Johnson v. Aramco Services Co.

United States Court of Appeals Fifth Circuit F I L E D In the January 31, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 04-20557 Summary Calendar _______________ PETER BERNARD JOHNSON, ON BEHALF OF HIMSELF AND ALL PERSONS SIMILARLY SITUATED, Plaintiff-Appellant, VERSUS ARAMCO SERVICES COMPANY; SAUDI ARABIAN OIL COMPANY, Defendants-Appellees. _________________________ Appeal from the United States District Court for the Southern District of Texas m 4:04-CV-642 _________________________ Before DAVIS, SMITH, and Peter Johnson appeals the dismissal, for DENNIS, Circuit Judges. want of subject matter jurisdiction, of his age discrimination suit. Because Johnson alleges JERRY E. SMITH, Circuit Judge:* sufficient facts, uncontroverted in the record, to sustain jurisdiction, we reverse and remand. * Pursuant to 5TH CIR. R. 47.5, the court has de- termined that this opinion should not be published and is not precedent except under the limited cir- cumstances set forth in 5TH CIR. R. 47.5.4. I. that “the court cannot apply extra-territorially On August 23, 2001, Johnson, who was the ADEA . . . to a foreign corporation who then fifty-seven years old, attended a job fair in employs U.S. citizens to work abroad.”2 Houston hosted by Aramco Services Company Without hearing, the district court summarily (“ASC”). While there he applied through ASC granted the motion to dismiss “with prejudice, for a job as a Seismic Field Crew Supervisor for lack of jurisdiction.”3 working in Saudi Arabia with Saudi Arabian Oil Company (“SAO”). II. Because it is a pure question of law, we re- SAO is a Saudi Arabian entity with its view de novo a dismissal for want of subject principal office in Dhahran, Saudi Arabia, and matter jurisdiction. See Ramming v. United ASC, SAO’s wholly-owned subsidiary, is in- States, 281 F.3d 158, 161 (5th Cir. 2001). corporated in Delaware. ASC states that it provides SAO with a range of services, includ- Lack of subject matter jurisdiction may be ing assistance with recruiting. found [on] any one of [the following bas- es]: (1) the complaint alone; (2) the com- Importantly, ASC apparently re- plaint supplemented by undisputed facts cruitsSSalbeit infrequentlySSfor entities other evidenced in the record; or (3) the com- than SAO. Support for this is found in the plaint supplemented by undisputed facts record in the form of ASC’s letter to the Equal plus the court’s resolution of disputed Employment Opportunity Commission facts. . . . In examining a Rule 12(b)(1) (“EEOC”) in which it states, “ASC, among motion, the district court is empowered to others, recruits employees for positions with consider matters of fact which may be in the Saudi Arabian Oil Company (‘Saudi dispute. Ultimately, a motion to dismiss for Aramco’) and infrequently recruits for other lack of subject matter jurisdiction should be entities.” Johnson’s unrefuted affidavit asserts granted only if it appears certain that the that an ASC employee, Charles Ellmaker, plaintiff cannot pro ve any set of facts in informed him that ASC acts as a recruiter for support of his claim that would entitle additional entities including its own subsidiar- plaintiff to relief. ies. Id. According to Johnson, he was later in- formed by Ellmaker that he would not be se- lected for the job, allegedly because of his ad- 2 vanced age. He filed a complaint with the That this logic indisputably applies with re- EEOC, was granted a right to sue letter, and spect to SAO, Johnson does not disagree, and he sued ASC and SAO alleging, inter alia, vio- consented to the dismissal of his claims against SAO. lations of the Age Discrimination in Employ- ment Act (“ADEA”), 29 U.S.C. § 621 et seq. 3 In addition to attacking the jurisdictional rul- ASC moved for dismissal based on a lack of ing, Johnson avers that the dismissal with prejudice subject matter jurisdiction, pursuant to FED. R. was inappropriate because a court without jurisdic- CIV. P. 12(b)(1), or alternatively for summary tion cannot make a ruling on the merits. Because judgment. The gravamen of its argument was the district court erred in its jurisdictional analysis, we do not reach this contention. 2 III. age, violated the ADEASSindependently of The ADEA provides, in part, that “[i]t shall SAO’s discriminatory practices. be unlawful for an employment agency to fail or refuse to refer for employment, or other- ASC correctly notes, however, that SAO is wise to discriminate against, any individual not a covered employer under the ADEA. because of such individual’s age, or to classify Consequently, goes the argument, recruiting or refer for employment any individual on the organizations such as ASC cannot be consid- basis of such individual’s age.” 29 U.S.C. ered an employment agency for purposes of § 623(b). Bridling this proposition is the no- the act if the foreign corporation for whom the tion that no federal statute applies extra-terri- recruiter works is not a covered employer un- torially unless Congress has expressly indi- der the ADEA.5 cated its intent for such an application. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. Johnson responds with a twist that signifi- 244, 248 (1991). This canon of statutory con- cantly distinguishes the cases on which ASC struction “serves to protect against unintended relies. Under 29 C.F.R. § 1625.3, an employ- clashes between our laws and those of other ment agency that “regularly procures employ- nations which could result in international ees for at least one covered employer [] quali- discord.” Id. Because the ADEA does not fies under section 11(c) of the [ADEA] as an evince any such intent, age discrimination employment agency with respect to all of its claims are not cognizable with respect to for- activities whether or not such activities are for eign corporations who employ American citi- employers co vered by the act.” (Emphasis zens to work aborad.4 added.) Consequently, if ASC “regularly” re- cruits for any covered employer or employers, Based on the presumption against extra-ter- the fact that SAO is not a covered employer ritorial application, even Johnson concedes will not immunize it from its conduct with that SAO is not a covered employer under the respect to Johnson. ADEA. Nevertheless, because ASC is a U.S. corporation, the same principle does not nec- The definition of “regularly procures” is not essarily immunize it from suit. necessarily self-evident, and although Johnson made this argument in the district court, that Johnson asserts that ASC, functioning as an court did not demonstrably consider it. ASC employment agency, may be liable for its own contends that any infrequent work it does for discriminatory practices under 29 U.S.C. other employers cannot reach the level of § 623(b). Johnson’s complaint avers that regularity. In contrast, Jo hnson in his brief ASC, through its screening and referral pro- posits that “[i]nfrequent recruitment may cess that classified Johnson according to his include regular recruitment, such as regularly 4 5 See Denty v. SmithKline Beecham Corp., 109 See Brownlee v. Lear Siegler Mgmt. Servs. F.3d 147, 150 (3d Cir. 1991) (The ADEA “does Corp., 15 F.3d 976, 978 n.3 (10th Cir. 1994); not apply to foreign nationals working for [U.S.] Shrock v. Altru Nurses Registry, 810 F.2d 658, corporations in a foreign workplace and it does not 660-61 (7th Cir. 1987); Goswami v. Aramco apply to foreign companies which are not con- Servs. Co., No. H-00-0929, slip op. at 12-14 (S.D. trolled by U.S. firms.”). Tex. Mar. 22, 2001). 3 meeting the needs of a seasonal industry, albeit once a year.” The record is notably underdeveloped on the question whether ASC “regularly pro- cures” employees for covered employers, thereby subjecting it to liability under the ADEA. The only relevant evidence in the record is ASC’s submission to the EEOC indicating that it “infrequently recruits for other entities,” and the hearsay assertion in Johnson’s affidavit that ASC recruits for com- panies in addition to SAO. It is uncertain whether any of these other entities is covered entities and whether ASC’s activities are performed with the requisite regularity. Nevertheless, in the absence of any evidence in the record to the contrary, it can- not be said that the district court correctly concluded to a certainty that Johnson cannot prove any set of facts in support of his claim that would entitle him to relief. See Ramming, 281 F.3d at 161. After further discovery, ASC may be able to show entitlement to summary judgment by conclusively refuting the notion that its recruit- ing activities for other entities cause it to be subject to suit under the ADEA. Given the current record, however, Johnson has ade- quately pleaded facts sufficient to maintain jurisdiction. The judgment of dismissal is therefore REVERSED, and this matter is RE- MANDED.6 6 ASC devotes considerable ink to the conten- tion that Johnson, proceeding pro se, has waived his arguments by failing to brief them adequately. 6 Specifically, ASC is apparently dismayed by John- (...continued) son’s alleged paucity of citations to the record in 28(a)(7), 28(a)(9)(A), and 5TH CIR. R. 28.2.3. To support of factual propositions per FED. R. APP. P. the contrary, we find Johnson’s submissions ade- (continued...) quate to raise his issues on appeal. 4