Juan Carlos Bardales v. Consulate General of Peru in New York

Background

Juan Carlos Bardales sued the Consulate General of Peru in New York and Mario Teresa Merino Villaran de Hart, identified as the former Consul General of Peru and referred to as “Merino.” Bardales was a former Consulate employee who worked there from May 2010 through October 31, 2015.

Bardales alleged that he performed administrative and customer-service work and later worked as Merino’s personal assistant. He claimed that he regularly worked more hours than required without overtime pay, drove Merino and other people, performed errands, paid expenses such as parking, tolls, and gas, and was required to sign receipts describing expense reimbursements as overtime pay. He also alleged that after he complained about not receiving overtime, the defendants told him his employment contract would end at the end of the month.

His Second Amended Complaint asserted claims under the Fair Labor Standards Act, New York Labor Law, and contract law.

Defendants’ Motion

The defendants moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim. They argued that the Consulate was immune under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–1611, and that no FSIA exception applied. They separately argued that Merino was immune under the Vienna Convention on Consular Relations (VCCR). In the alternative, they sought dismissal of certain claims for failure to state a legally sufficient claim.

Consulate’s Sovereign Immunity

The court explained that the FSIA generally protects a foreign state and its agencies or instrumentalities from jurisdiction in United States courts unless a statutory exception applies. Bardales relied on the FSIA’s commercial-activity exception.

The court applied a two-part employment analysis drawn from Second Circuit precedent. First, it asked whether the activity to which Bardales’s employment was directed was governmental. The court held that operating a consulate is diplomatic and therefore governmental. Second, it asked whether Bardales’s employment was sufficiently intertwined with that governmental activity to make the employment relationship itself governmental rather than commercial.

The court concluded that it was. Bardales’s customer-service duties included processing identity-card and passport applications, visiting hospitals for information about Peruvian nationals, and providing consular services. The court found that these duties went beyond purely clerical work. It also relied on records showing that, from March 2014 through October 2015, Bardales drove to official destinations on 324 of 380 reported workdays. Although Bardales argued that he performed substantial personal errands and that the records covered too short a period, the court found that the evidence did not show that personal tasks made up a significant or majority portion of his work.

Considering his work as a whole, including his official driving and governmental customer-service duties, the court held that the employment relationship was noncommercial. The commercial-activity exception therefore did not apply, and the Consulate was entitled to immunity under the FSIA.

Merino’s Consular Immunity

The VCCR protects consular officers and employees from jurisdiction for acts performed in exercising consular functions. The court applied a two-part inquiry: whether the official’s actions implicated a consular function and whether the challenged acts were performed in exercising that function.

The court determined that managing and supervising Consulate staff was a consular function. It rejected Bardales’s argument that his personal-assistant work was separate from his Consulate employment because his complaint described all of his duties as covered by one employment contract with the Consulate. The court also found that the checks from Merino, as described in the complaint, reimbursed expenses rather than paid him separately for personal chores.

The court held that Bardales’s claims concerned overtime, wage records, wage notices, contract terms, and alleged retaliation arising from his employment under the Consulate contract. Merino’s alleged conduct therefore involved managing and supervising a Consulate employee and was performed in furtherance of a consular function. The court concluded that Merino was immune under the VCCR.

Disposition

Because it found both defendants immune, the court did not address the defendants’ alternative argument that certain claims should be dismissed for failure to state a claim. Judge Andrew L. Carter, Jr. granted the defendants’ motion in its entirety and dismissed the matter. The opinion does not state whether the dismissal was with or without prejudice.