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ROBINSON v. OVERSEAS MILITARY SALES CORP.

July 15, 1993

HOWARD E. ROBINSON, Plaintiff
v.
OVERSEAS MILITARY SALES CORP.; ARMY & AIR FORCE EXCHANGE SERVICE; GREGORY W. DEERING, SSG; BRADLEY J. POTTER, CW2; AND RANDALL L. MULLINS, SSG, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge.

 Plaintiff Howard Robinson ("Robinson") commenced this action against defendant Overseas Military Sale's Corporation ("OMSC") under the Age Discrimination in Employment, Act ("ADEA"), 29 U.S.C. § 621, et seq., and against the remaining defendants under the ADEA and 42 U.S.C. § 1983. Defendant OMSC moves for summary judgment on the ADEA claim. The government moves for dismissal of Robinson's claims against defendants Army & Air Force Exchange Service ("AAFES") and Gregory W. Deering, Bradley J. Potter, and Randall L. Mullins (the "individual defendants") (collectively the "federal defendants") in their official capacities for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) and for dismissal of Robinson's claims against the individual defendants in their individual capacities for lack of personal jurisdiction and for insufficiency of service of process, Fed. R. Civ. P. 12(b)(2) and (b)(5). For the following reasons, OMSC's summary judgment motion and the federal defendants' motion to dismiss are granted.

 FACTS

 Plaintiff resides in Roxbury, Massachusetts. He worked as a sales agent for OMSC, a Swiss corporation with an office in Woodbury, New York, to sell automobiles to U.S. military personnel stationed in Korea. OMSC was formerly known as Chrysler Military Sales Corporation and is affiliated with Overseas Military Sales Group ("OMSG") and Overseas Military Sales Organization ("OMSO"), which are also Swiss corporations. See Aff. of Joan Albright, dated June 15, 1993, at PP 1, 3 ("Albright Aff.").

 Defendant AAFES, an instrumentality of the United States government, is jointly commanded by the U.S. Army and the Air Force. AAFES operates exchanges where military personnel may purchase goods and merchandise. AAFES entered into an agreement with Chrysler Corporation ("Chrysler") for the latter to supply new cars for sale to military personnel at AAFES-operated exchanges. Chrysler, in turn, hired OMSC to employ independent sales agents to sell automobiles manufactured by Chrysler at AAFES-operated exchanges.

 Robinson was employed by OMSG, OMSC and OMSO from September 1979 to August 1990 to sell Chrysler automobiles at Camp Walker and Camp Humphries, which are U.S. military installations in Taegu, Korea. See Albright Aff. at P 12; Ex. 4 to id. (OMSG notifies AAFES in Korea that Robinson's employment was terminated as of August 20, 1990); Ex. 5 to id. (sales agency agreements executed between Robinson and OMSC or OMSO); Ex. 5 to id. (OMSG assigns manual to agent Robinson containing proprietary information). See also Pl.'s Mem. in Opp'n to Mot. to Dismiss at 1 (Chrysler Military Sales Corporation is also known as OMSG and OMSC). This action centers on the events leading up to Robinson's discharge in August 1990, his rehiring on December 7, 1990 only to be fired again on February 13, 1991, and his subsequent rehiring in August 1991 and his re-termination in October 1991. Complaint at p.3. Robinson claims that his discharge from employment was caused by the tortious acts of defendants Gregory W. Deering, Bradley J. Potter, and Randall L. Mullins. Those individuals served in the U.S. military and were stationed in Seoul, Korea during 1990 and 1991. Deering was a sergeant in the United States Military Police and Potter and Mullins were Special Agents in the Criminal Investigations Division (CID) of the United States Army. Those individuals conducted two investigations into allegations that Robinson and his Korean-born wife, Soon Seon Robinson, had sold duty free goods to Korean nationals on the black market in Korea and that they had improperly purchased rations at a military installation after their ration privileges had been revoked.

 The first investigation began in November 1989 when Deering and Potter accompanied a Korean customs official, Detective Yim, to Robinson's home on November 3 for the purpose of interviewing Robinson to ascertain whether he could account for the luxury goods that he had purchased earlier from AAFES-operated exchanges. At the conclusion of that visit on November 3, Robinson's ration control plate was seized; his wife's ration control plate was seized on November 8, 1989. See CID Investigation Report, dated May 16, 1990 at 3 (Govt.'s Ex. E). Robinson alleges that defendant Deering also seized an original controlled item purchase refund record, dated November 31, 1988. See Plaintiff's Comments to id. at 3. (Pl.'s Ex. G). The army subsequently revoked his ration control privileges for one year. See Letter from AAFES, dated November 14, 1989 (Ex. 6 to Albright Aff.). At the conclusion of the first investigation, defendant Potter issued a report on May 16, 1990, in which he found that there was enough evidence to commence administrative proceedings against Robinson for violating various rules pertaining to the unlawful sale of duty free goods purchased at army facilities. Govt.'s Ex. E at 5-6; Govt.'s Ex. I (summary of prohibited activities relating to transfers of duty free goods and improper use of a ration control plate).

 The second investigation began in September 1990 and continued until November 1990, culminating in a CID Investigation Report, dated November 7, 1990, which indicated that Robinson had wrongfully obtained a temporary ration card and had continued to purchase rations at various AAFES-operated facilities without authorization. Govt.'s Ex. F. See also Sworn Statement of Joseph Piette, dated October 19, 1990 (Govt.'s Ex. F.) (stating that he observed Robinson illegally purchasing items at AAFES-operated exchanges on September 25 and 30 and October 2, 1990 even after his original Ration Control Plate had been revoked and physically destroyed). Based on this report, an army commander barred Robinson from entering all Area IV military installations in Korea, except that Robinson could enter Camp Walker to obtain medical and dental care. See Letter of Debarment, dated December 10, 1990 (Ex. 9 to Albright Aff.)

 OMSC moves for summary judgment on the ADEA claim. The government moves to dismiss the complaint against AAFES and the individual defendants in their official capacities on the grounds of sovereign immunity, Fed. R. Civ. P. 12(b)(1). The individual defendants also move to dismiss the complaint against them in their individual capacities for lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2), and alternatively, for insufficiency of service of process, Fed. R. Civ. P. 12(b)(5). For the following reasons, the defendants' motions are granted.

 A. OMSC's Summary Judgment Motion

 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmovant, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), but "there can be 'no genuine issue as to any material fact'" if the plaintiff exhibits "a complete failure of ...


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