The opinion of the court was delivered by: BUCKLO
The plaintiff, James E. Harris, brought suit against the defendants, Stallman Trucking Inc.
("Stallman Trucking") and Dupage Paper Stock, Inc. ("Dupage Paper Stock"), for violations of Title VII of the Civil Rights Act. On November 5, 1996, I granted an agreed motion to dismiss Stallman Trucking. Dupage Paper Stock now moves to dismiss. I convert the motion to a motion for summary judgment and, for the following reasons, deny it.
Mr. Harris is a Hebrew Pentecostal. On April 7, 1995, Mr. Harris was hired as a truck driver, having been promised that his assignments would not conflict with his Friday Sabbath observance. Despite Mr. Harris' repeated requests, this promise was not kept and in June 1995, Mr. Harris complained to the defendants' president. On August 24, 1995, Mr. Harris was fired for purportedly performance-related reasons.
Mr. Harris filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on January 23, 1996. He named only Stallman Trucking whom he believed to be his employer. It turns out, however, that the plaintiff was technically employed by Dupage Paper Stock. The EEOC issued the right-to-sue Stallman Trucking letter on January 29, 1996. Mr. Harris brought suit on April 25, 1996, naming Stallman Trucking and DuPage Paper Stock and charging them with religious discrimination and retaliatory dismissal, both violations of 42 U.S.C. §§ 2000e et seq. On November 5, 1996, I granted an agreed motion to dismiss Stallman Trucking. Dupage paper Stock now moves to dismiss.
DuPage Paper Stock argues that it should be dismissed from the case because Mr. Harris did not name it in the EEOC charge.
This issue cannot be resolved without information outside the complaint. Both sides refer to and submit such information. Since most recently, this Circuit has characterized the issue of whether a party unnamed in the EEOC charge is a proper Title VII defendant as nonjurisdictional, Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989), but see Eggleston v. Chicago Journeymen Plumbers', 657 F.2d 890, 905 (7th Cir. 1981) (jurisdictional), I can rely on extraneous materials only in the context of a motion for summary judgment. Therefore, I convert the present motion to dismiss to a motion for summary judgment. Fed. R. Civ. P. 12(b). Summary judgment is proper when 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).
A party not named in an EEOC charge may not ordinarily be sued under Title VII. Schnellbaecher, 887 F.2d at 126. The policy underlying this requirement is that an EEOC charge "provides notice to the party to be sued, and . . . affords that party an opportunity to participate in conciliation in an effort to voluntarily comply with Title VII." Bright v. Roadway Servs., Inc., 846 F. Supp. 693, 696 (N.D. Ill. 1994). Thus, when these policy concerns are satisfied, an exception to the general rule exists. Eggleston, 657 F.2d at 904-908. "The purpose behind this exception is to prevent frustration of the goals of Title VII by not requiring procedural exactness in stating the charges," particularly of pro se complainants. Id. at 905-06. "The decisive factor in determining if [this exception applies] . . . is whether the unnamed defendant had notice that it was subject to suit[, because w]hen a party has notice of the possibility of a discrimination action against it, that party has the opportunity, or at least the incentive, to conciliate." Bright, 846 F. Supp. at 697 (citing Eggleston, 657 F.2d at 906) (italics in the original).
In Eggleston, the EEOC charge, naming Local 130, "clearly complained of discriminatory exclusion from the apprenticeship program." 657 F.2d at 906. The unnamed defendant, the JAC, "administered the only apprentice program of record." Five members of the ten person JAC board were appointed by Local 130, and were serving as officers within Local 130 and the JAC. Holding that the notice requirement was satisfied, the Court concluded that "the JAC knew or should have known of the EEOC charge[,]" which "was sufficient to apprise . . . the JAC of the alleged discriminatory practices." Id.
The instant EEOC charge, filed by Mr. Harris pro se, clearly complains about discriminatory and retaliatory conduct of his employer, identified as Stallman Trucking.
Mr. Curran is the controller of Stallman Trucking and DuPage Paper Stock, as well as the Treasurer of Stallman Trucking.
He handles employee matters for both companies. Mr. Curran knew that Charles Stallman, the Traffic Manager of Stallman Trucking, hired Mr. Harris. Mr. Curran knew that Stallman Trucking employed only two individuals, himself and Mr. Stallman. DuPage Paper Stock operates out of three facilities, including 626 East 111th Street, Chicago. This address appears on Mr. Harris' EEOC charge. The EEOC mailed a copy of the right-to-sue Stallman Trucking letter to 262 East 111th Street, it was faxed to Mr. Curran's Office, and he brought it to the attention of company counsel. Therefore, it would appear likely that the EEOC charge itself followed the same communication route. Assuming this was the case, upon receipt of the EEOC charge naming Stallman Trucking, Mr. Curran, and, through him, DuPage Paper Stock, knew or should have known that Mr. Harris was really complaining about DuPage Paper Stock's conduct, which "would be subject to EEOC inquiry." Eggleston, 657 F.2d at 906. "To the extent [that] a blind eye was turned so that a motion such as this could be filed, that practice will not be encouraged here." Johnson v. County of Cook, 864 F. Supp. 84, 87 (N.D. Ill. 1994).
DuPage Paper Stock insists that it does not fall under the exception because it did not have a meaningful opportunity to participate in conciliation. Admittedly, Eggleston explored "whether [the unnamed defendant] . . . had been given an opportunity to participate in conciliation proceedings aimed at a voluntary compliance with Title VII." 657 F.2d at 906. This inquiry was only necessary, however, because such proceedings actually took place between the plaintiffs and the named defendant. Implicitly, the Court sought to ensure that the formal exclusion of the unnamed defendant from the conciliation process did not prejudice it. Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769, 775 (N.D. Ill. 1993).
In the present case, as in Vakharia, Mr. Harris
received his right-to-sue letter before he and [Stallman Trucking] . . . could enter into the conciliation process. We therefore need not reach the issue of whether the interests of the unnamed defendant were represented adequately during the EEOC proceedings. Since nothing of significance happened while the case was before the EEOC, the unnamed defendant[, DuPage Paper Stock,] could not have been prejudiced by [Mr. Harris'] failure to name
it. See id; see also Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 F. Supp. 943, 948 (S.D.N.Y. 1996) (motion to dismiss unnamed defendant denied where the policy of "encouraging voluntary compliance" was not frustrated because "there was no investigation or effort at conciliation"). In the absence of a conciliation proceeding, notice of allegations of discriminatory conduct is equivalent to an opportunity to conciliate, because "as soon as [DuPage Paper Stock] had notice of the charge, . . . nothing prevented it from attempting to resolve the ...