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.
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
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.
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.
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 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.
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 ...