The opinion of the court was delivered by: Leighton, District Judge.
This cause is before the court on defendant's motion for
summary judgment. Plaintiff, John Pfeiffer, is a 65 year old
American citizen who was employed in West Germany by defendant,
Wm. Wrigley Jr. Company ("Wrigley"). In March 1983, his
employment was terminated; he alleges that this was unlawful and
in violation of his rights under the Age Discrimination in
Employment Act ("ADEA"). 29 U.S.C. § 621 et seq. The sole issue
presented in this motion is whether the ADEA applies
extraterritorially to American citizens working in foreign
countries. For the reasons stated below, this court holds that it
does not; therefore, defendant's motion is granted.
Plaintiff argues that he was, at all times during his
employment, an employee of U.S. Wrigley. He claims that the
decision to terminate his employment came from Wrigley's Chicago
headquarters and his termination was based on his age in
violation of Section 623 of the ADEA. 29 U.S.C. § 623. Defendant,
denying that plaintiff's termination was based on his age, moves
for summary judgment on the ground that ADEA does not apply to
American citizens who are employed in a foreign country by either
American or foreign corporations.
It is well established that in the absence of an express
provision to the contrary, Congressional legislation applies only
within the territorial jurisdiction of the United States.
Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 254,
76 L.Ed. 375 (1932). At issue here is the extraterritorial
application of the ADEA. Nowhere in the statute does it provide
that its terms apply outside the United States. Defendants argue
that not only did Congress not intend to have the ADEA apply
extraterritorially by not specifically providing for it in the
Act; but this intention is clearly shown by Congress'
incorporation of provisions of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201-19, into the ADEA. For example,
Section 626(b) of ADEA, which incorporates various provisions of
FLSA, states that:
The provision of this chapter shall be enforced in
accordance with the powers, remedies, and procedures
provided in sections 211(b), 216 (except for
subsection (a) thereof), and 217 of this title, and
subsection (c) of this section.
Section 216(d) of the FLSA, referred to above, provides:
In any action or proceeding . . . no employer shall
be subject to any liability or punishment under this
chapter . . . on account of his failure to
comply . . . with respect to work heretofore or
hereafter performed in a workplace to which the
exemption in section 213(f) of this title is
applicable. . . .
Section 213(f), referred to in section 216(d) above, prohibits
the extraterritorial application of the FLSA:
[T]his title shall not apply with respect to any
employee whose services during the work week are
performed in a workplace within a foreign country.
29 U.S.C. § 213(f). (emphasis added.)
It is clear to the court that when Congress incorporated
various provisions of FLSA into ADEA it intended to incorporate
the territorial restrictions of FLSA. If Congress wished ADEA to
apply extraterritorially, it could have explicitly eliminated
incorporation of section 213(f) of FLSA into ADEA. The Supreme
Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55
L.Ed.2d 40 (1978) held that jury trials are available to private
litigants under ADEA because ...