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ZINAMAN v. USTS NEW YORK

July 1, 1992

LAWRENCE M. ZINAMAN, Plaintiff,
v.
USTS NEW YORK, INC. and USTRAVEL SYSTEMS, INC., Defendants.



The opinion of the court was delivered by: KEVIN THOMAS DUFFY

 KEVIN THOMAS DUFFY, D.J.:

 Plaintiff Lawrence M. Zinaman ("Zinaman") brings this action for breach of contract, fraud, and age discrimination under both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and New York's Human Rights Law, N.Y. Exec. Law § 296, against defendants USTS New York, Inc. ("USTS") and USTravel Systems, Inc. ("USTravel"). *fn1" Zinaman seeks compensatory and punitive damages and injunctive relief.

 Defendants move, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss: (1) the Complaint in its entirety against USTravel; (2) the first and second common law claims as outside the scope of this court's pendent jurisdiction; (3) the third and fourth claims as outside the scope of this court's pendent jurisdiction insofar as they allege violations of N.Y. Exec. Law § 296; (4) the demand clause of the third claim for relief; and (5) the second claim, alleging fraud, because it merely reiterates the contract claim. Defendants also move, pursuant to Fed. R. Civ. P. 12(f), to strike a portion of P1 and all of P32 of the Complaint.

 BACKGROUND

 The Complaint, which I must take as true for the purposes of the instant motion to dismiss, alleges the following: Zinaman and his son, Steven R. Zinaman, owned and managed Travel Horizons, a travel agency, through a New York corporation known as Flomist Inc. Zinaman purchased Travel Horizons in 1970 and was its president from 1972 until its sale to USTS in July, 1989. Part of the consideration for USTS' purchase of Travel Horizons included a written employment agreement between USTS and Zinaman (the "Employment Agreement"). *fn2"

 The Employment Agreement was for a term of five years. It provided that Zinaman would hold the position of Executive Vice President of Travel Horizons, and that he would have responsibilities "consistent with [his] historical responsibilities [as President of Travel Horizons]." Compl. at P9 (quoting Employment Agreement at P3). The Employment Agreement also provided that Zinaman would have an "office, in Manhattan, and such other assistance and accommodations as are suitable to the character of [his] position. . . ." Compl. at P10 (quoting Employment Agreement at P5).

 On April 22, 1991, Zinaman was advised that Mona Clarke had been appointed Vice President and General Manager of Travel Horizons and that he was to report to her. On that date, it was also announced to the agency's employees that Mona Clarke was the new Operating Head of Travel Horizons and that Zinaman was no longer performing those duties. Shortly thereafter, all of Zinaman's administrative functions were taken away from him, including those he had performed at Travel Horizons. On May 17, 1991, Zinaman was handed a letter by USTS' Senior Vice-President Dennis S. Lewis and Corporate Vice President Joseph Dooley advising him that USTS was performing an internal audit with respect to expenses billed to Travel Horizons. This letter requested that Zinaman take a leave of absence for two weeks and further requested that he not report to his office during the period of the investigation. After two weeks, Zinaman contacted USTS' counsel regarding the status of the investigation and was informed that it would be complete by June 7, 1991. As of the date he filed his complaint in this action, he had not been informed of results of the investigation.

 On August 7, 1991, Zinaman filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC") against USTravel. Shortly thereafter, he was asked to report for work as a member of the USTS sales force. He did so on August 18, 1991. Zinaman alleges that, after his return, USTravel caused USTS to breach the terms of the Employment Agreement by:

 
(a) instructing [him] to solicit new sales and new accounts by making cold calls and assigning the Borough of Manhattan as his sales territory, despite the fact that [his] historical duties did not include solicitation of sales, and cold calls are entirely inappropriate for the former President of Travel Horizons;
 
(b) failing to provide [him] with an office and humiliating him by forcing him to work at a desk in a large open area where he is adjacent to the phone operator and young trainees making cold calls;
 
(c) failing to treat [him] as an executive and requiring him to sign in and out each day, and requiring him to submit a daily accounting of his activities;
 
(d) informing [him] that he will become a part of the USTS New York sales force, a position which is entirely inconsistent with his position as Executive Vice President of Travel Horizons and his historical duties; and
 
(e) preventing [him] from having any role with respect to Travel Horizons . . . thereby precluding him from having any ability to influence Travel Horizon's performance which has a direct bearing on his right ...

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