Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge. (CA-99-27-A)
Before Wilkinson, Chief Judge, Murnaghan,* Circuit Judge, and Henry M.
Herlong, Jr., United States District Judge for the District of South
Carolina, sitting by designation.
*Judge Murnaghan heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the panel
pursuant to 28 U.S.C. § 46(d).
The opinion of the court was delivered by: Wilkinson, Chief Judge
Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Herlong joined.
Appellant Nyla Butters brought suit against her employer, Vance International, claiming that Vance discriminated against her on the basis of gender. The district court held that Vance was entitled to immunity from Butters' suit under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611, because Vance's client, the Kingdom of Saudi Arabia, was responsible for Butters not being promoted. Finding no error, we affirm.
Vance International, headquartered in Oakton, Virginia, provides security services to corporations and foreign sovereigns. In October 1994, Saudi Arabia hired Vance to augment the security provided to Princess Anud, a wife of Saudi King Fahad, while the Princess was undergoing medical treatments in California. The Saudi military was responsible for protecting Princess Anud. The Princess' residence in Bel Air, California was referred to as "Gold." Saudi Arabian Colonel Mohammed Al-Ajiji supervised all security at the site -- three Saudi military officers and the Vance agents. Saudi Captain Abdullah was second in command. The Saudi government paid Vance for its services.
In August 1995, Vance hired Nyla Butters as a part-time, at-will security agent. From 1995 until April 14, 1998, Vance assigned Butters to Gold for various extended periods. Butters served both as a "resident agent" guarding various locations around the premises and as a "protectee agent" assigned to a particular member of the Saudi royal family. The chain of command among Vance agents at Gold was, from lowest to highest, resident agent, protectee agent, command post agent, and detail leader. On several occasions, Butters temporarily worked in Gold's command post.
In early April 1998, Vance supervisors at Gold recommended that Butters serve a full rotation in the command post. In Colonel Mohammed's absence, Captain Abdullah rejected the recommendation. When Colonel Mohammed returned, Gregg Hall, the Vance detail leader, spoke with Mohammed. Colonel Mohammed denied Hall's request for Butters to serve a rotation in the command post. Colonel Mohammed told Hall that such an assignment was unacceptable under Islamic law, and Saudis would consider it inappropriate for their officers to spend long periods of time in a command post with a woman present. This in turn could have political ramifications at home for the Saudi royal family. Mohammed also informed Hall that the Princess and her contingent wanted to speak only to male officers when they called the command post. In total, three Vance supervisors recommended Butters for the assignment. Saudi military officers denied every request.
On April 12, 1998, Hall told Butters that because of the Saudi decision, Butters could not be assigned a rotation in Gold's command post. Butters decided to leave Gold after her shift on April 14, 1998, and never return. As Butters left without giving Vance two weeks notice, her personnel record was updated with the notation "DNR," meaning that Vance would not call Butters for future work.
On May 28, 1998, Butters filed a charge of gender discrimination with the California Department of Fair Employment and Housing. On October 15, 1998, Butters filed suit against Vance in California state court. Vance removed the case on diversity grounds to the United States District Court for the Central District of California. The district court dismissed some of Butters' claims and, pursuant to a venue clause in Butters' employment contract, transferred the remainder to the Eastern District of Virginia. Butters' remaining claims were for discriminatory constructive termination, retaliatory constructive termination, and wrongful constructive termination in violation of public policy under California's Fair Employment and Housing Act. Vance filed a motion for summary judgment with respect to these counts.
On July 30, 1999, the district court granted Vance's motion, finding Vance immune from Butters' suit under the Foreign Sovereign Immunities Act (FSIA). See 28 U.S.C. §§ 1602-1611 (1994). Under the FSIA, "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." 28 U.S.C.§ 1604. The district court held that derivative FSIA immunity attached to Vance because it was "acting under the direct ...