Wolf v. JI Case Co.

• Decision Date: 17 September 1985
• Docket Number: No. 84-C-1600.,84-C-1600.
• Citation: 617 F. Supp. 858
• Parties: Phillip J. WOLF, Plaintiff, v. J.I. CASE COMPANY and Tenneco, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

617 F. Supp. 858

Phillip J. WOLF, Plaintiff, v. J.I. CASE COMPANY and Tenneco, Inc., Defendants.

No. 84-C-1600.

United States District Court, E.D. Wisconsin.

September 17, 1985.

COPYRIGHT MATERIAL OMITTED

Sutton & Kelly by Walter F. Kelly, Milwaukee, Wis., for plaintiff.

Frisch, Dudek & Slattery, Ltd. by Dennis M. Grzezinski and D. Sean O'Lochlayne, Milwaukee, Wis., for defendants.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The plaintiff, Philip Wolf, brings this action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and the statutory and common law of Wisconsin alleging that he was terminated from his employment with the defendants, J.I. Case Company (Case) and its parent corporation Tenneco, Inc., because of his age. The defendants have filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(1) and (6), Federal Rules of Civil Procedure. In response to the defendants' motion, the plaintiff has moved to amend his complaint, pursuant to Rule 15, Federal Rules of Civil Procedure.

Rule 12(b) provides that a Rule 12(b)(6) motion to dismiss for failure to state a claim will be converted automatically into a motion for summary judgment if the court considers matters outside the pleadings. Both sides in the present action have submitted affidavits regarding the plaintiff's ADEA termination claim. The plaintiff, in fact, specifically requests that the court treat the motion to dismiss as a motion for summary judgment. The court will consider the affidavits submitted by the parties and, accordingly, will treat the motion to dismiss the ADEA termination claim as a motion for summary judgment on this claim. So denominated, the motion will be granted.

Insofar as the defendants seek dismissal of the plaintiff's ADEA retaliation claim, the defendants' motion will be treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim; it will be denied.

The defendants' challenge to the plaintiff's state law claims would appear more properly to be characterized as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1); such motion will be denied. Finally, the plaintiff's motion to amend his complaint will be granted.

I. BACKGROUND

The plaintiff, a United States citizen residing in Paris, France, initially was hired by Case in 1962 to manage its French operation, Case France, and to oversee its European operations. In 1965, the plaintiff was elected vice-president of defendant Case charged with full responsibility for supervising all of its European operations. In 1974, the executive and operating responsibilities for Case France, previously assigned to the plaintiff, were transferred to another employee. The plaintiff retained the title of president of Case France and performed public relations duties and served as an organizational liaison from April 1974 until the date of his alleged termination, January 31, 1983. At the time of his termination, the plaintiff was 65 years of age.

The plaintiff contends that throughout 1982, officers of the defendants attempted to persuade the plaintiff to retire upon reaching the age of 65, December 20, 1982. He further asserts that the defendants terminated the plaintiff's employment, effective January 31, 1983, because he had reached the age of 65. Such action, the plaintiff claims, constitutes willful and intentional age discrimination in violation of the ADEA and the Wisconsin Fair Employment Act (FEA), Wis.Stat. § 111.32 et seq.

The plaintiff also alleges that in response to his resistance to the defendants' attempts to force him to retire and because he filed charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC) and the Wisconsin Equal Rights division, the defendants took retaliatory action against him beginning in January 1983. The plaintiff charges that the alleged retaliatory action violates the ADEA and the FEA.

In addition, the plaintiff asserts that the defendants violated their contractual obligation to provide the plaintiff with severance pay of $91,000.00 upon his termination. Such action, according to the plaintiff, constituted a bad faith breach of contract and a deprivation of reasonable promissory reliance rights.

The plaintiff seeks compensatory, liquidated, and punitive damages, as well as his costs and attorney fees.

II. ADEA TERMINATION CLAIM

The defendants assert that the ADEA is not applicable to this case because the plaintiff was employed abroad at the time he was allegedly terminated because of his age. As previously noted, the court will treat the defendants' motion to dismiss the ADEA termination claim as a summary judgment motion.

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment is appropriate if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden rests with the moving party to establish that no genuine issues of material fact exist. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983). A fact is material if it affects the outcome of the litigation and necessitates a trial to resolve the parties' conflicting versions of the truth. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984).

Any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). A court will accept as true, however, those facts in the movant's affidavits which are uncontroverted. Wang v. Lake Maxinhall Estates, Inc., 531 F.2d 832 (7th Cir.1976).

A. Applicability of Unamended ADEA

The Court of Appeals for the Seventh Circuit recently held that the ADEA, in its pre-1984 amendment form, does not apply to Americans employed abroad by American companies or their subsidiaries. An exception is made when it is necessary to prevent a transparent evasion of the Act, as where an employer transfers an employee abroad for a short period of time for the purpose of avoiding the Act's coverage. Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d 554 (7th Cir.1985). No transparent evasion of the ADEA is suggested in the present case. The holding in Pfeiffer is consistent with the decisions of other federal appellate courts that have considered the issue. Zahourek v. Arthur Young and Co., 750 F.2d 827 (10th Cir.1984); Thomas v. Brown & Root, Inc., 745 F.2d 279 (4th Cir.1984); Cleary v. United States Lines, Inc., 728 F.2d 607 (3d Cir.1984).

The court in Pfeiffer recognized that the key factor in determining the applicability of the ADEA to an American citizen employed by a United States company or its subsidiary is the employee's "relevant work station." Pfeiffer, supra, 755 F.2d at 559. In that case, the plaintiff lived and worked overseas continuously throughout his entire period of employment with the defendant. Id. Thus, his work station was foreign, and he was not protected by the ADEA. Id.

It is uncontested in the present case that the plaintiff resided in Paris, France, continuously throughout his employment with the defendants and that his "employment base" was in Paris during this period. The plaintiff, however, attempts to place his claim outside the reach of Pfeiffer by characterizing his place of employment as both France and the United States, and, hence, within the ambit of the ADEA.

To support his claim of dual French and American employment, the plaintiff relies primarily on the fact that he travelled to the United States on business numerous times while he was employed by the defendants. The plaintiff states by way of affidavit that he spent 30 to 34 days in the United States in 1966. Unfortunately, the plaintiff does not indicate what portion of this time was spent on business-related activities. Although the plaintiff has not specified the amount of time he spent in the United States for any other year during his employment with the defendants, he indicates in his affidavit that the figures for 1966 are representative of the time he spent in this country in other years. At the same time, the plaintiff acknowledges that his business trips to the United States diminished later during his tenure with the defendants as officers of the defendants began to travel more frequently to Europe. The plaintiff also avers that his annual home leave visits, taken in the United States in nearly every year, were in part business-related. He does not state, however, what portion of these visits was business-related.

The defendants have submitted the affidavit of Laurence Schwartz, senior attorney for Case, stating that a review of the plaintiff's weekly expense reports shows that he made six trips to the United States between December 1974 and the date of his termination for which he submitted expense reports. The last of these trips was in July 1980. The plaintiff does not contest these statements. Even assuming that all these trips were business-related, a matter disputed by the parties, the total time spent in the United States for these trips amounts to only 17 days over a period of six years.

Viewing the evidence in the light most favorable to the plaintiff, as the court must, I cannot conclude that the plaintiff's place of employment was both France and the United States. Even if I assume that the plaintiff spent an average of approximately 30 days in the United States per year, all on business, the fact remains that over ninety percent of his time was spent abroad. Moreover, the plaintiff's business visits to the United States concerned his work for Case France and his supervisory responsibilities for Case's European operations. As a high-level executive of Case, one would expect the plaintiff to maintain extensive ties with the parent company, including...