Alhayoti v. Blinken

Background

Asam Alhayoti worked for the U.S. Department of State at the U.S. Embassy in Sana’a, Yemen, beginning in 2010. He was hired as a Foreign Service National Investigator in the local-employee staff category and was paid the local prevailing wage in Yemen. The opinion says that, because he was also a U.S. citizen, the Foreign Service Act guaranteed him at least the federal minimum wage.

The Embassy suspended operations in February 2015 after the outbreak of war. Alhayoti returned to the United States in October 2015 but continued communicating with contacts in Yemen by telephone. The Department placed him on inactive or “non-caretaker” status. He later received a reduction-in-force notice and was terminated in June 2019.

Alhayoti filed an administrative employment-discrimination complaint in April 2019. The Department issued a final decision dismissing his claims in March 2020, and the Equal Employment Opportunity Commission affirmed that decision in July 2021. In this case, he asserted six claims: four based on provisions of the Department’s Foreign Affairs Manual, one under the Worker Adjustment and Retraining Notification Act (WARN Act), and one under Title VII of the Civil Rights Act of 1964.

Motion and legal standard

The Department moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. At this stage, the court accepts well-pleaded factual allegations as true but requires enough facts to make the claim plausible rather than merely possible. The court also considered materials attached to or referenced in the complaint and the agency decisions attached to the motion.

Foreign Affairs Manual claims

The court held that Title VII provides the exclusive remedy for federal employment-discrimination claims. It also explained that the Foreign Affairs Manual provisions generally do not create a private right of action, meaning they do not ordinarily authorize an employee to sue based directly on an alleged violation. The court dismissed the four Foreign Affairs Manual claims with prejudice.

WARN Act claim

The WARN Act generally requires covered employers to provide 60 days’ notice of a plant closing or mass layoff. Department of Labor regulations exclude regular federal, state, and local governments from the definition of covered employers. Because the federal government was not a covered employer under the Act, the court dismissed the WARN Act claim with prejudice.

Title VII claim

The court dismissed the Title VII claim because the theory presented in the complaint was that Alhayoti should have received better pay and benefits because he was a U.S. citizen. Title VII protects against discrimination based on race, color, religion, sex, and national origin; the court held that citizenship and alienage are not protected categories under Title VII.

The court noted that citizenship can be relevant to a Title VII claim if it is being used as a cover for discrimination based on race or national origin. But the complaint did not allege that non-Yemeni local employees were treated better, that Department personnel made derogatory comments about Alhayoti, or that his citizenship was being used as a proxy for race or national origin. The court also found that the complaint did not plausibly allege a disparate-impact claim. A disparate-impact claim challenges a neutral policy that disproportionately harms a protected group without requiring proof of discriminatory intent. Alhayoti did not provide data, scientific literature, personal experiences, or other facts showing that the distinction between local employees and direct hires disproportionately affected a protected group.

The court nevertheless observed that a statement in Alhayoti’s administrative complaint about a supervisor’s “nasty attitude” toward him and other Yemeni, non-citizen staff could potentially support a national-origin discrimination theory. Because the defects might be cured by additional allegations, the court dismissed the Title VII claim with leave to amend.

Disposition

The court granted the Department’s motion to dismiss. The Foreign Affairs Manual and WARN Act claims were dismissed with prejudice. The Title VII claim was dismissed with leave to amend. The court allowed Alhayoti 28 days to file an amended complaint and required him to attach a blackline comparing it with the current complaint.