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HANSEN v. DANISH TOURIST BD.

May 19, 2001

LIS HANSEN, PLAINTIFF,
v.
DANISH TOURIST BOARD, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

      MEMORANDUM OF DECISION AND ORDER

This case arises out of claims by Lis Hansen ("Hansen" or the "plaintiff") that the Danish Tourist Board ("Tourist Board" or the "defendant") discriminated against her on the basis of her age and gender in regard to the terms, conditions, and privileges of her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. ("ADEA"), the New York State Human Rights Law, Executive Law § 290 et seq. ("NYHRL"), and the New York City Human Rights Law, N YC. Admin. Code § 8-101 et. seq. ("City HRL"). Presently before the Court is a motion by the Tourist Board to dismiss the complaint in its entirety.

I. BACKGROUND

The following facts are taken from the complaint. Hansen is a citizen of Denmark and a permanent resident of the United States. She is 60 years of age, having been born on February 19, 1941. Hansen began working for the Tourist Board in or about 1984. During the 14 years that she was an employee of the Tourist Board, she received "excellent performance appraisals, her attendance record was never criticized and she always received annual wage increases" (Complaint ¶ 12).

In or about 1995, the plaintiff traveled to Chicago on business with her supervisor, Jarl Boye-Moller ("Boye-Moller"). Hansen alleges that at one point during the trip, Boye-Moller invited himself into her hotel room, and she felt pressure to permit him to stay while she showered and changed for an evening business event. Boye-Moller's behavior led Hansen to believe that he had expectations of a physical relationship with the plaintiff. The plaintiff contends that she rebuffed all of Boye-Moller's advances. Hansen claims that since she rejected Boye-Moller, she did not receive the same wage increases as those received by similarly situated employees, her workload was increased, and her responsibilities were changed.

In June 1997, Boye-Moller promoted one Dorthe Hansen, a woman, to a supervisory position for which the plaintiff was a qualified candidate. Hansen contends that Dorthe Hansen was less qualified and had less seniority and experience than the plaintiff, but was approximately 20 years younger than she. According to the plaintiff, the Tourist Board had a history of promoting younger women and excluding older women. Hansen expressed her disappointment with the promotion decision to Boye-Moller and told him she thought "his decision was made for other than lawful business reasons" (Complaint ¶ 17). Boye-Moller related the plaintiff's allegations about the promotion decision to Dorthe Hansen.

On September 14, 1998, the plaintiff was fired and was replaced with a younger woman who was in her thirties.

The plaintiff commenced this action by filing a complaint on March 13, 2000. The complaint raises eight causes of action. The first cause of action is a Title VII sex discrimination claim, and the second cause of action is a Title VII retaliation claim. In the third cause of action, the plaintiff claims that her rights under the ADEA were violated when the Tourist Board did not consider and promote her to a supervisory position and terminated her based on her age. The fourth cause of action is an ADEA retaliation claim. As a fifth cause of action, Hansen claims that the defendant's conduct violates the NYHRL, and the sixth cause of action is a NYHRL retaliation claim. The seventh cause of action asserts that the defendant's conduct violates the City HRL, and the eighth cause of action asserts discriminatory retaliation in violation of the City HRL.

Presently before the Court is a motion to dismiss, by the Tourist Board pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ. P."). The defendant raises the following arguments: (1) the Tourist Board is exempt from lawsuits brought pursuant to the ADEA and Title VII by Danish citizens in the United States, because it is a foreign person not controlled by an American employer; (2) the Tourist Board is immune from suit under the Foreign Sovereign Immunities Act ("FSIA"); (3) the plaintiff did not raise the present retaliation and sex discrimination claims in her EEOC charge; (4) and the Court should not exercise supplemental jurisdiction over the plaintiff's state-law claims. The Tourist Board also moves to strike the plaintiff's jury demand on the ground that it is an "agency or instrumentality of a foreign state" under the FSIA, see 28 U.S.C. § 1603.

II. DISCUSSION

A. As to the Defendant's Claim that it is Not Subject to Suit Under the ADEA or Title VII

The Tourist Board argues that as a foreign person not under the control of an American employer, it cannot be sued under the ADEA or Title VII. In regard to the plaintiff's age discrimination claims, the Tourist Board refers to the portion of the ADEA that provides, "The prohibitions of this section shall not apply where the employer is a foreign person not controlled by an American employer." 29 U.S.C. § 623(h)(2). The Tourist Board buttresses its argument also by referring to Robinson v. Overseas Military Sales Corp., 827 F. Supp. 915 (E.D.N.Y. 1993), in which the Court interpreted 29 U.S.C. § 623(h)(2) to mean that "[i]t its clear that foreign corporations are not subject to the prohibitions of the ADEA." Robinson, 827 F. Supp. at 920. If the Court were to end the inquiry here, it would be required to dismiss the plaintiff's federal claims. However, the defendant's argument for dismissal overlooks a recent and important Second Circuit decision on this issue.

In Morelli v. Cedel, 141 F.3d 39 (2d Cir. 1998), which was decided after Robinson, the Second Circuit held that the language of 29 U.S.C. § 623(h)(2) does not exempt the United States branch of a foreign employer from the ADEA. See Morelli, 141 F.3d at 43-44. The Court analyzed the plain language of the statute, the context in which it was amended, and its legislative history; compared the statute with corresponding foreign-employer exclusions in Title VII, and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101-12213, which 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); described the policy considerations underpinning the statute; and concluded that the ADEA "generally applies `to foreign firms operating on U.S. soil.'" Morelli, 141 F.3d at 43, 44 (quoting EEOC Policy Guidance, N-915.039, Empl.Prac.Guide (CCH) 5183, 6531 (March 3, 1989)).

Here, the Tourist Board is 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). However, the Tourist Board conducts foreign operations in its New York City office. Thus, under the rule in Morelli, the defendant is subject to the ADEA. See Morelli, 141 F.3d at 43-44. In addition, as noted in Morelli, the Title VII foreign employer exclusion provision is limited to the "`foreign operations of an employer that is a foreign person not controlled by an American employer.'" Morelli, 141 F.3d at 43 (quoting 42 U.S.C. § 2000e-1(c)(2)). Therefore, pursuant to Title VII itself as well as the analysis of it in Morelli, the Tourist Board is not exempt from the requirements of Title VII either.

As such, the Court finds that the Tourist Board is subject to the provisions of the ADEA and Title VII and may be hailed into Court for alleged violations of these statutes. The Court rejects the argument by the Tourist Board that it cannot be sued by Hansen because she is not a United States citizen. It is well settled that permanent residents of the United States, such as Hansen, are accorded the protection of this country's laws and the benefit of access to its courts.

B. As to the Defendant's Claim that it is Immune from Suit Under the Foreign Sovereign Immunities Act

The Tourist Board claims that it is immune from suit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602, et. seq., and, therefore, the complaint must be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. In considering a motion to dismiss for lack of subject matter jurisdiction, a court must accept all material facts well-pleaded in the complaint as true and must draw all reasonable inferences in the light most favorable to the plaintiff. See Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). However, the Court's analysis is not confined to the complaint. "On a motion under [Rule] 12(b)(1) challenging the district court's subject matter jurisdiction the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). Thus, the Court may look to matters outside the pleadings, such as affidavits, documents, and deposition testimony. See Alonso v. Saudi Arabian Airlines Corp., 1999 WL 244102 *1 (S.D.N.Y. 1999).

Foreign states are immune from the jurisdiction of the courts of the United States and the individual states pursuant to the FSIA. See 28 U.S.C. § 1604; Argentine Republic v. Amerada Hess Shipping Corp. 488 U.S. 428, 434, 109 S.Ct. 683, 688, 102 L.Ed.2d 818 (1989); NYSA-ILA Pension Trust Fund v. Garuda Indonesia, 7 F.3d 35, 38 (2d Cir. 1993). The term, "foreign states" includes an agency or instrumentality of a foreign state. See 28 U.S.C. § 1603(a). Denmark is a foreign state, and the parties do not dispute that the Tourist Board is an "agency or instrumentality" of Denmark as defined in 28 U.S.C. § 1603(a) and (b).

Thus, the Tourist Board is immune from suit, and this Court lacks subject matter jurisdiction, unless one of several statutorily defined exceptions applies. See 28 U.S.C. § 1605 (providing seven general exceptions to the jurisdictional immunity of a foreign state); Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 610-11, 112 S.Ct. 2160, 2164, 119 L.Ed.2d 394 (1992). In particular, Hansen argues that subject matter jurisdiction is conferred by the FSIA's "commercial activity" exception to sovereign immunity. See 28 U.S.C. § 1605(a)(2).

"The first clause of § 1605(a)(2) of the Act provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case `in which the action is based upon a commercial activity carried on in the United States by the foreign state.'" Saudi Arabia v. Nelson, 507 U.S. 349, 365, 113 S.Ct. 1471, 1477, 123 L.Ed.2d 47 (1993) (quoting 28 U.S.C. § 1605(a)(2)). T he FSIA further states that commercial activity may be "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). Moreover, "[t]he commercial character of an ...


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