O'Loughlin v. The Pritchard Corp.
| Decision Date | 11 August 1997 |
| Docket Number | Civ. A. No. 95-2506-GLR. |
| Citation | 972 F.Supp. 1352 |
| Parties | Hugh E. O'LOUGHLIN, Sr., Plaintiff, v. THE PRITCHARD CORPORATION, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, Michael J. Joshi, Borel & Associates, Kansas City, MO, for Plaintiff.
Paul F. Pautler, Jr., Kimberly A. Jones, Blackwell, Sanders, Matheny, Weary & Lombardi L.L.P., Jay M. Dade, Husch & Eppenberger, Kansas City, MO, Gail M. Hudek & Associates, P.C., Kansas City, for Defendants.
Before the court is a Motion By Defendants For Summary Judgment (doc. 62). Pursuant to Fed.R.Civ.P.56(c), D.K. Rule 56.1, and ¶ h of the Revised Scheduling Order entered January 21, 1997; defendants seek an order granting them summary judgment on each claim of plaintiff. Plaintiff alleges age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621634 and Kansas Age Discrimination in Employment Act (KADEA), K.S.A. 44-1111 to -1121; retaliation under the ADEA, 29 U.S.C. § 623(d); breach of contract; and fraud. He opposes the motion.
Plaintiff also alleged a claim for retaliation under state law for possible filing of a workers' compensation action. In response to the motion of defendants, plaintiff voluntarily dismissed this claim. Defendants recognize the dismissal in their reply brief. The court considers the briefing of the parties to constitute a stipulation of voluntary dismissal. Accordingly, it will dismiss the claim in accordance with Fed. R.Civ.P. 41(a)(1).
The following facts are either uncontroverted or, if controverted, viewed in the light most favorable to the plaintiff. See Applied Genetics Int'l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Immaterial facts and facts not properly supported in the record are omitted.
Plaintiff, a resident of New Jersey and former employee of defendant The Pritchard Corporation (TPC), has never been a citizen of the United States. He is a citizen of Cuba and the British West Indies, St. Kitts & Nevis (St. Kitts & Nevis). In mid-1994 St. Kitts & Nevis issued him a passport. At all times material to this litigation plaintiff possessed no other passport.
TPC hired plaintiff when he was 60 years old. It employed him from December 1989 until his layoff effective September 23, 1994. In October 1993 it assigned him to the position of material manager on location at its ADNOC PROJECT-Habshan Site Project (ADNOC project) in the United Arab Emirates (UAE). He was 64 years old during this assignment. Before traveling to the UAE, he trained for several months in Kansas City. He also trained in Paris and London. His position in the UAE, nevertheless, required no specialized skill or particular educational or technical training critical to its performance. It simply required that he be familiar with the type of materials to be received.
Defendants TPC and Black & Veatch, Inc. (Black & Veatch) are related corporations. Black & Veatch employee Kerry Erington (Erington) was project manager on the ADNOC project. During plaintiff's assignment to the project Robert Luke (Luke) of Black & Veatch was manager of field personnel. Defendant Black & Veatch Construction, Inc. (Black & Veatch Construction) assigned its employee, Gary Ferguson (Ferguson), to TPC to ensure the completion of project construction efforts. TPC employee Bill Buffington (Buffington) was general manager of its UAE local office in Abu Dhabi, UAE. Aamir Saddiqi (Saddiqi) supervised plaintiff on the project.
EMASCO, a company located in the UAE, provided interface between TPC and governmental entities of the UAE. It facilitated immigration and obtainment of visas for TPC employees working in the UAE. Another UAE company, Continental Construction Company (CCC), later replaced EMASCO with regards to obtaining a work visa for plaintiff.
Luke initially anticipated that the assignment of plaintiff to the ADNOC project would last 15 months. He later re-estimated the duration to be 18 months. The starting and ending dates of the assignment, however, always remained subject to the requirements and workload of the project. TPC informed plaintiff that his assignment on the ADNOC project was temporary. He received no information to the contrary from TPC.
As a foreign corporation doing business in the UAE on the ADNOC project, TPC was subject to the laws of the UAE, including Federal Law No. 8 Year 1980 Re (Federal Law 8). Regarding the recruitment of foreign nationals to work within UAE territorial limits, Article 3 of Federal Law 8 requires:
Approval of application for recruitment of non national Labourers for employment in U.A.E. may not be granted unless the following requests are met:
a) Labour recruitment application shall be made by either by [sic] U.A.E. nationals ... or an organization licensed to operate in U.A.E. which is either sponsored or jointly owned by a national....
c) That the labour recruited shall not be less than 18 and not more than 60 years old. The maximum age limitation, however, may be waived if the employee to be recruited shall have an extensive and rare experience in the field of his specialization provided the job he has been recruited for employment in U.A.E. shall be of economic importance such waiver shall be sanctioned by the Minister.
Laws of the UAE do not permit individuals to work on a visit visa. Such a visa specifically states: "Employment prohibited." Foreigners working in Abu Dhabi are supposed to have a residency or work visa. Application of this law, however, varies. Erington understood that TPC employees could work on visit visas, according to the "rules" of the UAE. Employees of TPC in fact worked on such visas. Such practice was acceptable to TPC, if it believed work visas were ultimately obtainable. Employees staying for an "extended period," however, would need a work visa. TPC allowed employees to work on visit visas for short durations. It otherwise required work visas. In some instances an individual could work 12 to 18 months on a visit visa, renewed every three months. Plaintiff perhaps could have worked the duration of the ADNOC project by renewing his visit visa. Working on a visit visa presented a risk, however, that it would be revoked without any prior notice.
TPC had great difficulty obtaining a visit visa for plaintiff. Failure to renew the visa at the appropriate time would result in daily fines. TPC had concerns about its ability to renew the visit visa of plaintiff.
The authority to grant a work visa in the UAE lies within the discretion of its Immigration Department. The Minister of Labour and Social Affairs, however, may waive the maximum age limitation for employees with extensive and rare experience in a particular specialization, if the job is of economic importance. It may also waive the maximum age limitation, if the position of the prospective recruit was of significant importance or a specialty or if he or she were critical to national security or to the performance of a particular function. Lack of a United States or European passport makes it more difficult to obtain a work visa for an individual older than 60.
In the fall of 1993, Erington became aware that UAE law placed an upper age limit on foreign national workers allowed to work in UAE. He had believed the upper limit to be 65.
By November 19, 1993 TPC began processing plaintiff's UAE visit visa application. This was the first step in applying for an UAE-issued work visa. In December 1993 Buffington became concerned about obtaining the necessary work visa because of plaintiff's age and lack of a United States passport. By December 17, 1993 Erington became aware of the potential problem with the age of plaintiff. At the insistence of Erington, Buffington continued to process the application through contacts of TPC at EMASCO. By early January 1994 TPC took the application to immigration in UAE.
Representatives of EMASCO informed Buffington that plaintiff's age and lack of a passport issued by the United States presented difficult obstacles against obtaining a work visa for plaintiff. EMASCO further informed Buffington that UAE officials would not grant a waiver for plaintiff under Federal Law No. 8. Buffington reported these difficulties to Erington. Erington directed him to the necessary steps to ensure that plaintiff received the proper documentation to obtain the required work visa. Erington subsequently informed Ferguson of the difficulties. Ferguson instructed Erington to see what TPC could do with the UAE government to get the application processed.
By early January 1994, Buffington informed Nabeel Al Khamairy (Al Khamairy), general manager of EMASCO, that TPC considered obtainment of a work visa for plaintiff essential to the ADNOC project. Al Khamairy stated that it would be very difficult to get the visa, because plaintiff was older than 60 and had very non-traditional travel documentation. Al Khamairy said, nevertheless, that EMASCO would continue its best efforts to obtain the proper work visa.
Throughout the spring of 1994 TPC, through EMASCO, unsuccessfully attempted to obtain a work visa for plaintiff. At some point TPC referred the matter to Saddiqi to be handled by CCC. In the summer of 1994 Ghassan Uwaydan, manager of administration for CCC, informed Buffington that it would be impossible for TPC to obtain a work visa for plaintiff. In 1994 TPC also began to experience great difficulty in continuing to obtain visit visas for plaintiff to remain in UAE.
Buffington eventually sought assistance to obtain a work visa for plaintiff directly from the ruling families of UAE. He was informed that plaintiff would not receive a work visa, because the position of material manager on the ADNOC...
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