Plaintiff submitted an Amended Complaint on July 6, 1995. The only significant difference between Plaintiff's Amended Complaint and his original Complaint was the addition of two unnumbered paragraphs that simply updated the Complaint by adding new facts. Accordingly, on December 13, 1995, this Court dismissed Plaintiff's Amended Complaint for failure to comply with Rules 8 and 10. Plaintiff appealed the dismissal, and the Second Circuit affirmed, but ordered that the dismissal be without prejudice to the filing of a second amended complaint.
On November 25, 1996, Plaintiff filed his Second Amended Complaint, which sets forth five causes of action: (1) age discrimination under the ADEA; (2) sex discrimination under Title VII; (3) age discrimination in violation of the New York Human Rights Law ("HRL"); (4) sex discrimination in violation of the HRL; and (5) employment discrimination on the basis of veteran status in violation of the Vietnam Era Veterans' Readjustment Assistant Act ("VEVRA" or the "Act"), 38 U.S.C. § 4212. The VEVRA claim had not been raised in Plaintiff's prior pleadings.
Presently before the Court is Defendant's Motion to Dismiss Plaintiff's VEVRA claim.
Federal Rule of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In analyzing a motion to dismiss, the facts alleged by the plaintiff are assumed to be true and must be liberally construed in the light most favorable to the plaintiff. See, e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992). While a court need not accept mere conclusions of law, a court should accept the pleader's description of what happened along with any conclusions that can reasonably be drawn therefrom. See Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967).
Furthermore, when a party makes a Rule 12(b) (6) motion to dismiss, a court will limit its consideration to the facts asserted on the face of the complaint. Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989). A complaint will not be dismissed for failure to state a claim unless it appears, beyond a doubt, that the plaintiff can prove no set of facts that would entitle him or her to relief. See Wanamaker v. Columbian Rope Co., 740 F. Supp. 127 (N.D.N.Y. 1990).
With this standard in mind, the Court will address the sufficiency of Plaintiff's VEVRA claim.
A. Plaintiff's Veterans Status Claim
The Vietnam Era Veterans' Readjustment Assistant Act provides that
(a) Any contract in the amount of $ 10,000 or more . . . shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era. . . .