The opinion of the court was delivered by: MCAVOY
McAVOY, CHIEF DISTRICT JUDGE:
Plaintiff commenced this action against defendants, the Dormitory Authority of the State of New York ("Dormitory Authority") and various individuals employed therein, pursuant to the federal constitution and various federal and state statutes. The Complaint alleges defendants discriminated against her on the basis of race, disability and political affiliation during her employment at the Dormitory Authority. Presently before the Court is defendants' motion for partial dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion is granted in part and denied in part.
While a consultant, plaintiff alleges that the Deputy Executive Director of Construction Services, Samuel Davidson, refused either to communicate with her or engage her services. At a Board of Directors meeting, plaintiff contends that Davidson said she was a "no show" employee and that he disliked her affirmative action function. Plaintiff also maintains that defendants did not permit her to sign out automobiles to travel to work sites and that defendants denied her access to supplies, computer equipment and handicapped parking areas in front of the Dormitory Authority building. Furthermore, plaintiff asserts that the Director of Construction Support Service, Don McDowell, suggested she pursue her mission of affirmative action elsewhere. Plaintiff states that although she filed written complaints to her supervisor detailing these events, no responsive action was taken.
In October 1993, the Executive Director of the Dormitory Authority, Rudolph Rinaldi, appointed plaintiff to a part-time position of Affirmative Action Field Representative I. Plaintiff alleges, however, that the Dormitory Authority granted other similarly situated white employee's full-time status. As a part-time employee, plaintiff's salary and benefits of employment, including health care and pension rights, were lower than that accorded to full-time employees. Additionally, plaintiff alleges that defendants initially refused her a computer routinely given to non-minority employees of similar stature.
On March 24, 1995, Rinaldi assigned plaintiff to a permanent position with the Personnel Department under the supervision of Marilyn Gehr, effective March 27, 1995. Plaintiff alleges, however, that Gehr refused to acknowledge her new position because of her race. On April 6, 1995, the Executive Director of the Dormitory Authority, Ted Holmes, wrote a letter to plaintiff rescinding her new position. Plaintiff alleges that despite her appointment being rescinded, Holmes appointed white employees to other positions and permitted other employees to receive the benefits of transfer and job reclassification denied her.
On August 17, 1995, plaintiff filed an administrative complaint with the New York State Department of Human Rights ("DHR"), charging that she had been subject to discrimination while employed at the Dormitory Authority. Beginning in November 1995, plaintiff contends that Dormitory Authority officials began retaliating against her for filing her complaint with the DHR. Specifically, plaintiff avers that defendants singled her out and placed her in a small office cluttered with machinery. Plaintiff also contends that Dormitory Authority officials did not consider her for any promotional opportunities. In November 1995, for example, she asserts Gehr denied her appointment to the position of Administrative Assistant, instead awarding the job to a white male with less experience. Similarly, plaintiff alleges that on December 12, 1995, she interviewed for the position of Communications Associate, but the appointment was awarded to a white female.
On January 30, 1996, plaintiff filed a second administrative complaint with the DHR, alleging retaliatory acts by defendants. On August 20, 1996, the DHR determined that, with respect to plaintiff's first complaint, there was "no probable cause to believe that [the Dormitory Authority] has engaged in or is engaging in the unlawful discriminatory practice complained of."
In October 1996, plaintiff complained to the Executive Director of the Dormitory Authority, John Buono, and the Senior Director of Operations, Felix Pugliese, of the discriminatory practices alleged. According to plaintiff, Pugliese threatened her that she could not possibly win her complaint with the DHR. Plaintiff also maintains that the Dormitory Authority did not otherwise respond to her complaint.
On December 23, 1996, the Equal Opportunity Employment Commission (EEOC) issued a final determination that plaintiff's first complaint had failed to establish a violation of Title VII by the Dormitory Authority. On January 9, 1997, plaintiff's doctor notified the Dormitory Authority that plaintiff was experiencing stress reaction as a result of the alleged discriminatory acts of defendants. On January 28, 1997, the Dormitory Authority terminated plaintiff's employment. A few weeks later, plaintiff filed a third complaint with the DHR.
Plaintiff commenced the instant action on March 21, 1997. Her Complaint sets forth four causes of action against defendants: (1) a claim under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000 et seq., for race discrimination; (2) a claim under § 296 of the New York Human Rights Law (HRL), for race discrimination; (3) a claim under the American with Disabilities Act (ADA), 42 U.S.C. § 12110 et seq., for disability discrimination; and (4) a claim under 42 U.S.C. § 1983 and 42 U.S.C. § 1988, for violations of plaintiff's rights to free speech and association pursuant to the First and Fourteenth Amendments of the United States Constitution.
Presently before the Court is defendants' motion to dismiss parts of the Complaint against various defendants pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, defendants seek dismissal of the following: (1) plaintiff's Title VII claim, (a) in part, against the Dormitory Authority,
and (b) in its entirety, against the remaining defendants; (2) plaintiff's HRL claim against all defendants; and (3) plaintiff's ADA claim against all defendants.
As a threshold matter, the Court must decide whether to convert defendants' motion to dismiss into one for summary judgment, as both parties have submitted materials beyond the four corners of the pleadings. Specifically, defendants have attached as exhibits in support of their motion to dismiss the letters of complaint filed by plaintiff with the DHR and the EEOC, and the DHR's ruling with respect to plaintiff's first administrative complaint. Although these documents of public record are referred to in plaintiff's federal Complaint, they are not annexed as exhibits thereto. Plaintiff, in similar fashion, has opposed defendants' motion to dismiss by submitting as exhibits the letters of complaint filed by her with the DHR and the EEOC and various determinations and investigative reports issued by the DHR and the EEOC in response to those complaints. Plaintiff also has submitted two affidavits: one from plaintiff's attorney, Lorraine Lewandrowski, and the other from plaintiff McNight.
Defendants request that the Court consider its supplemental submissions without converting its motion to one for summary judgment. Plaintiff fails to comment on the potential for conversion, presumably because she agrees with defendants that conversion should not result.
It is beyond peradventure that when "matters outside the pleading are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b). However, because a complaint includes "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference," Fed. R. Civ. P. 10(c); see, e.g., Cosmas v. Hassett, 886 F.2d 8 (2d Cir. 1989), courts have held that a "defendant may introduce pertinent [documents] as part of his motion attacking the pleadings" if plaintiff has failed to either attach to the complaint or incorporate by reference documents upon which it relies on in the complaint. 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, Federal Practice & Procedure § 1327, at 762-63 (1990); see, e.g., Cortec Ind., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992). As explained by the Second Circuit, "when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure." Cortec 949 F.2d at 47; Roucchio v. Coughlin, 923 F. Supp. 360, 366 (E.D.N.Y. 1996).
Applying these principles, the Court finds that it may properly consider, as part of the pleadings, the various administrative complaints and determinations of the DHR and EEOC submitted by both defendants and plaintiff. See Jadoo v. City of New York, 1997 U.S. Dist. LEXIS 14950, 1997 WL 614508, *2 (E.D.N.Y. Sept. 29, 1997) (concluding EEOC charge attached as exhibit to defendants 12(b)(6) motion did not convert it to one for summary judgment); Greene v. Term City, Inc., 828 F. Supp. 584, 587 n.1 (N.D. Ill. 1993) (finding EEOC charge part of pleadings in connection with 12(b)(6) motion, even though it was not attached to the complaint). Although plaintiff's Complaint fails to incorporate these documents by reference or attach them to it, it relies upon them on numerous occasions to support plaintiff's claims. See Cortec, 949 F.2d at 48. Moreover, to consider these documents would not surprise plaintiff, given her reliance on these items in both her Complaint and opposition to defendants' motion to dismiss. Id. Most likely, it was an oversight that plaintiff did not attach these items as exhibits.
In any event, judicial notice of the DHR and EEOC documents is proper. The administrative complaints and findings are matters of public record, and their authenticity is not disputed by either party. See Roucchio, 923 F. Supp. at 366.
The Court, by contrast, will exclude from consideration the two affidavits submitted by plaintiff in opposition to defendants' motion to dismiss. These items may not be considered part of the pleadings under Cortec, nor will the Court convert defendants' motion to dismiss into a premature motion for summary judgment. See Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1990) (stating that when materials outside pleadings are submitted on 12(b)(6) motion, courts have option of excluding material or converting motion ...