Shekoyan v. Sibley Intern., 04-7040.

• Decision Date: 03 June 2005
• Docket Number: No. 04-7040.,04-7040.
• Parties: Vladimir SHEKOYAN, Appellant v. SIBLEY INTERNATIONAL, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

409 F.3d 414

Vladimir SHEKOYAN, Appellant v. SIBLEY INTERNATIONAL, Appellee

No. 04-7040.

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2005.

Decided June 3, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia. (No. 00cv02519).

Dawn V. Martin argued the cause for the appellant.

Kathy M. Banke argued the cause for the appellee. Laura J. Oberbroeckling was on brief.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

KAREN LECRAFT HENDERSON, Circuit Judge.

Vladimir Shekoyan, a lawful permanent resident of the United States during all times relevant to this case, filed a suit against his former employer, Sibley International, alleging employment discrimination under Title VII of the Civil Rights Act of 1984 (Title VII), 42 U.S.C. §§ 2000e et seq., and retaliation under the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733. Shekoyan also asserted state tort and breach of contract claims whose merits are not before us. The district court dismissed Shekoyan's Title VII claim for lack of subject matter jurisdiction, Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59 (D.D.C.2002). The court subsequently granted summary judgment in favor of Sibley on the FCA claim while dismissing Shekoyan's pendent state law claims for lack of supplemental jurisdiction, Shekoyan v. Sibley Int'l Corp., 309 F.Supp.2d 9 (D.D.C.2004). Shekoyan appeals these rulings, as well as two unpublished orders issued by the district court related to Shekoyan's attempt to submit non-standard affidavits in opposition to Sibley's motion for summary judgment. Because the district court correctly interpreted Title VII not to apply to an alien employed outside the United States and properly applied the summary judgment standard in finding for Sibley on Shekoyan's FCA claim, we affirm the judgment of the district court.

I.

Vladimir Shekoyan immigrated to the United States from his native Amenia in 1994 and was granted "lawful permanent resident" (LPR) status in 1996.¹ Shekoyan has a Ph. D. in Finance and Economics from the University of Moscow and has worked for Armenia's Ministry of Economics as well as for the World Bank. Sibley International is a consulting firm headquartered in Washington, D.C. that "assists foreign governments in implementing accounting reform." Def.'s Statement of Material Facts Not in Dispute, Case No. 00-2519 (Apr. 28, 2003).

This lawsuit stems from Shekoyan's employment with Sibley from January 1998 until October 1999. Shekoyan was hired as a "Training Advisor" on the Georgia Enterprise Accounting Reform (GEAR) project for which Sibley had been awarded a contract (called a "task order") by the U.S. Agency for International Development (USAID). The parties signed an employment letter contract that spelled out a 21-month term of employment with the "hope that this will be the beginning of a longer association."² The contract stated Shekoyan's place of employment as "Tbilisi, Republic of Georgia," and noted his eligibility for "USAID benefits for long-term personnel living in Georgia." Shekoyan claims that Sibley "committed to maintaining its employment relationship with [him] beyond the 21-month contract" and that he was to "be employed by Sibley back in Washington, D.C." This claim is disputed by Donna Sibley, the president of Sibley International, who stated in her deposition that Shekoyan's employment beyond the GEAR project was never discussed in more definite terms than the "hope" expressed in the employment contract.

The hoped-for ongoing relationship never came about. Despite a second USAID task order for Sibley to continue the GEAR project, Shekoyan was terminated as of October 31, 1999—the end date of the original task order. The letter of termination, dated October 20, 1999 and sent to Shekoyan's Washington, D.C. residence, cites "a change in staffing requirements" as the reason Shekoyan was not rehired. According to Sibley's brief, the available positions under the new task order required a degree in public accounting, which Shekoyan did not have.

Shekoyan tells a different story. He claims that his working relationship with his immediate supervisor Jack Reynolds deteriorated as a result of Reynolds's discrimination based on Shekoyan's national origin. Shekoyan claims that Reynolds made statements that Shekoyan was not a "real American," mocked his accented English and made racist comments about people from former Soviet states. Shekoyan also alleges financial misconduct by Sibley staff on the GEAR project, including use of the offices and equipment paid for by USAID to run a private audit practice, payment of full time salaries to individuals who were employed full time by other organizations, use of resources supplied by USAID to develop unrelated business for Sibley and diversion of project vehicles and staff members by Jack Reynolds and his wife for personal tasks. Shekoyan claims to have alerted his superiors at Sibley in Washington regarding Reynolds's harassment and misuse of project resources—a claim Sibley denies—and that, as a result, he was fired for insubordination rather than because of any change in staffing requirements.

Shekoyan filed a lawsuit in federal district court on October 20, 2000 alleging: discrimination on the basis of national origin, a violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the District of Columbia Human Rights Act (DCHRA), D.C.Code § 2-1402.11; retaliation for his investigation into the misuse of federal funds by GEAR employees in violation of the FCA, 31 U.S.C. §§ 3729-3733; and other state law torts and breaches of contract. Sibley moved to dismiss Shekoyan's Title VII claim under FED. R. CIV. P. 12(b)(1) on the ground that Title VII protections do not extend to non-U.S. citizens working abroad and to dismiss his FCA claim under FED. R. CIV. P. 12(b)(6) for failure to allege facts sufficient to make out a whistleblower claim. Sibley also moved to dismiss the pendent state law claims for lack of supplemental jurisdiction. The district court granted Sibley's motion to dismiss the Title VII claim, finding that because "the plaintiff is a permanent resident alien, who was employed extraterritorially, he is outside the scope of the protections of Title VII." Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 68 (D.D.C.2002) (Shekoyan I). Accordingly, the district court held that it lacked subject matter jurisdiction over the Title VII claim. Id. Turning to Shekoyan's FCA claim, the district court found that the complaint, which had been filed pro se, failed to satisfy FED. R. CIV. P. 9(b), which requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Shekoyan I, 217 F.Supp.2d at 73. Nevertheless, the district court granted Shekoyan leave to amend his complaint because "`leave to amend is "almost always" allowed to cure deficiencies in pleading fraud.'" Id. at 74 (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996)) (in turn quoting Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir.1986)). Moreover, in Shekoyan's opposition to Sibley's motion to dismiss, he set forth 22 instances of fraud, leaving the court unable to "`say with assurance that ... it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Shekoyan I, 217 F.Supp.2d at 75 (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (internal quotation omitted) (omission in Shekoyan I). Because Shekoyan's state law claims derived from the same "common nucleus of operative fact," United Mine Workers of Am. v Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), as his FCA claim, the district court chose to exercise supplemental jurisdiction and denied Sibley's motion to dismiss those claims. Shekoyan I, 217 F.Supp.2d at 75-76.

Shekoyan filed his first amended complaint on September 2, 2002 with the assistance of counsel. Sibley filed an answer denying all wrongdoing and a counterclaim for the value of certain equipment it alleged Shekoyan took from the GEAR project site. Following discovery, on April 28, 2003, Sibley moved for summary judgment on Shekoyan's FCA claim. As part of the filing in opposition, Shekoyan's lawyer signed and submitted an unnotarized "affidavit" that recounts the purported substance of her telephone interviews with former Sibley employees, including Sibley's former Chief Financial Officer, David Bose. Shekoyan's filing also included an unsigned draft declaration by Gary Vanderhoof, a former Vice President and Project Advisor at Sibley, corroborating Shekoyan's version of events on the GEAR project. Sibley challenged the accuracy of the affidavit and draft declaration and moved to strike both. In support, Sibley submitted signed, notarized affidavits by Bose and Vanderhoof stating that Shekoyan's lawyer had misrepresented their conversations and that they could not substantiate any harassment claims. Sibley also pointed to the transcript of the telephone conversation between Shekoyan's lawyer and Bose, which in several places had Bose denying any knowledge of harassment before Shekoyan's return to the United States. Shekoyan countered with a Rule 11 motion for sanctions against Sibley's lawyers. The district court denied Shekoyan's Rule 11 motion and granted Sibley's motion to strike in part, striking from the record the unnotarized affidavit of Shekoyan's lawyer and the unsigned Vanderhoof declaration.

While the dispute over Shekoyan's submissions in opposition to Sibley's motion for summary judgment was playing out, on January 30, 2004, Shekoyan moved to file his own motion for summary judgment out of time. In an unpublished order dated February 3, 2004, the district court denied the request, noting that all dispositive motions were required—per court order—to be filed by April 28, 2003. On ...