ORAL ARGUMENT SCHEDULED FOR MARCH 15, 2005 BEFORE JUDGES SENTELLE, HENDERSON AND ROGERS
In the United States Court of Appeals for the District of Columbia Circuit
Plaintiff-Counter-Defendant – Appellant,
SIBLEY INTERNATIONAL, INC.,
Defendant-Counter-Claimant – Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (The Honorable Reggie B. Walton) _______________
REPLY 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
SUMMARY OF ARGUMENT
Sibley misrepresents the issues on appeal. Sibley also erroneously claims that Mr. Shekoyan’s statement of facts has not been admitted into the record. The primary issue on appeal is whether Title VII of the Civil Rights Act of 1964 applies to “U.S. nationals,” who are not yet U.S. citizens, when U.S. companies send them from their homes in the U.S. to work abroad, on a temporary basis. Mr. Shekoyan has presented a two-pronged argument compelling Title VII jurisdiction over the employment relationship between Mr. Shekoyan and Sibley International: 1) jurisdiction based on nationality; and 2) jurisdiction based on territoriality. The second issue is whether the District Court erred in granting summary judgment to Sibley on Mr. Shekoyan’s False Claims Act (“whistleblower”) claim. Sibley erroneously claims that Mr. Shekoyan “admitted” that he never believed that Sibley officials or employees had engaged in fraud in connection with its government contract. In fact, Mr. Shekoyan clearly stated that he “believed” that Sibley officials had engaged in fraud and misuse of U.S. government funds and resources. Mr. Shekoyan even reported his suspicions, in writing, during the four preceding his termination by Sibley, as documented by Sibley’s Vice President. Yesudian v. Howard University, 153 F. 3d (D.D.C. 1998) does not require that the plaintiff conduct his own investigation and determine, conclusively, that corruption has occurred in order to claim “whistleblower” protection. It is enough that the plaintiff suspected the misappropriation of government resources and reported it to his supervisors for investigation. Sibley continues to rely on a perjured declaration to falsely accuse Mr. Shekoyan and his counsel of making false statements to the Court. Sibley continues these personal attacks to detract from the merits of the case. Sibley’s attorneys must finally be sanctioned for this egregious misconduct. ARGUMENT I. Sibley Misrepresents the Issues Presented on Appeal
Sibley has completely misrepresented the questions before the Court. Sibley’s “Statement of Issues Presented” bears little resemblance to the issues actually raised by Mr. Shekoyan, on appeal. Moreover, Sibley has incorporated misstatements of fact and law into each purported “question” before the Court, in an attempt to induce the Court to resolve each question based on one or more incorrect assumptions of fact and/or law.
II. Sibley Misrepresents the Facts
A. Mr. Shekoyan’s Statement of the Facts
For the first time, on appeal, Sibley claims that Mr. Shekoyan’s 2d Supplemental Statement of Undisputed Material Facts (2d Supp. Facts), was never a part of the record because Mr. Shekoyan submitted it with his Motion to File a Motion for Summary Judgment, out of Time, due to Newly Acquired Witness Affidavit, which was denied by the Court; however, the factual statements in Mr. Shekoyan’s Brief are supported by his 2d Supp. Facts [JA 937, 1064], his Supp. Facts [JA 647] and his Statement of Facts [JA 325] submitted with Mr. Shekoyan’s Opp. to Def.’s MSJ [JA 278]. Each statement of facts is a summary of the evidence in the record, with citations to the evidence of record proving each fact stated. As explained in Mr. Shekoyan’s Notification of Compliance with February 17, 2004 Order, at 4, footnote 3, Mr. Shekoyan filed his 2d Supp. Facts for the sole purpose of including the newly acquired affidavit of George Adamia, a former colleague of Mr. Shekoyan, when he worked for Sibley in the Republic of Georgia, who was an eye-witness to Jack Reynolds’ harassment of Mr. Shekoyan. B. Sibley Admitted, in District Court, that the Material Facts cited by Shekoyan are Undisputed
Now, on appeal, Sibley attempts to dispute the facts that it has already admitted are undisputed. Sibley is bound by its admissions and may not raise an argument of disputed facts for the first time on appeal. Sibley has conceded that “there is no genuine issue as to any material fact related to Pl.’s claims….” Defendant’s January 29, 2004 Opp. to Pl.’s Motion to Supplement Opp. to Def.’s MSJ with Declaration of George Adamia, Eyewitness to National Origin Harassment of Plaintiff, at 1. [JA 1003] Sibley has never filed a Statement of Disputed Material Facts conforming to Civ. R. Proc. R. 60.1, to dispute Mr. Shekoyan’s version of the facts, as did Mr. Shekoyan [JA 371]. Sibley asks this Court to completely disregard Mr. Shekoyan’s statement of the facts, although each allegation is substantiated by specific exhibits in the record. Instead, Sibley asks this Court to completely replace Mr. Shekoyan’s representations of the facts with its own version of the facts. Amazingly, Sibley characterizes acceptance of its own version of the facts and a flat rejection of Mr. Shekoyan’s representation of the facts as a “fair and balanced view” of the case. Sibley Brief at 4-5. Clearly, “fair and balanced,” to Sibley, means depriving Mr. Shekoyan, at every turn, of presenting his case in any court. This has been Sibley’s litigation strategy for the past five years. C. Sibley has Made Egregious, Deliberate Misrepresentations of Fact to this Court
The limitations of an appellate Reply prohibit disputing each of Sibley’s false factual representations. Mr. Shekoyan trusts that the Court will compare the factual statements of the parties, and, where they conflict, refer to the evidence offered by each party to prove the factual allegation; however, some of Sibley’s material representations are so obviously deliberate efforts to mislead the Court that they must be addressed herein. 1. Mr. Shekoyan never “Moved” to the Republic of Georgia, but Remained a Taxpaying, Legal Permanent Resident of the U.S. throughout his Sibley Employment
Sibley claims that Mr. Shekoyan “moved” to the Republic of Georgia, where he “lived.” (Sibley Brief at 7, 35) As discussed repeatedly in this litigation, and as detailed in Pl.’s Opp. to Def.’s to Dismiss [JA 286, 291] and Pl.’s Motion to Amend [JA 606], Mr. Shekoyan never “moved” or “relocated” to the Republic of Georgia. Shekoyan Brief at 5, 39. [Facts 16-27] Sibley misrepresents the record by stating that Mr. Shekoyan “only traveled to the United States one or two times for personal vacations.” (Sibley Brief at 40) While requiring Mr. Shekoyan to work abroad, away from his home and wife, Sibley paid for several trips home to the U.S. These were not “personal vacations,” but relief from his hardship duty, per diem assignment away from his home. Sibley specifically provided to Mr. Shekoyan the cost of his transportation home – to Washington, D.C., upon the termination of his assignment in Georgia. [Facts 16] Sibley also paid for Mr. Shekoyan’s wife to visit him in the Republic of Georgia (Facts 22) – certainly not a benefit that would be afforded to an employee who was regarded as having “moved” to the foreign country. Mr. Shekoyan began his employment with Sibley at its Washington, D.C. headquarters, in., where he worked for three weeks before Sibley sent him to the Republic of Georgia. [Facts 18] He again worked at Sibley headquarters for a few days during while he was at home, in the U.S. (Facts 20) Mr. Shekoyan’s home and wife remained in the U.S. throughout his employment with Sibley. He paid U.S. and D.C. taxes, D.C. unemployment insurances, U.S. social security payments, and Sibley sent his paychecks from its Washington, D.C. headquarters, to Mr. Shekoyan’s Washington, D.C. home address and/or to his Washington, D.C. bank, through direct deposit. [Facts 18] Sibley even sent Mr. Shekoyan’s termination letter to his Washington, D.C. home address. Shekoyan Brief at 28. [217 F. Supp. 2d at 73, fn. 12, JA 126; Facts 81-82] 2. Sibley Promised Mr. Shekoyan that it would Employ him in its Washington, D.C. Headquarters
Sibley claims that Mr. Shekoyan was hired only for 21 months and only for the GEAR Project, citing his written contract. Sibley Brief at 5-6. Contrary to Sibley’s assertion, the contract explicitly states that Sibley anticipates maintaining Mr. Shekoyan as an employee beyond the 21 month GEAR Project, either with a renewal GEAR or other Project or in its Washington, D.C. headquarters. [Facts 6] In addition, Sibley refuses to acknowledge controlling case law holding that oral representations made during contract negotiations are incorporated into the contract. [Shekoyan’s Opp. to Def.’s MSJ, JA 311-313] Donna Sibley expressly promised Mr. Shekoyan that Sibley would employ him at its Washington, D.C. headquarters after the GEAR Project ended. [Facts 7-8] Based on Sibley’s promises of long-term employment, Mr. Shekoyan left a permanent position with another company in Washington, D.C. to accept employment with Sibley. [Facts 8] 3. Sibley has Misrepresented Mr. Shekoyan’s Acknowledged Contributions to the GEAR Project and Sibley’s Efforts to Induce Mr. Shekoyan to Stay with Sibley
Sibley has attempted to portray Mr. Shekoyan as someone who was only minimally qualified for the positions that he held at Sibley and who did not have the qualifications to continue under the renewed GEAR contract (Sibley Brief at 5-6); however, the undisputed facts of record, including Sibley admissions and documentation, demonstrate that Sibley recruited Mr. Shekoyan for the GEAR Project, for which he did not even apply. [Facts 4] After only ten months assigned to the GEAR Project, Sibley awarded Mr. Shekoyan an early raise to induce him not to leave Sibley or the GEAR Project. [Facts 40] Mr. Shekoyan’s work was widely praised by Sibley officials, including its President, Donna Sibley, as well as by the local Georgian community. [Facts 37-41] Sibley used Mr. Shekoyan’s services even beyond the GEAR Project, promising additional compensation for these services, which it never paid. [Facts 58-66] Sibley also misrepresents the record by stating that Mr. Shekoyan was directly supervised by personnel located in the Republic of Georgia. Sibley Brief at 40. In fact, Mr. Shekoyan was directly supervised, in numerous instances, by Sibley officials in Washington, D.C. [Facts 28] For a period of at least three months, when Mr. Shekoyan was “Acting Chief of Party,” he was not supervised by anyone in the Republic of Georgia, but answered only to Sibley officials in Washington, D.C. [Facts 44] In addition, Mr. Shekoyan was directly supervised by Sibley officials in Washington, D.C., with respect to Sibley projects outside of the GEAR Project, as substantiated by e-mails between Sibley officials in Washington, D.C. and Mr. Shekoyan. [Facts 58-66] 4. Mr. Shekoyan’s Employment with Sibley ended because Sibley Terminated him, not because his Contract Expired
Sibley claims that it did not fire Mr. Shekoyan, but that his contract simply expired and that the renewed GEAR contract called for qualifications that Mr. Shekoyan did not meet [Sibley Brief at 7-8]; however, after Jack Reynolds terminated Mr. Shekoyan and banned him from the Sibley premises, Donna Sibley wrote to USAID officials, stating that Mr. Shekoyan had been terminated for insubordination. [Facts 90] Sibley has therefore admitted that it terminated Mr. Shekoyan. Sibley’s continued insistence to the contrary constitute deliberate misrepresentations to this Court. Clearly, if USAID requirements precluded Mr. Shekoyan’s continued employment, there would be no reason for Donna Sibley to inform USAID that Mr. Shekoyan would no longer be working on the GEAR Project. More importantly, there would have been absolutely no need for Ms. Sibley to offer a justification for Mr. Shekoyan’s termination, such as alleged insubordination, defaming Mr. Shekoyan’s character and hindering his ability to work on other USAID contracts. Finally, the USAID requirements did not change under the renewed GEAR contract in a manner that precluded Mr. Shekoyan’s continued employment. [Facts 83-88; Shekoyan’s Opp. to Def.’s MSJ, JA 301- 304; Shekoyan’s MSJ, JA 1034-1038] To the contrary, the renewed contract simply reflected the “morphing” of the original four U.S. expatriate positions into the two remaining positions that had taken place over the previous 21 months of the GEAR Project. [Facts 42-48; Shekoyan’s Opp. to Def.’s MSJ, JA 303-305; Shekoyan’s MSJ, JA 1037] The remaining two U.S. expatriate positions were then held by Mr. Reynolds and Mr. Shekoyan. [Facts 46; Shekoyan’s Opp. to Def.’s MSJ, JA 305-307; Shekoyan’s MSJ, JA 1037-1038] Sibley’s decision to terminate Mr. Shekoyan was not based on any USAID requirement. Id. Sibley terminated Mr. Shekoyan because Jack Reynolds, who harassed Mr. Shekoyan incessantly for the four months that they worked together, refused to work with him. Reynolds did not consider Mr. Shekoyan a “real American.” [Facts 52-55] Reynolds believed that Soviet people, like Mr. Shekoyan, should be treated the way that he treated “Blacks” and “other immigrants” who “know their place” in Texas. Id. Since Mr. Shekoyan also reported his suspicions that Sibley employees and contractors were misappropriating U.S. government funds and resources [Facts 72-76], Sibley officials in Washington, D.C. allowed Mr. Reynolds to exercise his ethnic origin prejudices to terminate Mr. Shekoyan. For the same retaliatory reasons, which violated the False Claims (“whistleblower”) Act, Sibley made no effort to place Mr. Shekoyan elsewhere in its enterprises, as it had promised when it recruited him to work for Sibley two years earlier. 5. Sibley Continues to Perpetuate and Rely on Perjured Testimony and to Falsely Accuse Mr. Shekoyan and his Counsel of Making False Representations to the Court
Amazingly, Sibley’s attorneys continue their egregious factual misrepresentations and reliance on the perjured declaration of David Bose Sibley Brief at 11-13, 50-51, which Sibley attorneys solicited, drafted, secured, submitted and relied upon at the District Court level. Shekoyan Brief at 52-54. As discussed, in Section V, Sibley’s continued false representations, even at the appellate level, demonstrate that severe sanctions must be imposed upon Sibley’s attorneys to deter their continued misconduct and to compensate Mr. Shekoyan and his counsel for fabricated attacks on their credibility, character and professionalism. III. Title VII Includes no Language that Precludes Mr. Shekoyan from Coverage
Sibley falsely represents that “Shekoyan does not dispute that on its face Title VII extends only to the extraterritorial employment of ‘a citizen of the United States.” Sibley Brief at 18. Indeed, Shekoyan vehemently disputes such a claim, as it has repeatedly made abundantly clear. (Shekoyan Brief at 14-24; Pl.’s Motion to Amend, R. 001548-001582; Shekoyan’s Opp. to Sibley’s Motion for Summary Affirmance, at 6-12. Sibley falsely states that Mr. Shekoyan “admits he is pursuing this appeal to try to change the law....” Sibley Brief at 52. Sibley cites no reference for this purported admission because Mr. Shekoyan has not made such a claim. Certainly, Mr. Shekoyan seeks to change the precedent set by Judge Walton, below; however, such reversal requires no “change” in law, but only an interpretation that is consistent with 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), Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001), Quarles v. General Investment & Development Co., 2003 U.S. Dist. LEXIS 3962, 92 Fair Empl. Prac. Cas. (BNA) 623 (D.D.C. 2003) and other recent cases that reasonably reject the “oversimplified” analysis of Hu v. Meagher & Flom LLP, 76 F. Supp. 2d 476 (S.D.N.Y. 1999) and Iwata v. Stryker Corporation, et al., 59 F. Supp. 2d 600 (N.D. Tex. 1999) Hu and Iwata have been criticized and rejected by other courts and legal commentators. Shekoyan Brief at 13, 14, 32, 42. In fact, Hu was rejected as precedent in the precise jurisdiction that decided it. Torrico, 213 F. Supp. 2d 390; Shekoyan Brief at 32-33, 42. Sibley erroneously argues that Mr. Shekoyan asks this Court to be the first to “re-write” Title VII to include U.S. nationals. Sibley Brief at 29. As set forth in Shekoyan’s Brief, at 9-45, and particularly 9-39, Mr. Shekoyan has presented a two-pronged argument compelling Title VII jurisdiction over the employment relationship between Mr. Shekoyan and Sibley International: 1) jurisdiction based on nationality (Shekoyan’s Brief, at 9- 24); and 2) jurisdiction based on territoriality (Shekoyan’s Brief, at 9-45). In his Brief, Mr. Shekoyan has cited well established precedent for asserting Title VII jurisdiction on both bases. A. Mr. Shekoyan is not an “Alien” within the Meaning of Title VII
As explained in Shekoyan’s Brief, at 17-18, Congress acknowledged that U.S. jurisdiction over employment relationships is inapplicable to “an employer with respect to the employment of aliens outside any State.” 42 U.S.C. Section 2000e-1(a). The Immigration and Naturalization Act defines the term ''alien'' as any person not a citizen or national of the U.S.” 8 U.S.C. Chapter 12, Sections 1101(3). (Emphasis added) Shekoyan Brief at 14-15. Mr. Shekoyan was a U.S. national, pursuant to a USAID regulation, 48 C.F.R. § 702.170-16, defining a “U.S. national” (“USN”) as “an individual who is a U.S. citizen or a non-U.S. citizen lawfully admitted for permanent residence in the United States.” Id. The United States government and Sibley both specifically classified Mr. Shekoyan as a “U.S. national,” pursuant to the USAID Regulation 48 C.F.R. § 702.170-16. As a U.S. national Mr. Shekoyan is not excluded from coverage by Title VII’s alien exemption. In an attempt to retract its earlier admissions that Mr. Shekoyan is a U.S. national, and to avoid the inevitable conclusion that Mr. Shekoyan was a U.S. national during his employment with Sibley, Sibley attempts to argue that USAID’s own regulations and employee classifications should be ignored and that immigration law should apply; however, even Judge Walton has since conceded that his August 19, 2002 conclusion that Mr. Shekoyan could not be classified as a U.S. national because he had not yet applied for citizenship, was in error. January 28, 2004 Order, R. 002193; Shekoyan Brief at 14-17. Sibley’s argument is particularly peculiar since this is not an immigration case and there is no issue of deportation involved. This is an employment case, involving an employee under a USAID contract. There is absolutely no basis for ignoring the relevant, controlling, specific USAID regulation addressing Mr. Shekoyan’ s status as a “U.S. national” employed under a USAID contract and Mr. Shekoyan’s express USAID classification as a “U.S. national.” In any case, the USAID regulation is perfectly consistent with the Immigration and Naturalization Act and simply supplements it. The U.S. State Department has made an apparent decision to provide guidance with respect to assessing this allegiance, in the employment context, at least where an employer is contracting with the U.S. government. The Naturalization and Immigration Act, 8 U.S. 1101(a), absolutely does not state that a person must apply for U.S. citizenship in order to be classified as a U.S. national, but defines a ''national of the U.S.'' as: (A) a citizen of the U.S., or (B) a person who, though not a citizen of the U.S., owes permanent allegiance to the U.S.
The Immigration and Naturalization Act does not provide any particular criteria for demonstrating permanent allegiance to the U.S. sufficient to be deemed a “U.S. national.” Not only does the Act not define a U.S. national based upon whether (s)he applied for citizenship, but the Immigration and Naturalization Service (INS) specifically recognizes that a person can be a U.S. national before applying for U.S. citizenship. [Facts 1, INS Manual, JA Ex. 33] The Naturalization and Immigration Act leaves open the factors for assessing allegiance to the U.S. The analysis centers on subjective intent as demonstrated through objective conduct. Judge Walton’s published August 19, 2002 dismissal of Mr. Shekoyan’s Title VII claims was based on an error of fact (i.e. that Mr. Shekoyan was not a “U.S. national” [Shekoyan v. Sibley, 217 F. Supp. 2d 59, 66, fn.7 (D.D.C. 2002), JA 116; Shekoyan Brief at 14-15], and was therefore excluded by the alien exemption of Title VII) (Shekoyan Brief at 15) and law (that a permanent legal resident of the U.S. cannot be a U.S. national if (s) he has not yet applied for citizenship). Shekoyan Brief at 14-16. In his January 29, 2004 decision, Judge Walton affirmed his August 19, 2002 dismissal of Mr. Shekoyan’s Title VII claims, but on different grounds. (JA 913) This time, Judge Walton erred, as a matter of law, holding that Title VII only protects U.S. citizens, and not U.S. nationals, when assigned abroad. Neither the “plain language” of Title VII nor the legislative history of the 1991 Amendment indicate that Congress intended such an interpretation of the 1991 Civil Rights Act. Shekoyan Brief at 17-25. B. The 1991 Civil Rights Act Amended Title VII to Include Persons Subject to U.S. Law -- not to Exclude Persons within its Jurisdiction
Sibley argues that the “plain language” of Title VII excludes non-citizens from coverage, even if they are U.S. nationals, and even if they are taxpaying residents of the United States performing a mission of the U.S, assigned away from their homes and families in the U.S. Sibley Brief at 18-34. As discussed in Shekoyan’ s Brief, at 14-23, the “plain language” of Title VII does not “limit” coverage to U.S. citizens employed abroad by U.S. companies. Nowhere in the 1991 amendment to Title VII expressly including U.S. citizens, is the word “only” or any other limiting adjective. 42 U.S.C. § 2000e-1(f). The 1991 Civil Rights Act amended Title VII to make it clear that the statute should be interpreted to include those over whom the U.S. has jurisdiction. There is no “plain language” to indicate that Congress considered, and intended to exclude, taxpaying, permanent resident U. S. nationals, over whom the U.S. also has jurisdiction. Congress expressly stated that U.S. citizens employed by U.S. companies abroad were covered by Title VII, in direct response to the Supreme Court’s decision in ARAMCO v. Bourselan, 499 U.S. 244 (1991). 42 U.S. C. § 2000(e)-1(f). Within months of the ARAMCO decision, Congress made it clear that the Supreme Court’s interpretation of the extraterritorial application of Title VII was unacceptable. Sibley relies heavily on the Supreme Court’s decision in ARAMCO Sibley Brief at 18-31; however, ARAMCO is not valid precedent. Sibley attempts to perpetuate reasoning that was only the law of the land for a mere nine months in 1991 and which Congress explicitly rejected and overruled, by statute. The 1991 Civil Rights Act ensured that no U.S. court would, again, misapply Title VII to exclude citizens employed by U.S. companies abroad, since the U.S. has the authority to assert jurisdiction over its citizens abroad. Congress intended to extend Title VII coverage to all persons legitimately within U.S. jurisdiction – not to exclude persons over whom it had authority, leaving them with no protection against abhorrent employment discrimination by U.S. corporations assigning them abroad. Where there is no conflict of law, the U.S. may assert nationality jurisdiction over its own nationals. Shekoyan Brief at 17-18. C. Sibley has not Rebutted Mr. Shekoyan’s Status as a Diplomat Sibley, for the first time, on appeal, argues that Mr. Shekoyan was not a U.S. diplomat because he “makes no showing that the United States (the purported ‘sending state’) gave due notification to the Republic of Georgia (the purported ‘receiving state) and then ‘accredited’ the ‘head of mission’ and ‘assign(ed) any member of the diplomatic staff’ as required by the Vienna Convention.” Sibley Brief at 42. Sibley made no such argument at the District Court level and is not permitted to raise this argument on appeal. In addition, Sibley has completely failed to address the undisputed fact that Mr. Shekoyan and all other Sibley employees on the GEAR Project were granted diplomatic immunity by the Republic of Georgia “as representatives of the United States government,” in “accordance with the Vienna Convention of 1961.” [Facts 18] Sibley has further failed to deny that that non-U.S. nationals were prohibited from entering the Sibley’s worksite in the Republic of Georgia, without special permission, because it was deemed a U.S. mission. Shekoyan Brief at 26-27.
D. Sibley Concedes that U.S. Law Applies to the Shekoyan Employment Relationship
In its MSJ [JA 252, 256261), Sibley itself argued that the law of the District of Columbia applies to its employment relationship with Mr. Shekoyan since the employment contract was negotiated and signed in the U.S! Shekoyan Brief at 24-25. How can Sibley both claim and deny that U.S. law applies to its employment relationship with Mr. Shekoyan? How can Sibley selectively and alternately evade and claim the application of the laws of this country? Sibley fails to explain why it should not be held to U.S. law when its own contracts with its employees hired for the GEAR Project after Mr. Shekoyan’s tenure, mandate that D.C. law apply to their employment contracts. Shekoyan Brief at 24-25. Sibley fails to address the fact that, since the Republic of Georgia has no jurisdiction over Sibley or its employees, the only possible forum for Mr. Shekoyan to adjudicate his claims against Sibley is in the U.S. courts. Shekoyan Brief at 45. E. Sibley Committed Employment Discrimination on U.S. Soil Sibley also failed to rebut Mr. Shekoyan’s arguments that Sibley should be held liable for the discriminatory and retaliatory acts, most particularly his discharge, that Sibley committed and/or ratified in the United States. Shekoyan Brief at 27-31. Sibley officials, in Washington, D.C., terminated Mr. Shekoyan. [217 F. Supp. at 73, fn. 12, JA 126] Shekoyan Brief at 28) Ms. Sibley admitted that any complaint of employment discrimination occurring at the GEAR Project could not be reported or addressed by any EEO procedure implemented in the Republic of Georgia, but had to be handled by Donna Sibley personally, in Washington, D.C. Shekoyan Brief at 29-30. Mr. Shekoyan did report the discrimination to Sibley officials at headquarters, but Donna Sibley effected and ratified Jack Reynolds’ attempt to terminate Mr. Shekoyan. (Id.) This is not a case of a foreign affiliate of a U.S. corporation managing itself abroad. The GEAR Project was managed, on a daily basis, by Sibley officials in Washington, D.C. Sibley must be held accountable for the discrimination that it committed on U.S. soil and for the harm that it caused to Mr. Shekoyan and his family, living on U.S. soil and paying U.S. and D.C. taxes for the privilege of the protection of its laws. See Shekoyan Brief at 21-23. IV. False Claims Act As set forth in Shekoyan’s Brief, at 46-48, the 2d issue before the Court is whether the District Court erred in granting summary judgment to Sibley on Mr. Shekoyan’s False Claims Act (“whistleblower”) claim. Sibley argues that Mr. Shekoyan “admitted” that he never believed that Sibley officials or employees had engaged in fraud in connection with its government contract. Sibley Brief at 47. Sibley has again misrepresented the record. Mr. Shekoyan testified that he had not definitively “concluded” that there was corruption at Sibley – not that he did not believe or suspect it. As discussed in Shekoyan’s Brief, at 47-48, the controlling case, decided by this Court, Yesudian v. Howard University, 153 F. 3d (D.D.C. 1998), does not require that the plaintiff conducted his own investigation and determine, conclusively, that corruption has occurred. As discussed in Shekoyan’s Brief, at 48, Mr. Shekoyan clearly stated that he “believed” that Sibley officials had engaged in fraud and misuse of U.S. government funds and resources and that Sibley personnel were involved in “inappropriate transactions” and “violations” of U.S. government regulations regarding U.S. government funds and resources. [Facts 71-75] Mr. Shekoyan stated these beliefs in writing, beginning on May 6, 1999, while still employed by Sibley and ending in October of 1999, when he was terminated. [Id.] In a memorandum to Sibley’s President, Donna Sibley, Sibley’s Vice President, Gary Vanderhoof, specifically documented Mr. Shekoyan’s reported belief that government funds and resources were being misappropriated. [Facts 72] V. The District Court Improperly Refused to Examine the Undisputed Evidence of Egregious Misconduct by Sibley’s Attorneys
As Sibley acknowledges, the District Court “refuse[d] to sort out the cross-accusations” in response to Mr. Shekoyan’s Motion for Rule 11 Sanctions against Defendant for Filing a Frivolous Counterclaim and Motion, and Making False Representations to this Court. Sibley Brief at 51; February 17, 2004 Order [JA 1167]. The District Court had an obligation to examine the evidence to determine whether the accusations – which are extremely serious – were true. Instead, Judge Walton allowed Sibley’s attorneys to continue their egregious misconduct, unpunished and undeterred, costing Mr. Shekoyan and/or his counsel tens of thousands of dollars worth of attorney time defending themselves against false and frivolous personal attacks. Shekoyan Brief at 52-56. As detailed in Mr. Shekoyan’s Motion for Rule 11 Sanctions, Sibley’s attorneys have made numerous false, bad faith representations throughout this litigation. Their conduct has included making false accusations against a fellow member of the bar, knowing that, if believed, the falsely accused attorney could be disciplined and even disbarred. Such egregious and malicious misconduct should certainly not be left un- “sorted out.” Sibley attorneys falsely accused Mr. Shekoyan and his counsel of acting in bad faith and materially misrepresenting the substance of conversations that they had with two former Sibley officials, Gary Vanderhoof and David Bose, both of whom promised to provide Mr. Shekoyan with affidavits in lieu of deposition testimony. (Pl.’s Motion for Rule 11 Sanctions. (JA 789-805) Mr. Shekoyan’s counsel properly filed a Rule 56(f) affidavit requesting an enlargement of discovery to obtain signed affidavits and/or depositions of Gary Vanderhoof and David Bose, after they withheld and/or delayed the promised affidavits. Id. As required by case law developed under Rule 56(f) [JA 786-789] Mr. Shekoyan’s counsel explained why additional time was needed for discovery and what she expected to obtain from this additional discovery. [JA 871-873] This explanation required relating to the Court the substance of the conversations that she and Mr. Shekoyan had with Gary Vanderhoof and David Bose, the persons whom she wanted to depose during extended discovery. [Id.] While Mr. Vanderhoof was promising Mr. Shekoyan’s counsel, in writing, that he would review the affidavit that she had drafted for him to sign, make any edits he desired, sign it and return it to her, he never did so. [JA 793-799] During the very time that Mr. Vanderhoof represented to Mr. Shekoyan’s counsel that he was reviewing her draft declaration, he was actually working with Sibley to provide Sibley with a declaration that Sibley’s attorneys had re-drafted from the draft provided by Mr. Shekoyan’s counsel. [Id. Sibley’s lawyers sprang Mr. Vanderhoof’s affidavit on Mr. Shekoyan, as a complete surprise, along with an additional surprise declaration from David Bose [JA 778-802], in its Motion to Strike and for Costs [JA 421], accusing Mr. Shekoyan and his counsel of filing false affidavits/declarations with the Court. (See Pl.’s Motion for Rule 11 Sanctions [JA 774] and Reply [JA 862] Sibley deliberately and clandestinely violated Local Rule 7.1(m) and Judge Walton’s Order and Guidelines, 3 [JA 100], which specifically require any party filing a motion to first discuss it with opposing counsel and attempt to resolve it without filing the motion. Pl.’s Motion for Rule 11 Sanctions [JA 777-782]. Judge Walton’s Rule 3 specifically requires that any motion filed in violation of Local Rule 7.1(m) or his own Rule 3 be sua sponte denied (Id.); however, Judge Walton violated his own rules by entertaining the motion, and even granting it in part, striking counsel’s Rule 56(f) affidavit and the declaration of Mr. Shekoyan’s wife, Noune Pambouckhtchian. In addition, it was completely unnecessary for Judge Walton to strike Mr. Shekoyan’s counsel’s Rule 56(f) affidavit for purposes of relating the statements of Gary Vanderhoof and David Bose because, at the time the Court decided the motion, Sibley had submitted a signed declaration by Mr. Vanderhoof that repeated most of the material facts asserted by Mr. Shekoyan and his counsel in their affidavits/declarations describing their conversation with Mr. Vanderhoof. [JA 873-878] Mr. Shekoyan had already incorporated the signed Vanderhoof and Bose declarations, as well as the impeaching transcript of the Bose conversation (Supp. Facts 68-69) into a Statement of Supplemental Undisputed Material Facts. These Rule 56(f) declarations/affidavits were initially offered, on a short term basis, as part of a Mr. Shekoyan’s request for more time to secure the signed witness declarations and/or their deposition testimony. [JA 871-873] Although Mr. Shekoyan clearly corrected Sibley’s misrepresentations at the District Court level (JA 869-871), Sibley’s attorneys persist in misrepresenting to the Court that Mr. Shekoyan and his counsel stated that David Bose told them that he recalled that, during Mr. Shekoyan’s employment with Sibley, Mr. Shekoyan reported to him that Jack Reynolds harassed him on the basis of national origin. Sibley Brief at 12 In fact, neither Mr. Shekoyan nor his counsel ever stated that Mr. Bose recalled the time period that Mr. Shekoyan told Mr. Bose of Mr. Reynolds’ harassment. (JA 800-802) Mr. Bose even invited Mr. Shekoyan’s counsel to adopt Mr. Shekoyan’s recollection of the time frame for the conversation, stating: “Vlad may remember better than me” (R. 001488) and “Yeah, I’m sure – I mean, if Vlad said it, I’m sure he said it, but you know, I mean, I know I heard it later, I just don’t remember at what time it was said.” [JA 804-805] Mr. Shekoyan’s counsel specifically replied, “Yeah, yeah, he does, but obviously, it’s a matter of what you remember.” [JA Ex. 578] Far from “pressur[ing]” Mr. Bose to answer in a way that he did not recall, as Sibley falsely alleges (Sibley Brief at 12), Mr. Shekoyan’s counsel specifically told Mr. Bose, “I don’t want to put words in your mouth.” [JA Ex. 594] In his declaration, David Bose vehemently swore that Mr. Shekoyan and his counsel misrepresented his statements. Mr. Bose insisted that he told them that Mr. Shekoyan told him that Jack Reynolds made specific derogatory comments on the basis of national origin only after his employment with Sibley ended [JA 417-418]; however, the tape recording of the interview, which Mr. Shekoyan provided to the Court, and the transcript of the tape recording, provided by Sibley (JA Ex. 568, supplemented by 565], both demonstrate that Mr. Bose stated, repeatedly, that he could not recall whether Mr. Shekoyan reported this discrimination to him before or after his employment with Sibley ended. Pl.’s Motion for Rule 11 Sanctions [JA 801-802, 878-880] There can be no question, then, that David Bose perjured himself in this declaration and that Sibley relied upon, and continues to rely upon, even now, at the appellate level, a knowingly perjured. Whether Mr. Shekoyan reported Reynold’s discriminatory treatment during Mr. Shekoyan’s Sibley employment or shortly after he was fired, Mr. Bose, as an officer of Sibley, had a duty to investigate Mr. Shekoyan’s claims of harassment, discrimination and discriminatory termination. Mr. Shekoyan’s own testimony that he first reported Mr. Reynold’s discriminatory harassment while he was still employed by Sibley was undisputed by Mr. Bose, as exhibited by the tape recording and transcript of the conversation, he could not recall the time frame and deferred to Mr. Shekoyan’s recollection on that point. [JA Ex. 581-582] Mr. Shekoyan’s testimony is currently only disputed by the unreliable, perjured Bose declaration. In its order purportedly responding to Sibley’s Motion to and Mr. Shekoyan’s Motion for Rule 11 Sanctions, the District Court concluded that Sibley did violate Rule 7.1(m) and that Sibley’s claims that Mr. Shekoyan’s counsel filed submissions in bad faith were unsubstantiated. February 17, 2004 Order [JA 1166-1167] Sibley’s incredulous persistent misrepresentations to both the District and appellate court and its continued perpetuation of perjured testimony, clearly demonstrate the need for sanctions against Sibley’s attorneys for this repeated, egregious misconduct. CONCLUSION
Mr. Shekoyan respectfully requests that this Court restore his Title VII and False Claims Act claims, consider his MSJ and grant his Motion for Rule 11 Sanctions.
_______________________________ 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 International Mr. Shekoyan's Reply Brief