See also ShekoyanReply.

No. 04-7040

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

VLADIMIR SHEKOYAN,

               Plaintiff-Counter-Defendant – Appellant,

v.

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

ARGUMENT……………………………………………………………………….9

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

CONCLUSION…………………………………………………………………….58

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

ADDENDUM



TABLE OF AUTHORITIES

Page(s)
CASES:

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

Hackett v. McGuire Bros., Inc.,
445 F.2d 442, 3 EPD Par. 8,276 (3d Cir. 1971)        19

Holy Trinity Church v. U.S.,
143 U.S. 457 (1892)        19

Hu v. Meagher & Flom LLP,
76 F. Supp. 2d 476 (S.D.N.Y. 1999)        passim

Hughes v. Ashcroft,
255 F.3d 752 (9th Cir. 2001)        23

Iwata v. Stryker Corporation, et al.,
59 F. Supp. 2d 600 (N.D. Tex. 1999)        passim

Jones v. District of Columbia,
273 F. Supp. 2d 61 (D.D.C. 2003)        13

Kowal v. MCI communications Corp.,
16 F.3d 1271 (D.C. Cir. 1994)        10

*Martin v. Holiday Universal, Inc. No. JH-90-1188,
1990 WL 209266, 1990 U.S. Dist. LEXIS 18102        31

McKennon v. Nashville Banner Publishing Co.,
115 S. Ct. 879 (1995)        19

*Mota v. University of Texas Houston Health Science Center,
261 F.3d 512 (5th Cir. 2001)        12, 23, 27, 31

Neely v. Club Med Sales, Inc.,
(D.C. Civ. No. 91-cv-07416)        25

Newport Limited v. Sears, Roebuck and Co.,
941 F.2d 302 (5th Cir. 1991)        56

O’Loughlin v. The Pritchard Corporation,
972 F. Supp. 1352 (D.C. Kan. 1997)        23

Oliver v. INS,
517 F.2d 426 (2d Cir. 1975)        23

*Olvera-Morales v. Sterling Onions,
322 F. Supp. 2d 211 (N.D.N.Y.)        13, 33

*Pennsylvania State Police v. Suders,
124 S. Ct. 2342 (2004)        29, 46


Prunty v. Arkansas Freightways,
16 F.3d 649 (5th Cir. 1994)        29

*Quarles v. General Investment & Development Co.,
2003 U.S. Dist. LEXIS 3962, 92 Fair Empl. Prac. Cas. (BNA) 623 (D.D.C. 2003)        passim

Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000)        46

Reyes-Goana v. NCGA,
250 F.3d 861 (4th Cir. 2001)        12-13, 33

*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

STATUTES:

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

RULES:

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

REGULATIONS:

41 C.F.R. § 1.10        44

41 C.F.R. § 1.5(a)(3)        44

48 C.F.R. § 702.170-16        passim





OTHER AUTHORITIES:

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

See Addendum.

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.  

CONCLUSION

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