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HANSEN v. DANISH TOURIST BD.
May 19, 2001
LIS HANSEN, PLAINTIFF,
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.
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
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.
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,
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).
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 ...