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ELLIOTT v. BRITISH TOURIST AUTH.

November 17, 1997

ROBERT ELLIOTT, Plaintiff,
v.
BRITISH TOURIST AUTHORITY, DEPARTMENT OF HERITAGE, BRITISH TOURIST AUTHORITY (NEW YORK), Defendants.



The opinion of the court was delivered by: BAER

 HON. HAROLD BAER, Jr., District Judge:1

 Defendant, the British Tourist Authority ("BTA"), moves to dismiss plaintiff's complaint on the grounds that it is immune from the jurisdiction of the United States courts under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq. For the reasons stated below, defendant's motion is DENIED.

 BACKGROUND

 Plaintiff began working in the BTA's New York office in or around 1969 as a marketing executive. On or about March 1, 1996, plaintiff was terminated. His title prior to his termination was "Manager of Industry Relations." Plaintiff brings this action alleging that he was wrongfully terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, as well as various state law claims.

 DISCUSSION

 The present motion requires a two-step analysis. First, this Court must determine if the provisions of the ADEA apply to an agency or instrumentality of a foreign state that employs United States citizens on United States soil. Second, if the ADEA so applies, this court must determine if the BTA is immune under the FSIA.

 I. Applicability of the ADEA to a Foreign State

 Although neither party concluded it was worthy of comment, the ADEA provides in pertinent part: "The prohibitions of this section shall not apply where the employer is a foreign person *fn3" not controlled by an American employer." 29 U.S.C. § 623(h)(2). The provision appears to remove the BTA from ADEA's prohibitions. The few courts that have reviewed § 623(h)(2), however, are split as to its proper interpretation. See EEOC v. Kloster Cruise Ltd., 888 F. Supp. 147, 149 (S.D.Fla. 1995) (citing cases).

 The court in Kloster Cruise held that the language in § 623(h)(2) was intended to apply only to overseas operations of a "foreign person" and not to the operations of a "foreign person" within the United States. Kloster Cruise, 888 F. Supp. at 149-52; see also Helm v. South African Airways, 1987 U.S. Dist. LEXIS 5671, No. 84 Civ. 5404 (MJL), 1987 WL 13195 (S.D.N.Y. June 25, 1987) (nothing in ADEA indicates that section was meant to exclude United States citizens working for a "foreign person" within the United States from ADEA coverage); but see Mochelle v. J. Walter Inc., 823 F. Supp. 1302, 1309 (M.D. La. 1993) (dicta stating that provision precludes application of ADEA to foreign employer within United States), aff'd, 15 F.3d 1079 (5th Cir. 1994).

 Kloster Cruise and Helm reached the same conclusion, i.e., that "nothing in the ADEA or its legislative history . . . indicate[s] that the 1984 amendments [that added § 623(h)(2)] were intended to exclude American citizens working within the United States [for a foreign employer] from coverage." Helm, 1987 U.S. Dist. LEXIS 5671, at *21, 1987 WL 13195 at *7. Relying on the provision's legislative history, the court continued:

 
The 1984 amendments to the ADEA were generally intended to extend the Act's coverage to Americans employed abroad by American companies or their subsidiaries. Congress was careful not to impose its labor standards on another country. Accordingly, Congress did not extend ADEA's protections to foreign nationals working abroad for American companies or their subsidiaries. It is inconceivable that Congress intended to respect the sovereignty of other nations and ...

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