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MAHONEY v. RFE/RL

October 24, 1992

WILLIAM G. MAHONEY, et al., Plaintiffs,
v.
RFE/RL, INC., Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 This matter is before the Court on the parties' cross-motions for summary judgment. Plaintiffs claim that defendant, which employed them at its workplace in Munich, Germany, terminated them on the basis of their age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. Defendant maintains that German law required it to engage in age-based discrimination and that the ADEA's "foreign laws" exception therefore applies. If defendant prevails on its motion for summary judgment, the action must be dismissed. If plaintiffs prevail on their motion, however, only defendant's liability will be established; plaintiffs will be entitled to proceed to trial and attempt to establish a willful violation of the ADEA, entitling them to double damages under 29 U.S.C. § 626(b). Thus, plaintiffs move for partial summary judgment. For the reasons that follow, defendant's motion for summary judgment will be denied and plaintiffs' motion for partial summary judgment will be granted.

 I.

 Defendant RFE/RL, Inc. is best known under the names of its broadcast services, Radio Free Europe and Radio Liberty. Defendant is a Delaware non-profit corporation with its principal place of business in Munich, Germany. It employs more than 300 United States citizens at its facility in Munich. Defendant's activities are supported almost exclusively by federal funds, and its funding is subject to action by four Congressional committees. Pursuant to statute, defendant's operation is overseen by a federal agency, the Board for International Broadcasting (BIB), the members of which are appointed by the President with the advice and consent of the Senate. 22 U.S.C. § 2872. The membership of the BIB and defendant's Board of Directors is the same.

 Plaintiffs brought this action under the ADEA on behalf of themselves and defendant's similarly situated U.S.-citizen employees filing consents pursuant to 29 U.S.C. §§ 216(b) & 626(b). *fn1"

 II.

 Summary judgment is appropriate only if the evidence reveals "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." Fed. R. Civ. P. 56(c). The parties do not materially dispute the facts of this case; their dispute is purely a legal one.

 Defendant concedes that it terminated plaintiffs because of their age. Moreover, defendant admits that its actions would have violated the ADEA were it not for a statutory exception found at 29 U.S.C. § 623(f):

 It shall not be unlawful for an employer, employment agency, or labor organization --

 (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section . . . where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer. . . to violate the laws of the country in which such workplace is located. . . . (emphasis added)

 Defendant contends -- as it must in order to qualify for the exception -- that compliance with the ADEA would cause it to violate the laws of Germany.

 Defendant's principal argument is that a mandatory retirement age is a deeply embedded concept in German labor practice. Defendant's expert, Professor Spiros Simitis, testified that it is the "general policy of the unions" to insist upon a mandatory retirement age, and that such provisions are contained in the vast majority of collective bargaining agreements in Germany. He also opined that such nearly ubiquitous union-contract terms were considered in Germany to have "legal" force.

 However, an expert witness (even one with Professor Simitis's impressive credentials) cannot tell a court how to interpret the word "law" as Congress used it in § 623(f)(1). That is a question of federal law that turns on Congressional intent. See, e.g., United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 826-28 (9th Cir. 1989). Professor Simitis testified that the mandatory retirement provision in the union contract had "legal" force in Germany in the sense that it was legally binding. That is precisely the sense in which such contracts in this country may be said to have "legal" force; yet they are not ordinarily thought of as "laws." Two crucial facts about the mandatory retirement provision at issue here remain undisputed by the defendant. First, the provision is part of a contract between an employer and unions -- ...


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