The opinion of the court was delivered by: Mishler, District Judge.
Memorandum of Decision and Order
Plaintiff William T. Perks ("Plaintiff") filed an Amended
Complaint against Defendants Susan Scarpati-Reilly and the Town
of Huntington alleging, inter alia, sexual harassment,
defamation and violation of Plaintiff's civil rights. Defendant
Scarpati-Reilly ("Defendant") moves to dismiss several causes of
action. For the reasons set forth below, Defendant's motion is
granted in part and denied in part.
In 1996, Plaintiff served as the Harbor Master/Oil Spill
Response Manager for the Town of Huntington. During this time,
Defendant served as the Town Board's liaison to the Town's Oil
Spill Response Board. As liaison, Defendant supervised Plaintiff
and made decisions affecting the terms and conditions of his
employment. (Am.Compl. at ¶ 6.)
Around February 1997, Plaintiff and Defendant entered into an
intimate personal relationship. "The Plaintiff attempted on
numerous occasions to end this relationship, but was threatened
each time by the defendant, Susan Scarpati-Reilly, with the loss
of his job, other benefits of his employment and with criminal
prosecution." Plaintiff terminated this relationship in August
1998. (Id. at ¶ 7.)
Shortly after terminating the relationship, Defendant engaged
in a continuous course of conduct that created an abusive,
intimidating and sexually hostile working environment. Examples
of such conduct included:
• threatening to have the Town Attorney's office
investigate the Plaintiff on unfounded allegations
of wrongful conduct;
• following Plaintiff during and after business hours
demanding that the relationship continue;
• calling Plaintiff to her office during business
hours for lengthy meetings where she would pressure
him to have sexual encounters in her office and
resume their relationship by threatening him with
adverse employment consequences if he refused;
• overseeing minute details of Plaintiff's work and
making demands upon him that she did not make of
other employees; and
• demanding Plaintiff use personal funds to pay for
trips, lodging and meals shared by Plaintiff and
Defendant, insisting that she was responsible for
the increases in compensation he had received. (Id.
at ¶ 8.)
When Plaintiff tried to end the conversation by walking away,
Defendant struck Plaintiff on the side of the head and grabbed
him to pull him into her car. Plaintiff broke free from her grasp
and ran away from Defendant. Defendant chased Plaintiff for a
while, screaming that he had hit her, and then drove away. (Id.
at ¶ 11.)
That night, Defendant called a friend of Plaintiff's and told
the friend to inform Plaintiff that he should have his
resignation on her desk the following day. Defendant also filed a
complaint with the local police alleging that Plaintiff had
struck her. At first, Defendant denied publicly that she had
filed the complaint, but later admitted to it. The Town of
Huntington hired an Independent Fact Finder, Gerald LaBush, to
investigate the events on February 28, 1999 (the "Mobil Terminal
Incident") and all other matters relating to the relationship
between Plaintiff and Defendant. Plaintiff attached a copy of the
Fact-Finder's Report (the "Report") to his Complaint as Exhibit
2. (Id. ¶ 12.)
Plaintiff filed an Amended Complaint asserting twelve causes of
action against Defendant and the Town of Huntington. The First
cause of action asserts a claim for sexual harassment in
violation of Title VII. The Second cause of action asserts a
claim for sexual harassment in violation of N.Y. Exec.Law § 296,
et seq. Count Three alleges a violation of the Equal Protection
clause. Count Four alleges that Defendant defamed Plaintiff by
filing a false police report. Count Five alleges the intentional
infliction of emotional distress. Count Six alleges that the Town
is vicariously liable for damages resulting from Defendant
Scarpati-Reilly's actions. Count Seven asserts a violation of and
liability under 42 U.S.C. § 1981a, Count Eight under § 1983,
Count Nine under § 1985(3) and Count Ten under § 1988. Counts
Eleven and Twelve assert claims of defamation premised on alleged
statements that the Town and Scarpati-Reilly caused to be
published in a local newspaper.
Defendant Scarpati-Reilly moves to dismiss Counts One, Two,
Four, Five, Seven and Nine.
On a motion to dismiss, district courts may consider the
complaint and any attached documents that are incorporated by
reference. Fed.R.Civ.P. 10(c); Int'l Audiotext Network, Inc. v.
Am. Tel. and Tel. Co., 62 F.3d 69, 71-72 (2d Cir. 1995) ("The
complaint itself is deemed to include any document attached as an
exhibit, and any document incorporated by reference."); Brass v.
Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (on a
motion to dismiss, the court may consider the contents of any
documents attached to the complaint or incorporated therein by
reference, matters as to which judicial notice may be taken, and
documents either in the plaintiff's possession or of which the
plaintiff had knowledge and relied upon in bringing suit).
Review of and reliance on the Fact-Finder's Report is
permissible because its attachment to the Amended Complaint
afforded Defendant notice and an opportunity to respond, and
therefore made it unnecessary to convert the motion into one for
summary judgment. See Cortec Inds., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112
S.Ct. 1561, 118 L.Ed.2d 208 (1992).
This rule does not allow the Court to adopt the facts as stated
in the Report as true, but it does permit us to consider them as
further allegations. In other words, in determining whether we
can foresee any set of facts by which Plaintiff is entitled to
relief on his claims, we may consider the allegations in the
one set of facts that may be proven at trial.
By the same token, the Court may not consider Defendant
Scarpati-Reilly's affidavit dated December 21, 1999, submitted in
support of her motion to dismiss. See Newman & Schwartz v.
Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662-63 (2d Cir.
1996) (reversing grant of motion to dismiss where district court
relied on allegations contained in movant's affirmation). The
present motion is limited to the legal sufficiency of the claims
in the Amended Complaint and although Defendant, an attorney,
"feel[s] it imperative to stress to this Court" her position on
the merits of Plaintiff's claims (Scarpati-Reilly Affidavit at ¶
9), such insistence is inappropriate on a motion to dismiss, as
Defendant should well know.
STANDARD FOR MOTION TO DISMISS
In deciding a motion to dismiss under Rule 12(b)(6), a district
court must "accept all of plaintiff's factual allegations in the
complaint as true and draw inferences from those allegations in
the light most favorable to the plaintiff." Desiderio v.
National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.
1999). A complaint should not be dismissed "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." See
Dangler v. New York City Off Track Betting Corp., 193 F.3d 130,
138 (2d Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (quoting
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.
In his first cause of action, Plaintiff alleges that
Defendant's conduct constituted unlawful sexual harassment in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq.
Defendant argues that no liability may attach to her for
violation of Title VII because individuals may not be held liable
under that statute. (Def.'s Mem. at 4 (citing Tomka v. Seiler
Corp., 66 F.3d 1295 (2d Cir. 1995).)) In his opposition to
Defendant's motion, Plaintiff appears to concede that Tomka
bars suits against individuals under Title VII in their
individual capacity, but argues that Tomka does not address ...