# Mosier v. State University of New York

> District Court, E.D. New York · January 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10303527

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303527

## How later opinions describe it (automated extraction)

- holding SUNY entitled to Eleventh Amendment immunity as an agency of the State of New York

## Opinion text

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
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ neee cence cnee ene K
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.
ene nee cence eneneeeneneneene XK
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303527. Public record. Not legal advice.