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LEYKIS v. NYP HOLDINGS

June 29, 1995

HAROLD LEYKIS, HUGH DELANO, BERNARD BARD, CAROLE LEE, and ARTHUR POMERANTZ, on behalf of all persons similarly situation, Plaintiffs, against NYP HOLDINGS, INC., and RUPERT MURDOCH, Defendants.


The opinion of the court was delivered by: JOAN M. AZRACK

 AZRACK, United States Magistrate Judge:

 By Order dated January 6, 1995 the Honorable Sterling Johnson referred the above referenced action to the undersigned to report and recommend on defendant Rupert Murdoch's motion to dismiss this action pursuant to Federal Rules of Civil Procedure Rule 12(b) (6). For the reasons stated herein, it is respectfully recommended that defendant's motion to dismiss the New York State Human Rights Law claim be granted, but that plaintiffs should be granted leave to replead this claim; that defendant's motion to dismiss the Age Discrimination Employment Act claims against him in his individual capacity be granted but that plaintiffs be granted 30 days in which to file an amended complaint alleging representative liability; and that nothing in this Report and Recommendation should foreclose plaintiffs from later seeking to amend the complaint to properly allege alter ego liability against defendant Murdoch.

 I. FACTS AND PROCEDURAL HISTORY

 Plaintiffs brought this class action against New York Post Holding, Inc. (hereinafter "NYPH"), The New York Post Company, and Rupert Murdoch alleging violations of the Age Discrimination Employment Act of 1967, 29 U.S.C. § 620 et seq. (hereinafter "ADEA" or the "Act") and the New York State Human Rights Law § 297(9) (hereinafter "HRL"). Jurisdiction of the federal claim is premised upon diversity of citizenship, 28 U.S.C. § 1331, and the state claim is based upon the principles of pendent jurisdiction. (Complaint, pp. 1-2). Plaintiffs seek back pay, forward pay, liquidated damages, and declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. Plaintiffs also seek injunctive relief requiring defendants to reinstate plaintiffs in their positions. Consent to join plaintiffs in this action was filed by 56 individuals, pursuant to 29 U.S.C. § 216(B). (Consent to Join, Sept. 9, 1994).

 Plaintiffs further assert that, on or about April 14, 1994, two named plaintiffs, Messrs. Leykis and Delano, filed a written charge of age discrimination with the Equal Opportunity Employment Commission (hereinafter "EEOC") pursuant to 29 U.S.C. § 626, asserting that defendants' policies and practices constituted willful age discrimination. *fn1"

 Subsequently, the parties agreed to dismiss this action against the New York Post Company, such that the remaining defendants are New York Post Holdings, Inc. and Rupert Murdoch. (Stip. of Dismissal, Jan. 12, 1995). Defendant Rupert Murdoch now moves to dismiss the complaint for failure to state a claim upon which relief may be granted. (Motion to Dismiss, Jan. 14, 1994). Defendant argues that as an individual he is not an "employer" within the ADEA or HRL, and alternatively, that plaintiffs have failed to allege that he had any direct involvement in plaintiffs' employment. (Def.'s Mem. of Law, p. 1). In response, plaintiffs oppose the motion to dismiss, and alternative request leave to amend the complaint to remedy any pleading deficiencies.

 II. DEFENDANT'S MOTION TO DISMISS

 The court should not dismiss a complaint for failure to state a claim 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, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In deciding a motion to dismiss, the Court must limit its analysis to the four corners of the complaint, see Kopec v. Coughlin, 922 F.2d 152, 154-155 (2d Cir. 1991), and must accept all of plaintiffs' well-pleaded factual allegations to be true. Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

 A. Defendant's Motion to Dismiss the ADEA Claims

 Individual defendant Murdoch presently moves to dismiss the complaint against him because, he argues, he cannot be held liable under the ADEA for the allegedly discriminatory employment decisions because he is not an "employer" under the Act. For purposes of the ADEA, an "employer" is "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . . [or] an agent of such a person. . ." 29 U.S.C. § 630(b). A "person" means, inter alia, an individual, partnership, association, or corporation. 29 U.S.C. § 630(a).

 Few cases have discussed the precise scope of the ADEA definition of "employer," however, since the Fair Labor Standards Act of 1989, 29 U.S.C. § 203 (a), (d), (e), (i) (1992), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e) (a), (b), (f) (1982) and the ADEA carry nearly identical provisions for "employer" and "employee" and, since all three statutes have a similar anti-discriminatory purpose, cases construing the definitional provisions of one are persuasive authority when interpreting the others. See, e.g., Hyland v. New Haven Radiology Assoc., P.C., 794 F.2d 793, 796 (2d Cir. 1986).


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