“What’s in a name? that which we call a rose.

By any other name would smell as sweet.”

                                                                                                                        -William Shakespeare

What do these famous words from Romeo and Juliet, downplaying the importance of names, have to do with discrimination litigation under Title VII of the Civil Rights Act of 1964? Despite Juliet’s musings, names play an important role for an employee who, in filing a charge of discrimination, must satisfy Title VII’s naming requirement. This is because an employee who fails to properly name defendants in a charge of discrimination provides the employer a defense to later litigation.

As a general rule, a party who has not been named in a charge filed with the U.S. Equal Employment Opportunity Commission (EEOC) may not be sued under Title VII. For some employees, complying with this general rule may be easy. With the growing complexity of corporate ownership structures, however, an employee may misidentify his or her employer in filing a charge. The practical effect of the employee’s mistake is that it gives the misidentified employer a defense to the litigation—namely that the employee failed to exhaust his or her administrative remedies. Judicially created exceptions to Title VII’s naming requirement exist, but some courts have limited those defenses to employees unrepresented by counsel during the administrative phase.

In Equal Employment Opportunity Commission v. Simbaki, Limited, (September 17, 2014), the Fifth Circuit Court of Appeals considered the issue of whether the judicially recognized identity-of-interest and actual-notice exceptions to Title VII’s naming requirement were available to parties who had been represented by counsel during the charge phase. The Fifth Circuit held that these exceptions were not limited to pro se parties, and reversed the district court’s grant of summary judgment in favor of a franchisor that had not been named in the individuals’ charges.

The EEOC Charges

In Simbaki, Laura Baatz and Kimberly Kulig retained counsel and filed charges of discrimination alleging sexual harassment. Baatz and Kulig had been employed by Simbaki, Ltd., which was owned by Phillip Wattel. Simbaki operated the Berryhill Baja Grill & Cantina on Montrose Street in Houston, Texas, as a franchisee of Berryhill Hot Tamales Corporation (Berryhill Corporate). The charges identified Kulig’s and Baatz’s former employer as “Berryhill Baja Grill” on Montrose Boulevard. The charges specifically complained that Wattel, who they identified as the owner of the restaurant, allegedly harassed them. The charges did not make any reference to Berryhill Corporate.

During its investigation, the EEOC primarily dealt with Wattel and ultimately concluded that he had engaged in harassment. The EEOC filed suit against the Berryhill franchisee on Montrose. Baatz and Kulig intervened and added Wattel, Berryhill Corporate, and an additional Berryhill Montrose entity as defendants.

The district court granted Berryhill Corporate’s motion for summary judgment, finding that Baatz and Kulig had failed to exhaust their administrative remedies because they had not identified Berryhill Corporate in their charges. The court further found that Baatz and Kulig could not rely upon the exceptions to Title VII’s naming requirement because they were represented by counsel in filing their charges. Berryhill Corporate was severed from the lawsuit, and Baatz and Kulig appealed.

The Fifth Circuit’s Ruling

The Fifth Circuit agreed with the district court that Baatz and Kulig had not identified Berryhill Corporate in their charges. The court rejected Baatz’s and Kulig’s argument that the use of Berryhill Corporate’s trade name—“Berryhill Baja Grill”—was sufficient because this trade name was also used by the Berryhill franchisee on Montrose and there was no specific reference to Berryhill Corporate in the body of the charges.

The Fifth Circuit disagreed, however, with the district court’s determination that Baatz and Kulig could not invoke the judicially recognized exceptions to Title VII’s naming requirement simply because they were represented by counsel during the charge phase. The Fifth Circuit found no justification to “[f]ashion[ ] a wholly separate set of exhaustion requirements for pro se parties, rather than simply construing pro se charges more liberally.”

The court reasoned that its holding was consistent with the remedial purpose of Title VII:

The entire point of the judicially-recognized exceptions to the named-party requirement is to permit suits to go forward where, despite the plaintiff’s failure to name the defendant in the charges, the purposes of the named-party requirement have nonetheless been met.

The court described “the purposes of the named-party requirement” as being primarily concerned with actual or constructive notice. Whether a party is represented by counsel during the charge phase has little bearing on this inquiry.

Key Takeaways

The Simbaki decision initially serves as a reminder to employers to consider the effect of Title VII’s naming requirement. Upon receipt of new litigation, refer back to the charge to determine whether the plaintiff correctly named his or her employer. If not, employers may have a defense that the plaintiff failed to exhaust his or her administrative remedies. Assuming the availability of this defense, the Simbaki decision outlines the evidentiary framework for determining whether an employee has satisfied the named-party requirement and if not, whether the identity-of-interest or actual-notice exceptions apply. Consequently, this evidentiary framework should be considered in conducting discovery and in later preparing a dispositive motion.