The opinion of the court was delivered by: Walton, District Judge.
This matter comes before the Court upon Defendant Sibley
International Corporation's ("Sibley") Motion to Dismiss the
plaintiffs Complaint that alleges (1) discrimination on the
basis of national origin in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. (2000); (2)
discrimination on the basis of national origin in violation of
Presidential Executive Order ("E.O.") 11,246, Exec. Order No.
11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965); (3) retaliatory
termination of his employment in violation of the whistleblower
provision of the False Claims Act ("FCA"), 31 U.S.C. § 3730(h)
(2000); (4) discrimination on the basis of national origin in
violation of the District of Columbia
Human Rights Act ("DCHRA"), D.C.Code §§ 2-1401.1-1403.17 (2001);
and District of Columbia common law claims of (5) breach of
contract; (6) defamation; and (7) intentional infliction of
emotional distress. Compl. ¶¶ 1-3. Specifically, the defendant
seeks dismissal of the plaintiffs Title VII, E.O. 11,246, and
common law claims*fn1 pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure for lack of subject matter
jurisdiction and the plaintiffs FCA claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(1), 12(b)(6). Upon consideration of the parties'
submissions and for the reasons set forth below, the Court must
grant the defendant's motion to dismiss the plaintiffs Title VII
and Executive Order 11,246 claims, and deny the defendant's
motion to dismiss the plaintiffs False Claims Act and state law
A brief recitation of the facts that underlie the filing of
this case is a necessary prelude to the Court's analysis of the
legal arguments raised in the parties' pleadings. The plaintiff
asserts that he is an "Armenian-born permanent legal resident of
the United States." Compl. ¶ 5. In January 1998, the defendant
hired the plaintiff to be a training advisor for a project that
would be performed in the Republic of Georgia. Id. ¶¶ 10, 17.
The plaintiff was hired by, trained at, and reported to the
defendant's corporate headquarters in the District of Columbia.
Id. ¶¶ 13-16. The plaintiffs primary workstation, however, was
located in the Republic of Georgia. Id. Ex. C. Because the
defendant received funding for the project from the United
States Agency for International Development ("USAID"),*fn3
the plaintiffs employment agreement was subject to the policies
and regulations of USAID and listed the termination date of the
USAID contract as the anticipated date for the termination of
his employment contract. Id. ¶ 11, Ex. C. The plaintiff
contends that his immediate supervisor at the Republic of
Georgia job site created a hostile work environment when he
discriminated against the plaintiff because of the plaintiffs
national origin. Id. ¶ 27. The plaintiff also asserts that he
informed management officials at Sibley about the alleged
discrimination, that he reported the misappropriation of USAID
funds by his immediate supervisor to management officials at the
defendant's headquarters in Washington, D.C., and that he was
advised by those officials not to "make too much noise" about
the misuse of funds. Id. ¶¶ 54, 68.
Federal Rule of Civil Procedure 12(b)(1) requires that the
plaintiff bear the burden of establishing by a preponderance of
the evidence that the court has jurisdiction to entertain his
claims. Fed.R.Civ.P. 12(b)(1); Grand Lodge of Fraternal Order
of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.C. 2001) (holding
that the court has an "affirmative obligation to ensure that it
is acting within the scope of its jurisdictional authority.");
Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp.2d 15,
18 (D.C. 1998); Darden v. United States, 18 Cl.Ct. 855,
859 (Cl.Ct. 1989). While the Court must accept as true all the
factual allegations contained in the complaint when reviewing a
motion to dismiss pursuant to Rule 12(b)(1), Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), because
the plaintiff has the burden of proof to establish jurisdiction,
the "`plaintiff's factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion' than
in resolving a 12(b)(6) motion for failure to state a claim."
Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at
13-14 (citation omitted). However, in deciding a 12(b)(1)
motion, the Court is not limited to the allegations in the
complaint but may consider "`such materials outside the
pleadings as it deems appropriate to resolve the question
whether it has jurisdiction in the case.'" Id. at 14
On a motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6), the allegations and facts in the complaint
are to be construed in the plaintiffs favor, and the Court must
grant the plaintiff the benefit of all inferences that can be
derived from the alleged facts. Conley v. Gibson, 355 U.S. 41,
4546, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994). The
Federal Rules only require that a complaint include "a short and
plain statement of the claim showing that the pleader is
entitled to relief," Fed.R.Civ.P. 8(a)(2), because the complaint
"must simply `give the defendant fair notice of what the
plaintiffs claim is and the grounds upon which it rests.'"
Swierkiewicz v. Sorema N.A., 534 U.S. 506, ___, 122 S.Ct. 992,
998, 152 L.Ed.2d 1 (2002) (quoting Conley, 355 U.S. at 47, 78
S.Ct. 99). In deciding whether to dismiss a complaint under
Rule 12(b)(6), the Court will consider the facts alleged in the
pleadings, documents attached as exhibits or incorporated by
reference in the pleadings, and matters about which the Court
may take judicial notice. EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 62425 (D.C.Cir. 1997); Phillips v. Bureau
of Prisons, 591 F.2d 966, 969 (D.C.Cir. 1979). While this
theory of "notice pleading"
generally applies to all civil actions, because the plaintiffs
FCA claim is an allegation of fraud, it must also comply with
Federal Rule of Civil Procedure 9(b). United States ex rel.
Totten v. Bombardier Corp., 286 F.3d 542, 544 (D.C.Cir. 2002).
Rule 9(b) "provides for greater particularity in all averments
of fraud or mistake," to accomplish the goal of `fair notice' to
the defendant. Swierkiewicz, 122 S.Ct. at 998.
However, as the plaintiff filed a pro se complaint, the
Court must hold the complaint "to less stringent standards than
formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Therefore,
even when a claim of fraud is pled, this Court will "read [a]
pro se complaint liberally and broadly" and will only
dismiss the pro se complaint for failure to state a claim upon
which relief can be granted if "it appears beyond doubt that the
plaintiff can `prove no set of facts in support of his claim
that would entitle him to relief.'" Id.; see Price v. Phoenix
Home Life Ins., Co., 44 F. Supp.2d 28, 31 (D.C. 1999).
Nonetheless, some degree of particularity regarding a claim of
fraud must be pled even by a pro se litigant to satisfy
Rule 9(b). Floyd v. Brown & Williamson Tobacco Corp., 159 F. Supp.2d 823,
832 (E.D.Pa. 2001) ("While plaintiff is proceeding pro
se, and his pleadings must be construed liberally, plaintiff is
not relieved of the requirements of Rule 9(b).").
(A) Plaintiff's Title VII Claim
Title VII of the Civil Rights Act of 1964 was enacted by
Congress to "assure equality of employment opportunities and to
eliminate those discriminatory practices and devices which have
fostered racially stratified job environments to the
disadvantage of minority citizens." McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
To accomplish these goals, Congress mandated that
[i]t shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's race, color, religion,
sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). Prior to the enactment of the Civil
Rights Act of 1991, federal courts limited their interpretation
of the scope of Title VII's reach, extending its protections
only domestically, to both American citizens and aliens working
in the United States. EEOC v. Arabian Am. Oil Co.,
499 U.S. 244, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (Court held that
Title VII does not have an extraterritorial application to the
employment of American citizens abroad by United States firms),
superceded by Civil Rights Act of 1991, Pub.L. No. 102-166, §
109(a) (1991) (codified as amended at 42 U.S.C. § 2000e(f))
(1991 amendments to Title VII did not overrule Supreme Court's
determination that Title VII is inapplicable to aliens employed
outside the United States); Espinoza v. Farah Mfg. Co.,
414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973) (holding that
Title VII covers aliens employed in the United States). In light
of the Supreme Court's decision in Arabian Am. Oil rejecting
an extraterritorial application of Title VII to American
citizens employed abroad by United States companies, Congress
enacted the Civil Rights Act of 1991 and amended Title VII to
give the statute limited extraterritorial reach. United States
v. Wilkinson, 169 F.3d 1236, 1238 (10th Cir. 1999) (recognizing
that Arabian Am. Oil was superceded by statute); Arno v. Club
Med Inc., 22 F.3d 1464, 1472 (9th Cir. 1994) ("In Arabian Am.
omitted) the Court held that an employer is not liable under
Title VII for employment discrimination that occurs outside of
the United States. Though Congress changed that law in the Civil
Rights Act of 1991 . . ."); Flatow v. Islamic Republic of
Iran, 999 F. Supp. 1, 15 (D.C. 1998) (recognizing that Arabian
Am. Oil was superceded by statute); Iwata v. Stryker Corp.,
59 F. Supp.2d 600, 603-04 (N.D.Tex. 1999) (noting that the
Court's decision in Arabian Am. Oil held that employers were
not liable under Title VII for discrimination against United
States citizens occurring outside of the United States.
"However, by year's end, Congress ostensibly declared its
contrary legislative intent with the enactment of the Civil
Rights Act of 1991."). First, the amended Act expands Title
VII's definition of "employee" to include United ...