The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Theodore Avgerinos ("plaintiff"), in his complaint against defendants Palmyra-Macedon Central School District, (the "District"), DR. Robert Ike, Superintendent of Schools, In His Individual and Official Capacity ("Dr. Ike"), Director of Human Resources Paul W. Kenyon, In His Individual and Official Capacity ("Kenyon")*fn1 (collectively "defendants") alleges five causes of action. The first cause of action alleges age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq . ("ADEA"), the second cause of action alleges age discrimination in violation of the New York State Human Rights Law, Executive Law § 290 et seq. ("NYSHRL"), the third cause of action alleges libel per se in violation of New York State Law and prima facie tort, the fourth cause of action involves a First Amendment retaliation claim and the fifth cause of action seeks punitive damages against Kenyon and Dr. Ike.
Defendants move to dismiss plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, pursuant to Rule 12(c) for judgment on the pleadings and Rule 56 for summary judgment. Plaintiff opposes defendants' motion and has filed a cross-motion pursuant to Rule 56(f) arguing that plaintiff has not had reasonable opportunity to conduct discovery on substantive issues relating to the defendants' motion. For the reasons set forth below, defendants' motion to dismiss plaintiff's Complaint is granted and plaintiff's cross-motion pursuant to Rule 56(f) is denied.
Unless otherwise noted, the following facts are taken from plaintiff's Complaint, including documents incorporated by reference or upon which plaintiff relied in drafting the Complaint.*fn2 Plaintiff is a 62-year-old male with an extensive teaching and administrative background. See Complaint ("Com."), ¶ 11. In addition, the plaintiff maintains that he holds a Bachelor of Arts degree, which he received in 1968 and a Master's degree, which he received in 1973. See id., ¶ 12. Plaintiff also alleges that from 1968 to 2005, he worked in various school districts in a variety of capacities including, but not limited to, school administrator, interim principal, high school principal, guidance counselor and teacher. See id., ¶ 13.*fn3 Moreover, plaintiff maintains that he holds certifications as a school district administrator, school administrator, supervisor, guidance counselor, secondary social studies teacher, and driver education teacher. See id., ¶ 14. Plaintiff alleges that during the entire tenure of his numerous educational positions, plaintiff was a stellar employee who received many recommendations and certifications. See id., ¶ 15.
In September 2007, plaintiff moved to the Rochester, New York area and settled in Macedon. See id., ¶ 18. Plaintiff claims he was encouraged by friends who worked in the District to apply as a substitute teacher and/or administrator. See id., ¶ 19. In October 2007, plaintiff called the District's Human Resources office and spoke to a woman named Ms. Randall and asked her to send him an application for substitute teaching. See id., ¶ 21. Plaintiff alleges that he filled out the application form and applied for employment with the District in October 2007 by submitting the application form and various other documents to the District. See id., ¶ 22.*fn4 Moreover, he was advised that he could expect his application would be processed in time for the November 13, 2007 Board of Education meeting. See id., ¶ 23. The plaintiff was also informed that in addition to applying for positions at the District, he could apply for a substitute teaching position through the substitute teacher service at the Wayne-Finger Lakes BOCES. See id., ¶ 23.
The plaintiff contacted the Human Resources office several times in December 2007 regarding his application for employment with the District. See id., ¶ 24. On those occasions, the plaintiff was informed that the application was being processed. In early December 2007, he was informed that his application was going to be processed by the Board of Education at the December 2007 meeting. See id. When plaintiff had not heard back from the District regarding his application, he called again at the end of December 2007. See id., ¶ 25. At that time the District apologized and informed plaintiff that his application would be submitted for the January 2008 meeting of the Board of Education. See id. On or about February 5, 2008, the plaintiff contacted the Human Resources office again and he was informed by Ms. Randall that she would have to research the status of his application as to why it had not been submitted and that she would get back to him. See id., ¶ 26.
Plaintiff contacted the Human Resources office again on February 7, 2008 and was informed that he would have to speak with Paul Kenyon, the Director of Human Resources because there were issues with his application. See id., ¶ 27. However, plaintiff was told he could not speak with Kenyon at that time as Kenyon was about to leave the office. See id. The plaintiff admits in his Complaint that the he became "very frustrated" that he could not get a simple response from the District concerning his application that he hand-delivered in October 2007. See id., ¶ 28. Plaintiff indicated to Ms. Randall that if he did not hear from the District concerning his application, his next phone call was going to be directed to the Superintendent of Schools, Dr. Ike, if not the State Department of Education. See id.
On February 8, 2008, Kenyon sent a letter to the plaintiff, advising him for the first time that he had not completed the application correctly, had insufficient documentation, and further, that he had engaged in rude, menacing and threatening behavior in the phone conversation with Ms. Randall in the Human Resources office. See id., ¶¶ 29-30.*fn5 In addition, the District also sent the letter to the Wayne-Finger Lakes BOCES who manages the District's substitute teaching service, as well as the BOCES District Superintendent who represents the State Education Department in the District's region. See id., ¶ 32. Subsequently, the plaintiff contacted the School Superintendent, Dr. Ike, by e-mail correspondence on February 11, 2008. See id., ¶ 33. Dr. Ike responded and again advised the plaintiff that his conduct was unprofessional and not in keeping with the District's standards. See id. Plaintiff claims that because of the defendants' actions, he has been precluded from finding work in his profession in Western New York. See id., ¶ 34.
II. Procedural Background
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on or around May 12, 2008, alleging a violation of the ADEA. However, on or about September 19, 2008, the EEOC dismissed the plaintiff's charges because of plaintiff's failure to establish a violation of the statute, and issued a Dismissal and Notice of Right's letter. Plaintiff commenced this action in Federal Court by filing the Complaint on December 18, 2008. Plaintiff claims that defendants failed to hire him, notwithstanding his prolific experience and educational profession, due to his age and because of malice, as demonstrated by its distribution of a letter to the entire school district and the State of New York, which ended his employment opportunities in his profession in Western New York. See id., ¶ 35. Defendants contend that the Complaint does not contain any allegations that the defendants made any remarks of a discriminatory nature to the plaintiff relating to his age. Moreover, the plaintiff has not alleged that any other individual was denied employment opportunities on the basis of age or that any other individual employed by the District was treated in an unfair and discriminatory manner on the basis of their age.
Further, plaintiff alleges a cause of action for a violation of the NYSHRL on the basis of age discrimination. Defendants contends that a cause of action for age discrimination under NYSHRL as against a school district carries with it a one-year statute of limitations. In addition, plaintiff alleges a libel per se claim against Kenyon. The libel claim allegedly arose on or about February 8, 2008. See id., ¶ 50.*fn6 Defendants argue that this claim also has a one-year statute of limitations. Plaintiff also alleges a First Amendment retaliation claim. However defendants maintain that plaintiff made no public statements or spoke out to the public with regard to his complaints. In addition, defendants argue plaintiff did not engage in any protected speech. He only alleges that he complained to the defendants directly.
A. Documents Properly Considered For this Motion
As a threshold matter, the Court addresses its option to consider certain documents outside the pleadings and treat this motion as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or convert the motion to one for summary judgment under Fed.R.Civ.P. 56. Generally, "Rule 12(b) gives district courts two options when matters outside the pleadings are presented...the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment." Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir.1991) (quoting Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988)) (internal quotation marks omitted); see also Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). Federal courts have complete discretion to determine whether or not to accept submission of any material beyond the pleadings offered in conjunction with a motion to dismiss, and thus complete discretion in determining whether to convert the motion to one for summary judgment. See Carione v. U.S., 368 F. Supp. 2d 186, 191 (E.D.N.Y.2005), reconsideration denied, 368 F. Supp. 2d 196 (E.D.N.Y.2005). The "mere attachment of affidavits or exhibits [however,]... is not sufficient to require conversion to a motion for summary judgment." See Salichs v. Tortorelli, 2004 WL 602784, at *1 (S.D.N.Y.2004) (citation omitted). Indeed, under Rule 12(b), the "complaint includes ...any statements or documents incorporated into it by reference." Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir.1994).
Moreover, "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); VTech Holdings Ltd. v. Lucent Techs., Inc., 172 F.Supp.2d 435, 437 (S.D.N.Y.2001) (In deciding motion to dismiss for failure to state claim, court may consider documents referenced in complaint and documents that are in plaintiff's possession or that plaintiff knew of and relied on in bringing suit); Weston Funding, LLC v. Consorcio G Grupo Dina, S.A. de C.V., 451 F. Supp. 2d 585, 587 (S.D.N.Y.2006) (on a motion to dismiss, a court is entitled to consider the terms of any documents attached to or referenced in the complaint); Frontier-Kemper Constructors, Inc. v. American Rock Salt Co., 224 F. Supp. 2d 520, 525 (W.D.N.Y.2002) (Court's consideration of motion to dismiss for failure to state a claim is limited to the factual allegations in plaintiff's complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit). Thus, the Court may consider documents that are referenced in the Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers, 282 F.3d at 153.*fn7
Here, the Court in the exercise of its discretion finds that it is unnecessary to convert this motion to dismiss into a motion for summary judgment. In addition, the Court finds that the Complaint (1) incorporates by reference the February 8, 2008 letter sent by the Director of Human Resources to plaintiff together with attachments; the e-mail exchanges between plaintiff and the School Superintendent, Dr. Ike on February 11, 2008, and the plaintiff's application for employment for his substitute teaching that he submitted to the District together with various other documents he attached; and (2) relies upon the terms of the EEOC charge made by the plaintiff dated May 12, 2008, alleging a violation of the ADEA and the September 19, 2008 EEOC dismissal of plaintiff's charges. In addition, the Court takes judicial notice of the District's response to the May 12, 2008 EEOC charges, including its attachments. Accordingly, for the reasons that follow, the Court will consider these matters in ruling on the instant motion.
First, the Complaint makes detailed reference to the February 8, 2008 letter as well as the e-mail exchanges between plaintiff and Dr. Ike and thereby incorporates that correspondence by reference into the Complaint. Paulemon, 30 F.3d at 308-9. Indeed, the whole basis of several causes of action in the Complaint is derived from the February 8, 2008 letter and resulting e-mail exchanges on February 11, 2008. See generally Complaint; Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) ("Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one [for summary judgment] under Rule 56 is largely dissipated").
Second, the Complaint relies on the EEOC charge dated May 12, 2008, alleging a violation of the ADEA and the September 19, 2008 EEOC dismissal of plaintiff's charges and thereby renders those documents integral to the complaint. The Complaint relies on these documents in framing plaintiff's ADEA and NYSHRL claims by alleging that plaintiff was discriminated against due to his age. See Com. ¶¶ 36-48; see also Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001) (treating plaintiff's allegations in the affidavit submitted to the EEOC as an "integral part of her pleadings"). Thus, the Court finds that these documents attached to the affidavit in support of defendants' motion to dismiss were documents integral to the complaint and relied upon by plaintiff and as such were "documents that [plaintiff] either possessed or knew about and ...