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GRYGA v. GANZMAN

January 12, 1998

AVA GRYGA, Plaintiff, against JOEL GANZMAN, THE PUBLIC ADMINISTRATOR, AND THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 BACKGROUND

 Plaintiff, Ava Gryga, has been employed as a "community assistant" for the Public Administrator of King's County since 1993, in which position she performs clerical duties. Compl. P 15. Her immediate supervisor was and continues to be defendant Joel Ganzman, the Deputy Public Administrator of Kings County. Id. at PP 14, 16.

 Plaintiff claims that "in or about June 1994, defendant Ganzman told plaintiff that he wanted to have sexual relations with her. Even though plaintiff clearly rejected defendant Ganzman's advances, defendant Ganzman, over approximately the next two years, from time to time repeated his desires to have sex with plaintiff." Id. at P 20. He also "from time to time . . . called plaintiff into his office closed the door, and implored [plaintiff] to kiss and hug him." Id. at P 21. Furthermore, defendant subjected plaintiff to "repeated and improper sexual remarks and innuendo." Id. at P 25. "For example, defendant Ganzman told plaintiff to wear her hair down and paint her nails red because he liked them that way." Id. at P 26. Defendant "also made lewd and offensive comments to plaintiff about his own sex life and about plaintiff's body." Id. at P 27. And, in the Spring of 1996, "Ganzman told plaintiff that if she had sexual relations with him he would see that she had special privileges at work." Id. at P 28.

 Plaintiff made it clear to Ganzman that his behavior was offensive to her. Id. at P 23. In retaliation for plaintiff's rejection of his sexual advances, defendant Ganzman "subjected plaintiff to discriminatory treatment on the job, such as docking her pay, docking her vacation time, and other retaliatory acts." Id. at P 24.

 Plaintiff eventually "complained to Commissioner Samuel Plotkin of Public Administrator, about Ganzman's unlawful behavior." Id. at P 29. The Public Administrator, however, did not conduct a proper investigation of plaintiff's claims, id. at P 30, and "at no time was defendant Ganzman subjected to reprimand or probation for his misconduct, nor was defendant Ganzman required to undergo training or education concerning appropriate conduct toward female employees." Id. at P 31.

 On September 17, 1996, plaintiff filed a complaint of sexual harassment with the City of New York Commission of Human Rights. That agency forwarded plaintiff's complaint to the Equal Employment Opportunity Commission ("EEOC"). Id. at P 5. The EEOC sent plaintiff a "Right to Sue" letter on May 1, 1997, and on July 8, 1997, plaintiff filed the present suit. Id. at P 6.

 Plaintiff has asserted the following causes of action against defendants: Quid pro quo sexual harassment in violation of Title VII of the Civil Rights Act; hostile work environment sexual harassment in violation of Title VII; unlawful retaliation in violation of Title VII; sexual harassment pursuant to New York Human Rights Law, Executive Law § 296 et seq.; infliction of extreme emotional distress; and sexual harassment in violation of the New York City Human Rights Law, New York City Administrative Code § 8-107.

 Defendant City of New York (the "City") has brought the present motion for dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject matter jurisdiction and because the complaint fails to state a claim against the City of New York. *fn1" Defendant argues that the City of New York is not plaintiff's employer and thus cannot be held liable under Title VII. Furthermore, defendant claims that there are "no allegations of any kind directed to the City of New York, let alone allegations of discriminatory treatment by the City of New York or any of its employees." Def.'s Mem. of Law 1.

 DISCUSSION

 Motion to Dismiss/Summary Judgment

 Given that all of the parties to the present motion have presented matters outside of the pleadings that the Court has not excluded from its consideration, the Court, in an exercise of its discretion, will treat the City's motion to dismiss as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *fn2" See Bennett v. Morgan Stanley & Co., 1997 U.S. Dist. LEXIS 19207, 1997 WL 749364 (S.D.N.Y. Dec. 4, 1997); Rabin v. United States Department of State, 1997 WL 627531, *4 (E.D.N.Y. Nov. 26, 1997). Although Rule 12(b)(6) states that when a court converts a motion to dismiss into one for summary judgment "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56," this Court concludes that no further opportunity to submit relevant material is necessary. The moving defendant and the plaintiff have both included materials outside of the pleadings in their motion papers and there is no indication that either party would submit additional relevant materials. Since both parties have filed exhibits and affidavits, neither can complain that they lacked a reasonable opportunity to meet facts outside the pleadings. See In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, 475 U.S. 1015 (1986) ("The district court's conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of substance rather than form. The essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings."). See also Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588 (2d Cir. 1993) (held that motion to dismiss was properly converted to summary judgment motion where non-moving plaintiffs supplemented their opposition papers with correspondence between the parties and the only documentation ...


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