ORAL ARGUMENT SCHEDULED FOR MARCH 15, 2005 BEFORE JUDGES SENTELLE, HENDERSON AND ROGERS
In the United States Court of Appeals For the District of Columbia Circuit
Plaintiff-Counter-Defendant – Appellant,
SIBLEY INTERNATIONAL, INC.,
Defendant-Counter-Claimant – Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (The Honorable Reggie B. Walton) _______________
BRIEF OF APPELLANT
Dawn V. Martin LAW OFFICES OF DAWN V. MARTIN 1090 Vermont Avenue Suite 800 Washington, DC 20005 (202) 408-7040
Dated: January 26, 2005 Counsel for Appellant
ORAL ARGUMENT SCHEDULED FOR MARCH 15, 2005
Certificate as to Parties, Rulings and Related Cases
(A) Parties. The Plaintiff is Vladimir Shekoyan and the Defendant is Sibley International, Inc. (hereinafter, “Sibley”). Mr. Shekoyan was an employee of Sibley and his claims arise from that period of employment and Sibley’s termination of him as an employee. (B) Rulings under Review. 1. Shekoyan v. Sibley International, Inc., 217 F. Supp. 2d 59 (D.D.C. 2002), August 19, 2002, dismissing Shekoyan’s Title VII claims for lack of jurisdiction (but upholding Shekoyan’ s False Claims Act claims and D.C. claims), issued by Judge Reggie B. Walton; 2. Shekoyan v. Sibley, International, Inc., 309 F. Supp. 2d 9 (D.D.C. 2004), issued on March 19, 2004, granting summary judgment to Sibley and dismissing Shekoyan’s D.C. claims, without prejudice, with leave to re-file in D.C. Superior Court, issued by Judge Reggie B. Walton; 3. Shekoyan v. Sibley International, Inc., C.A. 00-2519, District Court’s January 29, 2004 Order denying Plaintiff’s Motion to Amend the August 16, 2002 Order to Restore Plaintiff’s Title VII Claim in Light of Evidence Produced in Discovery and Current Case Law, issued by Judge Reggie B. Walton; 4. Shekoyan v. Sibley International, Inc., District Court’s February 3, 2004 Order denying Plaintiff’s Motion to File Motion for Summary Judgment out of Time, due to Newly Acquired Witness Affidavit, issued by Judge Reggie B. Walton; and 5. Shekoyan v. Sibley International, Inc., District Court’s February 28, 2004 Order denying Plaintiff’s Motion for Rule 11 Sanctions against Defendant for Filing a Frivolous Counterclaim and Motion, and Making False Representations to this Court, issued by Judge Reggie B. Walton. (C) Related Cases. Shekoyan v. Sibley International, Inc., C.A. No. 04-2980, D.C. Superior Court, before Judge Herbert B. Dixon, Jr. The case addresses Mr. Shekoyan’s D.C. claims that Judge Walton dismissed, without prejudice, to be re-filed in D.C. Superior Court. The claims include violations of D.C. Human Rights Law, breach of contract, defamation and intentional infliction of emotional distress. The case was recently transferred to Judge Dixon from Judge Stephanie Duncan-Peters. The parties first appeared before Judge Dixon, for a status conference, on November 16, 2004. Judge Dixon is currently considering whether to continue the stay granted, by Judge Duncan-Peters, while Sibley’s Motion for Summary Affirmance was pending before this Court.
TABLE OF CONTENTS
Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES……………………………………………………………….. i
TABLE OF CONTENTS iv
TABLE OF AUTHORITIES…………………………………………………….viii
JURISDICTIONAL STATEMENT 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW 1
STATUTES AND REGULATIONS 3
STATEMENT OF THE CASE 3
1. NOTICE OF APPEAL 3
2. COURT OF APPEALS DECISION 3
STATEMENT OF THE FACTS…………………………………………………...4
SUMMARY OF ARGUMENT…………………………………………………….7
I. THE TRIAL COURT ERRED BY DISMISSING MR. SHEKOYAN’S TITLE VII CLAIMS 9
A. Standard of Review for Dismissal of a Claim 9
B. Overview: Shekoyan Sets National and International Precedent, under Title VII, With Respect To Employers Conducting Business Internationally 10
C. The Trial Court’s August 19, 2002 Decision Erroneously Held that Mr. Shekoyan was not a “U.S. National” 14
D. The 1991 Civil Rights Act Amended Title VII to Include U.S. Citizens Assigned Abroad by U.S. Employers 17
1. The History of the 1991 Civil Rights Act 17
2. Title VII Precedent Upholds the “Spirit” over the “Letter” of the Law 18
E. Mr. Shekoyan is Entitled to Title VII Protection Based upon “Nationality” Jurisdiction 20
1. “Nationality” Jurisdiction Doctrine Defined 20
2. U.S. Law Applies to U.S. Nationals 23
F. Mr. Shekoyan is Entitled to Title VII Protection Based upon “Territoriality” 24
1. “Territoriality” Jurisdiction Defined 24
2. Sibley Concedes that U.S. Law Applies to its Employees Abroad 24
3. Mr. Shekoyan was Protected by Title VII, as a U.S. Diplomat, working on U.S. Territory 25
a. As U.S. Diplomat, Mr. Shekoyan was on “U.S. Soil” while Working for Sibley Abroad 25
b. Mr. Shekoyan’s Worksite was a U.S. Territory, or U.S. Mission 26
4. Title VII Applies to Shekoyan because the Discriminatory Acts Took Place in the U. S. 27
a. Title VII Covers Discriminatory Acts Committed in the U.S. 27
b. The Trial Court Determined that Mr. Shekoyan was Terminated in the U.S. 28
c. Title VII Controls where any of the Alleged Discrimination Occurred in the U.S. 31
5. Mr. Shekoyan is Protected by Title VII because the “Center of Gravity of the Employment Relationship” was in the U.S. 32
a. The Trial Court’s January 26, 2004 Decision Failed to Apply Current Case Law, Most Notably, Torrico 32
b. Torrico Adopted the “Center of Gravity of the Employment Relationship” Approach 33
c. The “Center of Gravity of the Shekoyan-Sibley Employment Relationship” was in the U.S. 35
G. Shekoyan is Distinguished from Iwata 39
H. Hu is Inappropriate Precedent for Shekoyan 41
1. Analytical Problems with Hu 41
2. Shekoyan Facts Distinguished from Hu 42
I. Title VII Should be Construed Consistently with Executive Order 11246, Prohibiting U. S. Contractors from Discriminating against Employees Fulfilling Government Contracts 43
J. The U.S. Offers the Only Reasonable and Appropriate Forum for the Controversy between the Parties 45 II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO SIBLEY ON MR. SHEKOYAN’S THE FALSE CLAIMS ACT CLAIMS 46
A. Standard of Review for Summary Judgment 46
B. The Trial Court’s March 19, 2004 Dismissal of Shekoyan’s False Claims Act Claims Violates Yesudian and its own August 19, 2002 Decision 46
III. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING SHEKOYAN’S MOTION TO FILE A MOTION FOR SUMMARY JUDGMENT, BASED ON NEWLY ACQUIRED EVIDENCE 49
IV. THE TRIAL JUDGE ABUSED HIS DISCRETION, REFUSING TO CONSIDER EVIDENCE NECESSARY TO DECIDE MR. SHEKOYAN’S MOTION FOR RULE 11 SANCTIONS 52
V. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING MR. SHEKOYAN’S PENDENT D.C. CLAIMS 56
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF FILING AND SERVICE
TABLE OF AUTHORITIES
Allen v. Beta Constr., 309 F. Supp. 2d 42 (D.D.C. 2004) 13
Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986) 46
Anderson v. USAA Cas. Ins. Co., 2004 U.S. Dist. LEXIS 8393 (D.D.C. 2004) 13
Application of Griffiths, 413 U.S. 717 (1973) 23
ARAMCO v. Bourselan, 499 U.S. 244 (1991) 10, 17, 20, 21
Asemani v. The Islamic Republic of Iran, 2003 U.S. Dist. LEXIS 9587 (D.D.C. 2003) 13, 17
Atchinson v. Dist. of Columbia, 73 F.3d 418 (D.C. Cir. 1996) 49
Atgun v. Boeing, 1990 U.S. Dist. LEXIS 11845 (D.C.W.D. Wash. 1990) 18
*Blackmer v. United States, 284 U.S. 421 (1932) 20
*Blake v. Professional Travel Corp., 786 A.2d 574 (D.C. App. 2001) 31, 45
Brown v. United States, 271 F. Supp. 2d 225 (D.D.C. 2004) 13 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) 30
Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2 (D.D.C. 2004) 49
Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988) 56
Carreon-Hernandez v. Levi, 543 F.2d 637 (8th Cir. 1976) 23
Conley v. Gibson, 355 U.S. 41 (1957) 10
Cooter & Gell v. Hartmax Corp., 496 U.S. 384 (1990) 52
Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993) 21, 23
*Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) 23, 24
*Faraher v. Boca Raton, 524 U.S. 775 (1998) 29-30
Griffin v. Acacia Life Insurance Company, 151 F. Supp. 2d 78 (D.D.C. 2001) 56
*Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 89 FEP 1738 (D.D.C. 2002) passim
Shekoyan v. Sibley, 309 F. Supp. 2d 9 (D.D.C. 2004) passim
Steele v. Bullova Watch Co., 344 U.S. 280 (1953) 20
Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) 46
*Torrico v. International Business Machines Corporation, 2004 U.S. Dist. LEXIS 3691 (S.D.N.Y. 2004) 11-12, 13, 36
*Torrico v. International Business Machines Corporation, 213 F. Supp. 2d 390 (S.D.N.Y. 2002) passim
Trans-America Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843 (D.C. Cir. 2000) 9
U.S. v. Sotelo, 109 F.3d 1446 (9th Cir. 1997) 13
United States ex. rel. Barrett v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 28 (D.D.C. 2003) 13
United States ex. rel. Barrett v. Columbia/HCA Healthcare Corp., 2002 U.S. Dist. LEXIS 25884 (D.D.C. 2002) 13
United States ex rel. Ortega v. Columbia Healthcare, Inc., 240 F. Supp. 2d 8 (D.D.C. 2003) 13
United States ex. rel. Rockefeller v. Westinghouse, 274 F. Supp. 2d 10 (D.D.C. 2003) 13
United States v. Universal Fruits and Vegetables Corp., 362 F.3d 551 (9th Cir. 2004) 13
*United Steelworkers of America v. Weber, 443 U.S. 193 (1979) 18-19
*Yesudian v. Howard University, 153 F.3d 731 (D.D.C. 1998) 46, 47, 48
8 U.S.C. § 1101(a)(22) 16
8 U.S.C. § 1101(3) 18
8 U.S.C. § 1502 23
8 U.S.C. § 1503(a) 23-24
8 U.S.C. § 1503(b) 23-24
28 U.S.C. § 1291 1
28 U.S.C. § 1367(c)(3) 56
29 U.S.C. § 630(f) 12
31 U.S.C. § 3730(h) passim
42 U.S.C. § 2000(e) et seq. passim
42 U.S.C § 2000e-1 13
42 U.S.C. § 2000e-1(a) 18
42 U.S.C. § 2000(e)-1(f) 10, 12, 17, 21
42 U.S.C. § 12,101 et seq. 12
D.C. Code § 2-1402.11 passim
D.C. Cir. L. R. 7.1(m) 53
Fed. R. App. P. 4(a) 1
Fed. R. Civ. P. 12(b)(6) 9, 10
Fed. R. Civ. P. 15 49
Fed. R. Civ. P. 56 46
Fed. R. Civ. P. 56(c) 46
Fed. R. Civ. P. 59 49, 50
Fed. R. Civ. P. 60. 49
41 C.F.R. § 1.10 44
41 C.F.R. § 1.5(a)(3) 44
48 C.F.R. § 702.170-16 passim
Allowing Employers to Discriminate in the Hiring Process under the Age Discrimination in Employment Act: the Case of Reyes-Goana, 27 N.C.J. Int’l. L. & Com. Reg. 335 (2001) 14, 32
Civil Rights: Hearing on H.R. 7152 before the House Committee on the Judiciary, 88th Cong. 1st Sess. 2303 (1963) 18
EEOC Decision 90-1, CCH EPG 6875, Title VII Covers Military Contractor's Employment of Americans Overseas 11, 19, 44
EEOC Policy Guidance No. 915.002, CCH Employment Practices Guide (EPG) 6866, Enforcement Guidance on Application of Title VII and the Americans with Disabilities Act to Conduct Overseas and to Foreign Employers Discriminating in the United States 11
Street, Lairold, Application of U.S. Fair Employment Laws to Transnational Employers in the United States and Abroad, 19 NYU J. Int’l. Law and Politics, 357 (1987) 11
Street, Lairold, Korean Air Lines: The Future Interpretation of "Executive" and "Engage" in Friendship, Commerce and Navigation Treaties, 14 Hastings Int'l. & Comp. L. Rev. 93 (1990) 11
Vienna Convention of 1961, Article 3(e) 8, 25, 26
JURISDICTIONAL STATEMENT This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1291 and Fed. R. App. Proc., Rule 4(a). The District Court had subject matter jurisdiction of this matter pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., for national origin discrimination in employment, including national origin harassment and termination based on national origin and retaliation. The District Court also had independent jurisdiction over the case pursuant to the False Claims Act, 31 U.S.C. § 3730(h) (“whistleblower” statute), since Shekoyan had identified misuse and misappropriation of federal funds and resources by Sibley employees, reported these violations to Sibley officials and discussed with Sibley officials whether the violations should be reported to USAID, the contracting U.S. government agency. The District Court had pendent jurisdiction over Shekoyan’s employment discrimination claims under the D.C. Human Rights Act, as well as his breach of contract, defamation and intentional infliction of emotional distress claims. STATEMENT OF ISSUES PRESENTED FOR REVIEW
A. Did the trial court err, as a matter of law, by holding that Shekoyan was not entitled to Title VII protection from national origin discrimination while temporarily assigned abroad by Sibley, U.S. company, to fulfill a U.S. government contract/mission, where Shekoyan was a taxpaying, permanent, legal resident of the U.S. and the District of Columbia, classified a U. S. national during his entire employment with Sibley and where Shekoyan was recruited, hired and trained in the U.S.? B. Must Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 89 FEP 1738 (D.D.C. 2002), mistakenly holding, as a matter of law, that Mr. Shekoyan was an “alien” within the meaning of Title VII, and not a “U.S. national,” in direct contradiction to 48 C.F.R. 702.170-16, be expressly reversed, for purposes of analysis of the present case and/or precedent? C. Did the trial court abuse its discretion by denying Mr. Shekoyan’s Motion to File a Motion for Summary Judgment, Based on Newly Acquired Evidence, where Shekoyan had located a material witness in Moscow, who was previously unavailable? D. Did the trial court err, as a matter of law, by granting summary judgment to Sibley on Shekoyan’s False Claims Act claims because Shekoyan reported suspected misuse of government funds to his supervisors, and not to the government, contradicting his own previous, published decision upholding the claim based upon the statute and precedent? E. Did the trial court abuse its discretion by refusing to listen to a short tape recording or to read a 37-page transcript of the tape recording, to properly consider Shekoyan’s Motion for Rule 11 Sanctions against Sibley’s attorneys where the tape recording demonstrated that Sibley’s attorneys procured, relied upon, and refused to withdraw perjured testimony for the purpose of falsely accusing Mr. Shekoyan and his counsel of lying to the Court? F. Did the trial court abuse its discretion by dismissing, without prejudice, Shekoyan’s pendent D.C. claims? STATUTES AND REGULATIONS
STATEMENT OF THE CASE
1. NOTICE OF APPEAL
The U. S. District Court for the District of Columbia issued a final order, disposing of all parties’ claims, on March 19, 2004, Shekoyan v. Sibley, 309 F. Supp. 2d 9 (D.D.C. 2004). Appellant Shekoyan timely filed his Notice of Appeal on April 4, 2004. 2. COURT OF APPEALS DECISION
Sibley filed a Motion for Summary Affirmance with the Court of Appeals, with a copy of the complete District Court record. Shekoyan filed his Opposition on June 1, 2004 with references to the record, as filed and Bates stamped by Sibley. On August 24, 2004, this Court denied Sibley’s Motion for Summary Affirmance.
STATEMENT OF THE FACTS The facts underlying Mr. Shekoyan’s causes of action are detailed in Plaintiff’s Second Supplemental Statement of Undisputed Material Facts [“Facts,” JA 937, 1064; see also “S. Facts,” JA 325 and 2d S. Facts, JA 647], but are briefly stated herein. Sibley, a U.S. corporation headquartered in Washington, D.C., was awarded a contract with the U.S. government, the United States Agency for International Development (USAID), a division of the Department of State, to implement the “GEAR” (Georgia Accounting Reform) Project, primarily to train accountants in the Republic of Georgia, formerly part of the Soviet Union. [Facts 3-4] Mr. Shekoyan, then a legal permanent resident of the United States, living in Washington, D.C. with his wife, also a legal permanent resident of the United States, responded to an advertisement in the Washington Post for a position as a Chief Financial Officer to work in Sibley’s Washington, D.C. headquarters. [Facts 1-4] Sibley did not hire Mr. Shekoyan for the advertised Chief Financial Officer position, but did hire him, with his first assignment as a Senior Training Advisor for the GEAR Project. [Facts 1-4]. Sibley promised Mr. Shekoyan that after the GEAR Project ended, it would assign him back to its D.C. headquarters. (Facts 8) Mr. Shekoyan is now a naturalized American citizen. [Facts 1] He was born in Armenia, of parents born in the Republic of Georgia. Armenia and Georgia are neighboring Republics, formerly of the Soviet Union. At the time of his employment with Sibley, from 1997 through 1999, Mr. Shekoyan was a legal permanent U.S. resident, waiting out his five-year legal residency requirement before he could apply for citizenship. [Facts 1-2; S. Facts 25-26] Mr. Shekoyan began his employment in Washington, D.C., at Sibley headquarters, where he worked and was trained for several weeks. [Facts 18] Sibley assigned Mr. Shekoyan to the Republic of Georgia to implement the GEAR Project, on behalf of the U.S. government. [Facts 16, 20, 28, 29] While Mr. Shekoyan was stationed in the Republic of Georgia, his wife remained in their Washington, D.C. home. [Facts 18- 19] Sibley deducted U.S. and Washington, D.C. income taxes from Mr. Shekoyan’s paychecks and sent them to his D.C. residence and/or his D.C. bank. [Facts 22] Mr. Shekoyan was a U.S. national, pursuant to a USAID regulation, 48 C.F.R. § 702.170-16: “U.S. national” (‘USN’) is “an individual who is a U.S. citizen or a non-U.S. citizen lawfully admitted for permanent residence in the United States.” USAID and Sibley specifically classified Mr. Shekoyan as a “U.S. national,” rather than as a “third country national (or Armenian)” throughout his employment with Sibley. [Facts 28] Mr. Shekoyan performed the duties of every “U.S. national” position on the GEAR Project and his work was highly praised. [Facts 39-42] In mid-June of 1999, once Jack Reynolds joined the project as the Project Manager, or “Chief of Party” [Facts 52], Reynolds created a hostile work environment for Mr. Shekoyan, on the basis of his national origin. [Facts 53- 58, 65, 67-71, 77-80, 90] Jack Reynolds repeatedly told Mr. Shekoyan and other persons that Mr. Shekoyan was not a "real" American. [Facts 54] Reynolds repeatedly mocked Mr. Shekoyan’s accent [Facts 54] and made derogatory comments about people from the former Soviet Union, particularly Georgians. [Facts 55] Reynolds treated Mr. Shekoyan with extreme disrespect and denied him resources available to other employees to complete their work. [Facts 58] Reynolds also attempted to alienate Mr. Shekoyan from his co- workers. [Facts 58] Mr. Shekoyan repeatedly informed Sibley officials in D.C. headquarters that Reynolds was harassing him. [Facts 68, 69, 71] Mr. Shekoyan also reported his concerns that USAID resources were being used by Sibley employees/contractors for their own personal and/or business purposes. [Facts 72-74] In response, Sibley’s Vice President told Mr. Shekoyan not to “make too much noise” (Facts 72) and to work the problems out locally, since headquarters was busy getting the project extended to receive additional funding from USAID. [Facts 71] Immediately after receiving approval from USAID to extend the project, in October of 1999, Sibley fired Mr. Shekoyan and refused to provide him with a reference. [Facts 76] Sibley’s President, Donna Sibley told officials at USAID, in writing, that Mr. Shekoyan was terminated for being insubordinate to Jack Reynolds, based only on the word of Jack Reynolds, which was vehemently disputed by Mr. Shekoyan and documentation submitted to Sibley officials by Mr. Shekoyan. [Facts 76-77, 82-83, 90-96] In contrast, in its Motion to Dismiss, Sibley claimed that Mr. Shekoyan was not terminated at all, but that his contract simply expired. Since his termination from Sibley, Mr. Shekoyan has been unable to secure employment in his field [Facts 101-103], despite a Ph.D in Finance and his experience with World Bank, finance, and accounting internationally. [Facts 37] Mr. Shekoyan is currently employed as a cashier at Safeway to help support his family, including his wife and young son. [Facts 105] SUMMARY OF ARGUMENT
The trial court’s decision dismissal of Mr. Shekoyan’s Title VII claims on jurisdictional grounds, indeed, leaves him as a “man without a country.” Sibley employees were all granted diplomatic immunity, and therefore could not be sued in the Republic of Georgia. If Mr. Shekoyan cannot have his claims heard in a court in the United States, then his contract with Sibley was completely meaningless and unenforceable anywhere in the world. Certainly, neither the law nor policy considerations can support such an unjust result. U.S. law protects U.S. nationals abroad, based on “nationality” jurisdiction. Mr. Shekoyan was a U.S. national during his employment with Sibley and was therefore protected by U.S. law while assigned abroad. Title VII coverage can also be asserted based upon “territorial jurisdiction,” even without consideration of the nationality of the parties. Mr. Shekoyan was also a U.S. diplomat, pursuant to the Vienna Convention of 1961, Article 3(e). His worksite was a mission, or territory, covered by U.S. law. Id. Mr. Shekoyan is additionally entitled to Title VII protection because Sibley committed its most severe acts of discrimination and retaliation in the U.S, including Shekoyan’s termination, by letter sent to Mr. Shekoyan from Sibley’s Washington, D.C. headquarters to his home address in Washington, D.C. Furthermore, the “center of gravity of the employment relationship” was the U.S. Sibley violated the False Claims Act (FCA), or “Whistleblower” Act, by terminating Plaintiff after he reported to Sibley suspected misappropriation of U.S. government funds by his immediate supervisor, Jack Reynolds, and other employees and/or contractors of Sibley. It is not necessary that Mr. Shekoyan have conclusively determined that Sibley committed fraud, or that he reported the suspected fraud to a government agent, in order to establish a claim under the FCA. It is enough that Mr. Shekoyan reported suspected fraud to his supervisors and that his supervisors had reason to believe that Mr. Shekoyan’s allegations might lead to a complaint to a government official. The trial judge abused his discretion by refusing to hear, or read the transcript of, the undisputed, determinative evidence supporting Shekoyan’s motion for Rule 11 sanctions against Sibley’s attorneys. The evidence compels sanctions against Sibley’s attorneys. The trial judge abused his discretion by dismissing Mr. Shekoyan’s pendent D.C. claims, forcing him to litigate in D.C. Superior Court, after four years in Federal Court. Judicial economy and justice compelled continued jurisdiction over these claims. ARGUMENT I. THE TRIAL COURT ERRED BY DISMISSING MR. SHEKOYAN’S TITLE VII CLAIMS
A. Standard of Review for Dismissal of a Claim An appellate Court reviews a trial court’s dismissal of a claim, under Fed. R. Civ. Proc. 12(b) (6), de novo. Trans-America Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 847 (D.C. Cir. 2000). Pursuant to Rule 12(b)(6), a party is only entitled to dismissal of a claim if, assuming all facts in the most favorable light to the non-moving party, the moving party is entitled to a judgment as a matter of law. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI communications Corp., 16 F.3d 1271 (D.C. Cir. 1994). B. Overview: Shekoyan Sets National and International Precedent, under Title VII, With Respect To Employers Conducting Business Internationally
The national and international civil rights and jurisdictional issues involved in this case are compelling and precedent-setting, resting upon a delicate blend of international law and U. S. equal employment law. This case requires a thorough analysis, a reversal and a reconciliation of conflicting decisions of the District Court. Shekoyan is the first case to explicitly consider whether Title VII covers a “U.S. national” hired by an U.S. corporation in the U.S. and assigned to a foreign country. Shekoyan could well be the test case that follows the path of ARAMCO v. Bourselan, 499 U. S. 244 (1991) (overturned by Congressional amendment in 1991, 42 U.S.C. § 2000(e)-1(f)), to the Supreme Court and/or result in a new amendment to Title VII. ARAMCO held that Title VII did not apply to U.S. citizens assigned abroad by U.S. corporations. Congress amended Title VII, expressly overruling ARAMCO, and extended coverage to U.S. citizens assigned abroad by U.S. companies. Congress adopted the position advocated by the U.S. Equal Employment Opportunity Commission, and other legal commentators, urging that Title VII jurisdiction be asserted when the U.S. has the authority to do so, either based upon “nationality jurisdiction” or “territoriality.” EEOC Policy Guidance No. 915.002, CCH Employment Practices Guide (EPG) 6866, Enforcement Guidance on Application of Title VII and the Americans with Disabilities Act to Conduct Overseas and to Foreign Employers Discriminating in the United States; EEOC Decision 90-1, CCH EPG 6875, Title VII Covers Military Contractor's Employment of Americans Overseas; Street, Lairold, Korean Air Lines: The Future Interpretation of "Executive" and "Engage" in Friendship, Commerce and Navigation Treaties, 14 Hastings Int'l. & Comp. L. Rev. 93 (1990); Street, Lairold, Application of U.S. Fair Employment Laws to Transnational Employers in the United States and Abroad, 19 NYU J. Int’l. Law and Politics, 357 (1987). Shekoyan is essentially the “stepchild” of the 1991 Civil Rights Act. It involves the overlooked class of persons who are U.S. nationals, but not yet U.S. citizens, assigned abroad by U.S. companies. There are few cases examining whether legal permanent U.S. residents assigned and/or applying for positions abroad are protected by U.S. anti- discrimination laws. These cases are neither identical on their facts nor consistent on the law. Torrico v. International Business Machines Corporation, 213 F. Supp. 2d 390 (S.D.N.Y. 2002) and 2004 U.S. Dist. LEXIS 3691 (S.D.N.Y. 2004) (Americans with Disabilities Act, “ADA” jurisdiction upheld where permanent legal resident of U.S. was assigned abroad by U. S. corporation for three years); Iwata v. Stryker Corporation, et al., 59 F. Supp. 2d 600 (N.D. Tex. 1999) (Title VII jurisdiction denied where legal permanent resident of U.S. was hired in U.S. for a job in Japan, relocated to Japan as a Japanese national, and was discriminated against in Japan by a Japanese subsidiary of the U.S. corporation); Hu v. Meagher & Flom LLP, 76 F. Supp. 2d 476 (S.D.N.Y. 1999) (Age Discrimination in Employment Act, “ADEA” jurisdiction denied where legal permanent U.S. resident was rejected, in the U.S., for several positions in both the U.S. and China and alleged discrimination regarding the position in China). Related cases have addressed the jurisdiction of U.S. employment discrimination statutes where some of the conduct took place in the United States and/or the position sought was in the U.S. See Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001) (Title VII jurisdiction established for U.S. legal resident, foreign national professor at a University in the United States who was sexually harassed, while abroad, by a colleague); Reyes-Goana v. NCGA, 250 F.3d 861 (4th Cir. 2001) (ADEA jurisdiction denied where Mexican national applied, in Mexico, for a position in the United States); Olvera- Morales v. Sterling Onions, 322 F. Supp. 2d 211, 221 (N.D.N.Y.) (Title VII jurisdiction established where Mexican national applied, in Mexico, for a position in the United States, and worked in the United States, but alleged sex discrimination in the job assignment). Shekoyan v. Sibley, 217 F. Supp. 2d 59 (D.D.C. 2002), has been cited in eleven other cases, the U.S. Code annotations for Title VII, the False Claims Act (FCA), a treatise on Employment Discrimination, and a treatise on Labor and Employment Law. Sheppard’s analysis of citations warns “Caution – possible negative treatment” and “Subsequent appellate history contains possible negative analysis.” Legal commentators have also questioned the holdings of Iwata v. Stryker Corporation, et al., 59 F. Supp. 2d 600 (N.D. Tex. 1999); Hu v. Meagher & Flom LLP, 76 F. Supp. 2d 476 (S.D.N.Y. 1999). Iwata and Huwere heavily relied upon by the District Court. 217 F. Supp. 2d at 65-69 [JA 116-120]; January 29, 2004 opinion, at 3-5 [JA 889-891]. The trial court’s dismissal of Mr. Shekoyan’s Title VII claims truly leaves him as a “man without a country.” If U.S. courts will not hear Mr. Shekoyan’s claims, then his contract with Sibley was completely meaningless – null and void – as unenforceable in any court in the world. Certainly, neither the law nor policy considerations can support such an unjust result. There are two doctrines by which the United States may assert jurisdiction over persons and/or corporate entities: “nationality” and “territoriality” jurisdiction. The facts in Shekoyan support Title VII jurisdiction based both on theories of nationality and territorial jurisdiction. C. The Trial Court’s August 19, 2002 Decision Erroneously Held that Mr. Shekoyan was not a “U.S. National”
At the time that he was employed by Sibley, Mr. Shekoyan was a U.S. national. USAID defines “a United States national” as “an individual who is a United States citizen or a non- United States citizen lawfully admitted for permanent residence in the United States.” 48 CFR 702.170-16. Without oral argument, evidence in support, or a request for clarification, the trial judge determined, as a matter of law, that Mr. Shekoyan was not a U.S. national because he had not yet applied for citizenship. 217 F. Supp. 2d at 66 [JA 116] Based upon this erroneous legal conclusion, the trial court held that Mr. Shekoyan was an “alien,” within the meaning of Title VII, and therefore exempt from coverage. [Id.] The trial court therefore avoided deciding the issue placed squarely before it: whether a U.S. national, like a U.S. citizen, is covered by Title VII when assigned abroad by a U.S. corporation. Because the plaintiff is an alien, the court need not address the issue of Title VII’s applicability to non-citizen United States nationals who are employed abroad. (Emphasis added)
217 F. Supp. 2d at 66, fn. 7 [JA 116].
After discovery, Sibley admitted that Mr. Shekoyan was a “U.S. national” during his employment with Sibley, citing Sibley documents and the controlling USAID regulation, 48 CFR 702.170-16. [JA 731, fn. 3, 737-738, 747, 882, 912-913] This now undisputed fact directly contradicts the trial court’s August 19, 2002 holding that Mr. Shekoyan was not a U. S. national. Mr. Shekoyan filed a Motion to Amend the court’s decision to reflect that he was a U.S. national and to restore his Title VII claim. [JA 598, 615-623] In its January 29, 2004 opinion, the trial court denied Mr. Shekoyan’s motion. Despite its complete reliance on Title VII’s alien exemption provision to dispose of Mr. Shekoyan’s Title VII claim, the court failed to correct its erroneous August 19, 2002 legal definition of a U.S. national or to acknowledge that Mr. Shekoyan was, in fact, a U.S. national. The court acknowledged only that “some of this newly submitted evidence may raise a colorable claim that the plaintiff ‘owe[d] a permanent allegiance to the United States’ during the course of his employment with defendant, see 8 U.S.C. § 1101(a)(22)…,” but continued to hold whether Mr. Shekoyan was a U.S. national or an alien was “of no moment” -- or irrelevant. [JA 892] On January 29, 2004, the trial court did what it had avoided doing on August 19, 2002. It became the only known court to squarely decide whether a U.S. national, assigned abroad by a U.S. corporation, is covered by Title VII, as are U.S. citizens, holding: ... VII’s extraterritorial scope only extends to United States citizens.” [JA 892] The trial court’s August 19, 2002 decision defining “U.S. national” is patently wrong. The decision must be reversed, in order to end the perpetuation of this error of law, particularly at a time in international history when one’s nationality may determine residency, constitutional protections, criminal prosecution, the ability to work, the conditions under which one must work, and possibly even life and death. D. The 1991 Civil Rights Act Amended Title VII to Include U.S. Citizens Assigned Abroad by U.S. Employers
1. The History of the 1991 Civil Rights Act
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. In 1991, the Supreme Court decided that Title VII only applied to persons working within the geographic borders of the United States. ARAMCO v. Bourselan, 499 U.S. 244. In direct response to ARAMCO, Congress passed the 1991 Civil Rights Act, 42 U.S.C. § 2000e-1(f), amending Title VII to cover U.S. citizens working for U.S. companies abroad. Congress had always acknowledged that Title VII is inapplicable to “an employer with respect to the employment of aliens outside any State.” 42 U.S.C. § 2000e-1(a). The term ''alien'' means any person not a citizen or national of the U.S.” 8 U.S.C. §§ 1101(3), Chapter 12. (Emphasis added) Title VII contains no provision that excludes Mr. Shekoyan from coverage. As a U.S. national, Mr. Shekoyan does not fit within the alien exemption. The court in Atgun v. Boeing, 1990 U.S. Dist. LEXIS 11845, *9 (W.D. Wash. 1990) recognized the intent of this provision, citing its legislative history. The intent of the [alien] exemption is to remove conflicts of law which might otherwise exist between the U.S. and a foreign nation in the employment of aliens outside the U.S. by an American enterprise.
Civil Rights: Hearing on H.R. 7152 before the House Committee on the Judiciary, 88th Cong. 1st Sess. 2303 (1963). Congress intended to extend Title VII coverage to all persons legitimately within U.S. jurisdiction. Where there is no conflict of law, the U.S. may assert nationality jurisdiction over its own nationals. Justice and logic require that U.S. law be asserted on behalf of Mr. Shekoyan. 2. Title VII Precedent Upholds the “Spirit” over the “Letter” of the Law
“[A] thing may be within the letter of the statute, and yet not within the statute, because not within its spirit....” United Steelworkers of America v. Weber, 443 U.S. 193, 201 (1979); Holy Trinity Church v. U.S., 143 U.S. 457, 459 (1892). Public policy considerations compel extending Title VII to Shekoyan. Civil rights law should be construed liberally to include, rather than to exclude, persons from coverage to achieve the statutory goal of equal opportunity. Hackett v. McGuire Bros., Inc., 445 F.2d 442, 3 EPD 8,276 (3d Cir. 1971); McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879, 885 (1995). The enforcement of U.S. anti-discrimination laws is particularly compelling where the employer is a U.S. contractor. EEOC Decision 90-1, CCH EPG 6875, Title VII Covers Military Contractor's Employment of Americans Overseas. Executive Order 11246 specifically prohibits employment discrimination by federal contractors, even with respect to employment abroad, where the employee was recruited and/or hired in the United States, irrespective of citizenship or nationality. See Section I, H. Sibley should not be able to negotiate multi-million dollar deals in U.S. government contracts in the U.S., advertise for employment in the U.S., for a position in the U.S., and avail itself of U.S. courts and laws, and then selectively escape the U.S.’s equal employment laws. To allow Sibley to now claim that the employee that it sent abroad to implement a joint mission with the U.S. government, as a “U.S. national” and even a U.S. diplomat, is not entitled to the protection of U.S. law because he was assigned abroad, would absolutely thwart the spirit of the 1991 Civil Rights Act, if not the letter of the law.
E. Mr. Shekoyan is Entitled to Title VII Protection Based upon “Nationality” Jurisdiction
1. “Nationality” Jurisdiction Doctrine Defined
Under the doctrine of nationality jurisdiction, a country may assert jurisdiction over its nationals outside of the nation’s borders to wherever these subjects may be in the world. … although resident abroad, the petitioner remained subject to the taxing power of the United States…. For disobedience to its laws through conduct abroad he was subject to punishment in the courts of the United States…. The law of Nations does not prevent a State from exercising jurisdiction over its subjects traveling or residing abroad, since they remain under its personal supremacy.
Blackmer v. United States, 284 U.S. 421, 437-438 (1932), reiterated in Steele v. Bullova Watch Co., 344 U.S. 280, 255-256 (1953). Although there is generally a presumption that Congress only intended jurisdiction within its own territorial borders, the applied presumption may be weak, strong, or completely discarded, depending on the circumstances. Justice Thurgood Marshall stated, in his vehement dissent in ARAMCO v. Bourselan: Because petitioners advance a construction of Title VII that would extend its extraterritorial reach only to United States nationals, it is the weak presumption of Foley Brothers, not the strict clear-statement rule of Benz and McCulloch, that should govern our inquiry here. Under Foley Brothers, a court is not free to invoke the presumption against extraterritoriality until it has exhausted all available indicia of Congress' intent on this subject. Once these indicia are consulted and given effect in this case, I believe there can be no question that Congress intended Title VII to protect United States citizens from discrimination by United States employers abroad.
499 U.S. at 278 (Marshall, dissenting).
Congress agreed with Justice Marshall, amending Title VII to include U.S. citizens assigned abroad by U.S. companies. 42 U.S.C. § 2000(e)-1(f). The U.S. District Court for the Southern District of New York echoed the sentiments of Justice Marshall and quoted this Circuit’s controlling decision in Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C. Cir. 1993): … the presumption against extraterritoriality does not ordinarily apply where “the failure to extend the scope of the statute to a foreign setting will result in adverse effects within the United States,” or where “the conduct regulated by the government occurs within the United States.”
Torrico v. International Business Machines Corporation, 213 F. Supp. 2d at 397. In 1993, this Circuit held that where the interests of the U.S. will be affected by the extraterritorial application of a statute and the application of the U.S. statute will not cause any conflict with another country, the presumption does not apply. Massey, 986 F.2d at 531. In Massey, this Court refused to apply a presumption against extraterritoriality to the National Environmental Policy Act (NEPA), where a non-profit agency sought to evade the Act’s requirement to prepare an environmental impact statement (EIS) before it incinerated food wastes in Antarctica. Mr. Shekoyan’s home, wife, finances and legal obligations, including paying taxes, were all in the United States during his employment with Sibley. Sibley was a U.S. government contractor, located in Washington, D.C., earning most of its profits from the U.S. government – American taxpayers. Sibley’s violations of Title VII resulted in substantial adverse affects in the United States. Sibley negotiated these contracts with U.S. government officials, ranging in amounts from nearly one million ($1,000,000) to four million ($4,000,000) per year, financed by American taxpayers. The GEAR Project was not an independent operation abroad. Sibley officials in U.S. headquarters established the practices and policies with respect to employment discrimination were responsible for enforcing those policies. Mr. Shekoyan received unemployment benefits in the U.S. The U.S. lost tax income as a result of Mr. Shekoyan’s lost salary. Mr. Shekoyan and his family continue to suffer financial hardship, residing in the U.S. Since the interests of the U.S. are clearly affected by the assertion of Title VII jurisdiction over Sibley, Massey mandates that no presumption against the territorial application of Title VII be applied in Shekoyan.
2. U.S. Law Applies to U.S. Nationals
U.S. nationals are entitled to certain rights and privileges afforded U.S. citizens. Title VII applies to non-U.S. citizens “domiciled or residing in” the U.S., as it does to citizens. Espinoza v. Farah Manufacturing Co., 414 U.S. at 86, 95 (1973); accord, Mota, 261 F.3d at 524-525. Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State [or the Federal government] bear a heavy burden when it deprives them of employment opportunities.
O’Loughlin v. The Pritchard Corporation, 972 F. Supp. 1352, 1364 (D. Kan. 1997), quoting Application of Griffiths, 413 U.S. 717 (1973). If a legal U.S. resident is deemed a U.S. national, he/she may avoid deportation, even if convicted of a crime. Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001); U.S. v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi, 543 F.2d 637 (8th Cir. 1976); Oliver v. INS, 517 F.2d 426, 428 (2d Cir. 1975). U.S. nationals may participate in judicial or administrative proceedings abroad. 8 U.S.C. § 1502. U.S. nationals also travel into and out of the U.S., as would a U.S. citizen, as opposed to foreign nationals. 8 U.S.C. 1503(a) and (b). There is ample legal justification for treating a U.S. national like a U.S. citizen when assigned abroad by a U.S. employer.
F. Mr. Shekoyan is Entitled to Title VII Protection Based upon “Territoriality”
1. “Territoriality” Jurisdiction Defined
Under the doctrine of territorial jurisdiction, the U.S. may assert jurisdiction over any person within its borders, whether a U.S. or foreign national. Espinoza, 414 U.S. at 95. 2. Sibley Concedes that U.S. Law Applies to its Employees Abroad
In its Motion for Summary Judgment [JA 250-261], Sibley specifically conceded that D.C. law – not the law of the Republic of Georgia -- controls the employment contract between Mr. Shekoyan and Sibley, since the contract was negotiated and executed in Washington. D.C. Furthermore, Sibley’s contracts with employees and contractors hired after Mr. Shekoyan’s termination demonstrate its own desire that Washington, D.C. law govern its contracts with persons sent to Georgia on the GEAR project: This Agreement shall be governed in all respects by the substantive laws of the District of Columbia, United States, notwithstanding any applicable conflict of laws. The parties agree to submit all disputes regarding this Agreement to a Court sitting in D.C. and agree to waive jurisdictional or venue objections to such Court adjudicating such dispute. …
[Facts 30, JA 337-338] Even absent a contract specifying the controlling law of the employment relationship, disputes arising from employment are controlled by U.S. law where the contract was negotiated in the U.S., even if the injury occurred abroad. Neely v. Club Med Sales, Inc., D. C. Civ. No. 91-cv-07416. Having required that employment disputes regarding work performed abroad be adjudicated pursuant to U.S. law, Sibley should not be able to escape the laws of the U.S. with respect to its employment contract with Mr. Shekoyan, also executed in Washington, D.C. Sibley cannot have it both ways. 3. Mr. Shekoyan was Protected by Title VII, as a U.S. Diplomat, working on U.S. Territory
a) As U.S. Diplomat, Mr. Shekoyan was on “U.S. Soil” while Working for Sibley Abroad
While working for Sibley abroad, Mr. Shekoyan was a U.S. diplomat, pursuant to the Vienna Convention of 1961, 23 U.S.T. 3227, Article 3(e). [JA 611-612, 915-922] The concept of diplomatic immunity is that the U.S. diplomat, though physically in a foreign country, always has U.S. soil under his/her feet, so to speak. Mr. Shekoyan’s “Service Card,” administered by the Ministry of Foreign Affairs of Georgia Diplomatic Protocol Department, specifically granted him, as a representative of the “USA’s Agency for Assistance,” the “privileges and immunities provided for diplomatic representatives in accordance with the Vienna Convention on Diplomatic Relations of April 16, 1961.” [Facts 19, JA 334] This grant of immunity was appropriate, under the Vienna Convention, Articles 29, 30, 31, 32, 33, 34 and 37. [JA 611-612, 915-922] Sibley sent Mr. Shekoyan to the Republic of Georgia. In concert with the U.S. government, to implement a mission of the U.S. government, the GEAR Project. A U.S. government representative sent to a foreign country to help develop the economic, cultural and scientific relations of the countries, is to be treated as if he/she is always on U. S. soil, subject only to U.S. laws. See Vienna Convention of 1961, generally, and particularly Article 3(e)). [JA 611-612, 915-922] USAID employees were also assigned to the Republic of Georgia. [JA 612] There can be no question that USAID would be answerable, under Title VII, for discriminatory acts against a USAID employee assigned to Georgia. Sibley, as a contractor hired by USAID to help it implement its U.S. mission, should also be answerable. There is no issue of extraterritoriality. As a U.S. diplomat, Mr. Shekoyan performed his work for Sibley while standing on U.S. “soil” or territory. b) Mr. Shekoyan’s Worksite was a U.S. Territory, or U.S. Mission
Mr. Shekoyan’s workplace in Georgia was, as a diplomatic mission of the U.S., within the territory of the U.S., pursuant to the Vienna Convention of 1961, Articles 20, 21, 22 and 23. [JA 611-612, 915-922] The physical premises used to implement the U.S. mission are not considered territories of the host country, but are, rather, U.S. territories. Non-U.S. nationals are not permitted on these premises without specific authorization. All of the discriminatory acts, therefore, took place within U.S. territory. Again, there is, then, no issue of extraterritoriality. Title VII must apply to this case on the basis of territorial jurisdiction. 4. Title VII Applies to Shekoyan because the Discriminatory Acts Took Place in the U.S.
a) Title VII Covers Discriminatory Acts Committed in the U.S.
Recognizing that employment may transcend state and national boundaries, courts have held that a jurisdiction may assert its employment discrimination laws over an employer if one or more of the discriminatory acts took place within that jurisdiction. See Mota, 261 F. 3d at 524-525 (a permanent legal U.S. resident, employed as a University professor, could sue under Title VII where various acts of sexual harassment took place both in and out of the U.S.); Quarles v. General Investment & Development Co., 2003 U.S. Dist. LEXIS 3962, 92 Fair Empl. Prac. Cas. (BNA) 623 (D.D.C. 2003) (Judge Reggie B. Walton, the trial judge in this case, determined that employment outside of D.C. is subject to the D.C. Human Rights Act if the discriminatory acts occurred within D.C.).
b) The Trial Court Determined that Mr. Shekoyan was Terminated in the U.S.
In its August 19, 2002 decision, the trial court upheld Mr. Shekoyan’s False Claims Act claim, extending U.S. law to the Shekoyan-Sibley employment relationship, based on its finding that Mr. Shekoyan’s termination took place in Washington, D.C. The termination of the plaintiff’s employment appears to have been initiated in the U.S. [Washington, D.C.], as evidenced by the termination letter from the defendant’s Chief Financial Officer who works for the defendant’s main office in Washington, D.C. See Comp. Ex. D. Shekoyan, 217 F. Supp. 2d at 73, fn. 12. [JA 126] In the very same opinion, however, the court refused to extend U.S. law to the same employment relationship, with respect to Title VII, holding that the U.S. had no jurisdiction because the employment relationship existed outside of the U.S. [217 F. Supp. 2d at 67-68, JA 120-121] and because the alleged discrimination occurred abroad. 217 F. Supp. 2d at 72. [JA 126] Clearly, if Mr. Shekoyan was terminated in Washington, D.C. for purposes of the FCA, then he was also terminated in Washington, D.C. for purposes of Title VII. The August 19, 2002 decision is internally inconsistent and must be reversed. Where an employer ratifies wrongful conduct by an employee toward another employee, the employer has committed an additional wrong against the injured employee and is liable for the conduct of the wrongdoer. Prunty v. Arkansas Freightways, 16 F.3d 649 (5th Cir. 1994). Even where a discriminatory act is not initiated in the U.S., the employer’s ratification of the wrongful conduct, in the U.S. merits application of U.S. laws. Id. Mr. Shekoyan repeatedly informed Sibley officials in its U.S. headquarters about the national origin harassment of Reynolds’ harassment. (Facts 68) Sibley’s Vice President, Gary Vanderhoof, told Mr. Shekoyan to work the problems out locally with Reynolds and said that headquarters was busy getting the project extended to receive additional funding from USAID. (Facts 71) Sibley’s President, Donna Sibley, admitted that Sibley had no formal EEO procedure in place, and that a Sibley employee could only have made a discrimination complaint directly to her (Facts 71); yet, after Mr. Shekoyan reported the discrimination to Sibley’s Vice President, Donna Sibley refused to accept Mr. Shekoyan’s calls. (Id.) Sibley’s President clearly violated her duty to prevent prohibited employment discrimination in her company. Pennsylvania State Police v. Suders, __ U.S. __, 124 S. Ct. 2342 (2004); Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). After failing to investigate Mr. Shekoyan’s claims of disparate treatment and national origin harassment, Donna Sibley deferred to Jack Reynolds regarding his recommendation to terminate Mr. Shekoyan, on eleven days’ notice, after two years of exemplary service to her company. Donna Sibley, in the U.S., tolerated, ratified and supported the discriminatory actions of Jack Reynolds. Sibley is liable for their ratification. Like the plaintiff in Quarles v. General Investment & Development Co., 2003 U.S. Dist. LEXIS 3962 (D.D.C. 2003), Mr. Shekoyan originally applied for a position in Washington, D.C. (S. Facts 3) Mr. Shekoyan and his wife had moved to the U.S. from Armenia because they wanted to be U.S. citizens -- not to be sent next door to the country they had left. Sibley rejected Mr. Shekoyan for the position as Sibley’s Chief Financial Officer. Instead, Sibley sent Mr. Shekoyan to the underdeveloped Republic of Georgia, providing him with a contract and other documentation that led him to believe that the employment would be regulated by U.S. laws, while he was assigned abroad. Sibley promised Mr. Shekoyan that after satisfactory performance on the GEAR Project, it would employ him at its U.S. headquarters. (Id.) Sibley officials in the U.S. made the decision, not only to terminate Mr. Shekoyan from the GEAR Project, but not to retain him for any position anywhere within Sibley. The position of Chief Financial Officer, in the U.S., once again became vacant when David Bose left Sibley in May of 2002. (S. Facts 98) Mr. Shekoyan was still unemployed at that time, but Sibley never called Mr. Shekoyan for consideration for this or any other position. After Mr. Shekoyan’s termination in October of 1999, Sibley advertised to recruit applicants for various positions for which Mr. Shekoyan was well qualified; however, Sibley has never offered him a position in the five years since his termination. (Id.) c) Title VII Controls where any of the Alleged Discrimination Occurred in the U.S.
Where some of the alleged discriminatory acts took place in the U.S., U.S. jurisdiction is appropriate. Mota, 261 F.3d at 524-525. Even if Mr. Shekoyan’s termination/non-renewal were the only discriminatory act that occurred in the U.S., the entire case is subject to Title VII. D.C. law is instructive on this point. There must be “an adequate and appropriate forum to assert “jurisdiction over the whole case.” Blake v. Professional Travel Corp., 786 A.2d at 574 (D.C. App. 2001); see also Quarles, 2003 U.S. Dist. LEXIS 3962; Martin v. Holiday Universal, Inc. No. JH-90-1188, 1990 WL 209266 at *4, 1990 U.S. Dist. LEXIS 18102.
5. Mr. Shekoyan is Protected by Title VII because the “Center of Gravity of the Employment Relationship” was in the U.S.
a) The Trial Court’s January 26, 2004 Decision Failed to Apply Current Case Law, Most Notably, Torrico
In his Motion to Amend the Court’s August 19, 2002 Decision, Mr. Shekoyan requested that the trial court amend its August 19, 2002 decision to incorporate case law decided after Defendant’s Motion to Dismiss and the response filings were filed. R. 001538-001539, 001563-001576. In its August 19, 2002 decision, the trial court relied upon Iwata v. Stryker Corporation, et al., 59 F. Supp. 2d 600 (N.D. Tex. 1999) and Hu v. Meagher & Flom LLP, 76 F. Supp. 2d 476 (S.D.N.Y. 1999); however, neither case is controlling in Shekoyan, since they are district court opinions from foreign jurisdictions. The analyses in Hu and Iwata are “oversimplif[ied].” Torrico, 213 F. Supp. 2d at 405. Their precedential value and reasoning have been questioned, criticized and limited, if not overruled by Torrico (in Hu). In addition, Shekoyan is distinguished from Iwata and Hu on its facts. Three years after the Federal District Court for the Southern District of New York decided Hu, the same court again faced the question of whether Title VII extends to discrimination against a permanent legal U.S. resident, assigned abroad by a U.S. company. Torrico, 213 F. Supp. 390. This time, the court did not apply the rigid, mechanical “letter of the law.” Torrico adopted an inclusive and comprehensive analysis, holding that where the “center of gravity” of the employment relationship is in the U.S., Title VII applies to that employment relationship, based on territoriality jurisdiction, even without consideration of the nationality of the parties or where the work is performed, due to other contacts with the United States that compel jurisdiction. 213 F. Supp. 2d at 401. See also Olvera-Morales, 322 F. Supp. 2d 211 (Mexican national sued U.S. company for sex discrimination in job assignment where it recruited and hired in Mexico for employment in the U.S.). b) Torrico Adopted the “Center of Gravity of the Employment Relationship” Approach
Torrico examined the “oversimplif[ied]” analysis of Iwata and Hu: Most of the cases considering questions involving the extraterritorial application of the federal antidiscrimination laws, including most of those cited by IBM, seem to assume that an employee has a single place of employment – an assumption that cannot always be made in a global economy with a highly mobile workforce…. Increasingly, “actions taken by a business in one nation impact the conduct of businesses and work activities performed in other locations,” and that “even job actions may no longer be confined to a single nation.”
213 F. Supp. 2d at 405.
Torrico applied the “center of gravity” analysis to the employment. Whether Torrico was “employed” abroad or was employed in the U.S. and merely temporarily deployed to Chile is a question of fact which cannot be answered simply by noting that he spent the bulk of his time in Chile for three years leading up to the alleged discriminatory termination. …. 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 based on the totality of the circumstances.
Id. at 403. Torrico held that the “center of gravity” of the employment relationship was based on the following factors: 1) IBM informed INS that Torrico was temporarily assigned to Chile and would return to the U.S. when his assignment in Chile ended; 2) IBM continued to treat Torrico as a U.S. employee during the term of his assignment in Chile, rather than as an employee of a foreign affiliate; 3) “the expatriate and the U.S. corporation view the expatriate as an employee of the U.S. corporation, and because the expatriate is expected to return to the U.S. while continuing in the employ of the U.S. corporation, the nexus between the employee and the corporation is close;” 4) the employment contract was negotiated in the U.S.; 5) the employment contract was executed in the U.S.; 6) Torrico continued to be paid by IBM US in New York while stationed abroad; and 7) Torrico’s activities, functions and reporting duties continued to be controlled by IBM US in New York. Id. at 404-405. c) The Center of Gravity of the Shekoyan-Sibley Employment Relationship was in the U. S.
The trial court determined, as a matter of fact, that the center of gravity of the employment relationship between Mr. Shekoyan and Sibley was not in the U.S.; however, this finding of fact is wholly contradicted by the undisputed evidence of record. Shekoyan does not fall within the category of cases classified as connected to the U.S. “solely in that employment decisions were made and the training occurred for such jobs in the U.S.,” as stated by the trial court. 217 F. Supp. 2d at 68 [JA 120]. The trial court omitted material facts from its decision that demonstrate that Mr. Shekoyan more than met the requirements of Torrico. The “center of gravity of the employment relationship” between Mr. Shekoyan and Sibley was the U.S: 1) Sibley is an U.S. corporation, headquartered in Washington, D.C.; 2) Sibley was a U.S. government contractor, fulfilling an U.S. government contract abroad; 3) Mr. Shekoyan was fulfilling a U.S. government contract, in concert with USAID officials, acting as an agent, or tool, of the U.S. government; 4) Sibley advertised, in Washington, D.C., for the position of Chief Financial Officer, for its headquarters in Washington, D.C.; 5) Mr. Shekoyan applied for the advertised position of Chief Financial Officer, for its headquarters in the U.S.; 6) Sibley rejected Mr. Shekoyan for the position in the U.S., for which he applied, but instead, offered him a temporary assignment in the Republic of Georgia, with the promise of a position in the U.S. when he completed that assignment; 7) Sibley negotiated with Mr. Shekoyan and executed his employment contract in the U.S.; 8) Sibley trained Mr. Shekoyan in the U.S.; 9) Sibley negotiated and contracted with the U.S. government for the GEAR Project in the U.S.; 10) Sibley officials made all major decisions regarding the GEAR Project in the U.S.; 11) Sibley officials made all employment decisions regarding U.S. nationals assigned to the GEAR Project, including Mr. Shekoyan, from the U.S.; 12) Sibley officials in the U.S., supervised the GEAR Project, by telephone, e-mail and facsimile, on a daily basis; 13) Sibley compensated, promoted, assigned duties, evaluated and terminated U.S. nationals, including Plaintiff, in the U.S.; 14) Sibley maintained all personnel records of U.S. nationals in its U.S. headquarters, including those of Mr. Shekoyan; 15) Sibley calculated, issued, and mailed all payroll checks from its U.S. headquarters; 16) Sibley mailed Mr. Shekoyan’s payroll checks to his permanent residence in the U.S. and to his bank in the U.S.; 17) Mr. Shekoyan worked at Sibley headquarters in the U.S. for a few days in January of 1999; 18) Sibley deducted from Mr. Shekoyan’s paycheck U.S. federal taxes, U. S. social security taxes, Washington, D.C. taxes, Washington, D.C. unemployment compensation insurance deductions, deductions for a U.S. health care plan and a U.S. 401 (k) plan, and otherwise treated Mr. Shekoyan as a permanent resident of the U.S. and Washington, D.C., for the entire duration of his employment; 19) Mr. Shekoyan was a permanent legal resident of the U.S., awaiting his five years of permanent residency in order to apply for U.S. citizenship; 20) Sibley provided Mr. Shekoyan with an affidavit as part of his application to the INS to preserve his legal U.S. residency for the duration of his temporary assignment to the Republic of Georgia; 21) Mr. Shekoyan maintained his legal residency in the U.S. and was on per diem travel status by Sibley for the duration of his temporary assignment to the Republic of Georgia; 22) Mr. Shekoyan filed tax returns and paid U.S. and Washington, D.C. taxes, as would any U.S. citizen and resident of Washington, D.C., for the duration of his temporary assignment to the Republic of Georgia; 23) Sibley represented to Mr. Shekoyan and his wife, at the time of his hire, that it would assign him to a position in its Washington, D.C. headquarters upon his completion of his assignment on the GEAR Project in the Republic of Georgia; 24) Mr. Shekoyan reported the hostile work environment, on the basis of national origin, to Sibley officials in the U.S., and they failed to investigate or otherwise address his complaints, thus ratifying and maintaining the hostile work environment; 25) Sibley officials in the U.S. were responsible for enforcing Title VII with respect to its U.S. expatriate employees stationed abroad, but failed to provide any policy or procedure by which employees could report discrimination or by which such complaints would be investigated; 26) Sibley decided to terminate Mr. Shekoyan and issued Mr. Shekoyan’s termination notice from its U.S. headquarters; 27) Mr. Shekoyan’s termination was effected in the U.S by a letter of sent to Mr. Shekoyan’s permanent residence in the U. S.; and 28) Mr. Shekoyan received unemployment compensation after his termination from Sibley, in the U.S., based on his employment relationship with Sibley and Sibley’s deductions of D.C. unemployment compensation from his paychecks. The facts stated above overwhelmingly demonstrate that the “center of gravity” for the employment relationship between Mr. Shekoyan and Sibley was in the U.S. [JA 626-629] Based on the doctrine of territoriality, the U.S. should assert Title VII jurisdiction over the employment relationship. G. Shekoyan is Distinguished from Iwata
Sibley argued, in its Motion to Dismiss, that Mr. Shekoyan’s situation is like the plaintiff in Iwata; however, Iwata was a Japanese citizen and national who returned to his homeland, Japan, to work for a Japanese subsidiary of an American company. Had Iwata’s employment not been terminated in Japan, he would have remained employed by the Japanese company, in Japan, indefinitely. Iwata’s job duties had no connection with the U.S., nor did he expect to work for the same employer, or even a U.S. affiliate of his employer, at any point in the foreseeable future. The “center of gravity” of Iwata’s employment, then, was Japan. Unlike Iwata, Mr. Shekoyan did not relocate to a foreign country to accept the position with Sibley. Mr. Shekoyan was temporarily stationed in a foreign country for twenty-one months, like Torrico, who was stationed abroad for three years. Mr. Shekoyan was never a resident, citizen or “national” of the Republic of Georgia. Mr. Shekoyan never “returned to the U.S. to live as a resident alien,” as claimed by Sibley, because he never stopped being a permanent legal resident of the U.S. Mr. Shekoyan was, during his entire tenure with Sibley, a taxpaying legal U.S. resident. The Iwata court could have limited its decision to its facts, but, instead, it expanded its holding based on a misunderstanding of international law and the 1991 Civil Rights Act. Iwata, 59 F. Supp. 2d at 604, mistakenly concluded, as dicta: If Congress had intended for Title VII to include foreign nationals working outside of the United States, whether for foreign corporations or American subsidiaries, it certainly had the opportunity to do so. It is clear from the plain language of 42 U.S.C. § 2000e(f) and § 2000e-1 that Congress intentionally excluded individuals such as Plaintiff from the protections of Title VII.
The Iwata court failed to understand principles of international law that limit the authority of the U.S. abroad. Congress could not have asserted jurisdiction over foreign nationals working in their own countries. Neither the doctrine of nationality nor the doctrine of territoriality would permit such an interjection of U.S. laws into the economy, culture and labor pool of other nations. Iwata’s conclusion that Congress “had the opportunity” to include such persons if it had chosen to do so, is a fundamental error. Unfortunately, the Shekoyan decision perpetuates the error by quoting Iwata. 217 F. Supp. 2d at 66 and January 29, 2004 opinion, at 6 [JA 890-891] This error of law should be corrected rather than perpetuated. [JA 68-69, 630, 934-935] H. Hu is Inappropriate Precedent for Shekoyan 1. Analytical Problems with Hu The Hu court did not consider whether Hu was a U.S. national or whether it would have made any difference with respect to Title VII jurisdiction. The court compared Hu to Iwata, as similarly situated non-citizens who resided in the U.S. This is not accurate. Unlike Iwata, Hu was a permanent resident of the U.S. with a citizenship application pending at the time that he applied, in New York, to Skadden, Arp, Slate, Meagher and Flom, LLP (Skadden). Hu applied for available attorney positions, which included positions in both New York and China. Hu was rejected for all positions for which he applied, including in the U.S. and China. He never left the U.S. The Hu court’s decision to deny the plaintiff jurisdiction in the U.S. courts, on the eve of trial, left him with no forum in which his claims could be heard. Even if Chinese law similarly prohibits age discrimination, it is highly unlikely that Chinese courts would have -- or could have – asserted jurisdiction over the case. Indeed, if the holding of Quarles had been applied in Hu, Hu would have been permitted to try his case in the U.S. Quarles granted the plaintiff jurisdiction when she applied for several positions, one in D.C., within the jurisdiction of the D.C. Human Rights Act and another outside of D.C. 2003 U.S. Dist. LEXIS 3962. The U.S. permanent resident excluded from the opportunity to litigate his case in the U.S. may have no possible forum except a foreign country where he/she has never been and with which he/she has absolutely no connection. The Hu court’s decision left Hu as a “man without a country.” Mr. Shekoyan asks this Federal Circuit not to perpetuate “bad law” by adopting the Hu analysis, particularly since Hu has been limited, if not overruled, by the very court that decided it. Torrico, 213 F. Supp. 2d 390. 2. Shekoyan Facts Distinguished from Hu Aside from the troubling analysis of Hu, Shekoyan is distinguished from Hu on its facts. The facts of Shekoyan are far more compelling for a case of Title VII jurisdiction than are than the facts of Hu. If Hu had been hired for Skadden’s Chinese affiliate, he would have relocated to China with the expectation of permanence. Hu had no expectation of working for Skadden in the U.S. Hu would have been paid, supervised, evaluated, promoted/demoted/terminated by the Skadden office in China. Hu would have paid taxes, unemployment, health care, life insurance and other benefits administered by Chinese law in China. Hu would not have been imbued with diplomatic immunity, but would have been fully subject to the laws of China and no longer subject to U.S. law. This is the exact opposite of the fact pattern of Shekoyan, who was a U.S. diplomat, exempt from Georgian law, subject only to the laws of the U.S. while assigned to the Republic of Georgia. I. Title VII Should be Construed Consistently with Executive Order 11246, Prohibiting U. S. Contractors from Discriminating against Employees Fulfilling Government Contracts
Executive Order 11246 prohibits corporations that contract with the U.S. government from discriminating, on the basis of national origin, against employees that it hires to fulfill those contracts, even if those employees are not citizens of the U.S. government. Contractors shall not discriminate on the basis of race, color, religion, sex, or national origin when hiring or making employee assignments for work to be performed in the United States or abroad. Contractors are exempted from this obligation only when hiring persons outside the United States for work to be performed outside the U.S. (see 41 CFR 60-1.5(a)(3)). Therefore, a contractor hiring workers in the U.S. for either Federal of nonfederally connected work shall be in violation of Executive Order 11246, as amended, by refusing to employee or assign any person because of race, color, religion, sex, or national origin, regardless of the policies of the country where the work is to be performed or for whom the work will be performed. (Emphasis added)
41 CFR § 1.10.
Work outside the United States. Contracts and subcontracts are exempt from the requirements of the equal opportunity clause with regard to work performed outside the U.S. by employees who were not recruited within the United States. (Emphasis added)
41 CFR § 1.5(a)(3). Since Sibley contracted with USAID, a U.S. government agency, to provide services in the Republic of Georgia and hired Mr. Shekoyan, in the U.S., to assist in fulfilling that contract, Mr. Shekoyan’s employment falls squarely within the protection of Executive Order 11246. See also EEOC Decision 90-1, CCH EPG 6875, Title VII Covers Military Contractor's Employment of Americans Overseas (Title VII applied to U.S. government contractor employing U.S. citizens abroad). Where statutes can be reconciled, principles of statutory construction favor a consistent, rather than conflicting, interpretation. Mr. Shekoyan’s contract with Sibley specifically incorporated all of the terms of Sibley’s contract with the U.S. government, USAID, including Executive Order 11246. (S. Facts 13) There is no question that Executive Order 11246 protects Mr. Shekoyan from discrimination on the basis of national origin, although he is not a U.S. citizen. Mr. Shekoyan’s contract with Sibley specifically incorporated all of the federal regulations, policies and procedures applicable to its contract with USAID on the GEAR Project (Facts 13). Any violation of one of the applicable regulations, policies or procedures applicable to the USAID contract, including Executive Order 11246, was a direct violation of the contract. J. The U.S. Offers the Only Reasonable and Appropriate Forum for the Controversy between the Parties
The parties must be afforded a reasonable and appropriate forum for their litigation, including the “whole case.” Blake, 786 A.2d at 586. The only possible forum is the U.S., applying U.S. law. If Mr. Shekoyan’s discrimination complaint is not heard in the U.S., he has no forum in which to be heard. Even assuming that the Georgia has comparable laws to those in the U.S., Sibley’s officials and employees all have diplomatic immunity in Georgia. Georgia would therefore have no jurisdiction over the parties.
II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO SIBLEY ON MR. SHEKOYAN’S FALSE CLAIMS ACT CLAIMS
A. Standard of Review for Summary Judgment
An appellate Court reviews a grant of summary judgment de novo, applying the same standards as the district court. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) Pursuant to Fed. R. Civ. P. 56, a party is only entitled to summary judgment where the evidence in the record shows that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). Rule 56(c) requires that, for purposes of summary judgment, the evidence of the non-movant is to be believed and all justifiable inferences drawn in his/her favor. Id.; Pennsylvania State Police v. Suders, 124 S. Ct. 2342; Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148 (2000). B. The Trial Court’s March 19, 2004 Dismissal of Shekoyan’s False Claims Act Claim Violates Yesudian and its own August 19, 2002 Decision
The trial court’s August 19, 2002 Opinion relied upon this Court’s controlling case, Yesudian v. Howard University, 153 F.3d 731 (D.C. Cir. 1998). Mr. Shekoyan’s FCA claims are based on his reports to Sibley officials that his supervisor, Jack Reynolds, and some sub- contractors, were misappropriating U.S. government funds and resources (217 F. Supp. 2d at 72, JA 130-131); yet, in its March 19, 2004 Decision, the trial court contradicted itself by finding that the same allegations did not state a cause of action under the False Claims Act. 309 F. Supp. 2d at 20-31 [JA 1183-1196]. Both orders cannot stand. In its August 19, 2002 decision, the trial court followed this Court’s criteria in Yesudian, 153 F.3d 731, holding that the FCA covers an employee who reports suspected government fraud to his supervisor to uncover and prevent the continued fraud. 217 F. Supp. 2d at 73. In its March 19, 2004 decision, however, the court strayed from the controlling Yesudian criteria and relied on misplaced excerpts from other circuits, particularly the Fourth Circuit, to hold that Mr. Shekoyan was not protected under the FCA because he “simply made internal inquiries or complaints to his supervisors about his concerns ….” 309 F. Supp. 2d at 20 [JA 1195]. The trial court’s March 19, 2004 Order further purported to rely on Mr. Shekoyan’s testimony that he had not “concluded” that there was corruption at Sibley (id.); however, a “whistleblower” is not obligated to have conducted his own investigation and conclusively ascertain corruption before being protected by the FCA. Yesudian, 153 F.3d at 731. It is undisputed that Mr. Shekoyan, both orally and in writing, reported to Sibley officials “inappropriate transactions” and “violations” of U.S. government regulations on the GEAR Project, describing employees and contractors using government funds and resources for their own personal use and/or for their own separate, private companies. [Facts 72-76, JA 353-360] Sibley’s Vice President conveyed these reports to Sibley’s President, Donna Sibley, in writing. [Facts 72, 73, 74(L), 75, 76, 78, JA 353-361] Mr. Shekoyan asked Sibley Vice President, Gary Vanderhoof, whether he should report the suspected “violations” and “inappropriate transactions” with respect to federal funds and resources to USAID. [Facts 75, JA 359] Mr. Vanderhoof instructed him to “keep it quiet” [217 F. Supp. 2d at 72, JA 125-126], assuring Mr. Shekoyan that Sibley would correct any problems itself. (Facts 72 JA 353-354) Sibley was therefore on specific notice that Mr. Shekoyan was considering reporting his suspicions to the U.S. government. This Circuit’s criteria, as set forth in Yesudian, compel upholding Mr. Shekoyan’s FCA claims.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING SHEKOYAN’S MOTION TO FILE A MOTION FOR SUMMARY JUDGMENT, BASED ON NEWLY ACQUIRED EVIDENCE
A Court of Appeals reviews a decision of the trial court regarding modifications of the Court’ s schedule based upon whether the trial court abused its discretion. Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996). A party may amend pleadings, based on newly discovered evidence. Fed. R. Civ. P. 15. A court may allow even renewed motions for summary judgment, and renewed oppositions, to address newly discovered evidence. Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2 (D.D.C. 2004). The court sets and modifies its scheduling order, taking into account the needs and due diligence of the parties, the practicalities of obtaining certain evidence, the harm, surprise or unfairness to either party, and in the interests of justice. Id. A party can even request a new trial, or modification of a judgment already rendered, based on newly discovered evidence. Fed. R. Civ. P. 59 and 60. On February 3, 2004, the trial court denied Mr. Shekoyan’s Motion to File a Motion for Summary Judgment, Out of Time, Based on Newly Acquired Evidence. Mr. Shekoyan’s motion relied upon on the newly acquired declaration of George Adamia, an eyewitness to Jack Reynolds' harassment and discriminatory treatment of Mr. Shekoyan. Applying the relevant factors under Rule 59, Mr. Shekoyan should have been permitted to file his Motion for Summary Judgment. Mr. Shekoyan had listed Mr. Adamia as a witness and had exhausted all means available to him to locate Mr. Adamia and other former co- workers from the Republic of Georgia. Mr. Adamia currently lives in Moscow and had relocated several times since his employment with Sibley. [JA 896-897, 1016, 1139] In late 2003, Mr. Shekoyan happened upon a mutual acquaintance in D.C. who provided Mr. Shekoyan contacts leading to Mr. Adamia. [Id.] When Mr. Shekoyan filed his Motion to file a Motion for Summary Judgment [JA 1016], no date had been set for trial or oral argument. Sibley’s Motion for Summary Judgment had been pending for nine months. Sibley would not have been unduly prejudiced by the late filing. The Court’s schedule would not have been altered in any way. The “interests of justice” and uncovering the truth should be favored over artificial deadlines. Denying Mr. Shekoyan’s motion, the court simply stated, “plaintiff has already filed a motion to supplement his opposition to the defendant’s Motion for Summary Judgment with the declaration” and “defendant opposes this motion.” [JA 1151] Mr. Shekoyan’s motion to supplement his Opposition to Sibley’s Motion for Summary Judgment should, in no way, preclude him from using the same evidence as a basis for his own Motion for Summary Judgment. In addition, the trial court never did decide Mr. Shekoyan’s Motion to Supplement his Opposition to Defendant’s Motion for Summary Judgment. The only remaining stated basis for refusing to consider Mr. Shekoyan’s Motion for Summary Judgment was that Sibley “opposes the motion” [JA 1151] A court cannot deny a motion simply to please the other party. Such action evidences bias. There must at least be a rational basis for it, if not specific legal authority for the denial. The trial court provided neither. A Federal District Judge should not be permitted to arbitrarily play “ostrich” and pretend that a material witness has not been located and that his sworn statement does not exist. Having located one of his previously listed material eye-witnesses, Mr. Shekoyan could carry his burden of proving his allegations, by a preponderance of the evidence, particularly since Sibley had provided no evidence to rebut Mr. Shekoyan’s corroborated testimony. Mr. Shekoyan’s Motion for Summary Judgment should be admitted into the record and decided by the Court.
IV. THE TRIAL JUDGE ABUSED HIS DISCRETION, REFUSING TO CONSIDER EVIDENCE NECESSARY TO DECIDE MR. SHEKOYAN’S MOTION FOR RULE 11 SANCTIONS
A Court of Appeals reviews a decision of the Trial Court to consider evidence and make determinations of fact based upon whether the trial court abused its discretion. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 401 (1990). The trial judge abused his discretion by refusing to consider the undisputed, material evidence necessary to decide Mr. Shekoyan’s Motion for Rule 11 Sanctions [JA 774] against Sibley’s attorneys. The court’s February 28, 2004 Order denying Plaintiff’s Motion for Rule 11 Sanctions against Defendant for Filing a Frivolous Counterclaim and Motion, and Making False Representations to this Court [JA 1152] must be reversed. Mr. Shekoyan filed his motion for sanctions [JA 774] in response to Sibley’s Motion/Amended Motion to Strike Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment [JA 422, 499] Sibley claimed that Mr. Shekoyan and his counsel submitted falsified affidavits regarding the substance of a telephone conversation with a former Sibley official, David Bose, based on Bose’ affidavit drafted [JA 416], secured and submitted by Sibley’s attorneys, in support of its Motion to Strike and for Costs. In his affidavit, Bose swore that he never made certain statements to Mr. Shekoyan and his counsel [JA 416-419, discussed at JA 800-805, 869-871, 878-880]. Most notably, Bose swore that he did not admit that Mr. Shekoyan had reported Jack Reynolds’ discriminatory treatment to him. [JA 417] Sibley also asked the Court to force Mr. Shekoyan’s counsel to pay Sibley’s attorneys’ fees for 64 hours that they purportedly spent drafting Sibley’s Motion to Strike [JA 515-516, 583] – even though Sibley violated Local Rule 7.1(m), choosing to “surprise” opposing counsel, rather than discuss the motion before filing it, as required by the Rules). If Sibley’s Motion to Strike had been granted, Sibley’s dispositive motion would have been deemed unopposed, arguably requiring dismissal of Mr. Shekoyan’s entire case. In addition, Mr. Shekoyan’s counsel could have been ordered to pay nearly ten thousands of dollars in attorneys’ fees for drafting its Motion to Strike. [JA 583] Finally, a court order sanctioning Mr. Shekoyan’s counsel for falsifying her client’s and her own affidavits submitted to the Court could well have resulted in discipline by the Bar, including disbarment. Fortunately, the telephone conversation with David Bose, Mr. Shekoyan, and his counsel, was audio-taped. [JA Ex. 568] The tape recording and the transcript of the tape recording clearly documented Bose stating, no less than three times, that Mr. Shekoyan had reported Jack Reynold’s discriminatory conduct to him. [JA 581-582, 593, 597, 565-567] Mr. Shekoyan asked Sibley to withdraw its Motion to Strike, since it was based upon an indisputably perjured affidavit. [JA 824-825] Sibley refused. [JA 826] Mr. Shekoyan was forced to respond to Sibley’s motion, under the threats of both dismissal of his case and monetary sanctions. He properly responded by stating that Sibley’s attorneys relied upon a perjured affidavit to file a frivolous motion. Mr. Shekoyan appropriately requested sanctions to deter future misconduct and to compensate counsel for the inordinate amount of time wasted responding to Sibley’s false accusations, particularly since this was not the first false statement that Sibley had made to the Court. [JA 774-818] The trial court acknowledged that the tape was admissible evidence, but flatly refused to “sift through” the short recording. (JA 1167) The trial judge failed to even mention the 37- page transcript of the tape, despite Mr. Shekoyan’s references to the specific pages and lines in the transcript proving that the Bose affidavit was perjured. [JA 802, 804-805, referenced at 879] Instead of sanctioning Sibley’s attorneys for their egregious misconduct, the court literally added insult to injury by characterizing Mr. Shekoyan’s motion for sanctions as indicating “incivility” and “hostility” toward Sibley’s attorneys. The court threatened both parties’ attorneys with monetary sanctions for any future “incivility.” [JA 1168] Mr. Shekoyan and/or his counsel should not bear the burden of the costs of responding to the frivolous and harassing motion, based upon perjury. Moreover, such egregious and unscrupulous attorney conduct should not remain unpunished and undeterred. V. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING MR. SHEKOYAN’S PENDENT D.C. CLAIMS
A Court of Appeals reviews a decision of the trial court regarding whether to dismiss pendent claims based upon whether the trial court abused its discretion. Newport Limited v. Sears, Roebuck and Co., 941 F.2d 302 (5th Cir. 1991). Pursuant to 28 U.S.C. § 1367(c)(3), a federal court may, in its discretion, retain jurisdiction over, or dismiss, pendent claims after federal claims are dismissed. In exercising such discretion, the court should balance factors of judicial economy, convenience, fairness, and comity. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988); Griffin v. Acacia Life Insurance Company, 151 F. Supp. 2d 78 (D.D.C. 2001). In Griffin, the court declined to retain jurisdiction over pendent claims because the court had not expended any resources on addressing the merits of the D.C. law claims and there was little difference in convenience for the parties whether they litigated in D.C. or federal court. In contrast, in Newport Limited v. Sears, Roebuck and Co., 941 F.2d 302 (5th Cir. 1991), the appellate court reversed the trial court’s dismissal of the sate claims after the federal claims had been dismissed. The case had been in litigation in federal court for four years and the litigation had produced thousands of pages of record. Considering the resources already invested in the federal litigation, the appellate court vacated the District Court’s order dismissing the state law claims and returned the claims to federal court for adjudication. The District Court had litigated Mr. Shekoyan’s case for four years before dismissing his D. C. claims. This is not a case where the trial judge is unfamiliar with D.C. law or where the D. C. claims relied upon D.C. statutes with peculiar interpretations. To the contrary, the trial judge, Judge Walton, spent a total eighteen years as a D.C. Superior Court judge, during two separate appointments, spanning from 1981 to 2001, as opposed to his three years as a federal judge. After waiting nearly five years since Sibley ended his career, the trial judge dismissed Mr. Shekoyan’s D.C. claims, forcing him to begin all over again, in D.C. Superior Court, with a new judge, who must learn the facts “from scratch.” The trial judge could even have transferred the case to D.C. Superior Court, rather than dismiss the claims with leave to re- file. Instead, the trial judge selected the one method of addressing Mr. Shekoyan’s claims that would cause him and his counsel the greatest financial hardship, the greatest amount of work, and the longest delay for trial. In this Court, Sibley filed a Motion for Summary Affirmance, asking this Court to affirm the trial court’s dismissal of Mr. Shekoyan’s D.C. claims; yet, in order to obtain a stay of proceedings in D.C. Superior Court, Sibley’s counsel stated that Sibley would have “liked” Judge Walton to have exercised discretion over the D.C. claims and to proceed with these claims in Federal Court. (Transcript of July 16, 2004 hearing in D.C. Superior Court, at 8-9, 14) Sibley should not be permitted to continue to take inconsistent positions in different courts to force Mr. Shekoyan to shuffle from court to court to avoid a trial on any of his claims. Judicial economy and justice strongly favored Judge Walton’s continued jurisdiction at the time that he dismissed Mr. Shekoyan’s claims; however, as time progresses without a trial -- or even a decision on the merits of summary judgment on the D.C. claims -- it may be that the damage already done by the trial judge is irreparable. Indeed, this issue may be moot when decided, if D.C. Superior Court lifts the stay and proceeds with the case.
Mr. Shekoyan respectfully requests that this Court restore his Title VII and False Claims Act claims, consider his Motion for Summary Judgment and grant his Motion for Rule 11 Sanctions. Respectfully submitted,
_______________________________ Dawn V. Martin, Esquire D.C. Federal Bar No. 412384 Law Offices of Dawn V. Martin 1090 Vermont Avenue, Suite 800 Washington, D.C. 20005 (202) 408-7040 telephone (703) 642-0208 facsimile DVMARTINLAW@yahoo.com www.firms.findlaw.com/dvmartinlaw
Law Offices of Dawn V. Martin Shekoyan v. Sibley Internatinal, Inc. Mr. Shekoyan's Appellate Brief