Dollinger v. State Ins. Fund

Decision Date19 April 1999
Docket NumberNo. 98-CV-1002.,98-CV-1002.
Citation44 F.Supp.2d 467
PartiesRobert Arthur DOLLINGER, Plaintiff, v. The STATE INSURANCE FUND; New York State Office of the State Comptroller; and The New York State Department of Civil Service, Defendants.
CourtU.S. District Court — Northern District of New York

Law Offices of Ronald R. Benjamin, Binghamton, NY, for plaintiff, of counsel Marya C. Young.

State of New York, Office of the Attorney General, Division of State Counsel, The Capitol, Albany, NY, for defendants, of counsel Sean D. Quinn, AAG.

MEMORANDUM — DECISION & ORDER

McAVOY, Chief Judge.

Plaintiff Robert Dollinger ("plaintiff") commenced the instant action on January 12, 1998 pursuant to 42 U.S.C. § 12101 et seq. and 42 U.S.C. § 2000e et seq. against defendants The State Insurance Fund ("SIF"), New York State Office of the State Comptroller and The New York State Department of Civil Service (collectively "defendants") alleging, inter alia, that defendants discriminated and retaliated against him on the bases of his association with persons living with HIV/AIDS and as a person who is himself living with HIV/AIDS. See Compl. at ¶ 20. This matter is presently before the Court upon defendants' motion to dismiss the Complaint pursuant to FED.R.CIV.P. 12(b)(6).

I. BACKGROUND

In considering a motion to dismiss, the Court accepts as true the factual allegations in the Complaint. See Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Those allegations follow.

Plaintiff filed his Complaint on January 12, 1998 in the Southern District of New York. The Complaint asserts claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging plaintiff was subjected to unequal terms, conditions and privileges of employment, harassment and a hostile retaliatory work environment because of his association with persons with HIV/AIDS and being regarded as a person with HIV/AIDS. Plaintiff further alleges that defendants retaliated against him for reporting those discriminatory practices. See Compl. at ¶¶ 16, 20, 38, 42, 52-53. All of plaintiff's claims arise out of the same factual setting.

Defendant SIF hired plaintiff as an Insurance Premium Auditor Trainee in 1986. Plaintiff received promotions in 1987 and 1988, and was asked to train new auditors from 1988 through 1990. Since 1990, however, plaintiff alleges he has applied for, but been denied, provisional or permanent promotions based on defendants' regarding him as a person living with HIV/AIDS and as a person associated with persons living with HIV/AIDS. Plaintiff further alleges that defendants denied him these promotions in response to plaintiff's efforts to report defendants' alleged discriminatory practices. Plaintiff is currently employed as a Senior Auditor with SIF.

In Complaints filed with the New York State Division of Human Rights ("DHR") on May 11, 1993 ("1993 DHR Complaint") and February 12, 1997 ("1997 DHR Complaint"), plaintiff claimed that he was denied promotions at SIF and discriminated against because of defendants' perception that he belonged to a group associated with the high risk behaviors for HIV/AIDS. See Defts. Notice of Motion to Dismiss, Ex. A, at ¶¶ 1, 8 (1993 DHR Complaint); Ex. D, at ¶¶ 1, 14, 31 (1997 DHR Complaint). Plaintiff subsequently amended his 1993 and 1997 DHR Complaints to include violations of the ADA. See Defts. Notice of Motion to Dismiss, Ex. E ("Amended 1997 DHR Complaint"); Ex. F ("Amended 1993 DHR Complaint").

On April 25, 1997, the DHR issued a no probable cause determination with respect to plaintiff's 1993 DHR Complaint.1 Significantly, plaintiff does not allege, nor does the record reflect, that plaintiff received or requested a right to sue letter with respect to his 1993 DHR Complaint.

While the 1997 DHR Complaint alleged acts of discrimination and retaliation similar to those alleged in the 1993 DHR Complaint, it also included new acts of discrimination occurring after the filing of the 1993 DHR Complaint. The DHR determined that any allegations in the second complaint that were duplicative of the first complaint be removed, and it only investigate "those acts of discrimination which occurred subsequent to the date of filing of the first complaint." See DHR Legal Memorandum, at 4. On October 10, 1997, the EEOC issued plaintiff a right to sue letter with respect to his Amended 1997 DHR Complaint. See Compl. at Ex. 1. Significantly, the federal Complaint did not incorporate or reference a copy of a right to sue letter for the 1993 DHR Complaint, or that plaintiff had requested, but not yet received, such a letter. On April 22, 1998, the DHR dismissed plaintiff's 1997 DHR Complaint for administrative convenience. See Defts. Notice of Motion to Dismiss, Ex. H.

Plaintiff filed his federal Complaint on January 8, 1998 in the Southern District of New York. Upon motion by defendants pursuant to 28 U.S.C. § 1404(a), the matter was transferred to the Northern District of New York. See Dollinger v. The State Insurance Fund, 98-CV-0173 (Opinion and Order of Hon. Allen G. Schwartz, dated June 17, 1998).

On November 13, 1998, defendants filed a motion to dismiss the complaint pursuant to FED.R.CIV.P. 12(b)(6). On November 20, 1998, plaintiff requested a postponement of this action to secure new counsel to replace plaintiff's prior counsel who had passed away. On December 1, 1998, plaintiff, proceeding pro se, filed opposition papers to defendants' motion to dismiss and requested additional time to retain new counsel. In response to that request, the Court granted plaintiff ninety days from December 7, 1998, the date of its Decision and Order, to retain new counsel in the present matter. During that time, the Court ordered that defendants' motion to dismiss and plaintiff's opposition papers be held in abeyance. If, however, plaintiff was unable to retain new counsel by March 7, 1999, the Court ordered that it would decide defendants' motion to dismiss on submit.

On March 8, 1999, plaintiff filed a "Memorandum of Law in Opposition to Motion to Dismiss for Failure to State a Cause of Action"2 and a three-page untitled addendum which appears to be a "supplemental" Memorandum of Law. Because plaintiff's opposition papers filed on December 1, 1998 and March 8, 1999 failed to contain an affidavit or certificate of service as required by N.D.N.Y. Local Rule 5.1(a), the Court rejected those papers and ordered that opposition papers with the requisite certificate of service be re-filed by March 17, 1999. On March 17, 1999, plaintiff refiled his opposition papers with a certificate of service, and requested an entry of appearance for his new counsel, Law Offices of Ronald R. Benjamin, and an extension of time to file supplemental opposition papers. Once again, the Court granted plaintiff's request, and ordered plaintiff to file his opposition papers to defendants' motion to dismiss by Friday, March 26, 1999. The Court also permitted defendants to file reply papers, if they so choose, by Friday, April 2, 1999. Despite plaintiff's request and the Court's grant of an extension of time, plaintiff failed to file any new or supplemental opposition papers, or otherwise correspond with the Court. Accordingly, the Court will only consider plaintiff's opposition papers filed on December 1, 1997 and March 17, 1999.

II. DISCUSSION
A. Treatment of Exhibits

As a threshold matter, the Court must decide the proper treatment for various exhibits submitted by both parties in connection with defendants' motion to dismiss. Specifically, defendants have attached as exhibits in support of their motion to dismiss letters of complaint filed by plaintiff with the DHR and the EEOC, and the DHR's ruling with respect to plaintiff's 1993 and 1997 DHR Complaints. Although these documents of public record are referred to in plaintiff's federal Complaint, they are not annexed as exhibits thereto. Plaintiff, in similar fashion, has opposed defendants' motion to dismiss by submitting as exhibits the letters of complaint filed by him with the DHR and the EEOC and various determinations and investigative reports issued by the DHR and the EEOC in response to those complaints. Plaintiff also has submitted a right to sue letter issued by the EEOC with respect to his 1997 DHR Complaint, and an affidavit from plaintiff.

It is beyond peradventure that when "matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED.R.CIV.P. 12(b). However, because a complaint includes "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference," FED.R.CIV.P. 10(c); see, e.g., Cosmas v. Hassett, 886 F.2d 8 (2d Cir.1989), courts have held that a "defendant may introduce pertinent [documents] as part of his motion attacking the pleadings" if plaintiff has failed to either attach to the complaint or incorporate by reference documents upon which it relies on in the complaint. 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1327, at 762-63 (1990); see also Cortec Ind., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). As explained by the Second Circuit, "when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure." Cortec 949 F.2d at 47; Roucchio v. Coughlin, 923 F.Supp. 360, 366 (E.D.N.Y....

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