The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge
MEMORANDUM - DECISION AND ORDER
Plaintiff Karen A. Otatti ("Ottati") brings this action for a violation of her civil rights pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991("Title VII") for sex-based employment discrimination. Ottati also seeks relief and/or damages for violation of her rights as guaranteed by the First, Fifth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988. Ottati seeks state relief under Article I, § 11 of the New York State Constitution and Article 15 (Human Rights Law) of the Executive Law of the State of New York ("NYSHRL"). Ottati alleges sexual harassment and hostile work environment by Thomas V. N. Brownell, individually and in his official capacity as Chief of the Amsterdam Police Department ("Brownell") against herself. Ottati alleges the condoning of said sexual harassment and hostile work environment by the defendants City of Amsterdam ("City"), City of Amsterdam Police Department ("APD"), Joseph Emanuele, III, individually and in his official capacity as Mayor of the City of Amsterdam ("Emanuele") (collectively, "City defendants"), and retaliation against Ottati and her family by all defendants because she filed complaints with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC"). Ottati further alleges constructive discharge and conspiracy by Emanuele and the City Corporation Counsel Robert Going*fn1 ("Going"), and the intentional infliction of emotional distress ("IIED") by all defendants. The court has federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Currently before the court is a motion by the City defendants to dismiss the complaint in its entirety (Doc. No. 10) pursuant to the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") Rule 12(c)*fn2 , or in the alternative, to strike certain portions of Ottati's complaint pursuant to Fed. R. Civ. P. Rule 12(f).*fn3 For the reasons set forth below, this motion will be granted in part and denied in part.
On July 13, 2007, Brownell requested and was granted permission to file his motion to dismiss pursuant to Rule 12(b) and (c). In the interest of judicial economy, and because Brownell "specifically adopts each and every argument raised by the City of Amsterdam defendants, as set forth in their motion papers ..." (Doc. No 25-4), the motions will be considered together. Brownell's motion will also be granted in part and denied in part.
The following facts are taken from Ottati's complaint and are presumed true for the purpose of these motions. Ottati worked for the APD and defendant Brownell as a keyboard specialist, beginning in February of 2002.*fn4 In April of 2002, Brownell allegedly began to sexually harass Ottati on the job. The sexual harassment included but was not limited to Brownell making sexual comments to Ottati, showing Ottati pornographic materials, and sending emails to Ottati which contained photographs of nude males and females. Some of the photos were sexually explicit. Sometime in 2002, there was an alleged incident where Ottati was attempting to put on her jacket and Brownell attempted to assist by placing one of her jacket sleeves in his fly, presumably so when Ottati put on her jacket her hand would come in contact with his genitalia.
In October of 2002, Ottati complained about Brownell's inappropriate behavior, first to Brownell himself, and thereafter to then-Deputy Mayor Emanuele. In late October or early November of 2002, Ottati printed the above-mentioned emails and gave them to her husband, A. Paul Ottati ("Paul"), who presented the emails to Emanuele pursuant to Emanuele's request. Emanuele was elected mayor of the City in November of 2003. Subsequent to his election, Emanuele told Ottati that he would remove Brownell from his position because of his behavior toward Ottati. In lieu of taking any action to remove Brownell, however, Emanuele transferred Ottati from the APD to the mayor's office in December of 2004.
In May of 2005, Ottati was transferred back to the APD with assurances that Brownell's inappropriate behavior would cease. The inappropriate and offensive e-mails from Brownell*fn5 as well as his inappropriate conduct immediately resumed. On or about May 31, 2005, Brownell made further inappropriate comments to Ottati after showing her an article on fellatio, and asked her inappropriate questions about Ottati's and her husband's intimate marital life. Brownell continued the offending conversation with Ottati's co-workers. In early June of 2005, Mayor Emanuele's wife allegedly learned that Ottati was going to lodge a complaint against Brownell. The mayor's wife then shared this information with Brownell. Ottati alleges that as a result, Brownell retaliated by no longer allowing her to use the private bathroom or to go into his office, which was located in close proximity to her work space. Ottati alleges that this action had a detrimental effect on her work performance.
On June 15, 2005, Ottati made complaints about the sexual harassment to the City's employment relations department and to the mayor's secretary. Ottati also complained to Corporation Counsel Going.*fn6 On June 16, 2005, Ottati went on disability leave from her job. Shortly thereafter, Ottati had a telephone conference with Lisa F. Joslin ("Joslin"), an attorney with the law firm of Deily, Mooney & Glastetter, LLP, to discuss the particulars of her case and to seek representation. On July 8, 2005, Ottati filed a complaint with the New York State Division of Human Rights*fn7 against the City, APD and Brownell.
On July 22, 2005, Going requested that Ottati appear at a meeting to discuss the sexual harassment complaint. At that meeting, it was determined that Ottati would continue to work in the public safety building in a different office, comparable to her present office, yet away from Brownell. Going promised to produce and provide Ottati with forms upon which Ottati could set forth any future complaints Ottati might have.*fn8 Ottati alleges that she informed Going at the meeting that she was uncomfortable with him investigating the allegations of sexual harassment because he was on the email list as a recipient of the materials Ottati deemed inappropriate and offensive.
Shortly after the July 22, 2005 meeting, Ottati and her husband met with Emanuele and reiterated that they were uncomfortable with Going investigating her case, not only because of his inclusion on Brownell's allegedly inappropriate emails but also because of Going's aforementioned publicized ouster as Montgomery County family court judge. Ottati alleges that at that meeting, she and her husband demanded that Emanuele remove Brownell from his job. Ottati also alleges that shortly after the meeting, the City retained Joslin, the attorney with whom Ottati had previously conferred, to investigate Ottati's claims against the City. A report was allegedly generated by Attorney Joslin pursuant to that investigation (the "Joslin report"), clearing the City and Brownell of any wrongdoing. Despite demands from a city alderman and the State Division of Human Rights, the City allegedly refused to release the Joslin report.*fn9
On August 30, 2005, Ottati was informed by her union representative that she would be working at the waste water treatment plant. The union representative allegedly told Ottati "off the record," (Complaint at ¶ 8.Y) that Emanuele and Going intended to create a sham position, i.e., they were going to place a table at the wastewater treatment plant, with no computer, phone or work. The expected result was that Ottati would show up for work every day and do nothing. Ottati alleges that she visited the plant and confirmed this allegation. On August 31, 2005, the union representative resigned his union position after being chastised by Emanuele for informing Ottati about the waste water treatment plant plans.
On September 3, 2005, while Ottati was still off the job on disability, she learned that Emanuele and Brownell would be taping her participation in a bocce tournament. At the tournament, an individual named Greg Valenti was taping Ottati when he was approached by Ottati's husband. An altercation ensued between the two men. Ottati's husband then approached the mayor's wife about the taping, and was thereafter verbally attacked by the mayor's wife. On September 8, 2005, two Orders of Protection were issued,*fn10 ordering Ottati's husband to stay away from Emanuele and his wife. (Complaint at ¶ 8.EE).
On September 6, 2005, Ottati alleges that she and her husband went to the wastewater treatment plant, where plant workers informed them that although there was no work for Ottati, they had been instructed to set up a desk and a chair for her. There was no phone or computer or any other office supplies made available for Ottati's use. Ottati contacted the deputy chief of the APD and asked him where she would be assigned to work. The deputy chief stated that Brownell did not want Ottati back on the premises. Ottati alleges that she was informed by one Joseph Isabel that he had been instructed by members of his political party to "treat [Ottati] like shit" while she was at City Hall, but Mr. Isabel refused. Complaint, ¶ 8. DD. As a result of the foregoing, Ottati filed a claim for retaliation with the New York State Department of Human Rights*fn11 on September 22, 2005.
On July 24, 2006, Ottati had a probable cause hearing regarding her two Human Rights Department claims. Ottati, her husband Paul, Emanuele and Brownell were present. Although it was noted that there was an order of protection in place ordering Paul to stay away from Emanuele, Emanuele "and the other parties" (Complaint at ¶ 59) affirmatively stated that they wanted to be in the room when Paul testified. Subsequent to that hearing, in early August, Emanuele had Paul arrested for violating the aforementioned order of protection at the July 24, 2006 hearing. Because of this pending criminal matter, Ottati asserts that her husband's health has been deteriorating.
On July 31, 2006, the New York State Division of Human Rights dismissed Ottati's administrative claims on the grounds of administrative inconvenience, stating the following reason: "The complainant is proceeding with this case in Federal District Court, in which forum all of the issues pertaining to this case can be resolved." Complaint, Exh. F. On August 15, 2006, Ottati received right to sue letters from the Equal Employment Opportunity Commission ("EEOC"), allowing her to file a lawsuit in federal court. Ottati filed this action on November 13, 2006.
The court has parsed Ottati's twenty-one count complaint and isolated five distinct claims, with four claims against all defendants: (1) sexual harassment and hostile work environment pursuant to Title VII; the Fifth and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983; and Article I, § 11 of the New York State Constitution and Article 15 (Human Rights Law) of the Executive Law of New York State; (2) retaliation pursuant to Title VII; the First and Fifth Amendments to the United States Constitution pursuant to 42 U.S.C. §§ 1981 and 1983; and Article I, § 11 of the New York State Constitution and Article 15 (Human Rights Law) of the Executive Law of New York State; (3) Constructive discharge pursuant to Title VII and Article I, § 11 of the New York State Constitution and Article 15 (Human Rights Law) of the Executive Law of New York State; and (4) state law claims of intentional infliction of emotional distress. Ottati also alleges one claim of conspiracy against the City, Emanuele, and Going only, pursuant to 42 U.S.C. § 1985 and 1986.
On January 9, 2007, the City filed its answer to the complaint. On January 23, 2007, Brownell filed his answer.*fn12 On January 26, 2007, the City filed a motion to dismiss pursuant to Fed. R. Civ. P. Rule 12, §§ (c) and/or (b), and (f). On July 13, 2007, nearly six months after the City filed its motion to dismiss, Brownell filed a motion to dismiss pursuant to Rule 12(b) and (c).
As a preliminary matter, the court notes that the APD is a department within the City, and not a distinct separate legal entity. (Doc. No. 10-2, n.1). Although a municipality is subject to suit pursuant to 42 U.S.C. § 1983, see Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690 (1978), a municipal police department "cannot sue or be sued because it doesn't exist separate and apart from the municipality and does not have its own legal identity." Baker v. Willett, 42 F. Supp.2d 192, 198 (N.D.N.Y. 1999). See also Leland v. Moran, 100 F. Supp.2d 140, 145 (N.D.N.Y. 2000). Consequently, the APD has no legal capacity to sue or be sued. For this reason the court will, sua sponte, strike the APD as a defendant in this case.
City defendants raise thirteen distinct points in their motion to dismiss, presented in no particular order. Ottati opposes the motion with six points of her own, also in no discernible order that correlates to the points in defendants' memorandum, nor does Ottati address all the issues presented in the motion to dismiss. For the sake of judicial economy, the court will set forth the relevant case law, then proceed to address the defendants' points in some semblance of order.
A. Rule 12 Motion To Dismiss Standard The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the court must accept as true the well pleaded allegations of the complaint. Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807 (1994). In addition, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct 1683 (1973). "[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder." Bell Atlantic Corp. V. Twombly, 127 S.Ct. 1955, 1969 n.8 (May 21, 2007).*fn13 To meet the standard of adequacy, the complaint should contain "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. "In assessing the legal sufficiency of a claim, the court may consider those facts alleged in the complaint, as well as 'documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.'" Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (quoting Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)).
As stated above, the court will construe the defendants' motion as a motion to dismiss. Despite fashioning their motion as a motion to dismiss pursuant to Rule 12(c), the memorandum of law accompanying the motion requests the court to dismiss the complaint for failure to state a claim upon which relief may be granted, and the defendants set forth Rule 12(b)(6) case law as the standard for review. "The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enterprises, 448 F. 3d 518, 521 (2d Cir. 2006). "This standard is applied with particular strictness when the plaintiff complains of a civil rights violation." Id., citing Irish Lesbian and Gay Org. v. Guliani, 143 F.3d 638, 644 (2d Cir. 1998). "[A]n employment discrimination plaintiff need not plead a prima facie case of discrimination" to survive a motion to dismiss. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 515 (2002). "[T]he pleading requirements in discrimination cases are very lenient, even de minimus." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). This court has no evidence before it that Bell Atlantic has heightened the lenient pleading requirements in discrimination cases.
B. Rule 12(f) Motion to Strike
The defendants move for an order striking Ottati's complaint in its entirety with prejudice pursuant to Rule 12(c), "and/or ... striking certain portions of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(f) ...." (Doc. No. 10).
Fed. R. Civ. P. Rule 12(f) states that [u]pon motion made by party responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading on a party or upon the court's own initiative at any time, the court may order stricken from any pleading any ...