On August 28, 1992, the EEOC completed its investigation of the discrimination charge and notified Pommier of her right to institute a civil action. As required by statute, Pommier filed this action within ninety days of receiving her right-to-sue letter. Count I of her complaint charges JLE/Federated, Shkoler, Stenson and Yenglin with sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In Count II, Pommier alleges that JLE/Federated and Yenglin violated the Equal Pay Act, 29 U.S.C. § 206(d)(1), by paying her a lower salary and fringe benefits than male employees in similar positions. Count III sets forth against all defendants a claim of sex discrimination in violation of Title VII. In Count IV, Pommier asserts that each defendant has violated both Title VII and the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), by retaliating against her for filing internal sexual harassment and sexual discrimination charges. Finally, Count V charges all defendants with intentional infliction of emotional distress in violation of Illinois common law.
Defendants' motion raises several challenges to Pommier's complaint. First, the individual defendants (Shkoler, Stenson and Yenglin) assert that they must be dismissed from those claims brought under Title VII of the Civil Rights Act of 1964 (Counts I, III and a portion of IV) because they were not named as respondents in the EEOC charge. Second, Yenglin requests that Count II of Pommier's complaint be dismissed against him in his individual capacity as it alleges actions taken only in his official capacity. Third, arguing that the claim is preempted by the Illinois Workers Compensation Act, JLE/Federated prays that it be dismissed from Count V. Additionally, all defendants contend that Count V fails to state a claim for intentional infliction of emotional distress. Finally, JLE/Federated moves this court to strike Pommier's request for punitive and compensatory damages for alleged violations of Title VII. We address each issue seriately.
A. Motion for Summary Judgment
1. Standard of Review
Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).
2. Respondents Named in the EEOC Charge
Ordinarily, a party not named as a respondent in an EEOC charge may not be sued in a Title VII action. 42 U.S.C. § 2000e-5(f)(1); Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989); Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1710, 72 L. Ed. 2d 134 (1982); Le Beau v. Libby-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir. 1973). This administrative filing requirement serves a two-fold purpose: (1) to notify the charged party of the alleged violation; and (2) to afford that party an opportunity to participate in conciliation and to comply voluntarily with Title VII. See Schnellbaecher 887 F.2d at 126; Eggleston, 657 F.2d at 905; Stephenson v. CNA Fin. Corp., 775 F. Supp. 238, 239 (N.D. Ill. 1991). Nonetheless, it is not a jurisdictional prerequisite. Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir. 1991). Rather, the requirement is comparable to a statute of limitations, and is subject to equitable modification. Id. at 470. To be sure, courts consistently recognize an exception to the general rule where the unnamed party or parties had adequate notice of the charge, and had an opportunity to participate in conciliation. Schnellbaecher 887 F.2d at 126; Eggleston, 657 F.2d at 905; see also Feng v. Sandrik, 636 F. Supp. 77, 81 (N.D. Ill. 1986). Additionally, courts consider whether strictly holding a plaintiff to the filing requirement could deprive her of redress of any legitimate grievances. Eggleston, 657 F.2d at 907 (citing Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)); Stephenson, 775 F. Supp. at 239; Feng, 636 F. Supp. at 81.
Whether a party has been named as a respondent in an EEOC charge typically is a straightforward question. The instant case is the exception. Complicating our inquiry is that Pommier effectively filed two charges of discrimination, the first dated January 27, 1992 and the second March 11, 1992. The first charge clearly named Shkoler, Stenson and Yenglin as respondents. However, through no fault of Pommier, this charge was not served on any of the named respondents. Standing in the way of Pommier's desire to proceed against her individual supervisors was an established EEOC policy to name only the charging party's corporate employer. Pursuant to this policy, an EEOC investigator forced Pommier to sign a recomposed charge, such charge deleting all references to Shkoler, Stenson and Yenglin. As with the first charge, the rewritten charge was not served upon the individual defendants.
Although yet to be addressed by the Seventh Circuit, at least three courts within this district have confronted a Title VII claim brought against an individual named in the plaintiff's initial charge of discrimination, but not in the charge as rewritten and issued by the EEOC. The results were mixed. Compare McMullin v. Harrole, No. 91-20151, 1992 U.S. Dist. LEXIS 11409 (N.D. Ill. Apr. 10, 1992) (Roszkowski, J.) (dismissing unnamed party); Mufich v. Commonwealth Edison Co., 735 F. Supp. 897 (N.D. Ill. 1990) (Bua, J.) (same) with Torretto v. I.B. Diffusion, L.P., No. 92-2758, 1992 U.S. Dist. LEXIS 17333 (N.D. Ill. Nov. 10, 1992) (Plunkett, J.) (allowing suit against unnamed party). Defendants attempt, not without some force, to reconcile these differing opinions on the basis of whether the unnamed parties were provided sufficient notice of the charge and an opportunity to participate in the conciliation process. Indeed, unlike the unnamed parties in McMullin and Mufich, the unnamed party in Torretto filed an appearance in response to the EEOC charge, from which we can infer adequate notice and an opportunity to take part in the conciliation proceedings. Torretto, slip op. at *11.
This court, however, need not determine if Shkoler, Stenson and Yenglin received adequate notice and an opportunity to partake in EEOC conciliation proceedings. Indeed, even if the individual defendants had received adequate notice and an opportunity to participate in conciliation, Pommier nonetheless would be precluded from holding her supervisors personally liable for the alleged Title VII violations. As such, we cannot excuse the failure to name the individuals as respondents in the charge of discrimination as issued, despite the fact that such failure may be attributable solely to the EEOC policy. Cf. Stephenson, 775 F. Supp. at 240 (no equitable modification of filing requirement where prevailing plaintiff may receive full measure of relief against remaining corporate defendant).
Title VII prohibits "employers" from discriminating against individuals on the basis of "race, color, religion, sex or national origin." 42 U.S.C. §§ 2000e-2(a),(b). As defined by the statute, an "employer" is "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year, and any agent of such person.. . ." Id. § 2000e(b) (emphasis supplied). To date, the Seventh Circuit has yet to address the question of whether individual supervisory or management level officers are "employers" within the meaning of Title VII. The varying responses of other courts are detailed in Bertoncini v. Schrimpf, 712 F. Supp. 1336 (N.D. Ill. 1989), and will not be repeated here. The only court within this district to address the issue has held that such supervisors are not "employers" against whom a Title VII action may be maintained in their individual capacities. Weiss v. Coca-Cola Bottling Co., 772 F. Supp. 407, 410-11 (N.D. Ill. 1991) (Duff, J.). The court in Weiss reasoned that, to the extent that such a supervisor is an "agent" of the employer, such individual stands only as a surrogate for the employer and, hence, may only be held liable in their official capacity. Id. at 411. This result is bolstered by the fact that the remedies available under Title VII (prior to the 1991 amendment) are remedies which an employer, not an individual, would generally provide--i.e., back-pay, reinstatement and other equitable relief if warranted. Id. Thus, from the prevailing plaintiff's perspective, the supervisor is an unnecessary party to the Title VII action as the full measure of available relief is generally obtainable against the remaining corporate defendant. Such is the circumstance in the present case. Finding persuasive the analysis set forth in Weiss, we grant summary judgment in favor of Shkoler, Stenson and Yenglin on Pommier's Title VII claims contained in Counts I, III and IV of her complaint.
B. Motion to Dismiss
1. Standard of Review
A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. E. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group. Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).
2. Equal Pay Act (Count II)
The Equal Pay Act provides in pertinent part:
No employer. . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility . . . .