On Appeal from the United States District Court for the District of New Jersey
Before: SEITZ, Chief Judge, GARTH and BECKER, Circuit Judges
This appeal concerns the extraterritorial effect of the Age Discrimination in Employment Act, 29 U.S.C. § 621-34 ("ADEA"). Appellant Francis Cleary, an American citizen employed for many years in England by United States Lines Operations, Inc. ("Opereations") brought suit against Operations and its parent corporation, United States Lines, Inc. ("USL"), alleging that they discharged him because of his age, sixty-four, in violation of the ADEA. The district court granted the defendants' motions for summary judgment, concluding that the geographic scope of the ADEA was limited to the United States, that appellant's place of employment was outside of the United States, and that therefore the ADEA did not apply to him. We affirm.
Appellant was first employed by USL in 1946 and worked for either USL or Operations for the next thirty-three years.*fn1 Beginning in 1956, appellant was employed full time in Europe*fn2 by either USL or Operations, and from 1967 until his termination he was employed by Operations in London, England. On June 18, 1979, appellant was informed that his employment was being terminated, effective June 22, 1979. After his termination, appellant was first told that his job was being eliminated in a structural reorganization. Later he was told that his job performance was not up to company standards. In appellant's submission, both of these justifications were pretextual.*fn3
Appellant filed an age discrimination claim with the EEOC on November 29, 1979. On May 14, 1980, the EEOC informed him that it had been unable to obtain a satisfactory conciliation agreement with USL and issued a letter authorizing appellant to pursue his other legal remedies.*fn4 Appellant brought a timely suit in the District Court for the District of New Jersey. Operations and USL moved for summary judgment on the grounds that the ADEA did not apply to persons employed outside the United States. Rejecting appellant's arguments in favor of extra-territorial application, the district court in a careful and comprehensive opinion granted summary judgment for Operations and USL. The court held that, because the ADEA incorporates the enforcement provisions of the Fair Labor Standards Act ("FLSA"), and because the relevant provisions of the FLSA provide that the act shall not apply to any person who is employed in a workplace outside the United States, Congress did not intend the ADEA to apply overseas. This appeal followed.
Section 626 of the ADEA, 29 U.S.C. § 626, provides that "[t]he provisions of this chapter [the ADEA] shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subdivision (a) thereof) and 217 of this title. . . ." The provisions referenced are part of the FLSA. Section 216(d), 29 U.S.C. § 216(d), provides that "no employer shall be subject to any liability or punishment . . . on account of his failure to comply with any provision of such Acts (1) with respect to work . . . performed in a workplace to which the exception in section 213(f) of this title is applicable." Section 213(f), 29 U.S.C. § 213(f), in turn provides that the acts covered by it shall not apply "to any employee whose services during the workweek are performed in a workplace within a foreign country. . . ."
In Lorillard v. Pons, 434 U.S. 575, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978), the Supreme Court addressed the question of how to interpret the ADEA's provision incorporating the FLSA. The Court stated:
Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. . . . So too, where, as here, Congress adopts new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.
That presumption is particularly appropriate here since, in enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation . . .
This selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices strongly suggests that but for those changes Congress expressly made, it intended to ...