Restricting the Substantial Identity Exception Under Title VII’s Exhaustion Requirement

Introduction

Harry A. Bolden, a Black male former billing specialist at CAEI, brought suit against CAEI and its client, Baltimore Gas & Electric Company (“BGE”), alleging race and sex discrimination under Title VII of the Civil Rights Act of 1964. Title VII mandates that an employee must first vent administrative charges with the Equal Employment Opportunity Commission (“EEOC”) or its state counterpart before heading to federal court. Bolden filed an intake charge with the Maryland Commission on Civil Rights (“MCCR”), naming only CAEI. After receiving a “right to sue” letter, he added BGE as a defendant in federal court. BGE moved for summary judgment, arguing Bolden never administratively exhausted his claims against it. The district court agreed; this appeal follows.

Summary of the Judgment

On May 9, 2025, a three-judge panel of the Fourth Circuit, in an unpublished opinion authored by Judge Berner, affirmed the district court’s grant of summary judgment to BGE and dismissed Bolden’s cross-appeal for lack of jurisdiction. Key holdings:

Title VII’s “naming requirement” (42 U.S.C. § 2000e-5(f)(1)) is strict: each alleged discriminator must be named in an administrative charge.
Bolden conceded he did not name BGE in his MCCR charge.
The Fourth Circuit assumed arguendo that the “substantial identity” exception could overcome a naming defect, but held Bolden produced no evidence satisfying it.
Bolden’s new argument—that a passing reference to BGE in his intake form suffices—was forfeited for failure to raise it below.
Bolden’s appeal of the denial of his Rule 59(e) motion was dismissed for lack of jurisdiction because he filed his notice of appeal before that order issued.

Analysis

Precedents Cited

42 U.S.C. § 2000e-5(f)(1) – requires administrative exhaustion by naming each alleged discriminator in a charge.
Fort Bend Cnty. v. Davis, 587 U.S. 541 (2019) – reaffirmed Title VII’s strict exhaustion requirement.
Alvarado v. Board of Trustees, 848 F.2d 457 (4th Cir. 1988) – Fourth Circuit first recognized the “naming requirement.”
Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) – held failure to name a respondent generally dooms a Title VII claim.
Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir. 1977) – articulated the “substantial identity” (or “identity of interest”) exception.
Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) & Eggleston v. Chicago Journeymen Plumbers’ Local 130, 657 F.2d 890 (7th Cir. 1981) – endorsed multi-factor tests to determine when the exception applies.
Campbell v. Boston Scientific Corp., 882 F.3d 70 (4th Cir. 2018) – explained forfeiture of issues not raised in district court.
Wall Guy, Inc. v. FDIC, 95 F.4th 862 (4th Cir. 2024) – clarified that an appeal must be noticed after the district court issues the order from which review is sought.

Legal Reasoning

The Fourth Circuit’s reasoning unfolded in three parts:

Strict Naming Requirement
Title VII’s exhaustion provision requires a charge to name “the respondent” – here, BGE – to give the employer notice and facilitate conciliation. Bolden admitted he never named BGE in his MCCR filing.
Substantial Identity Exception
Some circuits permit an exception if the un‐named defendant is so closely related to the named one that naming would have been futile or unnecessary. Courts assess factors such as:
- Similarity of allegations;
- Overlap in management and human resources;
- Opportunity to investigate and conciliate;
- Whether the un‐named party received adequate notice.
Although the Fourth Circuit did not formally adopt a multi-factor test, it assumed one could exist. Reviewing the record, the panel found no evidence tying BGE’s investigatory or corrective apparatus to CAEI’s, nor any clear notice to BGE during MCCR proceedings.
Procedural Forfeiture & Jurisdictional Limits
Bolden’s “passing reference” to BGE was first raised on appeal and therefore forfeited. And because his notice of appeal preceded the denial of his Rule 59(e) motion, the court lacked jurisdiction to review that denial.

Impact

This decision reinforces Title VII’s strict administrative exhaustion rules within the Fourth Circuit:

Plaintiffs must carefully name every potential employer in their initial charge to preserve claims.
District courts have broad discretion to reject post-hoc attempts to add or justify missing respondents.
The substantial identity exception will be difficult to invoke without clear proof of shared HR processes or formal notice to the un-named employer.
Procedural missteps—like failing to raise arguments below or premature appeals—can be fatal to a case.

Future litigants and courts will likely cite Bolden to deny “belated” Title VII claims against employers not explicitly named in administrative charges.

Complex Concepts Simplified

Administrative Exhaustion: Employees must first file a discrimination charge with the EEOC or a state agency before suing in court. This gives agencies a chance to investigate and resolve disputes without litigation.
Naming Requirement: The charge must list each employer you accuse of discrimination. If you omit one, you normally cannot sue that employer in court.
Substantial Identity Exception: A narrow exception allowing a lawsuit against an un‐named defendant only if the employer knew of the claim and had an opportunity to resolve it through the agency process.
Summary Judgment: A court decision without a full trial, entered when no factual disputes require jury resolution.
Rule 59(e) Motion: A request to the district court to revisit its own decision. Filing an appeal before that decision is issued strips appellate courts of jurisdiction.

Conclusion

Bolden v. Baltimore Gas & Electric Company underscores the importance of strict compliance with Title VII’s administrative procedures. By affirming summary judgment and dismissing the cross-appeal, the Fourth Circuit left no doubt that plaintiffs must name every alleged discriminator in their initial charge or face dismissal. The “substantial identity” exception remains a narrow escape hatch—one that demands clear factual support. This case will guide employers and employees alike in navigating Title VII’s pre-litigation landscape and reinforce the judiciary’s insistence on procedural diligence.