Reginaldo P. LOPEZ, Plaintiff-Appellant, v. PAN AM WORLD SERVICES, INC., Defendant-Appellee

813 F.2d 1118

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 12, 1987
• Docket: 86-3188
• Status: Published

Opinions

MORGAN, Senior Circuit Judge:

The issue in this appeal is whether the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, prior to its amendment in 1984, applies to the application for employment by an American citizen to an American corporation, where the place of employment would be in a foreign country. The district court held that the ADEA did not have extraterritorial effect, thereby barring the appellant’s age discrimination claim under the ADEA. We agree.

Appellant Reginaldo P. Lopez, a fifty-nine year old United States citizen, applied in 1982 for a position with Pan Am World Services, Inc. (Pan Am), a Florida corporation. Pan Am then decided to fly appellant from Florida to Greenwich, Connecticut for an interview with several Pan Am employees. In that interview, the Pan Am employees told Lopez that he was qualified for a warehouse superintendent position in Caracas, Venezuela.¹ Subsequently, E.E. Wilcoxen, a Pan Am employment services manager, withdrew Pan Am’s employment offer because of appellant’s age. In a followup letter dated march 1, 1982, Wilcoxen stated: “[i]t is regrettable and unfortunate that we must withdraw our offer of employment; however, our client in Caracas has mandated an age requirement which you exceed.” Later Pan Am hired two younger men to fill the position Pan Am offered to appellant.

In February 1985, appellant sued Pan Am for violating the Age Discrimination in Employment Act (ADEA). Pan Am then moved for summary judgment asserting that the court lacked subject matter jurisdiction because the ADEA, prior to its amendment in 1984, was not effective outside of the United States. The district court granted Pan Am’s motion, holding that the ADEA did not protect appellant because his work station would be located in Venezuela. We affirm.

Section 626(b) of the ADEA incorporates by reference² the extraterritorial exemption contained in § 13(f) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 213(f). That exemption states that “the provisions ... shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country.” FLSA, 29 U.S.C. § 213(f) (1982). To nullify this exemption, Congress in 1984 passed an amendment to the ADEA which extended the ADEA’s protection to United States citizens employed abroad by American corporations or their subsidiaries, except when application of the ADEA would violate the law of the foreign country where the citizen was employed.³ Older Americans Act Amendments of 1984, Pub.L. No. 98-459, § 802(b)(1), (b)(2), 98 Stat. 1767, 1792 (codified as amended at 29 U.S.C. § 623(f)(1), (g)(1))- Congress did not indicate that the amendment would apply retroactively.⁴

In this case we must interpret the ADEA’s extraterritorial exemption prior to its amendment in 1984. Six circuits have held that the ADEA prior to 1984 did not protect American citizens employed in foreign countries. S.F. DeYoreo v. Bell Helicopter Textron, Inc., 785 F.2d 1282 (5th Cir.1986); Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C.Cir.1985); Pfeiffer v. Wm. Wrigley Junior Co., 755 F.2d 554 (7th Cir.1985); Zahourek v. Arthur Young and Co., 750 F.2d 827 (10th Cir.1984); Thomas v. Brown and Root, Inc., 745 F.2d 279 (4th Cir.1984); Cleary v. U.S. Lines, Inc., 728 F.2d 607 (3d Cir.1984). In all of the circuit cases, an American employee was working overseas when his corporation terminated him because of his age. Here the appellant is an applicant, not an employee, who was rejected by a United States corporation for a job in Venezuela. According to the appellant, all of the acts relevant to the age discrimination charge occurred in the United States, so the extraterritorial exemption of the ADEA should not apply.

Appellant emphasizes that in this case a United States corporation decided in the United States not to hire a United States citizen. Appellant disregards the fact that his job would have been in Venezuela. To avoid the ADEA’s extraterritorial exemption, appellant attempts to distinguish between the place of hiring and the place of termination. Such a distinction appears to be a restatement of the “place of decision” theory. Under this theory, the place the personnel decision is made determines whether the ADEA is applicable. The Third Circuit in Cleary dismissed this approach, noting that the language of § 213(f) looks to the place of employment, not the place where the decision was made. 728 F.2d 607, 610 n. 6. Furthermore, a district court in Wisconsin characterized the location of the work station as the critical coverage factor. “It is not the place where the plaintiff is hired, however, nor even the place where the termination decision is made that determines the applicability of the ADEA ... Instead, it is the location of the ‘work station’ that is determinative.” Wolf v. J.I. Case Co., 617 F.Supp. 858, 863 (E.D.Wisc.1985).

Based on the plain language of § 13(f) of FLSA, we agree that the location of the work station should be the controlling factor for discerning the ADEA’s extraterritorial effect. The work station for appellant’s job would have been Caracas, Venezuela. Therefore, the ADEA, prior to its amendment in 1984, does not protect the appellant from age discrimination. We regret that appellant does not have a cause of action because Pan Am’s hiring decision based on age occurred too early. Nevertheless, we must apply the law as it stood in 1982.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

1 . According to Peter Dugre, general counsel for Pan Am, appellant was being considered for a supervisor position at the Airemar project, the largest warehouse in Venezuela. The appellant stated in his deposition that the job in Venezuela would be for three years, and then a Venezuelan would take over the position, resulting in appellant's reassignment to the United States.

2 . The relevant part of 29 U.S.C. § 626(b) provides, the following:

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. ADEA, 29 U.S.C. § 626(b).

Subsection (d) of § 216 states the following:

[n]o employer shall be subject to any liability or punishment under this Act ... with respect to work heretofore or hereafter performed in a workplace to which the exemption in section 213(f) of this title is applicable, Fair Labor Standards Act, 29 U.S.C. § 216(d).

3 . The legislative history of the 1984 amendment does not specify Congress’ reasons for amending the statute. See H.R.Rep. No. 1037, 98th Cong., 2d Sess. 49 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 2974, 3018, 3037; 130 Cong.Rec. § 11862, § 11864 (daily ed. Sept. 26, 1984). In S.F. DeYoreo v. Bell Helicopter Textron, Inc., 785 F.2d 1282 (5th Cir.1986), the Fifth Circuit concluded that the amendment must have added something that was not already there. “If Congress found it necessary to extend the coverage of the ADEA to foreign-employed United States citizens, the statute’s reach must not originally have gone that far.” Id. at 1283. We agree that the 1984 amendment changed the law, not just clarified it.

4 . Appellant Lopez does not contend on appeal that the amendment applies retroactively, but other circuits that have considered the issue concluded that there is no retroactive application. See Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C.Cir.1985); Pfeiffer v. Wm. Wrigley, Junior Co., 755 F.2d 554, 559 (7th Cir.1985).