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U.S. Laws Don’t Protect Embassy Worker in Iraq

(CN) - A contractor fired from the U.S. Embassy in Baghdad while on medical leave has no right to sue her employer because "the embassy is not a U.S. territory," a federal judge ruled.

After publication of the decision last week, the New York Times reported that the State Department may drastically reduce the size of the U.S. Embassy in Baghdad, which currently employs nearly 16,000 people, mostly contractors.

From 2007-09, Shirley Souryal worked as an organizational development specialist at the U.S. Embassy in Baghdad. Her direct employer was Torres Advanced Enterprise Solutions, a consulting firm headquartered in Falls Church, Va.

In early May 2009, she was diagnosed with bronchitis, and her illness worsened until she suffered "labored breathing, fever, inability to swallow, severe fatigue, and sleep deprivation," according to her complaint.

When Souryal went to the military hospital, she was allegedly denied admission. A physician at a nearby clinic advised her to remain quarantined in her Embassy housing and receive regular IV injections of antibiotics. She says she could still perform some of her job responsibilities during this time.

In early June, State Department General Services Officer Dwight Samuels recommended that Souryal seek medical evacuation from Baghdad on account of her illness, according to the complaint. Her immediate State Department supervisor, April Powell-Willingham, allegedly agreed.

Torres learned of Souryal's condition, but told her that it would offer no assistance with her arrangements to leave Iraq, according to the complaint. It stopped paying her on June 4, the day she left Baghdad for Cairo.

One week after Souryal's evacuation, Powell-Willingham allegedly asked her when she would be able to return to work. Souryal says she could not estimate when she would be fully recovered but was eager to get back to work.

On June 24, Torres told Souryal that "her services were no longer needed at the Embassy," according to the complaint. When the hospital released Souryal on June 28, Torres allegedly told her again that there was no position for her at the Embassy and suggested she return to the United States, which she did.

The company repeatedly ignored Souryal's repeated requests to return to her former job, or a comparable position, according to the complaint. She claims Torres violated the Family Medical Leave Act (FMLA) by firing her while she was sick.

U.S. District Judge T.S. Ellis III found, however, that Souryal has no right to sue under the FMLA because she worked outside the United Staes.

"As the Supreme Court has put it, territorial jurisdiction exists if the region is 'a territory of the United State in a political sense, that is, a part of its national domain,'" Ellis wrote. "Thus, the touchstone of whether a particular region is a U.S. territory is presence, extent, and exercise of U.S. sovereignty 'in a political sense' over that region. From this, it follows that the embassy is not a U.S. territory."

"Neither the State of Forces Agreement nor any other provision of law purports to confer U.S. jurisdiction over activities inside U.S. diplomatic missions on Iraqi soil," he added. "Thus, it is clear that 'United States embassies,' including the embassy in Baghdad, 'are not within the territorial jurisdiction of the United States.'"

The court held that, "because Congress, in the FMLA, has not expressed an intention contrary to the presumption against extraterritoriality, it follows that the states has no extraterritorial effect and hence Souryal's FMLA claim must be dismissed."

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