Bergesen v. Manhattanville College

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
• Decision Date: 20 July 2021
• Docket Number: 20-CV-3689 (KMK)
• Citation: Bergesen v. Manhattanville College, 20-CV-3689 (KMK) (S.D. N.Y. Jul 20, 2021)
• Parties: JAMES BERGESEN, Plaintiff, v. MANHATTANVILLE COLLEGE, Defendant.

JAMES BERGESEN, Plaintiff, v. MANHATTANVILLE COLLEGE, Defendant.

No. 20-CV-3689 (KMK)

United States District Court, S.D. New York

July 20, 2021

Justin Stedman Clark, Esq. Levine & Blit, PLLC New York, NY Counsel for Plaintiff

Matthew Stein, Esq., Nancy V. Wright, Esq., Ricki E. Roer Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NYCounsel for Defendant

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Plaintiff James Bergesen (“Plaintiff”) brings this Action against Manhattanville College (“Defendant” or the “College”) pursuant to Title VII, 42 U.S.C § 2000e, et seq., and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 291, et seq., alleging that Defendant disciplined him based on his sexual orientation and to retaliate for his complaints about discrimination. (See Compl. (Dkt. No. 1).) Before the Court is Defendant's Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (See Not. of Mot. (Dkt. No. 13).) For the reasons that follow, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from Plaintiff's Complaint, (Compl.), and are assumed true for purposes of deciding the Motion.

Plaintiff, an adult gay male, was hired as an employee by Defendant, a private university, in 2004. (Compl. ¶¶ 6, 7, 11.) Plaintiff had the title Adjunct Professor and taught art and art-related classes. (Id. ¶¶ 12, 13.) Defendant is and was aware that Plaintiff was gay because Plaintiff introduced his partner to his colleagues. (Id. ¶ 14.) Adjacent to the College's campus is Keio Academy (“Keio”), a private high school for Japanese students. (Id. ¶ 15.) Defendant allowed Keio's students to use its premises, including its libraries, art galleries, and running paths. (Id. ¶ 16.)

On October 29, 2018, a male Keio student on the cross-country team (“EF”) approached Plaintiff outside the College's Environmental Center classroom, which Plaintiff was closing after teaching a class. (Id. ¶¶ 17, 22.) Plaintiff acknowledged EF after he had approached the Environmental Center classroom a few times. (Id. ¶ 18.) Plaintiff and EF briefly discussed Plaintiff's class, environmental art projects, and art museums in New York City. (Id. ¶ 19.) EF expressed interest in contacting Plaintiff to learn more about museums in New York City, and Plaintiff provided EF his telephone number. (Id.) After their conversation, EF continued down the running path adjacent to the Environmental Center classroom. (Id. ¶ 20.) Several minutes later, Plaintiff noticed EF and several of his teammates walking back down this path and laughing. (Id. ¶ 21.) According to EF's cross-country coach Yumiko Bendlin (“Bendlin”), EF on October 29, 2018 joked with his teammates about speaking with Plaintiff. (Id. ¶ 22.) Bendlin asked EF if he was touched or if Plaintiff touched himself in an inappropriate manner, and EF said no. (Id. ¶ 23.) Bendlin further observed that it did not appear that EF was shaken by the incident, and that he was more concerned about his exams. (Id. ¶ 24.) Nonetheless, Bendlin reported Plaintiff's conversation with EF to the College's Campus Security (“Campus Security”), who contacted the Harrison Police Department (the “Police”). (Id. ¶ 25.)

The Parties dispute whether the Court may consider Bendlin's written report to Campus Security (the “Statement”). Defendant argues that Plaintiff incorporated the Statement into the Complaint by making references to and quoting from it, and, therefore, the Court may consider the Statement when deciding the Motion. (Mem. of Law in Supp. of Def.'s Mot. (“Def.'s Mem.”) 11-12 (Dkt. No. 15).) Plaintiff, in contrast, argues the Statement cannot be considered because the Complaint only quotes it twice, which is too limited to constitute incorporation by reference. (Pl.'s Mem. of Law in Opp'n to Mot. (“Pl.'s Mem.”) 12-13 (Dkt. No. 16).)

When considering a motion to dismiss, a court generally cannot consider evidence outside of the pleadings. See Fed.R.Civ.P. 12(d). Pleadings, however, include not just “the four corners of the complaint, but also ‘any written instrument attached to it as an exhibit or any statement or document incorporated in it by reference.'” DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 59 (S.D.N.Y. 2010) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). A statement is incorporated in the complaint if the plaintiff makes a “clear, definite[, ] and substantial reference to the documents.” Atlas Partners, LLC v. STMicroelectronics, Int'l N.V., No. 14-CV-7134, 2015 WL 4940126, at *7 (S.D.N.Y. Aug. 10, 2015) (quoting Helprin v. Harcourt, Inc., 277 F.Supp.2d 327, 330-31 (S.D.N.Y. 2003)).

In the Complaint, Plaintiff makes several clear references to the Statement and quotes it twice. (See Compl. ¶¶ 23 (alleging that Bendlin “asked him [EF] if he was touched or the man touched himself in an inappropriate manner and he [EF] said no” (brackets in original)), 24 (alleging that Bendlin observed that “it didn't seem like [EF] was shaken up by the incident” (brackets in original)).) “Limited quotation does not constitute incorporation by reference.” Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) (alteration and citation omitted). As such, the few small quotations in the Complaint do not incorporate the Statement by reference. See Id. (finding no incorporation where the “complaint merely discussed . . . documents and presented short quotations from them”); see also Acevedo v. Harvard Maint. Co., No. 20-CV-721, 2021 WL 1224898, at *5 (S.D.N.Y. Mar. 31, 2021) (“[The] [p]laintiff's single reference to the arbitration proceeding is not enough to deem the arbitration award ‘incorporated by reference.'” (citation omitted)), appeal docketed, No. 21-1200 (2d Cir. May 4, 2021).

“[T]he Court may properly consider even documents not quoted, incorporated by reference, or attached to the complaint when adjudicating a motion to dismiss if those documents are integral to the complaint.” Atlas Partners, 2015 WL 4940126, at *7 (citation, ellipses, and quotation marks omitted); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (holding that the court “could have viewed [documents] on the motion to dismiss because there was undisputed notice to [the] plaintiffs of their contents and they were integral to [the] plaintiffs' claim”). Documents are integral where the complaint “relies heavily upon the documents' terms and effect, and the plaintiff has actual notice of all the information in the documents and relied upon those documents in framing the complaint.” Anwar v. Fairfield Greenwich Ltd., 831 F.Supp.2d 787, 791 (S.D.N.Y. 2011) (citation, alterations, and quotation marks omitted); see also Cortec Indus., Inc., 949 F.2d at 48 (same).

There is no dispute Plaintiff had “actual notice” of the Statement, 831 F.Supp.2d at 791, satisfying the notice requirement. Plaintiff directly quoted from the Statement in the Complaint. (See Compl. ¶¶ 23-24.) However, Plaintiff did not rely so heavily upon the Statement in drafting the Complaint to rise to the level of integration. Integration is a narrow exception, applying only to “a document upon which the complaint solely relies.” Allen v. Chanel Inc., No. 12-CV-6758, 2013 WL 2413068, at *6 (S.D.N.Y. June 4, 2013) (quoting Williams v. Time Warner Inc., 440 Fed.Appx. 7, 9 (2d Cir. 2011) (summary order)). Typically, the exception applies to “a contract or other legal document containing obligations upon which the plaintiff's complaint stands or falls, but which for some reason . . . was not attached to the complaint.” Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006). Often, this omission will be strategic, “because the document, read in its entirety, would undermine the legitimacy of the plaintiff's claim.” Id. “[A] [p]laintiff['s] failure to include matters of which as pleaders they had notice and which were integral to their claim-and that they apparently most wanted to avoid- may not serve as a means of forestalling the district court's decision on the motion [to dismiss].” Cortec Indus., Inc., 949 F.2d at 44.

In the Complaint, Plaintiff relied on portions of the Statement to allege he did not engage in unlawful conduct. (See Compl. ¶¶ 23 (quoting the Statement to allege Bendlin “asked him [EF] if he was touched or the man touched himself in an inappropriate manner and he [EF] said no” (brackets in original)), 37 (alleging that “there were many contradicting statements made by EF or attributed to EF by . . . Bendlin . . . concerning material information such as: (a) the location of the alleged incident, (b) whether any inappropriate conduct occurred, (c) how the incident was first reported to Bendlin, and (d) whether EF was serious or joking”).) Because these references form only a very small portion of the Complaint, the Statement was not a document upon which Plaintiff “solely relie[d].” Allen, 2013 WL 2413068, at *6 (emphasis omitted). Courts have found that a document is integral to a complaint where the complaint would fail to state a claim without the integrated material. See, e.g., Thomas v Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 276 (S.D.N.Y. 2002) (finding transcript and report from disciplinary hearing integral to plaintiff's complaint because the plaintiff relied on the documents to form the basis of the complaint and show the harm suffered); Dipinto v. Westchester County, No. 19-CV-793, 2019 WL 4142493, at *9 & n.6. (S.D.N.Y. Aug. 30, 2019) (finding transfer requests explicitly referenced in the plaintiff's complaint integral because the documents formed the basis for the defendant's alleged retaliation and without the documents there would be no...