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PAZAMICKAS v. NEW YORK STATE OFFICE OF MENTAL RETA

May 23, 1997

ROBERT W. PAZAMICKAS Plaintiff,
v.
NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENT DISABILITIES, Defendant.



The opinion of the court was delivered by: MCAVOY

 Plaintiff Robert Pazamickas brought this action for sexual harassment and retaliation in employment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, Executive Law § 290, et seq. ("HRL"). Plaintiff also brought a claim for intentional infliction of emotional distress. Defendant now moves for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), 12(b)(1) and 12(b)(6). Plaintiff opposes the motion, and cross-moves for leave to amend the Complaint to add new claims and new defendants.

 I. BACKGROUND

 A. Facts

 The following are the facts as alleged in the Complaint.

 Plaintiff began work at the Sunmount Development Disabilities Services Office of defendant New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") in April of 1990. Plaintiff is employed as a social worker and Case Management Supervisor.

 On October 19, 1993, plaintiff's supervisor, Theresa Mahoney, asked plaintiff to attend a meeting with a co-worker, Jane McCabe. During this meeting, Mahoney confronted plaintiff with sexually explicit material depicting male genitalia and asked if plaintiff had sent the material to McCabe. After posing the question, Mahoney and McCabe exchanged glances and smiles, creating an environment that plaintiff alleges was demeaning, humiliating and insulting.

 B. Procedural History

 On April 1, 1996, plaintiff filed his Complaint alleging: (1) sexual harassment in violation of Title VII and the HRL; (2) retaliation in violation of Title VII and the HRL; and (3) intentional infliction of emotional distress. On December 10, 1996, defendant moved to dismiss plaintiff's complaint. Plaintiff has cross moved for leave to amend the Complaint.

 II. Discussion

 A. Defendant's Motion for Judgment on the Pleadings

 1. Standard Under Fed.R.Civ.P. 12(c)/12(b)(6)

 Defendant moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), 12(b)(1) and 12(b)(6), based upon lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. (Def. Notice of Motion at 1). Where a motion for judgment on the pleadings is based on the defense of failure to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(h)(2), the Court will treat the motion as one to dismiss. See National Association of Pharmaceutical Manufacturers. Inc., 850 F.2d 904, 909 n. 2 (2d Cir. 1988)).

 "When deciding a motion to dismiss an action for failure to state a claim upon which relief may be granted, the court 'must accept the material facts alleged in the complaint as true.'" Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995) (quoting Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994)). The court should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain his claims which would permit relief. ...


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