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BRAMESCO v. DRUG COMPUTER CONSULTANTS

October 23, 1993

RONALD K. BRAMESCO, Plaintiff,
v.
DRUG COMPUTER CONSULTANTS and C. PANNUTI, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case presents the question of inclusion of individual natural persons in suits against corporate entities where no separate individual wrongdoing is claimed. It also presents questions of the proper treatment of employment discrimination complaints brought under the wrong statute, accompanied by related claims supported by no specific facts.

 II

 Plaintiff in the above case, appearing pro se, has filed a complaint on a form relating to the Civil Rights Act of 1964 as amended, 42 USC 2000-e, attaching an age discrimination charge filed with the New York Division of Human Rights and stating in the sole narrative portion of the complaint (P 9):

 "I was terminated in part because I was about to become eligible for health & welfare benefits, & in violation of ERISA 29 USC Sec 1140. I also believe Carl Pannuti and Drug Computer Consultants published falsehoods about me, which injured my reputation and interfered with my ability to find suitable employment, which I believe is defamation and slander."

 The State Division determined on September 3, 1992 that there was "no evidence that Complainant's age was a factor in the decision to terminate his employment." *fn1"

 Defendants have moved to dismiss on grounds that the court lacks subject matter jurisdiction, that the complaint fails to state a claim on which relief can be granted (Fed.R.Civ.P. 12(b)(6)) and that no facts have been alleged which could support a claim against the individual defendant. I grant defendants' motion to dismiss all claims contained in plaintiff's complaint except the age discrimination claim against the corporate defendant.

 In granting the defendants' motions in part, I have excluded the affidavit and other material submitted by defendants outside the pleading presented. Accordingly, I do not convert defendants' motions to dismiss into motions for summary judgment under Fed.R.Civ.P. 12(b).

 The corporate defendant may without further leave file a motion for summary judgment with respect to the surviving claim upon proper notice to plaintiff that such a motion is being presented. Any such motion should provide affidavits and copies of any relevant documents concerning the reasons for plaintiff's termination and non-reinstatement, the hiring of replacements, and the age compensation of employees for relevant periods.

 III

 Title VII of the Civil Rights Act of 1964 as amended, 42 USC 2000-e, and 42 USC 1981 et seq. deal principally with invidious discrimination based on race, color, religion, gender, or national origin, and with conduct violating federal rights under color of state law. These provisions do not deal explicitly, or in most circumstances even by implication, with age discrimination as such or in private employment. The complaint cannot be regarded as stating a claim under those laws.

 The Age Discrimination in Employment Act ("ADEA"), 29 USC 621 et seq., does deal with age discrimination in private employment, and allegations amounting to charges of violation of that Act were contained in plaintiff's submission to the New York State Division of Human Rights, which I find was intended to be incorporated in the complaint. The Federal Rules of Civil Procedure do not require a correct citation to the governing statute, provided that the facts alleged in the complaint state a claim upon which relief can ...


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