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May 28, 1976

Robert E. Smith, Plaintiff
Joseph Schlitz Brewing Company, Defendant

Stern, D. J.

The opinion of the court was delivered by: STERN

This matter comes before the Court on defendant's motion to dismiss the complaint for lack of subject-matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), and in the alternative for summary judgment. By letter of April 7, 1976, the Court notified the parties that the portion of the motion brought under Rule 12(b)(6) would be treated as a motion for summary judgment under Rule 56, as provided in Rule 12(b). Counsel presented oral argument to the Court on May 14, 1976, and decision was reserved.

 Defendant premises its motion to dismiss on three arguments:

(1) The complaint fails to allege that plaintiff commenced procedures under New York's Human Rights Law, as defendant contends he was required to do before instituting suit, pursuant to 29 U.S.C. §§ 626(d) and 633(b), and therefore the Court lacks subject matter jurisdiction and the complaint fails to state a claim;
(3) Paragraph 12 of the complaint fails to state the date on which plaintiff gave notice to the Secretary of his intent to sue, and therefore the jurisdictional allegations of the complaint fail to meet the requirements of F.R.Civ.P.8(a)(1).

 I. Factual Background

 Plaintiff's factual allegations, which the Court is required to take as proved for the purposes of these motions, may be briefly summarized.

 Plaintiff is a New Jersey citizen who was hired by defendant on October 20, 1952. Throughout his employment with defendant, plaintiff was Industrial Relations Manager of defendant's Brooklyn brewery.

 Plans to close the Brooklyn plant had begun to be formulated sometime in 1969. After the plant ceased production on March 16, 1973, plaintiff was appointed resident manager through December, 1973, to assist in the sale of the plant, its equipment and its machinery. On August 22, 1973, plaintiff had his 62nd birthday. According to defendant's rules and regulations, he would not have had to retire until age 65, or on or about August 22, 1976. Nevertheless, plaintiff was involuntarily retired by defendant on December 31, 1973.

 Plaintiff contends that "as early as 1969," he had discussed his future status with defendant in light of defendant's known intention to close the Brooklyn plant. Plaintiff alleges that he was repeatedly assured by defendant, both verbally and in writing, that when an Industrial Relations Manager's position became available he would be given the opportunity to take it. He was also assured, according to the complaint, that "all efforts would be made to retain the plaintiff until he reached the mandatory retirement age of 65 . . . ." (Complaint, para. 6)

 In late 1972, defendant considered plans for opening a plant in Syracuse, New York. Defendant announced these plans in May or June, 1973, and at that time expected to begin production in Syracuse by January 1, 1976. On several occasions during 1973, plaintiff discussed with representatives of defendant the possibility of his becoming Industrial Relations Manager of the Syracuse plant. The complaint alleges that plaintiff "was repeatedly advised by the defendant that he was being given every consideration for that position, although the plaintiff was not given every consideration for that position." (Complaint, para. 8)

 It is further alleged that defendant "had commenced plans for interviews" for the Syracuse IRM position before plaintiff was involuntarily retired, and that a person was hired for that position in early 1974 and began his duties in that capacity even before his transfer to Syracuse in July 1974. Plaintiff therefore contends that the position in question existed at the time of plaintiff's forced retirement, but that it was not offered to him because of his age. The operative allegation of the complaint states:

The defendant advised the plaintiff that the plaintiff would be 64 years of age when productions [sic] commenced in Syracuse and that the plaintiff could, therefore, not have that job.

 (Complaint, para. 10) The complaint does not specify which representative of defendant made this representation to plaintiff.

 Plaintiff contends that he learned only after his forced retirement that defendant maintained that it had failed to transfer him to the Syracuse plant on the grounds of his work experience and performance. He alleges that he was denied transfer to the Syracus job solely because of his age, and that defendant thereby wilfully violated the Age Discrimination in Employment Act of 1967 (ADEA), Title 29 United States Code, §§ 621, et seq.

 II. Legal Analysis

 A. Failure to file complaint under New York Human Rights Law.

(d) No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed --
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by ...

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