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PREVOST v. NEW YORK STATE

January 5, 2004.

FREDA LE PREVOST, Plaintiff, -against- NEW YORK STATE, NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION and DARCEL MICHEL, Defendants


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

MEMORANDUM OPINION & ORDER

Plaintiff Freda Le Prevost ("Plaintiff') brings this action against New York State and New York State Office of Parks, Recreation and Historic Preservation (collectively, "State defendants"), and against Darcel Michel ("Michel"), for alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VET), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), as well as for the common law tort of intentional infliction of emotional distress. This matter comes before the court on two motions to dismiss the complaint, one filed by State defendants, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and one by Michel, pursuant to Rules 12(b)(1) and 12(b)(6). Plaintiff cross-moves to amend her complaint to include a cause of action under § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) ("Rehabilitation Act"). For the following reasons, State defendants' motion is GRANTED in part and DENIED in part, and Michel's motion is GRANTED in part and DENIED in part. Plaintiffs cross-motion for permission to amend her complaint is GRANTED, as against State defendants only.

I. BACKGROUND

  The complaint, filed on April 11, 2003, describes the background of this action as follows. Plaintiff was hired by Michel, the complex manager for Riverbank State Park in Manhattan, in October 2001. At that point she was told that her duties would be administrative in nature. In Page 2 November Michel began pursuing plaintiff romantically. Between November and December 2001, Michel "forced" plaintiff to socialize with him after hours, and made "inappropiate: comments to her concerning her marital status, her perfume, and her body. In November 2001, v Michel "forced" plaintiff to accompany him to a sexual harassment seminar, of which he was one of the leaders for the agency. After the seminar, he apologized to plaintiff for subjecting her to the acts reenacted and highlighted by the seminar participants. In or about December 2001, Michel reassigned plaintiff from an administrative position to a more physically demanding position as a skate guard. While performing her new duties, plaintiff broke her ankle and injured her knees. When plaintiff asked to be reassigned to her administrative duties following her injuries, Michel refused her request. Plaintiff only obtained a formal job description after she had rebuffed Michel's advances and complained about the more physically demanding duties. At this point, Michel assigned her to "a physically demanding job title of Recreation Specialist."

  Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 17, 2002. This charge alleged sex discrimination, in the form of sexual harassment. On June 12, 2002, plaintiff filed an amended charge, adding a hostile work environment claim. Both charges named as respondent the New York State Office of Parks, Recreation and Historic Preservation. On January 16, 2003, plaintiff received a right-to-sue letter from the EEOC, which informed her that she had "the right to institute a civil action under Title VII" against the named respondent.

 II. DISCUSSION

  State defendants, who filed an answer on July 10, 2003, move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings, or, in the alternative, for summary judgment. Defendant Michel, who has not yet answered, moves, pursuant to Rules 12(b)(1) and (6) for dismissal of the complaint as against him. Plaintiff cross-moves to amend her complaint to include a cause of action pursuant to § 504 of the Rehabilitation Act.

  A. Legal Standards

  1. Motion to Dismiss

  On a motion to dismiss, a court must read the complaint generously, and draw all inferences in favor of the pleader. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court must limit itself to a consideration of the facts alleged on the face of the complaint, and to any documents attached as exhibits or incorporated by reference. Id. at 13. If, as in the present case, extraneous material is presented by the parties, the court must exclude it from consideration.

  a. Rule 12(b)(1)

  A case is properly dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction generally has the burden, once challenged, of proving by a preponderance of the evidence that jurisdiction exists. See id. Page 3

  b. Rule 12(b)(6)

  In deciding a motion to dismiss for failure to state a claim upon which relief may be granted, a court must accept as true the material facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor. Grandon v. Merrill Lynch, 147 F.3d 184, 188 (2d Cir. 1998). The court must not dismiss the action 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" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). In deciding such a motion, the "issue is not whether a plaintiff ...


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