Boustany v. Xylem, Inc. et al

Filing 38

MEMORANDUM OPINION AND ORDER. The Court empathizes with Ms. Boustany's alleged sufferings, however the protections of Title VII do not apply to non-U.S. citizens employed outside of the United States. Ms. Boustany does not plausibly allege that she was employed in the United States. Consequently, Ms. Boustany's claims against Xylem under Title VII are dismissed with prejudice. The Court declines supplemental jurisdiction over her state law claims. The Clerk of Court is directed to term inate all pending motions and to close this case. SO ORDERED. re: 25 FIRST MOTION to Dismiss Pursuant to Fed. R. Civ. P. Rule 12(b)(6) filed by Xylem, Inc., 28 MOTION to Dismiss Complaint and Stay Action filed by George El Hani. (Signed by Judge Gregory H. Woods on 1/25/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JESSY BOUSTANY,
:
:
Plaintiff,
:
:
-v:
:
XYLEM INC. and GEORGE EL HANI,
:
Individually,
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Defendants. :
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X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 1/25/2017

1:15-cv-10023-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
I.

INTRODUCTION
The plaintiff, Ms. Jessy Boustany, alleges that she was sexually harassed by her supervisor,

Mr. George El Hani, over the course of her twenty-six months working for Xylem, Inc. (“Xylem”).
Mr. El Hani callously abused his authority, threatening Ms. Boustany’s job if she did not succumb to
his sexual advances. Nearly all of the acts that Ms. Boustany complains of took place outside of the
United States—in her, and Mr. El Hani’s home country, Lebanon, or on business trips to Europe.
Ms. Boustany travelled twice on business trips to the United States with Mr. El Hani, during each of
which he made unwanted sexual advances. Ms. Boustany complained about Mr. El Hani’s behavior
to Xylem’s New York headquarters, which ultimately launched an investigation, and terminated Mr.
El Hani. Xylem also, however, later terminated Ms. Boustany. While the conduct that Ms.
Boustany alleges is egregious, because Ms. Boustany is not a U.S. citizen, and was not employed in
the United States, she cannot maintain an action under Title VII, which has limited extraterritorial
application. As a result, Ms. Boustany’s claims against Xylem under Title VII are dismissed. The
Court declines to retain supplemental jurisdiction over her remaining state law claims.

II.

BACKGROUND1
A. Factual Background
Ms. Boustany is a Middle-Eastern woman, who resided in Beirut, Lebanon. Compl. ¶¶ 6, 11.

In July 2012, she began to work for Xylem, Inc. (“Xylem”), as an application engineer.2 Id. ¶ 15.
Ms. Boustany worked in the company’s Lebanon office. Id. ¶¶ 44, 51.3 Ms. Boustany’s salary was
denominated in Euro—approximately €1,264 per month, the equivalent of $1,337.15 per month. Id.
¶ 16. Xylem’s corporate headquarters is located in New York. Id. ¶ 5. Ms. Boustany’s supervisor at
the time that she was hired, and thereafter, was George El Hani, a Xylem employee.4 Id. ¶ 9. Mr. El
Hani was the Managing Director of the Middle East for Xylem, and “had that [sic] ability to hire,
fire and effect [sic] the terms and conditions of Plaintiff’s employment.” Id. ¶ 10.
Starting from the date of her interview, Mr. El Hani began a campaign of sexual harassment
against Ms. Boustany. Id. ¶¶ 18-19. Even before her first interview, Mr. El Hani commented on
Ms. Boustany’s “gorgeous outfits,” and shortly after she was hired, his harassment became more
overt. Id. ¶¶ 20-22. Within a month of her hiring, Mr. El Hani attempted to kiss Ms. Boustany, and
complimented her physical appearance crudely. Id. ¶¶ 21-22. Within three months, Mr. El Hani had

Unless otherwise noted, the facts are taken from the amended complaint, and are accepted as true for the purposes of
this Rule 12(b)(6) motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, “[t]he tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

1

The Court accepts this pleaded fact as true for purposes of this motion. The Court notes that the Employment
Agreement for Ms. Boustany, presented to the Court in connection with this motion, was entered into between her and
Xylem Water Systems Lebanon, with a service address in Beirut, Lebanon. Certification of George El Hani, ECF No.
29 (“El Hani Cert.”), Exs. B-2 and B-3.

2

The complaint is pleaded in an artfully reductive manner. Aware, presumably, of the nature of the tests that an alien
must satisfy in order to maintain a suit under Title VII, the complaint does not state directly Ms. Boustany’s and Mr. El
Hani’s workplace, but it is acknowledged twice. See Compl. ¶ 44 (referring to “[a]ll of the other employees in the
Lebanon office”); Id. ¶ 51 (“While in Lebanon, [she] released EL HANI from employment . . . .”).

3

4 The Court also accepts this pleaded fact as true for purposes of this motion. The Court notes that Mr. El Hani avers
that he was never employed by Xylem, but, rather by one of its foreign subsidiaries, Xylem Water Systems Deutschland
GmbH. El Hani Cert. ¶ 8.

2

asked her to sit at his desk and work in his office, and claimed that he could not live without her. Id.
¶¶ 23-24. His treatment of her took a toll on Ms. Boustany’s health; she was constantly dizzy as a
result of her emotional distress. Id. ¶ 25.
In October 2012, Ms. Boustany was fired because she did not accede to Mr. El Hani’s sexual
advances. Id. ¶ 26. But, shortly thereafter, Mr. El Hani rehired her, telling her ominously that he did
so for “personal reasons.” Id. At the time, Ms. Boustany “understood [Mr. El Hani’s] comment to
indicate that her reemployment was conditioned on acquiescing to his sexual advances.” Id. Ms.
Boustany began working for Xylem, and Mr. El Hani, again.
Shortly after rehiring her, in November 2012, Mr. El Hani accompanied Ms. Boustany to a
training program in Austria. Id. ¶ 27. While there, he overtly propositioned her for sex, but she
rejected his advances. Id. One month later, in December 2012, Mr. El Hani again accompanied Ms.
Boustany on an overseas trip to Italy. Id. ¶ 28. This time, he booked a single room for both of
them. “At this time, Defendant El Hani had been making sexual advances towards her for 6
months, reminding her that her reemployment was contingent upon her acquiescence to sleep with
him.” Id. Mentally drained, and fearing the loss of her job, Ms. Boustany succumbed. Id.
In January 2013, Mr. El Hani organized a business trip to Chicago. Id. ¶ 30. He forced Ms.
Boustany to travel there with him “although she had no business in Chicago.” Id. While there, Mr.
El Hani summoned Ms. Boustany to his room, telling her “I am your boss and I am asking you to
come to this hotel.” Id. At the hotel, he again made unwanted advances toward Ms. Boustany. Id.
And after having sex with her, Mr. El Hani grotesquely kicked her out of his room to the hall
outside, where she collapsed, only to awake the next day in her room. Id. The experience left Ms.
Boustany emotionally distraught. Id. On another business trip to the United States, this time to
Texas, Mr. El Hani booked a room for himself and Ms. Boustany. Id. ¶ 31. Ms. Boustany did not
want to stay with Mr. El Hani, but he forced her to keep the reservation as he had made it. Id.

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Ms. Boustany complained to Mr. El Hani that his conduct was unwelcome and unwarranted,
but he continued to touch her inappropriately, embarrassing and humiliating her. Id. ¶¶ 34-35. Mr.
El Hani used Ms. Boustany’s “cultural practices” to manipulate and control her, along with threats
to her employment if she failed to continue as his sexual partner. Id. ¶¶ 32-33.
After eleven months of mistreatment following her rehiring, in September 2013, Ms.
Boustany complained about Mr. El Hani’s sexual harassment and discrimination to Xylem’s regional
director, Valerie Lassalle. Id. ¶ 36. Ms. Lassalle in turn reported the matter to Cornett Lewers, the
chief ethics and compliance officer in Xylem’s New York headquarters. Id. ¶ 37. Mr. Lewers
contacted Ms. Boustany on November 7, 2013 and informed her that an investigation of her
complaints would take place. Id. ¶ 38. During the investigation that followed, Mr. El Hani’s
treatment of Ms. Boustany “grew retaliatory and unbearable.” Id. ¶ 39. On at least fourteen
occasions between November 2013 and October 2014, Ms. Boustany complained to Ms. Lassalle,
Mr. Lewers, and others about her mistreatment by Mr. El Hani, and his retaliation against her. Id.
¶ 40. Four times in early 2014, Ms. Boustany emailed Ms. Lassalle, Mr. Lewers, and the regional
director, Vincent Chirouze, to follow up about her November 2013 complaint. Id. ¶ 42. The
defendants failed to respond. Id. ¶¶ 43, 50.
In either December 2013 or January 2014, Mr. El Hani demoted Ms. Boustany, allegedly to
retaliate against her. Id. ¶ 44. As a result of the change in position, she was now supervised by a
manager based in Dubai. Id. Ms. Boustany does not allege further sexual harassment by Mr. El
Hani following her change in supervisors, but she does allege that Mr. El Hani continued to act out
against her in retaliation for her complaints: he blamed her for others’ mistakes, cancelled a possible
trip to Chicago by Ms. Boustany, forced her to stay at cheaper hotels than her colleagues, and even
prevented her from travelling to Dubai at the request of her new supervisor. Id. ¶¶ 45-47, 49. Ms.
Boustany felt isolated from her colleagues, who saw her as a “troublemaker.” Id. ¶ 48.

4

Ms. Boustany again complained to Xylem’s human resources office by email, but Xylem
never responded; nor did they respond when Ms. Boustany’s new supervisor raised the issue with
them. Id. ¶ 50. Finally, however, in March 2014, Mr. Lewers travelled to Lebanon from his office in
New York, together with Ms. Lassalle and Mr. Chirouze. While that group was in Lebanon, they
terminated Mr. El Hani. Id. ¶ 51. Ms. Boustany was promised “beautiful days and promotions”
ahead. Id. But beautiful days did not arrive. Instead, in November 2014, as a condition to a
“business offer” by Xylem to Mr. El Hani, Ms. Boustany was terminated. Id. ¶ 53.
B. Procedural Background
Ms. Boustany filed a claim with the Equal Employment Opportunity Commission
(“EEOC”) alleging a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et. seq. (“Title VII”); she received a right to sue letter from the EEOC on September 30, 2015.
Id. ¶¶ 13-14. Boustany filed her complaint in this matter on December 23, 2015, alleging violations
of Title VII by Xylem and violations of the New York State Human Rights Law, N.Y. Exec. Law
§ 296 et. seq., by both Xylem and Mr. El Hani. Id. ¶ 1. Xylem filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) on April 4, 2016. ECF No. 26. On the same date, El Hani filed a separate
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), (5), and (6). ECF No. 31.
III.

LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556).

5

While a complaint need not provide “detailed factual allegations,” it nevertheless must assert
“more than labels and conclusions” and more than “a formulaic recitation of the elements of a cause
of action.” Twombly, 550 U.S. at 555. The facts pleaded “must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true.” Id.
(citations omitted). The court must accept all factual allegations in the complaint as true, and draw
all reasonable inferences in favor of the nonmoving party. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).
IV.

DISCUSSION
A. Applicability of Title VII to Plaintiff’s Claims
Title VII prohibits various forms of employment discrimination on the basis of an

individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). An “employee”
is defined as “an individual employed by an employer.” Id. § 2000e(f). Title VII’s protections
extend to American citizens working abroad. Id. (“With respect to employment in a foreign country,
[the term ‘employee’] includes an individual who is a citizen of the United States.”). The statute also
protects non-citizens working within the United States. See Espinoza v. Farah Mfg. Co., 414 U.S. 86,
95 (1973) (“Title VII was clearly intended to apply with respect to the employment of aliens inside
any State.”).
However, Congress did not extend the protections of Title VII to non-citizens employed
outside of the United States. The statute specifically provides that “[t]his subchapter shall not apply
to an employer with respect to the employment of aliens outside any State . . . .” 42 U.S.C. § 2000e1(a).5 As a result, a non-citizen, such as Ms. Boustany, cannot sue under Title VII unless she is

The statute does apply extraterritorially to United States citizens working abroad under certain circumstances. In
response to the Supreme Court’s decision in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), Congress amended
the statute’s definition of “employee” to extend the protections of the statute to citizens of the United States employed
in a foreign country. At the same time, however, Congress limited the extraterritorial effect of the statute pursuant to 42

5

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“employed” inside a state of the United States. See, e.g., Shekoyan v. Sibley Int’l, 409 F.3d 414, 420-22
(D.C. Cir. 2005); 6 Emp. Coord. Employment Practices § 41:285 (noting that “U.S. job
discrimination laws do not apply to the employment of aliens outside the United States. . . . Title
VII does not extend extraterritorially to any person who is not an American citizen.”); 1 Emp.
Discrim. Coord. Analysis of Federal Law § 18:26 (same).
1. Employment In the United States
The location of the plaintiff’s employment is a key factor in the analysis of a Title VII claim
brought by an alien. See, e.g., Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 67 (D.D.C. 2002), aff’d,
409 F.3d 414 (D.C. Cir. 2005) (“The location of the alleged discriminatory employment of a noncitizen is critical to a Title VII analysis . . . .”). However, the statute does not define the term
“employed” in this context. Federal courts confronting this issue have developed two alternative
tests to determine whether an alien was employed in the United States: the “primary workstation”
test and the “center of gravity” test.6 The Court expresses a number of concerns regarding the
application of the “center of gravity” test in the context of litigation under Title VII by non-U.S.
citizens whose primary workstation is outside of the United States in Section IV.C below. However,
the Court need not decide here whether the “primary workstation” or the “center of gravity” test is
the appropriate standard, because Ms. Boustany’s allegations fail under either test.

U.S.C. § 2000e-1 (c)(2), which provides that “Sections 2000e-2 and 2000e-3 of this title shall not apply with respect to
the foreign operations of an employer that is a foreign person not controlled by an American employer.”
The Second Circuit has not specifically endorsed either of the two tests in this context. However, in Ofori-Tenkorang v.
Am. Int’l Grp., Inc., the Second Circuit did expressly agree with the application of the “primary workstation” test in the
context of litigation under 42 U.S.C. § 1981(a). 460 F.3d 296, 304 (2d Cir. 2006) (“We agree with those courts that have
held ‘that an individual, whose primary workstation is abroad, cannot characterize otherwise extraterritorial employment
as domestic solely because employment decisions were made . . . in the United States.’”) (citations omitted). In the same
case, the Second Circuit declined to “adopt ‘a center of gravity test’ or engage in a ‘balancing of contacts’ analysis that
would introduce much uncertainty into the law.” Id. at 305.

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a. The “Primary Workstation” Test
A significant number of courts have adopted a “primary workstation” test to evaluate
whether an alien is employed within the United States. While the test has been in use for some time,
perhaps the leading case applying this standard is Shekoyan v. Sibley Int’l Corp., 217 F.Supp.2d 59, 68
(D.D.C. 2002), aff’d, 409 F.3d 414 (D.C. Cir. 2005). In Shekoyan, the plaintiff, Mr. Shekoyan, was
hired to work in the Republic of Georgia but was “hired by, trained at, and reported to the
defendant’s corporate headquarters” in Washington, D.C. Id. at 62. Mr. Shekoyan was later
terminated and consequently brought suit under Title VII, alleging that he had been discriminated
against on the basis of his national origin. The court was required to evaluate whether Mr. Shekoyan
was employed in the United States or abroad.
The court held that an employee’s place of employment was to be determined based on “the
location of the employee’s primary workstation.” Id. at 68. Although Shekoyan’s position did have
some connection to the United States, the court held that his “primary workstation and thus his
place of employment” was located in the Republic of Georgia because he was “specifically hired by
the defendant to work in the Republic of Georgia and performed his primary work related duties
there.” Id. Consequently, Title VII did not apply. Id. at 68-69. On appeal, the D.C. Circuit
affirmed the District Court’s conclusion. Shekoyan, 409 F.3d at 422.
A number of other courts have applied the primary work station test or a close cognate of it.
See, e.g., Herrera v. NBS, Inc., 759 F. Supp. 2d 858, 866 (W.D. Tex. 2010) (holding that individual who
was hired in, supervised from, provided a furnished office in, given business cards with a local
phone number from, attended weekly meetings in, and spent half of his work week in El Paso,
Texas had a “primary workstation” in Texas); E.E.O.C. v. Int’l Profit Assocs., Inc., 647 F. Supp. 2d 951,
994 (N.D. Ill. 2009); Denty v. SmithKline Beecham Corp., 907 F. Supp. 879, 884 (E.D. Pa. 1995), aff’d,
109 F.3d 147 (3d Cir. 1997) (holding that an employee was not covered by the ADEA because his

8

“work station was outside the United States”); Gantchar v. United Airlines, Inc., No. 93 C 1457, 1995
WL 137053, at *10 (N.D. Ill. March 28, 1995) (holding that foreign flight attendant, who spent
approximately 20% of her time working in the United States, was not employed in the United
States). Some commentators present the “primary workstation” test as the only relevant test. See,
e.g., 6 Emp. Coord. Employment Practices § 41:285 (“A determination of a plaintiff's location of
employment for Title VII purposes focuses on the location of the employee's primary
workstation.”); 1 Emp. Discrim. Coord. Analysis of Federal Law § 18:26 (“A determination of a
plaintiff's location of employment for Title VII purposes focuses on the location of the employee's
primary workstation.”). Unfortunately, none of these authorities specifically define what constitutes
a “primary workstation,” but, as applied, courts focus on the percentage of time spent in a particular
location, among other factors, to assess whether it is the employee’s “primary workstation.”
The complaint does not plausibly allege that Ms. Boustany’s “primary workstation” was
within the United States. The complaint alleges that during the course of Ms. Boustany’s over two
years working for Xylem, she worked in the United States only during her two business trips to
Chicago and Texas. Compl. ¶¶ 30-31. And, as noted above, Ms. Boustany had no business to
conduct in Chicago during her business trip there. These two business trips to the United States
cannot plausibly make any state within the United States Ms. Boustany’s primary workstation.
Indeed, in her opposition to the plaintiff’s motion to dismiss, Ms. Boustany does not contend that
her allegations satisfy the “primary workstation” test, relying instead exclusively on arguments
tailored to the alternative “center of gravity” test. See Plaintiff’s Memorandum of Law in
Opposition, ECF No. 32 (“Pl. Opp.”) at 4-8.
b. “Center of Gravity” Test
The “center of gravity” test was first articulated in Torrico v. Int’l Bus. Machines Corp. 213 F.
Supp. 2d 390, 403 (S.D.N.Y. 2002). The plaintiff in Torrico was a Chilean national who worked for

9

many years for IBM in New York. Id. at 393. He was placed on a “temporary” assignment in IBM’s
offices in Chile. Id. The temporary assignment lasted several years. Id. Throughout that entire
period, the plaintiff remained on IBM’s payroll in New York. Id. at 394. He remained on the
company’s U.S. salary and benefits plans, and New York and federal taxes were withheld from his
paycheck. Id. After the plaintiff developed a serious disability, he was terminated at a time when he
was still living in Chile. Id. at 395. He brought suit against IBM under the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., and a number of other statutes.
In its opinion, the Torrico court recognized the limitations on the extraterritorial effect of the
ADA. The court observed that in the 1991 amendments to the ADA, Congress had expressed an
intent to extend the protections of the ADA to U.S. citizens working abroad for U.S.-controlled
companies. Torrico, 213 F. Supp. 2d at 397. Referring to the 1991 amendments to both the ADA
and Title VII, the court wrote that “it is clear that both sets of amendments distinguish between U.S.
citizens working abroad for U.S. employers, who are protected from discrimination, and non-U.S.
citizens working abroad for those same employers, who fall outside the statutory protections against
discrimination.” Id. at 399. Since the plaintiff in Torrico was an alien, the question presented was
whether he was employed in the United States, because, if not, he could not recover.
It should be noted that the ADA does not appear to contain a cognate to Title VII’s express
exclusion of coverage “with respect to the employment of aliens outside any State” under 42 U.S.C.
§ 2000e-1(a). That section of Title VII existed prior to the 1991 Civil Rights Act, and was not
grafted into the ADA pursuant to that statute. As a result, the court in Torrico did not analyze
whether the claim was “with respect to” the alien’s employment “outside any State,” which is the
relevant test in this Title VII action. Instead, Torrico evaluated whether an alien was employed in the
United States using a different textual framework.

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The Torrico court approached the question through the lens of the ADA’s definition of
“employee,” which, like the equivalent definition in Title VII, states that “[w]ith respect to
employment in a foreign country, such term includes an individual who is a citizen of the United
States.” 42 U.S.C. § 12111(4).7 The court concluded on the basis of its review of the statutory text
that if an alien’s claim was “with respect to employment in a foreign country,” it was not with
respect to employment in the United States. Torrico, 213 F. Supp. 2d at 400 (“Torrico’s second
argument, however, raises a legitimate question concerning the circumstances in which an
employer’s acts of discrimination on the basis of disability should be characterized as taking place
‘with respect to employment in a foreign country,’ rather than with respect to employment in the
United States.”). The court then set about establishing a test to evaluate that question.
The Torrico court first rejected the series of precedents that had adopted the “primary
workstation” and similar tests. The court opined that those cases “present simpler factual scenarios
distinguishable from the present case, and perhaps for that reason, oversimplify the analysis of what
constitutes ‘employment in a foreign country.’” Id. at 401.8 The Torrico court then observed that
many of the precedents applying a “primary workstation”-like test

Some elements of the decision in Torrico could be construed to suggest that the definition of “employee” in the ADA
has a direct impact on the right of aliens to sue under the statute. Torrico, 213 F. Supp. 2d at 400 (“[T]he text of the
statute is clear in providing that whether [a non-U.S. citizen] employee is protected by the ADA turns instead on
whether the employee asserts a claim ‘with respect to employment in a foreign country.’ 42 U.S.C. § 12111(4).”). The
Court questions whether this conclusion is so clearly supported by the text of the statute. The definitional provision in
42 U.S.C. § 12111(4) does clearly establish that a U.S. citizen is an employee “with respect to employment in a foreign
country,” but it says nothing expressly about the rights of aliens. The title of section 109 of the Civil Rights Act of 1991
that adopted that definition was “Protection of Extraterritorial Employment” for U.S. citizens. Pub.L. 102–166, 105
Stat. 1071 (1991) (codified at 42 U.S.C. §§ 2000e–1(c), 12111(4), & 12112(c)). It overruled the Supreme Court’s decision
in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) in order to protect the rights of U.S. citizens. The Court
agrees with Torrico’s holding that a non-citizen cannot sue under the ADA if they were not employed within the United
States, and understands the logical decision by the court in Torrico to define what did not constitute employment in the
United States by reference to the “with respect to employment in a foreign country” language contained in the statute’s
definition of “employee.” It is not so clear to the Court, however, that the text of 42 U.S.C. § 12111(4) defines in a
direct manner the rights of aliens, as opposed to the rights of United States citizens. The Court understands, instead,
that Torrico used the words describing “employment in a foreign country” as a logical yin to the yang of employment in
the United States.

7

In so doing, the Torrico court did not observe that the referenced precedents brought pursuant to Title VII did not
examine what constituted “employment in a foreign country,” because those decisions, instead, properly focused on

8

11

involve situations in which employment in the United States was never
contemplated. Regardless of whether they were U.S. residents at the time that they
sought employment or were hired, the non-U.S. citizen plaintiffs in those cases either
sought employment or were hired to work exclusively (or almost exclusively) in
foreign workplaces, without ever having first worked in the United States.
Moreover, in each of these cases the overseas employment was intended to be
permanent. . . . None of these cases involve temporary, fixed-term assignments
from an existing, U.S.-based position like the Temporary Assignment at issue in this
case.
Id. at 401-02 (internal citations omitted). It is worthy of note that the situation in this case—a nonU.S. citizen hired to work permanently almost exclusively in a foreign country—is much like those
distinguished by Judge Lynch in Torrico, as not requiring the application of a standard more flexible
than the “primary workstation” test.
Dissatisfied by previously established precedent, the Torrico court looked to general
employment law for guidance. The court reasoned as follows: “Were Torrico to have asserted a
common law claim for breach of an employment contract with IBM, application of New York's
choice of law rules . . . might well require this Court to apply New York law—not Chilean law—to
adjudicate that claim, if it were found that the ‘center of gravity’ of Torrico’s employment
relationship with IBM was in New York.” Id. at 403. Without citing specific authority, but referring
generally to New York state choice of law principles, the Torrico court then articulated a new test to
apply to the assessment of whether an alien is employed in a foreign country for purposes of the
federal statute.
The resulting the multi-faceted “center of gravity” test was described in Torrico by Judge
Lynch as follows:
Similarly, it is the “center of gravity” of the entire employment relationship between
the plaintiff and the defendant employer, rather than one or more particular
locations where employment duties may have been performed, that answers the
factual question of whether an individual is “employ[ed] in a foreign country” or in
whether the claim was “with respect to the employment of aliens outside any State”—the exclusionary language
provided by 42 U.S.C. § 2000e-1(a).

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the United States within the meaning of the ADA. The center of gravity of an
individual’s relationship with an employer is determined by considering a variety of
factors, including (but not limited to) whether any employment relationship had, in
fact, been created at the time of the alleged discrimination, and if so, where that
employment relationship was created and the terms of employment were negotiated;
the intent of the parties concerning the place of employment; the actual or
contemplated duties, benefits, and reporting relationships for the position at issue;
the particular locations in which the plaintiff performed those employment duties
and received those benefits; the relative duration of the employee's assignments in
various locations; the parties’ domiciles; and the place where the allegedly
discriminatory conduct took place. The list is not meant to be exhaustive; the center
of gravity of the parties’ relationship is to be determined based on the totality of
circumstances.
Id. at 403-04.
The “center of gravity” test formulated in Torrico has since been adopted by several courts in
other districts. See, e.g., Rabe v. United Airlines, Inc., No. 08 C 6012, 2009 WL 2498076, at *5–7 (N.D.
Ill. Aug. 14, 2009), rev’d on other grounds Rabe v. United Air Lines, Inc., 636 F.3d 866 (7th Cir. 2011)
(adopting “more comprehensive” center of gravity test, after concluding that the primary work
station test is “vague and overly simplistic,” in particular given “the nature of our global economy
with its mobile workforce”); Bakeer v. Nippon Cargo Airlines, Co., Ltd., 2011 WL 3625103 at *31
(E.D.N.Y. 2011); Gomez v. Honeywell Int’l, Inc., 510 F. Supp. 2d 417, 423 (W.D. Tex. 2007) (criticizing
“primary workstation” test as “vague and overly simplistic” and adopting the “more
comprehensive” center of gravity test); Rodriguez v. Filtertek, Inc., 518 F. Supp. 2d 845, 851 (W.D.
Tex. 2007) (same).
Even the more comprehensive “center of gravity” test, however, does not sustain Ms.
Boustany’s claims. Ms. Boustany pleads that she was and is a resident of Lebanon. She claims that
she was an employee of Xylem, but that she was paid in Euro and reported to the managing director
for the Middle East, Mr. El Hani, who was also a resident and national of Lebanon. She and Mr. El
Hani worked in an office in Lebanon, where most of the abusive acts occurred, and where Mr. El
Hani took advantage of Ms. Boustany’s “cultural practices” to permit his conduct. She was hired by

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Mr. El Hani, not by any manager in the United States. Throughout her tenure, Ms. Boustany
reported to either Mr. El Hani in Lebanon, or later, to her supervisor in Dubai; she does not allege
that her work was supervised or managed by anyone in the United States.
Ms. Boustany does not plead that any of her work took place inside of, or related to, the
United States except for the two business trips to the United States. During one of those two
business trips, Ms. Boustany acknowledges, she had no business to conduct. The complaint does
not allege the precise duration of each of those two trips, but put in the context of approximately
twenty-six months of employment at Xylem, the court does not find that they support a conclusion
that the United States was the center of gravity for her employment. Put simply, two business trips
by an alien to the United States do not support the conclusion that the alien is employed in the
United States. If it did, many employers of foreign nationals around the globe would find
themselves unexpectedly subject to United States anti-discrimination laws.
Ms. Boustany seems to acknowledge in her opposition that the trips to the United States
alone are insufficient to support her claim, arguing that her claims that she was employed in the
United States are bolstered by the facts that “Plaintiff made several complaints to the New York
office, the investigations into her discrimination and retaliation complaints and the decision to
terminate her were all conducted in the New York office.” Pl. Opp. at 8. However, these are not
facts that weigh heavily, if at all, in an evaluation of whether Ms. Boustany was employed in any state,
under even the “center of gravity” test. The decision to terminate may be a significant event for a
discrimination claim, but it says little about where Ms. Boustany was employed during the time of
her work for the company, which is the focus of the inquiry. Note that the place of termination was
not among the many, if non-exclusive, factors articulated in Torrico.
The same is true regarding the claims of retaliation in this case, nearly all of which involve
retaliation by Mr. El Hani in the Lebanon office. While Ms. Boustany alleges that she complained of

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the retaliation to Xylem’s New York office, her assertion is that the office did not respond to the
complaints. Compl. ¶ 50. This alleged failure by the New York office to respond to complaints by
an employee abroad does not lend weight to the conclusion that she was employed in the United
States. Nor does the fact that Ms. Boustany’s allegations of abuse were investigated in New York
support the conclusion that she was employed in New York.
B. State Law Claims
Under 28 U.S.C. § 1367(c)(3), the exercise of supplemental jurisdiction over Plaintiff’s
remaining state law claims is within the Court’s discretion if it has “dismissed all claims over which it
has original jurisdiction.” The Second Circuit counsels against exercising supplemental jurisdiction
in such a situation: “[I]f the federal claims are dismissed before trial, even though not insubstantial in
a jurisdictional sense, the state claims should be dismissed as well.” First Capital Asset Mgmt., Inc. v.
Satinwood, Inc., 385 F.3d 159, 183 (2d Cir. 2004) (quoting Castellano v. Bd. of Trustees, 937 F.2d 752, 758
(2d Cir. 1991)).
Having dismissed all of Plaintiff’s claims that were based on a federal question under 28
U.S.C. § 1331, and there being no other basis for federal jurisdiction over this case, the Court
declines to exercise its supplemental jurisdiction over Plaintiff’s remaining state law claims. See 28
U.S.C. § 1367(c)(3). Accordingly, those claims are dismissed without prejudice.
C. Leave to Amend
In this circuit, “[i]t is the usual practice upon granting a motion to dismiss to allow leave to
replead.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991); see also Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). As the Second
Circuit has instructed, “[a] district court has discretion to deny leave for good reason, including
futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). In
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the absence of such reasons, whether “‘apparent or declared,’” leave to amend should be granted.
Abbatiello v. Monsanto Co., 571 F. Supp. 2d 548, 552 (S.D.N.Y. 2008) (quoting Forman, 371 U.S. at
182). Recognizing these guiding principles, the Court nonetheless denies Plaintiff leave to amend
the complaint. For the reasons described below, it appears beyond doubt that Ms. Boustany can
plead no set of facts that will resuscitate her Title VII claims.
Ms. Boustany’s pleading suggests no factual basis on which the Court might ever conclude
that her “primary workstation” was in the United States. She visited the United States twice in the
course of over two years of employment. Even under the more lenient “center of gravity” test, the
Court does not believe that Ms. Boustany can plead that she was employed within the United States.
She was hired to work outside of the United States, and worked there throughout her tenure other
than two business trips to the United States; her supervisors were located outside of the United
States; and nearly all of the discriminatory acts occurred outside of this country. Ms. Boustany’s case
presents the kind of circumstances which the Torrico court stated could be adequately assessed by the
“primary workstation” test. The “center of gravity” test was not designed to reach a different
conclusion in circumstances like those presented by Ms. Boustany.
Moreover, the Court expresses concern regarding the application of the “center of gravity”
test articulated in Torrico to cases brought by aliens under Title VII. As the Court observed above,
the “center of gravity” test was not based on an analysis of the clear exclusionary language in Title
VII. The rationale presented by the Torrico court to develop a standard based on New York conflict
of law principles to determine the extraterritorial application of a federal statute was a musing
hypothetical presented in a single sentence.9

“Were Torrico to have asserted a common law claim for breach of an employment contract with IBM, application of
New York's choice of law rules . . . might well require this Court to apply New York law—not Chilean law—to
adjudicate that claim, if it were found that the ‘center of gravity’ of Torrico’s employment relationship with IBM was in
New York.” Torrico, 213 F. Supp. 2d at 403.

9

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Most importantly, the Court has concerns regarding the use of an imprecise, multi-faceted,
fact-intensive balancing test to extend the protections of Title VII outside of the United States. In
Title VII, Congress clearly stated that non-U.S. citizens should not be able to avail themselves of the
protections of the statute if they were employed outside of any state. 42 U.S.C. § 2000e-1(a). The
selection of a test to evaluate when a non-U.S. citizen is employed in the United State should take
into account that express mandate. It should also consider the general presumption against
extraterritorial application of United States statutes. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 561
U.S. 247, 255 (2010) (presumption against extraterritorial application applies to all statutes and can
only be overcome by affirmative intention of foreign effect by Congress). It is not clear that the
“center of gravity” test adequately respects those principles.
The “center of gravity” test requires a fact-intensive analysis of the “totality of the
circumstances.” Torrico, 213 F. Supp. 2d at 404. As a result, it is significantly less predictable than
the admittedly simpler “primary workstation” test, and creates more uncertainty regarding the
extraterritorial application of U.S. law. See Michelle Shender, Claims by Non-Citizens Under the
Americans with Disabilities Act: Proper Extraterritorial Application in Torrico v. International Business
Machines?, 17 PACE INT’L L. REV. 131, 155-56 (2005). The Second Circuit acknowledged that
concern in Ofori-Tenkorang when, in the context of an action brought under § 1981, it declined to
“adopt ‘a center of gravity test’ or engage in a ‘balancing of contacts’ analysis that would introduce
much uncertainty into the law.” Ofori-Tenkorang, 460 F.3d at 305. An open-ended balancing test
based on the “totality of the circumstances” may make early, pre-discovery disposition of such
claims more difficult—effectively expanding the universe of claims brought in federal court by nonU.S. citizens who do not work primarily in the United States, and, thereby, effectively extend the
extraterritorial reach of the statute.

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The Court recognizes that the “center of gravity” test is, as several courts that have adopted
it have stated, “more comprehensive” than the “primary workstation” test. But the question
presented by the adoption of the “center of gravity” test is whether an alien whose primary
workstation is not in the United States should be able to sue under Title VII in U.S. federal court
regarding workplace discrimination. In that context—in recognition of concerns regarding the
extraterritorial application of U.S. law and in furtherance of the predictable application of U.S. law—
it may be that, as Mies Van Der Rohe famously commented, “less is more.”
V.

CONCLUSION
The Court empathizes with Ms. Boustany’s alleged sufferings, however the protections of

Title VII do not apply to non-U.S. citizens employed outside of the United States. Ms. Boustany
does not plausibly allege that she was employed in the United States. Consequently, Ms. Boustany’s
claims against Xylem under Title VII are dismissed with prejudice. The Court declines supplemental
jurisdiction over her state law claims.
The Clerk of Court is directed to terminate all pending motions and to close this case.
SO ORDERED.
Dated: January 25, 2016
New York, New York

___________________________________
_____________________
__
__________________
____
GREGORY H
GREGORY H. WOODS
G R
United States District Judge
nited

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