Opinion · Court of Appeals for the Fifth Circuit

S.F. DeYOREO, Plaintiff-Appellant, v. BELL HELICOPTER TEXTRON, INC., Defendant-Appellee

S.F. DeYOREO, Plaintiff-Appellant, v. BELL HELICOPTER TEXTRON, INC., Defendant-Appellee, 785 F.2d 1282 (5th Cir. 1986)

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1986-03-31
Topic: employee-benefits-and-executive-compensation

per curiam, on petition for rehearing and suggestion for rehearing en banc

Citator

UpLaw has not yet analyzed S.F. DeYOREO, Plaintiff-Appellant, v. BELL HELICOPTER TEXTRON, INC., Defendant-Appellee. The absence of a flag is not a finding that it is good law.

Cited by: 16 opinions

DeYOREO v. BELL HELICOPTER TEXTRON, INC.,785 F.2d 1282(5th Cir. 1986)

S.F. DeYOREO, PLAINTIFF-APPELLANT, v. BELL HELICOPTER TEXTRON, INC.,

DEFENDANT-APPELLEE.

No. 85-1415.

United States Court of Appeals, Fifth Circuit.

March 31, 1986.

Rehearing Denied April 25, 1986.

Allen L. Prince, Dallas, Tex., for plaintiff-appellant.

Beale Dean, Brown, Herman, Scott, Dean Miles, John W. Proctor, Fort worth, Tex., for defendant-appellee.Page 1283

Appeal from the United States District Court for the Northern District of Texas.

Before WILLIAMS, GARWOOD and JONES, Circuit Judges.

PER CURIAM:

[1] Plaintiff S.F. DeYoreo was 65 years old when, following long employment with the defendant which culminated in six years at its Canadian office in Ottawa, he was fired in 1983. Rather than eliminate DeYoreo's position, defendant filled it with a younger employee. Plaintiff brought suit against Bell Helicopter Textron, pursuant to the Age Discrimination in Employment Act (ADEA),29 U.S.C. §§ 621-64. DeYoreo appeals from a Fed.R.Civ.P.12(b)(6) dismissal of his action,608 F. Supp. 377(N.D.Tex. 1985), which we are compelled to AFFIRM.

[2] Five of our federal courts of appeals have interpreted the ADEA, prior to the 1984 amendment addressed below, to exclude from its benefits Americans working in foreign countries.Ralisv. RFE/RL, Inc.,770 F.2d 1121(D.C. Cir. 1985);Pfeiffer v. Wm.Wrigley Jr. Co.,755 F.2d 554(7th Cir. 1985);Zahourek v.Arthur Young and Company,750 F.2d 827(10th Cir. 1984);Thomasv. Brown and Root, Inc.,745 F.2d 279(4th Cir. 1984);Cleary v.United States Lines, Inc.,728 F.2d 607(3rd Cir. 1984). The essential basis for these decisions is that29 U.S.C. § 626(b) of the ADEA literally incorporates29 U.S.C. § 213(f) of the Fair Labor Standards Act, which in turn excludes "any employee whose services during the workweek are performed in a workplace within a foreign country"29 U.S.C. § 213(f). TheClearycourt performed the seminal analysis which has been adopted by the other cited courts of appeals. AlthoughCleary'sstatutory construction is not entirely free from doubt,see Pfeiffer,755 F.2d at 555-56, thePfeiffercourt nevertheless accepted its result because of the general presumption against extraterritorial application of federal laws.

[3] Our conclusion, based upon deference to the growing weight of circuit court authority and upon our own independent consideration of the issue DeYoreo raises, is buttressed by a 1984 amendment to the ADEA. Effective October 9, 1984, the "term `employee'includesany individual who is a citizen of the United States employed by an employer in a workplace in a foreign country"29 U.S.C. § 630(f) (emphasis added). By necessary implication, this portion of the statute added something that was not already there. If Congress found it necessary to extend the coverage of the ADEA to foreign-employed United States citizens, the statute's reach must not originally have gone that far. As his dismissal occurred prior to the effective date of the curative amendment, DeYoreo failed to state a claim upon which relief can be granted in the federal courts.

[4] For the foregoing reasons, the judgment of the district court is AFFIRMED.