Senecal v. B.G. Lenders Service LLC (976 F. Supp. 2d 199, 2013)

MEMORANDUM-DECISION AND ORDER

MAE A. D’AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff, Jennifer Senecal, was formerly an employee of Defendant B.G. Lenders Service. Defendant B.G. Lenders Service had a contract with Defendant Keena by which 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, Plaintiffs 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 Plaintiffs 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 Plaintiffs claims against it. Defendant Keena argues that Plaintiffs Title VII claims against it must be dismissed because Plaintiffs amended EEOC charge naming Defendant Keena was untimely. The Court does not decide whether or not Plaintiffs amended charge was untimely. Instead, the Court finds that, even if Plaintiffs amended EEOC charge against Defendant Keena was untimely, Plaintiffs 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 Plaintiffs NYHRL claims against it must be dismissed because they fall outside the applicable statute of limitations. The Court finds that Plaintiffs NYHRL charges do not fall outside the statute of limitations because that statute of limitations was tolled while Plaintiffs amended EEOC charge was pending.

Accordingly, the Court denies Defendant Keena’s summary judgment motion in its entirety and allows all of Plaintiffs 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. Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 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[J” 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. Plaintiffs “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 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 co-employer 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. I. 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 Plaintiffs termination, Defendant Keena and Defendant B.G. Lenders Service were co-employers, as per their co-employer 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-II. 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. 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-l. 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 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.

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. 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. Plaintiffs 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 PEO as an Employee.” Dkt. No. 42-11 at 5, § IV(A). This makes the circumstances surrounding Plaintiffs 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.

Plaintiffs day-to-day duties as Office Manager have been vigorously contested by the parties. Defendant Keena alleges that “Plaintiff had regular communication with Keena ... 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 “AccidenVIncident Investigation Report” for another employee’s accident, an email address change notification for Plaintiff, and Plaintiffs 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 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’ co-employer 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 Plaintiffs employment with Defendant B.G. Lenders Service, specifically “in the summer of 2008,” Plaintiff “was a party to a Family Court child support 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 Plaintiffs 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 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., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505) (other citations omitted). Where the nonmovant 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

I. Title VII Filing Requirement Generally

It is well-established that before filing a Title VII claim in federal court, a plaintiff needs 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)(l). 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. Plaintiffs 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 her termination. Plaintiffs initial charge naming Defendant B.G. Lenders Service, received by the EEOC on December 8, 2008, was, therefore, timely filed. Plaintiffs 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, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). A cursory review of compliance with the EEOC’s filing requirements, therefore, does not end the Court’s consideration of Plaintiffs Title VII claim against Defendant Keena. In fact, there are three exceptions to the general administrative filing deadline that potentially allow Plaintiffs 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, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (footnote omitted). 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 Plaintiffs co-employer 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, 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 Plaintiffs counsel. Knowledge of this relationship, even if information about its exact nature was actively denied by Defendant Keena, should not have prevented Plaintiffs 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 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”).

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 WL 1191558, *26, 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 plaintiffs 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 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 plaintiffs five January 2012 EEOC charges against the franchisees as amended charges which “relate[d] back” to the plaintiffs 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 plaintiffs 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.

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 Plaintiffs 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 Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 905-06 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982)). The identity of interest exception is comprised of the following four factors:

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, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980) (“Glus II ”)). The statutory purpose of eliminating employment discrimination is not the only relevant consideration. Courts should also remember that “[requiring 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 WL 1338663, *2, 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 WL 2664527, *2-*3, 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

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 WL 43773, *3-*5, 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. 785, 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 WL 735062, *7, 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 WL 21878780, *2-*3, 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 WL 272187, *6, 2000 U.S. Dist. LEXIS 2829, *17 (S.D.N.Y. Mar. 10, 2000). Even in 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 plaintiffs 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 WL 162332, *9, 2012 U.S. Dist. LEXIS 5276, *26-*27 (D.Conn. Jan. 18, 2012). In some past instances, a plaintiffs 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 WL 926901, *3, 2007 U.S. Dist. LEXIS 21194, *7 (D.Conn. Mar. 22, 2007) (citations omitted); see also Consolmagno v. Hosp. of St. Raphael, No. 3:11cv109, 2011 WL 4804774, *7, 2011 U.S. Dist. LEXIS 116999, *23 (D.Conn. Oct. 11, 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”).

Of all the districts in this Circuit, the Northern District of New York has displayed the strongest aversion to treating plaintiffs 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 Olverar-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 Olvera-Morales, 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 ....” 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 plaintiffs representation by counsel is not altogether irrelevant to an identity of interest inquiry. See Consolmagno, 2011 WL 4804774 at *7, 2011 U.S. Dist. LEXIS 116999 at *23; Cole v. Cent. Park Sys., No. 09-CV3185, 2010 WL 3747591, *5-*6, 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 plaintiffs 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 plaintiffs lack of knowledge of potential parties against whom EEOC charges may be filed. Johnson, 931 F.2d at 209. The fourth factor deals with plaintiffs 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. Plaintiffs “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 Plaintiffs 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. 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. Plaintiffs 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 Plaintiffs 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.newelland klingebiel.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, Plaintiffs 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

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 VIPs 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 plaintiffs satisfaction of the four-factor identity of interest exception. See Carcasole-Lacal v. Am. Airlines, Inc., No. CV-02-4359, 2003 WL 21525484, *4-*5, 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 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 plaintiffs 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 plaintiffs 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 WL 2671634, *3, 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 plaintiffs 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

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 plaintiffs 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 Plaintiffs termination.

Defendant Keena argues that Plaintiffs 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 Plaintiffs alleged complaints made to Defendant Keena about Defendant Granger’s harassment substantiates this proof. See id. Plaintiff admits to these complaints in the 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 Plaintiffs 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 WL 21525484 at *5, 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 plaintiffs 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 WL 21525484 at *5, 2003 U.S. Dist. LEXIS 11507 at *17-*18 (finding that the plaintiff knew that the unnamed def