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June 20, 1991


The opinion of the court was delivered by: Martin, District Judge:


Plaintiff brings this action for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., sex discrimination under Title VII of the Civil Rights Act of 1964, both age and sex discrimination under the New York's Human Rights Law, Exec.Law § 296 et seq., for retaliation under these statutes, and for common law slander, libel and harassment.

Basically, plaintiff, a former officer in defendant Banco Nacional De Mexico's ("Banamex's") accounting department, alleges that she was passed over for a promotion to the position of manager due to her age and sex. Plaintiff also alleges that Banamex retaliated against her after she filed an EEOC charge. As part of the retaliation, plaintiff contends that after the individual defendants became aware of plaintiff's EEOC claim, they drafted employee evaluations which contained false statements which defamed plaintiff's reputation.

Plaintiff demands reinstatement, lost earnings and compensatory and punitive damages. Included within the damages sought are those allegedly resulting from the emotional and physical injuries plaintiff suffered due to defendants' conduct.

The matter is now before the Court on defendants motion, pursuant to Fed.R.Civ.P. 12(b)(1) and (6), to dismiss all of plaintiff's state law claims.*fn1 For the reasons discussed below, defendants' Rule 12(b)(1) motion is granted.


Having considered the relevant factors and in light of the different remedies sought by plaintiff in her state law and federal claims and the effect such remedies would have on the trial process, the Court declines to exercise pendent jurisdiction of plaintiff's state law claims.

Since plaintiff's state and federal claims arise out of a common nucleus of operative facts, the Court has the power to hear both plaintiff's federal and state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Nevertheless, it is an open question whether the Court should exercise its discretion and retain jurisdiction over plaintiff's pendent state causes of action. The district courts in this Circuit are split on this issue. Cf. e.g., Patel v. Lutheran Medical Center, Inc., 753 F. Supp. 1070, 1075 (E.D.N.Y. 1990); Martel v. Dean Witter Reynolds, Inc., 738 F. Supp. 53, 57 (E.D.N.Y. 1990); Kaczor v. Buffalo, 657 F. Supp. 441 (W.D.N.Y. 1987); with Realmuto v. Yellow Freight System, Inc., 712 F. Supp. 287 (E.D.N.Y. 1989); Burger v. Health Ins. Plan, 684 F. Supp. 46 (S.D.N.Y. 1988); Giuffre v. Metropolitan Life Ins. Co., 129 F.R.D. 71 (S.D.N Y 1989); Deutsch v. Carl Zeiss, Inc., 529 F. Supp. 215, 219 (S.D.N.Y. 1981). Further complicating matters in the present case is the addition of state law claims — here libel, slander and harassment — not arising under the Human Rights Law. See Patel, supra, 753 F. Supp. at 1078 (exercising pendent jurisdiction with respect to Human Rights Law claim but not over tortious interference with contract claim).

After consideration of the factors listed above, the Court, for the following reasons, declines to exercise pendent jurisdiction over the plaintiff's state law claims. First, the Court notes the different remedies plaintiff's claims afford. Specifically, while neither ADEA nor Title VII allows for the recovery of either compensatory or punitive damages, see Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143 (2d Cir. 1984) (ADEA); Carrero v. New York City Housing Authority, 890 F.2d 569, 581 (2d Cir. 1989),*fn2 New York State's Human Rights Law and plaintiff's common law claims do so. See Batavia Lodge No. 196, etc. v. New York State Div. of Human Rights, 35 N Y2d 143, 359 N.Y.S.2d 25, 316 N.E.2d 318 (1974) (Human Rights Law). Moreover, the compensatory and punitive damages plaintiff seeks also include those damages resulting from the physical and emotional injuries plaintiff contends she suffered as a result of defendants' conduct. As a result, the exercise of pendent jurisdiction would inject into a discrimination case questions that are irrelevant to the federal claims, including the plaintiff's mental state and physical condition as well as the state of plaintiff's reputation. Permitting such evidence to be introduced would, thus, unduly complicate a relatively straightforward employment discrimination claim. See Realmuto, supra, 712 F. Supp. at 287; Burger, supra, 684 F. Supp. at 50.

Moreover, as Judge Conboy recognized in Burger,

  [a]s the plaintiff has demanded a jury trial, to
  which she is entitled under the ADEA, both the
  pendent claims and the claim under the ADEA would
  be for the jury. Placing plaintiff's state law
  claims, some of which involve questions of
  plaintiff's mental state and defendant's malice
  that are irrelevant to an ADEA claim, before the
  jury could lead to jury confusion on the damages

Id. at 50. The Court agrees that such proof could prejudice the jury in plaintiff's favor and could confuse the jury on the damage issues.

In addition, there exists a serious question of state law as to whether plaintiff has an existing cause of action premised upon New York's Human Rights Law. Specifically, defendants contend that plaintiff's claims based upon the Human Rights Law must be dismissed because plaintiff, prior to the ...

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