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PHILLIPS v. MERCHANTS INS. GROUP

January 10, 1998

PATRICK J. PHILLIPS, Plaintiff, against MERCHANTS INSURANCE GROUP, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 Plaintiff Patrick Phillips was employed by defendant Merchants Insurance Group until March 1, 1994, when he was terminated for alleged poor job performance. On December 7, 1994, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), claiming that Defendant discriminated against him on the basis of his gender and age in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act of 1967 ("ADEA").

 After considering Plaintiff's allegations, the EEOC determined that "the evidence obtained during the investigation was insufficient to establish violations of the statutes." On April 11, 1995, Plaintiff filed the instant Complaint with this Court, along with an application to proceed in forma pauperis ("IFP"). The case was referred by the Court to the Hon. Ralph W. Smith, United States Magistrate Judge. In an Order and Report-Recommendation dated May 31, 1995, Judge Smith denied Plaintiff's IFP request and also determined that the Complaint did not satisfy the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. As a result, Judge Smith recommended that the Complaint be dismissed without prejudice, granting Plaintiff 45 days to file an amended complaint. *fn1"

 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. ยง 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.

 II. DISCUSSION

 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 ...

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