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May 23, 2000


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.)

On February 28, 1999, Plaintiff was working at the Mobil Oil Terminal Distribution Plant in Cold Spring Harbor, New York (the "Mobil Terminal") overseeing an oil transfer. Defendant had called him repeatedly that day demanding to see him, but Plaintiff had refused. At about 7:30 pm, Defendant arrived at the Mobil Terminal and confronted Plaintiff over his relationship with another woman. Defendant then threatened to report Plaintiff for not wearing a uniform, though Plaintiff was not required to wear a uniform. (Id. at ¶ 10.)

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 Report as 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.


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. 1995)).


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 ...

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