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SHEKOYAN v. SIBLEY INTERN. CORP.

August 16, 2002

VLADIMIR SHEKOYAN, PLAINTIFF,
V.
SIBLEY INTERNATIONAL CORP., DEFENDANT.



The opinion of the court was delivered by: Walton, District Judge.

  MEMORANDUM OPINION

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 claims.*fn2

I. Background

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.

When USAID decided to extend its contract with the defendant, the defendant chose not to extend the plaintiffs employment agreement beyond the originally anticipated termination date. Id. ¶ 61, Ex. D. The plaintiff asserts that his immediate supervisor sent an electronic (e-mail) message to project employees stating that the plaintiffs employment had been terminated because he "does not follow . . . instructions and does not recognize his [supervisor's] authority." Id. ¶ 64. The defendant contends that the USAID extension required a change in staffing requirements, id. ex. D, and that the plaintiff did not have the skills required by USAID for the extension. Def.'s Mem. at 2. In his Complaint, however, the plaintiff contends that both the defendant and the Republic of Georgia praised him for his work on the project. Compl. ¶ 23. Following the termination of his employment, the plaintiff filed his pro se Complaint.*fn4

II. Standards of Review

(A) Rule 12(b)(1)

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 (citations omitted).

(B) Rule 12(b)(6)

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).").

III. Analysis

(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. Oil (citation 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 ...


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