IDA MORELLI, Plaintiff-Appellant, v. CEDEL,
Defendant-Appellee.
Docket No. 97-7277
UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
141 F.3d 39; 1998 U.S. App. LEXIS 6317; 76 Fair
Empl. Prac. Cas. (BNA) 709; 21 E.B.C. 2921
October 21, 1997, Argued
March 26, 1998, Decided
PRIOR HISTORY: [**1]
Appeal from a judgment entered in the United States District Court for the
Southern District of New York, Mukasey, J., granting defendant's motion to
dismiss the Amended Complaint and dismissing the Amended Complaint.
DISPOSITION: Judgment vacated with respect to ADEA and ERISA
claims and case remanded.
CORE TERMS: domestic, workplace, counted, covered employment,
foreign country, returning, antidiscrimination, exemption, treaty, separation agreement,
legislative history, motion to dismiss, foreign person, threshold, vacated,
older, age discrimination, extraterritorial, pension, Civil Rights Act,
reasonable expectation, foreign operations, plan participant, matters outside,
plain language, foreign law, per curiam, plan year, foreign-employer,
subsidiaries
COUNSEL: STEVEN G. ECKHAUS, Eckhaus & Olson, New York, NY,
for Plaintiff-Appellant.
GARY D. FRIEDMAN, Mayer, Brown & Platt, New York, NY, for
Defendant-Appellee.
JUDGES: Before: NEWMAN, CALABRESI and CUDAHY, * Circuit
Judges.
* The Honorable Richard D. Cudahy of the United States Court of Appeals for the
Seventh Circuit, sitting by designation.
OPINIONBY: RICHARD D. CUDAHY
OPINION:
[*41] CUDAHY, Circuit Judge:
This appeal requires us to decide whether the domestic employees of certain
foreign corporations are protected under the Age Discrimination and Employment
Act of 1967 (the ADEA), and, if so, whether a foreign corporation's foreign
employees are counted for the purpose of determining whether the corporation
has enough employees to be subject to the ADEA. We answer both questions in the
affirmative.
Background
After the defendant fired the plaintiff, the plaintiff sued the defendant.
[**2] The plaintiff's amended
complaint asserted that the defendant violated the ADEA, 29
U.S.C. §§ 621-634, the Employment Retirement Security Act (ERISA), 29
U.S.C. §§ 1001-1461, and New York State's Human Rights Law, N.Y. Exec. Law
§§ 290-301. The district court dismissed the complaint on the grounds that the
defendant was not subject to the ADEA, see Fed. R. Civ. P. 12(b)(1) (lack of
jurisdiction over the subject matter), and that the ERISA count did not state a
claim upon which relief could be granted, see Fed. R. Civ. P. 12(b)(6). The
court also dismissed the state law claim. The plaintiff appeals the dismissal
of her federal claims.
As alleged in the complaint, the facts relevant to this appeal are as follows.
The plaintiff, Ida Morelli, was born on April 11, 1939. The defendant is a
Luxembourg bank. On or about June 29, 1984, the defendant hired the plaintiff
to work in its New York office. On or about February 26, 1993, the plaintiff
became and assistant to Dennis Sabourin, a manager in the defendant's New York
office. Mr. Sabourin summoned the then 54-year-old plaintiff to his office on
January 18, 1994, handed her a separation agreement, and insisted that she sign
[**3] it.
Under the terms of the separation agreement, a copy of which was attached to
the complaint, the plaintiff would resign, effective April 30, 1994. She would
continue to receive her salary and benefits until the effective date of her
resignation, but she would be relieved of her duties as an employee, effective
immediately. Both the defendant and the employee would renounce all claims
arising out of "their past working relationship." Mr. Sabourin told
the plaintiff that she would receive the three months' severance pay, medical
coverage for three months, and her pension only on the condition that she sign
the agreement on the spot. The plaintiff had never seen the separation
agreement before and had no warning that she was going to be asked to resign.
But in the face of Mr. Sabourin's ultimatum, she did sign the agreement
immediately and returned it to him. The defendant, however, never provided her
with a pension distribution.
Discussion
1. Age Discrimination
(a) Does the ADEA cover a U.S.-based branch of a foreign employer?
The ADEA was enacted in 1967 to prevent arbitrary discrimination by employers
on the basis of age. See Pub. L. No. 90-202, § 2, 81 Stat. [**4] 602 (codified at 29
U.S.C. § 621(b)); Lorillard
v. Pons, 434 U.S. 575, 577, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978). In order
to determine whether the defendant is subject to the ADEA, we must first
determine whether the ADEA generally protects the employees of a branch of a
foreign employer located in the United States.
It is undisputed that Cedel is a foreign employer with fewer than 20 employees
in its sole U.S. branch. There being no contested facts on the motion to
dismiss under Rule 12(b)(1), we review the district court's dismissal de novo.
See Rent
Stabilization Ass'n v. Dinkins, 5 F.3d 591, 594 (2d Cir. 1993).
Section 4(h)(2) of the ADEA provides that "the prohibitions of [the ADEA]
shall not apply where the employer is a foreign person not controlled by an
American employer." [*42] 29
U.S.C. § 623(h)(2). At a minimum, this provision means that the ADEA does
not apply to the foreign operations of foreign employers-unless there is an
American employer behind the scenes. See Denty
v. SmithKline Beecham Corp., 109 F.3d 147, 150-51 (3d Cir. 1997). An
absolutely literal reading of § 4(h)(2) might suggest that the ADEA also does
not apply to the domestic operations [**5]
of foreign employers. But the plain language of § 4(h)(2) is not necessarily
decisive if it is inconsistent with Congress' clearly expressed legislative
purpose. See Tomka
v. Seiler Corp., 66 F.3d 1295, 1313-14 (2d Cir. 1995); see also Matimak
Trading Co. v. Khalily, 118 F.3d 76, 87 (2d Cir. 1997); Haberman
v. Finch, 418 F.2d 664, 666 (2d Cir. 1969).
Section 4(h)(2) was not part of the original ADEA. It was added in 1984. See
Pub. L. No. 98-459, § 802(b)(2), 98 Stat. 1792 (1984); Pub. L. No. 99-272, §
9201(b)(3), 100 Stat. 171 (1986) (clerical correction). The context in which it
was added reveals that Congress' purpose was not to exempt the domestic
workplaces of foreign employers from the ADEA's prohibition of age discrimination.
Instead, the purpose of adding this exclusion was to limit the reach of an
extraterritorial amendment adopted as part of the same legislation.
In 1984, before § 4(h)(2) was added, several courts of appeals had concluded
that the ADEA did not apply to "Americans employed outside the United
States by American employers." Cleary
v. United States Lines, Inc., 728 F.2d 607, 610 (3d Cir. 1984); see also,
e.g., Thomas
v. Brown & [**6] Root, Inc., 745
F.2d 279, 281 (4th Cir. 1984) (per curiam); Zahourek
v. Arthur Young & Co., 750 F.2d 827, 828-29 (10th Cir. 1984). These
decisions were based in part on language in § 7 of the ADEA, 29
U.S.C. § 626, which prescribes enforcement procedures by reference to
certain provisions of the Fair Labor Standards Act (FLSA), 29
U.S.C. §§ 201-219, the national wage and hour law. Those FLSA provisions
specify that the FLSA does not apply "with respect to any employee whose
services during the workweek are performed in a workplace within a foreign country."
29
U.S.C. § 213(f); see 29
U.S.C. § 216(d)(1); Cleary,
728 F.2d at 608-09. The courts of appeals held that the ADEA incorporated
the FLSA's prohibition on extraterritorial application. See, e.g., Cleary,
728 F.2d at 609. Within a few months of the 1984 court decisions, Congress
amended the ADEA in a way that superseded the holding of these cases by
"providing for limited extraterritorial application" of the ADEA. Denty,
109 F.3d at 149-50.
The 1984 amendments amplified the definition of "employee" in § 11(f)
of the ADEA, which had previously embraced any "individual employed by any
employer," except [**7] for
certain elected public officials and political appointees. See Pub. L. No.
90-202, § 11(f) (1967); Pub. L. No. 93-259, § 28(a)(4) (1974). One of the 1984
amendments specified that "the term 'employee' includes any individual who
is a citizen of the United States employed by an employer in a workplace in a
foreign country." Pub. L. No. 98-459, § 802(a) (1984).
Companion amendments dealt with the cases of foreign persons not controlled by
an American employer -- now § 4(h)(2) of the ADEA -- and foreign corporations
controlled by American employers -- now § 4(h)(1):
If an employer controls a corporation whose place of incorporation is in a
foreign country, any practice by such corporation prohibited under this section
shall be presumed to be such practice by such employer.
Id. § 803(b)(2); Pub. L. No. 99-272, § 9201(b)(3) (1986), codified at 29
U.S.C. § 623(h)(1). The amendments also included a "foreign law
exception" -- now ADEA § 4(f)(1) -- insulating employers from liability
for "practices involving an employee in a workplace in a foreign
country" where compliance with the ADEA "would cause [the] employer,
or a corporation controlled [**8] by
such employer, to violate the laws of the country in which such workplace is
located." Pub. L. No. 98-459, § 803(b)(1) (1984), codified at 29
U.S.C. § 623(f)(1).
The 1984 revision to the definition of "employee" in § 11(f) was
intended "to assure that the provisions of the ADEA would be applicable to
any citizen of the United States who is employed by an American employer in
[*43] a workplace outside the United
States." S. Rep. 98-467, at 27 (1984), reprinted in 1984 U.S.C.C.A.N.
2974, 3000 (S. Rep.); see EEOC
v. Arabian American Oil Co., 499 U.S. 244, 258-59, 113 L. Ed. 2d 274, 111 S.
Ct. 1227 (1991). The other 1984 amendments, to § 4 of ADEA, conform the
ADEA's reach to "the well-established principle of sovereignty, that no
nation has the right to impose its labor standards on another country." S.
Rep. at 27. Thus § 4(h)(2) of the ADEA merely limits the scope of the amended
definition of employee, so that an employee at a workplace in a foreign country
is not protected under the ADEA if the employer is a foreign person not
controlled by an American employer. See id. at 27-28 ("The amendment . . .
. does not apply to foreign companies which are not controlled [**9] by U.S. firms.") (emphasis added).
There is no evidence in the legislative history that these amendments were
intended to restrict the application of the ADEA with respect to the domestic
operations of foreign employers.
Further, the plain language of the corresponding foreign-employer exclusions in
Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e-17, and the Americans with Disabilities Act of 1990
(ADA), 42
U.S.C. §§ 12101-12213, indicates that a foreign employer's domestic
operations are not excluded from the reach of those statutes. The Title VII and
ADA exclusions are expressly limited to the "foreign operations of an
employer that is a foreign person not controlled by an American employer,"
42
U.S.C. §§ 2000e-1(c)(2), 12112(c)(2)(B) (emphasis added), so these employment
discrimination statutes would apply to a foreign company's domestic operations.
It is not apparent why the domestic operations of foreign companies should be
subject to Title VII and the ADA, but not to the ADEA. The legislative history
of the comparable foreign-employer exemptions of those laws -- both added as
part of the Civil Rights Act of 1991, see Pub. L. No. 102-166, § [**10] 109(b)(1), (2), 105 Stat. 1077 -- contains
no indication that Congress intended any such difference in scope between the ADEA
and Title VII or the ADA. See, e.g., 137 Cong. Rec. 28,638 (1991) (statement of
Sen. Kennedy).
If § 4(h)(2) does not exempt the domestic operations of foreign companies from
the ADEA, there is no other basis for such an exemption. Because "the Age
Discrimination Act is remedial and humanitarian legislation," it should be
"construed liberally to achieve its purpose of protecting older employees
from discrimination." Moses
v. Falstaff Brewing Corp., 525 F.2d 92, 93 (8th Cir. 1975). The exemption
of the domestic operations of foreign employers from the ADEA would only
undermine the purpose of the ADEA to "promote employment of older persons
based on their ability rather than age." 29
U.S.C. § 621(b). International comity does not require such an exemption;
the 1984 amendments anticipate that American corporations operating abroad will
be subject to foreign labor laws, and Congress presumably contemplated that the
operations of foreign corporations here will be subject to U.S. labor laws.
We have previously concluded that even when a foreign employer [**11] operating in the United States can invoke a
Friendship, Commerce and Navigation treaty to justify employing its own
nationals, this "does not give [the employer] license to violate American
laws prohibiting discrimination in employment." Avigliano
v. Sumitomo Shoji America, Inc., 638 F.2d 552, 558 (2d Cir. 1981), vacated
on other grounds, 457
U.S. 176, 72 L. Ed. 2d 765, 102 S. Ct. 2374 (1982); see also MacNamara
v. Korean Air Lines, 863 F.2d 1135, 1141 (3d Cir. 1988) ("[A] foreign
business may not deliberately undertake to reduce the age of its workforce by
replacing older Americans with younger foreign nationals."). Although the
Supreme Court vacated our judgment in that case on the grounds that the
defendant could not invoke the treaty, see Sumitomo,
457 U.S. at 189-90 & n.19, the Court observed that "the highest
level of protection afforded by commercial treaties" to foreign
corporations operating in the United States is generally no more than
"equal treatment with domestic corporations." Id.
at 188 n.18. Here equal treatment would require that antidiscrimination
rules apply to foreign enterprises' U.S. branches, since "defending
personnel [*44] decisions is a fact of
business life in contemporary [**12]
America and is a burden that the domestic competitors of foreign enterprise
have been required to shoulder," MacNamara,
863 F.2d at 1147. Also, U.S. subsidiaries of foreign corporations are
generally subject to U.S. antidiscrimination laws, see, e.g., Fortino
v. Quasar Co., 950 F.2d 389, 393-94 (7th Cir. 1991), and, absent treaty
protection -- not an issue in this case -- a U.S. branch of a foreign
corporation is not entitled to an immunity not enjoyed by such subsidiaries.
See Sumitomo,
457 U.S. at 189.
We therefore agree with the E.E.O.C., the agency charged with the enforcement
of the ADEA, see 29
U.S.C. §§ 626, 628; cf. Ohio
Pub. Employees Retirement Sys. v. Betts, 492 U.S. 158, 170-75, 106 L. Ed. 2d
134, 109 S. Ct. 2854 (1989), that the law generally applies "to
foreign firms operating on U.S. soil." E.E.O.C. Policy Guidance,
N-915.039, Empl. Prac. Guide (CCH) 5183, 6531 (March 3, 1989). For the reasons
we have discussed, we are confident that Congress has never clearly expressed a
contrary intent. See Regions
Hosp. v. Shalala, 522 U.S. 448, 118 S. Ct. 909, 915, 139 L. Ed. 2d 895 (1998).
(b) Are employees based abroad counted in determining whether a U.S.-based
branch of a foreign [**13] employer is
subject to the ADEA?
Cedel will still not be subject to the ADEA by virtue of its U.S. operations
unless Cedel is an "employer" under the ADEA. A business must have at
least twenty "employees" to be an "employer." 29
U.S.C. § 630(b). Cedel maintains that, in the case of foreign employers,
only domestic employees should be counted. The district court agreed, and,
since Cedel had fewer than 20 employees in its U.S. branch, the court granted
Cedel's motion to dismiss for lack of subject matter jurisdiction without
considering the number of Cedel's overseas employees.
The initial version of the ADEA, adopted in 1967, did not apply to employers
with fewer than 25 employees. See Pub. L. No. 90-202, § 11(b), 81 Stat. 605
(codified as amended at 29
U.S.C. § 630(b)). (For a brief transitional period, employers with fewer
than 50 employees were not subject to the ADEA. Id.) In 1974, the threshold was
lowered to its present level. See Pub. L. No. 93-259, § 28(a)(1). We first
consider whether the ADEA's definition of "employee" might somehow
support Cedel's position. Prior to the 1984 amendments, the definition of an
employee was simply "an individual employed [**14]
by any employer," with exceptions, noted above, not relevant in the
present case. See Pub. L. No. 90-202, § 11(f) (1967); Pub. L. No. 93-259, §
28(a)(4) (1974). This language provides no basis for counting only domestic
employees. (Neither does the reasoning of the cases limiting the reach of the
pre-1984 ADEA to domestic workplaces, since the portions of the FLSA
incorporated into the ADEA -- in particular 13(f) of the FLSA -- do not purport
to modify the definition of employee under § 3(e) of the FLSA. See 29
U.S.C. §§ 213(f), 203(e); see also, e.g., Cleary,
728 F.2d at 610.)
The 1984 amendments supplemented the definition of employee in § 11(f) of the
ADEA to include U.S. citizens employed in a foreign workplace. This revision to
§ 11(f) does not establish that the employees, wherever located, of a foreign
corporation with a U.S. branch are not "employees" under the ADEA,
for it makes no distinction between foreign and domestic employers. As
discussed above, the function of adding § 4(h)(2) in 1984 was only to limit a
foreign-based employer's ADEA liability with respect to employees in a foreign
workplace, and so provides no grounds for counting only Cedel's [**15] domestic employees. The word
"employee" does not even appear in § 4(h); if Congress had wished to
restrict the definition of "employee" to exclude a foreign employer's
foreign workers, it certainly could have done so directly when it amended §
11(f) in 1984. The 1984 foreign law exception also does not aid Cedel.
The district court reasoned that the overseas employees of foreign employers
should not be counted because they are not protected by the ADEA. But there is
no requirement that an employee be protected by the ADEA to be counted; an
enumeration, for the purpose of ADEA coverage of an employer, [*45] includes employees under age 40, who are
also unprotected, see 29
U.S.C. § 631(a). The nose count of employees relates to the scale of the
employer rather than to the extent of protection.
The legislative history of the ADEA does not address the minimum employee
requirement. The ADEA was modeled in large part on Title VII, however, see McKennon
v. Nashville Banner Publ'g Co., 513 U.S. 352, 357, 130 L. Ed. 2d 852, 115 S.
Ct. 879 (1995), and we have previously identified several reasons for Title
VII's minimum-employee requirement, see 42
U.S.C. § 2000e(b) (15 or more [**16]
employees). These include the burdens of compliance and potential litigation
costs, "the protection of intimate and personal relations existing in
small businesses, potential effects on competition and the economy, and the
constitutionality of Title VII under the Commerce Clause." Tomka,
66 F.3d at 1314; see also id.
at 1322-23 (Parker, J., dissenting).
None of these reasons suggests that whether a foreign employer is subject to
the ADEA should turn on the size of its U.S. operations alone. Cedel contends
that because it has fewer than 20 employees in the United States, it is the
equivalent of a small U.S. employer. This is implausible with respect to
compliance and litigation costs; their impact on Cedel is better gauged by its
worldwide employment. Cedel would not appear to be any more a boutique
operation in the United States than would a business with ten employees each in
offices in, say, Alaska and Florida, which would be subject to the ADEA.
Further, a U.S. corporation with many foreign employees but fewer than 20
domestic ones would certainly be subject to the ADEA.
Accordingly, in determining whether Cedel satisfies the ADEA's 20-employee
threshold, employees cannot [**17] be
ignored merely because they work overseas. n1 We therefore vacate the judgment
on the plaintiff's ADEA count.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 We do not follow the district courts that have concluded -- without apparent
exception -- that only the domestic employees of a foreign employer are counted
in determining whether the ADEA's 20-employee threshold is met. See, e.g., Robins
v. Max Mara, U.S.A., Inc., 914 F. Supp. 1006, 1009 (S.D.N.Y. 1996); cf. Goyette
v. DCA Adver., 830 F. Supp. 737, 745 (S.D.N.Y. 1993) (Title VII).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2. ERISA
The plaintiff contends that Cedel violated ERISA by failing to "pay . . .
her pension." Clause 3.2(f) of the separation agreement, attached to her
complaint, reads:
Pension Plan: Ida [Morelli] shall be paid an unique and tax protected lump sum
of USD on April 30, 1994.
The district court dismissed the plaintiff's ERISA complaint on three grounds:
First, the plaintiff failed to allege the existence of an employee pension
benefit plan or that she was a participant in, or beneficiary [**18] of, such a plan -- the only capacities in
which Morelli would have standing to sue, see 29
U.S.C. §§ 1002(7), 1002(8), 1132(a)(1). Second, even if Morelli had alleged
the existence of an ERISA qualified pension benefit plan, she failed to allege
facts demonstrating that she was a plan participant or was entitled to benefits
under the plan. Third, the sole pension plan Cedel had for its New York
employees was implemented during 1994, the year the plaintiff was terminated,
and the terms of the plan required that an employee be employed on the last day
of the plan year in order to receive an employer contribution. Since the
plaintiff did not work for Cedel on the last day of the plan year, she was not
entitled to any benefits under the terms of the plan.
As a basis for the second and third grounds for dismissing the complaint, the
district court relied on an affidavit from the office manager of Cedel's New
York office, which stated that "Cedel did not have any pension or
retirement benefit plan for its New York employees" until July 1, 1994.
Consideration of matters outside the pleadings converts the defendant's motion
to dismiss into a summary judgment motion. See Fed. R. Civ. [**19] P. 12(b); James Wm. Moore et al., Moore's
Federal Practice § 56.30[4] (3d ed. 1997). Although a review of the record
below indicates that the plaintiff had enough notice of a potential conversion
to permit the trial court to treat the motion as one for summary judgment sua
sponte, see Groden
v. Random House, Inc., 61 F.3d 1045, 1052-53 [*46]
(2d Cir. 1995); Kopec
v. Coughlin, 922 F.2d 152, 154-56 (2d Cir. 1991), in relying on matters
outside the pleadings, the court should have explicitly disposed of the motion
under Rule 56. See Carter
v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972) (per
curiam). We could still address the motion now if that best served judicial
economy. See George
v. Kay, 632 F.2d 1103, 1106 (4th Cir. 1980). But since we are already
remanding the plaintiff's ADEA claim, and since the viability of the ERISA
claim might be affected by the resolution of the ADEA claim, we vacate the
judgment on the ERISA count as well. Thus all aspects of the ERISA claim remain
open on remand.
Should Morelli succeed on her age discrimination claim, the district court will
have an opportunity to determine in the first instance whether, judgment [**20] in hand, Morelli might meet the definition
of a "participant" entitled to bring a civil action under § 502(a)(1)
of ERISA, 29
U.S.C. § 1132(a)(1). In Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117, 103 L. Ed. 2d 80, 109 S. Ct.
948 (1989), the Supreme Court held that pension-plan
"participants" include "former employees who have . . . a
reasonable expectation of returning to covered employment." 489
U.S. at 117 (internal quotation marks omitted). If Morelli prevails on her
ADEA claim, her status as a participant might depend, for example, on whether
"returning to covered employment" means returning to previously
covered employment or returning to currently covered employment. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Because we decline to address the merits of the ERISA motion at this time,
we need not now consider whether the filing of an antidiscrimination suit, in
itself, would provide a plaintiff with "a reasonable expectation of
returning to covered employment." Compare Mullins
v. Pfizer, Inc., 23 F.3d 663, 667 (2d Cir. 1994) (finding standing
established by filing of ERISA claim), with Winchester
v. Pension Comm., 942 F.2d 1190, 1193 (7th Cir. 1991) (finding standing not
conferred by filing of antidiscrimination claim where plaintiff had sufficient
opportunity to vindicate ERISA goals while a plan participant).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**21]
Conclusion
The judgment is vacated with respect to the ADEA and ERISA claims and the case
is remanded for further proceedings not inconsistent with this opinion.