Mosier v. State University of New York

FILev

IN CLERK’S OFFICE

U.S. DISTRICT COURT E.D.N.Y.

*& JAN 0220200 □

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE

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ERIN MOSIER,

MEMORANDUM & ORDER

Plaintiff, 18-cv-6539 (SJF)(AKT)

-against-

THE STATE UNIVERSITY OF NEW YORK,

STONY BROOK UNIVERSITY, and

LAWRENCE FROHMAN, Ph.D., individually,

Defendants.

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FEUERSTEIN, District Judge:

I. Introduction

Plaintiff Erin Mosier (“Plaintiff’ or “Mosier”) commenced this civil action against

defendants The State University of New York (“SUNY”), Stony Brook University (“Stony

Brook”; together with SUNY, the “SUNY Defendants”), and Lawrence Frohman, Ph.D.,

individually (“Frohman”), alleging sexual discrimination in violation of Title IX, 20 U.S.C.

§ 1681, et seg., N.Y.S. Executive Law §§ 296(4) and (6), and N.Y.S. Civil Rights Law § 40-c(2).

(See Amended Complaint, ECF No. 30.) Presently before the Court are: Frohman’s motion

seeking the dismissal of the causes of action against him, pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure (hereafter, the “Frohman MTD” (see ECF No. 35); see also

Frohman Support Memo (ECF No. 35-4)); and, the SUNY Defendants’ motion seeking dismissal

of the action pursuant to Rules 12(b){1) and (6) of Federal Rules of Civil Procedure (hereafter,

the “SUNY MTD” (see ECF No. 37); collectively with the Frohman MTD, the “Dismissal

Motions”); see also SUNY Support Memo (ECF No. 37-1)). Plaintiff opposes the Dismissal

Motions. (See ECF Nos. 35-6 and 37-31 (hereafter, the “Opposition” or “Opp’n”).) For the

following reasons, the Dismissal Motions are granted in part and denied in part.

II. Background

A. Factual Allegations2

“SUNY is the largest comprehensive university system in the United States with 64

institutions serving nearly 1.3 million students.” (Amended Complaint, ¶5.) Stony Brook is a

SUNY institution located on Long Island, New York. (See id. at 6.) It received and continues to

receive federal financial assistance. (See id. at ¶50.)

After receiving an Associate’s Degree in Adolescent Education from Nassau Community

College in the Spring of 2015, graduating with a 3.3 grade point average (“GPA”) (see id. at

¶10), Plaintiff continued her education at Stony Brook, participating in its Social Studies

Education Program (hereafter, the “Program”), of which Frohman was a Director and whose

classes Mosier attended from September 2015 through May 2018. (See id. at ¶¶8, 12.) Frohman

was the Program’s sole undergraduate advisor. (See id. at ¶12.)

“Within weeks of attending . . . class taught by Frohman, Frohman began a campaign of

demeaning and degrading sex discrimination against Mosier, including both private statements

1 Although assigned two docketing numbers by the Court’s Electronic Case Filing (ECF)

system, Plaintiff submitted one opposition brief to both Dismissal Motions. (See Heller Decl.

(ECF No. 35-5), ¶2 (“Given the overlapping issues presented in Defendants’ two [Dismissal

M]otions, Moiser believes that one Brief is the most efficient method to address those issues.”);

see also Opp’n at (unnumbered) 1 (same).) Indeed, Plaintiff styled his Opposition as a

“Combined Memorandum of Law in Opposition”. The double submission of the Opposition

occurred to comply with the undersigned’s “Bundle Rule” (see SJF Individual Rule 4(B),

available at https://img.nyed.uscourts.gov/rules/SJF-MLR.pdf).

2 The factual allegation s in the Amended Complaint are assumed to be true for purposes of this

Memorandum & Order; they do not constitute findings of fact by the Court.

made during office hours and public humiliation during class . . .” (Id. at ¶14.) For example,

Plaintiff alleges Frohman stated:

● “You are nothing but a pretty face;”

● “All you are is a dumb blonde;”

● “You will only get positions in life if you use your body” and

“you should be thankful for your looks;”

● Telling Mosier during office hours that she “talks too much” and

that her mouth should be used “for something else” and that “all

women should use their mouth for men’s pleasure;”

● Degrading Mosier when she got an answer wrong by saying,

“It’s not your fault you are a woman and can’t help yourself but be

wrong;”

● “You will only make it in life if you marry rich;”

● One day when Mosier asked Frohman to explain an issue after

class, he responded by saying, “Can you get through all of your

blonde?”

● “Women have no right being in the workplace;”

● “This is not a place for women;”

● “Women are incompatible;”

● Making Mosier so uncomfortable with her appearance that she

changed her hair color from blonde to brown;

● Saying to Mosier in front of the entire class when she walked in

a few minutes late, “Look, the delinquent has joined us,” which he

would not have done to the male students;

● Making comments about Mosier’s looks and gender when she

attended Frohman’s office hours to ask questions about the

Program or creating her schedule;

● Silently approaching Mosier while she was reading or listening

to her headphones in the hallway of the Social and Behavioral

Sciences (“SBS”) building, where the Program was located and

where Frohman had his office, and standing over her until she

noticed his presence, which was frightening to Mosier, and which

Frohman did so frequently that Mosier stopped going to the SBS

building;

● Blatantly favoring male students over female students by, among

other things, allowing the male students to work independently

while Mosier and the one other female student in his class had to

work together, as if the female students were not able to complete

work on their own;

● Giving better grades to male students based on gender, as

demonstrated by the fact that Mosier and a male student did their

work together and checked each other’s work, yet the male student

consistently received a higher grade than Mosier, and Frohman

stated that he “grades based on feelings;”

● Making class so frightening and hostile that after class one

evening when Frohman called Mosier to return to the classroom,

Mosier became frozen with fear and only returned after a male

friend offered to accompany her, and the issue was merely that

Mosier had left her water bottle in the classroom;

● Making so many sexual comments to Mosier during office hours

that she became so uncomfortable that she made an excuse to

leave, even though Mosier was required to attend Frohman’s office

hours since he was the Program’s sole advisor, either to select

classes or to go over Mosier’s work;

● Emailing Mosier at the end of the Fall 2016 semester and telling

her to drop out of the Program, that he did not see a way for her to

complete the Program and that she would not graduate as a teacher,

which was devastating to Mosier;

● When Mosier brought her mother to meet with Frohman

following that email, demeaning Mosier by saying, “I see you

brought your mommy with you” and dismissing Mosier as having

a learning disability, saying to Mosier, “I don’t understand learning

disabilities and why can’t you just deal with it;”

● Saying to Mosier in front of her mother, “You have to prove to

me you are not just an air head dumb blonde with a pretty face;”

● Showing Mosier a list of grades at the end of the semester and all

the male students had A’s and B+’s, while the female students had

C’s and D’s;

● Intentionally embarrassing Mosier in class by asking a male

student his opinion about a topic and then asking Mosier her

opinion, after which Frohman kept asking Mosier “Why?” and

began to explain why the male student was right and she was

wrong, and when Mosier explained that she simply had a different

opinion from the male student, Frohman said in front of the class,

“I’m not going to have another 3-hour go around meeting with you

and your mother about your learning disability,” which caused

another student to say, “Why is Frohman hating extra on Erin

today?”

● Continuing to make comments in class about Mosier’s looks and

body, including calling her a “dumb blonde” in front of her peers;

● Making sexual comments and comments that put down women,

including talking about how he enjoys oral sex and using the term

“blow job” while standing over Mosier and looking at her;

● Asking the class to identify a picture on the chalkboard and

when Mosier, with permission, went to the front of the room to get

a closer look and realized what the image was, hitting Mosier

across the arm and saying, “Don’t say what it is or I’m going to

slap you across your ass for not being a good girl;”

● Responding to Mosier’s email requesting a meeting with

Frohman, “Say please . . .” which he would not have done to a

male student;

● When Mosier finally broke down and told Frohman that she was

going to drop the Program because her work was never going to be

good enough, saying, “Do I make you feel this way?” and when

Mosier said yes, convincing Mosier to remain in the Program, yet

demeaning her in the same meeting by throwing books and balls at

her and saying, “You have the attention span of a gnat” and “You

are worse than my wife and dog combined.”

(Id. at 3-6, ¶14.) These examples show “how Frohman created an environment that was

permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe

and/or pervasive to alter the conditions of Mosier’s educational environment.” (Id. at 7

(concluding sentence of ¶14).) In another incident on April 12, 2017, when Plaintiff was

presenting a lesson plan in class (hereafter, the “Presentation Incident”), Frohman acted in a

belittling and confrontational manner prompting other students to tell Frohman to “back off” and

that he was making Plaintiff “uncomfortable”, with another student taking a photo and posting it

to social media with the caption “Creepy ass professor.” (Id. at ¶17.)

Following the Presentation Incident, Mosier complained about Frohman’s behavior to

Professors Sara Lipton, Ph.D. (“Lipton”) and Paul Gootenberg, Ph.D. (“Gootenberg”). (See id.

at ¶¶18-19.) “At the start of the meeting, Gootenberg stated, “I don’t mean to sound cynical, but

what did [Frohman] do now?’” (id. at ¶20 (emphasis omitted)), and continued by stating, “‘You

are like the fifth person this semester to come to me about Professor Frohman[,] and I heard and

know things about him, but this is just way out of hand and I can’t keep covering for him.’” (Id.

at ¶22 (emphasis omitted).) Thereafter, on “April 28, 2017, Mosier had a meeting with Stony

Brook’s Title IX [O]ffice that lasted approximately two hours” (hereafter, together with Mosier’s

complaint to Lipton and Gootenberg, the “Frohman Complaint”). (Id. at ¶24.) Plaintiff alleges

Stony Brook responded to her Frohman Complaint in the following manner:

● Taking six months to complete its investigation, even though the

Title IX office initially told Mosier that the investigation would be

just 60 days;

● Consistently avoiding Mosier when she called the Title IX

[O]ffice, so that she had no idea what was occurring with her

complaint;

● Telling Mosier that Stony Brook came up with a “safety plan,”

although the “plan” was merely for Mosier to call 911;

● When Mosier protested that Stony Brook was not taking action

to ensure her safety, the Title IX representative said it would

conduct a meeting with Mosier, her parents, the Title IX [O]ffice

and University Police, and when the meeting finally occurred on

August 29, 2017, just days before the fall semester was to begin,

the University Police had no idea why they were there and Stony

Brook’s Title IX’s representative only response was to say, “We

cannot guarantee your safety.”

(Id. at 9, ¶25 (emphasis removed).) In addition to exemplifying deliberate indifference, Plaintiff

further alleges these responses were “clearly unreasonable in light of the known circumstances”

and demonstrated that “Stony Brook ratified and approved Frohman’s conduct.” (Id. at 10

(concluding sentence of ¶25).)

Moreover, Plaintiff alleges that “Frohman’s egregious sex discrimination . . . had a

devastating impact on her emotional well being and confidence,” causing her: “to suffer

depression and difficulty sleeping;” GPA to fall from 3.3 when she graduated from Nassau

Community College to 2.75 at Stony Brook, which lower GPA “prevented her from being a

student teacher . . . , which was a pre-requisite to Mosier completing the Program and becoming

a teacher”; “to suffer panic attacks and anxiety that required her to miss classes and avoid office

time with other professors” “when she was required to see professors in the same building where

Frohman’s maintained his office;” and “to seek counseling for the distress and anxiety she

continued to suffer.” (Id. at ¶¶27-30.)

To fulfill her student teaching pre-requisite, Mosier needed a waiver of the GPA

requirement and was informed that Frohman and Professor Charles Backfish (“Backfish”) made

such waiver determinations. (See id. at ¶30-¶31.) Instead, Plaintiff “spoke with Interim

Associate Dean of Students Ellen Driscoll (“Driscoll”), who told Mosier that providing a waiver

under the circumstances was an ‘easy fix’ and that she would speak with Associate Provost

Richard Gatteau (“Gatteau”).” (Id. at ¶32.) However, Gatteau would not provide the waiver,

instead, inter alia, “pressur[ing] Mosier into leaving the teaching program” and “graduat[ing]

with only a degree in History.” (Id. at ¶33.) “[W]hen Mosier refused to withdraw from the

Program, Gatteau became increasingly hostile towards her.” (Id. at ¶34; see also id. at ¶¶36-37.)

Backfish, whose office was next to Frohman’s, was similarly unhelpful, refusing to “meet with

Mosier in a neutral setting to discuss her being able to student teach, even though Stony Brook’s

Title IX Office had told Mosier that Backfish would be required to meet with her in a neutral

location.” (Id. at ¶35.) Ultimately, however, Plaintiff was able to student teach, albeit through

another school. (See id. at ¶40.)

Mosier further alleges that despite her “repeated efforts to get information about the

status of the investigation into her [Frohman C]omplaint[, she] was met with resistance and

secrecy.” (Id. at ¶39; see also id. at ¶36 (alleging that her September 28, 2017 correspondence to

Gatteau, copied to Stony Brook’s President, “complaining about Frohman’s conduct and Stony

Brook’s ineffective response” went unanswered).) It was only on October 30, 2017 that Plaintiff

“received a letter from Stony Brook’s Title IX [O]ffice stating that the case was ‘closed’ and that

Mosier’s allegations had been substantiated,’ yet she was not given any further information and

was never told what the findings of Stony Brook’s investigation showed or what penalty, if any,

was taken against Frohman.” (Id. at ¶ 41.) On December 18, 2017, Plaintiff “met with Labor

Relations” “and after describing Frohman’s sex discrimination of her, was told that Title IX had

handled her [Frohman C]omplaint ‘all wrong’ and that it should not have taken six [months3] to

complete the investigation, yet, thereafter, Labor Relations refused to have any further contact

with” her. (Id. at ¶42.)

On May 18, 2018, Mosier attended commencement and graduated from Stony Brook.

(See id. at 47.)

B. Procedural History

On August 9, 2018, Plaintiff commenced this action in the Southern District of New

York. (See Complaint (ECF No. 1).) By Stipulation and Order, the case was transferred to this

Court. (See ECF Nos. 21 and 22; see also docket text accompanying ECF No. 1 (“[Transferred

from New York Southern.]”).) On December 28, 2018, Mosier’s counsel sent the Office of the

New York State Attorney General a letter notifying it of this action, including her claim pursuant

3 While Plaintiff stated “weeks”, read in the context of her entire Complaint, there can be no

dispute that Plaintiff meant “months”.

to N.Y.S. Civil Rights Law § 40-c. (See Amended Complaint, ¶76.) On January 10, 2019,

Plaintiff filed her Amended Complaint (see ECF No. 30), asserting four causes of action:

1. a claim of sex discrimination in violation of Title IX against the SUNY

Defendants (Amended Complaint, First Cause of Action, ¶¶49-57);

2. a claim of discrimination in violation of NYSHRL § 296(4) against the SUNY

Defendants (Amended Complaint, Second Cause of Action, ¶¶58-64);

3. a claim of aiding and abetting in the discrimination that Stony Brook permitted

Mosier to suffer, in violation of NYSHRL § 296(6), against Frohman (Amended

Complaint, Third Cause of Action, ¶¶65-69); and

4. a claim of discrimination in violation of N.Y.S. Civil Rights Law §40-c against

all Defendants (Amended Complaint, Fourth Cause of Action, ¶¶70-77).

The common theme in all of Mosier’s causes of action is that Stony Brook had or should have

had notice of Frohman’s sex discrimination of Mosier, but it took no action to stop that

discrimination and failed to adequately respond or investigate Mosier’s Frohman Complaint.

(See Amended Complaint, ¶¶52, 60, 72; see also id. at ¶66.) The Defendants seek to dismiss the

Amended Complaint, which Plaintiff opposes. In support of her Opposition, Mosier attached a

“copy of Frohman’s bio as a ‘Visiting Scholar’ at Harvard University form September 1, 2018

through May 31, 2019” (Heller Decl. (ECF No. 37-2), ¶5 (citing Ex. B, attached to Heller

Decl.)) and “[a]n article from the ‘Stony Brook Independent,’ Stony Brook’s student newspaper,

dated October 4, 2018, entitled ‘Title IX Protests at State of University Address’” (id. at ¶6

(citing Ex. C, attached to Heller Decl.)). Supporting its Reply (see ECF No. 37-4), the SUNY

Defendants attached, inter alia, a “copy of the Stipulation of Settlement of charges against . . .

Frohman, setting forth the penalties he agreed to, regarding Plaintiff’s internal complaint against

him” (Logue Reply Decl. (ECF No. 37-5), ¶5 (citing Ex. A, attached to Logue Reply Decl.)) and

a “copy of excerpts of the collective bargaining agreement regarding the United University

Professionals, of which . . . Frohman is a member, relating to disciplinary proceedings against its

members” (id. at ¶6 (citing Ex. B, attached to Logue Reply Decl.)).

C. The Parties’ Positions

1. The SUNY Defendants’ Arguments

As to Plaintiff’s federal claim, the University Defendants argue that Mosier cannot make

out a Title IX cause of action because her own allegations undermine that claim. (SUNY MTD

at 7.) That is, despite claiming that Stony Brook: had or should have had notice of Frohman’s

sex discrimination; took no action to stop said discrimination; and failed to adequately respond to

or investigate the Frohman Complaint, Mosier alleged “only that she was not ‘given any further

information’” regarding the investigation and, since she also alleged having received a letter

from Stony Brook’s Title IX Office informing her that her Frohman Complaint had been

“substantiated,” albeit six months after the Frohman Complaint, she has conceded the SUNY

Defendants “timely, actively and adequately investigated” said Complaint. (Id. at 8 (citing

Amended Complaint, ¶¶41, 42.)

Regarding Plaintiff’s state law claims of violations of NYSHRL § 296(4) and NYSCRL

§ 40-c, the SUNY Defendants ask this Court to decline exercising pendent jurisdiction over those

claims because Mosier cannot establish the requisite federal jurisdiction needed upon which to

base supplemental jurisdiction. (See id. at 9.) Alternatively, they argue that: as to Plaintiff’s

§ 296(4) claim, Plaintiff “has failed to allege that the [SUNY] Defendants somehow authorized,

condoned, or acquiesced to . . . Frohman’s discriminatory conduct toward Plaintiff” and because

she has not made this “more stringent showing,” she has failed to state a claim pursuant to

§ 296(4) (see id. at 10); and, as to Mosier’s § 40-c claim, because Mosier failed to comply with

the corresponding mandated notice requirement of § 40-d, as conceded by her own allegation

(see Amended Complaint, ¶76), dismissal of her § 40-c claim is required. (See SUNY MTD at

12-13.)

2. Frohman’s Arguments

Frohman argues that Plaintiff’s aider and abettor claim against him should be dismissed

as a matter of law since Plaintiff alleges that only Frohman discriminated against her, but he

cannot aid and abet his own conduct. (See Frohman MTD at 2, 4-7.) He also notes that this

claim “must be dismissed in the absence of any liability on the part of his employer, SUNY.”

(Id. at 7, note 1.) As to Plaintiff’s § 40-c state civil rights claim, Frohman contends that since

Mosier did not comply with the statute’s predicate notice requirement of notifying the N.Y.S.

Attorney General of this claim at or before the commencement of this action, that noncompliance

requires dismissal of the claim. (See id. at 2, 7-8.) Indeed, according to Frohman, in her

Amended Complaint, Mosier “concedes that she failed to comply with section 40-d.” (Id. at 8

(citing Amended Compliant at ¶76).)

3. Mosier’s Opposition

(a.) Regarding Plaintiff’s Title IX Cause of Action

Mosier argues that, from Gootenberg’s comments, it was clear that Stony Brook was

aware Frohman had the potential to abuse students, which, at the pleading stage, is sufficient to

survive a dismissal motion. (See Opp’n at 11-12.) Moreover, she contends that her allegations

plausibly assert that Stony Brook’s response to her Frohman Compliant exhibited deliberate

indifference and that she should be afforded the opportunity to conduct discovery to determine

“what action, if any, Gootenberg took in response to Mosier’s [Frohman C]omplaint” and “what

action Stony Brook’s Title IX Office took in response to Mosier’s” April 28, 2017 meeting with

the School’s Title IX representatives while she “remained exposed to Frohman, who was the sole

undergraduate advisor for the Program.” (Id. at 13.) Moreover, because she “was required to go

to the building where Frohman maintained his office,” she “suffer[ed] panic attacks and

avoid[ed] office time with other professors.” (Id.) Further, the School also exhibited deliberate

indifference to Mosier’s Frohman Complaint when, among other things, it “failed to intervene”

in assisting her to procure a minimum-grade waiver in order to student-teach, which waiver: was

necessitated by Mosier’s fallen GPA “due to Frohman’s discrimination and Stony Brook’s

ineffective response;” and, was overseen by Frohman. (Id. at 14.) By way of example, Mosier

highlights, inter alia: Backfish’s “refus[al] to meet with Mosier in a neutral setting to discuss

her being able to student teach;” Driscoll’s initial assurance that securing a waiver would be an

“easy fix” followed by “suddenly stop[ing] speaking to Mosier;” and, Gatteau’s: trying to

convince Mosier to leave the Program; hostility towards Mosier; and, ultimate dismissal of

Mosier when she refused to leave the Program. (Id. at 14-15 (citing Amended Complaint, ¶¶32-

34, 36-37)). In sum, Plaintiff argues that the finding of the Frohman Complaint to be

“substantiated” should not insulate the School from liability for its ineffective response. (See id.

at 15 (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 668 (2d Cir. 2012)); see also id.

at 16 (“Stony Brook should not be permitted to use its failures to apprise Mosier of what was

happening as a sword to dismiss her case.”).) Plaintiff asserts that a jury should “consider Stony

Brook’s efforts to force Mosier out of the Program following her [Frohman C]omplaint.” (See

id.)

(b.) Regarding Plaintiff’s § 296(4) Cause of Action

Similarly, Plaintiff argues that her Amended Complaint contains sufficient allegations

plausibly asserting a § 296(4) claim under the NYSHRL. (See id. at 17.) In particular,

Gootenberg’s comments, i.e., that Mosier was “like the fifth person this semester to come to me

about . . . Frohman”; “this is just way out of hand;” and “I can’t keep covering for [Frohman],”

demonstrate that Stony Brook condoned Frohman’s sex discrimination. (Id.) Such condonation

is also exhibited by the School’s “failing to conduct a timely investigation, keeping the results

and any action against Frohman secret[,] and permitting a private investigator to use class time to

help assist Frohman,” which allegations surpass the minimal requirements for setting forth a

§ 296(4) claim. (Id. at 18 (citing EEOC v. Suffolk Laundry Servs., Inc., 48 F. Supp.3d 497, 522

(E.D.N.Y. 2014)(discussing an employer’s condonation of its employee’s actions subjected

employer to NYSHRL liability).)

(c.) Regarding Plaintiff’s § 296(6) Cause of Action

In essence, Mosier asks the Court to reject Frohman’s reliance on cases which stand for

the proposition that an individual cannot be held liable for aiding and abetting his own predicate

actions as doing so “would create a loophole in the law that shields the primary perpetrator of

discrimination.” (Id. at 21.) Instead, she argues that the Court should follow the Second

Circuit’s Tomka precedent, see 66 F.3d 1295 (2d Cir. 1995), which was reaffirmed in Feingold v.

New York, 366 F.3d 138, 158 (2d Cir. 2004) (see id. at 18), i.e., that an individual may be held

liable for aiding and abetting allegedly unlawful discrimination by his employer even where his

actions serve as the predicate for the employer’s vicarious liability (see id. at 19 (collecting

cases)).

(d.) Regarding Plaintiff’s §40-c Cause of Action

In response to the Defendants’ arguments that Mosier failed to provide the requisite

§ 40-d notice, Mosier argues that because she served her original Compliant upon Stony Brook

and SUNY, who are both represented by the Attorney General, the Defendants were “provided

notice of this action at its commencement.” (Id. at 22.) She further contends that by sending her

December 28, 2018 letter to the N.Y.S. Attorney General “so that there could be no question that

the Attorney General’s office [wa]s aware of this action,” she has satisfied § 40-d. (Id.)

Alternatively, and relying upon other New York State notice-of-claim statutes, i.e., under New

York State’s General Business Law and Labor Law, Mosier argues this Court should find that

“serving notice upon the Attorney General should not be a jurisdictional prerequisite.” (Id. at

25.)

III. Discussion

A. Rule 12(b)(6) Dismissal Standard4

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court clarified the appropriate

pleading standard, setting forth a two-pronged analysis to be used in deciding Rule 12(b)(6)

dismissal motions. First, district courts are to “identify [ ] pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth,” id. at 679, since, although

they “can provide the framework of a complaint, they must be supported by factual allegations.”

Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a [d]efendant has acted unlawfully.” Id. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556-57 (2007) (internal citations omitted)). Indeed, the plausibility

standard “does not impose a probability requirement at the pleading stage; it simply calls for

enough fact to raise a reasonable expectation that discovery will reveal evidence of” the

wrongdoing alleged, Twombly, 550 U.S. at 556, 127 S. Ct. 1955, “even if it strikes a savvy judge

that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”

4 See infra at notes 6 and 7.

Citizens United v. Schneiderman, 882 F.3d 374, 380 (2d Cir. 2018) (quoting Twombly, 550 U.S.

at 556, 127 S. Ct. 1955). “In ruling on a motion pursuant to Fed. R. Civ. P. 12(b)(6), the duty of

a court 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.” Hogan v. Fischer, 738 F.3d 509, 514 (2d

Cir. 2013) (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010)); see

also Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162, 190 (2d Cir. 2012) (“[O]n a

Rule 12(b)(6) motion it is not the province of the court to dismiss the complaint on the basis of

the court’s choice among plausible alternatives. Assuming that [the plaintiff] can adduce

sufficient evidence to support its factual allegations, the choice between or among plausible

interpretations of the evidence will be a task for the factfinder.”).

In deciding a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,

the Court must limit itself to the facts alleged in the pleading, which are accepted as true; to

matters of which judicial notice may be taken, such as publicly available agency documents, see,

e.g. In re Frito-Lay N. Am., Inc. All Natural Litig., No. 12-MD-2413, 2013 WL 4647512, at * 4

(E.D.N.Y. Aug. 29, 2013) (citing cases); to any written instrument attached to the pleading as an

exhibit pursuant to Rule 10(c) of the Federal Rules of Civil Procedure; to statements or

documents incorporated by reference in the pleadings; or to documents upon the terms and effect

of which the pleading “relies heavily” and which are, thus, rendered “integral” thereto. See

Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also Nicosia v.

Amazon.com, Inc., 834 F.3d 220, 230-31 (2d Cir. 2016); Smith v. Hogan, 794 F.3d 249, 254

(2dCir. 2015); Tubbs v. Stony Brook Univ., No. 15-cv-517, 2016 WL 8650463, at * 4 (S.D.N.Y.

Mar. 4, 2016).

B. The Instant Case

In deciding the Dismissal Motions, the Court is limiting itself to the facts alleged in

Mosier’s Amended Compliant, declining to consider any of the matters attached to Mosier’s

Opposition or to the SUNY Defendants’ Reply as none of those attachments were attached to

Mosier’s Amended Complaint in accordance with Federal Rule of Civil Procedure 10(c), they

are not incorporated by reference into Mosier’s Amended Complaint, and they have not been

relied upon, let alone heavily relied upon, in drafting the Amended Compliant and, therefore,

cannot be considered integral to said Complaint. (See supra at p.15 (discussing the items a court

may consider when deciding a Rule 12(b)(6) dismissal motion).)

1. Regarding Plaintiff’s Title IX Cause of Action

Title IX provides, in pertinent part, that “[n]o person in the United States shall, on the

basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial assistance.”

20 U.S.C. § 1681(a)(emphasis added). Title IX “has . . . been recognized as . . . encompassing

teacher-on-student hostile educational environment sexual harassment.” Hayut v. State Univ. of

N.Y., 352 F.3d 733, 750 (2d Cir. 2003)(citing Franklin v. Gwinnett County Pub. Schs., 503 U.S.

60, 65-66 (1992)); see also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81,

88-89 (2d Cir. 2011)(Title IX affords “a remedy to a student who is subjected to sexual

harassment by a teacher or professor at an educational institution receiving federal funds”). “[A]

Title IX hostile education environment claim is ‘governed by traditional Title VII ‘hostile

environment’ jurisprudence.” Papelino, 633 F.3d at 89 (quoting Hayut, 352 F.3d at 744); see

also Irrera v. Humpherys, 695 F. App’x 626, 628 (2d Cir. 2017) (quoting Papelino, 633 F.3d at

89).

“To establish harassment sufficient to create a hostile educational environment that

would violate Title IX, a plaintiff must show that the harasser’s ‘conduct created an educational

environment sufficiently hostile as to deprive [her] of ‘access to the educational opportunities or

benefits’ provided by [her school],’ and [s]he must show that the institutional defendants had

actual knowledge of the harassment and failed to respond.” Wolff v. State Univ. of N.Y., 678 F.

App’x 4, 6-7 (2d Cir. 2017)(quoting Hayut, 352 F.3d at 750 (quoting Davis, 526 U.S. at 650));

cf., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 666 (2d Cir. 2012)(in context of Title VI

case,5 stating that “[d]iscriminatory actions [are those which] restrict an individual in any way in

the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial

aid, or other benefit under the school system,” and that “[e]ducational benefits include an

academic environment free from [unlawful] hostility” (omitting internal quotation marks and

citations)). More specifically:

[f]or an educational facility to be liable, . . . the plaintiff must

establish that a school official with “authority to address the

alleged discrimination and to institute corrective measures” had

“actual knowledge” of the discrimination and failed to adequately

respond. Gebser [v. Lago Vista Indep. Sch. Dist.], 524 U.S. [274,]

290, 118 S. Ct. 1989 [(1998)]. A school fails to adequately

respond if it provides no response or if it provides a response that

“amount[s] to deliberate indifference to discrimination.” Id.

Papelino, 633 F.3d at 89. “Deliberate indifference may be found both ‘when the defendant’s

response to the known discrimination ‘is clearly unreasonable in light of the known

circumstances,’’” Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999)(quoting

Davis, 526 U.S. at 648, 119 S. Ct. 1661), and when remedial action only follows after ‘a lengthy

5 See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 694-98 (1979)(instructing that Congress

intended Title IX would be interpreted and applied in the same manner as Title VI); Alexander v.

Choate, 469 U.S. 287, 294 (1984) (instructing that the same analytical framework should

generally apply in cases under Title IX, Title VI, and Section 504 of the Rehabilitation Act of

1973 since all three statutes contain parallel language).

and unjustified delay,’ Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 761 (2d Cir.

1998).” Hayut, 352 F.3d at 751.

In Gebser v. Lago Vista Independent School District, 524 U.S. 274

(1998), a case involving a sexual relationship between a teacher

and an eighth-grade student that was not reported to school

officials, the Supreme Court held that “a damages remedy will not

lie [against a school district] under Title IX unless an official who

at a minimum has authority to address the alleged discrimination

and to institute corrective measures on the [federal funding]

recipient’s behalf has actual knowledge of discrimination in the

recipient’s programs and fails adequately to respond.” 524 U.S. at

290 (emphasis added). “Deliberate indifference” or “an official

decision by the recipient not to remedy the violation” constitutes

an inadequate response. Id. at 290-91. The Supreme Court has

“declined . . . to impose [Title IX] liability under what amount[s]

to a negligence standard – holding the district liable for its failure

to react to teacher-student harassment of which it knew or should

have known.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629,

642 (1999) (emphasis in original) (citing Gebser, 524 U.S. at 283).

“The high standard imposed in Gebser sought to eliminate any

‘risk that the recipient would be liable in damages not for its own

official decision but instead for its employees’ independent

actions.’” Id. at 643 (quoting Gebser, 524 U.S. at 290-91).

RF v. South Country Cent. Sch. Dist., No. 13-cv-2710, 2016 WL 5349782, at *8 (E.D.N.Y. Sept.

23, 2016).

Here, the well-pled facts establish that: the SUNY Defendants run educational programs

and receive federal financial assistance; Mosier was subjected to an academic environment that

was not free from unlawful hostility based upon her sex; and, that Stony Brook’s Title IX Office

had actual knowledge of Mosier’s Frohman Complaint. The open dispute is whether the SUNY

Defendants’ response to the Frohman Complaint amounted to deliberate indifference, such that

they should be liable to Mosier pursuant to Title IX.

Plaintiff alleges that it took approximately six months before she was notified that her

Frohman Complaint had been substantiated, and that despite inquiries, she was not told the

results, if any, of the School’s Title IX Office’s investigation into the Frohman Complaint. (See

Amended Complaint, ¶¶25, 41, 42.) In other words, Plaintiff is arguing that the School’s

response was inadequate, which finding would support her claim of a Title IX violation. While

recognizing Mosier’s contention is that the investigation was not conducted properly (see SUNY

Reply at 3-4), the SUNY Defendants argue “Plaintiff alleges only that she received a letter from

Stony Brook’s Title IX [O]ffice six months after she made her [Frohman C]omplaint informing

her that her allegations had been ‘substantiated;’ she does not allege facts demonstrating when

the investigation by Stony Brook’s Title IX office actually ended.” (Id. at 4 (citing Amended

Complaint, ¶41); see also SUNY Support Memo at 8 (arguing that Mosier’s allegation regarding

being informed that her Frohman Complaint had been “substantiated” is an admission that the

SUNY Defendants “adequately and timely responded to her [Frohman C]omplaint”).) Yet, that

is the point: Plaintiff plausibly alleges that, despite her Frohman Complaint eventually being

substantiated, her efforts to find out the status of the investigation, i.e., to determine whether

Stony Brook was adequately responding to said Complaint, were repeatedly rebuffed by Stony

Brook, as it was non-responsive to her inquiries both before and after said substantiation. (See

Amended Complaint, ¶¶33, 35, 36, 37, 39, 41, 42.) Simply acknowledging a Title IX complaint

of sex harassment as being ‘substantiated’ is not the same is providing a response to that

complaint. Yet, by the logic of the SUNY Defendants’ argument, mere substantiation of a

complaint would relieve them of any liability for failing to adequately respond to such a

complaint. The Court rejects such an argument and finds that Mosier’s factual allegations are

enough “to raise a reasonable expectation that discovery will reveal evidence,” Twombly, 550

U.S. at 556, of her alleged Title IX violation, i.e., Stony Brook’s failure to adequately respond to

her Frohman Complaint. Moreover, the fact that, in their Reply, the SUNY Defendants proffered

explanations for the length of time it took both to substantiate the Frohman Complaint and then

supposedly to respond to it (see Reply at 4 (explaining, inter alia, that: the summer break

impeded Stony Brook’s initial investigation; once substantiated, the Frohman Complaint was

“transferred to Stony Brook’s Labor Relations Office;” and, the Labor Relations Office “was

required to provide due process to . . . Frohman as required by the collective bargaining

agreement”)), but which evidence is not before the Court, underscores the open question

regarding whether Stony Brook adequately responded to the Frohman Complaint and the need

for discovery to answer that question. In any event, “on a Rule 12(b)(6) motion[,] it is not the

province of the court to dismiss the complaint on the basis of [its] choice among plausible

alternatives.” Anderson News, 680 F.3d at 190. Rather, “[a]ssuming that [the plaintiff] can

adduce sufficient evidence to support [her] factual allegations, the choice between or among

plausible interpretations of the evidence will be a task for the factfinder.” Id. Accordingly,

based upon Mosier’s factual allegations in her Amended Complaint, it is plausible to inference

that the SUNY Defendants are liable for violating Title IX by not adequately responding to the

Frohman Complaint.

2. Regarding Plaintiff’s § 296(4) Cause of Action

New York State’s Human Rights Law provides, in relevant part, that:

[i]t shall be an unlawful discriminatory practice for an educational

institution * * * to permit the harassment of any student * * * by

reason of his race, color, religion, disability, national origin, sexual

orientation, gender identity or expression, military status, sex, age

or marital status * * *.

§ 296(4). “The identical standards apply to . . . discrimination claims brought under . . . Title IX

and New York Executive Law § 296.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d

Cir. 2000)(citations omitted).

While it is well-established that a court may sua sponte raise the issue of subject matter

jurisdiction at any time, and that “[i]f subject matter is lacking, the action must be dismissed,”

Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000)(citations

omitted), “[w]hether a state’s sovereign immunity under the Eleventh Amendment presents a

question of subject matter jurisdiction is an open question in the Supreme Court and the Second

Circuit.” See Seitz v. New York State, No. 18-cv-4149, 2019 WL 4805257, at *6, n.10 (E.D.N.Y.

Sept. 30, 2019) (citing Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 391 (1998); Carver v.

Nassau County Interim Fin. Auth., 730 F.3d 150, 156 (2d Cir. 2013)). Given the open nature of

this jurisdictional issue in conjunction with the fact that the SUNY Defendants have failed to

raise a sovereign immunity argument in support of their Dismissal Motion,6 notwithstanding that

“New York’s sovereign immunity extends to the State University of New York system,”

Wilkinson v. New York State, No. 18-cv-4148, 2019 WL 5423573, at *7 (E.D.N.Y. Oct. 22,

2019)(citing Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990)); see also Mamot v.

Bd. of Regents, 367 F. App’x 191, 192-93 (2d Cir. 2010) (holding SUNY entitled to Eleventh

Amendment immunity as an agency of the State of New York), and that “claims under the

NYSHRL against SUNY and [its c]ollege[s] are barred by sovereign immunity” Hauff v. State

Univ. of N.Y., No. 18-cv-7256, 2019 WL 6498256, at *6 (E.D.N.Y. Dec. 3, 2019), the Court

finds itself constrained to decline dismissing this claim upon jurisdictional grounds at this stage

of the litigation.7 Additionally, given that the same standard applies to Mosier’s NYSHRL claim

6 Although the SUNY Defendants discuss the Rule 12(b)(1) standard of review, they do not

raise that as a basis for dismissing any of Plaintiff’s causes of actions against them. (See SUNY

Support Memo (ECF No. 37-1) at 3-4; cf., id. at Arguments I, II, and III.)

7 The Court notes that, contrary to the instant case, in Wilkinson and Hauff, defendant SUNY

specifically raised Eleventh Amendment arguments as a basis to dismiss the respective plaintiffs’

NYSHRL claims. See Wilkinson, No. 18-cv-4148, Dismissal Motion Support Memo (ECF No.

as to her Title IX claim, for the reasons the Court declines to dismiss Mosier’s Title IX claim, it

also declines to dismiss her NYSHRL cause of action at this juncture.

3. Regarding Plaintiff’s § 296(6) Cause of Action

[Section] 296 is, in essence, an employment discrimination

statute, not an individual liability statute, even though individuals

can . . . be liable under some circumstances. “Importantly, since it

is the employer’s participation in the discriminatory practice which

serves as the predicate for the imposition of liability on others for

aiding and abetting, a plaintiff cannot prevail against an individual

on her state claims unless she can first establish the liability of her

employer.” Pellegrini v. Sovereign Hotels, Inc., 740 F. Supp.2d

344, 356 (N.D.N.Y. 2010) (internal citations and punctuation

marks omitted); see also Jordan v. Cayuga County, [No. 5:01-cv-

1037,] 2004 WL 437459, *4 (N.D.N.Y. [Feb. 9,] 2004) (plaintiff

may only recover under § 296(6) where she can show that

defendant aided or abetted primary violation of NYHRL

committed by another employee or the business itself).

Alexander v. Westbury Union Free Sch. Dist., 829 F. Supp.2d 89, 115–16 (E.D.N.Y. 2011)

(emphasis in original).

Because, at this point in the case, the threshold determination regarding the SUNY

Defendants’ liability under § 296(4) remains an open issue, it is premature to dismiss Mosier’s

§ 296(6) claim against Frohman. (See Frohman Reply at 4 (arguing, in the alternative, that the

§ 296(6) claim against Frohman “should be dismissed if the claims against [the SUNY

Defendants] are dismissed because Frohman’s aiding and abetting liability hinges upon that of

his employer”).) Similarly, it is not yet necessary for the Court to determine which of the

parties’ opposing arguments should prevail regarding the issue of whether a single individual,

whose unlawful discriminatory conduct is the basis for NYSHRL § 296(4) claim, can aid and

20-5) at 9-10, 23); Hauff, No. 18-cv-7256, Dismissal Motion Support Memo (ECF No. 18-5) at

3). If Eleventh Amendment immunity is raised as an affirmative defense to Plaintiff’s Second

Cause of Action, the Court will rule on that defense accordingly.

abet his own conduct. See, e.g., Alexander v. Westbury Union Free Sch. Dist., 829 F. Supp.2d

89, 115 (E.D.N.Y. 2011)(discussing § 296(6) aider and abettor liability when there is only one

individual and that Second Circuit precedent regarding aider and abettor liability has not

addressed such a fact scenario, but concluding that where there is no liability on the employer’s

part, any claim based upon § 296(6) must fail). (Cf., e.g., Opp’n at 18-21 (asserting that Tomka

remains Second Circuit controlling precedent and implicitly arguing that it applies to all § 296(6)

claims), with Frohman Reply at 2-4 (arguing that since he is the only named individual

defendant, Frohman cannot aid and abet his own alleged unlawful conduct, thereby requiring

dismissal of the § 296(6) claim against him and discussing cases that support this position).)

4. Regarding Plaintiff’s §40-c Cause of Action

New York Civil Rights Law § 40-c provides that all persons within the State’s

jurisdiction are entitled to the equal protection of the State’s laws and shall not be subject to any

discrimination of his civil rights by, among others, “the state or any agency or subdivision of the

state” because of, inter alia, his sex. NYSCRL § 40-c(1)-(2). Further, “[t]he notice provision of

the statute states, in pertinent part, that ‘[a]t or before the commencement of any action under

this section, notice thereof shall be served upon the attorney general.’” Cinquanti v. Tompkins-

Cortland Cmty. Coll., No. 99-cv-1478, 2000 WL 949460, at *9 (N.D.N.Y. July 5, 2000((quoting

NYSCRL §40-d (emphasis in original)). (See also Frohman Reply (ECF No. 35-7) at 6

(collecting cases).)

In Cinquanti, the court dismissed the plaintiff’s § 40-c claim because, although she

“cured [her] pleading deficiency by amending her compliant to allege compliance with § 40-d,

the fact remain[ed] that notice was not provided to the Attorney General ‘at or before the

commencement of [the] action.’” Id. Because “[c]ase law clearly states that ‘[f]ailure to []

comply with section 40-d mandates dismissal of a section 40-c claim,’” id. (quoting Rivera v.

Hertz Corp., 990 F. Supp. 234, 238 (S.D.N.Y. 1997), and collecting cases), the Cinquanti Court

found “plaintiff’s delay in providing notice of her § 40-c action mandate[d] dismissal of the

claim.” Id. This Court is presented with a nearly identical scenario.

Rule 3 of the Federal Rules of Civil Procedure makes clear that an action is commenced

upon the filing of a complaint. See Fed. R. Civ. P. 3 (“A civil action is commenced by filing a

complaint with the court.”). There is no dispute that this action was commenced on August 9,

2018, when Mosier’s original Complaint was filed. (See ECF No. 1; see also Amended

Complaint, ¶3.) The fact that the Office of the New York New York State Attorney General

subsequently filed a Notice of Appearance on behalf of the SUNY Defendants (see ECF No. 8),

does not, as Mosier implicitly argues (see Opp’n at 22), cure her failure to provide notice of the

action at or before the commencement of the action, as required by § 40-d. Further, Mosier’s

additional allegation in her Amended Complaint that she has provided the Attorney General with

notice of her § 40-c claim via a December 28, 2019 letter (see Amended Complaint, ¶76) is

equally ineffective to cure her noncompliance with § 40-d. See Cinquanti, 2000 WL 949460, at

*9. Rather, because Mosier commenced this action on August 9, 2018 (see Amended Complaint

at ¶3) but, did not provide the Attorney General § 40-d notice of her § 40-c claim until after the

action’s commencement (see id. at ¶76), Mosier’s “delay in providing notice of her § 40-c action

mandates dismissal of th[is] claim.” Cinquanti, 2000 WL 949460, at *9; see also, e.g., Peritz v.

Nassau County Bd. of Coop. Educ. Servs., No. 16-cv-5478, 2019 WL 2410816, at *2 (E.D.N.Y.

June 7, 2019)(“’Notice of claim requirements are construed strictly’ and ‘[f]ailure to comply

with these requirements ordinarily requires dismissal for failure to state a cause of action.’”

(quoting Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999)(internal

quotation marks omitted)).

IV. Conclusion

Accordingly, IT IS HEREBY ORDERED that:

A. The SUNY Defendants’ Dismissal Motion is granted in part and denied in part, with

Plaintiff’s:

1. Fourth Cause of Action against the SUNY Defendants being dismissed, but the

2. First and Second Causes of Action against the SUNY Defendants remaining;

B. Frohman’s Dismissal Motion is granted in part and denied in part, with Plaintiff’s:

1. Fourth Cause of Action against Frohman being dismissed, but the

2. Third Cause of Action against Frohman remaining;

C. By February 3, 2020, the Defendants are to serve and file their Answers to Plaintiff’s

Amended Complaint; and

D. The January 14, 2020 Status Conference is adjourned to March 5, 2020, at

11:15 a.m., in Courtroom 1010 of the Central Islip Federal Courthouse.

SO ORDERED this 2nd day of January 2020 at Central Islip, New York.

Sandra J. Feuerstein

/s/

Sandra J. Feuerstein

United States District Judge