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Kim v. Korea Trade Promotion-Investment Agency

United States District Court, S.D. New York

September 11, 2014

RAYMOND T. KIM, Plaintiff,
v.
KOREA TRADE PROMOTION-INVESTMENT AGENCY (a/k/a " KOTRA" ), et al., Defendants

Page 280

For Plaintiff: Barry I Fredericks, Esq., Charles H. Lee, Esq., Fredericks & Lee, LLP, Fort Lee, New Jersey.

For Defendants: Jonathan Stoler, Esq., Kevin Ronald Puvalowski, Esq., Sean Joseph Kirby, Esq., Sheppard, Mullin, Richter & Hampton, LLP, New York, New York.

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OPINION and ORDER

RICHARD J. SULLIVAN, United States District Judge.

Plaintiff Raymond T. Kim (" Plaintiff" ) brings this action against Defendants Korea Trade Promotion-Investment Agency (" KOTRA" ), Sung Pil Um (" Um" ), and Sung Hun Lee (" Lee," and collectively with KOTRA and Um, " Defendants" ), asserting numerous claims of discrimination and retaliation pursuant to the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq.; the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law (" NYCHRL" ), N.Y. City Admin. Code § 8-101 et seq. Now before the Court is Defendants' motion to dismiss all claims for lack of subject matter jurisdiction based on sovereign immunity. For the reasons set forth below, the Court grants Defendants' motion.

I. Background

A. Facts

Plaintiff is a United States citizen who had worked for KOTRA for thirty-five years prior to his termination in April 2013.[1] (Am. Compl. ¶ ¶ 1, 8, 27.) KOTRA -- an unincorporated company registered under the Foreign Agent Registration Act of 1938, 22 U.S.C. § § 611-621 (Am. Compl. ¶ 2) -- is a non-profit agency of the Korean government, established under a Korean law, the Korea Trade-Investment Promotion Agency Act (Stip. ¶ 1). Defendants Um and Lee are Korean nationals currently serving as President and Deputy Director of KOTRA, respectively. (Am. Compl. ¶ ¶ 3-4, 10.) Um resides in New York, and Lee resides in New Jersey. ( Id. ¶ ¶ 3-4.)

The President of the Republic of Korea appoints the officers and directors of KOTRA, and the Korean Minister of Commerce, Industry, and Energy exercises supervisory authority over KOTRA. (Stip. ¶ ¶ 4-5). KOTRA was established " for the purpose of promoting development of the Korean national economy by providing services to Korean industries and enterprises" (Stip. ¶ 1), and its mission is to act as a local office for various Korean commercial entities by facilitating the sale of their goods and services in the United States (Am. Compl. ¶ 11). On behalf of " Korean corporations, commercial entities, and exporters in Korea," KOTRA offers a variety of services, such as conducting market research,

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preparing target client lists, maintaining contact with brokers, planning conferences and meetings, and conducting on-site inspections. ( Id.) The Korean government provides KOTRA's capital, but KOTRA is also authorized to charge fees to parties tat receive the benefit of KOTRA's services. (Stip. ¶ 2.) In fact, Korean entities substantially fund KOTRA's activities in the United States, with over 1,000 entities each paying in excess of $3,000 in annual fees for KOTRA's services. (Am. Compl. ¶ 12.)

Plaintiff began his employment with KOTRA in 1977 with the job title of Assistant Staff; his responsibilities included researching and identifying potential buyers for Korean exporters, as well as guiding exporters to buyers in New York and throughout the United States. (Stip. ¶ 8.) Plaintiff held the position of Assistant Marketing Manager beginning in June 1988 and was " assigned to work in a marketing program initiated by KOTRA whereby KOTRA would act as a branch office to Korean corporations and exporters seeking to sell goods and services in the United States." ( Id. ¶ 10.) Plaintiff's position changed again in August 1999, when he became a " Marketing Manager," and in August 2008, when he became a " Marketing Consultant" ( id. ¶ 11) -- changes that Plaintiff characterizes as promotions (Am. Compl. ¶ 16). On February 1, 2012, Plaintiff received an offer letter confirming his position as Marketing Consultant, the responsibilities of which included " Korea Trade and Marketing Function." (Stip. Ex. B (" 2012 Offer Letter" ).)

According to Plaintiff, in December 2012, Um called Plaintiff into his office and asked him to resign from his job " like most people in Korea do at age [sixty]" because " the workload seemed burdensome for [Plaintiff] given his age." (Am. Compl. ¶ 18.) Um then " offered Plaintiff a temporary position with a [thirty-five] percent reduction in annual pay," explaining that Plaintiff was " lucky to keep a simple entry level job as an old man in a bad economy." ( Id. ¶ 19.) In January 2013, Lee, acting at the direction of Um, prepared a resignation letter and required that Plaintiff sign it as a precondition to any continued employment with KOTRA, albeit in a temporary position with reduced salary. ( Id. ¶ ¶ 21-22.) Lee also offered Plaintiff $15,000 to give up his position as a permanent employee. ( Id. ¶ 22.) In January 2013, Plaintiff signed the resignation letter under emotional and financial duress. ( Id. ¶ 23.) Thereafter, on February 1, 2013, Plaintiff received an offer letter changing his position to " Specialist in Exhibitions" with responsibility for " marketing . . . exhibitions." (Stip. Ex. C (" 2013 Offer Letter" ).) Within days, KOTRA replaced Plaintiff with Eric J. Park, " an employee substantially younger than Plaintiff." (Am. Compl. ¶ 28.)

In February 2013, Plaintiff filed an age discrimination claim with the Equal Employment Opportunity Commission (" EEOC" ). ( Id. ¶ 24.) When Um discovered that Plaintiff had filed a complaint, he screamed at Plaintiff and ordered him to quit immediately. ( Id. ¶ 25.) According to Plaintiff, after that encounter with Um, his working conditions became intolerable. ( Id.) Thereafter, Plaintiff advised the EEOC of the incident with Um ( id. ¶ 26), and, on April 30, 2013, Plaintiff " accepted his firing by the Defendants and left" KOTRA ( id. ¶ 27). On or about July 31, 2013, Plaintiff received a right-to-sue notice from the EEOC. ( Id. ¶ 29.)

B. Procedural History

On October 25, 2013, Plaintiff initiated the instant suit by filing a Complaint against Defendants. (Doc. No. 1.) On December 20, 2013, Plaintiff filed an Amended Complaint. (Doc. No. 10.) Thereafter,

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on February 28, 2014, Defendants filed the instant motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity. (Doc. No. 21.) The motion was fully ...


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