#### Christopher PIGNONE, Defendant-Appellant, v. VILLAGE OF PELHAM MANOR and John Pierpont, Defendants-Appellees.

No. 12-2646-cv.

United States Court of Appeals, Second Circuit.

March 29, 2013.

*20Constantino Fragale, Eastchester, NY, for Appellant.

Michael T. Regan, Cascone & Kluepfel, LLP, Garden City, NY, for Appellees.

PRESENT: RICHARD C. WESLEY, PETER W. HALL, Circuit Judges, RICHARD W. GOLDBERG, Judge.*

The Honorable Richard W. Goldberg, of the United States Court of International Trade, sitting by designation.

SUMMARY ORDER

Plaintiff-appellant Christopher Pignone appeals from a June 15, 2012 judgment entered by the United States District Court for the Southern District of New York (McMahon, *J.)*following the court’s dismissal of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). *Pignone v. Vill. of Pelham Manor,*No. 10-CV-2589, 2012 WL 2317414 (S.D.N.Y. June 15, 2012). We assume the parties’ familiarity with the facts and history of the case.

The procedural posture of this case is extremely odd. Although the defendants admittedly (and, as the district court stated, “bizarrely”) cited Rule 12(b)(6) in their motion for summary judgment, we are troubled by the use of this rule to dismiss a case after the filing of responsive pleadings and the passage of more than a year of discovery proceedings.1 It is unclear *21why defendants’ counsel chose to style their motion in this way, as the parties provided exhibits from the discovery proceedings and utilized them in their arguments. Indeed, Pignone’s reply brief on appeal cites deposition testimony that appears to be evidence from which a district court could make a summary judgment determination on the sexual harassment claim. However, the district court hewed to the characterization of the motion as one under Rule 12(b)(6) and did not consider the exhibits.

Nonetheless, in his opening brief, Pignone’s counsel failed to raise the district court’s decision to honor the defendant’s characterization (or mis-eharacter-ization) of its motion as error. This case thus presents a “perfect storm” of an obvious error of counsel that, according to our jurisprudence, would allow us in our discretion to ignore potentially winning arguments (in the context of this appeal). *See Arrowood Indem. Co. v. King,*699 F.3d 735, 742 (2d Cir.2012). In our view, we can best resolve the issue in this instance by looking past the waiver to the merits of plaintiffs claims, despite the transgressions of counsel. We think it appropriate to remand this matter, subject to the discussion below, for the district court to consider not the adequacy of plaintiffs complaint but rather his claims in the context of summary judgment.

That said, the district court was correct that *Engquist v. Oregon Department of Agriculture,*553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), bars class-of-one equal protection claims by public employees. Thus to the extent that Pignone’s complaint raises a class-of-one equal protection claim, we affirm the dismissal of that claim.2 However, Pignone correctly argues that this did not account for his sexual harassment claim. There is nothing in *Engquist*or this court’s subsequent case law that indicates an intent to overrule the proposition that a plaintiff may assert “a Section 1983 claim against a public official for improper sexual conduct toward an employee that created a hostile work environment.” *Saulpaugh v. Monroe Cmty. Hosp.,*4 F.3d 134, 143-44 (2d Cir.1993). The district court’s decision does not address this claim.

For these reasons, we affirm the district court’s dismissal of Pignone’s class-of-one equal protection claim but vacate the district court’s dismissal of Pignone’s entire complaint and remand so that the court may deal with Pignone’s sexual harassment claim as limited by this decision. The district court may order whatever proceedings it finds appropriate that are consistent with this order. The judgment of the district court is accordingly AFFIRMED IN PART and VACATED AND REMANDED IN PART.

. Although a court is entitled, with notice to the parties, to convert a motion to dismiss to a motion for summary judgment where "matters outside the pleadings are presented,” *see*
        *21
        *Friedl v. City of New York,*210 F.3d 79, 83 (2d Cir.2000), we see no basis for the court in this case choosing to go the other way.

. We note also that Pignone’s complaint does not appear to include an allegation that “the municipality has a policy that cause[d the alleged constitutional] violations.” *See Vives*v. *City of New York,*524 F.3d 346, 350 (2d Cir.2008) (citing *Owen v. City of Independence,*445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)). Unless something in the record before the district court indicates otherwise, judgment in favor of the Village will likely be appropriate on this basis.