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VESEY v. GROVER

January 7, 1992

GALYN A. VESEY, Plaintiff,
v.
MARY F. GROVER, Branch Director, and DR. SHEPARD GOLDBERG, Executive Director, Child & Adolescent Psychiatric Clinic, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 On July 1, 1991 the plaintiff, proceeding pro se, filed the Complaint charging "Mary F. Grover, Branch Director and Dr. Shepard Goldberg, Executive Director Child & Adolescent Psychiatric Clinic" with race and age discrimination violative of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination In Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., respectively.

 Moving to dismiss both of the plaintiff's claims, the defendants contend that this Court lacks subject matter jurisdiction over the plaintiff's ADEA claim because the plaintiff, before filing this lawsuit, failed to file an age discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC"), a prerequisite to commencing suit under that statute. The defendants next contend that this Court must dismiss the plaintiff's ADEA and Title VII claims because the plaintiff has not sued an "employer" as required and defined by those statutes.

 The plaintiff also renews his request for appointment of counsel.

 For the reasons set forth below, this Court grants the defendants' motion and denies the motion, in part, as follows: 1) this Court grants the defendants' motion to dismiss the plaintiff's ADEA claim; 2) this Court denies the defendants' motion to dismiss the plaintiff's Title VII claim and also affords the plaintiff leave to file an Amended Complaint. This Court also affords the defendants an opportunity to file a supplemental motion to dismiss the Complaint; and 3) this Court denies the plaintiff's renewed motion for appointment of counsel at this time, but affords the plaintiff an opportunity to again renew his motion at a later date.

 FACTS AND ADMINISTRATIVE HISTORY

 The plaintiff, a black male born May 25, 1937, alleges that he was hired as a social worker on July 10, 1989 and, before his six month employment probationary period expired, discharged on November 8, 1989, due to his race and age. Grover is the plaintiff's former supervisor. Goldberg, at all relevant times, is the Executive Director of the Child And Adolescent Psychiatric Clinic ("the Clinic").

 Subsequently, the plaintiff filed a charge with the EEOC *fn1" alleging that his discharge amounted to discrimination based on his race in violation of Title VII. The plaintiff did not charge that he had been discriminated against based on his age in violation of the ADEA. On December 18, 1989, the EEOC noticed Goldberg, as Executive Director of the Clinic, that a Title VII charge had been filed against the Clinic.

 On April 30, 1991, the EEOC issued its determination that the plaintiff's discharge stemmed from his job performance and that there existed no evidence that the "Child & Adolescent Psychiatric Center" committed a Title VII violation. The EEOC also noticed the plaintiff of his right to sue in federal court. On July 1, 1991, the plaintiff filed the Complaint in the Northern District of New York. On October 11, 1991, the Hon. Thomas J. McAvoy of the Northern District ordered the plaintiff's lawsuit transferred to this District.

 DISCUSSION

 The defendants cannot prevail on their motion " . . . unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Applying this standard, this Court must accept the allegations of the Complaint as true. Square D Co. v. ...


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