Robinson v. Overseas Military Sales Corp.

Decision Date06 April 1994
Docket NumberNo. 796,D,796
Citation21 F.3d 502
Parties64 Fair Empl.Prac.Cas. (BNA) 638, 64 Empl. Prac. Dec. P 42,973 Howard E. ROBINSON, Plaintiff-Appellant, v. OVERSEAS MILITARY SALES CORPORATION, Army & Air Force Exchange Service, George W. Deering, Bradley J. Potter, and Randall L. Mullins, Defendants-Appellees. ocket 93-6211.
CourtU.S. Court of Appeals — Second Circuit

Howard E. Robinson, plaintiff-appellant, pro se.

John E. Page, New York City (Vincent Alfieri, Robinson, Silverman, Pearce, Aronsohn & Berman, of counsel), for defendant-appellee Overseas Military Sales Corp.

Elliot M. Schachner, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Robert L. Begleiter and Deborah B. Zwany, Asst. U.S. Attys., of counsel), for the Federal defendants-appellees.

Before: FEINBERG, OAKES and KEARSE, Circuit Judges.

OAKES: Senior Circuit Judge:

Howard E. Robinson appeals from the judgment of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, 827 F.Supp. 915, granting summary judgment in favor of the Overseas Military Sales Corporation ("OMSC") and dismissing Robinson's complaint in its entirety against the Army and Air Force Exchange Service ("AAFES") and three United States Army officers ("individual federal defendants") in their official and individual capacities. We now affirm.

I. Background
A. Facts

AAFES is a federal agency commanded jointly by the Air Force and the Army that operates exchanges at which military personnel can purchase goods. AAFES entered into an agreement with the Chrysler Corporation under which Chrysler sold new cars through AAFES-operated exchanges. Chrysler, in turn, entered into an agreement with OMSC under which OMSC provided independent sales agents to sell the cars at AAFES exchanges. Robinson, a 60-year-old resident of Massachusetts, was retained by OMSC as one such sales agent. Robinson worked for OMSC and its affiliates from September 1979 through August 1990, selling Chrysler automobiles at Camp Walker and Camp Humphries, United States military installations in Taegu, Korea.

In November 1989, United States military police began an investigation into allegations that Robinson and his wife, Soon Seon Robinson, illegally sold duty-free goods to Korean nationals and improperly purchased rations at a military installation after their ration privileges were revoked. As part of the investigation, individual federal defendant Gregory W. Deering, a sergeant in the United State Army military police, attempted to interview Robinson. Robinson refused to answer Deering's questions. Deering prepared a Military Police Report of his investigation dated November 3, 1989. Individual federal defendant Bradley J. Potter, a Special Agent in the Criminal Investigations Division of the United States Army ("CID"), prepared a second report, dated May 16, 1990, finding that there was sufficient evidence to commence administrative proceedings against Robinson for the unlawful sale of duty-free goods.

A second investigation began in September 1990. Individual federal defendant Randall L. Mullins, also a Special Agent of CID, prepared a report of this investigation, dated November 7, 1990, concluding that Robinson illegally obtained a temporary ration control card and purchased rations at AAFES facilities without authorization. Based on this report, on December 10, 1990, the Army barred Robinson from entering all Area IV military installations in Korea.

During these investigations, OMSC repeatedly discharged and rehired Robinson. OMSC first discharged Robinson in August 1990. On December 7, 1990, OMSC rehired Robinson. OMSC discharged Robinson again on February 13, 1991. OMSC reinstated Robinson in August 1991, but again discharged him in October 1991, when the Army denied him permission to enter military installations. 1

B. Proceedings Below

On December 21, 1992, Robinson commenced this action. In his complaint, Robinson alleged that OMSC fired him in October 1991 at the request of the AAFES commander in Korea, Colonel Ford; that Colonel Ford based his action upon reports of investigations into Robinson's alleged black market activities; and that these reports were intentionally false. The complaint also alleged that all of the defendants violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1988 & Supp. IV 1992). Further, the complaint alleged that the federal defendants violated the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 1402(b), 2401(b), 2671-2680 (1988 & Supp. IV 1992), and 42 U.S.C. Sec. 1983 (1988). In a memorandum in opposition to a motion to dismiss, Robinson alleged additional claims including that the federal defendants violated 18 U.S.C. Secs. 242 and 1385 (1988); 2 that the federal defendants violated his Fourth Amendment rights by searching his home; and that defendant Mullins arrested him without probable cause. Robinson also alleged that the federal defendants violated the Privacy Act, 5 U.S.C. Sec. 552a (1988 & Supp. IV 1992), and the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1988).

In a Memorandum and Order dated July 15, 1993, the district court granted OMSC's motion for summary judgment and the federal defendants' motion to dismiss. With respect to OMSC, the district court found that (1) the ADEA did not apply to foreign employers and (2) regardless of whether the ADEA applied to OMSC, OMSC had a legitimate reason for firing Robinson. With respect to Robinson's ADEA claims against the federal defendants, the district court found that (1) AAFES did not have an employer-employee relationship with Robinson; (2) regardless of Robinson's relationship with AAFES, the ADEA did not apply to AAFES under the doctrine of sovereign immunity. With respect to Robinson's claims under the FTCA, the district court substituted the United States as the sole defendant but dismissed the claims (1) on the ground that Robinson failed to exhaust his administrative remedies and (2) on the merits under 28 U.S.C. Sec. 2680(k) (FTCA does not apply to claims arising in a foreign country). The district court construed Robinson's claims under 42 U.S.C. Sec. 1983 as Bivens claims but dismissed the claims against the individual federal defendants in their official capacities for want of subject matter jurisdiction and in their individual capacities for lack of personal jurisdiction and insufficiency of service of process. The district court dismissed Robinson's claims under 18 U.S.C. Secs. 242 and 1385 on the ground that these statutes do not create a private cause of action. Finally, the district court found that Robinson had withdrawn his privacy act and FOIA claims.

Judgment was entered on July 19, 1993. Robinson filed a timely notice of appeal on August 9, 1993.

II. Discussion

We will affirm a grant of summary judgment only when de novo review of the record in a light most favorable to the non-moving party reveals no genuine issue of material fact. Viacom Int'l, Inc. v. Icahn, 946 F.2d 998, 1000 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1244, 117 L.Ed.2d 477 (1992). In so doing, we will resolve all ambiguities and draw all inferences in favor of the non-moving party. Levin v. Analysis & Technology, Inc., 960 F.2d 314, 316 (2d Cir.1992).

As in the case of review of a grant of summary judgment, we will review de novo the grant of a motion to dismiss for want of subject matter or personal jurisdiction. Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 580 (2d Cir.1993). The burden of proving jurisdiction is on the party asserting it. Id.; Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir.1986). Where, however, the district court relies solely on the pleadings and supporting affidavits, the plaintiff need only make a prima facie showing of jurisdiction. CutCo, 806 F.2d at 364. 3 In determining whether a plaintiff has met this burden, we will not draw "argumentative inferences" in the plaintiff's favor. Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992). We will, however, construe jurisdictional allegations liberally and take as true uncontroverted factual allegations. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 411, 106 S.Ct. 1922, 1923-24, 90 L.Ed.2d 413 (1986); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993). 4

A. Robinson's Age Discrimination Claims against OMSC

The district court dismissed Robinson's age discrimination claims against OMSC on the ground that the ADEA did not apply to OMSC, a Swiss corporation. The district court also based its decision on the alternative ground that Robinson failed to raise a genuine issue of material fact as to whether OMSC's asserted basis for discharging Robinson was pretextual. We find that Robinson did not raise a genuine issue of material fact as to whether OMSC's asserted basis for discharging Robinson was pretextual. We therefore affirm this aspect of the district court's decision. 5

The ADEA prohibits employers from discriminating against workers aged 40 or older on the basis of their age. 29 U.S.C. Secs. 621, 623, 631. It is well-established that ADEA claims are analyzed in the same manner as are claims under Title VII. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985). This is so whether the plaintiff asserts that the defendant's purported justification for an adverse employment action is pretextual, see Montana v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.1989), or a dual motive accompanying impermissible age...

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