact Defendant Keena about any
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instances of workplace harassment. See id. at ¶ 14. Plaintiff, however, denies ever seeing,
receiving, or distributing the Handbook. See Dkt. No. 47 at ¶ 18; Dkt. No. 49 at ¶¶ 6-7.
Defendant Keena has provided the Court with a copy of the Handbook but has provided no other
evidence to support its allegations that Plaintiff ever had a copy of the Handbook for her own
reference or that she ever distributed it to any other employees. See generally Dkt. No. 42-12.
A welcome letter at the beginning of the Handbook briefly describes the Defendants' coemployer relationship. See Dkt. No. 42-12 at 3. The letter explains that "[y]ou will continue to
do the same job as before, however your checks will be issued by Keena Staffing who becomes
the employer of record for collection and payment of payroll taxes, unemployment insurance
management, and certain other purposes." See id. Some portions of the Handbook encourage
employees to contact Defendant Keena with any questions. See id. at 18, 24, 26. For example,
the Handbook's section on retirement plans reads, "Consult with the Benefits Manager @ Keena
Staffing for details concerning retirement plan options." See id. at 18. The section of the
Handbook dealing with workplace discrimination and harassment, however, first instructs
employees that they may contact their supervisor at Defendant B.G. Lenders Service about their
concerns. See id. at 8. It then tells employees that, "[i]f you choose, you may make your
complaint directly to the Director of Human Resources or President at Keena Staffing." See id.
Finally, this section of the Handbook also informs employees that they can make complaints
about workplace discrimination or harassment to the EEOC.
D.
Administrative and Procedural History
Towards the end of Plaintiff's employment with Defendant B.G. Lenders Service,
specifically "in the summer of 2008," Plaintiff "was a party to a Family Court child support
10
matter." See Dkt. No. 53-4 at 1-2. Plaintiff was represented in this case by her attorney, Karen
Judd ("Judd"), from the Law Offices of Newell & Klingebiel. See id. at 1-3. Newell &
Klingebiel specializes primarily in "Matrimonial Law, Personal Injury, and Social Security
Disability[.]" See Experienced and Diligent Glens Falls Attorneys, Law Offices of Newell and
Klingebiel, www.newellandklingebiel.com (last visited Sept. 25, 2013). Judd's specific practice
areas are identified as "Matrimonial law, Family law, Divorce, Adoptions, [and] Separations[.]"
Nowhere on the Newell & Klingebiel website does it mention that the firm has any experience in
employment law.
Plaintiff filed a "Charge of Discrimination" with the EEOC on December 8, 2008, naming
only Defendant B.G. Lenders Service as a respondent. See Dkt. No. 42-3 at 2. This charge was
dual-filed with the New York State Division of Human Rights ("NYSDHR"). See id. at 2. Judd
represented Plaintiff when she filed this charge. See id. at 1. Defendant B.G. Lenders Service
responded to this charge on January 1, 2009, at which point it informed the EEOC that it "lease[d]
employees from Keena Staffing a professional Employer Services company." See Dkt. No. 53-3
at 1-2. A copy of this response was sent to Plaintiff on April 24, 2009. See Dkt. No. 53-2 at 1.
Judd acknowledged having viewed a copy of the response herself in a subsequent letter to the
EEOC. See Dkt. No. 53-4 at 1.
On August 24, 2009, the EEOC received an "Amended Charge of Discrimination" from
Plaintiff naming both Defendant B.G. Lenders Service and Defendant Keena as respondents. See
Dkt. No. 42-4 at 1-2. This charge was likewise dual-filed with the NYSDHR. See id. at 1. The
Court has not been provided a copy of any cover letter from Judd, similar to the one
accompanying Plaintiff's initial EEOC charge. Compare Dkt. No. 42-4 at 1-2, with Dkt. No. 42-3
at 1. On September 15, 2009, Defendant B.G. Lenders Service submitted another letter to the
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EEOC, this time denying the amended charges. See Dkt. No. 42-13 at 1-2. Defendant Keena did
the same on September 16, 2009. See Dkt. No. 42-6 at 1.
On September 30, 2011, the EEOC issued a determination finding that "there is reasonable
cause to believe" that Defendant B.G. Lenders Service and Defendant Keena were responsible for
harassing Plaintiff. See Dkt. No. 42-7 at 1-2. This determination announced the EEOC's intent to
enter into a voluntary conciliation process between the Plaintiff and Defendants. See id. at 2. On
December 23, 2011, the EEOC sent each of the parties a letter explaining that the conciliation
efforts had failed and would not be continued. See Dkt. No. 42-8 at 1. The EEOC simultaneously
informed Plaintiff that she had a right to sue Defendants. See Dkt. No. 42-9 at 1.
Pursuant to the EEOC's "Notice of Right to Sue[,]" Plaintiff filed a complaint with this
Court against Defendants B.G. Lenders Service, Keena, and Granger. See Dkt. No. 42-9 at 1;
Dkt. No. 1. Currently before the Court is Defendant Keena's motion for summary judgment.
III. DISCUSSION
A.
Summary Judgment Standard
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29,
36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court
"cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37
(quotation and other citation omitted). "Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc.,
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477 U.S. 242, 248 (1986). Moreover, it is well-settled that a party opposing a motion for
summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson, 477 U.S. at 255) (other
citations omitted). Where the non-movant either does not respond to the motion or fails to
dispute the movant's statement of material facts, the court may not rely solely on the moving
party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the
record support the movant's assertions. See Giannullo v. City of New York, 322 F.3d 139, 143 n.5
(2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary
judgment "would derogate the truth-finding functions of the judicial process by substituting
convenience for facts"). Even though additional concerns must be kept in mind, summary
judgment in employment discrimination cases is by no means forbidden. "Summary judgment
applies no less to Title VII cases and 'is still fully appropriate, indeed mandated, when the
evidence is insufficient to support the non-moving party's case.'" DeWitt v. Lieberman, 48 F.
Supp. 2d 280, 287 (S.D.N.Y. 1999) (quoting Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d
Cir. 1998)); see also Gallo v. Prudential Residential Servs., Ltd. Pshp., 22 F.3d 1219, 1224 (2d
Cir. 1994) (citations omitted).
B.
Title VII Claims
1. Title VII Filing Requirement Generally
It is well-established that before filing a Title VII claim in federal court, a plaintiff needs
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to first exhaust all of his or her administrative remedies. See Holtz v. Rockefeller & Co., 258 F.3d
62, 82-83 (2d Cir. 2001) (citing 42 U.S.C. § 2000e-5(e) (2001)) (other citations omitted). In
order to comply with Title VII's administrative requirements, a charge of discrimination or
harassment generally must be filed with the EEOC within 180 days of the alleged unlawful
employment practice or condition. See 42 U.S.C. § 2000e-5(e)(1). In states in which a state or
local agency has overlapping authority to investigate such claims, the plaintiff's filing deadline is
extended to 300 days. See id. Since New York has its own employment discrimination agency, a
plaintiff filing discrimination or harassment charges with the EEOC must meet the 300-day filing
deadline. See Morales v. New York State Dep't of Labor, 865 F. Supp. 2d 220, 239 (N.D.N.Y.
2012) (citing Pikulin v. City Univ. of New York, 176 F.3d 598, 599 (2d Cir. 1999) (per curiam)).
Initially, Plaintiff appears not to have filed a timely charge with the EEOC naming
Defendant Keena. On December 8, 2008, the EEOC received a "Charge of Discrimination" from
Plaintiff. See Dkt. No. 42-3 at 2. This charge mentioned only Defendant B.G. Lenders Service
and alleged that its owner, Defendant Brian Granger, subjected Plaintiff to sexual harassment,
which culminated in her August 25, 2008 termination. See id.; Dkt. No. 42-2 at 1. On August 24,
2009, the EEOC received an "Amended Charge of Discrimination" from Plaintiff, which added
Defendant Keena as a respondent, alleging that "Keena Staffing personnel were made aware of
the sexual harassment that I was being subjected to by the owner Mr. Granger, but failed to take
appropriate action." See Dkt. No. 42-4 at 1-2. Plaintiff's termination by Defendant B.G. Lenders
Service is the last act of harassment with which the amended charge alleges that Defendant Keena
was involved. See id. at 2.
Since Plaintiff was terminated on August 25, 2008, the 300-day filing requirement would
require her to file a charge with the EEOC by June 21, 2009, for any harassment culminating in
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her termination. Plaintiff's initial charge naming Defendant B.G. Lenders Service, received by
the EEOC on December 8, 2008, was, therefore, timely filed. Plaintiff's amended charge naming
Defendant Keena, filed on August 24, 2009, was, however, not timely according to the 300-day
rule. In order to comply with the 300-day deadline, Defendant Keena's alleged discriminatory or
harassing actions would have to occur on or after October 28, 2008.
Under most circumstances, "when a plaintiff fails to file a timely charge with the EEOC,
the claim is time barred." Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397,
1401 (2d Cir. 1993). While plaintiffs generally must comply with Title VII's procedural
requirements, the "filing of a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982). A cursory review of compliance with the EEOC's filing
requirements, therefore, does not end the Court's consideration of Plaintiff's Title VII claim
against Defendant Keena. In fact, there are three exceptions to the general administrative filing
deadline that potentially allow Plaintiff's Title VII claim against Defendant Keena to proceed in
federal court: (1) equitable tolling, (2) the "relation back" standard for amended charges, and (3)
the identity of interest exception.
2. Equitable Tolling
Equitable tolling has been allowed "in situations where the claimant has actively pursued
his judicial remedies by filing a defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary's misconduct into allowing the filing
deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (footnote omitted).
15
Equitable tolling is also proper when the plaintiff "(1) has acted with reasonable diligence during
the time period she seeks to have tolled, and (2) has proved that the circumstances are so
extraordinary that the doctrine should apply." Zerilli-Edelglass v. New York City Transit Auth.,
333 F.3d 74, 80-81 (2d Cir. 2003) (citation omitted) (internal quotation marks omitted). Mistakes
made by a plaintiff's attorney, however, are almost never an adequate basis for equitable tolling.
See Smaldone v. Senkowski, 273 F.3d 133, 138-39 (2d Cir. 2001) (per curiam); Keyse v.
California Texas Oil Corp., 590 F.2d 45, 47-48 (2d Cir. 1978) (denying equitable tolling for a late
filing with the EEOC because the party seeking equitable tolling was represented by counsel at
the time of the filing); Pollock v. Chertoff, 361 F. Supp. 2d 126, 130-31 (W.D.N.Y. 2005) (same);
Comfort v. Rensselaer Polytechnic Inst., 575 F. Supp. 258, 260-61 (N.D.N.Y. 1983) (same); but
see Chapman v. Choicecare Long Island Term Disability Plan, 288 F.3d 506, 512-14 (2d Cir.
2002) (holding that an attorney's inability to perceive the wishes of the client-plaintiff because of
the plaintiff's mental illness could be acceptable grounds for equitable tolling if the facts later
supported that the client's mental illness was as severe as her attorney claimed). The extreme
circumstances in which represented plaintiffs are entitled to equitable tolling do not extend to
situations in which a plaintiff's lawyer simply fails to exercise due diligence. See South v. Saab
Cars USA, 28 F.3d 9, 12 (2d Cir. 1994). The burden for demonstrating that equitable tolling is
warranted lies with the plaintiff. See Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000).
In this case, Plaintiff was represented by her former counsel, Judd, when she filed her first
charge with the EEOC on December 4, 2008 naming only B.G. Lenders Service as a respondent.
See Dkt. No. 42-3 at 1-2. Her counsel's inability to identify Defendant Keena as Plaintiff's coemployer is not an adequate basis for equitable tolling. Even though Plaintiff claims that
Defendant Keena was attempting to hide its co-employer status, see Dkt. No. 46 at 15,
16
information of a relationship between Defendant Keena and Defendant B.G. Lenders Service was
made available to the EEOC by B.G. Lenders Service as early as January 1, 2009, well within the
300-day filing period. See Dkt. No. 53-3 at 1-2. If the information could have been ascertained
by the EEOC in that time, there is no reason that it could not have also been discovered by
Plaintiff's counsel. Knowledge of this relationship, even if information about its exact nature was
actively denied by Defendant Keena, should not have prevented Plaintiff's counsel from
investigating and uncovering the co-employer agreement. Further, Plaintiff herself was aware of
Defendant Keena's existence, even if she did not know the exact nature of Defendants'
relationship. See Dkt. No. 42-14 at 1-8. Plaintiff admits that it was her "responsibility to call to
report payroll information to the Defendant [Keena]" for at least a two-week period while she
worked for Defendant B.G. Lenders Service. See Dkt. No. 49 at ¶ 4.
As such, the Court finds that Plaintiff has failed to set forth any circumstance sufficiently
extraordinary to justify the application of equitable tolling.
3. Whether Plaintiff's Second EEOC Charge Relates Back to the Initial Charge
Under some circumstances, an amended charge can make new claims of unlawful
employment practices or conditions more than 300 days after the events occurred, so long as the
allegations are sufficiently tied to an initial charge made within the 300-day window. According
to EEOC regulations, "[a] charge may be amended to . . . clarify and amplify allegations made
therein. Such amendments and amendments alleging additional acts which constitute unlawful
employment practices related to or growing out of the subject matter of the original charge will
relate back to the date the charge was first received." 29 C.F.R. § 1601.12(b). If this standard is
met, the new allegations in the amended charge are said to properly "relate back" to the timely
17
allegations in the initial charge. Robles v. Cox & Co., 841 F. Supp. 2d 615, 626 (E.D.N.Y. 2012).
The Second Circuit has not explicitly addressed whether an amendment to an EEOC
charge which adds an entirely new defendant can ever sufficiently relate back to the original
EEOC charge so that it would constitute a valid amendment despite the initial 300-day filing
period having elapsed. Some courts in this Circuit have implied that amended charges adding
new parties after the 300-day filing period are allowed. A larger body of precedent within the
Circuit displays a marked hesitation to explicitly resolve whether such an amendment would be
allowed. In particular, when courts have the opportunity to decide whether the defendant,
unnamed in the initial EEOC charge, should be included in the subsequent Title VII litigation, the
courts have decided the issue based on an identity of interest analysis rather than a "related back"
amendment analysis.
As already mentioned, some courts imply that an initial EEOC charge could have been
amended after the 300-day filing period in order to add a new defendant, yet they do so without
actually dealing with a case in which the initial charge has actually been amended to add the new
defendant outside the 300-day period. Gallagher v. IBEW, 127 F. Supp. 2d 139, 143 (N.D.N.Y.
2000) (noting that the plaintiff could have amended his initial EEOC charge to add a new
defendant at some point in the last thirteen years); see also Alfano v. Costello, 940 F. Supp. 459,
466-67 (N.D.N.Y. 1996), aff'd, 294 F.3d 365 (2d Cir. 2002) ("[Plaintiff] never attempted to
amend her complaint even though it was pending before the agency for more than two years . .
."); Gilmore v. Local 295, Int'l Bhd. of Teamsters, 798 F. Supp. 1030, 1038 (S.D.N.Y. 1992)
("Although the plaintiff alleges that he requested the Commission amend his charge to include his
final termination from [the named defendant], he does not state that he requested to add the
[unnamed defendant] as an additional respondent").
18
Many other courts in this Circuit have explicitly refused to engage in a "related back"
analysis when there was an independent basis, such as the identity of interest exception, for
deciding whether it was appropriate for the unnamed party to be included in the pending Title VII
litigation. These courts have expressed the concern that, "[t]o impute to one person complaints
made against an unrelated party may violate fundamental fairness standards of adequate notice
and opportunity to be heard, and may offend as well the underlying purpose of Title VII of
encouraging informal conciliation and voluntary compliance." Gonzalez v. Bratton, No. 96 Civ.
6330, 2000 U.S. Dist. LEXIS 12002, *76-*77 (S.D.N.Y. Aug. 21, 2000) (citing Stache v.
International Union of Bricklayers and Allied Craftsmen, AFL-CIO, 852 F.2d 1231 (9th Cir.
1988)) (other citation omitted) (opting instead to analyze the plaintiff's claims according to the
identity of interest exception); see also Dortz v. City of New York, 904 F. Supp. 127, 143 n.5
(S.D.N.Y. 1995) (same). Other courts have declined to engage in a related back analysis in favor
of an identity of interest analysis without taking the time to explicitly state they were doing so.
See Olvera-Morales ex rel. Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 215-16
(N.D.N.Y. 2004) (describing the case's administrative history, which made clear that the plaintiff
had amended her EEOC charge to add a new defendant outside the 300-day period, but
subsequently only engaging in an identity of interest analysis); Magill v. Precision Sys. Mfg., No.
01-CV-1482, 2002 U.S. Dist. LEXIS 26689, *2-*6 (N.D.N.Y. Sept. 11, 2002). These cases
support the conclusion that courts prefer the identity of interest analysis to a related back analysis
when considering whether to allow unnamed parties to be added to Title VII claims. The Court
shares this preference.
The District of Minnesota recently addressed the issue of whether an amended EEOC
charge can be valid while adding a new party outside of the 300-day filing deadline and found
19
that it can. See Hile v. Jimmy Johns Highway 55, Golden Valley, 899 F. Supp. 2d 843, 847-49 (D.
Minn. 2012). In "the later summer and fall of 2009," the plaintiff in Hile, who had been working
as a Domino's Pizza and Pizza Hut delivery driver since 1992, applied for extra work as a
delivery driver at five different Jimmy John's franchise stores. See id. at 844. Since the plaintiff
was deaf, each franchisee declined to hire him on the basis that he would be unable to verbally
communicate with the customers. See id. at 844-45. In "late 2009," the plaintiff filed a
discrimination charge with the EEOC naming only Jimmy John's as a respondent, though he did
list the addresses of the five different franchisees as locations where discrimination occurred. See
id. In January 2012, allegedly at the behest of the EEOC, the plaintiff filed five separate
discrimination charges against the different franchisees, all based on the same discriminatory
events described in his initial charge. See id.
Denying the defendants' motion to dismiss, the court viewed the plaintiff's five January
2012 EEOC charges against the franchisees as amended charges which "relate[d] back" to the
plaintiff's initial 2009 EEOC charge against Jimmy John's. See id. at 847-49. It did so over the
franchisees' protests that the plaintiff failed to cite a single case in which an amended EEOC
charge had been permitted to add a new defendant after the 300-day filing deadline. See id. at
848. The court decided that the new charges simply made "technical amendments" allowed by 29
C.F.R. § 1601.12(b) and that such amendments properly "relate[d] back" to the plaintiff's initial
timely EEOC charge. See id. Additionally the court noted that "companies often have complex
ownership structures not immediately apparent to outsiders[.]" Id. (citation omitted). In order to
provide further support for its decision, however, the court stated that "it seems readily apparent
that a franchisor and its franchisees have an identity of interest in defending discrimination claims
based on the franchisees' conduct . . . ." Id. at 848-49.
20
Since the Hile court leaned on the identity of interest exception in deciding that amended
EEOC charges filed after the 300-day deadline could name new defendants, it is unclear whether
the amended charges would have been allowed if an identity of interest had been found not to
exist. In light of this, and the fact that courts in this Circuit are hesitant to find that an amendment
adding new defendants relates back to the original EEOC charge, the Court declines to find that
Plaintiff's amended EEOC charge relates back to her original charge.
4. Identity of Interest Exception
In order to pursue a Title VII claim in federal court, the plaintiff ordinarily must file a
charge of discrimination with the EEOC or the appropriate state agency. See Johnson v. Palma,
931 F.2d 203, 209 (2d Cir. 1991) (citing 42 U.S.C. § 2000e-5(e)). If the plaintiff fails to name a
party in his or her administrative charge, a district court will usually lack subject matter
jurisdiction over the claim against the unnamed party. See Bridges v. Eastman Kodak Co., 822 F.
Supp. 1020, 1023 (S.D.N.Y. 1993). It is, however, well-established law in the Second Circuit that
courts take a "flexible stance" in interpreting Title VII's procedural requirements. See Egelston v.
State Univ. College at Geneseo, 535 F.2d 752, 754-55 (2d Cir. 1976).
As a result of the "flexible stance" used to deal with the procedural hurdles of Title VII
litigation, the Second Circuit has developed an "identity of interest" exception which allows
plaintiffs to bring Title VII claims against a defendant in federal court despite having not named
that defendant in their administrative charges. See Johnson, 931 F.2d at 209 (citing Eggleston v.
Chicago Journeyman Plumbers' Local Union No. 130, 657 F.2d 890, 905-06 (7th Cir. 1981), cert
denied, 455 U.S. 1017, 72 (1982)). The identity of interest exception is comprised of the
following four factors:
21
1) whether the role of the unnamed party could through reasonable
effort by the complainant be 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 interests of the
unnamed party; 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.
Id. at 209-10 (citing Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977) ("Glus I")).
These four considerations are factors, not elements, and "no one factor is dispositive." Husnay v.
Enviromaster Int'l Corp., 275 F. Supp. 2d 265, 267 (N.D.N.Y. 2003) (citation omitted).
When considering the identity of interest exception, "courts are to evaluate each factor in
light of the statutory purposes underlying Title VII." Dortz, 904 F. Supp. at 143 (citing Glus v.
G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir.), cert denied, 449 U.S. 949 (1980) ("Glus II")). The
statutory purpose of eliminating employment discrimination is not the only relevant
consideration. Courts should also remember that "[r]equiring a plaintiff to name all defendants in
her EEOC charge fulfills two main goals: 1) providing notice to the charged party of the alleged
violation; and 2) securing voluntary compliance with Title VII's mandates." Clarke v. Flushing
Manor Care Ctr., No. 02 Civ. 3079, 2003 U.S. Dist. LEXIS 3979, *8 (S.D.N.Y. Mar. 17, 2003)
(citation omitted). Ultimately, it is the plaintiff who has the burden of proving that the identity of
interest exception applies. See Jackson v. New York City Transit, No. 05-CV-1763, 2005 U.S.
Dist. LEXIS 25111, *7-*8 (E.D.N.Y. Oct. 17, 2005) (citing Hill v. Citibank Corp., 312 F. Supp.
2d 464, 473-74 (S.D.N.Y. 2004)).
a. Impact of Plaintiff's Representation by Legal Counsel
22
Though neither party has raised the issue in its brief, many district courts in this Circuit
have struggled to decide whether a party represented by counsel at the time of its EEOC filing can
take advantage of the identity of interest exception. The Second Circuit Court of Appeals has yet
to explicitly address or resolve the issue, but Johnson, the case in which the Second Circuit
adopted the identity of interest exception, did take note of the fact that many plaintiffs file their
EEOC charges pro se. See Johnson, 931 F.2d at 209 ("[T]hese charges generally are filed by
parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements").
The different district courts diverge on their treatment of represented parties in a Title VII action.
For example, it does not appear that the Western District has ever explicitly denied an
identity of interest exception because a plaintiff was represented by legal counsel. In fact, the
Western District somewhat recently disavowed imposing such a limitation. See Wood v. Pittsford
Cent. Sch. Dist., No. 03-CV-6541T, 2005 U.S. Dist. LEXIS 18063, *10-*13 (W.D.N.Y. Jan. 10,
2005). Even when courts have imposed such a limitation, the limitation only appears to be
consistently applied in cases where the party was represented by counsel with experience in Title
VII litigation. See, e.g., Tarr v. Credit Suisse Asset Mgmt., 958 F. Supp. 788, 794 n.4 (E.D.N.Y.
1997).
Although the Southern District of New York has often restricted the identity of interest
exception to plaintiffs who filed their EEOC charges pro se, see Zustovich v. Harvard Main., Inc.,
No. 08 Civ. 6856, 2009 U.S. Dist. LEXIS 22640, *24 (S.D.N.Y. Mar. 20, 2009); DelaPaz v. New
York City Police Dep't, No. 01 Civ. 5416, 2003 U.S. Dist. LEXIS 15179, *7-*8 (S.D.N.Y. Aug.
30, 2003), it has also recognized that a lawyer inexperienced in Title VII litigation may still be
entitled to raise an identity of interest argument for his or her client. See Flower v. Mayfair Joint
Venture, No. 95 Civ. 1744, 2000 U.S. Dist. LEXIS 2829, *17 (S.D.N.Y. Mar. 10, 2000). Even in
23
cases in which the Southern District appeared to apply a categorical bar against represented
plaintiffs invoking the identity of interest exception, it has often drawn on the plaintiff's lawyer's
experience litigating Title VII claims while doing so. See Darden v. DaimlerChrysler N. Am.
Holding Corp., 191 F. Supp. 2d 382, 390 (S.D.N.Y. 2002) ("[B]ecause [the plaintiff] had the
benefit of counsel when he filed his EEOC complaint, and does not claim that his counsel was
unversed in the law, the identity of interest exception does not apply and his Title VII claims
against [the defendants] must be dismissed") (emphasis added); Gagliardi v. Universal Outdoor
Holdings, Inc., 137 F. Supp. 2d 374, 379 (S.D.N.Y. 2001) (same). As such, these cases appear to
leave open the possibility that a represented plaintiff with an inexperienced attorney may still be
able to take advantage of the identity of interest exception.
The District of Connecticut recently declined to decide whether a plaintiff's representation
by legal counsel is a categorical bar to raising the identity of interest exception. See Lafferty v.
Owens, Schine & Nicola, P.C., No. 3:09cv1045, 2012 U.S. Dist. LEXIS 5276, *26-*27 (D. Conn.
Jan. 18, 2012). In some past instances, a plaintiff's representation has led to an inability to invoke
the identity of interest exception. See Anderson v. Derby Bd. of Educ., 718 F. Supp. 2d 258, 275
(D. Conn. 2010); Peterson v. City of Hartford, 80 F. Supp. 2d 21, 24 (D. Conn. 1999) (citing
Harrington v. Hudson Sheraton Corp., 2 F. Supp. 2d 475, 476 (S.D.N.Y. 1998)). In other
instances, however, the court has undertaken an identity of interest analysis even when the
plaintiff was represented. See Williams v. Quebecor World Infiniti Graphics, Inc., No.
3:03CV2200, 2007 U.S. Dist. LEXIS 21194, *7 (D. Conn. Mar. 22, 2007) (citations omitted); see
also Consolmango v. Hosp. of St. Raphael, No. 3:11cv109, 2011 U.S. Dist. LEXIS 116999, *23
(D. Conn. 2011) (performing an identity of interest analysis but noting, as a separate factor, that
plaintiff's having legal counsel "diminish[es] the need to protect her").
24
Of all the districts in this Circuit, the Northern District of New York has displayed the
strongest aversion to treating plaintiff's legal representation at the time of an EEOC filing as a
categorical bar to prevailing on the identity of interest exception. See Olvera-Morales ex rel.
Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 216-19 (N.D.N.Y. 2004). Though
this District has recognized the Eastern District of New York's and the Southern District of New
York's past choices to differentiate between experienced and inexperienced legal counsel, it has
concluded that such a differentiation was not central to either district's decision not to use legal
counsel as a categorical bar to the identity of interest exception. See id. at 216-17 nn.2-3. In fact,
this District has allowed for an identity of interest exception even when the plaintiff was
represented by counsel "experienced in Title VII actions." Id. at 217 n.4.
The Court agrees with the decision in Olvera-Morales that a categorical bar is
inappropriate. As the Olvera-Morales court previously observed, "'the complexities [in Title VII
actions] are such that an inexperienced Title VII lawyer is no more competent to deal with the
vagaries of this statute's jurisdictional . . . requirements than a layman."' Olvera-Morales, 322 F.
Supp. 2d at 217 n.2 (quoting Manzi v. DiCarlo, 62 F. Supp. 2d 780, 788 (E.D.N.Y. 1999)). The
Court finds that a case-by-case evaluation of the circumstances in light of the Johnson factors, as
opposed to a categorical ban, far better advances the goals and purposes of Title VII.
Having reviewed the applicable law, the Court finds that it would not be appropriate for a
counsel's relative experience or inexperience with Title VII claims to have any bearing on
whether a plaintiff is entitled to application of the identity of interest exception. See OlveraMorales, 322 F. Supp. 2d at 216-19. It should not be ignored, however, that the Second Circuit
has clearly articulated that the purpose of the identity of interest exception is to protect "parties
not versed in the vagaries of Title VII and its jurisdictional and pleading requirements . . . ."
25
Johnson, 931 F.2d at 209; see also Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999)
(quoting Johnson, 931 F.2d at 209). Taking this purpose into account, coupled with the
substantial weight of precedent from other districts within the Circuit, the Court is persuaded that
a plaintiff's representation by counsel is not altogether irrelevant to an identity of interest inquiry.
See Consolmango, 2011 U.S. Dist. LEXIS 116999 at *23; Cole v. Cent. Park Sys., No. 09-CV3185, 2010 U.S. Dist. LEXIS 99173, *17 (E.D.N.Y. Sept. 20, 2010); Darden, 191 F. Supp. 2d at
390; Gagliardi, 137 F. Supp. 2d at 379.
The Court finds persuasive the approach taken in Manzi that a plaintiff's legal
representation at the time of his or her EEOC filing is informative when considering the first and
fourth Johnson factors. See Manzi, 62 F. Supp. 2d at 787-88. The first factor deals with the
plaintiff's lack of knowledge of potential parties against whom EEOC charges may be filed.
Johnson, 931 F.2d at 209. The fourth factor deals with plaintiff's confusion resulting from
misleading representations made to the plaintiff by his or her employer(s). See id. at 210.
b. Application of Standard to Plaintiff's Case
When Plaintiff filed her first "Charge of Discrimination" with the EEOC, the one received
on December 8, 2008, naming only Defendant B.G. Lenders Service, she was represented by Judd
of the "Law Offices of Newell & Klingebiel." See Dkt. No. 42-3 at 1-2. Plaintiff's "Amended
Charge of Discrimination" was received by the EEOC on August 24, 2009. See Dkt. No. 42-4 at
1. This amended charge was not accompanied by a cover letter from Plaintiff's attorney, as was
the initial charge. Compare Dkt. No. 42-4 at 1-2, with Dkt. No. 42-3 at 1. Still, it is clear that
Plaintiff was still represented by Judd at the time this amended charge was filed because Judd was
sent a copy of the EEOC's "Notice of Right to Sue[,]" which was mailed on December 23, 2011.
26
See Dkt. No. 42-9 at 2.
Once it has been ascertained that a plaintiff was represented by legal counsel at the time of
an EEOC filing, it is useful to investigate the relative experience such counsel had in dealing with
Title VII litigation. Judd represented Plaintiff in "a Family Court child support matter[]" during
the "summer of 2008[.]" See Dkt. No. 53-4 at 2. It is unclear how long that proceeding lasted,
and it is unclear at what point Plaintiff began contemplating filing charges with the EEOC.
Plaintiff's employment with Defendant B.G. Lenders Service was terminated on or about August
25, 2008. See Dkt. No. 47 ¶¶ 3-4. Plaintiff claims that she received a notice from an attorney
representing Defendant B.G. Lenders Service on August 26, 2008, informing her that she had
been terminated. See Dkt. No. 49 at ¶ 37. It is entirely possible, if not likely, that Judd's
involvement with Plaintiff's EEOC proceedings was the result of her representation of Plaintiff in
the Family Court proceedings. Judd's law firm specializes in "Matrimonial Law, Personal Injury,
and Social Security Disability[.]" See Experienced and Diligent Glens Falls Attorneys, Law
Offices of Newell and Klingebiel, www.newellandklingebiel.com (last visited Sept. 25, 2013).
Judd's specific practice areas are identified as "Matrimonial law, Family law, Divorce, Adoptions,
[and] Separations[.]" Since there is evidence that Judd did not regularly deal with Title VII
claims, it can be inferred that she had very little experience, if any at all, with "the vagaries of
Title VII and its jurisdictional and pleading requirements . . . ." Johnson, 931 F.2d at 209. As
such, Plaintiff's representation, while relevant to the first and fourth Johnson factors, does not
weigh against her as heavily as it might if Judd had been highly experienced in Title VII
litigation.
c. Defendant Keena's Actual Notice of the EEOC Charge
27
As the Second Circuit has noted, there are two primary purposes served by filing with the
EEOC prior to pursuing a Title VII claim: (1) it notifies potential defendants that the charging
party is alleging workplace discrimination, and (2) it gives potential defendants the opportunity to
voluntarily comply with Title VII's mandates without having to enter into litigation. See Vital,
168 F.3d at 619 (quoting Eggleston, 657 F.2d at 905). The Northern District of New York has
consistently acknowledged these functions as the primary purposes of the EEOC filing
requirement. See Husnay, 275 F. Supp. 2d at 267 ("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") (citations omitted); Magill, 2002 U.S. Dist. LEXIS 26689 at *3. Since the first of
these goals is providing notice to the potential defendants, many courts consider an unnamed
defendant's actual notice of EEOC charges when performing an identity of interest analysis.
In some infrequent instances, district courts in this Circuit have interpreted actual notice
as a separate requirement that must be met in addition to the plaintiff's satisfaction of the fourfactor identity of interest exception. See Carcasole-Lacal v. Am. Airlines, Inc., No. CV-02-4359,
2003 U.S. Dist. LEXIS 11507, *16 (E.D.N.Y. July 8, 2003); Moscowitz v. Brown, 850 F. Supp.
1185, 1192 (S.D.N.Y. 1994). This approach has, however, been explicitly rejected and is not
used by most courts in this Circuit. See, e.g., Malik v. Pakistan Int'l Airlines Corp., No. 92 Civ.
9023, 1995 U.S. Dist. LEXIS 10233, *17 (S.D.N.Y. June 5, 1995) ("Although actual notice of the
EEOC charge may be pertinent to a determination of an 'identity of interest,' it is not, as defendant
maintains, an additional requirement"). In fact, other district courts throughout the Circuit have,
in other infrequent instances, held or implied that if the unnamed defendant had actual notice of
the alleged discrimination during the EEOC proceedings, then an identity of interest exists and
28
analyzing the four separate Johnson factors is unnecessary. See Pinero v. Long Island State
Veterans Home, 375 F. Supp. 2d 162, 167 (E.D.N.Y. 2005); Agugliaro v. Brooks Bros., 802 F.
Supp. 956, 960-61 (S.D.N.Y. 1992). This approach is also rejected in most instances.
Most courts in this Circuit treat the existence of actual notice to the unnamed defendant as
being relevant to the factor analysis. Under this approach, actual notice is relevant to the third
Johnson factor, which measures whether the defendant suffered any actual prejudice by not being
named specifically as a respondent in the plaintiff's EEOC charge. See Johnson, 931 F.2d at 210;
see also Tarr, 958 F. Supp. at 795 ("The third factor subsumes the underlying issue of notice.
Courts have held that a plaintiff's failure to name or include a party in the agency complaint does
not prejudice that party where it had notice of the claims against it and the opportunity to
intervene") (citation omitted); see Zhao v. State Univ. of New York, 472 F. Supp. 2d 289, 306
(E.D.N.Y. 2007); Parker v. City of New York, No. 04 CV 2257, 2004 U.S. Dist. LEXIS 23526,
*11 (E.D.N.Y. Nov. 18, 2004).
Since the Second Circuit has only ever articulated four identity of interest factors, the
Court finds that the issue of actual notice is most properly considered as a component of the third
Johnson factor. Choosing not to consider actual notice as a separate factor should not, however,
be interpreted as diminishing the importance of actual notice. Courts have always recognized that
the four Johnson factors are a proxy for measuring the defendant's notice its ability to reconcile
the plaintiff's complaints without litigation. See Husnay, 275 F. Supp. 2d at 267 (citations
omitted); Magill, 2002 U.S. Dist. LEXIS 26689 at *3 (citations omitted); Vital, 168 F.3d at 619
(citation omitted).
d. Application of Identity of Interest Exception
29
i. Whether Plaintiff Should Have Known to Name Defendant Keena
The first Johnson factor asks "whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at the time of the filing of the EEOC
complaint[.]" Johnson, 931 F.2d at 209 (quoting Glus I, 562 F.2d at 888). The fact that Plaintiff
was represented by legal counsel during the EEOC's administrative process is relevant to
assessing this factor. See Manzi, 62 F. Supp. 2d at 787-88 (holding that the plaintiff's
representation by legal counsel was something to be considered when analyzing the first and
fourth Johnson factors).
When analyzing this factor, it must be kept in mind that Plaintiff ultimately did name
Defendant Keena in her "Amended Charge of Discrimination" received by the EEOC on August
24, 2009. See Dkt. No. 42-4 at 1-2. In addition to naming Defendant Keena as one of her
employers, Plaintiff wrote the following in the body of the amended charge: "Upon information
and belief, Keena Staffing personnel were made aware of the sexual harassment that I was being
subjected to by the owner Mr. Granger, but failed to take appropriate action." See id. The
remaining paragraphs of the body of the amended charge discussed Defendant B.G. Lenders
Service and Defendant Granger. See id. The existence of the amended charge proves that it was,
at some point, possible for Plaintiff to discern Defendant Keena's role and name it in an EEOC
charge. The question for the first Johnson factor, therefore, becomes whether Defendant Keena's
role could have been determined within 300 days of Plaintiff's termination.
Defendant Keena argues that Plaintiff's amended charge proves that Plaintiff knew of
Defendant Keena's existence at all relevant times. See Dkt. No. 43-1 at 16. Defendant Keena
also argues that Plaintiff's alleged complaints made to Defendant Keena about Defendant
Granger's harassment substantiates this proof. See id. Plaintiff admits to these complaints in the
30
body of her amended charge. See Dkt. No. 42-4 at 2; Dkt. No. 49 at ¶¶ 25-26. Plaintiff alleges
that, on June 20, 2008, she drove to Defendant Keena's premises to retrieve her employee file and
to make complaints about Defendant Granger. See id. at ¶ 24. Plaintiff alleges that she also made
complaints to Defendant Keena after her termination, though Defendant Keena denies that these
occurred and claims it had no additional contact after Plaintiff's termination. See Dkt. No. 47 at
¶¶ 21, 43. Plaintiff denies this and claims that Defendant Keena contacted her in January 2009 by
sending her a W-2 form, of which she has provided a copy. See Dkt. No. 47-1 at 3. Plaintiff
alleges that she communicated further complaints of discrimination, specifically complaints about
her tax forms, to Defendant Keena around that time. See Dkt. No. 47 at ¶ 21; Dkt. No. 49 at ¶ 38.
Plaintiff herself has alleged and supplied some proof that she made a number of
complaints about her employment directly to Defendant Keena. See Dkt. No. 49 at ¶¶ 24-26.
Defendant Keena is, therefore, correct that Plaintiff knew about its existence. See Johnson, 931
F.2d at 210 (supporting its holding that the first factor weighed in favor of the unnamed defendant
by indicating that the plaintiff had written to the unnamed defendant to make complaints about
the named defendant's behavior); Carcasole-Lacal, 2003 U.S. Dist. LEXIS 11507 at *18 (same).
Defendant Keena is on less certain ground, however, in its claims that Plaintiff understood
Defendant Keena's role in the alleged discrimination. The plaintiff's understanding of an
unnamed defendant's role is essential to a court's finding that complaints made to the unnamed
defendant demonstrate that the first Johnson factor weighs in favor of the unnamed defendant.
See Johnson, 931 F.2d at 210; Carcasole-Lacal, 2003 U.S. Dist. LEXIS 11507 at *17-*18
(finding that the plaintiff knew that the unnamed defendant had purchased certain assets and
liabilities, but not others, from the named defendant). Without an understanding of the unnamed
defendant's discriminatory role, a plaintiff may reasonably omit that defendant from an EEOC
31
charge, even if he or she knew of the unnamed defendant's identity.
If Plaintiff did not know what relationship Defendant Keena and Defendant B.G. Lenders
Service had, then her complaints to Defendant Keena, standing alone, do not compel a decision
that the first Johnson factor weighs in Defendant Keena's favor. In all her descriptions of the
complaints she made to Defendant Keena, Plaintiff never describes asking Defendant Keena for
any specific relief against Defendant B.G. Lenders Service. See Dkt. No. 49 at ¶¶ 24-26, 38.
Potentially believing that Defendant Keena held no authority over the employees of Defendant
B.G. Lenders Service, Plaintiff might have doubted that Defendant Keena played any official role
in the discrimination against her, which could reasonably have led to her declining to mention
Defendant Keena in her first amended charge to the EEOC. See Dkt. No. 42-3 at 2. Further,
Plaintiff could have reasonably believed that Defendant Keena had no authority over Defendant
Granger since he owns Defendant B.G. Lenders Service.
In arguing that Plaintiff understood Defendant Keena's role in the business hierarchy,
Defendant Keena claims that it signed and issued Plaintiff's paychecks and that Plaintiff's
"Employee Termination Form" was sent on Defendant Keena's letterhead. See Dkt. 43-1 at 17.
Defendant Keena also claims that it was responsible for issuing W-2 forms to all of Defendant
B.G. Lenders Service's employees. See Dkt. No. 42-10 at ¶ 9. This is consistent with the "Wages
and Payroll Taxes" responsibilities delegated to Defendant Keena in its agreement with
Defendant B.G. Lenders Service. See Dkt. No. 42-11 at 6-7.
Even if Defendant Keena's name appeared on every one of Plaintiff's paychecks, it does
not necessarily follow that Plaintiff would have known the exact relationship between Defendant
Keena and Defendant B.G. Lenders Service. Signing payroll checks does not necessarily entail
authority to discipline or terminate employees, an authority that Plaintiff would want to know
32
Defendant Keena had before naming it in an EEOC charge. The appearance of Defendant
Keena's name on Plaintiff's "Employee Termination Form" does, however, indicate the authority
to discipline or terminate employees. Plaintiff, however, alleges that she only ever received a
letter from Defendant B.G. Lenders Service's attorney notifying her of her termination and further
alleges that the letter did not even mention Defendant Keena. See Dkt. No. 49 at ¶ 37. Plaintiff's
signature does not appear on the "Employee Termination Form[,]" even though there is a field
labeled "Employee's Signature" at the bottom of the page. See Dkt. No. 42-2 at 1. These facts,
plus the fact that Defendant Keena does not claim that Plaintiff ever received a copy of the
"Employee Termination Form[,]" therefore, are not probative in deciding whether Plaintiff had
enough information to name Defendant Keena in a timely EEOC charge. See Dkt. No. 47 at ¶¶
19-21; Dkt. No. 42-1 at ¶ 6.
Defendant Keena also argues that, as a result of Plaintiff's "management position," she
knew about the co-employer relationship between Defendants Keena and B.G. Lenders Service
and that she, therefore, knew about Defendant Keena's role in the alleged discrimination. See
Dkt. No. 43-1 at 17. Generally, if the plaintiff holds a management position, it suggests that he or
she understands the company hierarchy and should be aware of the possible defendants in an
employment discrimination action. See Husnay, 275 F. Supp. 2d at 267. Plaintiff concedes that
her title was "Office Manager," but there is otherwise little consensus as to what her official role
was within the company. See Dkt. No. 49 at ¶ 4. Without knowing Plaintiff's substantive duties,
there is little basis for treating her in typical management fashion with respect to the first Johnson
factor.
Defendant Keena claims that Plaintiff's job required her to regularly contact Defendant
Keena to handle "B.G. Lenders Service's payroll, payroll changes for new hires and terminations,
33
and other employment matters such as employee benefits and workers' compensation claims."
See Dkt. No. 42-10 at ¶ 32. Plaintiff denies this characterization and instead claims that, "[w]ith
the exception of a brief two week period during which I called payroll in, at no other time during
the course of my employment with Defendant BG Lenders Service was it my responsibility to call
to report payroll information to the Defendant Keena Staffing." See Dkt. No. 49 at ¶ 4.
Plaintiff's allegation is not supported by the record. Defendant Keena has provided a
series of seven different forms filled out by Plaintiff on dates spanning July 31, 2007, and May 8,
2008, well over two weeks. See Dkt. No. 42-14 at 1-8. These forms were allegedly intended for
Defendant Keena, and they are on Defendant Keena's letterhead. See id. One of the forms reads,
"[t]o ensure accurate processing, please return to Keena Staffing within 7 days." See id. at 2.
Another reads, "[f]ile Report to Keena within 24 Hours of Acciden/Incident[.]" See id. at 5
(emphasis omitted). These forms support Defendant Keena's assertion that it was Plaintiff's
responsibility to manage correspondence between Defendant B.G. Lenders Service and Defendant
Keena beyond the two-week period that Plaintiff claims.
The correspondence is, however, sporadic. See id. Plaintiff filled out two of the forms for
herself rather than for other employees. See id. at 7-8. The fact that one of these two forms is
addressed to Defendant Granger suggests that Plaintiff might not even have known that the forms
were being submitted to Defendant Keena; it may even suggest that not all of these forms were
submitted to Defendant Keena, despite Defendant Keena's name being on the letterhead. See id.
at 7.
In sum, while Defendant Keena has proven that Plaintiff's official duties involved dealing
with Defendant Keena for more than the brief two-week period she alleges, it has not proven the
extensive contact typical of the type of management role that Defendant Keena alleges. Given the
34
questions of fact surrounding the forms Defendant Keena has supplied and, therefore, the
questions of fact surrounding the substance and regularity of Plaintiff's contact with Defendant
Keena, these forms are of little value in determining which party the first Johnson factor favors.
In furtherance of Defendant Keena's argument that Plaintiff held a management position,
it alleges that Plaintiff was responsible for distributing to all Defendant B.G. Lenders Service
employees an "Employee Handbook" (the "Handbook") detailing the relationship between
Defendant B.G. Lenders Service and Defendant Keena. See Dkt. No. 42-10 at ¶ 33. Plaintiff,
however, denies that she was ever given the task of distributing the Handbook to other employees
and further denies ever receiving the Handbook herself. See Dkt. No. 47 at ¶ 18; Dkt. No. 49 at
¶¶ 6-7. Defendant Keena has provided no concrete evidence that Plaintiff was ever given the
Handbook or that she ever distributed it to other employees.
Ultimately, the Court's decision with respect to the first Johnson factor turns on the fact
that Plaintiff was represented by counsel during the EEOC's administrative process. See Manzi,
62 F. Supp. 2d at 787-88 (holding that the plaintiff's representation by legal counsel was
something to be considered when analyzing the first and fourth Johnson factors). Plaintiff
allegedly made numerous complaints to Defendant Keena. See Dkt. No. 49 at ¶¶ 24-26, 38. Even
if Plaintiff made these complaints without knowledge of the relationship between Defendants
Keena and B.G. Lenders Service or the role that Defendant Keena allegedly played in the
discrimination against her, her complaints themselves were enough for Judd, Plaintiff's attorney,
to realize that there was something to investigate. Such an investigation could have revealed
Defendant Keena's name on Plaintiff's "Employee Termination Form," giving Judd direct
evidence that Defendant Keena may have played a discriminatory role and, therefore, could be
named in an EEOC charge. See Dkt. No. 42-2 at 1. If the termination letter was not enough, or if
35
it was not available to Judd, Defendant B.G. Lenders Service admitted to the EEOC on January 1,
2009, that it had a relationship with Defendant Keena. See Dkt. No. 53-3 at 1-2 ("I lease
employees from Keena Staffing[,] a professional Employer Services company"). A copy of this
letter was provided to Judd by the EEOC on April 24, 2009. See Dkt. No. 53-2 at 1. As such,
Judd was explicitly told of a relationship between Defendant B.G. Lenders Service and Defendant
Keena sometime in late April, well within the 300-day period following Plaintiff's termination,
which ended on or about June 21, 2009.
Judd's level of experience is relevant in assessing whether she should have named
Defendant Keena to the EEOC within the 300-day time period. See, e.g., Flower, 2000 U.S. Dist.
LEXIS 2829 at *17; Manzi 62 F. Supp. 2d at 787-88. As discussed, Judd's specific practice areas
are "Matrimonial law, Family law, Divorce, Adoptions, [and] Separations[,]" and, therefore, there
is no indication that she has experience litigating Title VII claims. See Attorneys, Law Offices of
Newell and Klingebiel, www.newellandklingebiel.com/attorneys/ (last visited Sept. 25, 2013).
She was, however, adept enough to eventually determine that Defendant Keena could be named
in Plaintiff's amended charge. See Dkt. No. 42-4 at 1-2. Judd's proven ability to discern
Defendant Keena's allegedly discriminatory actions, coupled with her involvement with Plaintiff's
legal proceedings from the outset, demonstrates that her inexperience with employment law is not
a valid excuse.
Given the available information, including that Defendant Keena was involved in
Plaintiff's termination and that Plaintiff complained about the alleged discrimination to Defendant
Keena, coupled with Plaintiff's legal assistance from the very beginning of the EEOC's
administrative proceedings, the Court finds that the first Johnson factor weighs in favor of
Defendant.
36
Defendant Keena urges the Court to treat a finding in its favor with respect to the first
Johnson factor as dispositive. See Dkt. No. 43-1 at 17. In support of this argument, Defendant
Keena cites Brown v. County of Oneida, No. 99-CV-1064, 2000 U.S. Dist. LEXIS 14799, *7 n.2
(N.D.N.Y. Sept. 28, 2000). Defendant Keena's reliance on Brown is misguided. The Brown court
applied a categorical bar to represented plaintiffs taking advantage of the identity of interest
exception. See id. at *6-*7. In a footnote, the court assured that, even if the plaintiff had been
entitled to the identity of the interest exception, he would have failed to meet the exception's
requirements because he could have named the unnamed defendant in his EEOC charge. See id.
at *7 n.2. The unique circumstances of Brown make it inapplicable to Plaintiff's case because the
reasoning that Defendant Keena relies on did not play a decisive role in the Brown decision. The
Court, however, declines to follow Brown.
In light of the relevant precedent from district courts across this Circuit, disposing of an
identity of interest case based on the first Johnson factor alone would be inappropriate. There
have been numerous instances in which the first factor has clearly weighed against the plaintiff,
yet the court found in favor of the plaintiff based on the other three factors. See, e.g., Cook v.
Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241-42 (2d Cir. 1995); Olvera-Morales ex rel.
Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 218-19 (N.D.N.Y. 2004); Donovan
v. Eastern Milk Producers Coop. Ass'n, 971 F. Supp. 674, 680 (N.D.N.Y. 1997) (holding that "no
single factor is decisive[]") (citations omitted) (internal quotation marks omitted); Lafferty, 2012
U.S. Dist. LEXIS 5276 at *25 ("Although the first factor weighs heavily against [the plaintiff], the
remaining factors favor a finding that the [unnamed and named defendants] share an identity of
interests") (emphasis added). Plaintiff's identity of the interest argument is far stronger than other
plaintiffs who have had the first factor weigh against them but have prevailed on the identity of
37
interest exception as a whole. See Zhao, 472 F. Supp. 2d at 298, 306 (applying the identity of
interest exception even though the plaintiff signed a document explicitly stating that she was an
employee of the unnamed defendant and received a letter reiterating that fact).
Based on the foregoing, the Court finds that the first factor weighs in favor of Defendant
Keena but does not treat the first factor as dispositive of its identity of interest analysis.
ii. Shared Interests of the Named and Unnamed Defendants
The second Johnson factor requires the Court to determine "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[.]" Johnson, 931 F.2d at 209-10 (quoting Glus I,
562 F.2d at 888). This factor is designed to measure whether "the unnamed party's interests were
represented adequately at the administrative proceeding." Zustovich, 2009 U.S. Dist. LEXIS
22640 at *28 (citation omitted).
Defendant Keena argues that its and Defendant B.G. Lenders Service's interests are
different because the two parties are "separate and distinct legal entities." See Dkt. No. 43-1 at
18. In the past, named and unnamed defendants' status as separate legal entities has been used to
show that the second factor weighs in favor of the defendant. See Zheng, 2009 U.S. Dist. LEXIS
74891 at *12-*13. Plaintiff disputes that Defendants are "separate and distinct legal entities[]"
and asserts that they have "shared duties, responsibilities, assets, [and] benefits . . . ." See Dkt.
No. 47 at ¶ 5. Defendant Keena denies that it ever shared any assets or financial interests with
Defendant B.G. Lenders Service. See Dkt. No. 42-10 at ¶¶ 17, 20. Defendant Keena also alleges
that it and Defendant B.G. Lenders Service were not responsible or liable for each other's actions.
38
See id. at ¶ 18. These disputes between Plaintiff and Defendant Keena are easily resolved
because Defendant Keena has provided the "Agreement" (the "Agreement") signed by itself and
Defendant B.G. Lenders Service, which outlines in detail their relationship. See generally Dkt.
No. 42-11.
While the Agreement specifies in detail exactly how Defendant B.G. Lenders Service
must compensate Defendant Keena for the services it provides, nothing in the payment scheme
indicates a commingling of assets. See Dkt. No. 42-11 at 3-5, § III(A)-(H). To the contrary,
Defendants appear to have explicitly taken steps to avoid any such commingling. Defendant
Granger chose to provide collateral for any late payments Defendant B.G. Lenders Service might
make through an automated clearinghouse and a personal guaranty. See id. at 22-26, Exs. B & B1. Defendants Granger and B.G. Lenders Service chose this option instead of paying a security
deposit or giving Defendant Keena the authority to initiate wire transfers from Defendant B.G.
Lenders Service's bank account. See id. These aspects of the relationship between Defendant
Keena and Defendant B.G. Lenders Service demonstrate that the companies made sure that their
assets were not communal.
Similarly, Defendants took steps to ensure that each had separate decision-making
responsibilities and that neither would be held financially accountable for each other's actions.
The Agreement expressly states that neither company had the authority to act as the other
company's agent. See id. at 1, § I. Additionally, the section entitled "Indemnities and Waiver"
demonstrates that Defendants B.G. Lenders Service and Keena each must compensate the other if
one party's acts or omissions creates liability for the other party. See id. at 14-16, § X(A)-(G). In
these respects, Defendant Keena has clearly demonstrated that its interests are not identical to
Defendant B.G. Lenders Service's interests for all business matters.
39
The second identity of interest factor is not, however, concerned with a unity of all
possible interests between the named and unnamed defendants. The factor only deals with the
parties' interests that relate to "obtaining voluntary conciliation and compliance[.]" Johnson, 931
F.2d at 209-10 (citation omitted). The Agreement between Defendant Keena and Defendant B.G.
Lenders Service is itself an indication that the parties share at least some interests. Defendant
B.G. Lenders Service was paying Defendant Keena to share certain interests and fulfill them for
its company. For example, the Agreement provides that, "[t]he parties intend that this
employment relationship be one by which the traditional duties and rights of an employer with
respect to the Employees are allocated between [B.G. Lenders Service] and [Keena] in the
manner set forth herein." See Dkt. No. 42-11 at 1, § I. It is the nature of these shared interests
that determines whether the second Johnson factor weighs in favor of Plaintiff or Defendant.
According to Defendant Keena, it was responsible for providing payroll, benefits
management, and human resources services to Defendant B.G. Lenders Service. See Dkt. No. 4210 at ¶ 8. It is the human resources component of these services that is of particular relevance to
the second Johnson factor. The Agreement gave Defendant Keena "the authority to hire all
Employees assigned to [B.G. Lenders Service], subject to the terms of any collective bargaining
agreement which may exist." See Dkt. No. 42-11 at 5, § IV(A). Additionally, Defendant Keena
"retain[ed] a right of direction and control of the Employees consistent with its role as a coemployer of the Employees." See id. at 5, § IV(B). Defendant B.G. Lenders Service was only
left with "control over (i) the day-to-day job duties of the Employees, and (ii) the worksite at
which, or from which, the Employees perform services." See id. at 6, § IV(B). This balance of
power gave Defendant Keena "the right to terminate the employment of an Employee with
[Keena] or reassign the Employee to another Client." See id. at 6, § IV(D). The terms of the
40
Agreement, therefore, gave Defendant Keena extensive supervisory control over the employees
working for Defendant B.G. Lenders Service. Such an arrangement demonstrates that Defendants
share an identity of interest when it comes to making personnel decisions. It was Defendant
Keena's authority over personnel decisions that enabled it to take "appropriate disciplinary action,
up to and including discharge," when remedying workplace discrimination, meaning that
Defendants also shared an identity of interest with respect to conciliation and compliance
surrounding claims of discrimination. See Dkt. No. 42-12 at 8; see also Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1242 (2d Cir. 1995) ("[The unnamed defendant] approves all
personnel decisions at [the named defendant], and thus [the unnamed defendant] and [the named
defendant] have identical interests with respect to conciliation and compliance"). The
Agreement's allocation of personnel responsibilities, therefore, favors Plaintiff with respect to the
second Johnson factor.
In addition to provisions dealing with personnel responsibilities in general, some portions
of the Agreement specifically address EEOC compliance. Defendant Keena provides Defendant
B.G. Lenders Service with various services meant to ensure compliance with laws against
workplace discrimination. These include "[e]mployee complaint and dispute resolution[,]"
"interpretation of and compliance with local, state and federal employment laws and
regulations[,]" and "[t]raining workshops covering employment law compliance, safety." See
Dkt. No. 42-11 at 40, Ex. F. In the event that any administrative action or litigation related to
workplace discrimination were to arise, the Agreement specifically stated that Defendant B.G.
Lenders Service and Defendant Keena would collaborate in remedying the situation:
[B.G. Lenders Service] acknowledges that it is essential to
[Keena's] performance under this Agreement that [Keena] have
complete knowledge of any government investigation or inquiry or
private adversary action which could in any manner impact upon
41
the duties contemplated by this Agreement. . . . [B.G. Lenders
Service] agrees to cooperate with [Keena] in the investigation,
resolution, and defense of any such investigation or inquiry or
private adversary action in which [Keena] or any of its affiliated
entities, shareholders, officers, directors, agents and representatives
are named or which could in any manner impact upon the types of
duties contemplated in this Agreement.
See id. at 13-14, § IX(L) (emphasis added).
This language demonstrates that Defendant B.G. Lenders Service was paying Defendant
Keena to oversee and manage its company's response to workplace discrimination claims, and
their interests in any such response were contractually linked. As such, Defendants share an
identity of interest with respect to conciliation and compliance with the EEOC, and the second
Johnson factor weighs heavily in favor of Plaintiff.
The Agreement's indemnity provisions did, in fact, extend to "any and all claims made by
Employees resulting from any . . . charges of discrimination; wrongful termination, or other laborrelated causes of action; and claims of sexual harassment." See id. at 15, § X(A). The indemnity
provisions do not negate the fact that Defendants jointly endeavored to enact and carry out
policies to minimize the occurrence of workplace harassment and, therefore, minimize the
number of incidents that could potentially give rise to these types of damages. Moreover,
Defendants agreed to cooperate in defending each other between courts and administrative
agencies. Resolving any complaints through "voluntary conciliation and compliance" is the
means by which both these goals are met. See Johnson, 931 F.2d at 209-10. The existence of the
indemnity provisions, therefore, does not change the fact that Defendants share interests in this
respect.
As the Court previously noted, the second Johnson factor acknowledges that it is not
always necessary for an unnamed defendant to be involved in the EEOC's voluntary compliance
42
session because the named defendant, who was present for that session, may have shared interests
with the unnamed defendant and represented those interests to the EEOC. See Johnson, 931 F.2d
at 209-10 (quoting Glus I, 562 F.2d at 888). The more closely the named and unnamed
defendants share interests, the less likely the unnamed defendant's absence makes litigation
inevitable. The second Johnson factor's evaluation of shared interests, therefore, measures the
likelihood that Title VII's goal of voluntary compliance will be achieved.
In the case at hand, not only did Defendant B.G. Lenders Service represent Defendant
Keena's interests in the administrative process, Defendant Keena eventually represented its own
interests. Defendant Keena was admitted into the voluntary conciliation and compliance process
and provided information to the EEOC. See Dkt. No. 42-5 at 1; Dkt. No. 42-6 at 1. On
September 30, 2011, the EEOC determined that there was reasonable cause to believe that
Defendants B.G. Lenders Service and Keena had discriminated against Plaintiff. See Dkt. No.
42-7 at 1-2. The voluntary conciliation process lasted until December 23, 2011, at which point
the EEOC decided its conciliation attempts were unsuccessful. See Dkt. No. 42-8 at 1. By
representing its own interests during the conciliation process, Defendant Keena ensured that the
second Johnson factor unambiguously weighs in Plaintiff's favor.
Based on the foregoing, the Court finds that the second factor weighs extremely heavily in
favor of Plaintiff.
iii. Actual Prejudice Suffered by the Unnamed Defendant
The third Johnson factor asks "whether its absence from the EEOC proceedings resulted
in actual prejudice to the interests of the unnamed party[.]" Johnson, 931 F.2d at 210 (quoting
Glus I, 562 F.2d at 888). This factor weighs strongly in favor of the plaintiff if the unnamed
43
defendant had actual notice of the EEOC charge. See Tarr, 958 F. Supp. at 795 (citation omitted)
("The third factor subsumes the underlying issue of notice. Courts have held that a plaintiff's
failure to name or include a party in the agency complaint does not prejudice that party where it
had notice of the claims against it and the opportunity to intervene") (citation omitted). This
interpretation has been widely adopted by the courts throughout the Circuit. See Zhao, 472 F.
Supp. 2d at 306; Parker, 2004 U.S. Dist. LEXIS 23526 at *11. The third factor weighs in favor
of the unnamed defendant when it did not have an opportunity to be present at the EEOC
proceedings. See, e.g., Kearney v. Kessler Family LLC, No. 11-CV-006016, 2011 U.S. Dist.
LEXIS 74159, *10 (W.D.N.Y. July 11, 2011); Manos v. Geissler, 377 F. Supp. 2d 422, 427
(S.D.N.Y. 2005); Gallagher v. IBEW, 127 F. Supp. 2d 139, 143-44 (N.D.N.Y. 2000).
Defendant Keena clearly had actual notice of Plaintiff's EEOC charge. The EEOC
received Plaintiff's initial charge naming Defendant B.G. Lenders Service on December 8, 2008.
See Dkt. No. 42-3 at 1-2. According to the Agreement, Defendant B.G. Lenders Service was
required to ensure that Defendant Keena "[had] complete knowledge of any government
investigation or inquiry or private adversary action which could in any manner impact upon the
duties contemplated by this Agreement." See Dkt. No. 42-11 at 13-14, § IX(L). Defendant B.G.
Lenders Service discussed its relationship with Defendant Keena in a letter sent to the EEOC on
January 1, 2009. See Dkt. No. 53-3 at 1-2. This led Defendant Keena to submit information to
the EEOC about its relationship with Plaintiff. See Dkt. No. 47-1 at 2. This proves that
Defendant Keena was aware of Plaintiff's EEOC charge even if Defendant B.G. Lenders Service
had disregarded its contractual obligation to keep Defendant Keena informed.
Defendant Keena was later explicitly named in Plaintiff's "Amended Charge of
Discrimination" received by the EEOC on August 24, 2009. See Dkt. No. 42-4 at 1-2. The
44
amended charge alleged specific discriminatory action by Defendant Keena. See id. On
September 1, 2009, Defendant Keena received a letter from the EEOC informing it of the
amended charge. See Dkt. No. 42-5 at 1. Defendant Keena submitted a response on September
16, 2009. See Dkt. No. 42-6 at 1. On September 30, 2011, the EEOC sent a letter to Plaintiff and
both Defendants explaining that it had determined that there was reasonable cause to believe that
Defendants had discriminated against Plaintiff. See Dkt. No. 42-7 at 1-2. A period of voluntary
conciliation was entered into, but it ended on December 23, 2011, when the EEOC determined
that the efforts were not fruitful. See Dkt. 42-8 at 1.
Despite the fact that it was present throughout much of the EEOC administrative process,
Defendant Keena alleges that it was unfairly prejudiced during the process. See Dkt. No. 43-1 at
20-22. Defendant Keena claims that the EEOC did almost all of its investigative work during the
approximately eight months between Plaintiff's initial charge and her amended charge. See id. at
20-21. By that point, Defendant Keena claims that the EEOC had already determined that
Defendant B.G. Lenders Service had discriminated against Plaintiff, and the EEOC simply
assumed that Defendant Keena was also liable once Defendant Keena was named in Plaintiff's
amended charge. See id. This argument is not supported by the record. Almost immediately
after Defendant Keena was named in Plaintiff's amended charge, the EEOC gave it an opportunity
to respond. See Dkt. No. 42-5 at 1. Defendant Keena took advantage of that opportunity, see
Dkt. No. 42-6 at 1, and the EEOC did not issue its reasonable cause determination until over two
years after it received Plaintiff's amended charge. See Dkt. No. 42-7 at 1-2.
Defendant Keena attempts to support its assertion that the EEOC did not adequately
investigate its involvement in any discrimination against Plaintiff by pointing to the fact that
Keena was only mentioned once by name in the body of the EEOC's determination letter. See
45
Dkt. No. 42-7 at 2; Dkt. No. 43-1 at 21. Defendant Keena also points to the fact that the EEOC
often uses the singular version of the word "Respondent" in its determination letter, rather than
the plural form to make clear that both Defendants were being discussed. See Dkt. No. 42-7 at 12; Dkt. No. 43-1 at 21-22. The EEOC's determination letter, however, is addressed to both
Defendant Keena and Defendant B.G. Lenders Service and names both as Respondents. See Dkt.
No. 42-7 at 1. In deciding this summary judgment motion, in which all inferences must be drawn
in favor of Plaintiff, Defendant Keena cannot use purportedly poor drafting and grammar to
establish that the EEOC's investigation was inadequate.
Defendant Keena also alleges that it was prejudiced because "[t]he EEOC never made a
conclusion supported by the evidence" about its liability for the discrimination against Plaintiff.
See Dkt. No. 43-1 at 21. This is little more than an allegation that the EEOC did a bad job
investigating Plaintiff's charge. Defendant Keena was part of the administrative process for over
two years. Defendant Keena's conclusory assertion is insufficient to call into question the
EEOC's determination at this stage.
As discussed, Defendant Keena had actual notice of the investigation, and actual notice
creates the presumption that the third Johnson factor weighs in favor of Plaintiff. Defendant
Keena has not put forth sufficient facts to rebut this presumption. As such, the Court finds that
the third factor weighs heavily in Plaintiff's favor.
iv. Fourth Johnson Factor4
There is little undisputed evidence related to this section. See Dkt. No. 60 (in a text
order dated April 3, 2013, Magistrate Judge Treece admonished Defendant Keena in the
following manner: "This Court advised the parties during the Rule 16 Conference that I would not
stay discovery on the filing of a dispositive motion during the discovery period. That instruction
4
(continued...)
46
The fourth Johnson factor asks "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, 931 F.2d at 210 (quoting Glus, 562 F.2d at 888). Whether the plaintiff was represented
by counsel and what level of Title VII litigation experience that her counsel had is relevant to
analyzing this factor. See Manzi, 62 F. Supp. 2d at 787-88. The circumstances relevant to this
factor are more disputed, and consequently less certain, than the circumstances related to any
other portion of the Court's identity of interest analysis. It is not entirely clear what
representations were made to Plaintiff about her relationships with Defendant B.G. Lenders
Service and Defendant Keena. Since the facts suggest that Plaintiff might have been told that
Defendant B.G. Lenders Service was the preferred point of contact for her human resources
concerns, the Court finds that the fourth factor weighs in Plaintiff's favor.
Defendant Keena claims that Plaintiff received and distributed to other employees a
Handbook explaining the relationship between Defendants B.G. Lenders Service and Keena. See
Dkt. No. 43-1 at 23. Plaintiff denies ever receiving or distributing such a handbook. See Dkt. No.
47 at ¶ 17; Dkt. No. 49 at ¶¶ 6-7.
The Handbook encourages employees to contact Defendant Keena at several specific
instances. See Dkt. No. 42-12 at 18, 24, 26. These sections of the Handbook deal with welfare
benefits, retirement plans, confidentiality, and general information. See id. Each of these
sections encourages employees to contact a specific person at Defendant Keena and makes no
mention of anyone from Defendant B.G. Lenders Service who should be contacted first. See id.
4
(...continued)
could not have been any clearer. Defendant Keena ignored that instruction, decided to pursue a
dispositive motion prematurely, and on its own put discovery on hold. Such decisions were
almost at their peril").
47
For example, the Handbook's section on retirement plans reads, "Consult with the Benefits
Manager @ Keena Staffing for details concerning retirement plan options." See id. at 18. The
section of the Handbook dealing with discrimination and harassment, however, gives different
instructions. Under the subsection entitled "Complaint Procedure[,]" the Handbook provides as
follows:
If you believe you have been harassed on the job, or if you are
aware of the harassment of others, you should provide a written or
verbal complaint to your Supervisor or to any other Supervisor as
soon as possible. If you choose, you may make your complaint
directly to the Director of Human Resources or President at Keena
Staffing.
See id. at 8. The Handbook subsequently informs employees that they may contact the EEOC
directly instead. See id. at 9. While this portion of the Handbook does inform employees that
Defendant Keena is available to help with their problems, it stands in marked contrast with the
other sections of the Handbook that urge employees to contact Defendant Keena only. The
difference in language could give employees the impression that Defendant Keena prefers
Defendant B.G. Lenders Service to handle discrimination and harassment claims at the outset.
This would cause the fourth factor to weigh in Plaintiff's favor.
Moreover, Plaintiff's specific hiring circumstances are also relevant to this factor.
Plaintiff was interviewed by Defendant B.G. Lenders Service at its office after responding to a
help wanted advertisement that Defendant B.G. Lenders Service put in the local paper. See Dkt.
No. 47 at ¶ 15; Dkt. No. 42-13 at 1. Defendant Keena was not present at this interview. See Dkt.
No. 42-13 at 1. This hiring procedure seems atypical because the Agreement states that
employees are hired through Defendant Keena and assigned to different clients. See Dkt. No. 4211 at 5, § IV(A). Since the Agreement's language suggests that Plaintiff was employed through
an atypical hiring process, she may have thought that any intimations that employees could
48
communicate their concerns to Defendant Keena did not apply to her. As of September 15, 2009,
even after Plaintiff filed her amended charge, Defendant B.G. Lenders Service claimed that
Plaintiff was not a Defendant Keena employee. See Dkt. No. 42-13 at 1. If Defendant B.G.
Lenders Service was claiming that Plaintiff was never a Defendant Keena employee, it would
seem unlikely that it ever encouraged Plaintiff to bring her harassment and discrimination
concerns to Defendant Keena. Based on these circumstances, there is no evidence that Plaintiff
was encouraged to make any discrimination complaints to Defendant Keena.
Plaintiff was represented by Judd during the EEOC's administrative process. See Dkt. No.
42-3 at 1-2. Judd had no apparent experience in Title VII litigation specifically or employment
law generally. Defendant B.G. Lenders Service wrote to the EEOC telling the agency that
Plaintiff was not a Keena employee. See Dkt. No. 42-13 at 1. In light of this representation, it
would be unfair to fault Plaintiff's lawyer for not initially comprehending the employment
relationship between the parties.
Considering all the evidence before the Court, including the complex nature of
Defendants' co-employer relationship, the Court finds that Plaintiff's representation by legal
counsel during the administrative process does not prevent the fourth Johnson factor from
weighing in her favor.
v. Totality of the Circumstances
Since the second, third, and fourth Johnson factor all weigh in favor of Plaintiff, the Court
finds that she has met her burden on the identity of interest exception. See Donovan v. Eastern
Milk Producers Coop Ass'n, 971 F. Supp. 674, 680 (N.D.N.Y. 1997). Since the Court has
concluded that Defendants Keena and B.G. Lenders Service shared an identity of interests. The
49
Court denies Defendant Keena's motion for summary judgment as to Plaintiff's Title VII claims.
C.
New York Human Rights Law (NYHRL) Claims
According to New York State law, claims alleging violations of NYHRL must be filed in
court within three years of the date on which the alleged violation occurred. See N.Y. C.P.L.R. §
214(2); see also Murphy v. Am. Home Prods., 58 N.Y.2d 293, 307 (1983); Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). The Second Circuit has yet to take a
definitive stance on whether the statute of limitations for NYHRL claims is tolled while a
plaintiff's charge is pending before the EEOC. See Esposito v. Deutsche Bank AG, No. 07 Civ.
6722, 2008 U.S. Dist. LEXIS 101460, *14 (S.D.N.Y. Dec. 15, 2008). Numerous district courts in
the Circuit have, however, allowed for such tolling. See id. at *14-*15 (quoting Lee v. Overseas
Shipping Corp., No. 00 Civ. 9682, 2001 U.S. Dist. LEXIS 10622, *28 (S.D.N.Y. July 30, 2001);
see also Capobianco v. Sandow Media Corp., No. 11 Civ. 3163, 2012 U.S. Dist. LEXIS 143337,
*14-*15 (S.D.N.Y. Sept. 28, 2012) (citations omitted); Sloth v. Constellation Brands, Inc., 883 F.
Supp. 2d 359, 373 (W.D.N.Y. 2012) (citations omitted); Burns v. County of Schenectady, No. 07CV-0776, 2009 WL 2568546, *4 (N.D.N.Y. Aug. 18, 2009) (citations omitted); Sundaram v.
Brookhaven Nat'l Labs., 424 F. Supp. 2d 545, 565 (E.D.N.Y. 2006) (citations omitted). Contrary
to Defendant Keena's assertion, this tolling applies even to claims that follow untimely filed
EEOC charges. See Burns, 2009 WL 2568546 at *5; Sundaram, 424 F. Supp. 2d at 565-66.
Based on this authority, the Court finds that the tolling rule applies to Plaintiff's case and makes
her NYHRL claims against Defendant Keena timely.
Plaintiff was terminated on August 25, 2008. See Dkt. No. 47 at ¶ 4. She filed her
complaint with this Court against Defendants Keena and B.G. Lenders Service on March 16,
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2012. See id. at ¶ 32. Ordinarily, this would mean that Plaintiff's NYHRL claims against
Defendant Keena are time-barred because her termination occurred more than three years before
she filed her complaint, or prior to March 16, 2009. But the NYHRL's three-year statute of
limitations was tolled during the time which her charge against Defendant Keena was pending
before the EEOC. See Burns, 2009 WL 2568546 at *5; Sundaram, 424 F. Supp. 2d at 565-66.
Plaintiff filed her amended charge naming Defendant Keena with the EEOC on August 24, 2009.
See Dkt. No. 42-4 at 1. On December 23, 2011, the EEOC notified Plaintiff that it was
relinquishing her case and that she had the right to sue Defendants. See Dkt. No. 42-9 at 1. This
means that Plaintiff's claim against Defendant Keena was pending before the EEOC for 852 days.
Applying these additional 852 days to the NYHRL's statute of limitations, any claims based on
discrimination occurring after November 15, 2006, are timely. As such, Plaintiff's NYHRL
claims against Defendant Keena related to her August 25, 2008 termination are timely.
Defendant Keena cites Burns for the principle that if a charge is untimely filed with the
EEOC, the statute of limitations for any related NYHRL claim is not tolled for the duration of the
EEOC's administrative process. Burns' holding, however, comes to the exact opposite
conclusion. See Burns, 2009 WL 2568546 at *5.
In Burns, the plaintiff alleged that her employer was sexually harassing her. See id. at *1.
This led the plaintiff to file an internal grievance with her employer complaining about the
harassment. See id. On July 22, 2004, after she had filed the internal grievance, the plaintiff
discovered that her employment status had been changed from permanent to temporary. See id. at
*5. The plaintiff filed an EEOC charge against her employer on December 10, 2004, alleging
sexual harassment. See id. at *1. On June 8, 2005, the plaintiff filed a second EEOC charge
against her employer, alleging retaliation based on the fact that her employment status had been
51
changed after she brought her internal grievance. See id. The EEOC issued the plaintiff a notice
of her right to sue on May 14, 2007. See id. The plaintiff filed her complaint against her
employer in federal court on July 31, 2007, alleging both sexual harassment and retaliation. See
id.
The Burns court found that the plaintiff's second EEOC charge, filed on June 8, 2005,
alleging retaliation, was filed more than 300 days after July 22, 2004, the date she learned about
the alleged retaliation against her. See id. at *5. The court, therefore, decided that the plaintiff's
second EEOC charge was untimely. See id. Since the plaintiff's complaint was filed with the
court on July 31, 2007, the plaintiff's NYHRL claims based on the July 22, 2004 retaliation would
ordinarily have fallen outside the three-year statute of limitations. See id. at *5 n.3. The court
decided, however, that the statute of limitation on the plaintiff's NYHRL claim was tolled for the
period between June 8, 2005 and May 14, 2007, the time during which the EEOC was
investigating the retaliation charge. See id. at *5 n.4. This tolling period allowed the plaintiff to
litigate her NYHRL claims based on retaliation even though she could not litigate her Title VII
claims based on retaliation. See id. at *5. Ultimately, the plaintiff's NYHRL claims that would
have been untimely were rendered timely by the tolling that resulted from an untimely EEOC
complaint. See id.; see also Sundaram, 424 F. Supp. 2d at 559-60, 565-66.
As illustrated by Burns and Sundaram, even an untimely EEOC charge can serve as the
basis for tolling the NYHRL's three-year statute of limitations. As such, even if Plaintiff's
amended EEOC charge naming Defendant Keena was untimely, the appropriate tolling allows
Plaintiff to bring her NYHRL claims against Defendant Keena.
Based on the foregoing, Defendant Keena's motion for summary judgment dismissing
Plaintiff's NYHRL claims against it is denied.
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IV. CONCLUSION
After reviewing the entire record in this matter, the parties submissions, and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant Keena's motion for summary judgment is DENIED; and the
Court further
ORDERS that the Clerk of Court shall serve a copy of this Memorandum-Decision and
Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 30, 2013
Albany, New York
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